HONORABLE PATRICIA M. WALD
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
HONORABLE PATRICIA M. WALD
Interviews conducted by:
Stephen J. Pollak, Esquire
March 24 and July 28, 1992
March 8 and April 6, 1993
October 17, 1994, December 7, 1998, and May 6, 2003
TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
Honorable Patricia M. Wald …………………………………………………………………………. iii
Wald Family Authorization to publish transcript on Society website ………………iv(a)
Stephen J. Pollak, Esquire……………………………………………………………………………….v
Oral History Transcripts of Interviews
March 24, 1992 ……………………………………………………………………………………………..1
July 28, 1992……………………………………………………………………………………………….72
March 8, 1993 ……………………………………………………………………………………………141
April 6, 1993 ……………………………………………………………………………………………..210
October 17, 1994………………………………………………………………………………………..256
December 7, 1998 ………………………………………………………………………………………322
May 6, 2003 ………………………………………………………………………………………………346
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Honorable Patricia M. Wald ……………………………………………………………………..C-1
Stephen J. Pollak, Esquire…………………………………………………………………………C-3
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.
© 2022 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society. Before donating the oral history to the Society, both
the subject of the history and the interviewer have had an opportunity to review and edit the
transcripts.
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.
i

Schedule A
Transcripts resulting from seven (7) interviews of Judge Patricia M. Wald
on the following dates:
Pages of
Date (Month, Day, Year) & Title Transcript
Interview #1, March 24, 1992 1 – 60
Interview #2, July 28, 1992 61 – 129
Interview #3, March 8, 1993 130 – 198
Interview #4, April 6, 1993 199 – 244
Interview #5, October 17, 1994 245 – 310
Interview #6, December 7, 1998 311 – 334
Interview #7, May 6, 2003 335 – 381
The transcripts of the seven (7) interviews are contained on two diskettes.
-iv-
Stephen J. Pollak
SARAH E. W ALD
232 Payson Road
Belmont, MA 02478
Sew071 @gmail.com
Chair, Historical Society of the D.C. Circuit
c/o Goodwin Procter LLC
1900 N Street NW, Suite 1023
Washington, D.C. 20036
February 20, 2020
Re: Oral History of Judge Patricia M. Wald
Dear Steve:
I am writing to confirm my email communications to you respecting disposition of the transcript
and voice recordings of the oral history of my mother given in seven interviews during the period
1992 – 2003 and sponsored by the Historical Society of the District of Columbia Circuit.
I have consulted with my siblings and, with their approval, hereby authorize the Society to
publish the edited transcript of the oral history on the Society’s website. We are aware that, with
my mother’s approval, the transcript is published and available to the public at the Library of
Congress, the Judges Library in the E. Barrett Prettyman U.S. Courthouse in D.C., and at the
library ofthe Historical Society of Washington, D.C.
Additionally, we authorize the Society to transmit the voice recordings of seven oral history
interviews, minus any portion marked confidential by Judge Wald, to the Yale Law School for
inclusion in the Judge Wald Archive maintained there.
Sincerely,
Sarah E. Wald

Schedule A
Transcripts resulting from seven (7) interviews of Judge Patricia M. Wald
on the following dates:
Pages of
Date (Month, Day, Year) & Title Transcript
Interview #1, March 24, 1992 1 – 60
Interview #2, July 28, 1992 61 – 129
Interview #3, March 8, 1993 130 – 198
Interview #4, April 6, 1993 199 – 244
Interview #5, October 17, 1994 245 – 310
Interview #6, December 7, 1998 311 – 334
Interview #7, May 6, 2003 335 – 381
The transcripts of the seven (7) interviews are contained on two diskettes.

March 24, 1992
This is the first oral history session with Circuit Judge Patricia M. Wald of the U.S. Court
of Appeals for the District of Columbia Circuit. It is taking place on Tuesday, March 24, 1992,
commencing 10:15 a.m. Present are Judge Wald and the interviewer Stephen J. Pollak. The
interview is being conducted as part of the Oral History Project of the Historical Society of the
District of Columbia Circuit.
Mr. Pollak: Why don’t you give us your full name, date, place of birth and some
of your own background as a person, human being?
Judge Wald: Okay. My name is Patricia Ann McGowan Wald. I was born on
September 16, 1928, in Torrington, Connecticut; that’s in Litchfield County. My mother’s name
was Margaret O’Keefe McGowan. My father’s name was Joseph McGowan.
My mother was second-generation Irish, that is my grandparents, her mother and father,
had come over with a large group of relatives from Ireland, in the 1890s. She had one brother and
three sisters. My grandmother had altogether ten or eleven children but only five lived to their
majority.
I know very little about my father’s family. When I was about 2 years old, my father
departed the scene. My father, I am told, was an alcoholic and, although he had been in the
World War I Navy, and had tried his hand at many jobs, he could not settle down, drank too
much, provoked a series of incidents in which my mother was left with no rent money, and finally
left for good. I never saw him after the age of 2. I have only one very faint memory of being in a
room and having my mother and father in a separate room and playing with some toys and having
them at the kitchen table. But, other than that and a few photographs, I have no memory.
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He had come from a good hard-working, working class family in a neighboring town,
Thomaston.
Mr. Pollak: Neighboring town to where?
Judge Wald: Thomaston was a neighboring town to Torrington. I think you have
to be Irish to understand some of these relationships. Even though his family was in the next
town, there was never any contact with them after my father disappeared, so I never knew them;
apparently I had aunts, and once in a while one of them would send me a doll at Christmas, but I
never knew or met them.
When my father disappeared, my mother moved back in with her family so that I really
grew up in an extended family situation with my grandmother, my grandfather, my uncle, who
was unmarried, and my mother’s three sisters. So altogether, there were eight of us, in a quite
modest little house; we all doubled up in bedrooms.
Everybody in the family worked in the local factories. My mother had a job, right up until
the time that she retired when she was about 65, as an accountant. She was very good with
figures. Not a certified accountant but she did the books for the local factory.
I had another aunt who was very smart, who was an executive secretary. My uncle worked
in the factory as a laborer. My grandfather shoveled coal into a blast furnace. My grandmother
didn’t work. She stayed home and kept the house. One aunt died very young of a kidney disease,
when I was in second grade. One aunt married and went off to establish her own family. One
aunt, who’s still alive, remained in that family unit. So did my uncle, who never married and died
about 10 years ago. So I was the only child in this kind of adult extended family.
Everybody went to work in the morning and came back at night. Everything revolved
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around the workday. They had to be at work at 8:00. They came home for an hour’s lunch and
went back again, and then came home at 5:00 or 6:00 at night.
Mr. Pollak: What was the industry in which the family worked?
Judge Wald: It was called the Torrington Company and it made sewing machines
and knitting needles. It was later taken over by Ingersol-Rand long after I had left Torrington. It
made some other things, bearings, ball bearings.
I worked in the factory myself for three summers, when I was going through college, and
it was very interesting. I did straight labor. I greased ball bearings one summer, separated out
needle bearings another summer; so I had a good sense of the laboriousness of factory labor.
Because there were always union fights going on in this factory (it was a UAW union), I had a
first-hand sense of the labor movement in the ’40s. In fact, I went out on strike with the union
one summer. I worked with the union writing pamphlets and doing various other chores.
So, the thing I remember most about my childhood was it seemed like there were an awful
lot of hours in the day. I did not go to camp until I was in sixth or seventh grade. I was in girl
scouts and they would have day camp one week a year. They bussed you up to the local lake for
the day, but that was really the only camp experience I had.
As for vacation experiences, in those days, people got off from the local company for a
week a year. My mother would have a week off. Sometimes we would go someplace with my
mother and my aunt or they’d rent a cottage at the local lake, but that was basically what vacations
were.
There used to be these long days in the summertime. I dreaded the summer because
during the year there was school and lots of activities, but in summer you had these long days
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with nothing to do except hope some other kids were around to play with. And what I started
doing very early was going down to the library as soon as it opened at 10:00 in the morning and
taking a book home and reading it for most of the day and then taking it back the next morning.
This routine helped me in several ways. One, it passed the time; two, I became quite a facile
reader; and, three, I think in many ways it helped me to expand not only my vocabulary but my
horizons, because pretty soon I was out of the children’s section and into the adult section and I
read voraciously.
Mr. Pollak: What age do you suppose you began doing this?
Judge Wald: Well, it was a small town, and, as I say, I was on my own most of the
time, so I could walk to the library. I didn’t have to wait for someone to drive me. So, I was into
this pattern by, I think, probably second or third grade.
Mr. Pollak: You never had siblings and your mother never remarried?
Judge Wald: No, my mother was Catholic. The whole family was Catholic.
Although later on I think the church rules became more flexible and she might have been a good
candidate for annulment, there were no such sophisticated conceptions in this little town, and as
far as she was concerned, she was totally ineligible for another kind of life. So, she put a lot of
her emotional and other energies into me.
Nobody in our family had ever gone to college and my mother hadn’t finished high school.
A couple of my aunts had finished high school, but my mother and her brother hadn’t finished
high school.
In those days there were women who worked in the local factories, but the pattern was for
middle class women to stay home, and, when you had to announce to the teacher that your
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mother was working, there was this little bit of embarrassment. It’s funny, because now I can
look back proudly and say that my mother was one of the pioneers. She was a working mother
who raised her child by herself.
Because she worked she wanted me to be able to get into school at an early age. She
realized it was sort of lonely being home all day when she wasn’t there. My grandmother was an
immigrant woman, good hearted but someone who never really had a chance to broaden her
horizons once she came to America; she was afraid of anything new or different. So, to get me in
school early my mother lied about my age. As a result (we didn’t have kindergarten in those days)
I was put into first grade while I was still four. I soon turned five but that was still kind of young
for first grade. I could do it intellectually, but I was miserable socially for the first year. I really
just was not up for dealing with a total school environment and I remember I hated school for my
first year.
Mr. Pollak: Was that your early interaction with children near your age?
Judge Wald: There were a few kids on the street that I would play with. But I
remember the first grade teacher loomed up to me as this formidable disciplinarian. I don’t think
that the woman did any thing wrong or bad. I just absolutely loathed school and I can remember
that my mother, who wanted to do everything for me, signed me up for the recess milk program
where you paid a couple of dollars a month and at recess you got a little carton of milk to drink.
Everybody else got to go out into the school yard. The problem was I could not learn to handle a
straw. And so every day I dreaded the recess because I would go in there and I couldn’t suck the
milk up the straw. I would bite the straw and no milk would come and they wouldn’t let me leave
to go out on the playground until the milk was drunk. It sounds ridiculous now but this is one of
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the reasons why I loathed my first year.
I got whooping cough in the spring of my first year. We didn’t have vaccines then so I just
went through the whole whooping cough. I was thrilled. I got to stay out the rest of the year. At
that point, the parochial school where my mother had wanted to send me but which wouldn’t take
me at age 4, would take me on transfer to the second grade at age 5. So, I started with the nuns in
second grade. From that point on I loved school. By that time I think I had matured a little
socially, I could handle the situation. I did well in school. The nuns all liked me. And, from that
point on, school became a pleasure.
Mr. Pollak: What do you remember about class size?
Judge Wald: I think I can remember rows, there were something like seven rows,
there would have been between 30 and 40 in a parochial school class.
Mr. Pollak: Really, that large?
Judge Wald: Yes, sure.
Mr. Pollak: All women teachers?
Judge Wald: Nuns, yes. All nuns in parochial school, except one lady, I
remember, Ms. O’Brien, who was a good Irish Catholic lady. Not a nun, but she was the only
non-nun who taught.
Mr. Pollak: Maybe it’s a good point to ask you about your religious upbringing.
Judge Wald: Well, my religious upbringing was Roman Catholic and I
still have great admiration for many aspects of the Church. The parts of the Church that
I have great admiration for are the kind of role that the nuns played with me and I am
sure with other children of immigrants. It was the nuns who pushed you out to be
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something, to do something, to make something of yourself. If you showed any promise they
really were extremely helpful in pushing you to do extra things and to assert yourself, and in that
sense they provided an entree into a wider world. My problems with the Church are primarily
because of certain of its ideological positions. The way women are treated, the inflexibility of the
marital situation, and its rigidity on abortion and birth control, but I think of myself as still having
largely Catholic beliefs in God and the hereafter, a soul, however it turns out that gets ultimately
defined, and some relationship between how you behave in this world and something thereafter.
I simply couldn’t bring myself to agreeing with all the minutiae which are necessary to keep
yourself in total conformity with the Church’s teachings.
Mr. Pollak: I wonder whether you have any comment on the flexibility that you
had to break from the strong doctrine of the Church. Did it come from your mother, or your
background, your reading?
Judge Wald: No, it was no one of those things. I suppose everybody who goes to
a liberal arts school reads a lot which challenges her but actually I think I was well into law
school before I just made some of these decisions. I married a Jewish man, but even that
wouldn’t have been at odds with the Church since we were both unmarried. It was more of a
gradual coming to a point that I just couldn’t accept certain practices or certain beliefs. And,
interestingly enough, one of my children is married to a Catholic, and another one is married to
somebody with a Catholic mother and a Jewish father.
Mr. Pollak: Any of your children strong practitioners of religion?
Judge Wald: Three of my children have a Jewish identity. They celebrate Jewish
holidays. They don’t go to temple every week but they celebrate the Jewish holidays and give
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their children some grounding in that religion. The fourth and fifth ones married Catholics.
Mr. Pollak: Did you travel as a child?
Judge Wald: Well, the traveling I remember is after my Aunt Katherine got a car,
that was the big break, then we would go on these trips around New England. Four or five of us
would get in the car. We went to the World’s Fair, the New York World’s Fair, almost every
weekend in 1939. We would get on the Merritt Parkway and go down for the day. We’d get up at
5:00, go down there, spend the day and come back in one day. There was very little staying away
from home at night. I would say probably I didn’t stay in hotels more than four or five times until
I went away to college. We did go to Quebec once and stayed at a hotel. And we went to Cape
Cod once and stayed in a tourist cabin. Those times were fun.
I do not remember being unhappy as a child. I remember sometimes being lonely and sort
of at loose ends how to spend my time, but this was an Irish family which was very intent on
doing the right thing by me. We had very strong loyalties to one another. The aunts and uncle
really worked at making sure I had whatever opportunities I needed. Aunts would chip in when I
was young and my mother didn’t have much money to make sure I had good clothes. I got a
scholarship to college but they would send me extra money some times. They took pride in my
academic achievements. (I was the high school valedictorian.) It was not a family where people
were kissing and hugging a lot, but it was a family that you knew if you were in any trouble you
could call on somebody and if they had to get out in the middle of the night and drive 200 miles,
they would do it.
Mr. Pollak: What about, you referred to reading. Looking at the period up
through perhaps the end of grammar school or high school, what do you recall as influential
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books that you read, if any?
Judge Wald: That’s an interesting question, because during the grammar school
period I just went methodically through every book in the children’s division of the library. I
began by reading every fairy story, every Bobsey Twin book, all the usual series. There was one
interesting book series; I don’t remember the author’s name, by a woman writer who wrote
historical stories about the area I lived in, about Harwinton which was a little side town to
Torrington that goes back to the revolutionary war, and she wrote about five or six books that
dealt with the revolutionary war period in our immediate area. And I found that utterly
fascinating, the people, the names of the towns; for me that added a little bit of extra dimension to
the straight entertainment value of reading; it began to get me very interested in what was
happening then in a place that you live in now. I also used to read a lot of magazine articles.
Mr. Pollak: What magazines did the family get?
Judge Wald: Well, my aunt or uncle would just bring them home from the store.
We didn’t subscribe to any. Saturday Evening Post, Ladies Home Journal, all of the popular
magazines. My uncle always bet on the races and so he always brought home the New York
papers, the New York Post, the New York Mirror and News, before he went down on the
weekends to the races with his buddies.
Mr. Pollak: Were you a newspaper reader?
Judge Wald: Yes, I read everything. I would read it whether I understood it or I
didn’t understand it. I was a little bit, how shall I say, conscious about it. I would read magazine
articles even if I wasn’t necessarily interested initially in the subject matter because I always
figured they were going to come in handy for compositions, and they did. I remember writing
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compositions for English tests about alligators in Florida because I had happened to read an
article on alligators. There was a certain amount of conscious self-help going on there.
What I do remember is finally going into the adult section of the library when I got to high
school. The library would only let you go into the adult section at a certain age, but by the time I
was in high school I began reading adult books. I would spend a couple of hours in the library
just going up and down the shelves, pulling things out and reading a lot of stuff way ahead of
perhaps what I should have. Nobody was looking at what I was reading. And, while the
Torrington library didn’t contain much obscenity or pornography, it did contain a lot of so-called
adult novels, so I was reading and figuring out a lot of adult relationships perhaps long before I
was expected to. In the course of those forays through the library I began to read historical
novels. I started with fiction because I was interested in the plots. But then I graduated over to
the nonfiction side. But it was fairly ad hoc. I did not have a reading plan. When I got to
college, for the first time, I had a terrific English teacher in my first year, and he opened up in
some organized way the whole area of contemporary literature as well as classic literature. He
happened to be a devotee of modern writers. So, very quickly I went through Hemingway, Dos
Passos, and all of that genre.
Mr. Pollak: What was his name?
Judge Wald: Hamilton Smyser. He’s dead now. He taught at Connecticut
College.
Mr. Pollak: Do you remember as significant influences on you teachers in your
earlier years, you know? You have had a life oriented toward public service almost from its
beginning. Does that draw upon people who influenced you?
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Judge Wald: Well, I would say two things. One is the experience I had in my
immediate environment of people whose whole life was spent going to work and coming home. I
absorbed some of the frustrations that came from that, some of the controls on people’s lives that
were levied by the employer, even though this was not a one-company town, it was a couple- ofcompanies town. Everybody worked for one of a few factories. One of my earliest memories
was the Depression of the 1930s. At one point we had eight people in the house and only two
were working, my grandfather and one of my aunts and they were carrying all the rest of us, as a
family does. But I remember my mother coming home, I remember sitting on the stairs in the
dark and hearing her tell the rest of the family in the kitchen that she had been fired for economic
reasons, let go, and what was she going to do. So, as I moved into that working circle myself,
worked in the factory myself, experienced it, I got very interested in the labor movement and
union activities. The union had its ups and downs in our town. But I felt that it was a good thing.
I began to identify with the union, with the labor movement. I actually worked with the union in
the summertime while I was in college. By that time I had a sense that maybe there were ways to
run society that were better for working people.
The other thing is that my family was very politically conscious, not active in the sense they
were political leaders, but they were adamant, it was almost like a religion, Democrats. One of the
worst things you could say in our household was he’s a Republican and a Protestant, too. The
Republicans were the people who ran the companies. And the Republicans – I remember hearing
from the time I was four or five – “the Republicans are never for the working class.” My family
were great believers in Roosevelt. They loved him. They turned on the little radio in the front
parlor every time he came on for a fireside chat, they loved him. I started debating in favor of a
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third term for Roosevelt in eighth grade, and on through the fourth term in the 1944 election. In
grammar school the nuns were very encouraging about debating political questions. I don’t say
they were all Democrats, but they were very encouraging about your getting interested in politics
and participating in political debates in the school. I can remember as a little kid probably being
quite obnoxious on my soundings-off about the virtues of Roosevelt, Roosevelt versus Landon
and Roosevelt versus Willkie. I had a definite political identity by the time I was in high school.
Mr. Pollak: I wanted to ask whether the schools you attended were single sex.
Judge Wald: No. None of them were single sex until I went to college. In our
town, there were three or four parochial schools and they were all ethnically but not sexually
separate. St. Francis, where I went, was the Irish Catholic school, there was a Slovak Catholic
school, there was a Lithuanian Catholic school, and there was an Italian Catholic school and that
was the way education was segregated, not by sex. High school was just one big public high
school with several hundred students in it.
Mr. Pollak: When do you put the time that your acquaintanceship went beyond the
Catholic community? Was that when you went to college?
Judge Wald: No, high school. There was one high school for the whole town.
Mr. Pollak: Was high school public or parochial?
Judge Wald: Public.
Mr. Pollak: Oh, you shifted to –
Judge Wald: There were no parochial high schools, they only went up to eighth
grade. Then everybody went into the one high school, even the sons and daughters of the
executives of the factories, generally went to the high school. You might hear occasionally of
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one kid being sent away to some private school.
Mr. Pollak: Those are usually problem kids, probably?
Judge Wald: The rich kids went to the high school as well as the poor kids. We
all went into one big public high school. There, and this is an interesting point, there the
breakdown came along choice of course lines and that choice provided an excellent illustration of
how my mother was hell bent on making sure I went further in life than she did. You had to sign
up as you were leaving eighth grade to go into high school for one of several courses. And the
courses really were quite class structured. You signed up for the classical course if you were on
your way to college. That had Latin, algebra and classical English. Or you signed up for the
normal school course if you were very bright but from the working class and you were either
going to teachers’ training or nurses’ school, which 90 percent of my friends did. Then you would
sign up for the business course if you were going to stay in town and go into the factory offices.
The girl who was number 2 in my high school graduating class and probably just as smart as I,
signed up for the business course, became an executive secretary and that’s where she stayed the
rest of her life. If you were a boy and they thought you were going to be in the trades, you went
to the technical course. And, once you signed up, you know, that was your course, not to say you
couldn’t switch but you didn’t. And those were your friends, and in great part, your destiny was
set.
Now, I knew that we didn’t have a lot of money and that I was basically in the working
class so, when I brought home the form to sign up, I said, “Well I guess I will sign up for the
normal course.” I thought I could probably be a teacher or a nurse. And my mother said, “No
you don’t, you sign up for the classical course.” I said, “Well how can I sign up for the classical
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course. How am I going to get the money to go to college.” She said, “I don’t know but you sign
up for the classical course.” And the nuns did the same thing. They said, “You tell your mother
you must sign up for the classical course.” So I signed up for the classical course without having
a clue where the money for college was going to come from, but that meant that I not only got the
best education, I got the Latin and the algebra, but it also threw me into contact with all the kids
who were college bound.
Mr. Pollak: Now did that cost more money to go to the classical course?
Judge Wald: No. It was simply one of the options open in high school.
Mr. Pollak: But you were looking toward college and you –
Judge Wald: It was one of the channeling devices that small town societies have.
So I traveled with that whole college-bound group and I got the teachers who were oriented
toward teaching the kids who were going to college.
Mr. Pollak: Two questions. You might comment on your relationship with boys.
There were no young boys in your family. Secondly, what about athletics and games? Were they
a part of your youth?
Judge Wald: I’m terribly non-athletic. I’m a person who could just barely ride a
bicycle and barely swim. So I was never a good athlete. I participated very widely in other high
school activities, however. I was in the debating club, the dramatic club, the Spanish club, the
Latin club, the Tri-Y club, and I was in school plays, so I was very much a part of the engaged
group. But I never did athletics. I was lousy at it.
Mr. Pollak: Do you think the debating experience was something you drew on or
drew on you in moving toward law?
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Judge Wald: Well, it might have. I don’t see it as a major influence. I had learned
how to debate from the nuns in grammar school. 1940, the year I entered high school, was an
election year. I’d already been in several school debates about Roosevelt so I joined the debating
club and became an officer. I was usually on the lead debating team in high school.
Mr. Pollak: What about the dinner table at your home? Was that an active
conversation?
Judge Wald: We didn’t have dinner. The main meal was at lunch when everybody
had one hour off from the factory for lunch. The one hour meant you walked home from the
factory, ate your meal, and got back to the factory by 1:00, all of it between 12:00 and 1:00.
Everybody would just talk about what had happened to them that day, not much beyond that. In
the evenings, we had supper in our family, and this meant mostly leftovers from earlier lunch,
they didn’t talk much. It was definitely not a labor-socialist-intellectual type of atmosphere.
People just talked about what they heard on the radio or what people were talking about in the
factory.
Mr. Pollak: So it was more the schools that gave you this outreach and your
reading?
Judge Wald: High school was great. It turned out I loved history and I found it
wonderful to read both ancient history and modern history. I also began to enjoy writing essays.
I was immediately targeted as a pretty good writer, the high school teachers encouraged me. A lot
of that came from my reading almost the entire town library, just from picking up a big
vocabulary. The more you read, the more words, the more phrases that stick in your mind, and
help you to write better.
-15-
Mr. Pollak: Any comment on your relationship with boys?
Judge Wald: I dated in high school. But by the time I got out of high school, I
was only 15. So I was always running a little bit to catch up. I wasn’t exactly a glamour girl. I
was a couple of years behind my peers physically as well as socially. I went to a lot of the dances,
and I had some boyfriends. It was very innocent stuff. But I was not a social whiz or anything
like that.
Mr. Pollak: Well, I think we’re up to college and where did you go, how did you
get there, what did you expect of it, what are your memories of college, what was the atmosphere,
what were your activities there?
Judge Wald: Well, I went to Connecticut College in New London – about 80
miles away – because I had a four-year scholarship to that college. There was a wealthy elderly
woman in Torrington whom I never met actually, who set up a scholarship fund that each year
awarded a four-year scholarship, tuition and room and board, to a high school graduate from
Torrington to go to Conn College. My mother had targeted that scholarship for me, as soon as
she found out about it, several years before.
Mr. Pollak: I wonder if you gave your mother’s name, did you?
Judge Wald: Yes, Margaret O’Keefe McGowan. Now my mother couldn’t do
anything directly to get the scholarship for me. She didn’t know any of these people. She didn’t
have any power or social status, but I always knew that I was supposed to be working toward
winning it. I did apply to other schools and I applied for other scholarships and there was one
attempt to divert me off to a Catholic College, Albertus Magnus in New Haven, which is also a
good school. There were older women who were helpful to me, and, by the time I graduated
-16-
from high school I was fairly well known in the town. I had been very active in all kinds of youth
stuff; I was valedictorian of my class. One of these women who had been an Albertus Magnus
graduate herself, said, “Oh, I’d like to take her down to Albertus Magnus and introduce her
around.” So she took me down there and they had a scholarship available. Everybody couldn’t
have been nicer, but I knew I didn’t want to go there. The scholarship wasn’t as good as the Conn
College one so it never turned out to be an issue. Somehow I knew I did not want to go to an all
Catholic girls’ school even though I was a good Catholic at the time. I realized that in some way
I wanted to push out to a wider world.
Now, Connecticut College was a women’s school but it had lots of intellectual ferment
going on. I saw it as opening up a big glamorous world, even though it was at the bottom of my
home state. And in fact it turned out to do just that. It was never a cloistered atmosphere as far
as I was concerned.
Mr. Pollak: I had a question which may carry you a little beyond the college,
although I think we’re still at the college part of this session, and that is, when in your years you
recall coming in contact or making relationships with minorities other than Catholic persons,
Blacks, Hispanics, Asians? What’s your memory on that?
Judge Wald: Well certainly, I had a minimal number of such contacts growing up.
I can remember only one Black girl in high school. The most prominent minority I saw growing
up were the Jewish kids.
Mr. Pollak: What do you recall about that?
Judge Wald: Well, in high school I remember that my debating partner was a
young man called Larry Silver and he was very smart. I think he ultimately went on to become a
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lawyer. My best friend, who was another Irish Catholic girl, got a crush on him. We all went
through high school with crushes, and we would self-consciously walk by their houses hoping for
a glimpse, the sort of thing you do at that age. My friend got a crush on Larry Silver and I
remember people would just say to her it’s impossible. You can’t go out with him. You can’t go
out with him. Even if he asked you, you couldn’t go out with him because he’s Jewish. And so
that was the way it was, and Jewish kids always were expected to go out with Jewish kids. When
the prom time came, the guy that my best friend had the crush on asked a Jewish girl whom he
had practically nothing to do with the rest of the time in school. You could have all the normal
kind of daily school activity relations but when it came time to have a formal date or to go to the
prom, the Jewish kids were expected to go out with Jewish kids. It was looser between Catholics
and Protestants.
Mr. Pollak: Do you remember prejudice as playing a part?
Judge Wald: No, not prejudice; nobody ever said to me Jews are bad. It’s just
they’re separate, they’re different. There was a very talented Jewish girl whose father owned the
local shoe store, who had the lead in almost all of the school plays. A Jewish boy was our class
president. It was just that in this town Jews were expected to stay together socially. There were
very few Blacks around in the town and you just didn’t think about them much.
Mr. Pollak: What about your own experience? Was there anti-Catholic prejudice
that you had bumped up against.
Judge Wald: Not really. Because we overwhelmed the town. Sixty, 70 percent,
80 percent of the town were Irish, Italian, and Polish Catholics. No, you didn’t run up against any
prejudice. So it wasn’t until I went to college that I even thought about prejudice. Even in
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college, there were hardly any Blacks or Hispanics except for an occasional exchange student
from Spain or South America.
Mr. Pollak: Who had status?
Judge Wald: Yes, yes. As I said, I do not remember any contacts with Black
students in college. There were some Asian students around but the majority of us were white.
In college, of course, I was immediately thrown into a lot more close contact with Jewish
students; some of them became my close friends. I no longer thought of them as different. But I
didn’t really get any contact with racial minorities. Now, I did start to read about segregation and
racial prejudice in the abstract. I remember reading Gunnar Myrdal’s The American Dilemma in
college.
I did not go into college with a clear career track in mind. Actually, the only lawyers I
ever knew were the father and brothers of my best friend in high school. Her father was a county
judge and her two brothers were lawyers. Otherwise, I had never known any lawyers up close. I
went into college as a math major because I was very good at mathematics.
In my second year, however, I took a government course and that I think was the real eye
opener. There was a wonderful, dynamic woman government teacher called Margery Dilly, who
had done her thesis on British policy in Kenya back in the mid-’40s and she was a very hard
taskmaster. In fact, if you became a government major, you were automatically considered an
intellectual elitist because she was so formidable. She brought an enormous amount of
intellectual energy to her courses on political philosophy as well as American government. She
showed us how all of the facets of government policymaking, here as well as abroad, worked.
She exposed us to comparative government courses; more important, the whole history of
-19-
political thought, going back to Aristotle. And, together with a couple of feisty economics
professors, this led me to perhaps my first coherent notion that there were people out in the world
who wanted to make things different, wanted to change things, thought things were not the way
they should be. I began to get some sense of the reform movements, not just political, but also
economic reform movements, new ideas, differences from traditional thinking. For instance, I
did spend one summer during college as a student intern down here with the Greenbelt Consumer
Cooperative movement along with eight or nine other students from around the country. We all
lived together in two little one-room apartments, one for the boys and one for the girls. We ate all
our meals together. We traveled around and talked to everybody in the consumer cooperative
movement. It was a trolley ride then, from Washington to Greenbelt. And every chance we had
we came in to D.C.; we heard people speaking at the Washington Monument. We talked all the
time about politics and about economic movements; it was terrific. Also, it gave me my first
chance to live in a different city and to see Washington.
Mr. Pollak: How did you get that position with the Greenbelt Coop?
Judge Wald: I got it through the college, the usual college bulletin board where
there are summer opportunities posted. And there was a professor of economics named Hartley
Cross who had been a high person in the consumer cooperative movement. And his endorsement
helped enormously. So that summer was another entré into the outer world. I remember that,
except for the New York World’s Fair, I had never been out of Connecticut before. I got on a
train in Grand Central Station to go down to Washington. I got out at Washington, I still
remember – let’s see, I would have been 17 or 18 I guess at the time – I looked out and saw the
Capitol and it was really an awesome sight. This would be 1947, I think. The first thing I had to
-20-
do was go to the Traveler’s Aid Bureau and figure out how to get to Hyattsville by trolley and
then from Hyattsville, a bus to Greenbelt. But, anyway, it was a great summer.
Mr. Pollak: The family sent you off alone to do this?
Judge Wald: Well, they let me go. At various times, I could tell my mother had
trepidations, but, by this time, I had sufficient confidence from having been away in college, and
they weren’t going to stand in my way.
Mr. Pollak: Did you have any awareness coming down to Washington of the
segregation, of the racism that was here at that time?
Judge Wald: I didn’t really think about it. I wouldn’t say that I didn’t have any
awareness. I think that by that time I had had a couple of history and sociology courses and I
knew that segregation was a major national problem. I knew the history of slavery, but I didn’t
have any emotional feeling about it. In fact, I remember (this is 1947) I got lost from the group at
one point, when we were on some group expedition in Washington. We were way up in the
Northeast area that even then was completely segregated and inhabited by Blacks only. I
remember just walking around for about two hours and thinking I haven’t seen a white face this
entire period. But I had no sense in those days of fear; there was no sense of, my God, what will
I do, that kind of thing. We all went to hear Gerald L.K. Smith, a racist orator of the times, talk
at the Washington Monument and then we had endless hours of lambasting him and agreeing
how terrible his message was. The group I was with, although it did not have any Blacks in it,
had a Chinese girl and we had several Jewish students. We had a minister and his wife as
chaperones, one of these socially activist ministers, Sheldon Rhan. I would see his name later on
in the civil rights movement, in the religious part of the civil rights movement. So I know that
-21-
we talked about the problem a lot even though we didn’t live it. And I noticed there weren’t any
Blacks in Greenbelt at the time, although it was one of your New Deal-Rex Tugwell model
greentowns.
Mr. Pollak: You were speaking then about college.
Judge Wald: During my first year in college, the war was still on. I remember in
April of my first year in college Roosevelt died. I was shocked. We all were. That summer we
were still at war with Japan. I went back home for the summer and worked the night shift in the
factory, went in at 11:00 p.m. and came out at 6:00 a.m. The war was over in August after the
dropping of the atomic bombs. When I went back to college, somebody suggested that as a
language requirement – I’d had a little French, a little Spanish – I try Russian; they had just
brought a Russian teacher onto the faculty. The Russian classes were very small. I began to read
a little bit of Russian literature. This was the window period after the close of the real war before
we went into the cold war; we had exchange programs with the Russians. The college was near
the submarine base in New London. The whole crew of a Russian submarine came to the
submarine base, and we had several social gatherings with these Russian sailors. My roommate in
college had a brief romance with one of the Russian submarine sailors. After about six months,
one night, with no warning to anybody, they were gone; there were no goodbyes, no anything. We
never heard from any of them again. Shortly after that, our entire national policy began to lean
much more heavily toward a cold war approach. But the exchanges themselves were broadening
experiences.
Although it was a girls’ school it did have the advantage – recognized much later – of
pushing women to be leaders. I don’t know whether that leadership push plays out as well for
-22-
women in coed schools. All of my own kids wanted to and did go to coed schools. The teachers
at my college were very interested in advancing those students that were able and interested. They
worked very hard with you. Because it was all women, there was never any assumption that
you’re just going to go home and have children and never be a part of the public world again.
There were some very able professors, men as well as women. John Gardner, the former
Secretary of HEW, taught at Connecticut. There was a sense of, we’ll do everything we can to
help you if you want to push yourself further. I benefitted from that.
Mr. Pollak: In high school, you’d been very active in many clubs. Did that
continue through college?
Judge Wald: Some, but less so in college. I worked very hard on my grades.
Mr. Pollak: What motivated you to do that?
Judge Wald: I’m not sure because I really didn’t know where I was going. I didn’t
really make a decision to go to law school until my last year in college. But, of course, I had a
scholarship and it was contingent on keeping my grades up to a certain level. Still, I don’t think
that that was the real motivating factor. I think it was something inside that said to me, You’ve
got to show ’em. Also, I was interested in a lot of the stuff I was learning. I really enjoyed
exposure to a lot of new material, especially about what was happening in the country and its
problems.
I did some club work but I was not a “big woman on campus.” I took part in some of the
political debates. I remember going down and working with the PACs in New Haven, the labor
PACs. I did a little social service. I was in a few plays and in the Russian club. I used to go over
with the local priest and teach once a week at the children’s TB center.
-23-
Mr. Pollak: Did you make any lasting connections with professors or fellow
students that have stayed with you?
Judge Wald: Well, with Ms. Dilly, I did. She died a year or two ago, but I went
back to the college several times to see her. She had a very strong influence in my life. In fact,
the college set up a lectureship for her last year and asked me to give the first lecture, which I did.
Also, Hamilton Smyser, whom I mentioned before. We didn’t have a close personal
relationship, although if I went back there, I always looked him up. He really opened my eyes to
modern literature, his great enthusiasm for what modern authors were saying about confronting
modern problems, all of which now sounds unremarkable, but in the 1940s was revolutionary to
me.
Mr. Pollak: What about the students who were there with you. Did you learn from
them?
Judge Wald: I would say I learned social skills from the students, and some of
them are still friends. Most of them were more upper class than I, although there were some
scholarship students. In fact, my roommate was a second generation Polish-American girl, with
an ethnic background like mine. I learned operational skills. I learned things like how to dress,
how to act in a social situation, how to deal with this and that kind of crisis; a lifestyle, if you will.
I don’t remember being intellectually engaged with many students. There was a small
group of fairly intense students who lived in a cooperative house, where tuition was less, with
whom I palled around. I didn’t live there because I had a scholarship and a regular dorm
-24-
assignment. They were government majors, like me. They were interested in labor problems. I
don’t know that they taught me anything specific, but it was good to have other people who were
interested in the same things that you were interested in.
I had one, what’s the word now, we called it boyfriend in those days, one male friend for a
couple of years who was very intellectually stimulating. He was going to Yale at the time, later
went to Harvard Business School. He was interested in many of the same things, in social
phenomena and what was happening to the country and, so we would talk a lot on our dates about
current events and he would suggest I read certain books.
Mr. Pollak: Your summer between freshman and sophomore year you worked in
Torrington. You came down to Greenbelt in another summer. There’s still a third one.
Judge Wald: The final summer after college I went back to the factory and was on
strike. I spent the summer working with the union.
Mr. Pollak: What do you recall about the war and its influence on you and the
people around you? Did your family have people in the war?
Judge Wald: Pearl Harbor happened in December of my sophomore year in high
school. That was 1941. The war ended at the end of my freshman year in college in 1945.
My youngest aunt, who had just married recently, had her husband drafted into the Navy.
He was just a seaman, but he was out on a boat in the Pacific. I remember she moved back into
the family household. I remember her waiting every day for his letters. He saw combat but he
wasn’t injured or killed. She spent a lot of time trying to figure out where he was and what was
happening there; they had a code for getting by the censor. His brother was in the army in the
European theater, but I didn’t have anybody closer than that in the services.
-25-
There were guys in my senior class in high school who were called away in the draft and
who didn’t get to finish high school. So at our high school graduation, we had a big do about all
of the absent members who were away in the armed forces. I had a pen pal relationship with a
few soldiers and sailors from Torrington, one of whom was killed in action. Everybody in my
family was working in defense production. As I said, I worked the night shift that last summer of
the war. I suppose there were some civilian shortages, but I don’t remember any real deprivations.
There was a certain sense of excitement because it was a good war. I remember going to infinite
numbers of war movies, and feeling very patriotic, inspired.
Mr. Pollak: Do you think that it formed you in any way or your attitudes as you
moved on through later life having lived through World War II?
Judge Wald: Well, for a while, I had strong feelings against the Germans and
against the Japanese, but I have to tell you, I got them more from the movies than from anything
else.
Mr. Pollak: What about the reactions of the time and your own to America First
and isolationism as against interventionalism, one-worldism?
Judge Wald: I certainly wasn’t exposed to isolationism in high school. We were in
a small town and once we were in the war the whole place geared up. In the high schools, we
wrote essays about how to help our fighting men. We did volunteer work. I worked in the
hospital every Wednesday to help make up for personnel shortages. We did exercise classes to
keep ourselves fit. I don’t know what relationship that had to the war; but anyway, I don’t
remember ever having any doubts at that point about the wisdom of our national effort.
My first year in college, which was the only year the war was on, was basically the same
-26-
way. I don’t remember ever being exposed until after-the-fact to the whole America First
movement. As a child I can remember vaguely hearing people listen to Father Coughlin on the
radio but my family was very pro-Roosevelt so they were not Father Coughlinites. I think they
bought hook, line, and sinker what the President was saying.
Mr. Pollak: Any other comments you’d make about college? How did it compare
as a growth or intellectual experience to what you experienced then in law school?
Judge Wald: Well, I think it was more explosive. It was more like going from a
very small town and closed society into a society where you’re exposed to different ideas, and
even different people, despite the fact it was a girls’ school. On weekends, of course, the place
was full of guys. Actually, the Coast Guard Academy was down the street, and Yale was one train
stop away. So college was more explosive in terms of broadening the horizons of life than law
school. Law school kind of cemented me, I suppose you might say, put discipline on that great
big wide world of ideas and helped me channel them in a way so as to be able to do something
about them. College gave me the freedom to enjoy, experience and be exposed to the ideas. I
didn’t give much thought, while I was going to college, as to how those ideas were going to affect
my future life.
Mr. Pollak: How did you do academically in college?
Judge Wald: Well, I worked very hard at it. I was Phi Beta Kappa. There were
two people picked from every class as Winthrop Scholars, on the basis of grades. I was one of
them. It’s interesting, though, in retrospect, about life’s twists and turns. I was a government
major. The other girl was a very, very bright girl in the English Department. Our averages must
have been very close. We were certainly of equal intellectual calibers. She was engaged at the
-27-
time and she got married and they lived someplace in Connecticut. I see her occasionally at
reunions. I think she’s done some volunteer work in the community, and she’s had children, but
basically, she never had a continuing professional career.
Now, I often like to joke, but it’s not entirely untrue, that, upon my senior year in college,
the class was divided into two groups, those that were engaged and about to get married and those
that weren’t. Had I had my druthers then, I would have liked to have been in the group that was
engaged. As luck would have it, I was not. I had no outstanding offers at the time. So, therefore,
I went the route of, What am I going to do next.
I had a very good average and I was interested clearly in all of these current social
movements. It seemed to me I had two choices and the academics at Conn College would have
backed me in either one. One would be to go to graduate school. I didn’t have any sense I wanted
to teach or become an academic and that was really the only thing at the end of the Ph.D. in
history or philosophy in those days. I don’t even remember who suggested law school, whether I
thought of it myself, but somehow it became another alternative. The year I applied – 1948 –
must have been the first or second year they ever gave LSATs, and I remember I had to go down
to New Haven to take that test. When I worked with the labor union back in Torrington, there had
been a labor lawyer who didn’t live in Torrington but counseled the UAW and would come up to
town for strategy sessions. I began to see how important the law was in relation to the labor
movement. As I said, I had a sense of what lawyers did from my friend’s family, but her family
were stout Republicans so they wouldn’t have been role models. Anyway, at some point, law
school seemed like a much more exciting alternative than graduate school. In terms of law
schools, I applied to Columbia, as well as Yale, but I could not apply to Harvard
-28-
because they wouldn’t take women back then.
Mr. Pollak: They weren’t taking women?
Judge Wald: They weren’t taking women. That didn’t change for another year or
two. And I applied to a couple of graduate schools; MIT had an urban planning degree, and to the
Department of Economics at Yale because the husband of one my government teachers was an
economics professor at Yale.
Now, I could not have afforded any of them. That was the other thing. My family still had
no money. So I wasn’t sure I was going anywhere. I thought, right up until about March or April,
I might well have to just get a job. Then I applied for a Pepsi Cola Fellowship. Pepsi Cola used
to give fellowships for graduate study. You had to write an essay about what you wanted to be or
do.
Mr. Pollak: This fellowship would then have been applicable where you chose to
go?
Judge Wald: Where you chose to go. It was great. It was like a McArthur
Fellowship, you know. It paid your tuition. It didn’t pay all your room and board but it was
enough to make it possible to live. And I won one of them. So that was it.
Mr. Pollak: What was your essay about?
Judge Wald: It was an essay about why I wanted to go to law school. As I recall,
my essay focused on my experiences with the labor union and growing up in a working-class
family and seeing the influence of law and wanting to become a lawyer and circle back and work
in the labor field, which, of course, I never got around to doing. I remember that getting the
scholarship was a thrill. I don’t remember in the final analysis exactly why I picked Yale Law
-29-
School. I was interested in going to Columbia at one point because I liked the thrill of living in
New York. My best friend had gone to Barnard and I would go down to visit her, but somebody,
and it may have been the poli-sci teacher who was the wife of the Yale professor, sort of chalked
up pluses and minuses and convinced me that if I could get into Yale it was better to go to Yale,
which is what I did. I didn’t know anybody at Yale. I didn’t know a soul at Yale. I didn’t know
anybody who had ever been to Yale Law School. Ironically, the father of my best friend, who was
the Republican judge, and had always been very nice to me even though our politics differed, had
a correspondence degree from Yale Law School.
Mr. Pollak: He was a Torrington person?
Judge Wald: Yes. When I would visit her, her two brothers who were lawyers,
treated me like the nice friend of their younger sister. Her father had a degree from Yale but he
had been an Irish son of an immigrant and he got it by mail. He never went to the law school.
They were giving out by-mail degrees in his time, which would have been in the early 1900s,
degrees by mail.
Mr. Pollak: He did some work and submitted it in?
Judge Wald: He had a Yale degree even though he had never gone to a class at
Yale, which always kind of tickled me. But, anyway, outside of him, I never met a person who
had gone to Yale in my life.
Mr. Pollak: I’m interested to double back a little and just ask you what the face of
your family was to you, as you, the first college student, moved through Connecticut College with
this wonderful record and then moved to apply on your own to law school where you knew no
one. What was your family’s reaction to all of this?
-30-
Judge Wald: They were very supportive. Certainly, my mother pushed to get me
into college. All during college, I can’t tell you how supportive she was. Let me give you a small
example. In those days, we didn’t have laundromats and you had laundry boxes in which you sent
your dirty laundry home. Whenever the box with clean clothes came back, she always had
cookies in there or candy or she’d made me a new outfit. She couldn’t have been more supportive.
I look back now and think how insensitive we are when we are young. Sometimes as I
tried out new ideas, I would try to take my family on intellectually about certain positions they
had, which was a ridiculous, smart-aleck type of thing to do. In the main, however, we were on
the same wavelength. I might be pulling a college kid’s thing and saying well, there’s this doctrine
and this doctrine, which they couldn’t possibly argue with me about, but in the end I would always
end up voting for the same people they did. So, we didn’t really have any terrible ideological
conflicts.
Mr. Pollak: Was there a point in time where you measure what always seems to
me to occur, a break from the family, where, as you move from childhood to adulthood, your
family was so supportive, it may have just been a gradual separation?
Judge Wald: Although they were supportive, they knew and I knew that they didn’t
want me to go back to Torrington and be what they were. They were not pushing me to come
back into the family circle but rather to move on. In their own way they recognized that at a
certain point I would take off, I would be somebody different, and I wouldn’t be coming back.
When I got out of law school, actually, the Torrington Company was still a big company in town
and the Head of the Labor Relations Department who had worked at the NLRB, called me in and
-31-
asked me if I’d like a job with them.
This was interesting because I felt it to be a vindication of sorts because my only contact
with the company’s management had been down in the ball bearing greasing room. My family
didn’t suggest to me, come back to Torrington and take a job in the Torrington Company.
Mr. Pollak: Any pressure on you at the end of college to get a job?
Judge Wald: They wanted me to go on. They couldn’t finance me to go on but
they wanted me to go on. I think in many ways my mother and my aunts were quite smart; they
just were never given the opportunity to go to college and I think it was some vindication for them
that I could keep going on.
Mr. Pollak: You referred to having some toe-to-toe verbal conflicts over politics
or public issues.
Judge Wald: It’s hard for me to remember precisely what they are in retrospect.
Mr. Pollak: Like so many young people today or with your own children, do you
recall any major conflicts with the family as you tried out being your own person? Did you have
blow ups with them? Do you ever recall yourself being temperamental?
Judge Wald: I have a sense that a couple of years in college when I was throwing
around all these economic concepts that I may have hurt their feelings. I may have denigrated
their points of view. But we never had any blow ups. I never left home. With my family, there
were no shows of emotion, no outbursts. If you disapproved of someone, you withdrew or
avoided them; you give or get the silent treatment, nobody ever yelled or swore at anybody,
nobody ever hit anybody. It was just a kind of felt disapproval. The first time that I ever had
direct confrontation was when I announced I was going to marry Bob.
-32-
Mr. Pollak: Over religion?
Judge Wald: Yes.
Mr. Pollak: And they thought that was a bad idea?
Judge Wald: Yes. They liked him. I mean they may have realized without my
saying it that I was on the edge of leaving the church anyway, but I hadn’t done anything formally.
And this would not have even required me to leave the church. I mean, technically, a Catholic can
marry a Jew. Several of my children have interfaith marriages.
Mr. Pollak: When would you date that; when was it?
Judge Wald: Well, that was the end of law school. We got married at the end of
law school.
Mr. Pollak: In the early ’50s?
Judge Wald: That was, yes, that was the real break. In a small town, even in ’51, it
still represented the break. It’s not unusual now, but it was an unusual step to take in that
atmosphere. I think to my mother, it was perceived as a repudiation of my background, which, of
course, I didn’t mean it to be and things got reconciled later on. But that was the only time I
remember feeling that they thought I was making a mistake. In the past there had been
disagreements. One summer they didn’t want me to go to Europe because they thought there was
going to be an outbreak of hostilities. But that’s a different kind of thing, they were worried about
my safety.
Mr. Pollak: What about the attraction of the left wing in college or in those years?
Judge Wald: I never really got involved with it. In college, I don’t think
we had any real radicals. People might be interested in socialism, but in the abstract. In
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fact one of my economics professors, you know, said he was a socialist, but he was the New York
liberal socialist kind, he was the consumer cooperative guy. He certainly wasn’t a party member.
I don’t think I knew any real radicals or communists, or at least that I knew were communists, at
either the faculty level or the student level.
Mr. Pollak: In college?
Judge Wald: One interesting brush. The Russian professor I had, I had two, I had
a woman for a year and she went to Vassar. Then Mr. Kazem-Bek came over. Remember this
was just post-World War II and we’re still at the edge of the cold war. He had come originally
from Russia, I think he’d spent an intervening few years in Europe; he always talked about himself
as a white Russian. He was very interested in the history and the culture and the Orthodox Church
to which he still had very strong ties. But he certainly never put forth any communist propaganda
in his classes. In fact, we talked mainly about Dostoevski and Turgenev and Russian history and
culture and icons. He had a little house outside of New London where he lived with a wife and
two children. And he would have the Russian students over there to dinner in a group. I never
went there alone. It was always with students and once with my Yale boyfriend because he said
he was very interested in the whole Russian culture bit. His home always had this old world
flavor about it. He liked me very much. I was the star Russian student. We had a Russian club
and I was the president, but we mostly showed Russian movies and talked Russian. There was
never any political aspect to it at all.
When I graduated, he gave me a copy of The Brothers Karamozov. I saw him only once
again in my life. I went back to the college a year later to alumni day and my friend and I went
out and we spent a night with him and his wife. Then I never saw him again. I never had any
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correspondence with him. Anyway, the reason this is important was, in 1956 or ’57, by which
time I was then married and staying home with my kids, I picked up the New York Times and,
while taking a college group of Conn College students on one of those summer tours, he defected
to the Soviet Union and, it was said that, or else I found out later, that he had found he was going
blind and he had this terrible longing to see his homeland again and just went over. His wife
continued to teach at Conn College.
Mr. Pollak: Really. He left the family?
Judge Wald: Yes, his wife continued to teach for many years at Conn College.
Anyway, the reason I say it’s so interesting is that in the middle of my confirmation hearing, one
of the staff whom I knew up on the Hill came down to the department to see me and said, “I want
to talk to you. I’ve been in Strom Thurmond’s office and there’s a letter on the way to Griffin Bell
from Strom Thurmond saying that you were the protégé of this Russian spy who defected to the
Soviet Union.” The implication was that I was some kind of a mole here for all these years.
Knowing about it in advance, I rushed up to Bell’s assistant and told my end of the story. They
called Bill Webster at the FBI to get out the file and it turned out the file they had on him, I never
saw the file, but according to my informants in the department, it showed that his connections
were mainly with the church and his was a personal, not a political, decision to defect. They
could not trace any subversive activities while he was at the college. Meanwhile, I had to dig out
the then president of Conn College, Rosemary Park, who had since become a chancellor in the
University of Southern California system, who was at an educational conference in Montana.
All done in a day. I hadn’t spoken to her in 20 years, but I got her to call the Judiciary
Committee and say, as far as the school went, there was no knowledge of any
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Communist affiliation on his part. Apparently, they had gotten this stale information about 1946-
48 student days from either HUAC or the Senate counterpart files. Somebody back in those days
in Conn College, I don’t know who it was, was reporting things about students like who went to
what professor’s house for dinner.
Mr. Pollak: Do you have any recollections of or did you have any associations
with anybody who had a different sexual preference?
Judge Wald: No. As I told you, I was a voracious reader. When I started reading
adult books, I didn’t even know what lesbianism and homosexuality were. I vaguely remember a
book called The Daisy Chain, which had a lesbian scene at Vassar in it. There was also the Well
of Loneliness. So I knew that such things existed, but I certainly never had either any experience
or any advances made to me in my college career. In law school, you know we would hear things,
not among the women actually, we would hear about one or two cases among the men, that
proved later to be accurate but I never had any close encounters with it among friends.
Mr. Pollak: You talked about your application to Yale Law School. What was
your LSAT score?
Judge Wald: I don’t even remember the score. About 20 years later when my
daughter was applying for law school, by then, of course, the LSAT scoring system had changed,
she found a copy of my old score and came running to me and said, “Ma, I scored 100 points
higher than you on the LSAT.” As I recall, I was in the top eight or nine percentile. I was not an
absolute star on it. I think to Yale’s credit they went more on my track record in college than they
did on the LSAT.
Mr. Pollak: Speak about your entry into the law school, your early experiences,
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the makeup of your class, women, Blacks, minorities. What did it look like to you as you began
in 1948?
Judge Wald: We were one of the first World War II veteran classes, so it was one
of the larger classes. We had 180 students, which was a little larger than the usual law school
class. Yale had sent out a lot of acceptances assuming that there would be more rejections than
there were. There were a lot of returning veterans in the class, so the men tended to be perhaps a
little older than your usual class, where many come directly from college. The number of women
was 11 or 12. Subsequently, up to about the year 1970, Yale would have a much smaller number
of women, but we had 11 or 12. At least three of the women at Yale were veterans. One had been
a commander in the WAVES. One of them had army service. They were there on the G.I. Bill of
Rights.
Mr. Pollak: Did any of the women go on to make names for themselves?
Judge Wald: Yes. I’ll get to that in a minute, but first a few atmospherics. At that
time, we women were not allowed to live in the dormitories at Yale so, except for a couple of
women who had rented rooms out in the community, the rest of us lived at 17 Hillhouse, which
was this old, really dilapidated house, which looked like Tara after the Civil War, quite barrenly
furnished, and next to the Boston & Maine railroad track. A train ran right under my window for
three years. Every night when the library closed at 10:00, all of us women had to walk back to the
dormitory. Many times, we would find guys to take us to coffee at George and Harry’s and walk
us home, but we did have a couple of women who were attacked on the way home. One woman
was attacked right in the basement of the law school, where we had our lockers and the women’s
bathroom was. Now, in neither of these cases was actual rape committed. But for several
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months, we were really scared about going downstairs to go to the bathroom. Also, we’d find a lot
of obscene drawings down there from time to time.
Mr. Pollak: The law school was open, I take it, and people could come and go?
Judge Wald: Theoretically, you would have had to go through the women’s lounge
to get to the stairs to go downstairs, but I suppose if no one were in the lounge, it was open and
you could go through.
Mr. Pollak: Do you remember the law school as being at all sensitive to the safety
of the women students?
Judge Wald: No. And I must say, we were in some ways an accepting lot. Even
though we had pushed ourselves to the point of being in law school, most of us were more
worried about showing we could do it, as you would expect at that period, that we could make it,
than in saying, Hey, you’d better do something special for us.
Nobody did anything special for us when it came time to look for jobs, I can tell you, even
though it was clear that traditional bias put us in a completely different category for employment
purposes. Nobody at the law school said, “Well, you’re women and here’s a place that’s been
helpful in the past,” or “We’ll make a special phone call for you here or there.” I make one big
exception to that assertion for the people that helped me to get Jerry Frank’s clerkship, but, in
terms of jobs with companies, with law firms, nobody ever thought of us. They knew we had
special problems, but nobody ever thought that it was the responsibility of the law school to do
anything about those problems.
At any rate, there were 11 or 12 of us. Actually, we had a good time. We all knew each
other well. By and large, we all liked each other. You came back at the end of the day and sat
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around and chatted and took all your male classmates and your professors apart. I don’t remember
at all feeling oppressed.
The first time I really felt something was wrong was when it came time to look for jobs.
But, in the law school itself, I did not feel the atmosphere was oppressive. My guess is the
modern feminist woman might and probably she would be right in doing so. But, we just
assumed that we would be called upon more in class, especially where sex crimes and pelvic
examinations were involved. I remember Professor Ad Miller’s contract class. I was called on all
the time. I mean, I liked him, he liked me; I did not feel it was a gesture of hostility, but I knew I
was never, never safe in that class because, although there must have been one or two other
women in it, somehow I got singled out. I was in the M’s and I was in the front row.
One anecdote about that class, which shows you my naiveté and how you learn to go with
the flow. Miller used to give out work problems for the week in advance and there would be a
problem a day. There was a big football game, it must have been early October of my first year,
and a lot of the guys in the class had women up for the weekend. I did not have a date. As it
turned out, subsequently, I had quite an active social life at Yale Law School but it had not yet
begun at this point. So I stayed in 17 Hillhouse and did all the week’s assignments in advance. I
was well ahead in preparation, so I was not anxious when Miller called on me on Monday after
the big weekend, and he led up to a great crescendo, asking, “And then what will happen?” The
answer would be always the next day’s assignment. Since I had read the whole week’s lessons, I
gave him all the answers to all his questions. The entire class hissed, of course. My ego was so
sensitive at that point, I went back to the dormitory and cried. I could see all my classmates
saying, “Oh my god, this is one nerdy grind.” I got over it soon, and I learned that you pace
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yourself to keep peer approval. It’s something to at least keep in mind along one’s career path.
But in retrospect I realize there was some sexism at law school. I remember we found out
some male students made bets as to which of the women students’ breasts were larger; that kind of
stuff certainly went on. As I say, nowadays, I think it would be justly called sexism. We just sort
of assumed it was there and we just didn’t make any fuss about it. I mean, there were certain
people that you stayed away from because you found their remarks distasteful, but we figured it
was our business to run our lives and take care of ourselves. I don’t think I ever heard anybody
suggest that as a group we go to the administration and ask for particular privileges, or even
protections.
Mr. Pollak: Was that more a commentary on the time and a reflection of student
relationships to the institution as much as just the lack of consciousness of the women? Were
other groups going to the administration?
Judge Wald: No. As to racial minorities, we had only two or three Black students
in our class, and five or six in the whole law school. I remember best two Black students from
the class above me. One a Black woman, Jetta Norris, who lived in the dormitory with us. She
was smart and subsequently had a successful career as counsel to a department store chain in
Chicago. The reason she was at Yale was interesting; it was because she came from Mississippi
and Mississippi would not let her into its law school. The state paid her tuition to Yale rather
than have her go to a Mississippi law school. She was a good friend and we double dated
sometimes. I began to get some inkling of prejudice at first hand when we went to a nightclub in
New Haven and there was a question whether they’d let us in because Jetta was with us. We did
get in and it didn’t become a huge incident, but I began to get a little bit more first-hand feel of
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the racial discrimination problem by knowing Blacks personally and understanding at an
emotional level what their problems were.
Now, in the class below me was Leon Higginbotham. Leon and his wife were the
monitors of 17 Hillhouse. It was felt that, because we were women, we could not be left alone,
we had to have a chaperon, and so a married couple always had to live there in a dank basement
apartment, which they got rent-free. Leon and his wife were the chaperons of 17 Hillhouse for a
couple of years, so I got to know Leon well.
As far as what happened to the women, I think we did extraordinarily well. Three of us
out of 11 ended up as judges.
Mr. Pollak: Who else?
Judge Wald: Rita Davidson, who is dead now but was on the highest court of
Maryland for several years.
Mr. Pollak: I saw that you made a speech or remarks on it.
Judge Wald: Yes. And Shirley Fingerhood, who is now on the Supreme Court in
New York. Jody Bernstein, as you know, has had a very distinctive career as General Counsel of
EPA and HHS. She is now Vice President of International Waste Management. Let me see, who
else now. Louise Jayne, last I heard, was a partner in a firm in northwest Oregon or Washington.
One woman died. Several of the women married classmates. Louise Farr who married a
classmate, Nick Farr. Do you know Nick?
Mr. Pollak: I know Nick here in Washington.
Judge Wald: She had the highest grade average of any of the women at the end of
the first semester. She married Nick and had several children. She worked in two academic
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institutions, Princeton and Georgetown, but now does volunteer work for the Union of Concerned
Scientists. We had dinner with them recently. Let me see who I left out. Eileen Evers runs her
family business and two, Pat Schwartz and Jane Skelton, pretty much retired from an active career
after they got married and had children.
Mr. Pollak: Did any of the women clerk besides yourself?
Judge Wald: No. The clerkship was great. There I have to give people at Yale
credit. I had never even thought of clerkships. I knew they existed, but I didn’t have any role
models as it were. I didn’t know any women that had clerked. Fred Rodell was the one who did
most for me in that respect; he was close to Jerry Frank. I didn’t know Frank well although I had
taken his course. After I took Rodell’s course, he recommended me to Frank. I took two tax
courses from Borie Bittker, who had been Frank’s first clerk, and he recommended me to Frank, as
well.
So the two came together and Frank took me, but there were no interviews. I never
submitted an application. I didn’t apply to any other judge. That was not the way it was done at
that time. In the Second Circuit, which was the one that was closest to the law school, Charlie
Clark, Jerry Frank, Tom Swann always took their clerks, and everybody then had only one clerk,
from Yale. The Yale judges picked clerks after talking to their favorite faculty members, so there
was no formal application process that I know of. It’s a completely different process today, of
course. Frank had had one prior woman clerk already at that time. She had a baby and was
married to Larry Ebb who was with AID [Agency for International Development] group, but I
don’t know what happened to her subsequently.
Mr. Pollak: How do you evaluate your experience at Yale?
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Judge Wald: I think it’s fair to say I immediately took to it. I liked the intellectual
discipline. I liked the case method. I should say here that the case method was not a complete
surprise to me. Miss Dilly taught a course at Conn College in constitutional law and used a
casebook. She was not a lawyer but it was a fascinating course. We briefed the cases, made little
précis of every case and discussed them. Maybe we didn’t discuss them in the most sophisticated
legal terms but we discussed them in policy and constitutional terms; it was one of my favorite
courses. Perhaps, in retrospect, it may have influenced me toward going into the law.
Except for the business of being called upon all the time, not all the time, I don’t want to
overdo it, but more than randomly, I really enjoyed law school. We worked very hard the first
semester; we were scared to death. You didn’t have any sense whether you were way out or way
in, and the women especially worked very hard. Jody and I and Pat Schwartz had three rooms that
adjoined each other, and we often worked all night; we would sit and study together and talk
about the cases together and spend weekends on them. I enjoyed the work.
I felt in the beginning a little bit socially not quite with it. I was 19, going on 20. And a
lot of my classmates were sophisticated veterans. I was still very unsophisticated socially. I have
to say that straight out. I had not had any worldly experiences. As a result, I was probably boring
to a lot of people I dated and not quite ready for their stage in life. When I walked into
17 Hillhouse the first day, I remember my mother and my aunt had driven me down from
Torrington, I remember my mother’s eyes when she saw 17 Hillhouse. It was really dilapidated,
an old creepy Adams Family-like mansion, and not at all her picture of what Yale Law School
should be like. And then an older woman student stopped by to say hello and immediately
launched into a big barrage about how lonely and isolated we were going to be and how the guys
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wouldn’t date you because they didn’t think of you as a woman. Anyway, as events turned out,
that was not the case.
We had an active social life. The routine was when each new class of women students
came in, they were looked over by the seniors and began to get a lot of offers of dates. I was not
socially ready for those seniors. Maybe not even intellectually. I remember being out with a
group, and Jody was with me, of senior law students who included people I now think of as good
friends, Frank Wozencraft, Stu Johnson, who died but was also a Frank clerk, and maybe Bay
Manning. It was the fall of 1948, and almost everybody was supporting Dewey against Truman
except for me and Stu Johnson. The Dewey-ites were very sharp; they were playing big-time
lawyer, and I really felt at a disadvantage. I knew what I believed in, and I was not going to back
down, but I didn’t’ have all their ammunition and aplomb.
It took me a while to get in the center of things. Toni Chayes came down to Yale that
year, because Abe was in Governor Bowles’ office in Connecticut. She was down from Harvard,
so she fixed Jody and me up with Abe’s friends and, I was fixed up, believe it or not, this must
have been one of the strangest dates of all time, with Alex Bickel. We really, I mean, for all sorts
of reasons, he was way ahead of me in all sorts of ways, did not click. I remember it as one of the
most uncomfortable evenings of my life. But, within a month or two, we had found our own
niche. It’s a little bit like prison life, although I know that’s a strange analogy. You find someone
who protects you. Jody and I both found seniors in the law school who dated us, took us places,
and kind of showed us the ropes.
Mr. Pollak: Who?
Judge Wald: In her case, it was Norm Redlich, and in my case it was his friend,
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Art Michaelson. So we dated all year, and it became serious with her and Norm; it did not
become serious with Art and me. We just kept good company. These upperclassmen kind of let
us know who were the jackasses, who were the solid types, and how to get along, as it were. That
helped a great deal. It helped me enormously when I did well enough in the first semester to
become a candidate for law journal. In those days, marks just got you into the competition; you
had to write your way onto the board.
Mr. Pollak: Oh really, not in my time.
Judge Wald: People went down like flies in the course of the competition. To get
on to the board, you had to have a publishable note and a publishable comment.
Mr. Pollak: At what stage of law school did you get on the board?
Judge Wald: I got on in my second year. But you could be washed out in your first
year. We had a lot of people wash out because the senior editors didn’t like their notes. I could
write the exams ok, but it took a while before I got the law journal format, all the footnotes and
the rigid way you write. I remember my note was on Title XI of the Bankruptcy Act. I don’t
know why I chose that topic except you had to have a topic by a certain date. I think I probably
wrote a pretty lousy first draft, not so much that it lacked content, but that it was not in the right
law journal form. Art Michaelson took me aside and worked with me on it.
Mr. Pollak: He was on the journal?
Judge Wald: Yes. He was. Norman Redlich did the same thing for Jody. They
didn’t do any research, but they sat down with us and helped us to put it in a form and in a style
that got it through. I’m not sure I would have even made it onto the journal board except for that
kind of help.
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Mr. Pollak: You had to do a comment as well?
Judge Wald: Yes. I got the note published the Fall semester of my second year.
You had to work on the note along with your regular class work. Then, by the time your note got
through the editing process, you had to pick a comment topic. I had picked my comment topic
and had a first draft done by the end of the first summer. It was on the concept of “control” in
various Securities Acts. It was a tough topic. It was one of those situations where you get in the
middle of it and you’re not sure it’s really a topic. By this time, Michaelson was no longer there,
and I was on my own. I remember working all through the first semester of the second year on it.
Abe Chayes, who was Toni Chayes’ husband, would read drafts for her friends and tell us where it
needed work.
Mr. Pollak: And what was Abe’s position there?
Judge Wald: He was working for Governor Bowles at the time, but Toni was a law
student at Yale so it was a networking sort of thing. My grades went way down in the first
semester of the second year because I was working all the time on the law journal. The last two
years I began to pull them up and they ended good enough for Order of the Coif. I wasn’t
number one in the class by a long shot; I was number 14, but we were working night and day on
the journal. I was elected an officer of the journal.
Mr. Pollak: Did both your pieces get published?
Judge Wald: Yes.
Mr. Pollak: How do you value the journal experience?
Judge Wald: I value the journal experience although I am myself not an
aficionado now of law journal style. I still look for law journal experience for law clerks
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although now, you can’t tell that much from it. They get on law reviews automatically from
grades. You don’t even know that they’ve really written anything publishable or had any writing
experience at all. For me, however, the journal took the kind of discursive legal thinking, the kind
of “just put it all down on paper” thing which you do in exams, or in a term paper, and made you
reign it all in and write more concisely. At least for me, it was a good experience. It taught me to
stop and identify exactly what the source is of anything you say. I found it a completely different
experience from the papers I wrote or from the exams I wrote during law school.
Mr. Pollak: It didn’t stop you off from being able to flow out your ideas in a later
period? Or did you have to break the style?
Judge Wald: No. I published two things, and then I became an officer on the
journal. I edited a few notes, but my main job (we called it Case Editor then) was to pick out the
note and comment topics for everyone else. Nick Farr and I split the job. I liked being on the
journal. There was no question the journal was considered a kind of intellectual elite. You really
did have to work awful hard to get on there, and however much some might pooh-pooh it, you had
the sense that you were something special. Occasionally in class, professors would say,
Ms. McGowan, what do they say about this in the journal corridors and the class would titter, but
we loved it.
Mr. Pollak: Had there been many women before you on the journal? One of the
officers?
Judge Wald: Jody and I were the only two women on the journal the whole time I
was in law school. There may have been one or two women on in prior years, but there was no
one there during our period.
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Mr. Pollak: There was a lot of camaraderie and support on the journal among
peers?
Judge Wald: Yes, there was. There was, no question, some intellectual snobbery,
toward the rest of the school, but it was a stimulating atmosphere intellectually. Once I got over
this little period of social shyness in the beginning, I pretty much had a good time at law school. I
don’t remember feeling oppressed.
Mr. Pollak: What about the professors? Were there role models; are there some
who influenced you?`
Judge Wald: There were no women on the faculty for one thing, no women.
Mr. Pollak: Were you there with Ellen Peters who was an early member of the
faculty?
Judge Wald: She was in the class two years below me. Before she got married,
she lived in 17 Hillhouse with us, so I knew her there, although only for a year. But there were no
women on the faculty in my day, no role models. I had no close friends on the faculty except for
Rodell. I got along with people but nobody singled me out as a protégé except insofar as Bittker
recommended me for the clerkship.
Mr. Pollak: Who was dean?
Judge Wald: Wesley Sturgis.
Mr. Pollak: And who made significant difference for you among the professors?
Judge Wald: Well, Fleming James did in the beginning in an odd sort of way.
First of all, he was a very good teacher and tough. I had him for both torts and civil procedure,
but the most influence he had on me came about differently. It was at one of those monthly
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dances, remember, they had a Yale Law School dance every month. After the first month or so,
there was usually somebody to go with, somebody would ask you. I guess you could have gone
alone but in those days if you were a woman, you didn’t. At one of these dances, it must have
been early in my first year, he came over to me, perhaps he had had a few drinks – everyone
drank at these affairs – and he said something like, “I want to tell you something . . . don’t let this
place change you.” He said, “People come in here, and they have feelings and they have causes
they believe in, and the only thing we can do is give you some language and some techniques, we
can’t tell you what to do with them and don’t let us take your basic beliefs or causes away from
you.” Which is a very important message for a Yale Law School freshman: you don’t have to
take as truth what all these professors or seniors who are talking so knowledgeably say; you have
things of your own to believe in and they aren’t necessarily wrong.
Mr. Pollak: I thing that was a profound message that he delivered. I don’t think
anyone delivered that message to me.
Judge Wald: Well, he delivered it – at a dance. Fred Rodell was also influential in
my law school career, especially during the third year when Bob and I had begun to go out
together. He liked Bob very much. He thought Bob was the best writer in his class on legal
writing. I took his course in a different semester. Fred liked the idea that we were going out
together, and he pushed us both. We used to go over together to see him at his apartment, and he
would often talk to us about his personal life, about his experiences at Yale.
Mr. Pollak: Any other professors at Yale?
Judge Wald: Those were really the only two.
Mr. Pollak: Harry Shulman?
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Judge Wald: No, I respected Harry Shulman, but I was certainly never close to
him. I took his courses.
Mr. Pollak: Fritz Kessler?
Judge Wald: No. I got my worst mark in his course, what was it, negotiable
instruments. I did not have close personal relationships with Yale faculty. I never had anything
approaching the relationship I had with Miss Dilly in college with any of the Yale Law School
professors. I did well with most of them. I got to know J.W. Moore, but only when I was clerking
for Frank because Frank had his office in New Haven next to J.W. Moore. George Pugh, who
now teaches at LSU, was Moore’s special assistant, when he was working on a couple of volumes
of his Federal Rules series. The four of us would go out to lunch a lot, so I got to know Moore
well. But I really didn’t have what I’d call a close personal relationship.
Mr. Pollak: Did you have any other extracurricular activities at the law school
besides the journal?
Judge Wald: Not really, I did legal aid, and moot court, and barristers’ union, the
usual.
Mr. Pollak: What about your experience in moot court, which everyone had to
take?
Judge Wald: My experiences in both moot court and the Barristers Union trial
were actually pretty ordinary. I did not seem to have any unusual facility for getting up and doing
oral argument.
Mr. Pollak: Even though you had been a debater?
Judge Wald: Yes. I don’t know why. Maybe it was that I was too busy with other
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things like the journal to put my heart and soul in the mock trials. As a matter of fact, my more
interesting experiences in the Barristers Union trials were as a witness; for some unknown reason,
many of the trials were rape trials, and the student barristers would always get a woman law
student to play the part of the complainant. Again, this is the sort of thing which nowadays
women reject, but we thought it was great fun. I was the plaintiff in a trial that Leon
Higginbotham and Dick Gardner did. Leon still likes to tell the story of the great plaintiff I made
in a rape trial where the defense was consent. The key question on cross-examination came down
to, “If you were raped in that 30-second interval, how did your assailant have time to pull off your
girdle?” I responded quickly (ad lib), “With my figure, I don’t wear a girdle.” And this reply Leon
remembers to this day. That was the fun part where you had to think of things quickly on the
stand.
Mr. Pollak: What were your finances in law school?
Judge Wald: The fellowship was quite generous. My stash consisted of the
fellowship and what my mother and aunts would provide me on the side. But I waited on tables.
I got my meals for almost the entire three years by waiting in the law school dining room. This is
another reason why I didn’t get too involved with other things because, not only was I doing the
journal, waiting on tables for at least two years, but also for at least one year until I got
mononucleosis from overload, I was Louie Loss’s research assistant on his first treatise on
securities. So, there really wasn’t any time for much more, especially if you wanted some kind of
social life.
Mr. Pollak: Was the experience with Loss and doing that work useful?
Judge Wald: Yes, although basically it was scut work. I had to do things like find
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every securities law for all the provinces in Canada, but, a couple of things about the job were
good. I did my law journal comment on securities law, and Louie was helpful to me. I think he
was the faculty advisor for it. I also got to know him, and get some sense of a person working at
the legal trade. He was the counsel to the Securities and Exchange Commission and just came up
on Fridays to Yale to do the course. So, it was altogether a profitable experience. At a certain
point in the middle of the third year, however, I just broke down, I got mononucleosis so I had to
give the job up.
Mr. Pollak: Did you have any contact with any other parts of the university? I
know there were some cross professors who came from other parts of the university into the law
school.
Judge Wald: I remember going to a few interdisciplinary seminars. And I would
go over to the university library sometimes, and poke around. I had some friends who were in the
university graduate schools. But basically life was in the law school.
Mr. Pollak: Who was your editor-in-chief on the journal?
Judge Wald: Bayless Manning I think was the Editor-in-Chief my first year. Don
Turner, the second. And then Stu Thayer in my third year. Burke Marshall was the executive
editor and Bill Rogers and Bernie Greene were the comment editors. Dan Freed was one of the
note editors. Dick Gardner was one of the note editors. Nick Farr and I were the case editors, and
Jack Hoffinger, the criminal lawyer in New York, and Hank King, the managing partner at
Davis/Polk, were the managing editors.
Mr. Pollak: What has been the importance of Yale and the Yale contacts to you
and your career?
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Judge Wald: Yale has been very important to me in two ways. One, just the
credential; Yale Law School carries a lot of weight. It carried a lot of weight in the beginning
when it was harder for women to get through the door. Candidly, I think it meant a great deal in
terms of entree. It certainly was the connection that got me the clerkship with Frank and the two
together got me the first job opportunity with Arnold & Porter, a big Yale Law School bastion.
They looked to Frank and they looked to people at the law school for recruits. Throughout my
career, there have always been Yale connects. Even now when you go back to the reunions, there
are all sorts of key people in government and academia and in the practicing profession. They are
not all your closest friends, but generally you can call on them for information or even
endorsements, as needed. There was also the legal education Yale offered, though I must admit in
retrospect, I really worked so hard on the journal, I think I slighted a lot of my courses in the last
year or two. Still, the process, the orientation, again, the emphasis on law as a tool, the fact that
law was not a given, it wasn’t something that was there that you just went and found. It was
maneuverable. Now that philosophy is not one of great popularity on this court right now but in
other periods of my life, it’s been completely compatible with what I was doing and who I was
working with. Of course the legal realists were in full bloom at the Yale Law School of my era.
Mr. Pollak: You were speaking about the importance of Yale to you. I’m
interested in knowing how you saw the law when you got through there and what ambitions you
had in the law as you concluded. You indicated that you had met and then dated Bob Wald. I’m
interested in placing that and the time of your marriage.
Judge Wald: The law school satisfied something for me that was still quite
amorphous after leaving college. It gave me a discipline, an institutional perspective with
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historical roots, a skill, a series of skills, in which to try to attain, basically the same kind of aim I
had when I left college, but which I hadn’t much of a clue as to how to attain. When I left college
I felt there were things to be done out there in the world. It may have been a more sentimental
vision after college than after law school. There are poor people. There are people who don’t
have their rights. A better society can be built. I think that the law school did not take away that
general notion of how one should spend one’s life. In fact, it reaffirmed it, but it did two things. It
gave you a particular skill to sell in order to get entree into areas of power where you might do
some good. Second, it made you tougher and it gave you a tougher notion of the obstacles you
would have to meet to make any kind of change. Perhaps it gave you a toughness which would
allow you to fail, and not feel you were a personal failure. It vindicated a general notion I had that
I wanted my life to have some meaning in the progress or betterment of mankind. I wanted to
play some role in my time, a role that forwarded a vision of society as a better place for people to
live. That’s very mushy, but reasonably accurate. Yale, I think, said it’s okay to have a vision like
that. You’re not silly. There are changes to be made and people with skills, lawyering skills,
ought to devote themselves to such changes. It said, here are the skills to do it. Here are a lot of
contacts with people which will be useful as you move along, to know and to keep contact with;
and get on with it.
Mr. Pollak: Did the vision have public service in it?
Judge Wald: Almost surely. I never had any desire to practice law in the
commercial sense. I had an offer from a Wall Street firm actually before I got the Frank
clerkship. It was a securities firm. I think they thought they were doing a very good thing
offering a job to a woman, and by the light of the day they probably were. I was interested
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because they offered me and Dan Freed the same job. Neither one of us was married at the time,
and both of us had equivalent positions on the law journal, and they offered him $1,000 more
than me. But that really wasn’t the reason I didn’t take it. It would be a good enough reason,
though. Jody Bernstein and I went down one day to Wall Street and we just went around and
interviewed all the firms. She ended up getting a job with Shearman & Sterling, so it was not
impossible to get a job down there. The intellectual challenge of working with securities, which
I had done in law school, had some attraction, but I knew I wanted the clerkship more. I almost
certainly would have gravitated toward some form of public service if and when that option
opened up.
Mr. Pollak: You commented that Jody Bernstein had gotten an offer from
Shearman & Sterling, a major firm. Was anti-Semitism in hiring present and observable?
Judge Wald: I don’t know all of Jody’s experiences. She only stayed in New York
for a year and a half and then moved to Chicago. But we did see remnants of anti-Semitism all
around. In my class, one of the brightest guys and a law journal officer, changed his name during
the hiring process. He wasn’t alone. In the middle of the hiring season in New York, you would
see people put up these little notes on the bulletin board, announcing they were changing their
names. The assumed wisdom was that even if the big city firms hired Jews, they wouldn’t hire
those with obviously Jewish names. There was a contingent of what we called the CCNY boys,
all bright and on the law journal, Jack Hoffinger, Bernie Greenberg, Hank King, among others.
They sat in the journal office constantly talking about whether or not you could get a job in New
York if you were a Jew. Now they all did in their different ways very well. Bernie’s a partner at
Paul Weiss. Hank went on to head up Davis, Polk. Jack Hoffinger became a white collar
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criminal lawyer of note. But then, they talked about the problem all the time.
Everybody just assumed that women would have a problem getting jobs and nobody talked
much about it. Jody and I went down to Wall Street cold one day, almost like, the hell with it,
we’re going to show you, and we both got job offers. Things were probably beginning to break
loose, and also we were the only two women on the law journal, so, we had some advantage.
But all my ambitions were to do something meaningful in the world around me. And that
takes me back again to my hometown. I still remember in one of my factory stints, back in the
Torrington Company, as I was leaving to go back to college, or maybe it was law school, one of
the factory workers who was operating a press said, “Well, I’m sorry to see you go.” I always got
along quite well with the factory people. I came from that same background. I don’t think they
thought I was high hat. He said, “I think that’s terrific, you’re going to get a degree. You know,
I’ll be going into my 35th year in the company and I’ve been sitting at that press for the last
25 years, and that’s no way to spend a life.” Some of this may sound blown up, but there was no
question in my mind that the direction I wanted to go in was to make life better for working
people and for poor people.
Mr. Pollak: Two questions. What did you do in the summers at law school and,
second, you were going to say something about the relationship with your husband, Bob Wald, as
it began.
Judge Wald: We started dating in our third year of law school.
Mr. Pollak: Was he in your class?
Judge Wald: Yes. I knew him from the beginning of law school but not, we joke
about this, but not terribly well. First of all, I had this other boyfriend who I was still seeing who
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was first at Harvard Business School and then went abroad with the AID program. We still had a
relatively serious relationship so I wasn’t doing a lot of side dating. That relationship broke up in
the summer between my second and third years in law school. So, when I went back for my last
year I was much more available. Secondly, Bob and I waited on tables in the dining room
together that year, so we really got to know each other, and we just started dating fairly casually
and then, over the course of the year, it became much more serious.
Fred Rodell loved to think that he was a sort of matchmaker. He liked Bob and thought he
was the best writer in his writing class. Bob had had journalistic experience and had been to
Europe several times where he had a lot of experience covering stories for his hometown
newspaper. Also, Jody was dating Bob’s friend. We did a lot of double dating, had good times,
and it gradually developed into something more serious.
Rodell recommended two people to Frank for his clerkship, Bob and me. Now, I had the
benefit of three things. One was, I think Frank liked the idea of taking a woman again; he liked to
do the extraordinary thing. Secondly, I had Borie Bittker coming in on my side. And, third, I was
on the law journal and had a better overall average than Bob. Bob never really liked law school
that much and so, until the third year, he didn’t work very hard at it. He lived across the hall from
Norman Redlich and Norman was the kind of person who studied till the library closed at 10:00,
occasionally would take Jody and me out for a cup of coffee, go back with a thermos of coffee
from George and Harry’s, and stay up till 2:00 or 3:00 in the morning. I’m not sure how necessary
all that was in retrospect, but anyway, that was his style, he was an absolute demon on
working.
Across the hall from him lived my Bob. His roommate for the first year was Robert Silver
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of the New York Review of Books, who left law school after his first year. They were sort of the
wine drinking, poetic, literary group who did not always get their homework done, did not like to
talk in class, and were certainly not workaholics. When I first began to date Bob, Norman, who
was then out of law school but still keeping contact with Jody, said, “Oh, I don’t think she should
do that; they’re not emotionally suited at all.” But anyway, we were not in the same world, really,
until the third year. We had seen each other briefly, we both went to Europe between second and
third year of law school. He had been to Europe several times and to Finland before he came to
law school.
It was my first trip to Europe. How did I finance it? I saved my money; believe it or not; it
was possible on a couple of hundred bucks to go to Europe for a month and a half. I went on one
of the student troop ships and we lived on about $1 a day. I just wanted to go to Europe, and if I
wanted to do something, somehow I usually did it. Also, I was going over to visit my boyfriend
who was working for the Marshall Plan in Greece.
Well, we broke up after that summer, but while I was over there, I saw Bob. I bumped into
him in England and again in France, but we were not dating then. When we came back to law
school, we started.
Mr. Pollak: When was your marriage?
Judge Wald: The end of the clerkship in 1952. Frank was a great guy in
retrospect. He wanted to take both of us as clerks but, of course, there was no spot for two clerks
then. He first thought he could get rid of the bailiff and take two clerks and we could both clerk
and bailiff on the side. He liked the idea of our romance. It kind of tickled both Rodell and
Frank to have this romance going on between two people they liked. But the clerk-bailiff switch
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couldn’t be done administratively.
So Frank did something else. Irving Kaufman had just come on the district court about
two years before. Frank put the arm on Irving Kaufman to take Bob as his clerk. If there were
ever two personalities on the opposite ends of the spectrum, it’s my Bob and Irving Kaufman.
However, Irving Kaufman was then quite close to Frank and a lot of that had to do with their both
being Jewish. Kaufman felt, although there was at least one other Jewish district court judge at
the time, a little bit isolated and very conscious of his Jewishness and he allied himself then with
Frank despite their different personalities and different philosophies. So he would listen to Frank,
although he normally wanted to take only the number one students with law review and all the
rest. Because he wanted to please Frank, he consented to interview Bob.
We both went down to New York City. I actually had my job, but I went down with Bob
when he went for his Kaufman interview. While Kaufman was interviewing Bob, the Rosenberg
case was being tried. I went and sat in one day on the Rosenberg trial and watched Harry Gold
testify. Kaufman said to Bob, “I’m going to give you three trial assignments. I have motions,”
Irving said to Bob, “and I’m going to give you three of these motions.” This is a Friday afternoon.
“I want you to come back down on Monday morning with the three recommended decisions
written up for the three motions I’m giving you.” Bob had a car. We went to the theater that
night and then we drove back to New Haven. We got almost to West Haven, it must have been
2:00 or 2:30 in the morning, when Bob realized he left the envelope with the motions under the
seat in the theater in Manhattan. We turned the car around, went back down to New York, routed
out the night janitor, and fortunately the envelope with the motions was still under the theater
seat. Can you imagine if Bob would have had to tell Irving he had lost his motions in the
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theater? Then we turned around and went back to New Haven. He worked all weekend on the
motions, did a very good job, and Kaufman ended up hiring him.
Mr. Pollak: Great story. What did you do between first and second year?
Judge Wald: Between first and second year, I worked for part of the summer at
home and then I bought a round trip, cross-country bus ticket on a Greyhound bus because I had
never been west of New York. I just got on the bus. I arranged it so I never had to stay in a hotel
at night. I just took night buses; I went up and down the country and went this way and that. I
stayed in California at the YWCA for a few weeks.
Mr. Pollak: All on your own?
Judge Wald: Yes. And it was a crazy trip. I traveled all through the segregated
South. I knew about segregation, but it was a memorable experience to see it first-hand down
through Louisiana, Georgia, and all of that region. I went out to the West Coast, got in with a
bunch of girls at the YWCA and saw a lot of that area, and met one girl and went up to her home
in Sacramento. I went to Reno and then came back zigzagging across the country. I think I did it
all over a period of three weeks for about $200.
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July 28, 1992
This is the second oral history session with Circuit Judge Patricia M. Wald of the U.S.
Court of Appeals for the District of Columbia Circuit. It is taking place on Tuesday, July 28,
1992, commencing 9:45 a.m. Present are Judge Wald and the interviewer Stephen J. Pollak. The
interview is being conducted as part of the Oral History Project of the Historical Society of the
District of Columbia Circuit.
Mr. Pollak: Good morning. Judge, we covered in March the period through
law school and I would like to pick up this morning with your recollections of your move from law
school into the world of lawyers and judges and clerking in the practice of law. What do you
recall of those experiences and how you steered yourself and what opportunities you sought to
pursue?
Judge Wald: Well, let me start with the clerkship when I got out of law school.
In those days the process was not nearly as organized as it is now for students applying for
clerkships. Frankly, I didn’t even think about clerking until two of the law school professors
approached me to ask if I was interested in a clerkship with Judge Jerome Frank on the Second
Circuit. One was Boris Bittker and the other was Fred Rodell, whose writing class I had been in.
Both of them were good friends of Jerry Frank. Of course, I was enthralled with the prospect and
as a result of their intervention I talked to Frank, very informally in the hallway of the law school.
It was not a formal interview and lo and behold he offered me the clerkship. Now it was pretty
unusual in those days for a woman to be offered a clerkship; not totally unheard of, but pretty
darn unusual. As a matter of fact, Jerry Frank was way ahead of his time in that respect because
he already had had a woman clerk, a woman called Kim Ebb, a few years prior to the time that I
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was his clerk. Subsequently through the ’50s, until he died, he had other women clerks from Yale.
That was, needless to say, very unusual. There were no other women clerks on the Second Circuit
when I clerked there. This all happened in the spring of my third year of law school and I was
going around with my future husband, Bob, who also was recommended for the same Frank
clerkship by Fred Rodell. I guess he liked us both.
Jerry Frank seemed to be a bit taken with the fact that we were going around together. At
one point, he wanted to see if we could both be law clerks, one of us in place of the courtroom
deputy, but it couldn’t be worked out with the Administrative Office, so he made a strong
recommendation on Bob to Irving Kaufman who was then a new district judge. In the end, Bob
ended up clerking for Judge Kaufman downstairs in the district court during the year that I was
clerking upstairs, except he got called back into the Navy during the Korean war in the middle of
the clerkship year.
Nowadays, there might be ethical questions raised about a court of appeals clerk sitting on
decisions of a district judge when her fiancé was working for that judge, but people didn’t even
think about those things then. And, anyway, it made for – at least the first half of the year – a
very pleasant year. The two judges liked each other; they both knew about the romance; we were
living and working in Manhattan and until Bob got called back in the Korean war – I remember it
as one of the most pleasant periods of my life.
Now, working for Jerry Frank was very exciting and a little erratic. Frank was a very
prolific, talented writer on his own. He used law clerks a bit differently from the way I and a lot of
my colleagues use them. If he was very interested in a case, then he would just sit down and
scribble out the whole opinion including footnotes about the language of the Hopi Indians and all
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sorts of esoterica, and he would give the draft to you and say, “look at this and tell me if you think
anything ought to be done with it.” If he wasn’t that interested in an opinion then he would pretty
much put his stamp of approval (obviously, we would have talked about the result) on what the
law clerk wrote. So, despite all this talk we have now about how things have changed so
dramatically and law clerks are now writing drafts and they never did in the old days, in my own
case, and by word of mouth from some of my fellow clerks about other judges in the Second
Circuit – back in those days judges – even though they only had one law clerk – relied a great
deal upon that law clerk, especially in the routine cases that they did not think required their
imprimatur on every sentence.
Looking back, we worked on 58 opinions during my clerkship. That number is interesting
in comparison with now. In an average year, in the 13 years I’ve worked on the court, I work on
about 40 published opinions a year. But those were much less complicated cases back then than
we have down here in the administrative law cases. The opinion style now is also very different
from Frank’s style. Many of his opinions then were only three or four pages and some only one or
two pages and many don’t even have a statement of facts in them. Of course, by the time I clerked,
he had been on the court several years, and had his own style. His opinions just went, “one-twothree-four.” They read like what we would now call a memorandum opinion, an unpublished
memorandum opinion, of which we turn out hundreds every year. They were really very brief,
almost staccato; you would have to go back to the record in the case to figure out what the facts in
the case were. Still, I’m not sure they weren’t sufficient unto the purpose in most cases, and,
remember, everything was published then.
Now, out of those 58 opinions, there were several that made their way up to the Supreme
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Court, and had jurisprudential consequences. There was one about constitutionally required notice
that was called In re New York, New Haven & Hartford Railroad, and provided an interesting
illustration of relationships between judges and law clerks. The railroad board was defending a
judgment it got by default against a railroad that was never served with individual notice of the
proceeding. The board said, “Well, we published a notice in the paper and that was good enough.”
I mean, surely officials of the New York, New Haven & Hartford Railroad read the paper, and I, as
a young law clerk thought that made sense. They could be expected to know if some proceeding
that involved them was going on if notice was published in the paper where all such proceedings
were published. But Judge Frank was a great one for notice and due process, and he said, “no, no,
that’s not good enough.” So, of course, we wrote a dissenting opinion his way and it went up to
the Supreme Court, and in fact, his view was adopted.
One of the other cases had a different history; it was called On Lee v. The United States. In
On Lee, the government had wired up an informer and sent him into the business place of On Lee,
who (not knowing the visitor was an informer, of course) made some disclosures which were
recorded. The question, unsettled at the time, was whether or not that recording device fell under
the kind of search and seizure ban that applied to wiretaps. The majority of the court said, “no, it
didn’t.” Frank dissented. We worked long and hard on that dissent. It, too, went up to the
Supreme Court, but, in this case, Frank was not vindicated. But it was one of those cases that did
mark a certain bend in the road for the law as to how far you were going to go in Fourth
Amendment protections. The prevailing case at that time said that if the government put a spike in
your wall to which a microphone was attached, and it penetrated your wall even a tiny bit, it
would come under the wiretap ban. After On Lee, if the government wired up somebody who
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walked into your store or your house and then recorded conversations, it didn’t violate the
Amendment. That’s still the law.
Mr. Pollak: – Because you invited the man into your store – ?
Judge Wald: Yes, because you let him in –
One of the other cases that we had that was quite interesting was Field v. United States.
This was the very first case that I ever worked on with Frank. It involved the prosecutions of the
communist leaders. Some of them had jumped bail and the question was whether those that put up
bail for them could be called in, subpoenaed, and questioned about the whereabouts of the leaders
who had absconded without being allowed to raise the privilege against self-incrimination. Had
they waived the privilege by putting up bond and making an implicit assertion to the court that
they would stand behind these people? Judge Frank, as I said, had a habit of scribbling things out
on yellow pages. Then he would hand it to you and say, “now, tell me what you think of this,” and
the first time he did that in the Field case I read it over and I worried about it. I worried about
whether or not you really did waive the privilege against self-incrimination by the mere fact of
being a bailor, and we talked a lot about it, and he eventually changed his position. He wrote a
dissent saying that they hadn’t waived their privilege. He had originally been supposed to write the
majority opinion but his switch turned it around to a dissent. Now, nothing happened
immediately. I believe the Supreme Court denied cert. but several years later, the Supreme Court,
in a completely different case, came around to his position. So, sometimes you have to wait a
while.
Probably, the most well-known case that came up my clerkship year, and the most
troublesome case for him, for me, for everybody, was the first appeal in the Rosenberg case.
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There were many more proceedings which would come later on but this was the first direct appeal
from the conviction itself. My husband-to-be, by the way, had not been working for Irving
Kaufman at the time of the Rosenberg trial; the trial occurred the year before his clerkship.
Mr. Pollak: To clarify, he wasn’t your husband at the time?
Judge Wald: No. Frank didn’t want to write the Rosenberg opinion. He came back
from the conference and said, “I knew I would have to write it”; I think Judge Swan was the
presiding judge. He said, “I knew I was going to get it and I don’t want it,” and he did say to me he
thought that the fact that he was Jewish had been an element in assigning him the opinion. He was
Jewish – Irving Kaufman was too – and the Rosenbergs were Jewish. So, he worked hard on the
opinion; I worked hard on the opinion. It was probably the longest opinion that we wrote that
year. We didn’t have any major disagreements on the substance of the opinion, but we went
methodically through all the arguments for and against the conviction itself and he never expressed
to me any serious doubts about upholding it. He was, however, very upset by the death sentence
that the Rosenbergs had received. He did not think the death sentence should have been given in
this case. As a result, in the opinion he wrote a long statement about why the Supreme Court
should take an appeal from the sentence even though it was jurisprudentially settled at that time
that you couldn’t appeal from a sentence unless the sentence was illegal. He wrote anyway on why
the High Court should look at the death sentence on the merits, why it was important enough for
them to take an appeal, and I think he really had some hopes that perhaps they would. They didn’t,
of course, and the case went through many habeas corpuses after I left, before the Rosenbergs
were finally executed.
Frank also dissented on the conviction of the other defendant. He said Sobel, who was a
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co-conspirator of the Rosenbergs, should have been severed and given a separate trial and that he
was prejudiced by being tried along with the Rosenbergs. At any rate, the whole case caused him
a lot of concern – there were demonstrations in New York, not against him particularly, but the
whole thing, I think, bothered him, especially the point of their being Jewish which was made
much of at the time. His wife, Florence, was upset about the case and she was worried about
personal threats to him. I don’t know that there ever were any specific threats but they did get
hang-up phone calls which upset her.
There was one follow-up to the case I found interesting, though disturbing at the time.
Frank’s papers were eventually sent to the law school library at Yale and a biography based on
them was written by Professor Glennon, who was then at Wayne Law School. I talked to
Glennon a bit while he was writing it but not about the Rosenberg trial particularly. He was nice
enough to send me a copy of the galleys and as I looked through the Rosenberg chapter just out
of interest I found an amazing statement to the effect that Frank’s law clerk had sent him a
memorandum saying the Rosenbergs’ conviction should be reversed because of evidentiary
problems. I knew that was not true and I was the only law clerk at the time. So I called Glennon
up and he was gracious enough to send me a copy of the memorandum which I immediately
recognized as not being my own – it wasn’t my writing style at all. He took my word and took
the attribution out of the book in its final form. We then debated among ourselves – it was
almost thirty years after Frank’s death – as to where the memorandum might have come from.
Our best guess was that in those days the strictures were just not that rigid in terms of a judge not
speaking to any confidante about a proposed opinion and that Frank either talked to a fellow
faculty member or maybe to an old clerk, because he wanted a second opinion about so important
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a case. As it happened, the “second opinion” raised serious questions about the evidentiary
underpinnings of the case. I didn’t agree with the ultimate conclusion of the memorandum and in
the final analysis Frank didn’t either. We never knew for sure who its author had been; it was an
unsigned, undated memorandum.
Now, as to what kind of man he was, he was full of energy way into his sixties, when I
knew him. He ultimately died, about six or seven years after I clerked for him, of leukemia,
which he kept a secret from everybody up until just before he died. In those days, of course,
treatment was much more elementary and consisted of blood transfusions. He apparently went to
the hospital secretly to get the blood transfusions. One of his former clerks on the faculty, Dick
Donnelly, was the only one who knew about the leukemia until very, very close to the end. But,
when I knew him he was full of vitality. There was a tinge of sadness sometimes. I felt at times
that he really longed for a more vital daily life than judging. I could be wrong. I never had this
conversation with him. He had just moved to New Haven. We used to ride down together on the
New York train to Foley Square for the week of sittings every month. I usually stayed with an
old law school roommate and several other women who had an apartment during the week I was
in New York and they always had lots of things going on, so if I wasn’t working at night at Foley
Square I would go back to the apartment and there would always be some kind of social
gathering. I still remember at the end of one day he said, “well what are you doing tonight,” and
I said, “well, we’re actually having a small informal dinner party with young people.” And so,
as a last minute thought, I added, “would you like to come? We would love to have you,” and
he said, “yes, I would.” He grabbed up his brief case, and came back to the apartment with us.
There must have been about ten of us. Needless to say, the young lawyers among them were
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thrilled. I remember we were sitting down on the floor – it was your typical New York career
girl-type apartment – and he just got down on the floor too and he regaled everybody with
stories. Next day he told me he had a wonderful time.
Frank had one daughter, Barbara, who was quite talented, but she had a basic chronic
endocrine disorder of some kind. She and he wrote a book together toward the end of his life
about innocent people who were wrongfully punished for crimes they didn’t commit. I had the
feeling he was the sort of man who would have liked to be surrounded by 15 grandchildren and
lots of things going on, and that there was a little sense of loneliness about him. He did,
however, have a wide circle of friends and he kept up this enormous correspondence with legal
philosophers like Edmund Cahn, I think Robert Hutchins, too. Now that I am of a comparable
age with him, and in a comparable position, I wonder at his energy because I don’t take quite the
delight he did in just having all these correspondences going back and forth with all of these
thinkers.
Mr. Pollak: He also taught at Yale?
Judge Wald: Yes. He taught a course on fact-finding.
Mr. Pollak: He also taught ethics, I think, or equity . . .?
Judge Wald: It was fact-finding in my law school time which was a Friday night
seminar; it consisted really of getting to know Jerome Frank. It was all about interesting
anecdotes and experiences he had had, but well worth taking for the glimpse it gave you into a
worldly fertile mind. Later on while I was clerking he was very friendly with J.W. Moore. He
had an office in New Haven in the law school where we worked most of the time except for the
time we were actually sitting in New York. Moore convinced him to teach a course in federal
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procedure. Maybe by your time it had turned into Equity, but in my time, I had to prepare all the
course materials. I remember I hated that chore. I just hated it.
Frank liked being around the law school. He liked all the people and all the intellectual
ferment and activity. He was very fond on his own court of the two Hands, Learned and
Augustus. He loved Learned Hand; perhaps two people could not have been more different in
background and in personality, but they liked each other and spent time with each other.
Somebody once said to Learned Hand, “Now, how can you sign on to all those opinions of Jerry
Frank’s – they are full of irrelevancies, full of non-legal references, speculations,” and Hand
replied, “I just look at the bottom line and if it’s okay, I don’t care about any of the rest.”
He also got along very well with Swan. He and Charlie Clark had a very distant, stiff, I
guess almost antagonistic relationship. I got only a snapshot view of it during the one year.
Charles Clark was always extremely nice to me, though I didn’t get to know him well. In the
book Learned Hand’s Second Circuit, the author points out that despite the fact that Clark and
Frank might have been expected, both being Roosevelt New Deal appointees, to become allies on
the court, they never did. The same book quotes other judges having to intervene in their disputes
to the effect of, Will you two stop feuding so that we can get this opinion over and done. They
just rubbed each other the wrong way.
The other clerks that year were also from my class at Yale – Bill Rogers, now at Arnold
& Porter, was clerking for Charlie Clark and Ed Snyder, a wonderful person who later devoted
his entire life to the American Friends Service Committee, was Tom Swan’s clerk. The clerks
used to act as go-betweens all the time because the amount of direct communication between the
two judges – Frank and Clark – was minimal. And, actually, they weren’t that far apart on most
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substantive issues, with the exception of summary judgment. Jerry Frank was very reluctant to
bring anything to summary judgment if there was any possibility that there could be any dispute
on the facts, whereas Charles Clark, who was very instrumental in putting the federal rules into
their initial shape, thought it should be used more often. That’s not the kind of thing that would
divide people who liked each other but it was almost as if they were programmed to oppose each
other. It was too bad.
One last thing that I remember about that year is the different way in which we handled
arguments and briefs: we had a week’s sitting in New York once a month. We never got the
briefs ahead of time. When I would ride down on a Monday morning on the train with Jerry
Frank, the two of us would go to Foley Square. He’d have arguments that day, say, from 10:00
on. The packets of briefs would be in the New York office and they would be delivered on the
bench to the judges. The judges would not have read the briefs before the oral argument. I can’t
conceive of working that way because now we get our briefs a month ahead of time. We spend
our entire time for weeks reading the briefs in order to cull out of them what we want to hone in
on at oral argument. But these eminent judges would just go in cold and listen to the oral
argument and then afterwards they would read the briefs. The two parts of the pre-decisional
process – briefs and argument – didn’t work in tandem at all.
Another thing that is quite different from our practice now is that the clerks were not
encouraged to and rarely did go to oral arguments. I think that the year that I was down in New
York I probably went to only a couple of oral arguments. If you heard by grapevine of someone
who was a terrific arguer, you might go listen. But you did not go automatically as part of your
preparation process. Now, in every case you have a clerk in the courtroom taking notes on the
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oral argument even though it is being transcribed. You talk with the clerks later about their
reactions as well as your own to the oral argument. Not so then. I would be back in the chambers
reading the briefs at the same time that Judge Frank was listening to the argument. Then, at the
end of the week, the judges would have a conference. But, prior to the conference, they would
circulate memoranda which the clerks would help to prepare. So I would prepare a draft
memorandum on the basis of the briefs and ask if anything had come up in the oral argument that
I should know about, and he would take the memo and maybe add to or change it. Then they
would meet on that Thursday afternoon or Friday and the cases would be assigned for opinion
writing. At any rate, it was quite a different process then from now.
Mr. Pollak: So, when they took their preliminary vote at the conference,
would they have read the briefs?
Judge Wald: Presumably, because that would be at the end of the sitting on a
Friday, so in between the oral arguments every day, they were supposed to read the briefs, but I
can’t guarantee that every judge read every brief, certainly not before argument. In retrospect, it
seems like a strange system. But who’s to say whether the 58 opinions rendered that year were
any less correct or learned than the ones we turn out now.
I would say, except for the few cases I mentioned, most of the docket was fairly simple.
When I look back at the administrative cases then, they would tend to be single-issue cases
involving the NLRB or the ICC. We were not yet in the age of the administrative agency. You
didn’t have super-complex cases like we do now, where it takes 25 pages just to lay out the prior
proceedings and the facts. You didn’t have national regulation to anywhere near the extent you do
now. So it was a different ball game.
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Mr. Pollak: Did the court sit in two panels?
Judge Wald: No, I don’t think so.
Mr. Pollak: Just a couple extra judges and they would filter in and out?
Judge Wald: Yes. That’s my memory.
Mr. Pollak: You think you had any en bancs?
Judge Wald: We had no en bancs my year. We had a few petitions for en banc
but they were denied. I remember we struggled over one or two but it’s nothing like now. I
mean, now, in every case of any serious proportions you get an en banc petition and I would say
that during the course of a year we get at least 100, maybe more. But, of course, the history of the
Second Circuit has always been one of extremely sparse granting of en bancs. Many of us on the
D.C. Circuit marvel at the restraint of the Second Circuit judges as compared to our own en banc
record, which is 6-10 a year. The tradition, the culture, there was not to have en bancs.
Mr. Pollak: Two questions. One, any comment you may have on the civility of
the bar, and two, the caliber of the papers that you saw that year, and the role the lawyers played?
Judge Wald: As I say, I didn’t see that many oral arguments. I went to see the
Rosenberg argument and I went to see one or two others when Frank would say, “This is a really
good lawyer. You ought to come see him.” The papers I don’t remember much about except they
were vastly fewer than we have now. They were much shorter too. I think the whole process was
simpler, except if you got into some particular issue that Frank really cared about, he would
research and write with a passion sometimes interminably. For instance, he was one of the
very early people who worried about pro se litigants, giving people access to the courts. There
was no appointed counsel system then, even in criminal cases. He thought we ought to pay
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much more attention to pro se-ers to make sure there wasn’t some real issue among their papers
and appoint counsel for them when we thought there was a real issue at stake. So he was
especially careful to give pro se cases a hard look. In many cases of the garden variety, however,
his attitude was, Let’s just go straight to the guts of this. If you look at his opinions you see
something you never see now in an opinion, at least in our circuit. He starts right in, he doesn’t
say, “This is an appeal about X, Y, Z and the following issues are raised and we come to the
following conclusion,” the usual interlocutory format followed by ten pages repeating the
arguments of both sides – “The appellants said that they did not receive enough evidence in the
course of this proceeding. We do not think this is right under the doctrine of blah, blah.” His
opinions read more like our unpublished memoranda, one, two, three, over and out. There was
not a lot of posturing or attempts to show how learned he was in the ordinary opinion.
Now, today, we have this dichotomy of published and unpublished opinions which we
didn’t have then. For the roughly 50 percent of our opinions that are published, judges tend to
treat them, perhaps too much so, as a kind of academic exercise. We must show that we
understand all facets of the problem and everything must be complete and documented to the
teeth. It takes an enormous amount of time.
Well, those are my memories of the year. I ended up liking Frank very much as a person.
He had his erratic qualities. I mean, he would come in to you, throw something at you and say,
“now work with this,” and then you would work with that very diligently and the next day he
would have had a brainstorm overnight and you would sort of have to start all over again. But
I’ve met a lot of people like that over my lifetime, and withal he was a very decent, kindly man.
He treated me very well, indeed. He was also very nice to Bob. I never saw him go off in a wild
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explosion of anger or do a casually cruel thing. He might get irritated but he never did a basically
uncivil or personally unpleasant thing to me or anyone else around him. As I said, I always felt
there was a little tinge of sadness about him, but he was a man of extraordinary vitality and talent.
And, as I say, there were not many women clerks at that time, and I felt extremely privileged to be
his.
Do you think we skipped anything or not?
Mr. Pollak: No, I think we can move on. Did you consider clerking on the
Supreme Court?
Judge Wald: Nobody ever suggested it to me, and I never formally applied to
anyone. To my knowledge, these opportunities were almost exclusively feeder-type operations
between Justices and judges or professors they knew. In our year Bill Rogers did go on to clerk
for Justice Reed. At that point, to my knowledge, only one woman had ever clerked on the
Supreme Court and that was Tommy Corcoran’s daughter who clerked for Justice Black.
Frankly, I didn’t think about it very much. By the end of the clerkship with Frank, Bob
was in the Navy. We got married that June and drove to the Pennsylvania Naval Yard where
his ship took off on an operation and I came back to Washington to work and await his return.
There was lots going on.
Mr. Pollak: So, you took a job with Arnold, Fortas & Porter?
Judge Wald: Yes. A little bit of background on that. When Bob went in the Navy
and we realized we were going to get married, Washington seemed the nearest place that I could
find legal work that was within commuting distance to Norfolk, Virginia, where his ship was
coming in and out. No one thought of Norfolk as a place where a woman lawyer could get a
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job at that time. When I decided to work in Washington, I said to the judge, “I’ve got to go look
for a job and would you write me some references.” He said, “Of course.” He knew people down
here. He knew Frank Shea, of Shea & Gardner, and wrote me a reference to him. He knew both
Abe Fortas and Thurman Arnold. I was expecting him to write the kind of reference that we all
write, that gives some background on the person and says the usual nice things. I think he may
have told me, “Put something down on paper and give it to me.” I think I did try to put down
something but ended up telling him even a sentence he wrote would be worth much more. Then,
he went and grabbed a piece of stationery (I remember it very well) and wrote, “Dear Abe: this is
the best law clerk I ever had. Jerry.” That was it. It was extremely flattering, if somewhat unique
as references go. I hope none of his other terrific law clerks ever saw it but it was the way he did
things. Obviously, it opened doors down here. I interviewed with not just those two firms (Shea
& Gardner and Arnold, Fortas & Porter) but several other firms, too. I had an offer from the
government to work in the Paris AID office, but I didn’t want to go to Paris while Bob was on a
ship out of Norfolk, so I was happy when the offer came from Arnold, Fortas & Porter. I’m sure I
got the offer on the basis of Frank’s recommendation.
Mr. Pollak: How big was the firm?
Judge Wald: During the year I was there the firm had 12 or 13 people. Three
associates; the other 10 were partners. This was about five years after the firm got started.
Among the partners were Arnold, Fortas, Porter, Bill McGovern, Milt Freeman, Norman
Diamond. There were three associates: Bud Vieth, who had been there a year or two ahead of
me, George Bunn, who later went on to teach and worked on the Disarmament Commission, and
me. It was very formidable to be an associate in a firm with all of these legal lions.
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I was terrified of Abe Fortas. He couldn’t have been more courtly but I was absolutely
terrified of him. I remember he once gave me an assignment, not a huge one, to go out and
research, something to do with what happened if the juror did x and y in a case. I really killed
myself. I stayed up all night doing the memorandum and then I was afraid to give it to him. He
had forgotten he ever gave me the assignment and so I waited about three days. He never asked
me for it and I was just scared to give it to him. I thought it might go away. Eventually I turned it
in and it turned out not to be terribly important in the case. He never even commented on it. By
the time I gave it to him, the need for it had gone away.
I remember I once used the word “damn” in front of him, something that was really
innocuous by modern standards, but he said he never wanted me to use language like that and I
felt very chagrined. Actually, he was quite protective and considerate toward me at all times, and
he and Carol had me over to their house, but I was still scared of him.
Now, on the other hand, Thurman Arnold was sort of like a big lovable teddy bear. I
worked a fair amount with Arnold on the Owen Lattimore case. As I say, I went into the firm in
July and I left the firm in March or April when I was within a month or so of giving birth to my
first child.
Mr. Pollak: In what year?
Judge Wald: I went in in 1952 and came out in ’53 so I was not there long,
although I will say the period left a very strong impression on me: Washington as it was in the
early ’50s, moving into a law firm with such strong personalities and being the only woman;
being pregnant almost from the time I got there. I came to the firm in July, I got pregnant in
September and was away from my husband most of the time until my daughter was born. When
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the ship came in to Norfolk I would go down and spend the weekend but for a while I lived with a
couple of young women I had known from college in a house on Woodley Place. It was a very
hectic period. Bob’s younger sister was in Washington and I lived with her some of the time. In
that one period from July until I left Washington the following April, I lived in about six places
because I couldn’t honestly sign a year’s lease, knowing I would be leaving soon. A couple of
times between rentals I lived with guys I knew from law school for a week at a time. At one
point I remember Abe Krash, Jim Heller, and some other now-eminent senior-partner types, had a
house on Harvard Street, which is now not the most terrific part of town but was then sort of a
young career-type place. They took us in. Bob’s sister and I lived in one of the bedrooms in that
house for a week or two until we could find another rental.
It was a gypsy-like existence for someone 6-8 months pregnant. Fortunately, I had a fairly
uneventful pregnancy except for the first month or two when I had the usual morning sickness. I
hadn’t told anybody about my pregnancy; I was in a car pool and I still remember stopping to pick
somebody up and leaning out of the car and throwing up in the gutter. I was also extremely
sleepy a lot of the time, as often happens. I was working on a complicated regulatory
memorandum for Norman Diamond at the firm and I would excuse myself from the firm’s
library, go across the street to the Homeowners Loan and Bank Board Library and I would just
put my head down on the table and go to sleep. In retrospect, I mean, no husband, very pregnant,
nausea and sleepiness, only woman associate in the firm – by modern standards I guess I should
have been more stressed out than I was. But there was no alternative — you just kept going.
People in the firm by and large were very nice to me. If there were any signs of gender
discrimination, I was either too busy or too dumb to see it. I worked quite closely with Thurman
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Arnold and Joe O’Mahoney, the former Senator from Wyoming, who was brought in as counsel
on the Lattimore case. In that seven or eight months, despite everything else, I worked on some
good stuff. I worked on both the motion to dismiss and what we then called the bill of
particulars, a motion to make more specific the allegations in the indictment. Ultimately the
indictment was dismissed by a courageous district judge, Luther Youngdahl.
Abe Krash and Bill Rogers came in just as I was leaving. It was unclear whether Bill
Rogers or Abe Krash took my place, so we used to say it took two men to replace me. Abe
picked up my place on the Lattimore case, on which I had done a great deal of groundwork as the
only associate working on the case.
I also worked on a libel case in which Abe Fortas and Bud Vieth were defending Neiman
Marcus from two columnists who wrote a column in the ’50s called “Inside America” that were
always getting them into legal trouble.
Mr. Pollak: It wasn’t Drew Pearson?
Judge Wald: I don’t remember. Anyway, in this case they said that all of the
models at Neiman Marcus were call girls, high-class call girls and so a libel action was brought
by Nieman. There were all sorts of interesting legal questions involved – if you said all or
almost all call girls but didn’t name specific names, for instance, was it libel? I also did some
background on several McCarthy-era cases. Interestingly enough, Dorothy Bailey, whose case
went up to the Supreme Court on the validity of the loyalty program inside the government –
Mr. Pollak: The loyalty oath?
Judge Wald: The loyalty program. She had been the plaintiff. Of course, the firm
represented her, but had ultimately lost the case in the Supreme Court. She was a very fine lady
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so they hired her as the administrator in the firm. She was in the firm the whole time I was there.
I later met her in 1974 in Kenya, Africa. She had married a man who did overseas educational
work for the Ford Foundation. She had just lost her husband to a heart attack in Kenya after they
worked there for many years. It was very interesting after 20 years to hear her impressions of the
McCarthy period in Washington.
Several loyalty cases were going through the firm at the time because, of course, Arnold,
Fortas & Porter had gotten a reputation for defending people against those accusations. It was a
strange time. Although I didn’t work for the government, I did have some classmates who came
down here from Yale Law School to work for the government, usually the NLRB, which was one
of the prime employers of women lawyers at the time. In one case, a classmate’s loyalty was
questioned based solely on ACLU work in the chapter that was started while I was in law school
by Tom Emerson. That person ended up resigning rather than go through the hearing. I
remember being with the person at the time and seeing the agony of that young person’s situation.
I mean the charge was completely without justification. It was one reason why I never really
thought of the government as a viable alternative for me at that time. I was pretty turned off.
The final comment on Arnold, Fortas & Porter is I thought they were all extremely
gracious while I was there. By March or April I felt more comfortable around the big-name
partners. I was pretty well accepted. They gave me a bonus at Christmas time and indicated that
they were pleased with me. Of course, in early January I had to tell them (it would soon be
apparent) that I was pregnant and I was going to go down and have the baby on the naval base.
By that time Bob had been reassigned to a judge advocate’s position on the base. They were very
good about that and they said I surely could come back. I was welcome to come back after the
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baby was born.
Of course, I didn’t. My first daughter was born in May 1953 and we stayed down there in
Norfolk until the end of that year. Then, Bob’s term was up in the Navy so we debated about
where to go. He came from the Boston area and had taken the Massachusetts bar. On the other
hand, I had made all these friends in Washington. I think the feel of law practice in Washington
was more attractive.
I didn’t think too much at the time about going back to work. Once I had the baby I knew
that I didn’t want to leave her. I remember coming back on a visit to Washington after a few
months and seeing people at the firm. Abe Fortas was pretty smart. He said after I got about four
sentences out that “You don’t want to come back, do you,” and I said, “No, I don’t.” He said he
understood. It must have been plain to everyone. I didn’t want to go back, just then.
Mr. Pollak: I have a question about the role you would attribute to your first practice experience
in your early career. Did the people you worked with, the type of problems you dealt with, did
the excellence or lack thereof of the products that you saw – did they provide models for you
later on?
Judge Wald: Models, I don’t know. Here’s the impression they left me with: that
the practice of law could be exciting; that it could be fun. It was not boring. They left me with a
desire, I suppose, to be around exciting, productive, charismatic people such as Arnold and Fortas
and some of the other people who were there.
Mr. Pollak: How did they compare with Jerry Frank?
Judge Wald: A lot alike in some ways but very different in others. Abe Fortas
was a meticulous craftsman; Jerry Frank was the brilliant thinker of this thought and that thought,
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and out of 25 of those thoughts, maybe four were brilliant and the other 21 should quickly be
disregarded. But the four brilliant thoughts were more than a lot of people have in their lifetimes.
Fortas, who was a good friend of Frank’s, was much more organized and logical in his thinking.
Arnold was a bit more like Frank, an intuitive person. But all of them were people that you
remember; they were not dull, pedantic, or banal. You knew that wherever they were, there was
going to be excitement and that they were basically strong, bright people. They were not poseurs.
There was something behind them. Exposure to them left me with the notion I wanted to be
around people that were making things happen. That’s the kind of law to be involved in. I didn’t
want to be in a back room some place doing pure legal research. In one sense, it gave me a
unique eye into Washington practice because nothing I worked on was ordinary, like writing a
legal contract or a sale of a piece of property. It was either a prosecution of national importance
like the Lattimore case or a novel question of libel law arising out of a syndicated column. It had
some kind of policy dimensions to it.
One interesting thing on the Lattimore case: it turns out there was a young person in the
Department of Justice whose name appeared on some of the pleadings, my counterpart as it were,
named Robert Kennedy. I did not, however, meet him at the time.
Mr. Pollak: So you left the practice and went home to Norfolk for a period with a
first child . . .
Judge Wald: We had a weatherized cottage down in Virginia Beach. Sarah was
born in May. It was very nice. I mean we were on the seashore. I was a full-time wife and
mother. By the time Bob got out of the Navy and we moved back to Washington, I was already
pregnant with our second child. So that’s another reason why I didn’t think about looking for a
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job again. Actually, when he got out of the Navy, we had a period until he found a job (he
couldn’t do much job-looking while he was down there) when we lived in this perfectly awful,
horrid, rented place in a housing project out in Alexandria; we had no furniture of our own, and
this awful place had paper curtains like a bordello. When I took Sarah out in the stroller there
was a slag heap down at the end of the street. Anyway, it was kind of depressing, not the best
period in our lives. Bob was looking for a job; we were living in this perfectly awful place; we
had no money except his pay from the Navy and I was pregnant again. Nonetheless, after a few
months, he ended up at the Federal Trade Commission, and we moved to a better apartment.
So to put a lot into a little period of time, Doug was born the next year. Then a couple
years later we moved to a house in Hollin Hills. Our third child was born in 1956, Johanna. The
fourth child, third daughter Freddi, was born in 1958 and our last child, Tommy, was born in
1960. During that period I was very busy and we lived in Hollin Hills for a few years and then
we moved into a bigger house out in Chevy Chase. So, between 1953 and 1960, we had five
kids. That kept me very busy. I really didn’t think much about going back to work. That pattern
was not atypical for my generation even for career-minded women.
As I said earlier, there were several other women in my class at law school. I stayed
friendly with many of them; Jody Bernstein, who married the same year I did, and had three kids,
was my closest friend. She had been on the law journal with me; she, too, was out of the
workforce for roughly the same period I was. There were others who did the same thing. So, I
didn’t feel any terrible sense of isolation or loss. I always assumed that I was going back,
someday. I didn’t know how, I didn’t know when, I didn’t know where. I just assumed I would go
back. I didn’t feel under terrible pressure to do it this year, that year, or even next year. I
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think, perhaps, I was helped a lot by the fact Bob was a lawyer and we moved in legal circles.
Our social circle consisted of many friends from our law school class – Dan Freed and his wife;
the Aggers; all sorts of people. So in socializing I heard a lot about the law. There would be
legal talk at dinner parties we went to. We would go to a lot of those Yale alumni meetings that
were held at people’s houses. I remember Felix Frankfurter speaking at one of them. So, I didn’t
feel totally cut off from the law during those 10 years. I didn’t read Law Week or cases, but I felt I
still had contact with the profession.
In 1959, Doug, our oldest son, had a very bad medical experience in which he almost died
and Bob and I lived at Children’s Hospital for a month, I mean 24 hours a day. We spelled each
other to sleep. Part of the time we had somebody home with the other kids. Finally, we gave up
and sent two of the kids to his mother for a couple of weeks and my mother took the youngest
child, because Doug had four episodes in which he nearly hemorrhaged to death from a staph
infection he had gotten from an ordinary tonsillectomy. He ended up with a tracheotomy,
transfusions, and ambulance rides in the middle of the night, all at the age of four before he could
read or write. So, that was enough to keep me pretty focused on the essentials of life, the kids
staying well. For a period of years that was the primary thing I cared about.
Doug’s illness was in 1959. I had another child in 1960 so it was 1963 or ’64 before I even
thought about doing anything outside of the home. In 1962 or ’63 I had an opportunity to do
some background research for a lawyer who had been commissioned to write a book about the
Federal Rules of Criminal Procedure as part of the J.W. Moore series. Moore was the basic
editor but different volumes were written by different people. Anyway, another woman and I did
a lot of the background research for this volume. It turned out to be an almost useless effort
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because the guy in charge of the volume, a somewhat strange character, although employed at the
U.S. Supreme Court at the time, never put it together. The other woman and I had a terrible time
getting paid. He basically disappeared and we were, I guess, exploited in a very garden variety
way. However, I don’t look back at it as a totally bad experience because it was a chance to move
into the field again. What I did was, the one day a week my cleaning woman came, I would go to
the Federal Bar library and work all day. I produced a lot of chapters for him although they never
got published and so I don’t know how good they were because he never critiqued any of them.
Eventually, he lost his job up at the Supreme Court, and the whole thing kind of fell apart. But at
least I got back into the habit of organizing and doing research. The other woman was Louise
Trubeck who went out and started a public interest law firm in Wisconsin and is well known out
there now, so I suppose the first try was some kind of a spur to us both. At the time it seemed a
dead end.
Actually, Dan Freed provided my real re-entry into the profession beginning around 1963
(the Freeds were friends of ours socially and our kids were the same age). I had known Dan quite
well back at the law journal; he was now in the Antitrust Division. Bobby Kennedy, the Attorney
General, had gotten interested in the relationship between poverty and criminal justice at the
department. Dan was commissioned to do something about it but with practically nobody to help
him. I mean just Dan and a secretary (actually, the secretary, Estelle, is now my secretary) were
supposed to put together some kind of commission or task force to do something about this
problem of poverty in the criminal justice system. As I recall, they were to focus on three aspects
of the criminal justice system; establishing a system of appointed counsel for indigent accuseds
which led eventually to the Criminal Justice Act. A second was insuring transcripts for criminal
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appeals, and the third was bail.
Dan managed to get the department to give me a part-time consultant’s contract and I
helped them put together the Bail Conference of 1964, and he and I wrote a book called Bail in
the United States as the conference publication. We worked closely with Herb Sturz up in New
York City who had recently started the Manhattan Bail Project and later the now much-esteemed
Vera Foundation for whom I worked part-time and later served on its Board.
This was one of the funnest periods of my life. We really had a good idea for changing
the system, and with backing first from Bobby Kennedy, and after that, from both his successors,
Ramsey Clark and Nick Katzenbach, I was right smack in the middle of things which was where I
wanted to be, at the same time that I was still home most of the time with the kids. I wrote the
book out of the house. I took a lot of materials that Herb Sturz in New York had gathered,
empirical materials, bail surveys around the country. I just took them home and stacked them up
by my typewriter and started working. I would bring in the script every few days and the script
would be typed in Dan’s office. Dave McCarthy, the former Dean of Georgetown Law Center,
was running a Bail Project here in Washington, like Herb’s in New York. There was a small
nucleus of people in the field from whom we could get lots of information. A few of us put
together the Bail Conference which was quite a success, bringing together leaders of all of the
bail projects in the country. Chief Justice Earl Warren gave the opening address. So all that
year – 1963-64 – we worked on the book which was given out at the conference, and we
worked on planning other aspects of the conference and I think of it as one of the happiest
periods of my life. I really had everything during that period. I was doing something I thought
was going to make a contribution to society. I had the excitement of colleagues and teamwork
and I had my family at one of their most attractive periods. By this time Doug was out of his
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medical problems and the other kids were coming along fine as well. It was just a great time.
I didn’t earn a great deal of money; I was paid by the hour. But it’s interesting that even in
that period, the people in charge of the department had the flexibility to do that because I could
never have worked full-time. I think they got their money’s worth.
The Bail Conference led to a similar book that I did on civil law and poverty for Legal
Services. The OEO and DOJ were getting ready to have a national Legal Services conference . . .
Mr. Pollak: It must have been early ’65 –
Judge Wald: Yes, and Jack Murphy and Bruce Terris were working on the
conference and somehow through the networking that always goes on in Washington they
decided they, too, would like to have a book on Law and Poverty written for the conference. My
name came up because I had just finished doing the bail book with Dan Freed. I took this
assignment on by myself without a co-author.
I ended up talking to a lot of the people in order to get the basic material for the book. I
had a lot of energy at the time. We did not have full-time help or anything like that. Although by
this time, the older kids were in school, Tommy, my youngest, was still at home and I would have
to write at nap times and work until two or three in the morning. My husband, Bob, was terrific.
He would take the kids sometimes for the whole day on Saturday and Sunday. He would just put
them in the car and go so I could have the whole day to work and the book got done. It gave me a
great deal of pleasure to accomplish that.
Mr. Pollak: Did you have anything to do with Shriver?
Judge Wald: Not really. I worked most closely with Jack and Bruce. I really
didn’t get into OEO operations much. But here’s the interesting thing. In just writing about the
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legal services program and visiting a lot of projects, the Mobilization for Youth Program in New
York, run by Ed Sparer, and Earl Johnson, who was running the local D.C. Legal Services
project–
Mr. Pollak: Community action project –
Judge Wald: Yes, people who were in the heart of early legal services, like Gary
Bellows, I was sufficiently excited by it that I felt, I don’t just want to write about this. I don’t
want to be the person back there writing. I would like to do it. Now, it took me a few years
before I ended up doing it, but the thought was installed. Toni Chayes, an old classmate at Yale,
was also in the legal services mainstream at this time. I remember talking to her and she said,
“No, I’m not interested in actually doing legal services. I’m interested in the education aspect.”
And I said, “No, I’m interested in bringing the cases. I want to bring the cases.”
Mr. Pollak: So that Legal Services assignment really then was the
direction you later took?
Judge Wald: Yes, but it took a little bit of time. The next stop I made was the
D.C. Crime Commission. One thing led to another. I had done these two things, bail and legal
services. So, I knew a lot of key people in the Department of Justice by now. Warren
Christopher was over there as Deputy Attorney General. I also did a research project with Dan
Freed for the D.C. Judicial Conference on criminal discovery. So I had this research and writing
background but no hands-on experience in trying cases. But you know how appointments are
made –
Mr. Pollak: So you were named to the D.C. Crime Commission –
Judge Wald: I don’t remember now which attorney general was in charge then,
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whether it was Ramsey or Nick.
Mr. Pollak: I think it was still Nick –
Judge Wald: Yes, that’s right; he and Dan Freed were quite close. Nick had come
to a lot of the bail meetings. Also, Lee White worked in the White House and Bob knew him,
and I think he was instrumental in my getting appointed. Also, Chuck Roche, who was a wellknown White House lobbyist for both Kennedy and Johnson, had moved two houses down from
us. Chuck had been one of Bobby Kennedy’s ushers. Chuck was a political, not a cerebral type,
but both he and his wife, a lovely woman, were good friends with Bob and me. Our kids (they
had nine) were constantly together. I think, though, that it was Bob, my husband, who put my
name about for the job. Quite frankly, I never said to anybody, I want to be on the D.C. Crime
Commission. I mean Bob acted as a sort of John the Baptist for me. Whatever it was, it worked.
I had no reason to believe that plum should just fall in my lap. I’m sure there were a lot more
worthy people who might have gotten appointed, but that’s the way life is in Washington.
Anyway, that was a great experience, too, for two years. We brought out the report in
1967. We were a very congenial group of commissioners. The points of view were not always
the same. If you remember, Jack Miller was the head of the commission, and there were people
on it like Marjorie Lawson, an ex-juvenile court judge, Clyde Ferguson, who was the Dean of
Howard Law School, now gone, Bill Rogers, the ex-Secretary of State.
Mr. Pollak: Ex-Attorney General –
Judge Wald: Yes. Abe Krash was there from Arnold, Fortas & Porter, and Fred
Ballard, who was then president of the D.C. Bar. The head of the local gas company and Judge
Pine of the district court.
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Mr. Pollak: Howard Willens was the head of the staff –
Judge Wald: Jack Miller brought him over from the Criminal Division. Sylvia
Bacon and Peter Wolf, both of whom were later judges in Superior Court, were also on the staff.
Old Judge Pine was our most conservative person on the commission. I had an advantage on that
commission. My advantage was that at the time I was not holding down a paid job (this was a
non-paying commission). Everybody else was a juvenile court judge or the Dean of Howard or
the president of the bar or a practicing lawyer, starting a new law firm, as Jack Miller was doing
at the time. I was taking care of my kids, yes, but I spent probably more time on commission
work than any other member because I had the time to spend. It was my only outside activity. So
I got to know the staff, and I did a lot of staff work myself. I drafted two chapters of the report
practically from beginning to end, and worked extremely hard on several others. Howard Willens
was the final editor but basically when things went really wrong and staffers didn’t work out, we
just moved in and wrote the whole thing. So I really had hands-on experience in practically every
aspect of the commission’s report. I knew all the staff people intimately and I would spend
whatever time I had during the day working on the report (the meetings were always at night). I
was operating as much as a commission staffer as a Commissioner.
So that lasted two years. I learned an enormous amount about the way Washington’s
criminal justice system worked in those days, and met most of the cast of characters involved
in it.
I also worked in conjunction with the National Crime Commission which was going
on simultaneously. If you remember, there were two, the big and the little commissions.
Nick Katzenbach – then the Attorney General – started out being the chair of the national
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commission until he got switched by President Johnson to the State Department. Jim Vorenberg
was the Executive Director. Jim had come to Justice from Cambridge – Harvard Law School.
As it turned out, we’re now very close friends with the Vorenbergs and have been for many years.
In the beginning I remember he seemed quite formidable. When Dan Freed took me to lunch
with him I had the feeling that I was quickly dismissed, as somebody who was a part-time worker
and couldn’t be of much use in staffing a project. However, when I went on the D.C. Crime
Commission and Jim was given the National Crime Commission to run, the two commissions
had to work closely in some areas with one another, and we did a fair amount of collaboration.
Jim ended up asking me to do two writing assignments for the national commission. One on
poverty and the criminal justice defendant. One on the citizen’s role in policing. As I said, we
ended up being close social friends.
This, too, was a great period for me. The feeling in the middle of the Johnson era was,
We can solve problems. It sounds naive and it was. “There can be community corrections.” “We
will be able to reform the juvenile justice system.” That, I think, was one of the saddest lessons I
learned from experience. I was very heavily into the juvenile field then. Perhaps there was some
connection to the fact that I was bringing up kids and felt a certain simpatico to this area of the
law but I got very involved in the local juvenile court system, both on the D.C. Crime
Commission and the National Crime Commission. Later on, I picked it up in Legal Services.
We really did think that men and women of intelligence and good will could sit down
together and produce the answers. The juvenile corrections system, as I see it now, is fully as
bad or worse than it was at that period. I don’t think we made a dent in it for all our work. Not
to say it wasn’t worth trying but we really did have that notion: We can solve the corrections
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problem; we can solve the court funneling problem; we can solve the community policing
problem and professionalization of the police. And some incremental gains were in fact made,
but we didn’t begin to solve the basic problems. Rarely will you ever solve deep-rooted social
problems by commissions.
Mr. Pollak: The D.C. Crime Commission report must have come out early in
1967 –
Judge Wald: It came out in January 1967 –
Mr. Pollak: Right, and then I had responsibility for implementing the
recommendations with respect to the police department from the White House and there were
many reforms that were put in place that I think were successful then and must still have the
legacy –
Judge Wald: Yes, the professionalization of the police forces in many urban cities,
I think, was one of the stronger recommendations in these reports that got done. I think
corrections did the least best, especially as to helping the juvenile offenders go straight, and there
is a real question of how well the court reforms did in overcrowded metropolitan courts, how
successful were they. Maybe they’re somewhat better but I don’t think we made any qualitative
leap in the way cases are disposed of.
As to prevention, I don’t think we did anything significant in prevention. That’s, of
course, a problem of the whole society.
Mr. Pollak: What do you think was the source of the inadequacy of the
approaches to the juvenile problem? Did the commission recommend that – ?
Judge Wald: Well, I don’t know that what we recommended was wrong. But
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sometimes, in retrospect, we were naive, I think.
In re Gault came out in this period. That was a big legal case which decided that even in
juvenile court young offenders have certain basic legal rights before they can be sent away. Abe
Fortas was the author of the Supreme Court opinion. There was a great preoccupation, perhaps
an over-concentration, on the legalization of the process. I think it was necessary but not enough
to bring about better results.
There had been much too much sloppy sort of, “in the best interest of the child we can do
anything we want,” before then in the juvenile courts. But the harder question was, once you go
through the nicer legal process of finding them guilty, what do you do with these kids who don’t
have any kind of decent family background; who don’t have any education or skills; who don’t get
along in school, are out on the streets most of the time; for whom there aren’t any meaningful
employment opportunities, most of whom are already in trouble with the law? The services for
juveniles that were available then were bankrupt, whether they were the training schools, the socalled breeding schools for crime, or the relatively pallid kind of social work services that existed
in the community. There was nothing to grab these kids.
There’s obviously nothing original about that conclusion. Both the D.C. and the National
Crime Commissions had long reports about the variety of social services that would need to be
set up for juvenile offenders and I don’t think we were necessarily wrong about any of our
prescriptions. Actually, I don’t know if we were wrong because they never got set up. They had
to compete for limited budget resources with every other need of the community and they never
got done. The social services for troubled kids, from what I read in the paper, are no better now
than they were 30 years ago, when we were writing those reports. I still have an honest doubt in
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my mind about whether a child who is really deprived in the earliest years of any kind of close
meaningful relationships with parents, or parent substitutes, can be compensated by any atdistance professional-type services, the “kindness of strangers,” as it were, even if we were
willing to pay for those services. I mean, I don’t know. In the meantime we have had the whole
drug epidemic which just brought things to a climax. The juveniles we used to be worried about
back in those days stole cars and broke into schools, or shoplifted. They didn’t do heavy drugs,
crazy, bizarre assaults, murders or horrible rapes, gang killings. There were gangs but I don’t
think they committed the amount of gratuitous violence, almost the kind of “Clockwork Orange”
escapades that you now see in so many juvenile crimes.
The 1960s was basically a hopeful period. Jim Vorenberg was perceived as a
conservative person when he took over the National Crime Commission. I remember his
reputation was not as an outpouring, bleeding-heart liberal, but rather as a tough boss. But yet the
National Crime Commission report turned out to be quite a liberal, progressive document, and at
one point Jim said that when you got down to it, the conservatives had nothing to offer. Now, I
will say the conservative philosophy came roaring back in the ’80s, and they did have something
to contribute like sentencing guidelines and “just desserts” punishment. Conservative ideas like
that became the order of the day, so in fact they were not bankrupt. Whether their ideas were
right remains to be seen.
The crime commissions ended in 1967. Then I worked out of Dan Freed’s office for the
next year, trying to implement various recommendations in the D.C. Crime Commission report,
including trying to work on the juvenile recommendations. We had endless meetings trying to
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get the local juvenile services in some kind of alignment with our recommendations. Most of it
never came to pass, but we did work at it.
Now, comes the election of ’68. Have I got my years right?
Mr. Pollak: You have –
Judge Wald: Okay –
Mr. Pollak: Johnson drops out. Humphrey runs –
Judge Wald: Right and Nixon wins. Okay. Dan left the department very shortly
thereafter and went on to Yale. Don Santerelli came in to head what used to be Dan Freed’s
Office of Criminal Justice. I think it kept the same name but it became a kind of think tank for
the Justice Department and they went off in several new directions, including, interestingly
enough, the Court Reorganization Act of 1970 which was designed, among other things, to
separate the two court systems to get rid of the Bazelonian influence on criminal justice and to
leave the local courts to go their own way. That law, though, also created the D.C.-integrated bar
with which I had strong connections in the ’70s when you and I worked together. It also laid the
groundwork for a reincarnation of this court as a new national administrative law tribunal, by
taking away the criminal justice certiorari jurisdiction from the local courts which had been a
kind of centerpiece of this court’s jurisdiction. Getting rid of the local court review left a vacuum
which Congress began to fill by giving the D.C. Circuit Court of Appeals sometimes exclusive
but almost always concurrent jurisdiction in the whole batch of new environmental and consumer
legislation that came in the ’70s. Anyway, I no longer had any connection with the new Justice
Department.
Mr. Pollak: Under John Mitchell –
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Judge Wald: I did not. In fact, that period marked one of the big switches in my
professional life. If you live in Washington, you often think of your life in terms of
administrations; it isn’t simply whether or not your favorite candidate is in but your whole circle
of colleagues, your whole professional working relationships change. I certainly was no longer
an “in” person in the Department of Justice so there was a real question of what I would do with
my life at that point.
My kids by now were all in school. I didn’t really have professional roots anywhere. The
D.C. Crime Commission, my prior work on bail, had all been episodic.
I remember this time as a low point in my life. I remember sitting on the beach at Bethany
in the summer of 1968 feeling I don’t know what I was going to do and I couldn’t not do anything.
I didn’t really know where to go. I had nothing to offer in private practice at that point. Who’s
going to take a woman who was 40 with no experience in private practice? Quite frankly, I didn’t
have any great yen to go back to private practice, anyway, but the government was no longer an
option. There was this feeling of, What am I going to do now? It was the summer of the famous
1968 Democratic Convention in Chicago.
Anyway, what I finally ended up doing was going back to square one. I volunteered to
become a regular part-time – part-time in the beginning although it quickly developed to fulltime – legal services attorney. No special privileges or positions. I didn’t even know the people
working in the D.C. office. They were all 10 and 15 years younger than I was. The
Neighborhood Legal Services Program had a test-case unit which was run by a very bright young
man named Larry Silver who now works with the Sierra Club Legal Defense Fund. There were
about seven or eight litigating lawyers in it; I certainly did not have any comparable experience.
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The only time I had been in a courtroom since I got out of law school was in the ’68 riots when
they asked lawyers to come down and represent people arrested for looting. I represented two
criminal defendants who were picked up in the riot, but only through arraignment. In one case, I
got the charges dropped because I checked the records in the precinct where he was arrested and
the policeman had gotten him mixed up with somebody else so they dropped the charges, and in
the second case, I got the defendant released on his recognizance but they indicted him and since I
did not feel capable of defending him at trial, I found someone who was. That was the sum total
of my courtroom experience.
So, I volunteered to do part-time work for Legal Services and I remember people like Dan
Freed saying to me, “Why are you doing part-time Legal Services? You’ve been on the Crime
Commission. You’ve written two books.” Well, the question was, was I going to do that kind of
policy writing for the rest of my life or was I finally going to get some hands-on legal experience?
Nobody asked me to edit Supreme Court briefs or anything like that so I really had to go back to
square one. And going back to square one then, as I say, meant working with people 10 and 15
years younger than me; I was sort of an anomaly.
But, anyway, I did it. Larry Silver, the head of the Law Reform Unit of NLSP, thought
that my coming was a good deal for them. I came pretty cheap and he was a nice guy. He had
been wanting to do some kind of systemic reform work as part of the test-case unit. So the first
couple of things I did – this was in ’68 – I looked at the whole truancy system (they had a lot of
those kind of cases in legal services then) to see what the enforcement practices and remedial
services were. I also did some work on subpoena fees for poor people called as witnesses.
Basically the kind of empirical legal research I knew how to do. By now, I did know how to
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write a report. But gradually I managed to maneuver myself into real courtroom work. I went to
the main NLSP office and just did anything they wanted me to. I didn’t have my own office. We
were on Fifth Street above the bail bondsmen. I had a desk over in the corner with three other
people. No secretary either. But I got to know the people and what was going on. Florence
Roisman was there. She was doing housing reform. Mary Beth Halloran was doing consumer
cases. This was the era when legal services was bringing first-wave cases and winning them. It
was pre-’70 court reorganization and although you had to bring these cases up through the local
courts which were then quite conservative, you could petition for review over here in the federal
system.
Mr. Pollak: The circuit court –
Judge Wald: Yes and this was the era of Judges Bazelon, Leventhal, McGowan,
Robinson, Wright, okay. All of our good cases got taken up over here.
What happened within months is I got onto the real work of the office. The office was
obviously understaffed. There were five or six good, juicy, wonderful test cases which I
volunteered to help out on and although at first I had to ask people how to file a paper in Superior
Court, pretty soon I was doing it routinely. I loved that period, too. I loved working with
Florence, Mary Beth, Maggie Ewing, who was over there in health law; it was just a wonderful
bunch of people and we had such highs during the two and a half years I worked in Legal
Services. By the end of the first year I was arguing over here in the court of appeals the first test
case challenging the fee requirement for indigent women in divorce cases. We won it over here.
Remember Joe Ryan who used to be a judge of the Superior Court; he had ruled no woman could
get a divorce in forma pauperis. They would not waive fees for a divorce, only for a separation.
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And Legal Aid would not represent a woman for divorce, only for separation. So when Legal
Services came in this was the first time that poor women could be represented free of charge to
get a divorce from husbands who had abandoned them years before. The Superior Court rule we
challenged required them to pay a $100 fee up front, deposited with the court, to pay the fees of
the other attorney in case the court required her to pay the other side’s costs. So, even if you had a
Legal Services attorney representing you, in case you lost you had to lay down a deposit for the
other side’s attorney and Joe Ryan would not waive it. So we brought that test case. I argued it
here in the court of appeals before Judges McGowan, MacKinnon and Robinson and won it and
MacKinnon wrote the opinion. This was back in ’69. Anyway, that period was great.
I also worked with Florence Roisman on the warranty of habitability case. I didn’t argue it
but I wrote a lot of the brief. We also got the residency requirement for St. E’s declared
unconstitutional by Gerry Gesell on a three-judge court. And then there were lots of more minor
kinds of cases I worked on.
It was a high in the sense that I thought it was great to be working in the poverty program,
to be actually having clients, hands-on experience. I loved the people I was working with and I
got a kick out of walking into that really impoverished office where people had posters stuck on
the wall. I think I did well. I earned my keep. Anyway –
Mr. Pollak: Did you think that you were inhibited in performing by this
long period in which you really were not part of the adversary process?
Judge Wald: Well, only to the extent that I had to do a lot more running to catch
up. I did not feel that my basic intelligence had rotted and I knew where to go to do legal
research, although, let me tell you, we had no library over there and Warren Juggins, who is now
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our Assistant Circuit Librarian here at the court, used to be the D.C. Bar Librarian. Remember
the D.C. Bar library was here?
Mr. Pollak: Yes –
Judge Wald: I used to come over here and write my briefs at the back tables here
because we had no kind of library over there at NLSP. Warren always let me do it and we still
joke about it. He knew what I was doing; I would just go to the back bench and write my whole
brief over here in the court of appeals library.
Mr. Pollak: In long-hand –
Judge Wald: Well, I shared a secretary with three other lawyers over there plus we
only had the old mimeograph machines for making copies. We were always rushing to file at the
last minute. But the caliber of our work was good. Florence was tops. Maggie Ewing was tops.
Larry Silver was an excellent lawyer. Still is. So it was that wave of Legal Services where you
had the best and the brightest. A lot of the attorneys out in the field were very good, too. Susan
Shapiro had gone from being Jim Vorenberg’s assistant at the National Crime Commission to
running one of the neighborhood offices out in the field. Roger Wolf, who now teaches at the
University of Maryland Law School, ran one. Dick Wolf, who was Vic Kramer’s assistant at
Georgetown for their public-interest program, ran one of them. You just had very good people.
That was my first hands-on experience in the law and in retrospect it was probably one of
the smartest decisions I ever made to move out of policy and into actual practice. Among other
things, when the time came much later for me to apply for this judgeship, certainly for the ABA
evaluation, it was very important whether you had actual courtroom and litigation experience.
Mr. Pollak: Whether you’ve handled cases?
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Judge Wald: Yes, whether you handled cases. It may not have been a sine qua
non but it was awfully important. The only persons I know around my vintage for whom
exceptions were made were one or two academics, like Lou Pollack, the former Dean at Yale. I
think being a woman and coming from my background, it was really good to have had actual case
experience and NLSP was the way I began to get it. Still, I was always having to explain to
people why in my forties I was doing this really low-level, nitty-gritty stuff –
Mr. Pollak: Mostly a courageous thing to do –
Judge Wald: But it was one of those things that I never regretted and very quickly
it turned out to be fun and exciting –
Mr. Pollak: It took you through 1970 or into 1970?
Judge Wald: Into 1970; at that time there was a very restless period going on with
the whole poverty program in Washington. It spilled over into Legal Services, unfortunately.
You would have hoped that, like the Public Defender, the poverty program would have tried to
isolate the legal branch from local politics, but that didn’t happen. There was a lot of ferment
going on about who controlled the program, which community elements controlled the program.
There was always a community leader of the Legal Services program, who was not a hands-on
lawyer. Junius Parks from Howard Law School was one such and he was fine. But NLSP
changed hands around 1970 and there was a push for local community people to take over this
program. And the fact was that we didn’t have a lot of Black lawyers in the program. I didn’t do
the recruiting for the program, so I can’t tell you whether they were available in sufficient
numbers or not. But there was a heavy push to get more Black lawyers into the program and to
take over the leadership of the program, to make sure it happened. While I agree the goal was
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understandable, the way in which it was carried out was not so nice. There were, it was fair to
say, some rabble rousers who came in and started libeling, really libeling, some of our best
lawyers. They talked about getting rid of all the “white bitches” in the Law Reform Unit, and it is
true there were a lot of white women like myself in the staff of that unit. I was never targeted
personally by any of this, but it was not a pleasant atmosphere to work in. They had meetings in
which people blew smoke in other people’s faces, and shouted, and called names. Anyway it got
to be a very ugly scene. So the head of our program (by then Larry had left and Dick Carter, now
working for the ALI, had taken his place) resigned and several other top-notch lawyers in the
program resigned as well. The notion was that, “If you want the program, okay, take it over, etc.,
and also, I don’t need to be subjected to this abuse.”
Just about this time when all my friends were leaving, I was asked to do something else,
as well. I had been doing some work for the Ford Foundation with whom I had had no previous
contact at all. It started with Herb Sturz, who was head of the Vera Foundation. I was already
sitting on the board of the Vera Foundation, coming out of our work together on the bail reform
program. I worked with Herb on several of his other programs, including an alcohol rehab
program, and a methadone maintenance program. Herb was a great person for organizing, taking
an idea and making it happen. He had contacts with all of the New York people, including the
courts and the police department. Pat Murphy was then the Chief at the New York Police
Department. Frank Thomas, the current president of the Ford Foundation, was up there as his
Deputy, and Judge Botein was head of the state court system, working closely with Herb.
Why I was useful, was that Herb was not a paper person. He would get an idea for a
reform in the justice system and he would make the contacts for support and figure out how to
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make it work and pick the right people to do it. But you always had to have a protocol. You
always had to have a piece of paper explaining the background of why you’re doing this project
and what you hope to accomplish, especially for the funders. But also to take with you to the
meetings to give to people so they can talk about it and write articles about it. So you know, I did
a lot of this. Burke Marshall was the Chairman of the Vera Board, and Dan Freed was on it.
Anyway, Herb had connections to Mike Svirdoff who was the vice-president of National Affairs
of the Ford Foundation. Mike was looking for some kind of project for the foundation in the field
of drugs. We were moving into the so-called heroin epidemic of the early ’70s. Herb, in talking
to Mike, said, “Why don’t you talk to Pat and Peter Hutt.” Peter had done the chapter on
alcoholism in the National Crime Commission Report and knew a lot about alcoholism and
addiction. He successfully brought the Easter case challenging arrest for public intoxication in
the District of Columbia.
Peter and I worked up a very brief, top-of-the-head description of a state-of-the-art policy
study project that Ford might do to influence public policy on drug abuse. Mike was very grateful
and the board bought it. Then, they decided they wanted us to do this study. Peter was at
Covington & Burling and he was not about to quit, or even, to take a leave of absence to do this.
But he wanted to do it, so we decided to work together on this. At this point, Legal Services was
coming apart so this was a convenient harbor to sail into. So Peter and I and Jim DeLong set up
office. Peter would work on the project part-time at his office. Jim and I did it full-time. It
marked the first time I ever got decent wages for a full-time legal job since I left Arnold & Porter
almost two decades before.
Peter, Jim DeLong and I put together this book called Dealing With Drug Abuse, a
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credible effort and well-received. This was 1970, but it attempted to take a rational look at what
was going on then in interdiction, prevention, treatment, education and what we knew about the
various addictive drugs and their effects. The New York Times said it was one of the best
analyses of the problem that year. The Ford Foundation had us go all over the country and visit
drug projects and talk to experts and field people.
In the course of this, Mike had Peter and I come up to brief the board of the Ford
Foundation about the project, and their wives as well. At that point, the Ford Foundation used to
have special events for the wives. Subsequently, when Dorothy Marshall and I went on the
board, they were abolished.
Mr. Pollak: They were really for spouses, or just the women?
Judge Wald: Spouses were women until Dorothy and I came along. And our
husbands were not too interested in spousal events. And Mary Bundy, by now this was the early
’70s, said, “Look I’ve got a career, too. I’m going to social work school. I think this is silly. I’m
not going to do it any more.” But that came later. We wrote the book. The book got nicely
reviewed. It suggested setting up a drug abuse council which was subsequently done. I knew I
did not want to run that. I didn’t want another long-range study project.
The board apparently liked me from the brief appearance and Peter Hutt acted as a very
good advocate for me and without even really running for the office, I was asked to join the board
of the foundation. At this time, 1972, the Ford Foundation decided it had to have some women
on the board. Their first choice was Shirley Hufstedler. There was a ruling from on high,
whether from Chief Justice Burger or from the Code of Conduct Committee, I’m not sure, that
she couldn’t do it as a federal judge. Even though Charlie Wyzanski had been on the board
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the last 20 years while he was a district judge. Charlie offered to resign when it was said Shirley
couldn’t do it and Justice Burger wrote him a letter saying, “Oh, no, you’re part of history, Charlie.
It’s okay for you to stay on but Shirley can’t go on.” We always referred to it as “The Rule in
Shirley’s Case.”
I don’t know the other people they considered. They ended up with me and Dorothy
Marshall, an educator, a very good woman whose area was foreign affairs, Latin America, and
who was a vice chancellor at the University of Massachusetts, having previously been at Bryn
Mawr. We were the two first women board members in the foundation’s history.
That was a part-time avocation through the ’70s with the board, but it was an intense
experience.
Mr. Pollak: How long did you serve on the board?
Judge Wald: Five years. I left when I went into government service in 1977. This
was a terrific experience for me because there were a lot of very impressive people on the Ford
Foundation Board. Mac Bundy was the director, Alex Heard was the chair of the board; he was
the chancellor at Vanderbilt University. Bob McNamara was still on the board. Henry Ford, III
himself was on the board. Bill Donaldson, who is now head of the Stock Exchange and ran the
Yale School of Organization and Management. Dorothy, who came on the same time I did, was a
really fine person, and a good friend. There was one of the heads of a Black college down south,
Vivian Henderson. Andy Brimmer was on for a while. These were heavy hitters. And Charlie
Wyzanski and I eventually got to be very good friends.
Mr. Pollak: How often did you meet?
Judge Wald: We met for four days, four times a year and you were not absent.
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This was a board you didn’t not come to.
Mr. Pollak: Did you have committee responsibilities, too?
Judge Wald: A lot. We met for four days at a time. There was an immense
amount of homework beforehand but it was fascinating stuff. We were all on a couple
committees. I ended up going to more meetings and being ex-officio on more committees than I
was actually assigned to. I was on the National Affairs Committee. I later led the Environmental
Committee. They put me on the Finance Committee. I cannot imagine why, perhaps because it
looked good to have a woman on the Finance Committee. I really was not up on investment
finance; Roger Kennedy was the head of finances, he has since been head of the Smithsonian
Institute of Science and Technology, and is now Director of the National Park Service.
Actually, I ended up playing kind of a useful role on the Finance Committee because I
would ask all the dumb questions which everybody else assumed the answers to, and as to which
occasionally there were not good answers in reality. A couple of times I undid golden handshake
deals, or at least raised questions about them. Also, the proxy fights came up in that committee.
The business about how to vote our proxies and whether we made investments in South Africa, I
ended up chairing a small proxy committee which decided how we were to vote our proxies
which in some cases were of considerable importance, due to the size of our portfolio. I also got
quite involved in the International Committee. I was not placed on it originally because my
background was not international. The sum of my international experience was a trip to Europe
one summer as a student. Dave Bell, who had been budget director, and had worked closely with
Carl McGowan in the Adlai Stevenson campaign, was the chair of that committee. It turned out
to be the most interesting committee of all because Ford was spending the majority of its
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money on foreign projects. I took a trip in the summer of ’74 for five weeks going around the
world visiting Ford Foundation projects in the underdeveloped countries. Starting up in Niger
and the Sub-Sahara and –
Mr. Pollak: Sounds fascinating –
Judge Wald: Then to Nigeria and down to South Africa. We were supporting
what reform efforts we could find in the Union of South Africa, all-Black projects or projects that
were trying to integrate. And a few free speech-type projects. I also went to Kenya, then over to
India, then to Thailand, South Vietnam where I spent a week during the window period after the
American troops had left. The summer before the North Vietnamese came down and took over.
Japan –
So the Ford Foundation was a great experience. For one thing it gave me a lot of
confidence. I found out I could work compatibly with these people who were leaders in their
fields, and certainly not all bleeding heart liberals; I could hold my own. Admittedly, my job was
not dependent on them, but they had respect for me. I also liked them. I learned that really great
people are not arrogant people. Irwin Miller was one of my favorite people on there, from
Cummins Engine. Actually, as I was leaving the board, he asked me to go on the Board of
Cummins Engine but I could not because I was going into government then in ’77.
But I enjoyed my stint with them and I grew to like and respect Mac Bundy a lot at
that period in his life. I must say I know only what I read about what he did before in the
Kennedy-Johnson administrations, but I do think he tried to lead the foundation into many
areas where it would be on the cutting edge, and make a difference. This was the period we
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were the main support of the public interest law movement. In many cases, we were practically
their sole support.
Mr. Pollak: Right. I’m aware of the support that came for the Lawyers
Committee for Civil Rights, for example –
Judge Wald: And environmental firms before they got on their feet and for many
years the Children’s Defense Fund.
Mr. Pollak: Do you have much consciousness of the foundation today?
Judge Wald: Very little, very little. For a few years afterward, I went to the
annual ex-trustees’ dinner in December in New York, but it always turned out to be the same time
as the ALI where I’ve become much more active. I don’t know anybody on the board anymore.
Bundy and his lieutenants left in the early ’70s. I knew Frank Thomas in his early career but
haven’t seen him much. Nobody is now left on the board from my days. The last two years I
went to the dinner, I had that feeling you get at various times in life, I just stayed at the dance too
long.
Mr. Pollak: Sure, I know it.
Judge Wald: I got the distinct feeling –
Mr. Pollak: I cut out of those things –
Judge Wald: Yes. You can’t go home again.
Mr. Pollak: You passed sort of without comment the time you were at the Center
for Law and Social Policy –
Judge Wald: Yes, that’s the remaining piece. I should say first that in ’72, for the
record, I got called by Jim Flug. This was the McGovern-Shriver campaign and Jim Flug was
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working for Ted Kennedy then. He had also clerked for Judge Fahey. During this entire period –
I’m sorry to have so many strings here – I was in that coterie of Bazelon speech writers. There
were people out in the community that he was always calling on for speech drafts and we got to
be this extended family. Bazelon was interested in some juvenile law matters, so I drafted a
couple of speeches for him. Jim was his colleague Judge Fahey’s clerk one year, I think around
the time of the D.C. Crime Commission. Anyway, our paths had crossed.
In the summer of 1972, Shriver had just come on as a vice presidential candidate because
Eagleton had been dropped. I had no contact with McGovern, as such. Jim called me up one
night and said Sarge Shriver is interested in getting a group of people to talk to him about issues
out at his house this weekend. So I went out with Jim; lots of other people out there too. Out of
that meeting came an offer to run the issues office of the Shriver campaign. Doris Kearns did it
for a month or so in the summer but had to get back to her teaching, so I came in and relieved her
in August and went on through the campaign.
That too was an interesting experience. Mickey Kantor was heading up campaign
activities. Lee White was there, and Tersh Boasberg. But they were in the front office. They
were the people with the line to the plane. I was in issues, getting out the briefing books and
speech drafts, among other things. People in my office were interesting. Let me just mention,
because of what they’ve gone on to do later. I did not hire them. They were already there when I
took over. It was clear they wanted a woman to run the office for political reasons; even back
then I think they may have offered it to Toni Chayes but she, at this time, was going back to
square one in her own career as I had done earlier and was clerking for Charlie Wyzanski as a
prelude to practicing law, even though she too was in her forties. She too had five kids, had been
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through various career and mother incarnations and was now looking to get back into actual law
practice.
But among the people in the ’72 issues office were Rich Parker, now a professor at
Harvard Law School, Jonathan Marks, who runs EnDispute, Mark Furstenberg, who bought and
ran a steel company and now –
Mr. Pollak: runs the bakery. He had been at OEO.
Judge Wald: Yes. George Frampton, who’s since been the head of the National
Wildlife Federation and is now a deputy to Bruce Babbitt at Interior, Nick Eddes, who was my
counterpart in the Labor Department in the Carter administration; and a woman, Courtney
Adams, who became, during the Carter administration, the head labor economist, and Bill
Maynes, who was our foreign affairs person, who heads up the Foreign Relations Council now. It
was a high-powered group.
Now, I’ve got to tell you, one always has jobs in life where you feel you didn’t really do as
well as maybe someone else could have. I felt like that during the Shriver campaign period for
the following reasons. I worked like a dog. I worked 24 hours a day. I really didn’t have the kind
of specialized policy background in a lot of fields I probably needed. I was pretty much at the
mercy of the experts unless something just didn’t make sense on its face. There was no way I was
going to be able to second-guess Bill Maynes on foreign policy or Courtney on labor statistics, so
I always had the feeling you have sometimes in new jobs where stuff is coming in front of you
that you’re understanding it at one level but not really as deeply as you should. You just don’t
have the time to get into anything far enough. We’re talking now about a 3-month campaign
period between August and November and a losing campaign at that.
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Mr. Pollak: Right. But, were they using your product?
Judge Wald: Yes, they were using our product, but I never felt it was my product,
particularly. I did a few speech drafts on my own and I did edit, review and organize others’
material, but I never felt that I was in control the way I had been in previous jobs where you’re
doing the concepts, research, and drafting yourself, when you’re writing the brief, or you’re
running the operation. It was more like a managing, like a traffic cop kind of thing. I guess it’s
called administering.
Mr. Pollak: You were a second-story operator –
Judge Wald: Yes. I never felt ground-floor. Sarge was very pleasant, but I
basically never saw him. He would get on the plane on Sunday night and go on these trips and he
wouldn’t be back until the next Friday and then we would have some weekend meetings. The
people who were on the plane had a much closer relationship with him. Jerry Shastack, the ABA
lawyer, Novak, the conservative Catholic columnist, were on the plane. I was never a plane
person. That wasn’t my job. My job was to get the briefing books ready back home.
But I did get an understanding of what is involved in running a campaign and they say
everyone has one good campaign in them. I knew I could live and die happy if I never went
through another campaign. I mean the place was chaotic. We were losing bad. There was
literally a “bomb” scare at national headquarters every other day. We were at 1701 K, the main
headquarters. It was just wild. The candidate would meet somebody someplace in Oklahoma
and say to the person, You’re wonderful, you’re terrific. Would you write a speech for me? The
person would ship the speech to us and we would have to handle the rest. If it didn’t get used –
and most didn’t – we had to explain why or take the blame.
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By November, it was really looking black. One Sunday near the end, they went out to
pick up Sarge at that estate they had off Rockville Pike to drive him to the plane and he was in his
pool and he looked up and said, “I’m not gonna go.” I mean that was the mood in the last couple
weeks. He said, “I’m just not gonna go.” Of course, he eventually did go but the notion of getting
on the plane and going out and doing it all over again in the face of inevitable defeat even got to
him. Everyday, stories of new disasters would come back.
I remember the Woodward and Bernstein stories were just beginning to break about “dirty
tricks,” which essentially led to the Watergate scandal. Nobody dreamed of the extent of the
wrongdoing during the campaign. But we were desperate to find something that would unravel
Nixon’s winning streak. We were calling the journalists all the time asking for information.
They, of course, behaved exactly as journalists should. They wouldn’t tell us a thing, which was
absolutely the right thing. We were scouring around on our own. I remember being up at the
Library of Congress reading every newspaper trying to find clues that would lead to Nixon and
his crew. We knew something was there but it was too early to get at it. In the end we couldn’t
get it. Remember this is November 1972. By March 1973 Nixon is making his famous navelgazing Watergate speech.
I remember we all gathered the night of the election at what is now Chris’s Steak House,
but was then Augustino’s. It was so bad. On the plus side, I did learn the ups and downs, just the
terrible demands of political life, of a political campaign, even at my headquarters level.
Although by now my kids were all in the upper grades and two were away at school, the ones at
home finally said to me, “Listen. This is too much; we don’t know what’s coming or going.”
Fortunately, it was all over in November.
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Mr. Pollak: That was November –
Judge Wald: ’72. Right after the campaign, I went to work for one of the public
interest law groups, the Center for Law & Social Policy, which then had people like Charlie
Halperin, Bruce Terris, and Jim Moorman in it. I had talked to them years before when they first
set up the Center and had almost gone with them then, but finally opted to go to Legal Services
instead.
Mr. Pollak: Right. That must have been when it was a competitor for your
services?
Judge Wald: Right. And so now, when I had finished with the campaign, I really
had nothing going on and they said come on over to us. Joe Onek was just coming off the
Brennan clerkship about that time. At various times Si Lazarus and Ben Heineman were there.
Again, we were a cluster.
The happiest periods in my life have been the periods when I was working with clusters of
bright and talented people whose values were basically the same as mine. I mean, you don’t agree
on everything, but you’re working toward some goal that you all think is worthy of your efforts –
Mr. Pollak: And they’re highly capable people –
Judge Wald: Highly capable people and fun to be around. I mean Charlie had his
idiosyncrasies, but overall he had tremendous energy and enthusiasm and was good to work with.
He really had a lot of chutzpah and he needed it to get the whole Center going. So, I went over
there and to make a long story short, within a couple of years there was a spinoff from the Center,
called the Mental Health Law Project, which I joined. One reason I did that was the Center was
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getting Ford Foundation financing and, although I wasn’t in government or anything, I had a
feeling there might be a potential conflict there on my part, actually. So as soon as I joined the
Ford Board, I relinquished my salary from the Center. So, when the Mental Health Law Project
spun off, it was understood that it would not ask for Ford financing and they didn’t, the whole
time I was on the Ford Board. I never worked for a project that was getting Ford financing.
I started the Mills case originally at the Center for Law and Social Policy and then took it
with me when we spun off the Mental Health Law Project with Paul Friedman and Bruce Ennis.
We worked in conjunction with the New York ACLU. Mental health was very broadly defined
for purposes of our docket. We had a lot of juvenile law test cases that I worked on which
technically probably weren’t mental health cases but no one objected. Mills v. Board of
Education involved education for handicapped children. There had been only one case in the
United States up in the Third Circuit in Philadelphia which ruled in the case of mentally retarded
children, that they had a right to some kind of publicly financed schooling. They couldn’t be kept
out of the public school system because of their handicap. In Mills we also worked in
conjunction with Stan Herr and Julian Tepper from the National Legal Aid and Defender
Association which had a little test case unit that only lasted a few years. This was often the
pattern in Washington in those years – people from several of these public interest law groups
working together. There was enough work and credit to go around. We all sort of pooled our
expertise.
In Mills we brought this very broad case seeking to establish that all children with any
kind of disabilities, be they physical, emotional, mental, or retardation, had to have some kind of
schooling that would realize some kind of potential growth or advancement for them. It sounds
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like a fairly elementary proposition but it was totally unestablished in the law at the time. We
drew Judge Waddy in the Mills case, who turned out to be a person who understood what was at
stake.
I remember that one of the clients we had was 12 years old and had never been in the
inside of any kind of school. Locked back in a room where his mother had a sign on the door
saying, “Beware of child,” or something equally awful. So we had some pretty far out clients and
I can understand some of the reluctance of the school system on accepting responsibility for them.
The school board here was pretty good, though. They did not violently oppose this lawsuit. They
were the defendants technically but in all honesty they played their defensive role fairly softly.
But the Corporation Counsel did defend the suit.
Mr. Pollak: And you were in Federal District Court before Waddy. Did you
go through a trial?
Judge Wald: It was eventually decided by summary judgment, but we went
through enormous amounts of depositions, pretrial discovery, and several courtroom hearings.
First off, we had to argue against a motion for dismissal. John Suda, who is now a judge on the
Superior Court, was the Assistant Corporation Counsel. Julian Tepper, Stan Herr, and I were the
counsel for the children. We did, I think, a terrific work-up, of depositions, affidavits from the
parents of all our clients, expert witnesses.
Mr. Pollak: Under what were you claiming?
Judge Wald: Well, we started out claiming both constitutional and D.C. statutory rights. Judge Waddy ruled basically on the basis of the statute, which was fine, because
eventually the Supreme Court ruled there was no constitutional right to an education.
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Mr. Pollak: But you were pursuing this well before there were any handicap laws?
Judge Wald: Oh, yes. Our case led the way into the federal statute. But there was
a D.C. law on the books which appeared to apply to the education of all children, though candidly
it was a bit of a stretch. We really worked hard and prepared a tremendous case. The thing I
guess I miss most in the last 13 years is that sense of activity. The three of us were back and forth
to each other’s offices 15 times a day. That feeling of someone out there with you. We got amici
from the National Association of Retarded Children and other mental health organizations. We
had ongoing alliances with many of these professional organizations. They used us and we used
them. We got our experts from them. If they wanted some kind of a legal principle tested, we
would do it for them, presuming it made legal sense. This was a period when organizations that
had been fairly passive were beginning to get active on litigation. We had the Orthopsychiatric
Association, the American Psychological Association, sometimes the American Psychiatric
Association, and the National Association for Retarded Children. We had stables of clients who
would produce experts, honest experts.
Eventually we got a decision from Judge Waddy which said that the D.C. school system
had to give some form of individualized education to all these children. And, the D.C. School
Board never appealed it. This was a period, believe it or not, when people wanted to do the right
thing. So in a couple of years the expenditure on so-called special children went from something
like $100,000 to $12-13 million. It became an overnight priority. Some people might one day
say it was at the expense of the mainstream children. I never had guilt feelings about it. These
handicapped kids deserved some chance.
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After the judge ruled in our favor, we negotiated a consent decree and set up
individualized hearings with hearing officers to decide on the appropriate placements for these
children. Some of these hearings are still going on.
After a couple of years, Representative Brademas began hearings on the Education for All
Handicapped Children Act. I went up to the Hill and testified on it and talked about our
experiences in the Mills case. By now, Tepper had gone into private practice. Herr had left his
project as well and I was really left with the implementation burden of the case. I went to the
hearings. I talked regularly with the master who was supervising the hearings in the D.C. school
system. I talked to school groups, and parent groups, for a couple of years. Accounts of our
experience along with Pennsylvania’s produced a lot of the legislative history of that Act. When
the Supreme Court came down with a key ruling on the Act years later, one I wasn’t entirely
thrilled with since it limited the scope of the Act, it talked about the act being based on the
experiences of the D.C. and Pennsylvania systems. The Act itself was a good thing. It
supplanted the decree to a large extent but it also picked up the whole individualized hearing
process that we had been working with for several years and made it a condition of federal
monies.
I’ll just quickly mention two other cases from that ’70s period. One was a St. E’s case
where we argued for the least-restrictive alternatives for mental patients. The aim of it was to get
more public resources out of asylums and into community services by getting a ruling that people
couldn’t be kept in total asylum situations if they could be cared for out in the community without
danger to themselves or others. At the time we brought this lawsuit, we were in the middle of a
national backlash about letting too many people out of institutions when they weren’t up to taking
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care of themselves on the streets, even if medication left them relatively undangerous. The
AFSCME, the labor union for institutional employees, was very much involved in that campaign.
The AFSCME was generally a progressive union but represented all of the caretakers who were
very much on the side of not prematurely letting people out of the institutions they worked in.
Actually, we didn’t want to let them out on the streets with no services either, but we said
there was a middle ground between keeping somebody locked up in St. Elizabeth’s – not because
they were a danger to themselves or others – but because there were no services out in the
community to tend to their needs and dumping them defenseless into the communities. We
thought that middle ground – insisting, then, the community offer them needed services – was
the right way to go. But again, we’re back in the same dilemma as with juvenile services. I think
we may have had the right solution, but it never happens because the politics of budget-making
don’t allow for the money to be channeled that way.
Ben Heineman, who was one of the brightest young people I ever worked with, and was
then straight out of his Supreme Court clerkship with Potter Stewart, was working at the Center.
He and I brought the St. E’s suit. He was great fun to work with. We’re still good friends. We
brought it before Aubrey Robinson in the district court and we won it. Now, winning a lawsuit,
as you know, is like dynamiting a logjam. It just means some movement begins but the logs have
a tendency to go off in all different directions and it doesn’t mean that everything flows smoothly
down line. So, for another seemingly endless period – actually it’s still going on today in D.C. –
we tried to get money for resources to implement the decree. We went up and testified at
congressional hearings for more money for services in the community. A group was set up to
monitor the decree. When I went into the government in 1977, I left the case and I only know
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what I read in the papers, but it appears that community services for the ex-St. E’s patients are still
almost nonexistent.
We had a social worker at the project, Gail Marker, a wonderful woman. Her job was to
make sure we weren’t the sort of a test case outfit which forgets the welfare of its clients. She
tended to their individual needs, as well as working with the city to set up a service network. She
finally got so frustrated that she went out and got some private money and set up the Green Door
which is now the best service in D.C. for discharged mental patients. Again, the end result fell
far short of our dreams but I think the concept was good.
The next and last case I’ll talk about from this period was the Morales case in Texas. Did
I give you that chapter on Morales from Judge Justice’s biography to read?
Mr. Pollak: No, I don’t think so. I don’t know that case.
Judge Wald: Turman v. Morales. To begin at the beginning: The Youth Law
Center, which was a specialized OEO-funded legal services office that served juveniles in San
Francisco, was run by a young man just back from the Vietnam War named Peter Sandmann who
was contacted by a local Legal Services lawyer named Steve Bercu in El Paso. Steve Bercu
represented kids in juvenile court who were being put into the state institutions by their parents,
the so-called PINS category of runaways and kids who were out of parental control. In the
process of that representation, Steve would follow through and go see the kids after they were put
away, and he was appalled at the state of the institutions in Texas. He thought they were like
concentration camps. He got in touch with Sandmann who ran the nearest sort of specialized
legal service center for juvenile law. They went on a series of forays into the juvenile institutions
around the state and came out with real horror stories. There was physical brutality, but apart
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from the physical brutality, the most terrible deprivations. These institutions were all out in the
sticks. In fact, the story was that each one of them was located near a town where a Speaker of
the House of Representatives of Texas had come from. Places like Gainesville and Gatesville
and Crockett.
At a certain point, they went into Wayne Justice’s court. We’re now at ’71, ’72, ’73.
Wayne Justice’s courthouse in Tyler, Texas. And they managed to get some sort of a writ of entry
because by now the state institution people were not letting them on the premises.
After a few more trips they decided it was time to bring a lawsuit challenging the lack of
treatment the juveniles were receiving at the institutions. They wanted to bring a right to
treatment suit based upon the fact that a juvenile court commitment was not a criminal
commitment and so some affirmative help must be given the juvenile in exchange for his lack of
freedom. The theory relied on the right to treatment cases written by Dave Bazelon in D.C. and
by Minor Wisdom down in the Fifth Circuit. These cases said for mental patients that if you’re
committed not for crime then there has to be some attempt made to treat you so that if you are
treatable you can be released. Sandmann and Bercu wanted this theory transferred over to the
juvenile area, in theory that’s a parens patriae type of operation too, so these kids should receive
some kind of services designed to make them better since the whole underpinning of the juvenile
court system is rehabilitation.
It turned out to be a four- or five-year effort. Our project started working extremely
closely with Peter and Steve. They didn’t have the resources to do it alone. At first Paul
Friedman, who headed MHLP, worked on it with me but he gradually dropped out of it because
he had other things going on. Larry Schwartz –
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Mr. Pollak: By then, was he heading up your project?
Judge Wald: Yes. Paul was. Larry Schwartz, who had been a clerk to two
juvenile judges here, to both Judges Miller and Ketcham and then gone to work at the Public
Defender Service, had now come to the project. He had a lot of experience in the juvenile area.
So Larry and I became the team and we worked very closely with Peter. Again, there was this
marvelous teamwork because nobody was worried about money, there was enough credit, and
everybody wanted the same result.
Initially we all took a tour of all the five juvenile institutions. We had a court order to do
this as litigating amici, a peculiar type of status used in several of these institutional suits. The
initial suit was brought as a class action and Steve Bercu was representing the kids and Alicia
Morales, who was the named plaintiff.
Mr. Pollak: You toured all the places of incarceration?
Judge Wald: Yes. We toured every one of the five and I mean we flew little
planes and drove through hundreds of miles of the Texas landscape to get to these little backwater
places. The institutions – there were five of them – were really quite grim. I’d seen the juvenile
institutions here in D.C. – the ones here just looked sloppy or dirty. But some of the Texas ones
were much cleaner but there was kind of an organized objective cold cruelty to them. It really
took your breath away and I’m not the only one to say this. There was a biography of Judge
Justice which came out two years ago with a whole chapter on the Morales litigation. He took a
tour. He came out with the same impression. The girls’ institutions were so – you saw these
young teenagers, most of whom had done nothing but run away with a boyfriend – there was no
sympathy or sense of anyone caring about them. They were humiliated. They were made
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to – they were left with no self-respect.
One of the great things that came out of this experience for me was meeting a marvelous
woman who was also mentioned in the Justice book. I put her on the witness stand as an expert
witness on juvenile rehabilitation and her testimony played a very heavy role in the judge’s
ultimate ruling. Her name is Gisela Konopka from Minnesota. She’s still alive but she’s retired
now. She had been a young activist, German-Jewish girl in her twenties in Germany, with a
bright career in education. Very early in the Nazi years she was put into a concentration camp
because of her progressive ideas. She was part of that twenties period when a lot of new ideas
were coming to the fore in Germany which were later called degenerate or radical. She spent, I
think, several months in a concentration camp. At one point she told me – she and I got to be
very good friends – that they made her dig her own grave and stand in it. She just waited to be
shot and thrown in, but because of some technicality, they didn’t shoot her. She was allowed to
go back to her cell. Anyway, eventually – this was in the early years of Nazism when they still
used to let some people out – she was released. This was before the total Jewish Holocaust had
begun so when she was let out, she knew she had to get out of Germany. She was keeping
company with a young man, so they got out of Germany together. They ended up in occupied
France, she, a very cultured, very, very bright and educated young woman working her way acting
as a cleaning woman across Europe in order to get eventually to America. They made their way
to England where her husband directed the Allied bombers back to Germany during the war.
Meanwhile, she got to America and managed to get a job and somehow work her way back to
school and ended up heading the Department of Child Development at the University of
Minnesota. In the 1970s she was head of the Orthopsychiatric Association and she was the
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expert witness we used in the Morales case because her field was young women, the adolescent
development of deprived children. And so, she traveled through the institutions with us. First we
took her through all the girls’ institutions and she said to me, “This is terrible for me because I’m
dreaming every night of the concentration camps.” But she was wonderful with the girls. She
would go in and talk to them for hours. They would give her their poems. They had terrible
isolation. Kids were just left, twelve and thirteen year olds, left in rooms with no clothes or
nothing but a nightgown in a locked isolation room for the most minor kinds of rule infractions.
I don’t know that it was vicious cruelty but it was so lacking in any kind of human
perspective. The head of the Texas Youth Services, a man called Turman, had run all these
institutions for a decade and actually they had a usually good reputation outside of Texas. You
would hear them mentioned in these national child conferences. It was unbelievable, I mean,
once you got inside them. The boys’ institutions were the worst. There was outright cruelty there.
They had isolation rooms in which the lights never went out at night. The food was passed
through a hole, and they were run by gangs of the most vicious ones who would indoctrinate what
they called the “fresh fish” into the ways of the institution. There was not only sodomy but there
were vicious beatings going on among the inmates regularly.
Actually, one day during a deposition at one of the institutions, Steve Bercu went into the
bathroom and was beaten up by a couple of these kids who it was clear had been set on him by
the guards. The guards were big and thug-like and had obscene nicknames. It was clear they
were beating the boys regularly. It was pretty awful.
With a year of depositions, I was back and forth to Texas all the time. First the institution
people and even the Texas Attorney General’s office who was defending them thought we were a
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joke although they were worried because of Wayne Justice. After a few depositions and hearings
they were worried and when they realized we were pretty good, they hired a partner from Baker,
Botts named Larry York to lead their trial team. Actually, not a bad guy. He now heads up the
Citizens Board on the Youth Commission, but I think the whole system is better now. Everyone
tells me it’s a lot better. Larry York acted like your sort of homespun Jimmy Stewart type of
country lawyer but clearly head and shoulders above the average.
After the year of depositions, we got ready for trial. This was sophisticated stuff for the
’70s. We got a writ from Judge Justice to put observers into the institutions, not disguised as
inmates, but free to roam about 24 hours a day and observe everything that went on. We put three
teams of experts out of the University of Texas in Galveston, experts in juvenile corrections and
psychology. They lived in the institutions, in the same kind of rooms, ate the same food,
followed the same routine as the kids for two weeks and then filed reports afterwards. Now, this
was fairly new stuff. And to a person, the live-in experts were all appalled. They became our
chief witnesses. We went through a five-week trial in Tyler. It started in early July and I
remember – ever been to Tyler, Texas?
Mr. Pollak: Never. I’ve been to a lot of places in Texas, but not Tyler.
Judge Wald: Well, all I remember is a sun-baked square in the middle of town. It
was also a dry town. No place to go at night even for a beer. You would have to bring your
liquor up from Dallas or drink Coke. The Civil Rights Division had also come in too on the side
of the plaintiffs and they had a couple lawyers down there.
I still remember Judge Justice would say every morning, “Are all the counsel ready?,” and
the DOJ lawyer, Mike Thrasher, who was a big tall Irishman, would stand up in the middle of the
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courtroom and say, “The United States is ready, your Honor.” I can’t tell you the thrill it gave us
to see the U.S. Government on the same side as these kids. It really did make me proud.
Five weeks we were in trial and the judge ran a tight courtroom. We were there before
9:00 a.m. The air conditioning was so heavy and I hadn’t brought down sufficient sweaters that I
was shivering all the time. This was purposeful to keep you awake until 7 every night and the
trial went on on Saturdays as well. He never let up for a second.
Mr. Pollak: How did you get your witnesses ready?
Judge Wald: Well, first of all, for most of them, we already had depositions.
Then we had them come down a day ahead of time to be prepared.
Mr. Pollak: Somebody else worked with them while you were in the courtroom?
Judge Wald: We would either do it at night or spell each other during the day.
Mr. Pollak: At night, after 7?
Judge Wald: We stayed up into the wee hours every night. But it got done. There
was a constant back and forth with the witnesses, too. You were going to the airport, back and
forth, usually driving from Dallas. It was heavy duty but exciting, fun, and the trial was going our
way. It was great. Larry York was good sometimes but the facts he had to work with were
terrible. This, I guess, was the most intense litigating experience I had. It was great fun but you
had to be careful ’cause it could overwhelm you. You got so excited, you know, when you got a
right answer out of somebody, or when you avoided a wrong answer that they were clearly headed
toward. I began to understand how litigators could block everything in their lives out, rise or fall,
live or die, with what happened in the courtroom each day.
We started off slow and I remember Justice turned to Steve Bercu after the first witness
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and said in his Southern accent (Steve had no big time litigating experience either; he was a Legal
Services lawyer), “Counsel, you will have to learn to woodshed your witnesses if you’re ever
gonna get through this trial.” We were all worried that night . . . but we had things going for us:
the kid witnesses were great. I mean, they deserve a lot of credit in retrospect, these kids had to
go back to these institutions, and I suppose some people might say we put them at risk but in the
end, it was worth it for their sake; they were so believable, especially the ones who had been
maltreated. At one point in the middle of the trial, Judge Justice, at our behest, issued a decree
that the juvenile inmates wouldn’t be taken back to Mountainview which was the really cruel
institution, but that they would be housed at one of the other institutions until the trial was over,
because we were really afraid for their safety. Our experts also were great, especially Gisela. She
apparently stood out in the judge’s mind when Larry York leaned over her and asked, “How much
are you being paid to come here,” and she said, “Nothing but my plane fare.”
Mr. Pollak: This was being tried to the judge?
Judge Wald: Yes. It was a Section 1983 civil rights action. It took about four to
five weeks to get the plaintiffs’ whole case on. We had very ambitious notions for a decree. This
was back in the heyday of prison reform and people were not that worried yet about federal
judges supervising the institutions. This was a whole state system, too. There were five
institutions. At the end of our case, the state started to put on their case, and then something
happened. It was the fifth week. They stood up and said, “We’re not going to put on any case,”
and the judge kept saying in amazement, “You understand what the repercussions are? I’ve heard
five weeks of steady testimony favoring the plaintiffs. You’re not going to put on a case of your
own?” They said, “No.” So, at that point, the head of the Texas Youth Agency resigned and was
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replaced by one of the younger people running one of the newer institutions that we had come to
like and know, Ron Jackson, who seemed to be much more progressive.
So, we waited a couple months and Justice came out with a decree which ruled in our
favor on all the findings but said, “I want you to sit down and work out a decree with the Texas
Youth Authority.” So we didn’t get a rousing mandate to change. We got an order sit down and
reason, which we did for another year.
Mr. Pollak: That was a lifetime work –
Judge Wald: For another year we negotiated and it was not that productive. It was
clear that despite Ron Jackson, who was a good guy, they were still dragging their heels and, in a
sense, they wanted to retry the whole case again. It was as though we were back to square one, or
at least it seemed that way. There was an interim decree to stop the cruelty. In fact, they closed
down one institution. They decided the culture was so terrible there, they just closed it down.
But, on all the other fronts, we made progress very slowly; I did that negotiating for a year and a
half. Finally, we got a kind of consent decree and then its implementation got stymied. By this
time – we were now up to ’77 – I was leaving to go into the Carter administration and the project
put somebody else on it and continued to monitor the decree. They finally reached the point
where they agreed enough progress had been made. Just a couple years ago, in the mid-’80s, they
dismissed the case. I’m told the institutional picture is much better.
Mr. Pollak: A major activity of your life?
Judge Wald: It’s been a big part. I don’t know that the Supreme Court would ever
endorse it these days, but it became a leading case in the juvenile field.
Now, Steve, I think maybe we should stop. I’ll mention two other things I was doing in
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the ’70s and then I’m not sure but that we should call it a day. Just so they’re on the record.
There was a seven-year effort by the Institute of Judicial Administration and the ABA in
the form of a joint commission on juvenile justice standards. It was led by Judge Irving
Kaufman, who really gave it his all.
Mr. Pollak: Yes he does. I’ve had that experience with him on federal juries.
Judge Wald: He pushed this project through the ABA and I worked extremely
hard on it. I was on the Executive Committee of the Commission, and I worked on every line of
every volume. It resulted in something like 15 or 17 volumes that went all the way through the
ABA House of Delegates. Only one did not get through – the PINS volume which was still a
good resource – but it was just so controversial with some groups. We got everything else
through. They’re still standard works. I don’t say we’ve revolutionized the juvenile system but I
think, on the whole, it was a commendable effort. I worked very hard on that. Janet Reno was
also on the commission.
I also worked during this period on the Carnegie Council for Children which was a more
broad, sociological kind of study of the needs of children in the ’70s. Ken Kenniston headed it;
Marian Wright Edelman was on it; I was on it. It resulted in a report. I can say candidly I don’t
know that it’s made that big a dent, but it was an interesting group. And, in the course of that, I
worked some with Hillary Rodham Clinton.
Mr. Pollak: You did?
Judge Wald: She was then Hillary Rodham. She was on the staff of the Carnegie
Commission. I did not know Bill Clinton. He was still at Yale. She was one year ahead of him.
They were not married but we all knew from Hillary that he was going to go down to Arkansas
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and become Governor and someday President. Hillary, who’s gotten some flack for her children’s
rights views, was writing at the same time I was in this field, and we knew each other and worked
together a bit.
Mr. Pollak: What was the focus of the Carnegie Council for Children effort?
Judge Wald: The needs of children and family. We produced a book called All
Our Children.
Mr. Pollak: It must have been a take-off for Marian Wright’s Childrens Defense
Fund.
Judge Wald: Well, she was already into that.
Mr. Pollak: She was? I see. That’s what brought her to the Commission?
Judge Wald: She got a lot of her funding from Carnegie. For me the continued
focus on juvenile reform began back in the days of the Crime Commission, worked itself through
Legal Services, through the public interest law time, and through the two major outside activities
that I was working on in the 1970s.
I think that would bring me up to 1976.
Mr. Pollak: And the election and then your move into the federal government?
Well, you’ve done well but I think that for a thought as you go towards your holiday – the
question I would like to put to you on this still turning record, as you look back on it, you had this
slice of life, then, from the time as you move back from your children through ’76 –
Judge Wald: Well, I went on into the federal government –
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March 8, 1993
This is the third oral history session with Circuit Judge Patricia M. Wald of the U.S. Court
of Appeals for the District of Columbia Circuit. It is taking place on Monday, March 8, 1993,
commencing at 9:50 a.m. Present are Judge Wald and the interviewer Stephen J. Pollak. The
interview is being conducted as part of the Oral History Project of the Historical Society of the
District of Columbia Circuit.
Mr. Pollak: Good morning, Judge Wald. We’re up to the point of your
nomination by President Carter to be Assistant Attorney General for Legislative Affairs.
Judge Wald: Well, I always felt that there was something random about that
appointment. The fact that I got an appointment at all I attribute in large part to the women’s
groups and network that materialized in 1977 as President Carter was coming into office. I got a
call to go down to Atlanta. This was after Griffin Bell had been nominated as Attorney General,
and his confirmation hearing was just about to begin.
Things went much quicker in 1977 than now because by early February we were all
ensconced in our assistant attorney generalships. We hadn’t been confirmed, but we were all
there working on consultant basis, getting our particular shops in order. In March we went over
for one mass confirmation, all of the Assistant AGs, except one or two, without any problems.
But as to how I got the job, I was called to come down to King & Spaulding in Atlanta for
an interview. I had never met Griffin Bell before, and had no prior contact whatsoever with him,
nor with, as it turned out, any of the group of special assistants that worked with him. They were
all primarily his ex-law clerks. Terry Adamson, who has resurfaced in the more recent Clinton
inner-group. These were all, I’d say, young men in their late twenties, maybe one or two of them,
like Terry, in their early thirties; they were definitely the inner-group of Griffin Bell’s trusted
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associates. John Harmon, who later became the head of OLC, a lovely guy, was down there with
Bell in King & Spaulding doing the interviewing.
I remember there were several women in the waiting room the day I went down, many of
whom showed up later in other Carter administration departments. We sometimes commented
later, when we got to know each other, how we had met each other in the waiting room at King &
Spaulding. So it was clear that the women’s network was at work, especially Margaret McKenna,
I remember, who later worked over in the White House for Carter. She was the person who
contacted me. There definitely had been word sent someplace from on high, whether it was
Carter directly, or people working with him in the White House, that there should be women and
minorities in the Carter Justice Department.
So a whole string of women were being interviewed when I came down. The interview
was with Griffin Bell and John Harmon. I remember meeting Charles Kirbo sort of in passing.
Bell was extremely gentlemanly. I came from a public interest background at that time. I had
been Litigation Director for the Mental Health Law Project which, given his fairly conservative
leanings, one would not have thought was the most direct route into his heart. But, actually, we
got along on a personal level very well. I had the sense that his people, people like John Harmon,
and Terry, were actively pushing for him to bring in not only women, but perhaps women with a
“liberal public interest background.” That seemed to fit most of the women I met being
interviewed.
So the interview came and went and nothing happened. John told me that Judge Bell,
that’s what he was always to be called, “once a judge, always a judge,” liked me. The question
was where I would go in the department. I had some litigation experience certainly in the public
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interest area, but I didn’t consider myself a premier litigator. I was thinking of OLC, not knowing
that that had been, in effect, promised to John. John made a very good head of OLC, incidentally.
Barbara Babcock, who had been a friend here in Washington when she was head of the Public
Defender Service, was also being interviewed. So I called her at Stanford to find out what she
knew about it. She said she was waiting, too – she had said that the only spot she would take
was head of the Civil Division, which she eventually did get. She and I turned out to be the two
women Assistant AGs in the department.
As we went through that month of January 1977 when things were kind of falling into
place, at one point, Judge Bell, through John, offered me the Head of LEAA (Law Enforcement
Assistance Administration). I had worked on the Crime Commissions in the 060s, and I knew
with what hopes and promises LEAA had come into being, but I also knew of the troubles and
politicization it had gone through in the 070s. I just had the sense in my gut that that was not the
job for me, handing out all these funds to the various law enforcement agencies. Gerry Caplan
was then heading up one of the triumvirate leadership positions that LEAA was trisected into. So
I went over to see Gerry. Gerry said, I remember, “I’ll talk to you, but I can’t talk to you here.”
This was in his office. “We’ll have to go next door to the deli.” Apparently, relations were
sufficiently strained at that time so he didn’t want to talk to me about the job in the office. So we
went next door to the deli where he in effect said to me, “Don’t take this job.” Gerry left shortly
thereafter and became a renowned professor at GW, and is now a dean of a western law school.
This just reinforced my notion that I really didn’t want that job. You were going to be caught no
matter how well or with what integrity you acted, in the squeeze of politics between all the law
enforcement agencies.
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Anyway, I knew I didn’t want to do it, so I said, “ I think that’s not the job for me, and I
really would like to serve in your administration in almost any capacity, but I simply don’t think
LEAA is it.” Judge Bell was really very good. He said, “I don’t blame you; I wouldn’t want that
job either.” So he said, “We’ll see what we can do.”
Somehow I found out by myself there was an Office of Legislative Affairs, though no one
seemed to pay much attention to it. It had been elevated to an assistant attorney generalship back
in Saxbe’s administration. This had happened seven or eight years before, so what you had was a
relatively small office, which it would have been hard to justify, I think, on an organizational
chart, being classified as a division. It had about 16-20 people in it and it reported directly to the
Attorney General.
Anyway, eventually John called me, and we talked about that as a possibility, and it turned
out that that was what I eventually took.
I was totally unprepared for the political life. I think the reason I got the job was because
Bell liked me, and wanted to have a couple of women in the department. He had specific people
very much in mind for the other jobs as it turned out. He knew Drew Days and was going to offer
him Civil Rights. He knew Ben Civiletti and was going to offer Ben the Criminal Division.
Barbara, he didn’t know, but she certainly was qualified by dint of her litigating experience to
head Civil.
Mr. Pollak: You thought the flow of these appointments, though, was in Judge
Bell’s hands, rather than in Jimmy Carter’s hands?
Judge Wald: That’s my impression. I had the notion that there had to be some
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women and there had to be minorities, but the actual individuals were up to the AG. Now, Wade
McCree was made Solicitor General, and he was Bell’s pick. He brought up Mike Eagan from
Georgia as Associate Attorney General. He picked Civiletti, he picked Drew, he picked McCree,
he picked Barbara and me. We had no interviews with anybody on the White House staff.
Eventually he picked Jim Moorman to head Natural Resources, but that was a month or two later.
And eventually he picked John Shenefield to head Antitrust, and that was a little bit later still.
Justice Powell was a strong backer of Shenefield and there was something about Shenefield not
being able to get there for a few months, so they kept the old incumbent on as a carryover.
Mr. Pollak: In Antitrust?
Judge Wald: Yes, Don Baker. He stayed on for several months. In fact there was
an impression that he would have liked to have stayed on longer than that, but eventually in the
late spring Shenefield came on. In the beginning, Bell didn’t have a Deputy Attorney General.
I’m not quite sure why that was. Anyway, the White House wanted Bell to give serious
consideration to Pete Flaherty who had been the Mayor of Pittsburgh. So Pete came over, but he
didn’t come over until several months after the rest of us were off and running. In the meantime,
Bell had kept Dick Thornburgh on, who had been head of the Criminal Division under President
Ford. He and Bell got along well so Bell made him Acting Deputy for several months even
though he was a hold-over from the past administration. I think it’s not talking out of school to
suggest that in many cases Bell’s own philosophy probably was more comfortable with many of
the Ford appointees, or certainly as comfortable, as with the newcomers coming in with the
Carter administration.
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Eventually whatever deal between the White House and the Justice Department was cut,
Flaherty came over. Now, I liked Pete, and he brought one or two good staffers with him. By the
time he got there, however, everybody else was in place; the other people were Bell’s people.
Flaherty, in my view, never had a fighting chance to make it in that department. We did some
work through him, but it soon became known that he was not really in the loop and Civiletti was
the heir apparent, to that spot.
Mr. Pollak: What did Flaherty come into, what position?
Judge Wald: Deputy.
Mr. Pollak: But he really never was able to fill it?
Judge Wald: He was never really able to fill it, in the sense of being in charge of
the department’s operations, the alter ego of the Attorney General. The political internal politics
in the department are such that it becomes known within months – whether you are in good
standing, at the top. If not, people start end running you.
Mr. Pollak: Did you relate primarily to Bell?
Judge Wald: I reported directly to him. So after a short while, Pete left. He came
by to see me because we’d gotten along okay, and I liked some of his people. As a matter of fact,
Abbe Lowell came in with Flaherty. Abbe was smart and managed to keep his contacts outside
of the Deputy’s office so that when Pete left, he was already in good standing. I think he went
into the Criminal Division then.
That was the only time while I was in the department that I saw the White House try to
send one of their own over, and it was not a terribly successful experience.
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My job on the organizational chart reported directly to Bell. When I wrote reports, they
went to him. A legislative liaison would normally have been somebody who had Hill experience,
political experience. I really had neither. Sure, I had been to the Hill and testified in a lot of
hearings, but I had not worked on the Hill. I didn’t have an intimate sense of how the Hill
worked. I really was a neophyte. I think the reason he was willing to give me the job was that he
underestimated the importance congressional relations would have in the Justice Department. As
a former judge, he thought the Justice Department should be above politics, which, of course, it
should be in terms of its adjudication, its case-bringing, but I don’t think he had any sense of how
much it has to be involved in the legislative arena in policymaking, both as part of the
administration team and for its own legislative agenda and how much the Congress will inject
itself when you don’t want it to into department affairs and you have to have a defensive posture
vis-á-vis the Hill. I would say that he ended up spending a large, large percentage of his time on
Hill activities.
Mr. Pollak: He did?
Judge Wald: Yes.
Mr. Pollak: So you worked closely with him in that work.
Judge Wald: Pretty much, yes. There would usually be a team composed of the
AG and whatever substantive division was involved, whether it was a criminal matter, or a civil
matter, or an antitrust matter, and our office. I’m not suggesting we made the policy in those
cases. We didn’t. We were a facilitator in most cases. He would consult whoever were his main
policymakers, but we would be in on the project to suggest, Well, if you do this, you’re going to
run into flack from Senator X, so maybe you want to do this or do that. Generally somebody from
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our division would end up being a part of those kind of teams. But when I inherited the office, I
didn’t know what had gone on in the office in the Ford administration. I never got a word of
transition help because my predecessor had left two months before. So there was nobody there
but a GS-15 career employee, an older guy, nice guy. But nobody in a policy position was there
to show me the ropes.
Mr. Pollak: One question, just because we’ve all lived through it. Did you ever
see any materials prepared by the Carter transition people that spoke to your office and were they
useful?
Judge Wald: Only marginally; I don’t remember using them very much. I did get
a copy of the Transition Report. I was more or less told, I should say this, that I should take one
of the young people who had worked on the transition as a deputy, and I did, and it worked out all
right. I had another deputy whom I could pick myself. I can’t remember anything terribly useful
about transition papers. There was nobody, except the career people, who were invaluable but
somewhat limited in this sense, to tell you what the pattern of Hill relationships had been.
Actually, I was told that the Office of Legislative Affairs had been run as a fairly low-keyed
operation by my predecessor; one staffer volunteered that there were always people on the Hill
screaming because their phone calls were not answered. So there were certain procedures,
processes that you could do immediately just in terms of common-sense management, even if
you weren’t a sophisticated legislative person, like bringing the small staff up to snuff.
There were some good people there. Carolyn Havell was terrific. She was the person who
answered the phone, but knew the people on the Hill, had been there 20 years, knew where things
went inside the department, had an institutional memory. She was the one who told me about
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always answering phone calls. Although one might be tempted to forget some of them, it’s fatal.
She was a terrific person to work with and wanted to perform at a higher level than she’d been
allowed to do. I’ve got to tell you, out of 10 or 11 people, there were a couple of very good
people like Mike Dolan who we were able to bring up to a higher job level and fully utilize their
skills. There were, and I’m not going to name names, but there were a couple in the middle, who
were not people you would have hired yourself, but you could use them. There’s a lot of stuff,
reports that have to be written, things that an honest, competent person can do, and then there
were a couple that were just hopeless.
Mr. Pollak: And could you move them out?
Judge Wald: GS-15 levels. Nobody wanted them. You could move them out if
you were willing; in fact I looked into it in the beginning, like every neophyte government
administrator, to see what would be the process for moving them out. Technically, everybody is a
Schedule C, but I was quickly told I could not just say, “Go home.” If I wanted to spend the next
year and a half going through the processes of firing these people out of their GS-15 slots that
they’d inherited through coming along for eight or nine years, I guess I could have done it. But at
least all of the old hands told me that that was largely a waste of time.
Mr. Pollak: Did you have the fortunate outcome that any of them left of their own
will?
Judge Wald: Two of them left during the time I was there. They realized the
office was changing and they had friends in other parts of the government and found jobs
elsewhere.
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Because the shop was so small, there was little chance of hiring new people. I eventually
got one or two new slots and hired new people, and then one or two people changed spots inside
the department. So, overall, we arrived at a workable resolution of personnel problems, but it did
imbue me with the notion of how hard it is to move bureaucracy, even in a little shop like that.
Maybe if I’d been more aggressive I could have walked in and fired everybody on the spot, but
I’m telling you, with GS-14s and 15s, it would have been a hell of a fight. The question was
whether you wanted to use up your initial honeymoon period in that kind of fight.
So I guess what I’m saying is I really had to learn from scratch what I was doing. There
were a couple of good people there that were infinitely helpful and useful.
My experience for the next two and a half years turned out to be relevant to my judicial
service in the following ways. It gave me a sense of how the internal bureaucracy works in the
government, not just in the Department of Justice. Because the Department of Justice is the
litigating arm for so many other agencies, I often got involved in relationships with other
agencies, especially when it came to working on a legislative position that might affect other
agencies as well as ours. Bell felt very strongly, as had Attorneys General before him, that the
Department of Justice should have the principal litigating authority for the entire government.
There were all of these bills that kept being introduced into Congress whereby other agencies
would get litigating authority, attempts of rebellious children to leave the fold, and they, in Judge
Bell’s view, had to be firmly put down. On the other hand, all these other agencies that wanted
their own litigating authority had their own committees that they went to for help, which were
not the Judiciary Committees. Their own authorizing committees were often sympathetic to
them. EPA made some really strong attempts to get its own litigating authority during that
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period. So did the Department of Energy with the 1978 Department of Energy Bill. I had to
spend, I can’t tell you, how many hundreds of hours trying to get those things taken out of various
bills so that the other departments wouldn’t have the litigating authority.
Mr. Pollak: Did you agree with Judge Bell’s policy?
Judge Wald: Not in my heart of hearts. I do agree that there has to be some
central authority to declare uniform litigating positions for the government, especially now that
I’m on the court. You can’t have every agency going off taking whatever position it feels like
about laws, certainly laws that are common to all the agencies, like FOIA. I have more sympathy
with the agencies, however, where they are arguing their own cases, interpreting their own
organic laws. As it is, most agency litigation is controlled by the so-called memoranda of
understanding between the agencies and the Department of Justice. The DOJ controls, but it has
to consult with the agency. I sometimes felt for the agency, and I still feel a little bit for EPA, as I
watch how these DOJ-agency litigating relationships work. They don’t always work. I watch it
from the court and I know why some cases sometimes are not argued with the greatest knowledge
or dexterity –
Mr. Pollak: By Department of Justice representatives?
Judge Wald: Yes. Generally the DOJ lawyers will have an EPA person at their
side at counsel table. That EPA person usually can’t talk to the court and sometimes when you’re
watching an argument you’ll see that person with his head in his hands, because it’s not always
clear that the Department of Justice person really understands what is going on in the dispute,
what the regulations are, how they really work. Sure, the Department of Justice attorneys can
come in and say,”no standing”; they can say, “Chevron”; and urge administrative deference, but
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if you start questioning them about why does this regulation say this and how do you reconcile it
with that, they may have difficulty explaining. And I don’t blame them. They probably get about
the same level of technical briefing about the underlying issues that we do.
Mr. Pollak: I read the very long opinion in 1980 or ’81 of yours in Sierra Club v.
Costle and that’s very technical. Was it argued by the Department of Justice?
Judge Wald: Yes. EPA hardly ever gets to argue its own cases. I suppose the
department could let EPA argue if it wanted to, but I can’t remember a case where it has. The
majority of cases the arrangement probably works out all right, but there are cases, I have to tell
you, where the Department of Justice lawyer doesn’t understand the technicalities, and I know of
one case, at least, that I think ended up having to be en banced to get straightened out, because
the lawyer arguing it didn’t really understand how the regulation was supposed to work.
Mr. Pollak: What case was it?
Judge Wald: Bob Bork wrote the opinion in ’85 or ’86. Anyway, it involved one
of the chemical pollutants that was regulated under the Clean Air Act. It was a regulation
dealing with whether or not costs or technology could be taken into account in setting the level,
the permissible threshold level of the pollutant in the air or whether health and safety were the
only criteria. He wrote an opinion saying yes, cost and technology could be considered, and
the whole environmental community went up in smoke as it were. We had a brief filed for
rehearing en banc signed by 36 environmental law professors of virtually every stripe. After a
while there’s a sixth sense that tells you when something is wrong, and this petition told enough
people on the court, including Bob Bork himself, who I think voted to en banc his own opinion,
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that something had gone wrong. And so the case was en banced and on the second time round
the lawyer from the Department of Justice got Bork so confused, he was trying to reconcile what
was being said at the second oral argument with what he thought was at the core of the opinion in
the first argument, that he threw up his hands and when he got back to conference, he said, “I’m
asking the Chief Judge for one thing, may I write the opinion coming out the other way.” And he
attributed the snafu largely to the fact he had gotten a totally different impression of the case the
first time. I think that experience showed that the lawyer did not understand what was going on
or didn’t know how to communicate it to the judges.
Mr. Pollak: Could I make one comment. It presents an interesting window, for
persons who don’t sit on your court, into the likelihood that there’s a lot of just plain judicial work
that you do that is not impacted by whether you’re a liberal judge or a conservative judge. That
sometimes may be lost sight of in looking at your court particularly.
Judge Wald: It’s absolutely true. In administrative cases particularly the stakes
are high and that’s what makes them interesting. But by and large they are not the cases that you
wake up at 2:00 in the morning with your heart aflutter worrying that somehow you will make a
terribly wrong decision. They’re more in the nature of workmanlike exercises that you go through
to make sure that you understand what’s going on and that in fact what principles there are in
administrative law or the statute have been honestly addressed. Although we have dissents and
there are judgment calls in administrative law cases about how much you interfere with the
agency, on where the line is drawn as to what the agency can do and still come within the confines of the law, as far as substantial evidence or arbitrary and capricious is concerned, in a large
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percentage of those cases people, regardless of their ideology or philosophy, can work together
toward a consensus.
Actually a judge’s personality traits, whether the judge is a perfectionist, or thinks things
should be done just right, can be more important than his particular philosophical stripe. There are
judges who feel the agency can do practically anything unless it clearly flaunts the law, and there
are others that say no, there are rules here and they have to do better than that; the agency has to
give an adequate explanation for everything it does. Those attitudes do not always coalesce with
who appointed the judges or with the part of the philosophical spectrum they come from.
I made the point earlier about how my time at Justice let me see how the bureaucracy
works. In many cases that come before me now, I can imagine how the regulations went wrong or
the issue didn’t get addressed adequately just from remembering warring agencies being called to
the White House, even back in those days, and put into a room and told not to come out until they
worked out an agreement. And so somebody works out something which is less than logical
sometimes, but satisfies the political problem of the moment. We didn’t have anything like the
Competitiveness Council then, but there were OMB reps calling agency people, agencies were at
odds with one another, Stu Eisenstat would be calling people and saying, “You have to work this
out inside the administration.” So people would work it out, your department wouldn’t always get
everything it wanted. What’s interesting is I remember those times now when I see cases come up
which do border on the arbitrary and capricious and I think initially, Why would an agency ever
have come out that way? On reflection, I can almost see them being called over to the White
House and told to come up with a solution, logical or not. Some of those solutions get overruled
by us despite the fact that I think I may know what happened; that’s not a consideration I can
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legitimately take into account. So in many of the cases where we say, Well, there wasn’t evidence
in the record here, or that is arbitrary, or that is capricious, I can in the back of mind sympathize
with the agency a little bit. My guess is that it wouldn’t have come to this decision by itself. That’s
a perennial problem of government.
The other thing that I did learn, which I think is useful, although the subject of much
controversy on this court, is seeing how laws are made. Over the two and a half years I was there,
I did come up with a pretty intense familiarity with the legislative process, not learned out of
books. So in the current debate, which revolves around use of legislative history in statutory
interpretation, on which I’ve written several pieces, I have a decided point of view.
On this court, there are two points of view. I don’t suggest every piece of legislative
history anybody throws aboard in the hearings, reports, or Congressional Record deserves equal
consideration. But I do think that intelligent use of legislative history is necessary and essential
to interpreting a statute rationally. In most cases, I simply don’t think that the ability of the
human race yet is such that it can make any word or any series of words, especially in complex
arcane matters, mean the same thing to everybody and not be susceptible to different
interpretations in different circumstances. This is without getting into deconstructionism or
anything that esoteric. I think that looking back at a legislative history and seeing how a particular phrase came to be in the law and whether it was accepted in lieu of some other phrase, is
important. Now I would have said that was self-evident, and certainly it was self-evident at the
time I came on the court. Nobody was really making any great stirrings on the court about legislative history. But as you know, in the last eight, nine years, it’s become a very lively debate.
Nino Scalia has led the pack in advocating that we shouldn’t look at legislative history except in
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the most extreme circumstances where the plain dictionary meaning of the words themselves,
that’s assuming you can always find that plain meaning, would be absurd. And he does have
some converts up there and on our own court.
I wrote two articles. One, in 1982, looked at the way the Supreme Court used legislative
history then, and concluded that it used it all the time; even when it said it was controlled by the
plain meaning of the statute, it would then turn around and say, We looked at the legislative
history and there’s nothing in the legislative history to contradict the plain meaning. So basically
the Court always looked at it. By 1989, when I wrote the second article, the situation was really
quite different. The Supreme Court used it less and felt the need more to rationalize any use of it.
There are still people on the Court who say legislative history is important and will use it, for
example, Souter. But there are some, apart from Scalia, who use it, if at all, very sparingly.
Kennedy is in that camp, and everybody up at the conservative end; Thomas, Rehnquist and Scalia
almost never use it. I was delighted to see Souter in an opinion last year come full force defending
its use against Scalia and Thomas. I feel very strongly that to go down the Scalia path would be
wrong, although I recognize that it’s been an item on the conservative agenda for a while now.
Nonuse of legislative history results in an increase in executive power in the separation of powers
balance because you are saying to Congress, You must say exactly what you mean, in the words of
the statute, even if it’s a 200-page ERISA statute that’s taken four Congresses and 10 years to
develop, and we won’t look at any explanatory material coming out of the reports, or the debate, or
anything like that, to inform our judgment. If we don’t think that you said something absolutely
clearly in the statute, then we will let the agency decide what it means.
Mr. Pollak: We, the court, defer to the agency.
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Judge Wald: And we skip the step in the middle which says in looking at the
statute to see if Congress made its meaning clear, we will look not just at the words, but at some
of the background legislative materials that went into its passage. Given that we live in the “age
of statutes,” in Grant Gilmore’s words, and those statutes are voluminous and often contradictory,
there’s no way in God’s earth people who write them, the drafters or their talented aides, can ever
get pure, unequivocal, unambiguous wording in all of them. I understand the legislative material
has to be used selectively and rationally, but I think it can be. The notion that we will thumb our
nose at Congress and say, “Ah ha, if you can’t get it right in the pure text, then the executive will
take over,” is not an attractive one to me.
Mr. Pollak: Do you think the conservative approach will vary now that there’s a
different party controlling the executive?
Judge Wald: I don’t know. I credit people like Scalia with a consistency of belief
that will transcend changes in administrations. I think he honestly believes in a separation of
powers theory, and this attitude toward statutory interpretation is part of his separation of powers
theory, but it really does give a lot more power to the executive. My guess is he won’t vary on
this issue despite the fact the executive may be in different hands at different times.
I think it is a theory of government. Sometimes jokingly I say it’s a theory of “OLC”
(Office of Legal Counsel). All the principal advocates of executive power came out of OLC
school – from Rehnquist to Scalia. It’s something they teach at OLC, regardless of who’s running
it.
But to return to my main theme, the process of knowing how a statute is made is useful on
the court because we do more statutory law by a long shot than we do constitutional law, and
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most of our cases have some statutory components. Even the very bright kids that come out of
Yale and Harvard and Michigan and Pennsylvania and Stanford, don’t have the sense of what
happens in the evolution of a statute that you get if you’ve worked closely with the legislative
process.
So, those are the two things I came away with. I have a few other points here and then I’ll
try to move along.
One other thing I got from the job that I thought was a special bonus was that the person
in charge of Legislative Affairs had to work with the substantive people in every one of the
divisions. The DOJ legislative agenda had two components. There were some bills that the
administration itself needed your help to push up there, and there were some department bills.
Bell had an Office of Improvements in the Administration of Justice run by Dan Meador. It
generated legislative bills of its own that we really had the prime responsibility for pushing up on
the Hill, among which was the creation of the Federal Circuit, on which I did a lot of work. We
had some other bills that we worked very hard on, like the Bank Privacy Act. Among the
administration bills that I did a lot of work on was the Foreign Intelligence Surveillance Act. We
had the primary lead in getting that passed, the creation of the warrant requirement and the
intelligence court. Also, the Omnibus Judgeship Bill. If you remember, there were a couple of
years of waiting over that. Remember the fight was over whether or not the Fifth Circuit would
be split. It was a hang-up.
Mr. Pollak: Judge Wisdom had very strong views that it should not be split.
Judge Wald: The reason for the hang-up in Congress was that, at least in the
House, where Pete Rodino was the Chair of the House Judiciary Committee, the civil rights
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groups were afraid of the way the split would go, which judges would be on which side of the
split, and what they were afraid of was an anti-civil rights group of judges concentrated in one of
the two circuits. Everybody was very frustrated. The Omnibus Judgeship Bill created over 150
new federal judgeships and was being held up because of the fight over splitting the Fifth Circuit.
Bell had very good relations, being a bona fide Southerner himself, with both Eastland, who was
still, for the first two years we were there, the Chair of the Judiciary Committee, and with Rodino,
whose friendship he cultivated.
There was stalemate there for a year and a half. During the period I was there, the ABA
also tried unsuccessfully to come up with some formula. Nothing seemed to work.
Speaking of Senator Eastland, I remember early on when we were all coming up for
confirmation, we went up to the Hill as a group. We were taken up by Jim Turner of the Civil
Rights Division, about a week ahead of the hearing to meet Senator Eastland. It was Jim
Moorman, myself, Drew Days, Barbara Babcock, Dan Meador, John Harmon. We were ushered
in to the August presence. Jim Turner, apparently, had an easy relationship with Eastland.
Anyway, he was delegated to do the formalities. So we all sort of sat there with folded hands and
Eastland looked us over and he said, “Well, I got one thing to say to you. Don’t say a word to the
press before your confirmation hearing.” Of course, after that we would have died rather than say
anything. Bell must have been there as well because I remember Jim Moorman, who had come
straight out of the Sierra Club Legal Defense Fund (I had known Jim before – we worked together
in the Center for Law and Social Policy years before he went to the Sierra Club), had a long beard
and he looked a little bit like a “lefty public interest” type. So, Eastland said to Jim, “Would you
walk around the room?” Jim walked around the room and he turned to Bell and he said, “You
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want him?” Bell said, “Yes.” He said, “Okay,” and that was the end of our whole interview. It
was a little strange. So we went up there and had one of those “kiss and run” type of hearings, and
then we were all confirmed.
Anyway, to get back to the judgeship bill – this is a year and a half later now. Each
morning Bell would have breakfast in the AG’s dining room. If you had any problem that came up
and you needed to see him quickly, you could go up there and say, “This has just come up and I
need your guidance,” rather than wait to go through the appointment process. So I was up there
on something else one morning and he was musing about feeling frustrated about the stalemate on
the judgeship bill. He said, “I was thinking last night,” and this is genuinely him, this is genuinely
Bell, “and I wondered if we couldn’t do it this way. If this way would be vague enough to satisfy
both sides,” and he had a formula. He wrote it out on an envelope, and he said to me, “Go up
there and see how this plays.” It was that informal. I had no hope of going in to see Eastland. He
didn’t actively dislike me, but I’m sure he had no awe or affection for this little woman who
appeared on behalf of the department. I did have good relations with a couple of his people,
however. I cultivated them by being respectful and helpful and not acting too aggressive, so they
listened to me and promised they would take it up with Eastland.
That was the good thing I found out about Hill people. If you didn’t act too belligerent or
too snooty, and you cultivated relationships with the aides, they could be of great assistance to
you. If they said they would get this word to Eastland, they would get the word to Eastland. So I
made a great effort to get along with staff. I probably knew many more aides and did far more
business with the aides than I did with the Senators or even the House members directly. I
wouldn’t make it a point to try to always deal with the Senator because I found out an awful lot
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can get done and undone by the aides. If you had them on your side, generally, it was a good
thing. You have to play straight with them, by and large. Not all of them were equally
trustworthy, but after a while I knew the ones that would play straight with you.
So they did get the word in to Eastland and Eastland said that if Bell would come up and
see him directly, he’d talk about it. They all played these kind of games. Bell went up and talked
to him. Meanwhile, they said to me, “This will never work with Rodino, so go see X” – X was a
liberal Democrat on the House Judiciary Committee and a good guy, by and large, but just a
member. I remember Alan Parker was then the counsel for the House Judiciary Committee. Alan
and I got along quite well, and Alan had said to me once that you have to realize the enormous
importance of turf and you never do business – and, of course, Allen would say this because it
was in his interest to say it – he said never do important business with anybody on the committee
unless you first make the chairman aware of what’s going on. So on my way across the Capitol, I
thought, it’s not Kosher for me to go and talk to this other guy and not have Alan in on it. So I
went to see Alan first and he went in to see Rodino. By 1:00, Rodino had signed onto the Bell
compromise. By 3:00, Eastland, after Bell went to see him, had signed onto it. That was how the
judgeship bill finally got settled in less than one day, after over two years struggle.
Mr. Pollak: It shows, doesn’t it, that experience, an undergirding of experience,
that you only gain through some time at the effort played a role. You made judgment there to go
and not violate Allen Parker’s instructions.
Judge Wald: Right. As I say, I had to pick up my knowledge as I went along, and
I made a lot of mistakes. There wasn’t anybody there to hand it over to me, and the career people
did not do lobbying when I came in, believe it or not. The first time we had a legislative crisis
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was really funny. I had to ask somebody how to get to the House floor. Only one or two people
in the office knew; most of them had never lobbied up there. What they had done was sit in the
department and write their reports. I think it was a fairly low-keyed operation before I got there,
at least in the latter days of the Ford administration. Any real lobbying was done straight out of
the AG’s office and our office was kind of a water boy, carrying messages to the Hill.
OLA had a lot of routine work. Any time a legislative request for the department’s view
came in, there was a regular routine. The request comes in to the office from the Hill; that office
decides which division upstairs to send it to; somebody in the division writes some kind of
substantive report. It comes back down. It goes out over the signature of the Legislative AG, but
the substance of it is by and large done by the other Division involved. This is assembly line
stuff, because there are thousands of such requests that come in every session. So that’s basically
what OLA was doing and it seemed they were not often called upon to actively lobby anything
important.
Mr. Pollak: Do you think the divisions were lobbying their own measures?
Judge Wald: Yes. I know they were. Some of that continued even in my day. It
was never possible to reign it in completely. We made a great effort while I was there to get along
and to be helpful to the people in the divisions so they didn’t look on us as some kind of
competitor. We weren’t seeking to cut them out in any way, and say, Well, it’s only us who will
do this. I remember the deputy in the Tax Division, Marty Baum saying, “In one week, your
division has done more for us than in the last three years,” and we knew nothing about tax. It was
just that we made it a point to get any information we had up to them quickly, to work with their
people, to try to let them have the credit if they wanted it.
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Mr. Pollak: You had on-going relationships with members and staff up there that
the divisions then could benefit from?
Judge Wald: Sure. We never got into any big turf fights with the divisions. The
good part about the job was I got to know every Assistant AG very well. I might have done that
anyway. Bell would have lunches every Monday with all the Assistant AGs and their people, their
deputies, and that included Mike Eagan, the Associate Attorney General, whom I liked very much
and got along with well. So pretty soon you did know what was going on in all the divisions, and
you had a sense of problems, hopefully, as they arose. Not to say we didn’t have a lot of things
that went wrong.
I think there’s only one other point that I would make, and that is while I was there we had
an interesting exercise which I didn’t start, but which Jim Moorman and I performed the last year
or two. That was the beginnings of affirmative action in the department. We had something
called the Employment Review Committee. The first two heads of it were Barbara Babcock and
Drew Days. Mike Eagan authorized it. Then after that, Jim Moorman and I took it over.
Anytime anybody wanted to hire, and this included strike forces, anyone, at the point that they
were about to make the offer, they would notify us. We didn’t have any authority to tell them they
couldn’t hire or not hire. But we would look at the record of their recent hires in terms of women
or minorities, and if it really looked monolithic or if it looked as though they were not sensitive to
the diversity issue, we would just ask them to tell us what their outreach efforts had been. It was
all at the level of persuasion and outreach. It did have results. Some people thoroughly disliked
it, needless to say. We would meet every Wednesday to go over all those reports. I think it had
some effect.
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The other thing was that, in the Carter administration for the first time, there were
substantial numbers of women in positions of importance throughout the administration, and we
formed a loose social and informational network. Ironically, for a period there, General Counsel
was considered a “woman’s” job, there were so many of them. The Carter women appointees
would get together every month or so, just to talk about problems that we had encountered, more
management- than discrimination-type problems, actually. It was a good plan. It gave us a sense
of support. Barbara and I were the only two women political appointees in the department. But,
for instance, there was Joan Claybrook in Transportation; Toni Chayes was over in the Air Force;
Dianne Seimer was Counsel at Defense; Donna Shalala was in HUD then; Doris Meizner and Pat
Bailey were both in Justice as nonpolitical appointees then.
Mr. Pollak: Doris who?
Judge Wald: Meizner, who later was – Now she’s about to become the
Commissioner of Immigration, Jody Bernstein was General Counsel, first at EPA and then HHS,
Sara Weddington was first in Agriculture and then over in the White House. There was a sense
that we weren’t isolated when problems came up. Sometimes if a problem came up with another
agency, you might find yourself calling a woman you knew over there just to say, “Well give me a
low down, here’s the problem I have.” So that was the first time that I had encountered that kind
of communal feeling among so many women; never before except perhaps in Legal Services had
there been enough of them around in the workforce to form any kind of network. Informal, but a
power network nonetheless which I thought was a very good thing, very useful at the time.
Mr. Pollak: I have a few questions. Did you play any role in selection of judges?
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Judge Wald: Not specifically. Bell took enormous interest in the selection of the
judges. He said that he wanted that to be his legacy as AG. He had been a judge. He also knew a
lot of the other judges in the system. However, vis-á-vis getting the councils set up, remember
Jimmy Carter set up councils for the picking of appellate judges in each circuit, I would be
consulted on people I knew being considered for council membership and sometimes candidates’
names, but I was not directly involved in picking the judges. I would hear about it at the breakfast
and at the lunch table. Bell not only knew everyone on the councils, but when the councils would
vote out their four names for every slot, they would bring the names to him first. Then he would
make his own phone calls, and decide who he thought should get it. He would listen to the ABA
evaluators, and he would sometimes negotiate with them. I saw judge candidates who came in
originally with “qualified” ABA ratings, raised to “well qualified.” At that point there was some
kind of a 15-year litigating standard in the ABA for a “well qualified” rating, which most women
couldn’t meet. As a result of negotiations, it is fair to say, there were some women recommended
who didn’t meet that technical standard, but who turned out to be very good judges.
Bell would go over to the White House with his pick of the council recommendations. He
said at various times the White House people were extremely frustrated that he did not consult
them enough. I heard Bell say he would check with Hamilton Jordan to make sure that the person
didn’t have some terrible political liability, then he’d walk his choice in to the Oval Office and
present it directly to President Carter. He would walk it in and when he came out he would have
the judge. And he once said that if he had to check with anyone else, he would resign.
Mr. Pollak: Do you care to state an observation as to how this complex process
came out on a merits basis?
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Judge Wald: Here’s what I’ll say: Certainly the quota of women and minorities
went up exponentially, and that was part of the reason for the process. We went from one woman
appellate judge, Shirley Hufstedler in the Ninth Circuit, up to at least eight or nine women on the
circuits and many more district judges. I don’t know the precise numbers, but I bet if you checked
it, the number of women and minorities went up by a thousand percent during that period of time.
On the caliber of the judges, I think many, many have turned out to be extraordinarily good.
There’ve been a few misses. Look at the impeachment process. Some of the recent subjects are
Carter appointees.
When my name came out of the D.C. Council, there were four or five other people on the
list, including Ab Mikva. Joe Tydings was the Chair of the D.C. Council. He called me on
Tuesday night. I guess he called all the people to say who would be on the recommended list. At
the DOJ breakfast the next morning, Bell who was a supporter of mine for this job, said, “I’m
going to go over to the White House later this afternoon with the names.” He came back that
afternoon and announced that Mikva and I would get the nominations.
Mr. Pollak: Do you have anything to say on your observation of how policy was
set in the department and your own role? Or was that so diversified into the divisions that policysetting was not something that happened in your eyesight except as to legislation?
Judge Wald: Quite frankly, I had no role in policy setting, except as to legislation.
In legislation, I had primarily a process role, which, as you well know, spills over into the
substantive area lots of times. First of all, you had this kind of rolling assembly line of
departmental positions on hundreds and hundreds of bills that came through for comment. They
would be sent up to the substantive division, and a draft comment would come back down. I
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looked at all those drafts personally. If it involved something that someone else in my division
knew about, I would call them in on it. The report ultimately went out over my name, so I did
have a say in it. There were many reports, on the order of 20 percent of these routine legislative
analyses, I would send back because I had a question about them. Generally, I did not feel that
because I personally disagreed with something that the Criminal Division might be putting forth, I
could stop it dead in its tracks. But I could and did raise questions about it. Generally, I tried to
maintain a decent enough relationship with the people so this wouldn’t be taken amiss. I would
say, “Well, isn’t this an extreme position to take, or don’t we have to take account of this.” Very
often such reservations could be worked out so I felt perfectly comfortable in signing onto the
final report. There were a few occasions I just simply wouldn’t sign onto the policy. Nobody
made that big a fuss. I just had someone else sign as Solicitor General lawyers sometimes do
when they just personally can’t support the position of the government in a brief. Considering it
was the Carter administration, there weren’t too many crises of conscience for me.
If there were a dispute between different divisions, or even between me and the Assistant
Attorney General in the substantive division, we would take it up to the AG in a memo. He would
settle it. I didn’t want anything to go up to the Hill with my name on it that I felt was anathema to
my beliefs. There would be areas like antitrust law that I didn’t know, where I had to go on faith,
but in the other divisions, I understood enough criminal, civil and environmental law to contribute
to policy determinations when necessary or appropriate.
There were several other areas in which I worked. I was very much a part of task forces
involved in the substance of the bills that came out of Dan Meador’s operation, the Office for the
Improvement of the Administration of Justice. In fact, there was some talk of melding the
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divisions. We worked on all of Dan Meador’s Federal Circuit bills, class action bills, and
magistrates bill. There were privacy task forces. We worked very closely with criminal and civil
rights on the Bank Privacy Act. We were part of the task force for the FBI charter, which didn’t
eventuate in anything because it was never clear the FBI really wanted a charter, at least at that
time. This was a few years after Watergate while the open government era was still in effect. We
were involved in all of the discussions going on about the foreign intelligence bill. I never felt
that we were cut out. In fact, things changed for the good; we stopped being widely perceived as a
water carrying operation; you know, as merely a messenger to the Hill.
There’s a little bit of elitism in the department, the same thing you find in universities, that
anybody who is responsible for administration or for facilitating projects is somehow of a lesser
order than somebody who is sitting off in a room someplace, doing research, reading cases and
writing reports or briefs. Whereas, in many cases, the legislation in importance far transcends
what’s accomplished in the brief, or in that little memo. There was that kind of notion about our
office when I came in; the unspoken assumption was, We’re doing the substance of civil rights, or
we’re doing the substance of antitrust, or substance of this or that, and you people, you’re just
supposed to be ready to move when we say, Here it is, get it passed. I think over my two and a
half years, we got several steps beyond that assumption.
Another step along those lines that I took involved the few hires I got to make. I tried to
make sure they were really substantive people, so they would be perceived as such. One of them
was a Black woman, Muriel Morrissey, who is now a professor at Temple and was at Harvard
with John Shattuck. Another one was Dave Barrett, who came to work at OLA after coming off
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of a Thurgood Marshall clerkship. I tried to hire people who would be perceived by other people
in the department as their substantive equals.
In the beginning of my job someone from the Hill also told me it’s going to be very
important up here to establish an image of being substantive, on your own. Make sure you get to
go up and testify. So I did. I testified four or five times up there. I did the ERA extension. It was
a natural; nobody else wanted it, I was a woman, and I certainly had no competition for that. I had
a go-round with Senator Hatch on it and Tommy Emerson and Phyllis Schlafly were right behind
me. I also testified on the lobbying bill and on some of the appropriations and authorization bills.
Mr. Pollak: Did you have any relation to the President? In the White House?
Judge Wald: Not a great deal. I didn’t know Carter before I took the job. I had
been on a criminal justice task force with Stu Eisenstat during the campaign, but I really didn’t
make any major contribution – substantive or otherwise – to the campaign. During my tenure at
OLA, Carter used to come sometimes to the Friday afternoon meetings of the departmental
liaisons. Frank Moore, who was the lobbyist for the White House, would have meetings on Friday
afternoon of all the Congressional people from all of the departments. Nobody could beat the
admiration I have for Carter, especially in his post-Presidency. But at those Friday meetings he
tended to mostly lecture us, “Why haven’t you done better this week?” I never had any close
relationship with him, although I certainly met him on numerous occasions. I did know his top
White House people better. I knew Stu Eisenstat and Dave Rubenstein, who was his assistant.
There were a couple of people over there who were detailed to the Justice Department and who
were supposed to be kept informed of our legislative activities. One was Bob Malson who is still
around in the Clinton administration, and Annie Gutierrez. Now, these were young people, and I
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got along with them fine, but Bell would not give them much entré. I mean, he felt there was no
need for any White House liaison. My division kept them informed of everything we possibly
could. But they had no power over us whatsoever.
Mr. Pollak: Well, I think that closes out the time at Justice and brings us to the
federal bench. You’ve alluded to your appointment. Maybe that’s all that there is to speak about.
Had you sought it before it became a reality?
Judge Wald: Let me make a few remarks on that and the confirmation and we’ll
finally move to judicial service. I wanted to be a federal judge.
Mr. Pollak: From whence in your life?
Judge Wald: It could go back to the time I started practicing full time in the 070s.
Maybe even earlier. It could have fed on memories of what it was like working for Frank. There
were aspects of the job that fit my personality. While I was fairly active in the community and in
litigation, there was a part of me that didn’t really like the political side, having constantly to be
pitting one force against the other, or watching out for the politics of this, or that situation. Some
people loved that. It’s part of their sense of power. I think politics is terribly necessary to getting a
lot done in society and in the law, but I don’t love it. The notion that you could be exercising
power in an important way, hopefully to the good of the things you believed in, and not be subject
to the pillorying of politics I found attractive. I didn’t campaign for the judgeship in the sense I
never knew when and where it would come from. It’s like you never know who’s going to be
elected President, so you don’t know what year you’re even in the ballpark. As I told you earlier, I
had had an offer in the late sixties from Warren Christopher, who was then the Deputy AG, to
take a family, domestic relations judgeship, the one eventually that went to Joyce Green. I didn’t
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do that because I honestly didn’t think I had enough litigation experience. I really didn’t think I had
the experience to go on the court and, in addition, my kids were not fully grown. They were still
fairly young, so it was not the right time and the right place. I needed to do some more things, so I
politely declined that one.
As I say, there were no more opportunities even to think about things like that until a
Democratic President was elected in 1976. I didn’t begin thinking about it right away even then,
but certainly when I was in the Justice Department, and the whole Omnibus Judgeship Bill came
along it triggered my thinking. You had to affirmatively apply for a judgeship in those days under
the Carter council system. You had to actually fill out long applications. I remember it took me
four days over the Christmas holidays to fill mine out. Some people were offended. Frank
Murnaghan, whom I knew because we had mutual friends in Baltimore, and who was Paul
Sarbane’s choice for the Fourth Circuit, was terribly offended by the minute and detailed disclosure
requirements. The detail in the questionnaire, every case ever argued, who’d been on the opposite
side, it went on and on and on. I was asked several times if I wanted to apply to go on the district
court bench over the first couple years I was at the department. I didn’t think I would be a good
district court judge. I had some litigation experience, but I didn’t really have the kind of litigation
experience I thought the job needed. Maybe that’s wrong, some people who don’t have much, turn
out to be good judges.
Mr. Pollak: Who asked you? The commission head?
Judge Wald: You had to apply, but women’s groups or individuals would call me
up and say, why don’t you apply, or we’d like you to apply.
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Mr. Pollak: Did the commission do both district court and court of appeals here in
the District of Columbia?
Judge Wald: In the District, I think it did do both. In other places, it only did
circuits. I knew in my heart that I wanted the circuit. I had one or two conversations with Bell
about it, but not until late, not until I thought I was more established, in his good graces as it were.
He was very receptive. I heard, and this is hearsay, from Erwin Griswold, who was on the
commission, later on, much later on, that Bell indicated to the council members that he would like
to see my name on the list, and maybe that isn’t kosher, but I’m just telling you what Erwin said; I
did not know that at the time. Erwin said, “Thank God you were qualified,” so it didn’t cause any
great problem.
When the Omnibus Judgeship Bill was created, it contained two new positions for this
circuit. So I did apply and I knew I had his backing. That part was fine. I was thrilled with the
announcement of my nomination. I felt some decisions you make in life are clearly right, and some
you know almost instantly are wrong. I just had a sense this one was right. Naively I thought once
the nomination was announced everything was fine. I didn’t think I’d made any enemies,
particularly, on the Hill. In fact, I had worked with people like Senator Hatch, and Hatch had once
said to me after the nomination was announced in the period before any of the confirmation fuss
began, “If there’s anything I can do to help, let me know.” So I don’t think there was any personal
animosity. I knew Laxalt. I knew Simpson.
Mikva’s and my nominations were formally announced in early April 1979, and nothing
much happened, for a while. Then I began to hear that there were right wing groups that were
going to oppose me. The one victory the right wing had scored up to this point was defeating
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Norval Morris as head of LEAA. You remember Norval Morris, the Dean of Chicago Law
School, and a man of great qualities, was supposed to be Administrator of LEAA but when his
nomination got up there, the anti-abortion and gun people came out in full force and the
administration eventually withdrew his name. Nobody was prepared for these people. They
were doing trial runs. They decided to do a trial run on both Mikva and me. Mikva had opposed
the gun lobby in the House. I didn’t have any record on guns, but they decided I would be attacked
as anti-family. It really was mysterious; at first I did not understand what they were talking about.
One of my deputies came back from the Hill and said that the House Republican Study Group has
got all of your writings and has decided to oppose you because you’re anti-family. I didn’t even
know what they were talking about. What they were talking about was one article I’d written about
children’s rights which had appeared in a University of Minnesota publication and later in the
ABA magazine on Human Rights. It was quite similar to the kind of article Hillary Clinton got
attacked for during the 1992 campaign. In fact, I cited her article in mine. What mine said
basically was, some civil rights should be available to children at a lower age, and that children
need to be represented by counsel in legal proceedings where their fate is at risk, not very radical
stuff. But anyway, the right wingers were delighted to find that I had suggested that indeed some
people might even assert that the voting age might be lowered. It was the kind of academic
speculative thing that several other people writing similar articles in the same time period freely
talked about. The conservative groups started on this mail campaign. It was a scary thing, I’ve got
to tell you. They sent out canned editorials to every newspaper in the country. My mother-inlaw’s best friend in Scottsdale, Arizona, sent us back this editorial against me. Since I was a
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nominee for the D.C. Circuit, not the Supreme Court, it seemed strange, indeed, to be pilloried in
Scottsdale. It was a trial run, really.
Then, somebody came up to me and said, “You know, Senator Humphrey is going to go
to take the lead in opposing your nomination.” My first thought was, My God, why would
Hubert Humphrey want to oppose me? Gordon Humphrey was only a year into the Senate, he’d
just come out of New Hampshire. He didn’t know me from a hole in the wall. They began to
mount this campaign and it seemed to be coming from all different directions. Peter Hutt and I
had written a book for the Ford Foundation on drug abuse and in it we had a chapter which lots
of people had told me was very good. It had been used as a curriculum about drug education.
The new right wing groups were saying that this was an attempt to take away from the family the
right to govern the use of drugs by their children, put it in schools, stuff that was off the wall. It
was scary, and you couldn’t not do anything about it, because allegations were appearing all
over the country. We had all watched Norval Morris get ambushed for no good reason in a
predominantly Democratic Congress. It could happen again. Candidates are not supposed to do
anything, so of course, you have to get all your friends to do it. Bob, my husband, was terrific.
He did the majority of the truth squad work. He worked with the people on the Hill. The staffs
of the Democratic senators were extremely helpful, sympathetic, but it was still scary. I went
around and saw people. I was still in the department too. It was a very unnerving period.
Finally, Bell and I agreed that I would step down from any active work on legislation until the
confirmation was over. It was just an impossible position to be trying to lead the department’s
legislative work at the same time certain key people were opposing you. Alan Parker was going
to be my successor. There was a month and a half there where I was still at the department, but
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doing nothing of any substance. My friends all worked on helping me right up to the hearing.
What you find out when your neck is on the line is people are very good, but they have lots of
other things to do, too. They can’t sit around all day and worry about your nomination. A few
people close to you have to do most of the work.
Mr. Pollak: Like passing a bill.
Judge Wald: Yes. It’s interesting that help comes from strange places. John
Frank, down in Arizona, who you might have known back at your old law school, called up and
said he thought he could help. He got Barry Goldwater to go on the floor on my behalf.
Goldwater didn’t know me, but said the President has the choice of his own people and I don’t see
anything wrong with her. That was a great help. All sorts of other people were saying that I was
out of Judaeo-Christian tradition.
Mr. Pollak: And that’s bad?
Judge Wald: No, I mean, I was outside of it. We had people write telegrams
saying she’s clearly inside – Donna Shalala got, who was the great priest that recently died?
Gino Baroni. He weighed in for me. I remember it as one of the worst periods in my life and Ab
Mikva said the same thing. All the times that he ran for seats in Congress, he never felt as
isolated or out at sea, was so unsure of what was going to happen, as during that spring and
summer of 1979 when they were opposing both of us. You never quite knew from where the
next blow was going to come. We overlapped. He came up for his hearing two months after
me, after the summer recess. I remember having a meeting with Laxalt, a very pleasant meeting.
We talked about giving graduation speeches, and of course, he ended up opposing me. I can’t
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remember if I recounted the Hatch-Simpson episodes. I think it’s worth going into because it
illustrates so well the vagaries of political life.
As I told you, Hatch and I had had a very amiable relationship up to the hearing. And I
had gone to see Simpson. He had sort of pooh-poohed the anti-family rap. The only lesson it
should teach you, he said, is never put anything in writing. He told me how he would always talk,
but he was very careful what he put down on paper. He was quite charming. He and Bell had a
nice relationship. Bell had a way of dealing really quite affirmatively and helpfully with Senators
from the other party and so he had done things for Simpson. I can’t remember whether he’d gone
out with Simpson to Wyoming, but he’d done something that was perceived as a help to Simpson
and he did the same for Laxalt, too. So there was no reason for them to be at all antagonistic
toward the department or me based on their experiences.
At any rate, Simpson told me about some misadventure in his youth, how his opponents
tried to use it against him in an election. So anyway, we had the hearing before the Senate
Judiciary Committee and parts of it were quite bizarre I thought. There were a lot of people there.
It lasted four or five hours, the whole afternoon. At this point, we knew it was serious business. I
would keep getting the information from the Hill, Humphrey was really onto it, the right wing
groups were really going all out against me. I heard at one point, and it was true, Strom
Thurmond had asked Bob Jones to come personally to testify against me. Bob Jones didn’t know
me at all. At one point, Bayh’s people, who were in charge of the mechanics of the hearing,
thought that Jerry Falwell was also going to come up, but fortunately he missed the deadline for
signing up and they closed the hearing legitimately. Mikva’s hearing wasn’t for another month or
so, so I was the lead target on this opening campaign. Before the hearing the staff told me, “Get
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all your kids here. Line them up, so you look like a good family person.” Two of them had
summer jobs in other cities and had to fly in. One of them was still in high school. One of them
was in Europe. They all came, looking gorgeously clean and neat – a feat in the late ’70s. There
was some irritation because they had to fly in for what they perceived was a ridiculous exercise.
Anyway, we went through the hearing. Sarbanes introducing me, and Mathias being enormously
supportive even though he was a Republican.
Chuck Work, who was the D.C. Bar president, said, “We will get a panel of ex-D.C. Bar
presidents together and come up to testify.” So they got, I think it was Barrett Prettyman, Chuck
Work and John Pickering. Maybe John Douglas, too. And they came up and gave testimony which
I think must have been extremely helpful. But John Pickering loves to tell the story about how he
thought it was going to be just one of those pro forma type things. He decided it would be a good
event to bring the summer associates to. He said he went up thinking this was going to be a little
pro forma hearing, “isn’t she a nice woman,” kind of thing. He said when he got there, there was
this room teeming with people and they arrived in the middle of the Bob Jones testimony about this
woman who is an instrument of the devil. He said the summer associates clearly had no idea what
was going on, what was this happening, was this typical Washington fare? The D.C. Bar was extremely helpful, the women’s bar was very helpful. I do remember one awful thing: the New York
Times, probably courtesy of Jack McKenzie, ran a nice editorial. The Post eventually ran one, too.
The Star wrote quite a negative one. It was a woman, though, who did write it on the ground that I
was some kind of ’70s flower-child type and we didn’t need them on the bench. That’s the end of
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the confirmation. With the exception of this article, I hadn’t done anything remotely controversial
and my whole life and everything else I’d written was a clear repudiation of any anti-family
tendencies. There was nothing there. One Senate aide told me later on, very often opponents will
raise something that they don’t really believe in, on a theory that if they get your name out there,
something may come up that is of real substance. I think this had to be what they were doing with
me. Fortunately, there wasn’t any real substance. But they had Gordon Humphrey railing for a good
part of the hearing. At one point, Bayh turned to him and said, “Have you ever met this woman?”
And he said, “No.” Bayh said, “Well turn around, I’d like you to meet her and shake her hand.”
That’s the only time I had any contact with Humphrey. Bob Jones called me an instrument of the
devil which turned into a family joke because one of the reporters came up to my younger son later
after the hearing was over, and said, “Well, how did you feel when they called your mother an
instrument of the devil?” And he said, “Well, she burns the TV dinners, but otherwise she’s okay.”
It was an enervating thing, though. There was something demeaning about it. Strom Thurmond had
his list of questions there, which he asks one at a time. If you don’t answer, it doesn’t matter because
he just goes on to ask the next question anyway. I don’t know whether his heart was in it or not in
my case. I think even he must have known there really wasn’t anything there, but he had his
constituents. Bell actually talked to him about it. He gave what I thought was a wonderfully
irrelevant reply. Bell said, “You know, you’ve seen her, you’ve worked with her for a couple of
years, do you honestly believe that there’s anything to this?” And Thurmond reportedly replied, “I
got young children; I have to be careful.”
Hatch abstained from any active questioning at the hearing. He didn’t vote. When the
nomination came up in committee several weeks later, Humphrey was not on the committee, but
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Thurmond put the nomination on hold for whatever number of weeks you’re allowed under
committee rules. Finally, when that period lapsed, they got a vote. I think there was only a couple
of votes against me, but I knew Thurmond and Laxalt voted against me.
When I saw the vote, it had Simpson also voting against me. And I thought, “Well, there
you go. That shows you what life is like.” He had been so positive at our meeting.
So I was sitting at home during this anxious period. No longer at the Justice Department.
Congress is getting ready for the July recess, and the phone rang. It was Alan Simpson. He said,
“You know, I just found out my vote was recorded against you in committee. I gave no
authorization for that. I couldn’t be at the voting because I was at X hearing or whatever. My staff
person assumed I would vote against you. He’s no longer with me.” He had one of those right wing
young people. The assistant had just assumed he’d vote against me, and he said, “I personally called
the committee to change my vote to one for you. I called the Washington Post.” He was extremely
honorable. It restored some of my faith in mankind, I can tell you.
So after the committee vote Humphrey then used the parliamentarian maneuver that my
nomination couldn’t be brought to the floor until the hearings were printed. And that took a while.
So all the time we were sitting in July, and they were going to recess at the end of July. The worry
was that it would be carried over into September.
My oldest son, Doug, was at home with me, studying for the bar. His temper was quite
short at the time because of the pressure involved in studying for the bar. My temper is similarly
short-fused because I’m waiting for the phone call as to whether the confirmation hearing is off or
on. So the two of us are like two firecrackers waiting to take off. We were like two caged lions.
One afternoon, July 26th, it was getting close, very close; the phone rings. It’s one of Kennedy’s
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aides. By now Kennedy was chair of the committee. He said, “Bobby Byrd says if we don’t bring
your name up this afternoon, there’s a hole in the calendar for 2:00 this afternoon (this is 12:00 that
day) then there’s going to be no more time, so it goes over.” So the aide said, “Get anybody you can
and come down here.” July 26th also happened to be the day that Teddy Kennedy was in Boston for
the funeral of the conductor of the Boston Pops. The only kids I could conjure up were my two
youngest. One was working in a restaurant for the summer, and one was in basketball camp. And
my husband Bob. The four of us tore down there. There’s nobody there, in the Senate. I mean it
was like a movie where the bad guys are winning and only Humphrey, Laxalt and Thurmond are
there and giving diatribes against me.
Thurmond got up and talked about protecting the young people of the country. Laxalt got
up and didn’t even focus much on me. He just talked about judicial activism, a somewhat ironic
detail in light of the activism of a lot of judges that the conservatives so warmly embraced
subsequently. I kept thinking, “Now, where are the good guys?” Well, Bayh was the head of the
Intelligence Committee, he was chairing some important intelligence hearing. Kennedy was up at
Arthur Fiedler’s funeral. Finally, Sarbanes came in out of a hearing and made a speech in my
favor. Then Leahy did likewise. But I’m still very nervous. Now, I’ll tell you about Hatch. Just as
we were going into the visitors’ gallery to watch the floor debate, I see Hatch. I’m with Bob and
Freddi, my daughter. We were just about to sit in the regular audience gallery; there weren’t very
many people on the floor or around the Senate generally. He said, “I want to talk to you.” He put
his arm around my shoulder. He said, “I want you to know I don’t believe any of this anti-family
business. I know you. I know you’re not that way.” But he added, “You know, it’s the Year of the
Child, and I’m getting a lot of mail. So I want you to know, if it’s even close, if it’s close, I’ll vote
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for you.” But he also said, “I don’t think it’s going to be close. I’ll wait ’til the end. If you’re in any
danger, I’ll vote for you. But if you’re not, then I’m probably going to vote against you or abstain.”
I believe he did the latter.
In the meantime, he said, “I’d be happy if you’d sit as my guest in the members’ section of
the Senate Gallery.” So we all sat through a couple of hours of floor debate, and I must say it was
agonizing. And then gradually, it was like a movie where the guys with the white hats finally
show up. Kennedy didn’t get back until the middle of the vote, it was not his fault, but he had his
speech put in the record. Goldwater got up, which was really very helpful, even though he just
said the President has the right to his own choices, if they’re qualified, this is the way to go. So I
think in the final analysis, there were something like 17 votes against me. Two I will never understand. Two Democrats voted against me. No reason. In fact, I had never dealt with them. One
was Stone from Florida; I didn’t really know him. Another was Frank Church. I will never understand Frank Church. I know he passed away and because my special assistant was a very good
friend of his legislative assistant, we had dealt with him somewhat, but had not the remotest notion
of any antipathy, and you would have thought that if there was some problem he had, his assistant
would have told my special assistant. They were good friends. Not a clue. Perhaps he was scared
of his right wing constituents but I couldn’t have been that big a fish. I never had any subsequent
contact with him but I was always very sorry it happened. Otherwise, I admired the man.
I did get confirmed and I got sworn in the next day before anything further could happen.
Mr. Pollak: Who swore you in?
Judge Wald: I came over here and got sworn in privately. Carl McGowan set it
up. It was summertime and I was nervous about waiting for a big public investiture. Mikva did
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the same thing a few months later. Now, most judges get sworn in privately first. I came over,
Dave Bazelon swore me in, Carl McGowan was here. Then my husband and I went away for a
vacation.
Mr. Pollak: Now it’s federal Judge Wald.
Judge Wald: Well, I came to work in early August of 1979. At that point, I was
the tenth judge on the court. There had been nine judges, and then two new positions were
created, the ones that were to be occupied by myself and Mikva. I was the first woman ever to
serve on the D.C. Circuit, and I heard later on from staff people, little, funny stories like Judge
Tamm apparently had a real question about what to do about the bathrooms and the robing rooms.
There were two bathrooms in the robing room which is behind the bench, and he, the gentleman
that he was, insisted that one be marked “women” and one marked “men.” Of course, I was the
only woman, which meant by and large that ten men would have to line up and I would have the
other one all to myself, which needless to say was very gentlemanly, but I’m not sure how
necessary it was.
I did have an advantage in that I knew many of these judges, having practiced here. There
couldn’t have been a kinder, lovelier person than Carl McGowan, whom I had known from
serving on various judicial conference committees with, and Harold Leventhal also went out of
his way in the early days to welcome me because he was glad for some new additions on the
bench. Actually, I had had a few phone conversations with him before and during the
confirmation process. I had known Dave Bazelon a long time, and been part of his speechwriting coterie. Interestingly enough, he thought of me as more consistently allied to his causes
than I turned out to be. That required a little adjustment on both our sides. I was not 100 percent
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with him on all cases, and that came as a little bit of a disappointment to him. Spottswood
Robinson I didn’t know well, but clearly he was a likely soulmate on many issues. The thing
about these older judges was I felt they wanted me to succeed. They wanted to be friendly. They
wanted to be outgoing.
A few people on the court I didn’t know so well. I had only a passing acquaintance with
Judge Tamm because he had been on an ABA narcotics treatment committee way back in the
early ’70s, which actually had come out with a much more radical recommendation about
legalizing the possession of drugs than Peter Hutt and I did in our book. But he was definitely of
the old school of judges, reserved, formal. Judge Robb, whom I didn’t know, was certainly more
conservative than I was or would ever be, but he was always a gentleman. He wrote me a very
cordial note when I came on the bench. While I suppose our relationship was always formal, I
never knew him to be anything but polite and welcoming; he never engaged in any personal
antagonisms, on or off paper. George MacKinnon and Malcolm Wilkey were by far the most
active conservatives on the court. They were all appointed by President Nixon; George
MacKinnon was really at his peak when I came on the court. He called for more en bancs than
anyone else. He got more excited about cases than anyone else.
As far as his personality went, George was always a straight shooter. He did things in
cases I didn’t agree with; he tried to en banc me God knows how many times, but on a personal
level, he really was a straight shooter. One of the interesting things is that over the years George
and I have become extremely good friends. I like him very much, and I think he likes me. We
could still be on a panel together and disagree, but I think he’s mellower and perhaps I’ve
mellowed over the years. I always think of him as his own person. George believes very firmly
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in law and order and he had some preconceptions about what that required that certainly weren’t
necessarily in line with my thoughts, but he was his own person.
Malcolm Wilkey has also become a friend. I don’t see that much of him because he’s in
Chile, but when he’s back in town, we’ve had dinner together a few times. Malcolm had strong
views too, but actually in people’s cases, in cases of an individual against the government, if it
didn’t involve law and order or national security, he could be quite liberal. I don’t know if you
remember the case, I couldn’t sit on it because my husband’s firm was involved, but it was about a
Nicaraguan who owned land in Honduras that was taken over by American forces to train
guerillas to fight against the Nicaraguans. He was all on the side of the poor guy who was being
undone by the government. And several civil service cases I was on, he’d be on the side of the
little man. He had a populist tinge.
Mr. Pollak: You didn’t mention Judge Wright.
Judge Wald: Skelly was Chief Judge when I came on, and, of course, I had known
him before. And I’d known Helen Wright through her work in the mental health area. So he was
a really good friend, and he was fine for the first several years we were on the court together. He
called me in early I remember, and he said, “We’re going to win some and we’re going to lose
some, but it’s a great job. You’re going to have fun.”
Mr. Pollak: Sounds like quite a collegial group.
Judge Wald: Yes, collegial in a basic sense, and let me make this point clear
because it’s interesting the way it plays out in later years as the court changes in personality.
When I came on in 1979, it was a group the majority of which could be counted on in most
cases to take the same philosophical approach toward important cases. Now I know Leventhal
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and Bazelon had their own differences, even Bazelon and Wright did. But in the main, we played
by the same rules or standards and gave priority to the same values. We might vary a little from
each other from case to case. In another sense of collegial, though, I don’t think this court was ever
a run-down-the-hall, drop-in-on-your-colleague, put-your-feet-on-the-desk place. I don’t say that
because I was a woman. I sensed that was not the way things were done, because I knew enough
of the judges personally, and I knew their wives, Jody McGowan and Helen Wright and Micky
Bazelon, to know that that was not the way these judges behaved with each other. But I think it
was collegial in the sense that I felt I was moving into an atmosphere where the majority of people
were certainly not out to get me. They were out to help me succeed. They welcomed me. It was
not, however, an atmosphere where everybody or even anybody was going to be your best friend.
It was not a camaraderie-oriented institution.
You inquired whether I “missed” the old active life when I went on the court. I won’t use
the word “miss” because the first several years on the court were so exciting, subject-matter wise,
that just learning the job and being a judge was all-consuming. There were some occasions when I
might contrast in my mind the way we judges behaved toward each other to the kind of behavior
you get in a public interest law firm, occasionally in the government when you win victories, or
even when you lose cases, a kind of let’s-let-our-hair-down, or let’s-go-out-and-have-a-drinktogether, or let’s-really-go-over-this, Monday-morning-quarterback-style. There was none of that
on the court. Although it’s an institution, you’re very much on your own. The only people you
ever get to let down your hair with, and maybe that’s why they are so important, believe it or not,
are the clerks. And of course you don’t really let down your hair with them because of the
generational gap. Still, they’re the only ones to whom you even make passing remarks, say, “I
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think that’s the most outlandish thing I’ve ever heard,” or “Where the heck could that have come
from,” or “Come on, now, give me a break.” Practically none of that goes on between judges, even
among judges who agree with each other, respect each other, and it wasn’t going on back in those
days, either.
In 1979, most of the judges were 15 years or more older than I was, though I’m not sure
that accounts entirely for the inherent reserve either. As I say, I knew a lot of them individually,
and I knew they weren’t great buddies, personal buddies before or after I came along. But it was a
court in which you could win vital issues for the first several years I was on it. Within a year,
Judges Mikva, Edwards and Ruth Ginsburg came on and we had a definite majority when we
needed it in an en banc situation for rational, well-thought-out positions. And many en banc
petitions initiated by the more conservative judges like George and Malcolm were easily defeated.
In subsequent years, we learned to write all our opinions in the shadow of an en banc.
At that time, we on the so-called liberal side were the ones who would initiate the en bancs.
In retrospect, I wonder if sometimes we weren’t guilty of being as casual in our use of that kind of
power as some of us believe the conservative majority is now. As I think back to the early years of
making the change between an advocate and a judge, I realize the line isn’t always absolutely,
crystal clear. It’s only through experience you begin to see that line. It’s easy for the academic
people to talk about judicial restraint, and I agree with them in principle, a judge doesn’t have the
leeway to do anything he or she wants, and there are institutions and structures and precedent, that
limit your discretion in many ways. What I will say is that line – between what is appropriate and
inappropriate for courts to do – becomes clearer only with experience – case by case. And it
differs from judge to judge, no matter how long you are on the court.
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There were some cases in the very early years that I think I would decide differently now,
probably in a more conservative vein. It is always a line-drawing situation. I remember very early
on there was a case that had to do with medicare hearing rights for elderly people, and, of course, it
was a kind of case where, if you came from a legal services background like mine, you would tend
to sympathize with the plaintiffs, and they did have some very plausible legal arguments on their
side. I remember writing a quite liberal decision holding the statute unconstitutional for failure to
grant full due process rights, including an oral hearing. Skelly Wright, who was street smart as
well as liberal, said, when one of our conservative colleagues called for an en banc, “Well, maybe
you want to temper this.” Of course, he was right. It wasn’t that any precedent clearly said I was
wrong. It was a question of where the right place is to draw the line. It takes you a while to find
that marker. So that decision ultimately got revised and an en banc was avoided. Malcolm
Wilkey, who had originally dissented, was actually very cooperative about revising it. He did not
insist on absolute vindication of his position. He appreciated anybody making a conciliatory
gesture. I suppose if I had persisted, maybe I could have resisted the en banc, and my normal allies
wouldn’t have voted against me. But I think the revised opinion is really quite sound, and actually
it’s still perceived in the textbooks as a liberal opinion.
The whole issue of how much the court can intrude upon agency discretion is one which is
always with us on the court and is not susceptible to instant recognition.
The first case in which I was reversed by the Supreme Court involved a judgment which in
retrospect I think I was wrong, on my part although the panel was unanimous.
Mr. Pollak: What case was that?
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Judge Wald: It was called Energy Action v. Andrus. It was about whether or not a
statute dealing with oil and gas regulations required the Secretary to authorize by regulation
several new ways of financing leases for drilling oil on offshore public lands. Despite clear
authorization in the statute to try new leasing techniques to encourage drilling, the Secretary had
continued to use the traditional payment modes. I wrote an opinion, which Spottswood Robinson
and Harold Greene went along with, saying he had the obligation to experiment with at least some
of these alternatives that had been authorized in the statute, not stick to the old method entirely.
I got reversed by the Supreme Court. Perhaps rightly so. I thought, gee, there’s got to be a
clear congressional desire here to have the Department of the Interior try out some of these other
mechanisms, but the fact is, the statute had waffled on a clear insistence that it do so. Congress
had not expressly said “you must,” so it wasn’t a mandate. There’s a learning process going on all
the time for a new judge, just where to draw the line. Even when you think Congress wanted to
have the executive do something, if it really didn’t give some sure signs, that they were insisting it
be done, the court can’t provide the prod.
At any rate, I’ve now written 550 or so opinions, published opinions, including dissents,
and four of them have been reversed in the Supreme Court. I think most judges on the court have
a reversal record somewhere in the same range.
It’s interesting about the mores of the court, because when that first case was reversed, no
one said a word to me about it. But I was crushed.
Mr. Pollak: You were? Was it the first reversal?
Judge Wald: Yes. It was; it happened in my second year. I was crushed. It made
me think how the district judges view it. They have to come up here all the time.
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I thought, how am I going to walk in the courthouse. Everybody will say, The Supreme
Court reversed her. I think it was the first opinion assigned to the then-new Justice Sandra Day
O’Connor.
I remember, I waited, I thought people would be on the phone. You know how it is in the
outside world; a Supreme Court decision would cause a great to do, win or lose. People
sympathize if you lose, congratulate you if you win. But the phone never rang all day, and the
week went on, and nobody ever said a word. I realized that one of the unwritten laws in this court,
and probably in most courts, is you never comment on somebody’s reversal by the Supreme Court.
So nobody said a word to me, and I didn’t say a word to anybody, and that turned out to be the
pattern in the three other reversals I had as well. I myself would never dream of calling anybody
and saying, “Well, too bad Harry, too bad Ruth, you got reversed.” You just put it away.
Occasionally, if somebody’s been affirmed and it’s a friend of yours, you say, gee, that was great.
But even that doesn’t happen much.
I’ve been affirmed a couple of times and I’ve had several dissents vindicated up there, and
rarely has anyone ever congratulated me. You might go to a bar reception and have somebody
say, “I’m glad the dissent you wrote in Metro Broadcasting was upheld by Brennan in the
Supreme Court,” but that’s not common. Most people don’t remember the pre-Supreme Court
history of a case. Actually the silent treatment is comforting when you do get the occasional
reversals. I’m sure the law clerks gossip in the halls, but nobody makes you give a full court press
on it.
I learned some other lessons in the first few years; I had a terrible tendency to over-write in
the beginning. I now look back on Sierra Club, which I worked five months on, and realize it’s
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terribly over-written. I didn’t have to get into all of that kind of detail. There is a tendency in the
beginning, especially in technical, administrative law cases, if you aren’t familiar with the
background material, to want to show that you can handle it. “Hey, I’m not just that woman judge
who used to do public interest law in the mental health field. I can handle a complicated
administrative law case.” I perceive that tendency in my colleagues as well, when they first come
on the court to over-write, because the first time you encounter a complex problem, you have to
work it through yourself from A to Z, and you want everyone to know you’ve done it diligently. It
may not be the first time that issue has come before the court, so for somebody, if such a persons
exists, who reads our opinions, seriatim, this might be the fifteenth instance of the application of X
principal. But for new judges, it’s probably not the worst thing in the world to err on the side of
explaining everything they do. Later on you feel more comfortable in being more terse.
I’ve also come to the view over the years that it’s unwise to try and be funny in opinions;
sometimes even judges get bored with administrative opinions and drop witticisms or double
entendres in them. I did this a couple of times and then I quit because I realized to every litigant
his case is an important, serious affair. I once wrote an opinion about a hydroelectric dam in
which I kept using water images, but on rereading, it seems somewhat silly and skewed, kind of
self-indulgent, so I don’t do it anymore.
Mr. Pollak: But the Sierra Club was all business.
Judge Wald: All business, yes. But I don’t think I had to go into that kind of
detail, although it was a complicated case. Roger Robb concurred in the judgment. He made
only one suggestion, and that was that I take out a statement in the very beginning that was just
background about nuclear power being risky. I think that there was so much in the opinion, he
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couldn’t be sure about everything. And I was new, so he wasn’t going to tie himself down to
every word. On the other hand, he had no reason to dissent. That case was a kind of a baptism
for me. There were no other judges to confer with. My clerk was not an expert in pollution
control any more than I was. In fact, I abandoned the first draft totally. Then we just sat down
and said we’re going to go through this morass together, issue by issue by issue by issue. It was
an interesting exercise for me because it taught me I could do it. I could understand and cope
with the material if I was willing to put in the exhausting amount of time and effort to do so. It
took us four or five months to write the opinion, which was almost 200 pages long in slip.
Mr. Pollak: It’s an incredible amount of work that you did on it.
Judge Wald: But I learned you could do it. Whether it’s the right way to spend
your time is another question. I have a sympathy for new judges. I was lucky. I had this learning
period in a basically supportive atmosphere. I remember one other opinion I wrote in one of my
first sittings. I had a long footnote in which I analyzed every Supreme Court precedent on
whatever the topic was, many of which were probably peripheral to the main holding. I got this
really nice note from Carl McGowan, the soul of discretion, saying perhaps I would like to store
this footnote away for future use. There were all kinds of things you really had to figure out for
yourself; nobody was going to tell you directly, like, You’re not writing a law review article, you’re
not writing a brief. What you are doing is trying to establish some kind of a reputation for doing
things carefully. During that early period, I was lucky I did not come onto a hostile court which
probably could have made mincemeat of some of my early efforts had they wanted to.
Mr. Pollak: Did you have any formal training? The administration did not afford
you any training?
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Judge Wald: No. That’s an interesting point. It really is a case of throwing the new
judge in, sink or swim. The Judicial Center runs a “baby judges’ school.” It’s a couple of days of
lectures. In my case, they didn’t offer them for almost nine months after I’d gone on the bench. I
probably was on my 35 opinion by the time I went to baby judges’ school. And, at least when I th
went, they didn’t do anything with opinion-writing or decision-making techniques.
Some learned person gives you a lecture on Section 1983 and somebody gives you a lecture
on federal jurisdiction. It’s all substantive. It gives you a wonderful opportunity to meet all the
other new judges. I met all the new Carter judges, and especially all the other women Carter
judges that I hadn’t known. I still keep up with them. There’s a socializing function that’s very
important, and a modest informational increment. But there’s nobody to tell you, at least there
wasn’t in my day, I haven’t gone to any of the baby judges’ schools since, how to write an opinion
or that sort of thing.
I remember also I was thrown headlong into motions in the first week or so. Motions is
where you have all these emergency motions coming. I was on the motions panel with George
MacKinnon. At that time, although we would have a panel of three, only two would really rule on
the motion. If they disagreed, they’d call in the third judge. So it was George and me. George
seemed a formidable figure to me at the time, and also we disagreed a lot. So he wasn’t somebody
I could run to for advice if I were unsure of the right way to rule. They roll in a trolley with 35
motions on it to decide in one sitting. One of those motions in my first session was to stay some
railroad consolidation in upper Indiana. I did not know from nothing about railroads, and George,
an old railroad man, voted to stay. And I thought, God, I don’t know anything, I’d better go along
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with George. He’s been here a long time. So I voted to stay too on the basis of pure ignorance. I
didn’t know what in God’s name I was doing.
Well, of course, we shouldn’t have stayed a railroad and it went up to the Supremes, and
Chief Justice Burger overruled us; at that point I decided, okay, even on these motions I’m going to
have to sit down and go over every detail for myself. You do make mistakes.
Mr. Pollak: Could you get significant help from your clerk on the motions?
Judge Wald: No. The practice on our court is not to use elbow clerks on motions.
We have a separate group of young attorneys who work up the motions – when they have time.
They were then called motions clerks. Now they’re called staff counsel. This was an emergency
motion on Sunday night. Someone called me at home and so I couldn’t call on anyone to do
research. I made the wrong judgment. It got righted very quickly, but still. They really throw you
in the middle of it. But it’s like everything else. If you’re bright and you work hard, you’ll catch
up. Remember, too, I was picking law clerks out of the regular schedule. I was not picking them a
year and a half early as is our practice now; I was doing it in a hurry in the month of July so we
could get started in August. As it was, I did quite well with clerks that year. They were all
competent, and a couple were excellent. In 1980 the administration changed, as you know. I came
on in August of 1979. During that same year, Mikva came on in September of 1979, Harry
Edwards came on around March and Ruth Ginsburg came as one of the last appointees of the
Carter administration the following September. Then they closed down shop before the 1980
election.
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In fact, as to the leasing royalties case that I got reversed on in the Supreme Court, the
original Carter administration had not petitioned for cert., and when the Reagan administration
came in, they got an extension on the period to file cert. and took it up and won.
As time went on, I could perceive differences in the positions of the new Justice
Department. If you’re going to ask me to document that, I’m not sure I can remember specific
cases. But it was my impression there was a much harder line taken in areas like FOIA, standing,
sovereign immunity, executive power, than in the prior administration.
Mr. Pollak: What kind of schedule did you keep in your early years, and has it just
carried forward to today?
Judge Wald: I have pretty much stayed with the same schedule over the years. It’s
a schedule I set for myself because judges in the court of appeals have really a lot of discretion
about the way they use their time. In fact, I worry sometimes if the public knew how much
discretion there is in schedule setting they might be skeptical of our pleas of overwork. In my own
case, I get here between 8:00 and 8:30; that’s the time Bob leaves for work, too. I’ve always
traveled by subway. It’s interesting, Carl McGowan and I used to be subway takers. Now, Steve
Williams and I are. Most of the others come by car.
I don’t work late at night. My pattern has been to leave here between 6:00 and 6:30 and
take some work home. Mostly, that’s because I go by the subway, and I don’t like to walk to the
subway at night alone, late. There have been episodes around here, people being assaulted. I
usually go home at a reasonable hour. That’s turned out to be entirely workable.
I’m not one of the judges, there are some, who insist that their clerks stay here until the
wee hours of the morning. Weekends I usually come in one of the two days. Vacation-wise,
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we’ve always been able to get away for at least one week, sometime during the course of the
winter, and then a couple of weeks in the summer.
The way the court is set up, we only sit, meaning your physical presence is required in
court, for one week a month. The other three weeks we’re working on our opinions, unless you are
also on motions duty. You have one three-month-long tour of motions duty when you’re deciding
all these motions in addition to your regular work. The motions conferences are held every two
weeks. There are some judges who don’t get here until noon, or come in only on days they are in
court. They just like to work at home better, especially now with computerization. It’s changed a
lot. Everybody can now have a home computer with a modem coming into court and law clerks
can get the stuff back and forth easily. Bob Bork used to work a lot at home; Ruth Ginsburg
generally doesn’t come in until late in the morning, because she’s working at home. Harry
Edwards does a fair amount of work at home. Doug Ginsburg has moved way down into the
boondocks and plans to be here only for a couple days a week.
Mr. Pollak: Really? Working at home with the computer?
Judge Wald: He’s going to have a law clerk work down there. It’s sort of a joke
about whether law clerks know when they apply for the job that they’re going to be spending part
of their time in Front Royal.
Mr. Pollak: Is that where it is?
Judge Wald: It’s near there. So different people have different patterns and given
the nature of our work, we are able to be pretty flexible. Roger Robb used to, in the early days,
take the entire month of September off. Come hell or high water. Even if there was an en banc, it
was just known he took off the month of September. Malcolm Wilkey would go to Argentina
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during the month of March where his wife’s family had a place. People just arranged it, and
nobody thought anything of it. There’s a lot of leeway.
I, personally, like to be around the courthouse unless I’m away someplace for a reason. I
think you pick up the rhythm of the place if you have a day-to-day relationship with the clerks and
messengers; if you’re there when the mail comes in, you can react fast. I have always liked to get
things out fast. That can be a negative as well as a positive trait, but if somebody is commenting
on your draft or you have to change an opinion, I like to get to it really quickly. Maybe because I
had been a lawyer here in the days when it took forever to get an opinion out of this court, and I
remember waiting in one case myself two and a half years for an opinion. I sympathize with the
lawyers and I think it is really important to get opinions out as quickly as you can, consistent, of
course, with doing a good job. Not just put drafts in a pile and say, well, we’ll get to that later on.
In general, unless it’s one of those cases that has to wait on a Supreme Court opinion or
you’re negotiating with a dissenter and there are a lot of revisions going back and forth, we aim to
get an opinion out of here in one or two months. In general, we succeed.
If you think speed an imperative, it’s necessary to actually be in the courthouse more to
react to colleagues, to read galleys, etc. I hope I won’t be lynched for saying it, but being a judge
here is not the hardest job I’ve ever had in my life. I don’t think you have to work the hours in this
job that you have to work as a political appointee in the government, or in a high-powered law
firm, or, based on my experience, even in a public interest firm.
That’s not to say in some ways being a judge isn’t harder in terms of having to work with
people, having to come to a resolution on all issues within a reasonably short time, having a lot of
responsibility. But timewise, it’s not bad given the schedule we have. We sit on less than 120
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cases in a regular calendar year. You have all this motion stuff in addition, but that clears up
quickly. I write somewhere in the area of 40 published opinions in a year, that’s counting dissents,
and lots of unpublished memoranda.
I think it’s a very doable job. In fact, heresy of heresies, I think we could be leaned upon
for more. Now, other circuits don’t have it so easy. Our average per judge is 120 cases a year, but
some circuits have 300-400. The average for the country is 255. I know a lot of them are social
security and diversity cases, but the fact remains we in D.C. probably have one of the more
leisurely sitting schedules. I have, over the years, had all the spare time I needed, though not
during the time I was Chief Judge, because that was certainly a filler.
Mr. Pollak: Jon Newman was quoted in the morning paper yesterday as questioning
adding more judges.
Judge Wald: That’s a complicated question. I don’t think there’s a yes or no to that.
I think there are some places where they do need them, and some places where they don’t. Maybe
they could reallocate some of the ones they have already.
On this circuit I have never felt overwhelmed. Sometimes I’ve felt underwhelmed. I think
almost every judge in this circuit does a fair amount of extracurricular activity. For some, it’s
teaching. I have never longed to teach on a regular basis, so it hasn’t been teaching for me. But
certainly, I have had plenty of time to do the law review articles, and law school cameo
appearances, moot courts, lectures, graduation speeches, to be active in the ALI.
Mr. Pollak: You’re an active speaker, aren’t you?
Judge Wald: I’ve cut it down some, but yes. I would say over the course of a year I
generally publish up to four to five things, and probably give six or seven speeches, varying from
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serious lectures to the kind of appellate advocacy stuff, which I do for the U.S. Attorneys or for
Legal Service training programs.
Mr. Pollak: Has the computer, both as a word processor and the computerized
citations systems of Lexis and so forth, made a difference in either quantity or quality of the work
you can turn out?
Judge Wald: Personally, I haven’t found it to make that much of a difference.
Admittedly, the law clerks are brought up on it and you have to have it. They learn to do research
and drafting that way. They’re the ones who do the cite checking and look for case authority. I
think if you asked them, they would unanimously agree it’s a heck of a lot easier than Shepardizing
citations.
Personally, most of my time vis-á-vis research and writing would tend to be spent on
reading the cases that are actually cited, either in the brief, or that a law clerk might have found in
a subsequent search of Lexis, in scoping out what the opinion will say, and in playing with the
actual wording of it. I’ve made myself learn how to use the PC, but I don’t do anything glamorous
with it. I use it basically as a word processor. I felt you had to use it or you’d lose face with the
law clerks.
Harry Edwards does all kinds of things with his. I’m not that gifted and I never will be. I
don’t find it lends itself to my style of writing opinions. I think what has probably made more
difference is the way the law clerks are able to find authority. I’m not sure even that is all good. I
sometimes find a law clerk will hand me a list of certain authorities, and it will have a case
missing that I will just happen to remember from somewhere, because it’s something I’ve dealt
with before. It’ll turn out because the clerk didn’t push the right number, he didn’t push the right
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key or something, the computer somehow didn’t spit that case out. It’ll make mistakes that you’re
stuck with.
I think legislative history, the reading of legislative history, has gone downhill. I think
research by computer can be qualitatively different from the old hard copy method. I no longer
entirely trust legislative history to the law clerks alone, because legislative history used to entail
going to the library, you got the hearings, you got the Senate and House debates and you sat down
and you read from the introduction of the bill right through to its passage.
Mr. Pollak: How do they do it now?
Judge Wald: Well, now they tend to get bits and pieces. They push a couple of key
phrases and they’ll get this little piece of history out here, and this little piece of history out there,
but they’ll be no sense of where either piece fell into the bigger picture. I don’t even like using the
microfiche which all of our legislative history is now on, where you sit in the library and watch
endless numbers of these little frames on the screen until your neck hurts. But at least it’s
coherent. It’s still not as natural to me as sitting down with the actual books and being able to go
back and forth in them and see the whole process unfold. You come out of that with a sense of the
history of that bill and how various dialogues fit into it. You don’t get one little piece pulled out of
context. But basically, I’m not anti-computer. I think it does help the law clerks get their work
done faster. I’m not sure I think it results in any better research.
In fact, I like to cite one of my law clerks a couple of years ago, a Yale fellow, Malcolm
Stewart, who later worked for Justice Blackmun, and had been an English teacher for six years
when he first came out of college. He was one of the best clerks I ever had. The entire year he
was here, he dealt with nothing but yellow pads. He had a stack of yellow pads; he never touched
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the computer. I’m told he had to use the computer on the Supreme Court. He just had his stack of
yellow pads, and he turned out just as many drafts as anyone else. They were better written,
probably, than the majority of clerk drafts. Maybe he used the computer to check citations or
something, but basically he wrote on these yellow pads. He was terrific. I think you can do quick
cites, you can do the mechanics a lot faster. If you’re a real wizard at it the way Harry Edwards is,
maybe you can change paragraphs around faster and play with new organizations. I’m a bit of a
skeptic.
Mr. Pollak: You’ve noted down some things. I’d next move into, to the extent
there’s anymore to be said, in terms of your, something I call, judicial techniques, but you may
have some directions you want to go.
Judge Wald: Let me mention one other area, which I think is important in the
history of the court. That’s the changes that were made, personnel-wise, on the court over the past
15 years, including the change in philosophical tilt in the ’80s. That’s an important part of the
court’s history.
In the first three or four years I was here, we still had Wright active, Bazelon took senior
status, but he still sat with us. We had a lot of visiting judges coming on the court. A lot of them,
as you would expect, were of the same persuasion, Luther Swygert, Wayne Justice. Our
conservative wing was Wilkey, Robb, Tamm and MacKinnon, and occasionally there were
frictions. Malcolm Wilkey wrote with a strong pen.
The general direction of the court, even in the early Reagan years, when different
arguments were being put to it by the Reagan Justice Department, was still a predominantly ’70s
one. Yet, even then there were differences between the old and the new Carter judges. I
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remember an episode in my first years where I sat on a panel with Wilkey and Dave Bazelon,
whom I knew perhaps more closely than anyone else on the court. It involved a habeas corpus writ
that had been denied by June Green and Dave wanted to make a big deal out of it. I won’t try to
replay the case, it’s too long; but by my way of thinking, she had been okay to deny the writ. Dave
felt there should have been a full-scale hearing, but I disagreed with him. I didn’t think too much
about it at the time. I thought this was a modest disagreement, but apparently he took it really to
heart and there was a period of many months in which he was exceedingly cool to me. I would
know that, maybe someone else wouldn’t, but I would know. My clerks also picked it up
immediately. I didn’t get invited to the Kronheim Warehouse for lunch anymore. Apparently he
absolutely could not understand how I could have left him to dissent alone in this case and side
with Malcolm Wilkey.
Eventually, after about eight or nine months, we were seated together at Bob Bork’s
wedding. I said something like I’m really sorry for this misunderstanding, and after that we fell
into and old friendship for the remainder of his period on the court.
It was kind of a shock to me that he took the disagreement so hard. He felt the same way, I
know, about a case in which Ruth Ginsburg didn’t come along with him. This happened to be one
in which I agreed with him. It involved a dissent in a mental health case about whether a
government psychiatrist’s examination should be recorded. Ruth ended up on the other side, I’m
sure for her own good reasons. Dave had a feeling somehow that we Carter appointees were going
to come on the court and restore the old majority, and sometimes we didn’t. Sometimes we didn’t
fall into that place exactly.
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Starting in ’82 or ’83, we began to get a succession of new appointments. I will say that the
D.C. Circuit has got to have had more turnover than any other court in the country. We had
something like 15 new appointments come in and out since I’ve been on the court. Some of them
were ins and outs, like Bob Bork, Nino Scalia, Ken Starr and Clarence Thomas. And then we had
the gradual retirement of the older wing so that right now there’s nobody left on the court who was
here when I came on. George is taking senior status and he doesn’t sit on our regular cases. Spotts
is still alive, but never comes back to the court, and there’s nobody –
Bob Bork was the first of the Reagan-Bush appointees, and then the year after there was
Nino Scalia and then Ken Starr; in ’85, both Larry Silberman and Jim Buckley, and in ’86 Steve
Williams and Doug Ginsburg, then Dave Sentelle, then Clarence Thomas, then Karen Henderson,
then Ray Randolph. For a period there, there was no year in which there wasn’t at least one or two
new judges. In the meantime, we had the very tragic diminishment of both Skelly Wright and
Dave Bazelon through Alzheimer’s disease. That episode was very sad and eventually they left the
court. Malcolm Wilkey resigned in the mid-80’s and Roger Robb and Ed Tamm died a few years
later.
Mr. Pollak: Do you want to compare or say anything about the comparison of the
Robb, Wilkey judges with the judges that came on in the ’80s?
Judge Wald: To this extent, I think they were very different kinds of people. For one
thing, Tamm and Robb were older men by the time I came. They were already in their ’70s. Each
one had done his own thing. Wilkey and MacKinnon were not alike. They didn’t even agree a lot
of the time. They were not comrades in arms. Roger and George, I think, saw a lot of each other,
but even they weren’t always together. There was a famous case, which went up to the Supreme
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Court involving Agee, the fellow whose passport they lifted for exposing CIA agents. When it came
up here, Roger and I said it was a constitutional violation. MacKinnon wrote an explosive dissent
and Robb wrote the majority opinion upholding Gerry Gesell down below and the ACLU, who
brought the case. One point made by the plaintiffs was, well, Agee had never actually been either
arrested or indicted or charged with any crime. George MacKinnon’s answer was, maybe not, but he
could have, and he attached a draft indictment to his dissent, which is still in the F.2d. So even those
two didn’t always agree. Actually, the Supreme Court upheld George over Roger Robb’s liberal
opinion. So each of these three was pretty much his own person.
The newer generation of conservative judges were much younger people. Bob Bork would
be the oldest, but the others were either in their late forties or early fifties. Ken was only in his late
thirties when he came on the court. Scalia was in his forties, Bob would have been in his late
fifties, and the rest of them down the line were all younger people from a different generation.
Most of them – not all, Sentelle and Henderson were district judges down in North
Carolina and South Carolina – but most of them were executive branch types, who had played
political roles. Jim Buckley, of course, had the double experience of being both in the Senate and
the State Department. Doug Ginsburg was from DOJ and OMB, Larry had a variety of positions in
the Nixon, Ford and Reagan administrations. Ray had been in the SG’s office for a time and went
into private practice. Clarence had been in EEOC. When they came here, most were fresh from the
Reagan or Bush administrations. I think they were much more directed about where they thought
the court ought to go, jurisprudentially, than the older conservatives. They had strong feelings
which were, I won’t use the word “agenda,” but they were certainly consistent and uniform. The
appointments here were paralleled by appointments in lots of other circuits around the country.
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Suddenly, standing became a much stricter doctrine in this court. FOIA cases were much
harder to win, at least that’s what the plaintiffs will tell you. People from Alan Morrison’s group
who do most FOIA work say they tried to stay away from this circuit. All sorts of new nuances on
old doctrines, like ripeness, sovereign immunity, and, of course, this agency discretion thing, which
the Supreme Court gave a great boost to in the Chevron case.
The whole legislative history debate surfaced. If I had to pick out one area where I think
very important battles had been lost, by lost I mean battles that I would have liked to have seen
come out differently, it would be in the standing area. We have had several en banc on standing,
but I think now the steady embroidering of the showing that a plaintiff must make under the
three-pronged standing definition of the Supreme Court about injury-in-fact (which was always
there), but also the newer traceability and the redress ability parts have gone too far. It doesn’t
sound bad if you just talk about it in the abstract, but when you get a case like our Center for Auto
Safety case that we en banced in 1987 and then split four to four, you see hundreds of pages taken
up in several opinions about why the Center for Auto Safety’s members cannot bring a challenge
to the CAFÉ auto emissions standards because they cannot prove that if the CAFÉ standards were
higher, they would definitely be able to get more fuel-efficient cars. In other words, standing has
become sort of a whole sidebar litigation of its own weighing down the court. The Center for
Auto Safety fight was over whether or not the congressional findings in the CAFÉ legislation
were enough to satisfy the so-called traceability and redress ability requirements. There was no
doubt Congress adopted the standards to encourage more efficient use of fuel and some of us saw
no reason that this connection had to be retried in the context of a court challenge about whether
there’s standing.
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That and something called the suitable challenger rule bothered me. The Supreme Court
had for a while a zone of interest test for standing but seemed to have retreated from it. This
circuit then recreated it in a form which is very difficult to surmount, something called the
suitable challenger requirement, which I have dissented from on the ground there’s no such
requirement either in the Supreme Court’s opinions or anywhere else. We have heightened
pleading standards in certain kinds of cases and all sorts of doctrines making access to the courts
more difficult which were not there before.
I think this whole notion of what the courts are for, and how much access there should be
to the courts, is very important. I won’t get into cases, although there are always individual cases
that really get to you at the time. But doctrinally, I feel we’ve gone down a path which some
might say is judicially restrained, but I’m not sure it really is. To create out of the words “case or
controversy” in the Constitution, the elaborate doctrines of standing that we’ve created now under
the redress ability and under the traceability requirements is to me a real exercise in judicial
activism.
Now, let me say just a word about the dynamics on the court. I’d say for a few years in the
mid-080s it was in equipoise. On any en banc you might get six-five or five-four, if someone were
recused. It was Nino Scalia’s theory that in that kind of a situation, you get more petitions for en
banc than when the court has definitely tilted, because the litigants will say, Gee, I don’t know,
that’s a narrowly divided court. I might be lucky enough to get the swing vote, so let’s go. When
a court decisively tilts one way, you’re going to get less litigation.
Mr. Pollak: Has that proved out?
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Judge Wald: It hasn’t been proved out. It’s too hard a factor to isolate unless you did a
real study, and that’s not been done. Our filings have gone up and down, and down and up, over
the years, so it would be difficult to tie it to the changing faces on the court. For several years
now, our civil filings have gone down, while the other circuits went up. Our criminal filings have
gone up to become a much larger proportion of our docket. But our civil and administrative
filings have gone down.
It’s always difficult to tell without somebody really studying it whether the agencies
simply weren’t putting out so much stuff, or people were not challenging what the agencies were
putting out so readily.
There was a period in the mid-080s, when Bork and Scalia and Starr were here, when there
was still a lot of question about where the court stood. Either side could still win. I remember
winning or at least getting en banc on a couple of Nino Scalia’s decisions in the early ’80s because
we still had enough votes which we never had later. I’d say starting about the time that
Silberman, Buckley, followed by Steve Williams and Doug Ginsburg came on, the tilt of the
court changed. After that, we Carterites were in the minority.
By we, I don’t mean the same precise judges in every case. I’ve written a couple en banc
in which Mikva dissented. Ruth and I are often apart. But insofar as you can generalize, we
Carter appointees became the minority. When you’re a minority, and you’re much more
vulnerable to being en banced, I think you begin to write your decisions much more cautiously.
Even when they’re coming out the way you want them to, you do that to keep other judges on
board. Statistically, you’re more likely to have conservatives on your panel. You’re less likely to
have a panel of people with whom you’re entirely in tune.
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The chances nowadays of my being on a panel with two people like Mikva or Edwards is
virtually nil. I’ve maybe had two or three panels a year with one of those. The rest of the time, if
you get a majority, you have to write something that’s acceptable to the majority, and it’s going to
be more cautious than you would choose. You’ll find the bigger generalizations and the more
activist principles and new doctrines announced in the conservatives’ opinions now, not in ours.
They have the support in the full court and we don’t.
Plus, suppose you are on a panel of like minds and you agree on a decision, you have to
write it in the shadow of the en banc because you can be very quickly en banced, and your
opinion wiped out. So what you try to do is write something that’s much more fact-oriented,
that’s not likely to invite an en banc and something that sounds very much more mainstream,
rarely if ever anymore, do you try to announce new principles, at least from our side of the aisle.
So your perspective changes.
I actually don’t write that many more dissents now than before. Over the years, the
number of dissents I’ve written has not changed much. One reason is, you have to pick your
shots. There’s no point in dissenting on everything that you would have liked to come out
differently. If it’s a close call, and you realize that your judgment may be on the other side of the
line from your colleagues, most of the time you let it go. Mostly you reserve a dissent for the
things you feel really strongly about.
Mr. Pollak: So you’d vote with the majority on one of those line cases? Or dissent
without opinion? Do you ever dissent without opinion?
Judge Wald: No. I never dissent without opinion. I concur in the judgment only
sometimes when I don’t particularly like the rationale. The way I’ve worked it out in my mind is
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if I really feel something is wrong, then I feel compelled to dissent, and say why even though it
might only be a paragraph. If it was “iffy” in the beginning, and I went back and forth, but I could
pretty much see the justification on the other side, then chances are I won’t bother.
Mr. Pollak: Would you seek to avoid writing the opinion?
Judge Wald: If I’m not entirely comfortable with it, yes. Everybody gets about the
same number of opinions to write in the course of a year, so you don’t have to feel guilty about
refusing any one. There’s always enough opinions to go round, and since I am senior on most
panels, I can do the assigning. I’ve never gotten myself in the situation of having to write
something I felt really ambivalent about.
There are some opinions I will go along with but I really don’t care to expend my energy
writing them. Then there are the opinions you know are hopeless, but you still feel compelled to
dissent simply because you really do think the law is wrong. Then I do dissent.
Out of the 40 opinions a year I write, there will be at most 8-10 dissents. It’s a little on the
high side for this court, but there are a couple of other people up in that range too. The rest will
write five or six dissents. Over the whole time I’ve been here, I’ve written about 555 opinions and
about 400 of those are for the majority. There’s been just under a 100 dissents.
Mr. Pollak: The tape is probably going to run out. Do you want to put down any
thoughts, if there’s enough tape left, that you have in your mind that we want to be sure to pick up
at another time?
Judge Wald: Here’s what I would suggest for next time. Something about the
chief judgeship, judicial administration, and we’ll talk about some of the cases that stood out.
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Mr. Pollak: Let me express one thing. I’m quite interested in having you state for
history what are the grounds on which you pick cases as significant to you. From your 550.
Judge Wald: I’ll go over them and try and identify the criterion.
Mr. Pollak: I’d like to hear you say something about lawyers from the aspect of
being a judge.
Judge Wald: I will.
Mr. Pollak: I guess my comment about your speaking about lawyers, I’m
interested in your speaking about advocacy, how you see it. I can type up this colloquy that we
have and just send it down to you.
Judge Wald: I honestly believe we could clean it up in one more hour. I think we
can clean it up maybe not today, but in another hour. Then we’ll both be free again.
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April 6, 1993
This is the fourth oral history session with Circuit Judge Patricia M. Wald of the U.S.
Court of Appeals for the District of Columbia Circuit. It is taking place on Tuesday, April 6,
1993, commencing at 9:30 a.m. Present are Judge Wald and the interviewer Stephen J. Pollak.
The interview is being conducted as part of the Oral History Project of the Historical Society of
the District of Columbia Circuit.
Mr. Pollak: You were going to speak about your experiences as Chief Judge of the
United States Court of Appeals for the District of Columbia Circuit. What was the period of your
chief judgeship?
Judge Wald: It began in July of 1986 and lasted until mid-January 1991. Let me
give a little bit of background on chief judgeships. In my time as a lawyer, Dave Bazelon was the
Chief Judge for around 15 years. He went from the early ’60s when he became Chief Judge, until
he stepped down in 1978 in order to let Skelly Wright become Chief Judge. Skelly would not
have been able to become Chief Judge a year or two later because he would have been over the 70
year mark. Dave did step down and Skelly had about two years as Chief Judge. Skelly was the
Chief Judge when I came on the court.
After I had been on the court about a year or so, he stepped down when his 70th birthday
came and Carl McGowan was Chief Judge, but only for five months. Carl McGowan became 70
after about five or six months, so it was really more of a symbolic chief judgeship, although I
think he would have been a fine Chief had he been allowed to remain longer.
Then Spottswood Robinson was Chief Judge for approximately five years between 1981
and 1986. He stepped down when he became 70 by operation of law. As you know, the statute
now is that you cannot become chief judge if you are 65 or over, and you can only stay until you
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are age 70. Even within those age parameters, you can only stay for one term of seven years.
I was the most senior person on the court after Spottswood. When I became Chief Judge,
I had been on the court for seven years. That’s on the low side for most Chief Judges, but
probably not unprecedented. However, I didn’t feel unprepared in the sense that I had been here
seven years and actually for a year or so, maybe a year and a half, before I became Chief Judge, I
was doing a lot of the routine Chief Judge things. Spotts had had a series of illnesses –
Mr. Pollak: What do you consider being prepared to be Chief Judge?
Judge Wald: I think being prepared is understanding how the court operates. You
can have some brilliant ideas about what you want to change. Courts are slow-moving
institutions by and large, and what we do is pretty much set out for us. We’re not like the
executive or the legislature, we don’t go off on brilliant new policy-making initiatives. We can
make incremental changes in the way we do things that may make the operation more efficient.
But we’re not going to be doing something completely different from year to year. We’re not
going to be changing the health care system or the economic system, so I think knowing how the
court operates makes you feel reasonably comfortable, knowing the people in the support
structure of the court, in the clerk’s office. You may want to change some things, but just
knowing the personnel, who does what in the clerk’s office, who does what in the circuit
executive’s office, the district judges downstairs, how our court relates administratively to the
district court is vital before you do anything. I think in that sense, being around the court for
several years before, you don’t feel as though you’re walking in the door to a brand new job.
In my case, Spotts had been very gracious, a year or two before, to make sure that I was
brought into any meetings that he had in which he was acting as Chief Judge. Actually, I took
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some of the work burden off of him. I did a lot of the routine orders and some other things for a
year or two before becoming Chief Judge.
When the exact date came, the way these things happen in the judiciary, there’s no
ceremony or anything, at least we don’t have it in this circuit, and I think that’s a good thing.
There are some circuits which have a big to-do when one Chief Judge steps down, the next steps
up, they have a little coronation of sorts. We could do that, and the question has been raised
whether we should. I somehow like the notion, and it certainly follows through with the
precedent that I inherited, of not doing that. One day one person is Chief Judge and the next day
the next person is Chief Judge and life goes on. I think it has a certain amount of dignity that
way. Spotts was always a “to the letter of the law” kind of person, one day he was Chief Judge
and the next day he wasn’t. That next day, they started delivering everything to my desk instead
of his. As I say, it was one of those things where it felt sort of natural moving from one phase to
another.
Mr. Pollak: Certainly a judge must wait a certain number of years to become at
ease with hearing, deciding, writing opinions in cases before assuming additional burdens of the
chief judgeship. Is that a factor?
Judge Wald: I’m not sure. What I’m always surprised at is with what energy and
enthusiasm new judges jump in. In fact, it seems that they are much more aggressive in their
early years. There’s usually a pattern of new judges asking for en banc on many more cases than
some of us older types who kind of pick our shots very carefully and realize that there are years
and years and cases and cases and so – I have never noticed any reticence on the part of any of
our newer judges to jump in as far as case deciding goes. Rarely would you have a chief judge
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who just got appointed to the court because it is done by seniority.
Actually, I think seniority is probably the best way. This is not to say that on occasion you
won’t get some hot rods as Chief Judges and then some very laid back types as Chief Judges, but
the nature of the court is that we deal with each other so intensively and on such substantive
issues, that it’s better the Chief Judge be selected objectively. If you had a popular election,
which I think the Tax Court does, and there are also state courts where the judges elect their chief
judge, I think it would cause a lot more dissension, polarization, politicization of the court than
everybody knowing that X will become Chief Judge, and the reason that “Y didn’t” was simply
that the years didn’t work out mathematically. So there’s neither the anointed aspect to a Chief
Judge, nor the rejected aspect to somebody who doesn’t become Chief Judge.
The pattern is occasionally altered. Sometimes a Chief Judge steps down early, which I
did, in order that the person coming along next, who would not be able to become Chief Judge
because of age disqualification, gets a shot at it. As I say, Bazelon had done that for Skelly and
there are several other precedents. Bill Feinberg did that for Jim Oakes in the Second Circuit. I
ended up cutting off two and a half years at the end of my term for Abner Mikva so that he could
take it just before his 65th birthday.
The reason I did it, I assume it’s the reason most people do it, is out of a sense of –
fairness is not exactly the right word, but something like that. We came on the court at the same
time. It was really the luck of the draw that I happened to be confirmed first and had a month or
two seniority. I think early on I said to Mikva, of course I will do this. I felt I should. It was the
right thing to do. I also said I was going to do it and although it couldn’t be enforced, you just
don’t go back on your word.
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I have to tell you, I really liked being Chief Judge and I did part with it with some
sadness, certainly I had mixed feelings. I would have liked to stick around for the last two and a
half years, but I think on balance it was the right thing to do. I would feel worse if I hadn’t done
it.
To get back to what actually happened when I was coming on, as I say, Spottswood
Robinson, who was my predecessor, was a man of the law in the truest sense. He’s spent
enormous hours, here until 2:00 in the morning, working on his cases. I think it’s no secret he
took longer to get his cases out than most of us do. He put in an enormous amount of painstaking
effort and that was where his heart really was, in parsing the law.
He did his judicial administration conscientiously, but I don’t think it was a job that he
loved. He told me in fact that he was really quite happy to be leaving. I think many times he felt it
was more of an irritant interfering with his pursuit of what he really felt his primary function was.
As a result, when I became Chief Judge, there were a fair number of things sort of waiting
to happen, waiting to be done. I’d like to think that I was able to take hold of many of them, right
off the mark. To mention some of the things we did, we started a new case management plan at
the tail end of Spotts’ term, but got it really going once I became Chief Judge. Harry Edwards
was very good at this kind of stuff conceptually. He’d been head of a committee that worked up
this new case management plan which we’ve been operating with since, and I think by and large it
has served us well. I’m sure there are always glitches, but it had some good innovative factors.
What it did was move the argument calendar scheduling up so that people knew, when they filed
an appeal, roughly when they were going to get to oral argument. The briefing schedule was also
pushed forward so that rather than doing the briefs right away and having them sit on a shelf for
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months before the oral argument, your briefs were not due until just before the oral argument.
There’s a window period there for people to file the motions, preliminary motions, like
motions to dismiss, things that might throw the whole case out. We even started telling people,
which we still do and it really hasn’t worked to our disadvantage, who their panel is very early in
the game.
There was some worry that lawyers would try to argue too much ad hominem (or ad
womanum) once they knew the panel, but outside of finding a lot of cases written by judges on
the panel cited in the briefs, we really haven’t found that to be too much of a problem. I think
lawyers like it. At least that’s the feedback we get. I don’t think anything suffers. In fact, we had
hoped that when people saw who was on the panel early, there might be a bigger settlement rate.
It’s turned out not to be true, either insofar as we can separate out that factor from things like the
introduction of the mediation program and other things that might affect the settlement rate. It
doesn’t seem to have had any effect. We changed our sitting dates, we changed the pattern of
many of the other parts of our operation, including a much, much greater emphasis on the Chief
Staff Counsel’s office. It used to be called Motions Panel in the early days of the court when I
was here. Now it’s called Special Panel duty. Originally, it included only motion for stays and
the kind of technical motions like time extensions that come up with cases. If you were sitting
that week, you and the other members of your panel would get a bunch of those motions and
nobody paid much special attention to them. You kind of did them one day before or after the
panel sitting. There were motions clerks who were like law clerks, young people just out of law
school who had good records but for one reason or another had not been selected to be chambers
clerks, who drafted memoranda and orders for the motions.
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We changed that operation to make the Special Panel much more the focus of dispositions
and a more important part of the entire appeal process. First of all, we now take people who have
had a couple years of experience either in the government, or sometimes in private practice, and
we have 10 or 11 staff attorneys. Another thing, we do a lot more dispositions up front with the
Special Panel. Three judges, the same three judges, sit on Special Panels for two months at a
time and then in the summertime we adjust for vacations, but there’s always a Special Panel going
on, and it’s usually going for a period of two months at a time. There’s some regularity to it. The
Special Panel meets every couple of weeks and we not only now do motions, which we always
did, but we now do summary dispositions, summary affirmances and summary reversals and we
do these threshold motions that come in in the first 45-day window period, motions to dismiss.
It’s sizable work. I’m on Special Panel right now and last week we had a conference that
disposed of 30-35 matters. They’re more carefully done now, I think. The court law clerks were
very good, but the whole thrust of the operation was not as professional as it is now.
Mr. Pollak: Now you have two to three experienced lawyers all under Mark
Langer, the Staff Counsel?
Judge Wald: Right. He has two excellent assistants, Marty Tomich, who has
years of experience as a public defender, and Gail Reizenstein, who was over in EEOC. It’s much
more of a professional operation. It’s also turned out to be a good place for young mothers to
work. While I was Chief, Mark Langer came up with the idea that we try splitting some of the
jobs, because it is the kind of work that, except for the occasional emergency motion, you really
can plan your time around.
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Mr. Pollak: So you may have two people filling one job.
Judge Wald: We’ve been doing that now for several years. It works out. At one
point, I think it’s still true, we had four young mothers splitting two full-time jobs. My guess is
we’re getting more than double, each one of the four is probably doing two-thirds of a full-time
job.
Mr. Pollak: On summary dispositions, do you write opinions?
Judge Wald: On summary dispositions, we always write something, whether it’s a
published opinion or not will depend upon whether any new law is involved; usually it won’t be.
There are occasional published opinions that come out of this kind of practice.
One interesting thing that’s emerged in the new plan is that the government, which is a
prime litigator in this circuit, has gotten a lot more of its cases disposed of up front. In all
frankness, there are a lot of pro se cases that aren’t going to go any place. We always look and
hope that we will find the Gideon one in there, but most of them are not Gideon ones. Most of
them are subject to fairly prompt disposition. Our staff lawyers do not – I assure you – give
them the back of their hand; they really look carefully. In most cases, there isn’t anything there.
Now the government doesn’t have to drag them on to some kind of a merits hearing. They can
move for summary affirmance and usually get it. I don’t have the figures in front of me, but at
one point we were disposing of up to 500 or 600 cases, 700 cases a year in the Special Panel.
That’s turned out to be a very important part of our operation, but it sort of shifted the
balance. The notion is that you will dispose of open-and-shut cases there rather than carrying
them onto the merits calendar. Therefore, the merits calendar will be reserved for the cases
which, pretty much, you’re sure have real substantive issues in them, and it will be easier for
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those cases to get onto the merits calendar because they won’t have been shoved aside by some of
the other less debatable cases. It’s a tracking system, basically.
Mr. Pollak: I have the feeling that this whole bag of reforms that you’ve been
describing – changing the calendaring process – all serves to point up the more major cases
which the court actually calendars for oral argument and the relevance of the briefs which are not
out of date.
Judge Wald: One of the things that our judges were getting increasingly irritated
about, that led Harry Edwards and this committee into coming up with some of these reforms was
that briefs were filed six, seven months ahead of the oral argument and things would be
happening in the interim. As you know, if something happens after you file your last brief, you
have to file one of these yellow supplementary briefs (they have a yellow cover). We were
getting truckloads of the yellow briefs on top of the regular briefs and it was annoying. As soon
as you put down the initial brief, there were three yellow briefs to catch up on. That kind of thing
has pretty much been eliminated. The reply briefs now are generally just due about a couple
weeks before the argument.
At any rate, it took us a couple of years to work into this system. We’re always finetuning it of course. As I say, I give Harry a great deal of credit, but we worked on it together and
we put it into effect when I came in as Chief. The amount of time that it takes for a case to go
through the court of appeals is actually a function of many factors, but at least for a period, we
were getting cases out from the time of docketing to time of disposition at a faster rate.
Another big factor in the speed-up is the advent of a lot of new, relatively young,
enthusiastic judges. In the period I’ve been on the court, there have been at least 15 switch overs.
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But just during the period that I was Chief Judge, there were seven or eight new judges in just
those four and a half years. So every year, we had a couple of new judges.
Mr. Pollak: And your experience is that the newer judges move it?
Judge Wald: Yes, in general. Certainly they tend to be faster than the older
generation of judges which sort of ended with Spotts. I think Mikva, myself, Edwards and Ruth
Ginsburg will move as fast as anybody, as any of the newer judges. There was a widespread
belief on the court that the most important thing about judging was the kind of scholarly opinions
that you produced. Sometimes, although very laudable, that kind of feeling results in no sense of
urgency. There’s a little residue of that still on the court. You had a sense that some judges didn’t
always think, I’m sitting on somebody else’s case. These are real life people that need a real life
dispute settled. They need to go on with their lives and it is important to them that they know
what the answer is here, be it a little case or be it a big case affecting industry or consumers.
There wasn’t always that sense. It was, rather, if we have to take two years or even more to get
this thing really settled in a way that’s intellectually satisfying, then so be it.
My feeling always was that if the Supreme Court can get all its opinions out by July 1st,
so can we. One should at least make an effort to get the opinions out by the beginning of the next
term. I know how frustrated we were during the many years when I was a member of the bar with
having cases hanging on a couple of years. That really doesn’t happen anymore. It would be the
rarest case that an appeal would be around that long anymore; it would mean we’d been waiting
on a Supreme Court decision we knew was pending or a question had been certified to a state
court. Even the biggest, what we call our complex cases, all come out within usually five, six,
seven months.
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That’s another thing I didn’t mention about our case management plan. We now have
three tracks. A summary track, the regular merits track and then we have something called the
complex track, which is an interesting innovation. This track consists of really big cases, maybe a
dozen cases a year. These huge cases usually deal with regulations that take up 50 pages of the
Federal Register and they come up primarily in the environmental and energy fields; a few
extremely complex white collar criminal cases also get put in this track. A panel is picked at the
very beginning, i.e., when the appeal is docketed to hear the case, again by random luck, but it
represents duty over and above the regular merits and special panels. A panel is picked and that
panel manages that complex case from beginning to end. In other words, those cases tend to
create a lot of pretrial, pre-argument motions and scheduling problems and disputes about what
goes in the appendix. The same panel manages all that and eventually sets the case for argument.
Those arguments often go on for hours and hours and hours because they are set specially and
because the cases tend to be so big. They’re not confined to 15 minutes or half an hour. We’ve
had many oral arguments of several hours and in one case it lasted two days.
Mr. Pollak: Do you recall the two-day case?
Judge Wald: Yes. I recall the two-day case; your firm was involved in it. It
involved the Surface Mining Act. Tom Flannery downstairs had sat three years on a set of
regulations which was just enormous. By the time we got it there was something like 46 separate
statutory issues, none of them frivolous. There were standing issues all over the place. There
were federalism issues too and your esteemed senior partner, Warner Gardner, argued for the
industry. In each issue there were three parties–industry–the environmentalists and the
government. We had scheduled a long day of argument, maybe 4 or 5 hours. There were some
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important standing issues involving the status of some of the challengers and that, of course, in
this court increasingly has become a focus for all kinds of internal disputes, legal disputes about
who has standing to sue.
At any rate, we were arguing standing, and I asked the government lawyer a few
questions. I considered them what you call “soft” lobby questions to try to establish something on
the record, since the government was not opposing standing. He looked at me sort of peculiarly
and I thought, What is it? Am I not making myself clear? And then suddenly he just keeled over
in the courtroom. He went down and hit his head and the whole place went into shock. I and the
other judges rushed down from the bench. I was presiding. He was out cold. At that point, we
said something ludicrous, like, “Is there a doctor in the house?” It was a very crowded courtroom.
It turned out there was a young lawyer from the Interior Department who had learned how to give
resuscitation in the Viet Nam war. Meanwhile, I said to the courtroom deputy, “Call 911,” at
which point she said it’s busy. So I sent two law clerks to two different phones and we ended up
with two ambulances. The young man who was attempting to take his pulse said, “I can’t find any
pulse.” When the ambulance did get here, the Clerk of Court rode over to the hospital in the
ambulance with him. I attempted to locate a doctor, his doctor, myself by paging Georgetown
Hospital. This is all going on in the courtroom. He had had a minor heart attack and he
recovered and came back and thanked us all.
At that point, I decided we needed a protocol for emergencies in the courtroom and so we
installed one. What exactly everyone should do in a situation like that? I haven’t been present,
but there have been a couple of other people who fainted during oral argument. In their cases it
was usually either nervousness or heat prostration.
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Mr. Pollak: We all worry about it as you stand up –
Judge Wald: Yes. It was in the middle of that complex case. That young man did
not come back. We rescheduled that oral argument. That was a two-day oral argument.
These complex cases sometimes end up in opinions 100-150 pages because they have so
many issues in them. We evolved a technique now which is that in most of those cases we split
the writing chores among all the judges on the panel. If one judge should write the opinion, it
would take that judge and his or her law clerks the whole year practically. So almost invariably
the panel splits up the opinion and that’s why sometimes you see these per curiams and there’s a
little star down there and it will say Judge X wrote parts 1, 2 and 3. You’d have one law clerk and
yourself tied up for months on one opinion otherwise. This way, the clerks work together. They
get together, we have a conference, we assign out parts of it and the clerks get together and make
sure the whole thing is logistically and stylewise put together and these really quite big cases get
out promptly.
Mr. Pollak: When you are sitting on a case of that nature, long argument, potential
of splitting up the issues for opinion writing, what do you do to retain what you want out of the
argument? What’s your procedure and do you use the recording, do your clerks use the recording
of the argument?
Judge Wald: Often they do. This is the way I operate and it’s probably similar to
what most judges do. I can’t take any kind of decent notes while I’m presiding because I’m senior
now on any panel unless Mikva is presiding. You’re watching the lights, you’re watching the
various speakers. You’re listening to the content, you’re participating in the questions, so I don’t
even try to take notes. My law clerk, whoever’s assigned to the case, generally takes notes. We
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do use the recording, especially in any complex case or especially in any case where the lawyer
may have said something that we want to retain, whether it was a concession or something that
hadn’t been fully explained in the briefs.
We had this one really bad experience where the recording machine didn’t work and the
lawyer had made a concession. We had to reconstruct the concession from notes. You learn
from experience. After that case, we instituted another new procedure and that is before any
hearing now, the courtroom deputy has to go in there and do a trial run on the machine and make
sure that it’s operating. It sounds simple, but we really had this big, complicated environmental
case and a very important point was made at argument and when we went to listen to it, the whole
thing was blank. We do use the tape. Not to say we listen to a whole tape for every argument,
but we do use it when we need to.
We got a new microphone system in while I was Chief Judge and so the taping is better.
It used to be you could hardly hear the thing, and now it’s pretty good.
Mr. Pollak: Did you restaff or change staff in any way that you want to comment
on?
Judge Wald: I’m going to. After I had been here about a year, we had to get a new
Clerk of Court. There was a search for that. We ended up with Connie Dupré, who had been a
clerk to Judge Edgerton a long time ago, and more recently in the EEOC. She made a lot of
changes in the clerk’s office too. We got a management study of the clerk’s office which was
done during the period that we had the search committee going, which resulted in a lot of
changing of the paper flow. I’ve got to tell you, overall, having been on the court for 14 years,
and having been in the government for a couple years before that, it seems to me that you have so
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many changes in organization every time a new head takes over that I’m never sure whether you’re
really making progress or just spinning wheels. We went through that process. I think the best
personnel decision that I ever made was the selection of our present Circuit Executive, Linda
Finkelstein.
Actually, there’d been a Circuit Executive who’d been chosen I think in Spotts’ last year,
Karen Knab, who left after a year, year and a half, and went on to become an administrator in a
private law firm. We had some excellent candidates for her replacement and we were hardpressed, actually, to make the choice. The more traditional candidate was a very excellent young
man who was the Assistant Circuit Executive in another Circuit and he was actually
recommended by the members of the search committee. Linda Finkelstein was also a candidate.
I’d known Linda a little bit when she worked for Sterling Tucker on the City Council, and then
she ran the mediation programs over at Superior Court. She was also active in several women’s
groups around town. I knew her, I wasn’t an intimate friend of hers. But I just had a sixth sense
that she wanted to succeed so badly and she wanted so much to make the move over to this court,
that she would be a wow. Sometimes you just get that sense that even if somebody’s paper
qualifications are not necessarily the absolute best of the bunch or somebody else might look
better on paper, you get that gut instinct that you want to go with the person who will give it
everything they’ve got. I had that sense with Linda and I think that was probably the best
personnel decision I ever made – to take her, not over anyone’s objections, because other people
liked her too, but they had picked the more traditional candidate. She turned out to be a lifesaver
for me. Not only did she become a good friend, but she just sort of took over an awful lot of
loose ends that were hanging, when her predecessor left. Linda turned out to be just terrific.
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Probably the biggest single thing that she and I had to work on immediately was the
courthouse cafeteria. Food service sounds very prosaic, but as it turned out, I think I spent more
time as a Chief Judge on that project than anything else. The old cafeteria vendor had just said,
“No more, no way, we’re losing money, etc.” We couldn’t get any bids or anyone to come in to
take it over. GSA couldn’t care less. They didn’t think we had enough people in the building to
merit a cafeteria. “Why couldn’t we go to the Labor Department or Superior Court?” But, you
know, there are judges, there are jurors, witnesses who need someplace to eat. The judges also
wanted to keep their dining room upstairs. But it was really an effort to get the money. Linda
immediately established contacts with the Administrative Office even though she hadn’t worked
in the federal system before. She was able over a period of two years to do things like find
pockets of money up there, establish relationships, and believe me, you do need to be a political
operative to work with the Administrative Office. You have to know who’s got money left in the
budget. They have to like you, tell you about the money that’s left in this pocket or that one. She
went out and found a wonderful woman who is a private consultant on cafeteria design, and got
the money from the AO to hire her.
We also managed not to go through the GSA procurement process which is murderous.
We got the advice of a very fine procurement lawyer who is on an advisory committee here at the
court who helped advise us on how to run our own procurement. Through a long series of almost
impossible obstacles, which I certainly couldn’t have hurdled without Linda, including many
meetings in which Aubrey Robinson, the Chief Judge of the District Court, who was a terrific
help, would just stare down all these GSA leisure suit-types and tell them flatly that we were
going to have a cafeteria; actually we did end up with one. It might not be the best cafeteria in
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the world, but I’ve got tell you, it beats a couple of vending machines which was all we had when
I took over with cockroaches running all over them. It took just thousands and thousands of
hours.
Before Linda, her predecessors had just thrown up their hands. They didn’t leave me with
any hope, with any leads, with anything. She created the thing out of whole cloth. Anyway, that
was only one of her contributions. If I did nothing else during my term, I had the good sense to
hire her.
One of the other things I feel good about was introducing the mediation program in the
court of appeals. Linda and her crew also worked with the district court to introduce mediation
and neutral evaluation programs down there. As it turned out, with the deluge of criminal cases
which began to come in toward the end of my term as Chief Judge and has escalated since, and
which has overwhelmed the district court judges in terms of their being able to get to their civil
caseload, the ADR (Alternative Dispute Resolution) program turned out to be particularly
valuable. Seven hundred cases have gone through the district court’s mediation program, so far.
Our program in the court of appeals is smaller and clearly our chances on appeal of successfully mediating a case are smaller as well than if you get the case at the very beginning in the
district court. Even so, we are still maintaining a very respectable settlement rate of about 30
percent of the cases that go into our program. I think lawyers are pleased with the program. The
government started out being really very skeptical and came into it practically kicking and
screaming, and now they’re enthusiastic participants. I think we did some pioneering
work; people had always said, “Oh, you can never have a mediation program in your court with
the government as the litigant, the government has no incentive to sue and you have all these
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policy-type cases. You don’t have commercial cases to the extent the Second Circuit does.” But
increasingly we’re finding more and more kinds of cases that are amenable to mediation.
I’ll just mention a few other things very briefly that happened during my period as Chief
Judge. We got the history of the court going and that in turn under Ruth Ginsburg spawned the
Historical Society, which created this oral history project. The basic written history of the court
is about two-thirds done. It should be coming out in a couple of years. There were other small
things. The D.C. Circuit really was not in the forefront of court administration. We didn’t even
have annual reports. You don’t remember this, but I initiated the court’s first published annual
report.
Another thing that we made great progress in, this probably would have come inevitably,
but Linda’s certainly responsible for keeping it on track, was automation. Before 1986, only two
judges in the courthouse had a computer. Spotts, strangely enough, was one of them. Again, by
begging, borrowing and stealing (not literally stealing) at the AO for several years we were able
to gradually get everybody computers, including law clerks. Now we are one of the pilot courts
for computer networking.
Insofar as there are tangible legacies left of being a Chief Judge, those are some of them.
Being Chief Judge also means that you represent your court in the bigger judiciary picture.
That meant being part of the U.S. Judicial Conference, which was certainly an interesting
experience. I knew some of the other judges just from going to other circuits for their
conferences, but you really get to know them better in the Judicial Conference.
Mr. Pollak: Have you sat on other circuits?
Judge Wald: None. Since I’ve been here, no active judge on our court has been
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allowed to sit elsewhere.
Mr. Pollak: You’ve got too much to do here?
Judge Wald: We don’t really have too much to do here. It’s one of those things
where the ground rules are laid by the Chief Justice and for many years now active judges are
allowed to sit in other circuits only under special circumstances. Senior judges can move around,
but active judges are not allowed to sit outside their circuit unless the circuit is in a position
where it never borrows from any other court, either. For many years we did have visiting judges
during periods when we had vacancies. We really haven’t had them for the past couple of years.
Even so, our judges can’t go elsewhere. Once in a while an exception is made like when Florida
had a backlog crisis on drug cases, and a call for help went out and some of our district judges,
like Lou Oberdorfer, went down and tried some drug cases there, or if some circuit has all of its
judges disqualified they may have to bring in out-of-circuit judges for one case, but I can’t say,
“Gee,” to Cliff Wallace on the Ninth Circuit, “I’d like to come out there.”
A couple of observations on the Judicial Conference, which is the governing body of the
entire judiciary. The first meeting I attended was Warren Burger’s last meeting as Chief Justice.
It was a very, kind of folksy, slow, ambling meeting. People got up and talked and they rambled
a little bit. It lasted two and a half days. I can’t remember there being anything critical on the
agenda.
The next one I went to, the transition had taken place and Bill Rehnquist had become
Chief Justice. It was really quite a different operation. It lasted only one day. He only stayed
there for half a day and then turned it over to whoever was Chair of the Executive Committee.
Bill Feinberg, from the Second Circuit, would take over the rest of the day. There were two
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calendars. A consent calendar and an argument calendar and if you didn’t call in a week ahead of
time and take something off the consent calendar, it would never come up for discussion. Talk
about lawyers preparing for oral argument. You better know exactly what you were going to say
and be ready to say it and say it very quickly and sit down because if you started to ramble, the
Chief would tell you to sit down. I remember in the first meeting one of the old buddies of
Warren Burger got up and began to talk. I think he was like 40 seconds into his thing when the
Chief Justice leaned over to him and said, “Will you kindly say what you want to say and sit
down.” And this poor old guy, he was not used to being treated that way. Rehnquist was really a
very efficient chair, sometimes a bit sharp. He made his views known quite well, but on the
whole he was fair in terms of letting viewpoints be expressed. He was out of there by noon. We
were out of there by 3:00 or 4:00 in the afternoon and believe me the old buddy, buddy stuff was
quickly gone.
Let me mention the two most important, most controversial things that happened during
the Judicial Conferences that I went to. By and large, most of the work of the Conference is done
in committees and the committee reports are by and large approved. A lot of the Conference
business is approving requests for new judgeships or deals with the budget. We did have a big
fight over habeas corpus reform and the Powell Committee report. At the time I came in 1986
and during the years I was in the Conference between 1986 and 1991, Carter appointees were just
beginning to ascend to chief judgeships. I was among the first Carterites that became a Chief
Judge, but gradually, several more came along in the next few years.
So you were getting Carter liberals becoming the Chief Judges of the circuits, who, of
course, are members of the Conference. The other members of the Conference are Chief Judges
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from one of the district courts inside each circuit. Many of them tended to be older and much
more conservative. In the habeas corpus fight, the votes were pretty evenly divided between the
circuit chief group that wanted to make several “liberalizing” amendments to the Powell report,
and the district court judges who wanted to okay it as it was.
I was a member of the liberalizing group. So was Leon Higginbotham who was chief of
the Third Circuit for a year. Bud Holloway, in the Tenth Circuit, was a member. Gil Merritt was
a member. Don Lay in the Eighth Circuit, Ted Goodwin in the Ninth.
Mr. Pollak: Wasn’t Merritt the Sixth Circuit?
Judge Wald: Yes. Jim Oakes in the Second Circuit and Sam Ervin and before
him Harrison Winter, also in the Fourth Circuit, were all Carter appointees. So I say it was quite
evenly divided and we actually won a couple of amendments on the habeas front, but then we had
this strange situation where the vote would be maybe 14-13 in favor of our amendment. The
Chief Justice would then vote himself, bringing the vote to a 14-14 tie and declare we lost
because we didn’t have a majority. He did that on three or four amendments. I’m told that the
rules of the game allow that, but it seemed procedurally strange at the time.
We also had to vote on the recommendation for impeachment on Judge Alcee Hastings in
the Eleventh Circuit, which was a tense experience. In general, I enjoyed the other Chief Judges.
We generally met after each Judicial Conference and we’d pick one topic of court administration
and exchange our experiences, whether it was judicial councils, case management or something.
Mr. Pollak: Did you learn from them?
Judge Wald: Yes. They were all gracious and interesting. Don Lay from the
Eighth Circuit was a real leader and very liberal to boot. Everybody was very anxious to be
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useful, to be helpful to other people. In general, I found them a very compatible bunch. The
one other thing I’ll say about judicial administration. I thought that Chief Justice Rehnquist did a
very good thing in the beginning of his tenure in 1987-88. Most of the committees of the Judicial
Conference under Chief Justice Burger, I think it’s fair to say, consisted of a handpicked bunch of
old-timers. The same people would show up on all the committees and they were sort of an old
boys’ network; there was no question about that. There were only two women who would appear
on all the committees, and they were the same two. One was Cornelia Kennedy in the Sixth
Circuit, very well liked by the Chief Justice, and then there was Amalya Kearse, a Black woman
judge from the Second Circuit. For whatever reason, she and Cornelia appeared on several
committees and no other woman ever got tapped for anything. When Rehnquist came in, he
completely redid the committee structure. He did a good thing in the sense that he set up a
general presumption that people would only serve on one committee for at most two terms. Some
other people would get their chance to serve that way, and most committees would have a
representative from each circuit on them.
Mr. Pollak: How long was a term?
Judge Wald: It depended on the committee, but usually a term was three years.
Some of them are two. For instance, I got appointed to the Code of Conduct Committee, which I
really enjoyed and they had completely reconstituted the committee so that there were five-year
terms and three-year terms, and that I ended up with one five-year term. Some people had two
three-year terms. The revamping of the committee structure did mean that there were far more
people involved in the Conference committees. Still, if you look at the present committee
membership, the important committees are headed by people that I think the Chief Justice feels
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closer to than others. The pity of it is, I think there’s some terrific people in the judiciary who
aren’t necessarily on exactly the same wavelength as the Chief and we don’t get the benefit of
their potential.
Mr. Pollak: Do you want to name any of them?
Judge Wald: Ruth Ginsburg has never been on a substantive committee. I think
she’s only been on the Bicentennial Celebration Committee. I feel lucky to have had that one
term because the Code of Conduct Committee was important and I enjoyed it very much, but I
never got any other committee assignments. I just think there’s some very good people who have
to find other ways to use their talents. You have to do something besides your job and you find
other ways to use your talents. I’m not sure the government or the judiciary gets the full benefit of
all our judges.
Given that any leader of any institution is always going to pick people he or she feels most
comfortable with, whether it’s philosophically or because he knows them through other networks,
I don’t know how that can be avoided. It’s only a comment.
In the beginning, I thought women were totally unused. There were only two women on
committees, Cornelia and Amalya. Rehnquist has improved that some. There are now a
moderate number of women, still not as many as there should be, but there are a larger number. I
also think the judicial institutions have really not kept pace – there are no women in any
positions of power, authority, in either the Federal Judicial Center or the Administrative Office.
Among the women, it’s sort of a scandal.
Mr. Pollak: Has anybody said anything to Ralph?
Judge Wald: I haven’t said it directly to Ralph, but I’ve talked with some other
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people and I think the message has gotten through to Bill Schwarzer, for example, whom I like
very much and who also has responsibility here. The only woman that’s ever been at the Federal
Judicial Center in a management position was Alice O’Donnell. She died last year.
Let me say a few words about the judicial council, the governing body of the circuit. The
judicial council, by statute, is composed of an equal number of members of the circuit court and
the district judges. That’s recent, about two years ago, Congress legislated that. Before it was up
to the circuit to decide what the balance was between district and circuit judges. That’s very
important because for many years before I as Chief Judge took over the council, all circuit judges
were members but only a small group, I forgot whether it was 6 or 8, of district judges were
members, so they were often out-voted. Not that everybody votes as a block. Now it’s even.
What we do up here is we rotate council memberships between the judges on two-year
terms. Downstairs the Chief Judge or a meeting of district judges decides who will be their
council representatives. The council in each circuit is supposed to make any internal rules or
regulations, sit on any appeals from the Chief Judge’s dismissals of judicial complaints or conduct
investigations of those he does not dismiss, and deal with anything else involving circuit
governance that comes up.
Mr. Pollak: It did the Alcee Hastings thing in the 11th Circuit?
Judge Wald: Yes. We’ve never had anything that dramatic here. The Council
became of increasing importance during the years I was Chief Judge, and has continued to be so.
Aubrey Robinson was the Chief Judge of the District Court during the entire period of time I was
Chief Judge. He was grandfathered by the legislation back in 1982 that gave the rest of us sevenyear terms. He was already in place when I came on. Thus, his term transcended a whole decade.
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I enjoyed very much working with Aubrey. I think we worked very well together. He was direct,
to the point, he was supportive. We never really got into any turf fights and I think that what the
district court needed, we tried to accommodate. He was understanding about it; he was reachable.
He too felt, I think, that way about me. Aubrey liked administration, and, indeed, he had inherited
a court that needed administering. Perhaps it had not been administered to its fullest before, so he
set about doing what needed to be done and he enjoyed it. Either you like it or you don’t. I liked
it, he definitely liked it. I think he enjoyed the notion of getting things accomplished, getting an
operation going, getting the cafeteria, producing results. He, of course, was the leader of his
delegation to the council.
Now the AO and various parts of the Judicial Conference are encouraging councils to do
much more of the work that courts did in isolation themselves, everything from space planning to
automation, to become a much more centralized locus for that kind of planning, and some of that is
happening here in this circuit too. We will always be a peculiar circuit in that we are all in one
building. Judicial councils in other circuits, like the Ninth Circuit, have got to administer God
knows how many dozens of district courts. Even the First Circuit which is small and a comparable
size to us, where Steve Breyer is the Chief Judge, has several district courts out in the states; we
have one trial court. The full potential of management by judicial councils will never come to fruition in our D.C. Federal courts because we can pick up the phone and call each other or see each
other in the hallway. But even for us it’s a useful mechanism for getting more formal things done.
Mr. Pollak: I have two questions about the chief judgeship. Maybe they relate to
one another. The first is: Was it your experience that the Chief Judge has any role or function or
actually in other ways influences other judges on the court substantively? And secondly, what is
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the Chief Judge’s role, or as you experienced it, in relation to en banc handling of cases.
Judge Wald: My experience is that Chief Judges have absolutely no influence in
case outcomes over and above their own vote and powers of persuasion. I have never seen the
likes of an Earl Warren or any other Chief Justice reputed to be able to bring the court together, in
the D.C. Circuit. I have never seen a Chief Judge, be it Skelly, Spotts, myself or Mikva, able to
use their status in any way to influence the results of cases. Maybe it’s the culture here or maybe
it’s that this court is more sharply divided than some other courts, but I have never seen a Chief
Judge perform any bringing-together function in substantive decisionmaking. I do think that in
the way a Chief Judge presides over an en banc court or judges meetings, she can try to keep a
climate that is free, at least, of personal nastiness or vendettas or incivilities; she can try to calm
things down when the going gets rough. But in terms of creating consensus, bringing people
along to your point of view because you’re Chief Judge, I have never seen that happen. When the
young judges come on this court, they already have their own point of view. I’m not suggesting
that their views can’t be changed, but I’ve never seen one of them vote with a Chief Judge because
he or she was the Chief Judge.
You have to remember the period that I was Chief Judge. There were four of us Carter
appointees and then counting the people that came and went like Bork, Scalia and Starr, there
were 10 or 11 new appointments from a very different place on the philosophical spectrum than
we were. It was not likely that they were going to look for some kind of role model in us. If
anything, the most prominent or the most articulate spokesmen of the conservative point of view
were the new appointees on the court. A Chief Judge is one vote, period. He or she just has the
benefit of his or her own persuasiveness. A Chief Judge’s function in an en banc is to preside and
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try to make sure everybody has their say, it’s just that. I know of no instance in Skelly’s term, in
Spotts’ term, in my term, certainly in Ab’s term, where warring factions have been brought
together through the intercession of the Chief Judge. In fact, if you looked at the number of times
the Chief Judge ends up on the dissenting point of view in the en banc, I think that would
probably give you a pretty good clue. I do think that a Chief Judge has a duty to try to keep the
waters as calm as possible, and certainly not to contribute to their roiling. We all know of
instances that don’t have to be named, in other courts where Chief Judges, if anything, have
exacerbated factionalism by wielding power in arbitrary ways or making people feel they’re
excluded, which makes things worse. I don’t think that’s happened here.
There is of course the whole problem of trying to keep the administration of the court
separate from the substantive differences between judges. I will say that most of my colleagues
were very supportive administratively and there were only a few times where I felt perhaps the
philosophical differences had spilled over into administration.
In one instance, though, the two did overlap. There was a move against using visiting
judges. The neutral argument was made that if you have a split panel, and the visiting judge has
to throw his or her weight on one side, you have a very shaky precedent because the visiting judge
is off some place else. Nobody knows if that is a real precedent or the next time it will get
knocked down: is it really the law? In the early days, the Chief Judge used to pretty much decide
who were the visiting judges, and I have to admit in Bazelon’s days, the visiting judges
tended to be people he thought were likely to be very supportive of his views. There was some
resentment about that.
During my period as Chief, when we did have some visiting judges, we always sent the
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list around to all the judges and let them either add to it or, if they had any unfortunate
experiences, subtract from it. So they were ones that were agreed upon by everybody, and their
philosophical bents varied widely from Hugh Will of the Seventh Circuit to Alex Kozinski on the
Ninth. I know Alex is an active judge, but he had some business where he had to be in the east
and so the Chief Justice let him sit with us. But basically most of our judges didn’t want any outof-circuit judges participating in making our law.
The other issue that came up concerned judicial disclosure of affirmative action efforts.
Way before I became Chief Judge, the Judicial Conference had adopted a resolution saying that
courts – it was not absolutely mandatory language, but certainly was strong encouragement
language – should file statistical affirmative action reports annually. How many people have you
interviewed for jobs in each chambers, each court office, how many minorities, women, do you
have, how many did you interview? That went along, and the reports were published in aggregate
form by the AO, but nothing much happened. Then we had a really strong revolution a couple of
years ago and certain judges said they thought it was an infringement upon their Article III rights
to disclose such information. They didn’t believe in the whole concept and they said we won’t
comply, and they didn’t. So most of our reports, if you look at them, have these little stars down
there saying this doesn’t include the chambers of Judges X, Y and Z. The Administrative Office
is scared of taking Article III judges on.
Let me talk briefly about two things, and then maybe we’ll get into the cases.
One is, I don’t know if I’ve emphasized the enormous importance in the life we lead here
on the court of our law clerks. Not just for the duties they perform. They do perform a lot of
important duties. But in some ways it’s a unique kind of job that these bright young people
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perform, who come directly from law school into positions of such responsibility. I do not mean,
of course, that they make our decisions for us. But although I’m told there are still some holdouts,
some certified geniuses like Judge Posner on the Seventh Circuit, and maybe other people, who
write every word of their own opinions, that doesn’t happen in most courts, not to my knowledge
on ours. The clerks have a lot a responsibility, though not for writing every word of the opinions,
because I think most final drafts end up reflecting a large portion of the judge, whether or not the
judge takes somebody else’s first draft and reworks it, or writes his own first draft and gets a lot of
clerk input later on in the process. There’s just no way we can do all the cases; we handle 120
cases a year apiece, and get it right most of the time without help. I know we make mistakes
sometimes, but to get it right most of the time, get a hold of complex material, make sure you
haven’t omitted anything in the record, you really have to have hardworking and very, very bright
law clerks. They also perform a socializing function in the court. We don’t often call up another
judge in chambers and say, Well, what do you think of the case we’re going to hear two weeks
from next Tuesday. You could; it just doesn’t happen. But your law clerks will get information
from other law clerks as to what’s bothering them in that chambers, what they are worried about.
By the time you go into oral argument, you have some sense of whether this is going to be a
highly disputed case or not. You still get some surprises, but not as many as if the clerks weren’t
talking. And when you actually prepare a draft, very often the law clerk will get a lot of small
things that are bothering other chambers worked out with the other law clerks, so that when the
recipient judge writes a memorandum to another judge, it will be two paragraphs long, and it will
just go after some very basic substantive point, not be filled with a lot of little things which can
be worked out ahead of time by the clerks.
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I think they are enormously important. I’ve been very lucky. I think every judge I know
would say the same thing. It’s fun to watch them. It’s now into my 14th year and so I have my
ex-clerks all over the place, in practice, academics and government. One of my early law clerks
was Secretary of State Baker’s number one deputy and ended up being the Deputy Chief of Staff
in the White House in the past administration.
Mr. Pollak: Who was that?
Judge Wald: Bob Zoellick. On the other hand, I also have several clerks in policy
jobs in the new administration. Nine or ten that are teaching in law schools, some are successful
practitioners, some who’ve gone into other kinds of public service, a few have become legal
service lawyers. It gives one a good feeling.
Mr. Pollak: What has been the division between men and women of your clerks,
approximately?
Judge Wald: I’ve had a high percentage of women. It must be approaching half. I
think there was only one year, through some freak – one of those years where we tried to manage
the law clerk selection process, that I ended up with no women. Most of us pick our three law
clerks on a package theory. You want to have some diversity among the three law clerks. I’ve
always, except for that one crazy year, had one woman and often two out of the three. Even in
that one crazy year, I made an offer to a woman, but she didn’t take it. That’s only one year out of
all 14. There’s no dearth of good women.
It’s interesting. Most of my woman clerks have gone into teaching. I had one who has
just become a partner at Miller, Cassidy; I have a couple in the government. An awful lot of
them, I’ve watched go through the same thing I went through and my daughter is going through to
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try to balance career and family. A really terrific woman law clerk I had in my first year here has
been working eight years part time in the Justice Department while she brought up her three sons.
I think now she’ll graduate to full-time. A lot of those problems of women in balancing careers
have not been solved as yet.
At any rate, the law clerks are very important because they really are the only people
during the course of the year that you can speak freely and candidly to. So far, to my knowledge,
I’ve never been betrayed. I lay down laws that anything I say to them, or if I get impatient with
another judge or something, is absolutely confidential; such confidences are not clerk talk. Were
I to find out that a confidence had been violated, that clerk would never be the recipient of any
confidences again. You do work on things that consume you, consume your intellect,
occasionally consume your emotions, that you are not able to share with other judges. Either they
don’t have the same cases or sometimes they are just different personalities that you wouldn’t be
that likely to form a close friendship with. The kind of camaraderie that you would get in a law
firm or you would get in a government office or in a public interest office, you simply don’t have.
Mr. Pollak: So you get it with your clerks?
Judge Wald: You can never get it entirely in this job. There’s always going to be a
difference in status and there’s always going to be a difference in age, but it’s the closest you can
come.
Mr. Pollak: Do you change your clerks at the same time each year?
Judge Wald: Yes, in the summer.
Mr. Pollak: Is it an uncomfortable time when the new ones are in and you don’t
have that experience?
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Judge Wald: It is but it’s probably a good thing because you can’t ever get totally
dependent on them. Some of them you hate to see go, but of course, if they’re really good, that
means that it’s more important for them to get out and be their own persons. Again, although I’ve
never had anybody I had to fire, there are occasions when both of you are happy when the year is
over. It doesn’t quite work out the way you wanted.
Yes, there is that initial period each year of “getting to know” each other. It takes a month
or two to figure out how their personalities mesh with you and also what they’re good at. Some
clerks can be very bright and are rotten writers, and after a while you know you’re going to have
to rewrite every word just to make it intelligible. Then, once in a while – and you cannot tell this
ahead of time because the written work they give you has either been edited or you’re too busy to
read a 100 different manuscripts at interview time – sometimes you get a really good writer. I
have one this year. She’s terrific. She was Walter Dellinger’s protege and she worked on the Hill.
I had a Yale guy a few years back who had been an English teacher for six years and wrote like a
gift from God. Other times, you will get these really nice kids who are bright but write a sentence
which is the most obtuse thing, with clauses hanging out all over and their basic style is deadly
boring. They never use an unusual or interesting word. Anyway, it takes you a while to get used
to them. There are different kinds of law clerks. I’m not saying that one kind is bad or one kind is
good. There’s a very straight kind of law clerk that really just is interested in the workproduct, in
doing the research, in getting ideas down and working everything through. And there’s a kind of
operational law clerk who’s getting ready to operate in the big world, they pick up all the gossip in
the corridors, they know everything that’s going on in the courthouse, they have little ways of
manipulating and dealing with people. You say, “Is the draft done yet, Joe, and he says, “I just
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have to do this one source check,” but it will be three days later before you get the draft in hand.
You get used to all the little devices that have managed to get them through law school, served
them well in the outer world. They are already into their operation mode. There’s no question
after you’ve had 40 or so clerks, if somebody asked you right off the top of your head to name the
best six you could do it pronto; it doesn’t mean that most of the others weren’t very good. But
there are always those rare ones whom you feel you’ve been privileged to have at your beck and
call for a year – real talents.
Mr. Pollak: Are most of your clerks in their twenties, and does age make a difference?
Judge Wald: I’ve had several women in their thirties. Women who went to law
school later in life. I must have had seven or eight women who tended to be on the older side.
We’ll talk about advocacy and then maybe the cases and then maybe we’ll be done soon.
Mr. Pollak: I was just going to say that you might spread out advocacy to both oral
advocacy and written advocacy, the relation between the two and also something about the human
beings you’ve seen as advocates.
Judge Wald: Let me put your question in my perspective. Yesterday I got in the
mail two requests. One from Martindale-Hubbell and one from the American College of Trial
Lawyers asking me to rate two lawyers. I couldn’t remember either one. That doesn’t mean that
they weren’t great, and I’ll go back and I’ll try to find out the cases they worked on, but what I’m
trying to say is that from a judge’s point of view, only the most outstanding advocates stand out.
When I used to argue a case, because I had worked so hard on the case, I had given it my all, I
knew so much about it, I assumed that somehow the judges would be as caught up in that case as I
was. It isn’t and can’t be true.
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Mr. Pollak: I always assume the same thing.
Judge Wald: It sometimes came as a surprise to me as an advocate when you got –
even from a good judge – a totally dumb question. I would think, Oh my God, how could you
ask that question? But I now realize how it can happen. With 120 cases and two or three lawyers
on each side, even with a few repeats, like the U.S. Attorneys, you have a hard time remembering
them.
I would say in general the level of advocacy in the court of appeals is, except for some
CJA lawyers who really are submarginal, generally good and competent. The government rarely
sends in an incompetent person. It may send in a naive person once in a while, and he or she takes
some hard licks from the questions, but it rarely sends in somebody who’s incompetent. Same
way with anybody who’s got a stake in a civil case. But the number of advocates that you can
remember when you look back over 10 years, people that stood out in a case, is not that great.
Usually the outstanding performances come in high-powered cases where they throw in the
absolute first team. Actually it may be those cases are the ones you’re going to remember anyway
and the lawyer gets a free memory ride in the case. There may be lots of splendid lawyers who by
doing such a competent job made you think it wasn’t an important case, and thereby won, and
you’re not going to remember them, but they attained their real goal.
I have a few general impressions. When I first came on the court, we really didn’t see that
many women advocates. In the beginning, when a woman advocate appeared before some of the
older judges, they would refer to her, if she didn’t speak loud enough, as “another whispering
canary.”
Mr. Pollak: I have to tell that to the Gender Bias Committee.
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Judge Wald: Well, the poor souls are long since gone now. As the years have
gone by, that’s not true anymore. It’s rarely that you don’t see a woman either arguing or at least
sitting at counsel table. Very few of them are whispering canaries anymore. That’s a good thing.
As a woman judge, one likes to think that having women on one side of the bench could be some
source of encouragement toward getting more of them on the other side of the bench.
Actually, in the beginning, there was sometimes a tendency to play it that blatantly. If
some counsel knew a woman was going to be on a panel, if they didn’t have a woman to argue,
they’d have a woman sit at the table anyway. Now I believe there are genuinely more women
legitimately appearing at counsel table on these cases. In evaluating what I think is good
advocacy, let me do oral first.
In a case of any significance, oral argument is very important because it’s the last contact
the judges have with a case before they go across the hall and vote. They may have read your
brief two or three weeks before, along with all the other briefs they were reading for that session,
15 sets of briefs, one after the other. But when you get up there, you become the case. You are
the living embodiment of the case, so that will be their main impression. People argue a lot about
how often oral argument changes the outcome of the case. Most judges I know arrive at a figure
which is somewhere in the vicinity of 10 or 15 percent. But in an even greater percentage of
cases, oral argument makes a difference as to how the case gets disposed of. Cases that we
thought we were going to dispose of with an order when we went in to argument, sometimes after
oral argument end up with a full-scale opinion. Sometimes we think we can rely on one ground
for decision and then that ground is dissipated in oral argument and we end up relying on another
ground. Oral argument is satisfying in most cases to the judges for the following reasons and it’s
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necessary to them in a case of any significance.
You can get your preliminary tilt from reading the briefs, but you really need oral
argument as a validation process. You can say, “Do I understand that you’re saying that this is so?
And what about this?” All the questions that a brief writer will purposely not answer in order to
present his or her best case. In writing you can slide over a gap in your argument. We need the
opportunity to get into that gap and see how meaningful it really is.
Mr. Pollak: The dentistry of oral argument.
Judge Wald: In your brief, you go from one sentence to another even if one doesn’t
logically follow the other. It’s very hard to do that if somebody is really bearing down on you,
pressing analogies on you in oral argument. The best oral arguers usually will concede a little, if
some part of the argument isn’t that good. Sometimes there are 15 arguments in a brief, and 12 of
them really may not be that good. A lot of advocates, if they’re good, will concede that this or that
one isn’t the best argument, or maybe there are two sides to that, and we’re not really relying on
that one.
The best ones also realize that the oral argument is for our benefit, not for theirs. It’s not
another showpiece for them to give a set oral argument, that their real function is to engage in a
dialogue with us, to make us feel comfortable, or uncomfortable, about the lower court or agency
decision. The best ones stand their ground. They don’t wilt. You can tell right away when
somebody is respectful but is telling you you’re wrong. That’s good; we are wrong sometimes.
We sit on 15 cases in one session. We do get mixed up sometimes, we do miss something. We’d
rather somebody straighten us out politely on oral argument than let us go ahead and then write
one of those nasty petitions for rehearing saying this is the worst case ever decided in the history
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of the court.
Mr. Pollak: Do you think that judges or yourself come to the bench with a point of
view on the case?
Judge Wald: Yes.
Mr. Pollak: That’s the result of doing the work necessary to get ready for
argument?
Judge Wald: Yes. Not in every case, but in most. Let me tell you a little bit about
the process that I use. Judges vary. I’ll read the briefs. I usually try to read them several weeks
ahead of time and before my law clerks read them. I read them and I take notes on them as if I
were the only one who was going to be involved in the process. I put little notes to myself in
parentheses like, Doesn’t that contradict this? Then I put it aside, but I have to get through all 15
of those cases before argument week. Each law clerk will only have five cases to do. They go
ahead and cover basically the same material. I don’t talk to them about the case before they write
their bench memos. I don’t say, Well, you know, I think in X case I tend toward this. I make them
go at it completely by themselves. Then they produce a bench memo and I read the bench memo,
and sometimes it confirms what I thought, sometimes it goes the opposite way. Also, in the
process, they will generally have done the corridor kind of stuff and talked to the law clerks in the
other chambers and know not what the judge has to say, but what the law clerks are
thinking. The day before oral argument we will talk out any differences and I will ask them if
there’s anything special they think ought to be asked at oral argument. There’s usually no
communication between the judges before argument. Not even the friendly ones.
You generally go in with a tilt after that process. There may be the occasional case where
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you’re genuinely pulled both ways, but you generally go in with a tilt. If anything, at oral
argument you try to argue against the tilt, or at least question against the tilt, to see if the other
case is maybe stronger than you thought, or to go after the side you’re tilting toward to make sure
you nail down any gaps or questions that remain.
Then, the conferencing goes on right after the oral argument. I don’t know that it changes
strongly felt feelings about a case, but there are a lot of marginal cases where it can sway a swing
judge. Sometimes, quite honestly, if one judge feels very strongly on the marginal case, he or she
can carry the band. It just isn’t worth it to other judges to carry on. Now that won’t happen in a
case of high visibility or high philosophical content.
Mr. Pollak: I think you were going to comment on the written advocacy. Maybe
you did?
Judge Wald: Now for written advocacy. As you know, in the last decade we’ve
cut down on the number of pages of briefing to 50 per side – with 20 in a reply brief. I still feel
in most cases it could be done in an even shorter number of pages. We’re not currently
considering doing that, but we have so many multiparty cases that the paper flow is really still
enormous. Take one of these regulatory review cases, by the time you get all the intervenors and
leaving out the appendices, which you look at selectively, you’ll still be reading 500 or 600 pages.
In the complex cases, you’ll be reading at least 700 or 800 pages. Initially, I read every word, I
don’t have time to read the briefs through twice. What you do is use the briefs as an aid going in
to identify the issues in oral argument. If you’re given the case to write, you’re going to go back
and use the brief much more intensively as a resource. It serves two functions, to identify the
issues for elaboration in oral argument and for voting purposes and then later on, it becomes a
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resource for writing an opinion.
Mr. Pollak: To put it succinctly, you give it a read, you read a bench memo, you
have oral argument, and you vote.
Judge Wald: And you have conference.
Mr. Pollak: And you have conference where you vote.
Judge Wald: Now, 99 percent of the time, you’ll stick with your vote at conference
right up to the time the opinion is issued. There is a small component of cases which you’ll go
back and think about and you might change, or your law clerk will come to you, and they do come
to you, and they’ll say, Gee, can I talk to you about this; it really bothers me. Occasionally, you
will change your mind afterwards. Or it will worry you enough that you’ll do some more research
and you’ll change your mind by yourself. And then you write a memo to the other judges and say,
gee, after reflection I have this problem. Or you’ll set out to write the opinion and you’ll think it’s
fine and the other members of the conference will think it’s fine and when you actually sit down to
write it in detail, you will realize it doesn’t work and you’ll have to go back to your panel and say,
“It doesn’t work; either assign it to someone else or think about changing the result.” People
respect that if it happens infrequently. There have been some occasions, I’m not going to name
names here, however, where a judge will vote one way in conference and then with frequency we
get a memo the next day they’ve changed their mind. They’ve been “talked to” by their law clerks
or maybe their colleagues. It’s legitimate, if unnerving, but it’s all part of the process.
I would say the best briefs are succinct. They put in only their best arguments. They don’t
put in 12 arguments which really don’t hold water, because someone thinks one of them might
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pick up a vote. That argument would have to get another vote; and if it’s really a weak argument,
you’re not likely to pick up two people. One of my own criteria for best briefs is the creative use
of language. I know it may not win cases, but I cannot tell you how refreshing it is to read a brief
where somebody uses a different or unusual word, turns a nice phrase. If you read brief after brief
after brief, you get boilerplate, boilerplate. And in the case of the government briefs, and I don’t
blame them because they have to turn out so many, you can close your eyes and recite the
paragraphs about the scope of review, about Chevron, about – So if somebody occasionally has a
nice phrase, uses a different word, her brief will really stand out.
Mr. Pollak: You don’t have to name any.
Judge Wald: No, what I’m saying is, in many cases, an advocate will only have
argued one case before you. You can say, I remember that case. In retrospect, you’re not sure
whether you remember it because you knew about him beforehand or whether he really did such a
brilliant job that particular day or what. Let me just name a very few of the people whose
arguments I remember. I remember in the Scientology case, Leonard Boudin represented one of
many defendants to what I think he must have considered a hostile court, Judges MacKinnon,
Robb and myself. Most of the defendants were caught pretty dead to rights on the charges. There
were a lot of defendants appearing, so when the time was allocated, he had been given seven-anda-half minutes. Seven-and-a-half minutes for Leonard Boudin. He wrote these
letters to all of us saying he couldn’t possibly manage in that time, and of course, the other judges
stuck to their guns. What I thought was remarkable about his argument (he did not prevail for his
client) was that he managed by the sheer dint of the force of his personality to turn his seven-anda-half minutes to 35. It was 35 minutes before he sat down. That was a lesson in advocacy.
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I remember that one of the best argued cases on both sides was the Oliver North case.
Barry Simon did a splendid job and I thought Gary Lynch was very good. He was excellent.
I’ll always remember the time Edward Bennett Williams appeared on the
Tavoularias/Washington Post libel case. I thought the argument was a bit rambling. I think it
was less than a year before he died. There’s no question, again, he was one of your old-style
courtroom personalities. He walked back and forth across the courtroom. This is probably
something no other advocate could get away with these days. We’d probably say “stand still” to
anyone else. He traveled far and wide, he talked about tooth fairies, he gestured. I don’t think
that’s probably the coming style for oral advocates, but it was a memorable performance.
I remember your own senior partner, Warner Gardner, as being an excellent advocate for
the following two reasons. One is the brief that he and Mike Greenberger filed in one of these
absolutely dull, regulatory mining cases, because it had all these spritely phrases and writing in it.
My son-in-law teaches legal writing, or he did, at Harvard Law School, and he asked me to collect
at the end of the year examples of what I thought were best and worst in briefs. I sent him that
brief. Warner had a way of using language that arrested your attention. It was like reading a good
book; I enjoyed that.
As far as government lawyers go, one of the best arguments I’ve ever heard was from the judge
who’s gone onto the D.C. Court of Appeals, tall, skinny guy. He used to be head of the Appellate –
Mr. Pollak: Farrell. Mike Farrell. He was an English teacher for nine years.
Judge Wald: Yes. Mike Farrell argued the Hinckley case. Not the main appeal,
that wasn’t ever appealed. But there was a side question of Hinckley’s constitutional rights when
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they questioned him right after the assassination attempt, and later when they searched his prison
cell. There was an interrogation question about whether or not they had to give him Miranda
warnings when they were asking about his mental state. Vince Fuller argued for Hinckley and
Mike Farrell argued for the government. Mike was a terrific arguer, respectful but firm. That’s
the only time he argued before me. I thought it was a loss to the advocacy profession when he
went on the bench.
Mr. Pollak: But a gain in that bench.
Judge Wald: Yes. Well any other questions on that? Maybe we could go on to talk
about some of the cases because I think that we have covered practically everything generically.
Mr. Pollak: Do you care to say anything about your own judicial conference? I
don’t suggest that you need to. This annual thing that you give. I mean, I don’t mean to describe
it that you give as a –
Judge Wald: I have always enjoyed them. I think it is a good opportunity for
interchange with the bar, but it’s more social than educational. I have to be frank about that.
When I was Chief Judge we tried to liven up some of them, but I don’t know that we were that
successful. You know, you were chief arranger of one of those affairs. I think it’s primarily an
opportunity for people to get together, to see each other, to talk about common issues. In the 070s,
as you will recall, in the 060s and 070s, it used to be a forum for actual confrontation as I
recall. It seems to have receded from that function pretty much.
Mr. Pollak: Just picking a couple of miscellaneous points, although I don’t mean
to stand in the way of the cases. Do you have anything you want to say about the district bench as
seen from your bench?
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Judge Wald: Yes, I do. I often feel closer to or more simpatico with many of the
district judges than to members on my own bench. Part of that is historical because as you know,
the district judges are taken from the ranks of our own D.C. Bar by and large. So I knew a lot of
them in former incarnations. You have carryovers from old relationships and old friends.
Secondly, they don’t have to constantly operate in relation to each other the way we do. They
don’t need each other for votes, so they can be better colleagues, even if there are differences of
philosophy among them. They don’t really have any need to ever get in each other’s hair, so they
have a generally friendly ambiance that cuts across all ideologies.
Also, judges in the district court are almost always picked from practicing lawyers who
have been out in the field, have learned to compromise, rarely do you get an academic ideologue
appointed to the district bench. Generally, they are kind of an outgoing friendly bunch, and I
enjoyed working with them. I enjoyed working with Aubrey Robinson, whom I’d known since
way back; he’d been a juvenile court judge in the 060s. In general I always felt more comfortable,
I still do, in the company of the district court judges. A lot of them I consider good friends. I’ve
known Harold Greene a long time, Lou Oberdorfer, I’ve known Joyce Green for a long time, I
knew June Green for a long time. I’ve become very friendly with Stan Sporkin and there are
others. In general, I’ve always kind of liked being around them.
Mr. Pollak: Do you ever eat lunch with them?
Judge Wald: Yes, all during the time that I was Chief Judge, I went up there
frequently, not every day. We have some social occasions, a couple a year, or dinners. Then I
just see them around the building. Some of them even have gone so far as to vent some of their
own spleen about appellate judges to me.
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Mr. Pollak: A la Judge Gesell?
Judge Wald: Gerry among others did vent his spleen on occasion in the judges
dining room which was confidential territory. I just have the sense with so many of the district
judges that we have a common history. A lot of them I knew, a lot knew me in earlier incarnations. I think it’s harder to be a district judge than a court of appeals judge. You’re on the front
line. You can’t run off and get your law clerks to research everything that happens. You have to
make these decisions, but you are exposed to more of the real world than we are. You’re exposed
to lawyers, you have to deal with them. And witnesses, you see the real live parties. We sit up
here with our stacks of briefs in piles and rarely do we ever see a party unless they happen to
come to the oral argument.
I don’t think I ever could have been a district judge. I had some litigation experience in
the ‘60s and ‘70s, but I would have felt totally unconfident going into a district court room and
running a trial. I suppose I could have learned. Learned Hand once said that the most agonizing
six months of his life were the first six months he was a district judge because he felt totally out
of control and every night he would be up until 2:00 or 3:00 trying to get ready for the next day. I
think in many ways their job is harder, but in many ways, the atmosphere is lighter. They run
their own courtroom and they can be friends with each other. Up here, we’re very interdependent. We don’t come from the same backgrounds since appeal judges are not picked
from the district, a few might be, but mostly they come from all over. Completely different
backgrounds. I like the district judges.
Mr. Pollak: Another itinerant question, which may have a short answer, is how
the court relates to the media, both as seen from your chief judgeship and as seen as a judge.
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Maybe it doesn’t relate at all.
Judge Wald: It doesn’t relate much, except through individual judges. I had some
relations with the press while I was a Chief Judge. If they ask you about something administrative
or you need them, you want to get some publicity on mediation programs and things like that. Or
they ask you about neutral stuff, that’s fine. Of course, we’re barred from talking to them about
cases. I think the really sticky part comes in as to whether or not you ever make remarks to the
press, not about cases but about relationships on the court. Some judges do it, and I’m not just talking about our court, I’m talking about district judges. District judges seem to do it more freely than
we do. Some talk off the record about things and people, not about cases. Some judges feel very
strongly about staying away from any such off-the-record comments. Larry Silberman published
this article last year that got a lot of publicity on judges who cater to the press, to the liberal press.
He defended Clarence Thomas’ present policy of never talking under any conditions to the press. I
think it is a hard line to draw between being informative and saying too much because the press is
dying to have you say anything that they can run with. We all have our usual bag of complaints
that the only cases they cover are the cases that will make some kind of a sexy headline. Either the
fact situation has to be bizarre even though the case is of no legal importance whatsoever, or they
take any normal differences of opinion and build it up to a “bitterly divided court.” I said once in a
speech that it’s all one word to the press. “Bitterly-divided-court” and “scathing dissent.” They
never separate the words out at all. Most of us do not take many press calls. I have this technique
where, by now, my secretaries know the Legal Times reporters and so when they call, she’ll say,
well, what is it about. “You won’t get to talk to her unless we know what it’s going to be about
ahead of time.” Seeing how it operates at first hand and how “courthouse sources” and “friends”
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report things that you never said, I now tend to be more conservative myself about whether I think
judges really ought to be speaking off the record about other judges.
Mr. Pollak: What about academia? You speak a lot. You write a lot. You write
an incredible amount besides your opinions. I don’t know how you do it. Does academia
influence the court other than in the footnotes?
Judge Wald: Not a great deal on a case-to-case basis. In the beginning, I thought,
“Gee, if you are going to write a good opinion, you have to cite a lot of law review articles.” But
as I went along I found most law review articles are of no use to you whatsoever and it’s
ostentatious to be citing them just to show how scholarly you are. Occasionally, I might cite one,
but I don’t think we really are influenced much by them. I don’t find a lot of law review writing
that’s terribly relevant. A very limited amount of it is useful, utilitarian. An article might sum up
a field and provide a quick way to get into a field, but in terms of giving you something that you
can really use in an opinion, an idea, a concept, I think that’s extremely rare. I’ve used law review
stuff less and less as the years have gone on.
Mr. Pollak: Do you think that’s true of your clerks, except for the summarization
that might be available, find a law review that’s up to date that deals with a field?
Judge Wald: Harry Edwards has written a controversial article about this law
review stuff getting more and more esoteric, and I tend to agree with him.
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October 17, 1994
This is the fifth oral history session with Judge Patricia M. Wald of the U.S. Court of
Appeals for the District of Columbia Circuit. It is taking place on Monday, October 17, 1994,
commencing at 9:30 a.m. Present are Judge Wald and the interviewer Stephen J. Pollak. The
interview is being conducted as part of the Oral History Project of the Historical Society of the
District of Columbia Circuit. This is anticipated to be the last of these oral history sessions and is
to be devoted to the opinions Judge Wald has rendered as Chief Judge and Judge of the D.C.
Circuit.
Mr. Pollak: Initially, Judge, you’ve written now going on 700 opinions, majority
opinions, concurrences, dissents. I asked you if you would designate a finite number that we
might talk about and you designated nine opinions from these 700. Initially, I ask you what
values or considerations motivated you to pick out these nine?
Judge Wald: Well, it was a difficult job. I started from about 30 and winnowed
down. The basis on which I arrived at the final nine are these: several of them are fairly complex
administrative law decisions. Those are basically the bread and butter of the circuit’s docket. The
ones I picked were illustrative of two things: both the complexity of some cases, and the
technical depth to which judicial review sometimes has to reach in order to deal with the issue.
Those would be Farmers Union, State of Ohio, Armstrong, Sierra Club and Palmer. A few are
in there because they went on to the Supreme Court and involved issues of larger social-political
scope. The whole time I’ve been on the court I’ve only had eight cases that I wrote that actually
were considered on the merits by the Supreme Court. I picked two to discuss here. Those were
two cases in which I dissented down below and was upheld by the Supreme Court, and those are
Finzer and Shurberg. I don’t want to suggest that that was the way all of the rest went. Actually,
I’ve been reversed four times by the Supreme Court, and I’ve been affirmed in two cases. In the
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two I choose to talk about here, which were big issues in national terms, one being affirmative
action and the other being free speech, demonstrating in front of the embassies, I wrote dissents
which were affirmed. As I say, I started out with 30 which were immediately prospects out of the
600 or so. These nine probably could have just as easily been another nine, but somehow, this is
the way it came up.
Mr. Pollak: You have referred to eight cases that went to the Supreme Court on
the merits. Four in which you were reversed, two in which you were affirmed, and then the two
in which dissents of yours then were either adopted or at least the Supreme Court looked the
same way as you had in dissent.
Judge Wald: In one of those, I said under the statute a person who was denied
security clearance in one of the intelligence agencies had a right to a hearing and was joined in
the panel by Judges Silberman and Bork. If ever it would have seemed there was a safe panel on
a security case, that was it, but we were reversed in an opinion by Justice Blackmun, so it was
very interesting. Unexpected things happen.
Mr. Pollak: What was the name of that case?
Judge Wald: It was Doe v. Chaney. They’re all Does, all the security clearance
cases are Doe versus whoever is the Secretary of Defense or whoever happens to be the agency
head. Then one of the other reversals was a five to four, I lost dealing with attorneys’ fees. It was
an offspring of the Sierra Club case dealing with Clean Air Act standards. This was back in the
early ’80s. The statute allowed the court to assess attorneys’ fees. It did not have any “prevailing
party” language in it, unlike most other statutes. It just said “on the basis of the public interest,”
and there had been some tradition of courts, where there was a very closely fought case and
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issues were well developed, of actually awarding attorneys’ fees, on a kind of “helping the court”
basis, to parties who lost. And, in fact, the Department of Justice cooperated in that venture. They
granted fees without contesting them even when the party lost. So, in Sierra Club, the question
came up whether or not, given the complexity of the issues and the enormous amount of time and
effort that had to go into raising them, whether or not the challenging attorneys deserved some
remuneration, not as much as they would get had their side prevailed. As I say, the statute in this
case was unique in that it had no explicit “prevailing party” requirement in it. We granted fees,
again a unanimous panel of myself, Judge Ginsburg, Ruth Ginsburg, and Judge Robb (I think I got
that right), but when it was circulated to the court, Judge Wilkey objected quite fiercely to the
notion. In any event, the Supreme Court took it and reversed me five to four. But the interesting
thing was, as the Washington Post pointed out, if you read their end-of-the-term opinion, you
quickly realized it had originally gone the other way. It was clear that in an earlier version, the
dissent had been the majority because the majority forgot to change some of the references to their
dissenting status in the footnotes. So, at least it was a close case.
I won’t even make an attempt to justify the other two. One of them involved a question on
which the circuits were split almost evenly. I took the side of the circuits that lost. I think among
judges on the court generally, it’s probably about an average record of affirmances and reversals,
if you’ve been here long enough.
Mr. Pollak: I checked. It was Wald, Ginsburg and Robb on the merits, Sierra
Club v. Costle. So probably that same panel was –
Judge Wald: I know Judge Wilkey was involved in it at the end, and whether he
came in at the point where you can ask for en banc and if you’re denied, issue a statement or
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whether he was replacing Judge Robb, by that time, I don’t know, but I know that he wrote
something which ultimately prevailed.
Mr. Pollak: Well, as long as we’re at this juncture of speaking about review in the
Supreme Court, what kind of reactions have you had when a case you’ve decided has gone to the
Court and the Court acts on it. Anything to say about that?
Judge Wald: Reactions inside the court, outside the court, or my own reactions?
[Laughing]
Mr. Pollak: Your own reactions. What’s it like?
Judge Wald: The first time I was reversed, I felt absolutely crushed and I thought
how am I going to go in the next day; people will look at you and say, “Oh my, she was reversed
by the Supreme Court.” I found out, to my pleasant surprise, that nobody said a word to me about
it in this court. And I learned that that is the more. You don’t call up your friend and
commiserate, if it is your friend, on his or her having been reversed. You just kind of keep your
mouth shut and go about your business. Occasionally, if somebody has been affirmed in the
Court, then you say, “Well, I was glad to see you were affirmed, Joe.” But nobody talks about the
reversals and that’s just fine by me. Unless they are very high visibility, they don’t get commented
on much in the press and life goes on. That’s the one thing about being on a court, you are
constantly in the middle of dozens of cases and one of them may go wrong, in your view, and
sometimes it hurts if it’s a very important one, but there are a lot of others still out there. You
don’t have the experience you might have as a lawyer and especially in public interest work of
having your whole life wound up in one or two cases. Of course, most people that are reversed
by the Supreme Court still think they’re right, and who knows?
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The thing that bothers a judge most is if you think you made a mistake. If you think, Gee,
I really read that case wrong, or, Gee, I really didn’t think of that argument, then you feel bad
because you feel vulnerable about your competence. But, it’s different if there’s been a big
argument between the circuits, as in one of the cases I was reversed on, about whether or not you
could immediately appeal a disqualification of a counsel in a civil case, or have to go through the
whole case with another counsel and wait till the end to appeal it. We said the disqualification
was immediately appealable and about four circuits said the same thing. Four or five other
circuits said no, and when it got to the Supremes, they picked the other side. In such a case you
don’t really feel, My whole integrity as a judge has been violated. And as I said, I didn’t really
feel that I could have been so badly wrong on the security classification case if Judges Silberman
and Bork both agreed with me that the statute required a hearing. I think the Supreme Court at
that point was in the process of coming down with a series of cases that were very, very tight on
disclosure of intelligence classification or appealability of any security clearance, except for a tiny
fissure they left open in Doe v. Webster, not my case, but Judge Edwards’ case, for constitutional
violations. It was not possible to make much headway beyond that.
Mr. Pollak: Judge, does this mean that in these eight cases or in other cases where
you’ve been part of the panel, and there’s review in the Supreme Court, that you study the
Supreme Court opinion pretty closely, where you’ve been in the case?
Judge Wald: You read it with great interest. You read it to see what they found to
be so wrong, or in some cases, with delight where they cite you and say you’re right. Sure, you
read it at that level out of interest and to see what adjectives they used. In one of my cases that
was reversed, it went something like, The court of appeals is involved in an conundrum of its
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own making. I didn’t find that particularly helpful, but there have been much meaner ones in
other people’s cases.
Fortunately, I can’t complain about ever having been lambasted by the Court. But some of
my colleagues have. I remember they really went after Skelly Wright in the Vermont Yankee
reversal; they used really strong language of displeasure. [Laughing] So you look at that, and of
course, even in reversal, you look with delight where you’ve evoked a dissent agreeing with you.
Then there are the joyous occasions where you’ve dissented below and been vindicated by the
High Court and where they cite to your dissent. That’s very nice.
We also look at a Supreme Court opinion with great care if it’s going to come back on
remand. If one of our opinions has been reversed or vacated, and there’s something left to be
decided. In other words, if they have remanded the case for further consideration in light of their
opinion, then you study it very carefully. I’ve been involved in three or four, maybe more, such
cases over the years that have gone back and forth, back and forth a couple of times. They go up,
get vacated and remanded, come back down, the same panel sits. Then you really look at the
opinion carefully because you’re supposed to be reconsidering the outcome in light of their
opinion. In the other cases, either you’ve won or you’ve lost, and you look at them with interest,
but it’s historical interest and put them aside. The ones you have to deal with again on remand
you look at very carefully.
Mr. Pollak: I have one other question with respect to the aspect of your court then
being reviewed by a higher court. Do you consider that the crafting of your opinions and the
articulation that you’ve given your decision has been significant or has a significance when the
case goes on to the Supreme Court because of, in front of the Supreme Court, of course, is all the
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briefing and the oral argument, but additionally, there’s the opinion or opinions of the appellate
judges.
Judge Wald: Sometimes the Supreme Court relies on or cites the lower court
opinions, but I’m not overly impressed with the amounts of time that they rely on the reasoning of
the lower court. It does seem as though when a case moves from one court to another, it almost
takes on a life of its own. The very first case in which I was reversed I barely recognized the
question they said they were considering in the Supreme Court. I’m not saying they were wrong,
but in all honesty, the way they posed the question, it seemed to be quite different from what we
thought we were deciding down here.
Now that can be the result of two things: Very often counsel will alter stance when they
go up, they will alter the way they have posited the question, slightly, just enough to result in
possibly a different light on the case, or a different rationale. Sometimes the Court itself will just
take it up and say, “Well, this is the way we look at this case.” I had that happen in a case a
couple years ago, a case called Siegert v. Gilley. I was dissenting down below. It was a case in
which the majority said in a [42 U.S.C. §] 1983 action, you had to have so-called “heightened
pleading,” a doctrine that the Supreme Court still hasn’t passed on, and only a couple of circuits
have picked up, none in as extreme a form as ours. It says that in § 1983 cases, and especially in
cases where the motive of the actor is being challenged on civil rights grounds as discriminatory,
you can’t just have ordinary notice pleading. You have to have this very detailed pleading so that
the government official will know enough to raise the qualified immunity defense and get it out
of the court before the case has to go all the way through the process.
Siegert was a heightened pleading case in which the majority said that a government
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psychologist who complained about what he said was scandalous defamatory material in the
evaluations that were sent by his supervisor at St. E’s to all the other government hospitals where
he was trying to get jobs, had to give specific details about the evaluator’s allegedly bad motives.
I said heightened pleading should not be invoked before the guy had a chance to have some
limited discovery since all the pertinent information was in the hands of the government. Judge
Sporkin had said this as well at the trial level. When it went up to the Supreme Court, the
Supreme Court never got to heightened pleading. Completely on its own, it decided that the
fellow had no initial claim of action at all because a liberty interest wasn’t involved if only
defamation of your character by government was involved and it hadn’t been accompanied by a
so-called change of status, i.e., a firing. It’s a very murky area of the law we’re still dealing with
here. But the Court never got to heightened pleading. In fact, in that case, Justice Marshall
complained bitterly in the dissent that the Court should never have taken on and decided a
question that had not been briefed, and which, when the petitioner’s counsel tried to raise it at oral
argument, was told that’s not the issue. You never know what will happen up there. It’s sort of a
different ball game. Once you lose control of the case in this court, the issues may be posited
differently, the Court may take a different view of the issue; sometimes it stays on track, but new
amici come in, the Solicitor General enters the case rather than the U.S. Attorney or the
government department which may have been arguing below, and it takes on a different color up
there. I’m never surprised at anything.
Mr. Pollak: I suppose that those words might reasonably lie in the mouth of the
federal district judges who watch their opinions come to the court of appeals.
Judge Wald: They don’t lie in their mouths. They come right out of their mouths
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frequently. Some will tell you just what they think the next time they see you at a reception or in
the dining room. They’ll tell you quite frankly that you decided a different case from the one they
did, and in lots of cases, I’m sure they’re right.
Mr. Pollak: Do you want to select one of the administrative law cases.
Judge Wald: Why don’t you just head in?
Mr. Pollak: My initial questions I might pose on this mammoth opinion in Sierra
Club v. Costle, a case in which you wrote the opinion, I think was unanimous except that Judge
Robb mysteriously just said at the end that he concurred in the result. Maybe he couldn’t read it
all.
Judge Wald: I really don’t know the precise reason why he did that. That was just
a few years before he stepped down. Judge Robb was a very courtly old school gentleman, and
he would simply say on many occasions, I concur in the result. It may have been that he
disapproved of writing that much. I’m not altogether sure that with the hindsight of another 14
years on the court I would have written that much now. This was in my second year on the court.
It was an important case. I think there probably was a little bit of self testing there, a desire to
make sure that in a case of that complexity, I did get it right, that I didn’t leave any stone unturned
and that I could cope with that kind of technical material. I think certainly that I went to great
lengths to show that. I think if I were writing it today I probably would write the first part
somewhat more briefly. I think the most important part of the case is definitely the principles that
were laid down for informal rulemaking by way of comments, meetings and other things, and
how much had to be recorded. That area of the law needed some looking at and some direction,
but in terms of reviewing all of the technical evidence –
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One justification for it, though, illustrates the inevitable influences that are brought to bear
on judicial decisionmaking by the outside world no matter how insulated judges are supposed to
be, not on the merits of a case but just on the way you do things. This rulemaking, which
involved EPA Clean Air Act performance standards for utility plants, had gotten a lot of
publicity. Just before oral argument, a huge law review article came out which was subsequently
turned into a book called Clean Air, Dirty Coal, by Hasler and Ackerman, well known
administrative law gurus. They’d worked at the EPA, and it was about this precise issue. They
sent all the judges copies of the article. And they were prominently sitting in the front seats of the
courtroom when it was argued.
The thesis of the book was that all kinds of political influences were brought to bear on
this rulemaking, which is not surprising. It was an important rulemaking that had great
significance upon the use of soft coal. Much of the material in the book was not in the record and
therefore wasn’t eligible to be considered by the court. But the existence of the book and all the
publicity out there about this other behind-the-scenes dimension perhaps intensified the concern
we had that we really examine the record to make sure that the record could uphold the EPA rule
or, if it needed to be reversed. We did not want it to look as though our review was an “over and
out” kind of thing. Public comments had already suggested that the Rule had been influenced by
a meeting between Senators Bobby Byrd and Doug Costle, the EPA Administrator, to minimize
the hurt to the soft coal mining industry in West Virginia. So there was a felt need for much
intensive review, so-called hard look review.
So, to get back to your question, I never asked Judge Robb why he concurred in the
result only. Except for one phrase in a background discussion about nuclear power, he never sent
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any comment saying please change this or please change that or wouldn’t you go easier on this or
go harder on that.
Mr. Pollak: You decided the ex parte contacts issue in the opinion.
Judge Wald: Oh yes. That’s right. That’s why I put the case on the list. It’s still
cited widely as setting down the cardinal principles for what kinds of communications have to go
into the agency record. Ex parte, as we said in the beginning of the opinion, is usually a
pejorative term, so it attempted to set down guidelines for what kind of informal contacts could
be made in the rulemaking area and under what circumstances they had to be recorded.
This was important at this juncture because we had some tight no ex parte comment law
on the books. Home Box Office was one such case written by Skelly Wright, and there were one
or two other ones after that. There was an argument made that any informal comments to agency
personnel about a rulemaking were off-limits, and that area of the law was certainly not yet clear,
whether the “you can’t talk to anybody outside of the proceeding” standard which still applies in
adjudicatory rulemaking, whether or not that was applicable to informal rulemaking. We had a
variety of different kinds of off-record contacts involved in Sierra Club. There were meetings
with the President himself, briefing meetings with the President and his immediate staff, meetings
with Senators like Byrd, who had a strong economic interest in the outcome of the rulemaking.
There were problems of so-called conduit channels, industry using a person in the administration,
as an internal conduit for their comments. And there were comments filed after the comment
period was over. There was just a variety of informal communications to be catalogued. It was
sort of a big, untidy proceeding. Sierra provided the opportunity to go through the different
categories as well as to give an overall thrust to what was okay and what was not. I think we got
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the correct thrust, although some purists might still object. That was that the White House in any
administration does have an interest in constituent agency rulemakings, and as long as they
communicate that interest according to prescribed rules, then there is nothing wrong with them
doing so, and it is to be expected that they will attempt to bring some order and some coherent,
some consistency out of the many varied rulemakings going on simultaneously in various
agencies.
I understand even now that still is somewhat controversial. There are many people who
would suggest that when Congress says to the EPA you make a rule in this area the final say-so
should stop at the EPA Administrator, with no OMB power to review or complain. I don’t think
that’s the right viewpoint. I don’t necessarily agree with all of the kinds of things that went on in
the ’80s, vis-á-vis White House communications on rulemakings in the era of the Council on
Competitiveness. I think the general notion that the central administration has to be apprised of
the rulemakings that are going on and at least have the ability to participate in the discussions is
the right one. That was an overall theme in Sierra Club and I think one elaborated at greater
length than it had been up to that time and has come to be more or less accepted.
Mr. Pollak: I thought it was extremely interesting to read the court addressing the
meeting with the President which took place after the record closed. Obviously, the President’s
views had some influence on the agency, but personally I agree with the court that the President
couldn’t be excluded from the process.
Judge Wald: I think that in 1981 when I wrote that, I was only a year and a half
out of government myself. Two people I know have subsequently said to me, Were you at all
influenced by the fact you had just come out the Carter administration? When this was written,
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the Carter administration had been replaced, of course, by the Reagan administration, and I was in
Justice, not in the regulatory agency. We had a lot of banging-heads-together meetings over at
the White House where agencies were intent on doing something at odds with the administration
or with some other agency and where Stu Eisenstat or one of the deputies would take everybody
into the meeting and you were supposed to come out with it settled one way or the other. And I
learned the necessity for their involvement to get such disputes settled. Sure, it was something I
suppose I carried away from the administration, but I also carried away, and tried to put in the
Sierra Club, the notion that there had to be some holds on that, some control, some disclosure,
some notion that it couldn’t all be done in the dark. I was pretty intent to nourish that idea.
Mr. Pollak: This opinion, I thought the record ought to reflect, runs from 298 in the
Federal Reporter to 410 before appendices, and there are 24 appendices. In any event, West saw fit
to give it 109 headnotes. It’s a mammoth opinion. I thought it might be an occasion besides talking
about it as representative of addressing complex administrative law issues, of talking about running
your own time and your own office. What kind of hours did you put in? How did you array your
clerks, if you did, to help? You must have had mammoth briefing – You were sent a book in connection with it. How did you process all of this to come out with the opinion, which incidentally,
as you know, has a three-page table of contents at the front. Essentially, you wrote a book.
Judge Wald: Well, actually, it evolved. If you note, the case was argued in
September. It got done in eight months, but I didn’t initially plan to spend eight months on it.
What happened was, this was my second year on the court, and after we prepared for the
argument and I’d been assigned the case by Judge Robb –
Mr. Pollak: Pardon me, but was it a long argument? Did you allow extra time for
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the argument?
Judge Wald: My guess is probably 25 minutes or a half hour a side, or something
like that. We didn’t have a complex track at that time.
I was assigned the opinion by Judge Robb. I think he probably didn’t want to write it
himself, and this was the very first sitting of Judge Ginsburg because she came on a year after me.
He very charitably, I think, did not want to push this on her as her first case.
I started out treating it like almost any other case. In fact, I asked a clerk based on our
discussions and the arguments to kind of outline the first draft, which is my usual procedure. He
did. He did an adequate job and then I took that home. I remember it was about a month after
the argument and I realized as I went through the draft outline, it just didn’t work, it just didn’t
work. This is a complicated case and even the technical issues were related to each other so
much. Then I had another clerk who was really a very, very bright young man out of Columbia
Law School who is now the Counsel for the University of Minnesota, and he got very interested,
even though the case had not been assigned to him, in the ex parte issue. He had done a lot of
work on separation of powers. He was writing a thesis for a doctorate in legal history, and so
that part of the opinion began to take on bigger proportions, and he offered, he volunteered to
work on that portion because the other clerk was really inundated on the technical stuff and I had
to move on to other sittings. I realized, however, on reading the clerk’s outline that I just wasn’t
confident that I had fully grasped the significance and interplay of the technical material, so I
started to write it from scratch myself – sort of taking it issue by issue. I did an awful lot of
ground work, technical ground work myself. In fact, I wrote the majority of the technical issues.
The first clerk still worked on that part with me, and the second clerk was very very helpful in
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getting the stuff going on the ex parte limits of rulemaking. He did a really good job in organizing that. We just kept going at it, little by little, going over it and over it, and as I say, it didn’t
finally merge until eight months later. It may be the longest period I’ve ever had a case not
decided or under submission, at least where you’re not waiting for a Supreme Court decision or
something else from the outside. It became important to really get down into the bowels of each
issue in order to be able to move on to the next phase.
That’s the kind of case where you had to do one of two things: you either had to do a “this
is a big case and the agency decision doesn’t seem unreasonable on the face – over and out.” I
think Judge Robb might have preferred to do it that way, but I’m only guessing. Or you had to
really get down there and show that each little piece fitted into the next piece like a series of
Russian dolls or an obstacle course you had to go through. You couldn’t skip one and get to the
next. And that’s the course I ultimately chose. But it took a long time.
I suppose at the end the important thing, since that same issue was not going to arise in
subsequent proceedings, was, as I said, to show that we had really looked at the record, and
despite the stuff that was going on outside it had not been decided by the agency solely on
political grounds. Now nobody ever knows what really makes somebody else decide one way,
but our job was to see that the record was sufficient to support the decision.
There were also some things in the course of the technical analysis which proved to have
some precedential effect. It was one of the first discussions of simulated models which EPA has
relied on a lot in rulemakings. We discussed how you reviewed the adequacy of a model where a
rulemaking was based upon the results of the model. What were the review criteria for the
model? It’s been elaborated on and refined, but a lot of that hadn’t been formulated before.
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We just sort of did it. I didn’t give the main clerk on the opinion as much work as the
other two during the rest of the year. That 1meant the other clerks had more work to do. Every
year or so there’s a big case that sort of hangs over your head and you have to keep working it in
between all your regular work.
Mr. Pollak: Do you recall that there are some 500 often immense footnotes in the
opinion as well? The technical expertise that you and your clerks had to assemble to do this
really raises its own questions.
Judge Wald: Some of that work is done for you in the sense that a lot of the basic
material is in the statement of rule and purpose, or the rule itself. I don’t remember how long that
was now, but it was quite long. In some instances, we went one step beyond that to examine in
detail the materials the agency relied on for certain things, but in most instances, that material was
at least organized for us to review. The question was whether it made sense, but we didn’t have to
go out and find it.
Mr. Pollak: I don’t know whether this is an oral history item, and it’s hardly a
question, but at page 360 you were addressing the utilities challenging a particular rationale of the
EPA for the 90 percent standard, and you concluded or posed the issue for yourself saying, EPA
has plotted a reasonable course through the evidentiary thicket and stated a logical rationale for
the route it chose. I thought that that was really stylish and wonder when one is writing a long
opinion, how you move from what must be a tremendously mundane recounting of this, that, the
other thing, to something that has a ring to it.
Judge Wald: I waited until the whole thing was done and then I just went to my
typewriter and wrote the conclusion. It’s a situation where you know you have something to say
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and you just sit down and write it and mostly just tinker with it afterwards. The line you
mentioned is in the conclusion. You get the hard stuff done, and then you go back and read it and
that’s when you’re likely to introduce a phrase, a word, or a sentence or a transition, hopefully a
stylish one. That’s when you do the style and editing work. Once you know, once you feel in
command of the substance –
Mr. Pollak: I think I have two more questions, although one could ask many about
an opinion that has so much in it and is so big in its quality, in review of administrative
rulemaking. At 389, in a footnote, you say, in addition to reviewing EDF’s main procedural
challenge to the emission ceiling, we must also dispose of two pending motions involved in that
challenge, EDF’s motion to supplement the record, EDF’s motion for leave to obtain discovery,
and I thought it was possibly useful to ask what leads something like that to be cast in a multipage lengthy footnote of decisionmaking by the court and also something about the relation
between motion practice in your court and whole merits considerations.
Judge Wald: Although motions usually come to a special panel, if you have a very
complicated case and the motion is not a threshold motion, like standing or ripeness, the tendency
of a special panel is to push it on over to the merits panel. The merits panel deals with it in the
context of the whole case.
One reason that a motion to supplement the record would probably be taken care of in the
main opinion is that very often a person challenging a rule will say, Okay, what’s in the
rulemaking record is up to the agency in large part. The agency decides what to put in the
rulemaking record except possibly for outside comments on the rulemaking, but they’ll also say,
They left out an important document, they didn’t put ‘X’ into the rulemaking record, so therefore,
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you, the court, don’t have X, Y or Z in the rulemaking record. If you had that in, you’d see that
their decision was arbitrary or capricious or not reasonable. So they’ll make a motion to
supplement the record with X, and sometimes they have to get X through FOIA, the Freedom of
Information Act. So the question arises of whether or not that document was so important it
should have been in the record. The presumption usually is the agency was in control of the
record and you have to make a strong case to get an outside document in, but occasionally an
important document somehow isn’t in there. So that’s why motions to supplement the record and
that sort of thing would be likely to be taken up by the main panel rather than an outside panel
that can’t possibly get that deep into the case to see if the material is really that essential.
Mr. Pollak: I had asked why it is you dealt with it in the footnote, but I guess that
with a great, long opinion –
Judge Wald: The chances are it wasn’t considered a critical part of the decision by
the panel. If it was considered critical, then we would have put it into the text. It was probably
considered housekeeping. You usually try to clear up all the incidental motions in footnotes and
get them out of the way of the main thrust of the text.
Mr. Pollak: The other question I wanted to ask which I think you might like to say
something about is that here there really were a number of significant issues to the law respecting
review of administrative informal rulemaking, and as I hear you, after the argument, the case is
assigned to you and there is really a long, creative period that generates the opinion. I would like
you to address the question of how the panel really gets back into that kind of decisionmaking,
and if you want we can mark this down and you can put it into a 30-year hold.
Judge Wald: I’m comfortable addressing that question. The fact is that in most
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cases there is unanimity at the conference which is held immediately after the argument. The
panel agrees on the result and the judges might discuss one or two issues in there, but conferences
are typically pretty brief. The panel doesn’t get back into it until they see a draft opinion, which is
circulated weeks or even months later.
In this case, it was many months later. In a more typical case, it will be probably be
between a month and a half, or two months later, so for one thing their memories will be fresher.
But again a panel member will read over the opinion, if it seems reasonable, if his or her memory
is that they were reasonably satisfied with this result back then and this rationale sounds
reasonable, then they’re not likely to get into it very much further other than possibly making
some fine tuning comments.
Then again, you may have a case where one of the members from the panel was hesitant
and unsure from the start, sort of, well, I’ll go along with that; let me see what it’s like when you
write it. That happens sometimes. Then, when the draft is circulated, that judge is likely to
assign a clerk to look into it, and talk about it and give it much more probing thought to see if he
or she is really convinced or wants some kind of rationale changed. In such cases, it’s likely to be
a much more interactive process.
The third example is where someone has initially said they’re going to dissent, so that
person really looks very carefully at the opinion and prepares a dissent, circulates that. Then the
majority generally looks at the dissent and tries to see whether or not it wants to change parts of
the majority, usually it does. Not always. So there’s an interactive process then, too. On a rare
occasion, a person who initially agreed to go along with the majority will be convinced by the
dissent. Not too often. It has happened only a few times in my experience. So there are different
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levels of involvement, but I think there is also the recognition in a court – If I could describe the
whole court process, it’s like a river. It’s constantly flowing along and if you don’t grab onto the
fish when you first see it, it’s going to be harder to catch it downstream; not impossible, but
harder to catch downstream.
At the point you sign off on a case in conference, you certainly are not estopped in any
way. We do have very strong exchanges in memoranda back and forth, but unless your doubts
have surfaced at that early point, or unless the opinion contains something which is immediately
recognizable to a fellow judge as something he doesn’t want to be associated with, then it’s likely
that the writer of the opinion will take 80 percent to 90 percent of the laboring oar on the case.
Mr. Pollak: I note that in the Finzer v. Barry opinion, obviously the majority and
the dissent drafts were circulated and then deeply commented on in the opinion.
Judge Wald: Seven, eight, nine, ten of those drafts went back and forth in Finzer.
Judge Bork liked a good argument and he was not one to concede readily either, nor am I. So we
had a go round on those exchanges which, if I recall, lasted a couple of months. In other words,
between the time that I first sent on the dissent to the majority, we went back and forth for a
couple of months.
Mr. Pollak: The last question that I think comes off your comment that the Costle
v. Sierra Club opinion was one of your early ones, is to ask you what happens to a judge’s
decisionmaking and opinion writing over the time on the bench? Do you become ever better and
better at it because you have more experience? Do you have more energy earlier? What’s the life
span experience of doing this job?
Judge Wald: I can only talk about myself. In terms of experience, it’s more like
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the old story about the blindfolded dart thrower. You know you can keep throwing darts forever
blindfolded and you don’t really get any better at it because you don’t have any feedback on your
accuracy in hitting the target. We get such little feedback, unless the case is notorious or involves
some hugely controversial issue so that all the editorial writers take up on it and that’s probably
not the right kind of feedback anyway.
Mr. Pollak: What about the law reviews?
Judge Wald: No comment until two years later. The law reviews are terribly
slow. That’s the nature of the beast, but it does take away a lot of the efficacy of their critiquing
or commenting on a particular decision. You pick up one today and you might read with some
mild interest about a case that you wrote two or two and a half years ago, but either you don’t read
it at all, which I confess lots of times I don’t bother to do if the case isn’t terribly important, or you
don’t read it with the same kind of intense interest or familiarity as if it had been a little more
recent. It’s history.
As I watch a new generation of judges come on our court now and I see the enormous
enthusiasm they have for every single case, I have to admit that level of exhilaration dulls a little
bit with time. You become more selective as it goes along in the cases in which you throw
yourself body and soul. At least I find that’s true with me. I don’t work any less hours, but I use
my time differently. I remember talking with Judge Bazelon in his later years before I went on
the court and he said that there were some cases that were really the vehicle cases, those were the
cases he threw himself body and soul into, but he said the rest didn’t need that degree of
commitment. I would not have believed that during my first five or six years on the court. I
would have believed that each one was an intellectual exercise in which you should absorb
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yourself totally. I don’t think I give any less attention to the cases now, but I think the kind of
emotional reaction that I have is a little bit more distanced.
For one thing, you encounter the same issues many, many times. At least as to some of
your colleagues, you know pretty well what their reactions are going to be too, so you can quickly
evaluate your chances of convincing or persuading, and so you begin to kind of categorize certain
kinds of cases. I hope, I think I do, stay alert enough to know when a case doesn’t fit in a mold
and requires some new thought, but you also recognize the molds after awhile.
There isn’t the same tendency to want to reinvent the wheel so that each time you
encounter an issue you think you have to go back to day one, to the beginning of the whole
problem in ancient common law and bring it up to date. There is a feeling that the last case that
you wrote two years ago did that so you can pick up from there and move on. I suppose, perhaps
by osmosis, there’s more of a sense of what a court can do, try to do, proper for it to do. That is
the sort of thing which you can read a hundred articles on judicial restraint about when you’re a
new judge and it really doesn’t come home. You see a case and you want it to be yours and you
want to do everything you should on that. I think it’s only after a while that you maybe realize
you can’t, there’s problems you can’t solve on the court. You don’t take the ones that you lose so
much to heart. You can’t, you’d kill yourself. [Laugh] You’d bleed to death. So after a while,
when you lose the ones, even the ones you care very much about, and I’ve lost a lot of those, God
knows, there’s an ability to distance yourself, you can say, “Okay, I gave it my best shot.”
There’s was one recent set of cases, called Ayuda I, II, III, IV and V, all of which I sat on.
God knows I couldn’t begin to have invested the amount of time and effort that Stanley Sporkin
did in the district court where he had masters and a class of 4,000 undocumented aliens. These
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cases went up to the Supreme Court twice. They didn’t use our case, they held it in abeyance and
then decided a similar type case on the West Coast in each case, but then they vacated and
remanded our case as well and each time it came back and each time I dissented from the panel.
So I’ve literally written five Ayuda opinions. The end result of which was not one alien got any
relief from any part of this litigation, though many did get help from an earlier part which was not
appealed. When you think back of the thousands and thousands of hours invested in that
litigation, and as a younger judge I think maybe I would have felt even a little more strongly than
I do now – I’m not sure how to finish that sentence except I think I’m at the stage now where I
can take it with a bit more equanimity. At least I have 15 years of judging to look back on. There
was a lot of effort that went into that. I still think we were right, but, “que sera, sera.” I’m not
sure if I were in my second year of judging I would have had that kind of fortification. Some of
them are hard cases, but I think time has a way of putting things into perspective, allows a little
bit of distancing, and maybe, I say this with some experience born of suffering, there is an ability
over the years to be perhaps more charitable toward the opposing point of view.
Mr. Pollak: Does it give you strength or solace that you’re a player in a
constitutional system in which differing views are all the time fighting and clashing?
Judge Wald: Sure. I know all the intellectual justifications for the process. I
believe in them. I’ve written with bona fideness about the function of dissenting, that even if you
don’t win the case or the point, you perhaps temper the majority’s opinion, you perhaps leave
some legacy out there for the next case to think about. I believe all that, but I will say that it still
hurts when you lose the big ones, and I still do have the emotional capacity to feel bad, mad,
whatever it is, but perhaps I’m more selective about how long I grieve.
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Mr. Pollak: I have to say the discussion spurred by Sierra Club fascinated me.
We have three other administrative law opinions that you selected, Farmworkers Justice Fund,
Farmers Union Central Exchange, and Armstrong. The order of the decisions, Armstrong is
1993, the Farmers Union is 1984, and Farmworkers is 1987.
Judge Wald: Why don’t we go chronologically? Let me suggest a way in the
interest of time here. Let me make a short statement as to each of the three cases, why I think
they were important and what I thought I was doing. And then you can pick up on your questions
and that way we may cover more.
Farmers Union concerns deregulation in 1984 and one of the reasons I selected it was that
one of the interesting problems in administrative law which courts wrestled with during the first
half decade of the ’80s was how we reviewed an agency’s refusal to regulate or its lowering of
regulation, as opposed to what we were much more used to doing in the 070s, when you had an
escalation of regulation.
Farmers Union was a very bold, and I mean bold in the sense of departure from the
existing status quo, attempt to deregulate oil pipeline prices. They had operated for however
long, since pipelines were regulated, under a so-called just and reasonable kind of rate making
mandate. Now, without changing the statute, the agency, the FERC, decided that what they
would do was to pretty much throw it open completely to the market, what the market would
bear, but they still had to operate within the statute. They said that they would define just and
reasonable as allowing the agency merely to set a cap on what they called egregious price
exploitation or unconscionable gouging. So instead of evaluating prices or rates in the traditional
case-by-case basis, they would set these sort of caps on what they thought would be just totally
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beyond toleration – gouging, unconscionable high prices, and anything underneath that was okay.
They also did a few subsidiary things. They revised their traditional standard for the rate of return
to allow ceilings which they didn’t expect the companies to even approach. Generally, that was
the route they decided to go, and as I say, it was a fairly bold departure.
One interesting thing about it was they themselves, the FERC, wrote what they described
as the “longest and most elaborate decision in the history of the agency.” Those were their words,
and it was hundreds and hundreds and hundreds of pages. Many years later, I met some FERC
regulator at some conference, long after this was history and he laughed and said we really
thought we were going to drown you folks in paper on this one. He said he had done a great deal
of the drafting on the FERC opinion, holed up for months, told to produce a long, very long,
elaborate decision.
We overturned the regulation, and the rationale was an attempt to historically trace what
just and reasonable meant. But reduced to its essence, we said that just and reasonable, that
standard, and its whole history up to that date, suggested that the agency had to have some
standards, it certainly could have looser rather than tighter guidelines, but it had to have some
guidelines on what was just and reasonable price, what was a zone of reasonableness. It could
not simply set a cap on what was price gouging and say anything you want underneath that is
okay. If that’s the route Congress wanted to take, to throw it completely up to the market, then
Congress would have to indicate that; the agency couldn’t do that on its own. It was, I think,
important in the sense that it was one of the first couple of major deregulation cases that we got.
We also had to get involved in the problem about what you do when a statute that was passed in
one era, is being interpreted in a new era where the regulatory philosophy is very different, where
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the politics are very different, and where the economics of the market are very different. How far
can the agency go in adapting an old statute to all of these new developments before having to go
back to Congress and say, hey, we need legislative change, this just goes too far. And this was
one of those cases. Judge Edwards wrote another about the Labor Department regulation of home
work. This pair of cases set some limits on what an agency could do in terms of rising above its
statute.
An interesting postnote to Farmers Union was that Bill Baxter, the “market oriented”
head of the Antitrust Division in the early years of the Reagan administration, again, long after
the case was over, said he thought the case had been rightly decided.
Mr. Pollak: You concluded that the FERC’s action had contravened its statutory
responsibilities, or the Act, in the area that you’ve been discussing, the just and reasonable
standard, then you went on to decide that the decision lacked a reasoned basis, and I was led to
ask was there action on remand that required you to deal with both?
Judge Wald: I don’t think so. It’s hard to go back now. I might be wrong, but I
think this came down before Chevron, it was 1984, and I think the kind of framework in which
we reviewed a rulemaking, under Chevron I, Chevron II analysis, was not as precisely delineated
as it was after Chevron. I think if I had to put a Chevron I, Chevron II, framework around this,
one would have had to say that construing “just and reasonable” was not a Chevron I preciselydefined case so that we would have been thrown into Chevron II – “was this a reasonable
interpretation,” which the statutory discussion in the case would have covered. I think it would
have come out the same way.
Mr. Pollak: Judge Starr was a participant in the panel and joined in the opinion,
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and he had come out of the Reagan administration and the deregulation drive of the Office of
Management and Budget. Do you have any recollections as to the dates or …
Judge Wald: I don’t remember his having any serious problems with the opinion
or the case. Also at this time Scalia and Bork were on the court too. And none of those asked for
rehearing en banc. I think the general feeling was a little bit like Baxter’s comment, “They went
too far this time.” I have great respect for Ken Starr. I didn’t always agree with him, but I had
great respect for his integrity as a judge and it would have been perfectly in keeping with him to
have said, “You know, I’m in favor of deregulation as a policy and to the extent an agency can
implement that policy within the confines of its statute, that’s fine, but you can’t go outside that.”
He was a big separation-of-powers man.
Mr. Pollak: I was going to ask this question. I think you’ve answered it. Wasn’t
this a tension here between the conservative’s goal of deregulation and the conservative’s
commitment to follow the will of Congress? The courts should follow the will of Congress?
Judge Wald: What’s interesting is that on this case I think I would have
anticipated perhaps more flack than I got. I can’t remember now whether they went for a cert. or
not. They certainly didn’t get it, but I don’t even remember –
I don’t think we have to dwell on Farmworkers too long. Let me tell you why I put it in
there. Farmworkers dealt with the Secretary of Labor’s refusal over a 14-year period to put out
toilet and drinking water standards for agricultural field workers. What was interesting was
when we got the case in 1987, the litigation had been going for years and years and years, it had
been one of these things where they’d settle earlier litigation and say we’ll put out standards and
there’d be a delay, and these rules had been in the making for 14 years. During Secretary of
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Labor Brock’s confirmation, I think questions had been raised even after 12 years as to whether or
not they really needed such rules, and he had said something to the effect of, “Well this is a low
priority for the department,” and some other things are much more important for OSHA, like
asbestos. It was just not one they seemed ever to get around to.
Soon after he became Secretary, however, he put out a statement distancing himself from
the notion that there didn’t need to be any standards. In fact, the Labor Department had
consistently said we know there have to be field sanitation standards, but they wanted the states to
do it. So Brock said we know there have to be standards, but we’re going to have a two-year
delay period to let the states do it.
Now we were near the end of the two-year period by the time the case came to us, so you
might say why didn’t we just wait it out. The majority (Judge Hubert Will was visiting from
Chicago, in my opinion a fine and, still, feisty judge) thought there was enough of a principle
there that it ought to be established that the OSHA statute, did not permit, once the Secretary had
determined that standards were necessary, delaying them until the states got around to doing it.
OSHA did have a specific provision which dealt with the relationship, the so-called federalism
relationship, between state and federal standards. If the state was going to do a standard which
would be as good as the federal standard, there was a procedure for it to get in there and tell the
department. The department might say, okay, you can use your state standard instead of the
federal standards, but not “Let’s wait a couple years and see if the states are going to do it.”
The problem was if we just sort of let it lay there – it looked as though the states were not
going to do it and the two-year period was going to end – that technique might well have been
used again, and we didn’t think it was legal. As it was, we got the case down, Judge
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Williams dissenting. They went for rehearing en banc and before that process could be finished,
the two-year period ran out and the Secretary brought down the standard. How much the decision
influenced them in bringing down the standard, that’s one of the things you don’t know.
There was a legal question that was interesting, that Judge Williams dealt with. This was
right after the Heckler v. Chaney opinion, which dealt with the question of whether courts could
review an agency’s refusal to enforce because that was something which was peculiarly within its
resource allocation power. We did not think that this case posed a Chaney/Heckler problem, but
Judge Williams did, and so there was a long discussion in his dissent about that.
Mr. Pollak: Right, the non-action issue. There was some question in my mind as
to whether the decision of the majority was truly consistent with the philosophy of Heckler v.
Chaney!
Judge Wald: Certainly a fair question.
Mr. Pollak: Well, I don’t mean that was where I came out. It was just a question I
was going to ask. At least that was a significant issue on which the majority and the dissent
differed.
Judge Wald: Heckler v. Chaney took up a lot of our time for several years in the
mid-eighties. There is always a period after a Supreme Court case comes down based on its own
facts, different situations, but with a lot of language in there that might apply to others. It is the
function of the lower courts to start figuring out where the edges are on the case and how it
applies to a lot of situations not clearly encompassed within the original decision. That’s part of
our case-by-case method of making law. We had 10-11-12 Chaney v. Heckler cases in those
early years. Afterwards, God knows how many Chevron I and II cases, working out in practice
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where the case applied, what its limits were.
Chaney was very difficult. Chaney was almost counter intuitive to some judges. The
notion that the agency’s decision was not reviewable when it refused to enforce something. You
understood it in the strictly prosecutorial sense but there were so many other areas that you
couldn’t immediately analogize to prosecutorial discretion: such as where there was a mandate to
do something, and the agency didn’t do it or when the agency made a determination which under
the statute required them to go on to the next step and either do regulations or something else and
then they would stop at the first step, as in this case, make the determination the standards were
needed, but not go the second step. This was an even harder problem then, a situation where they
might have just said, We’re not even going to get to that problem.
There was so much old case law to put in perspective or overrule as to agency inactions.
Many of the Bazelon-Leventhal type decisions in the 070s would never have survived Chaney,
where, for instance, they told agencies to regulate pesticides when the agencies hadn’t done it. So
there was a lot of sorting out.
Mr. Pollak: There was something of general applicability that interested me, or at
least I think general applicability, Judge Will found your opinion excellent and said so, and he
had an additional ground, and I wondered what the dynamics are that didn’t lead to your inclusion
of that ground in your opinion? Did you consider it unsound? Was it a timing matter maybe?
Judge Wald: No, no, no. I am trying to remember. I like Judge Will particularly.
We had only one sitting together and he was with me on this case; and we had a housing
demolition case which he was ahead of me on. A visiting judge comes and then goes. You could
call him on the phone, I suppose, but usually you write your opinion and it goes out to him and
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then if he decides to say something separately he sends back a concurrence.
Mr. Pollak: You were off to something else?
Judge Wald: I was sparring with Judge Williams on the dissent, which I
considered a more immediate problem than absorbing Judge Will’s concurrence, so my guess is it
was one of those things … also there was a time constraint on this one. We wanted to get it out.
Mr. Pollak: Do you think it will change with faxes? This was 1987?
Judge Wald: It could. But I was interested in getting this all lined up here,
answering the dissent.
Sometimes another judge who is nice enough to concur with you in the main has some
point that he wants to make which wouldn’t be at all inconsistent with your opinion, but would
take time to incorporate. Sometimes you’d rather they just went ahead, they can say it in their
own words, you don’t have to negotiate the style or the forcefulness. I still do that, many times
we think, Well, terrific, go ahead and make your extra point.
Mr. Pollak: Next, in order of time is Palmer v. Schultz, the discrimination against
female foreign service officers.
Judge Wald: Schultz I put in there because it was certainly the most in depth look
I ever took at statistics which is not my native habitat. This one, again –
Mr. Pollak: Amazing, this was the Bell Curve. How did you absorb all this? It
was so technical.
Judge Wald: This time I was fortunate. I had a very, very fine clerk who also
went on and clerked for Justice Blackman and now teaches law in the Midwest. He was not a
statistician even, but he was a digger. He dug into the statistical underpinnings for this disparate
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impact challenge to the way in which women foreign service officers were assigned to the various
cones, which are the name they use for tracks. There’s a consulate cone and a political cone and
economic cone and maybe another cone or two. There were a lot more women in one cone and a
lot more men in the other cone, and the evidence showed that clearly the upward mobility came
in certain cones, the political and economic cone; the consular cone where you do visas and that
sort of thing, was where the women were disproportionately put, and that didn’t have great
upward mobility.
Mr. Pollak: You could understand it all because the consular cone was sort of like
estates and trusts for women in law practice?
Judge Wald: The plaintiffs’ whole case had been thrown out in the district court
for not having made a prima facie case. They did have some statistical analysis down there, but it
was a relatively unsophisticated kind. The lower court didn’t deal with the statistical impact at all
and actually the evidence was there in the record but the presentation of it was not particularly
clear or compelling. Let me just say we had to do most of the work ourselves on this one. I mean
we could do it, the question had not been waived, but we really had to do it. The big question for
us was what did the statistics mean, was the statistical presentation that had been made sufficient
to raise an inference of discrimination from the numerical disparity of men and women in the
different cones? There was no dispute about the disparity, but was the disparity of a type and
kind that was legitimate in the prevailing state of the art in statistics to raise an inference of
discrimination? Whenever you have statistical disparity, one it can be chance, two it could be
bias and, three, it could be other nondiscriminatory causes. We got out Baldus & Cole who wrote
that employment discrimination book and a couple of other basic statistical texts. Then we
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had to look at what little judicial talk there had been on analysis of statistically-based cases.
There was one case written by Skelly Wright on this circuit, and there was one or two very
cursory treatments of statistical evidence in the Supreme Court’s Hazelwood case. They gave us a
couple benchmarks, but not very much more. Depending on whether you used the 1 or 2 tail test,
the evidence here would have fallen inside or outside of what was the accepted statistical
disparity significance point. We really got into this 1 and 2 tail test business and I will admit my
law clerk did an awful lot of the initial casting about for our statistical moorings. He was a
treasure. He was really consumed with it and drawing his own little bell curves, and I’m not
saying we got it perfectly right. I had one or two letters from people saying, Well you got it
mainly right, but this little point is off or that little point is off. But I think I didn’t make any bad
mistakes on it.
The case had to be remanded. Actually, it went through a series of subsequent stages, a
couple of which I got, but basically settled out in the end. The interesting thing was by doing this
kind of really picayune statistical analysis, we kept the case alive and even brought along Judge
Bork on the issue.
Mr. Pollak: I was interested that it was a unanimous opinion on numbers.
Judge Wald: Bork’s initial reaction, if I recall, was to go along with the district
court, which wasn’t a bad reaction if you looked at the explanation in the record there. This was
one of those cases where you really had to do a lot of work with analyzing and re-analyzing and
reworking what was in the record to come to the right conclusion, which was that statistical
evidence of disparity which fell within a certain range, could give rise to an inference of
discrimination, especially if supplemented with anecdotal evidence. The exercise effectively
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resurrected a dead case. The case was dead.
Palmer v. Shultz is also an instance of something that is troublesome in litigation. I don’t
have any easy answers. Palmer v. Shultz had been brought in 1976. By the time we got the first
appeal, which we just sent back to say, Yes, there’s a case for development here; You can survive
a summary judgment motion, it was 1987, which is 11 years later. We had three or four
subsequent pieces of the case which came up, although in the main it settled out. I think I did a
subsequent Palmer v. Shultz opinion on just a little piece of the case a year or two ago. We do
have this phenomenon of cases that drag on like this one for 14 or 15 years. We talked about
Farmworkers, which was in some form of litigation for 14 years. Sometimes when you are
assigned a case which has been up and down a few times, you remember it as having been one of
the first cases you ever worked on over a decade ago. I don’t know what the answer to that is, but
it is frustrating. It gives rise, I suppose, to some of the criticisms people have about lawyers.
Mr. Pollak: Charles Dickens’ Bleak House syndrome. I had a question in and
around page 104, the court remanded for district court determination, rather than ruling that the
disparity in promotion of women from rank 5 to rank 4 was the result of discrimination. I don’t
know whether you can respond to that this far away from it, but I was interested in the decision to
remand rather than decide.
Judge Wald: Again, I’m talking without having gone back too deeply into the
record. I think that we saw it as our function to say that the evidence was sufficient to raise an
inference of discrimination. The statistical evidence, almost like a prima facie case of the
McDonnell-Douglas genre, only raises an inference of discrimination; there was other anecdotal
evidence in the case, and it was up to the trial judge to decide where the preponderance lay. For
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instance, the Foreign Service might well have been able to show that the entrance examination on
which core assignments were largely based was a justifiable gender-neutral tool, or there might
have been some other evidence, counter-evidence against a finding of discrimination. There are
very few instances where we decide something up here based on record evidence without
remanding.
The cases we decide outright primarily are ones involving the interpretation of the statute.
If the interpretation of the statute means that there’s only one right way out of the case, then we
might reverse, but otherwise, we almost never do.
Mr. Pollak: You opened your comments on Palmer saying that you selected the
case because it was one that was representative, indeed lead all others in your addressing
statistical analysis. Was that the reason you put it in?
Judge Wald: It was the most intensive look I ever took into statistical analysis
here and I suppose I saw it as another example of having to go deeply into a non-legal discipline
and really master it, at least to the best of your ability, apart from help from the parties. You had
to dig in and learn statistics. Actually I took a course in statistics in college, but God knows I
didn’t remember any of it since then. So you had to go learn a new discipline in the course of
trying to decide a case, or else make a fool of yourself, or else ignore it all completely.
Mr. Pollak: Do you have awareness as to whether ultimately the plaintiff’s
attorneys got attorneys’ fees after carrying this thing forever?
Judge Wald: They got some, I know, but I don’t remember how much, but they
did get some because they settled the main part of the case which would make them prevailing
parties to some extent. There were some little pieces of the case that came up again, but I’m sure
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there was a case settlement.
Mr. Pollak: So I guess the next case then is State of Ohio v. Department of
Interior, a 1989 decision.
Judge Wald: The oil spill. Although this case, State of Ohio, did not itself come
out of an oil spill, I will say again, always making my point that although we operate on record
and in insulation, we can never completely distance ourselves from the world around us. It so
happened that the decision came out almost simultaneously with the oil spill, the Alaskan oil
spill. So a great deal of attention registered on it and the New York Times carried a piece about it.
Mr. Pollak: Say, I want to go back, actually, I had a question about the Palmer
case. Palmer seemed to me to represent what I came in reading in an effort to read closely these
nine opinions of a single judge, the Judge Wald treatment. You, and I wondered if you yourself
come to these decisions in opinion writings with this idea. I read Palmer to begin at an early
point in your stating a set of general principles and then carefully, one by one by one, applying
those principles to both the facts and the claims and the arraying of the law in deciding the case,
and that’s the way I found you operating in many of these opinions. Is that how you would
explain how you proceed?
Judge Wald: Yes, I think that comes close to it. There is a pattern which most
judges evolve in opinion writing and mine is to tell the reader up front what you have decided and
why. There are some judges who write opinions that are like mystery stories. You start at the
beginning in chronological order or narrative and you have to get right near the end before you
know how the case is going to come out unless you sneak a look at the end of the case to see
whether it says affirmed or reversed.
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Although it may be a very small audience who actually read the opinion, I do usually try
to pose the issue and tell up front in the opinion what principles I’m going to use to analyze the
issues and even what results I’m going to come to so that people have a road map as they travel
through it.
I find in reading other decisions myself that it’s very useful. Half the time when you’re
reading, if you don’t know where you’re going, you’re missing things or you’re not using your own
mind to say, Well, is what they’ve got here really forwarding the conclusion they’re going to come
to? I think in general that’s my plan, at least in long complicated opinions. Short opinions you
can just go boom, boom, boom with them, eight pages, and bomb it through.
Mr. Pollak: Well, State of Ohio.
Judge Wald: State of Ohio dealt with the regulations put out by the Department of
Interior as to what measure of damages polluters would have to pay so-called public trustees from
the states, sometimes the federal government, once pollution had been found. It didn’t deal with
liability, it dealt with the extent of the damages that they would have to pay. But as I say, it
turned out to be a very timely issue because of the 1984 Valdez oil spill in Alaska.
The Department of Interior had adopted – I’m trying to simplify this – a measure of
damages which was the “lesser of” the cost of restoring a polluted piece of land or water to the
approximation of its natural state, or in the alternative, and remember it’s a “lesser of” standard,
i.e., which costs less, the lost value of whatever had been corrupted, the land, the habitat, the
water. But the lost value was a market value.
The example that we have in the opinion, I guess, is still the clearest way to suggest the
difference. If you polluted a seal rookery, you would look at what it would cost to restore that
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rookery, and I guess begin the process of seal repropagation within it, or the market value of the
water or land on which the rookery was situated plus the seal pelts, which ran at $15 a pelt. So
almost invariably, the lost value, the market value, when we’re dealing with natural resources like
this, was going to be the “lesser of” the two alternatives. The environmentalists were very
unhappy with this choice. This was a Chevron case. The reason I put it on my selected case list,
aside from the fact it did have repercussions in the real world, of pollution cases, was to show
what a lower court does with a big broad doctrine like Chevron, how it has to fine tune it.
Chevron says that if Congress addresses itself to the precise question that is involved in a
case, then, of course, we must follow Congress’ will. If it doesn’t address itself to the precise
question that the case poses, then it falls into Chevron II which means that the agency can make
any reasonable interpretation of the statute, even if the court disagrees with it; the standard of
review is much, much lower. It means that it has to be an unreasonable interpretation of the
statute.
Now, what State of Ohio required was defining what the precise issue was, because the
outcome turned on that decision. What the government said is, this is clearly a Chevron II case
because Congress has not specifically said in the statute whether or not damages should be based
on the cost of restoration or the cost of the lost market value. It didn’t say, “Measure damages by
the cost of restoration.” Lots of legislative history coming out of your ears and stuff about
rehabilitating natural habitats, but it did not say you must make damages calculable by one
particular method. So the Department of Interior said it’s a Chevron II case.
We said, No, it was a Chevron I case.
This is a per curiam opinion, but I wrote that portion of it.
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Mr. Pollak: I was interested, maybe you’ll tell us, how it all got divided.
Judge Wald: Anyway, what we said is the precise question which we have to look
to see if Congress answered in the statute, is not whether or not damages must be based on
restoration or lost value, but the precise question is, Can the agency, consistent with what is in the
statute, promulgate a standard which sets up the `lesser of’ the two, restoration or lost value? Can
it, in other words, do, what was essentially a cost based standard, a cheaper, whatever is cheaper,
standard, whether it’s restoration or market value? Is that consistent with what Congress said in
the law, in the legislative history as well as other parts of the statute? We thought those sources
showed that it would be inconsistent with Congressional intent for the agency to have said we
won’t even decide whether it should be restoration or lost value, whatever is cheaper is okay. We
said there may be some cases where restoration is so exorbitant, so impossible, so
disproportionate, to say you must restore one bird nest at the cost of a million dollars, that
Congress could not have meant to require it, and the agency can certainly have authority to take
care of those kinds of cases. But it can’t just say in any case do whatever is cheaper.
There the job of the court was, in a Chevron I case, to define what the precise question
was, and I think there’s a little bit of creativity involved in that. Interestingly enough, the
government chose not to appeal. The Secretary of Interior, I can’t remember what his name is, a
Bush official, Manuel Lujan, I think, said it’s more important we get these regulations out than to
appeal. That was sound judgment, to my way of thinking.
I ran into some environmental lawyers a couple years later who said they were still having
trouble negotiating the regulations on remand. But anyway they never did come up for any
further review. Again, as I say, it was another example of what we do all the time which is to
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take some doctrine which is pronounced up on high, but cannot be applied without taking the
whole context of the dispute into account and trying to fit it to the case at hand. No matter how
they try to cabin our discretion, it still resides in things like that, defining what the precise
question is.
We also established firmly in State of Ohio something which there was a little bit of doubt
on, and which has since been carried through in later precedent, and that is in looking at whether
or not Congress has answered the precise question, you don’t have to stop at the text as some
people have suggested and say well, if it isn’t in the text, that’s it. In Chevron II we said you can
look at text, legislative history and structure of the statute. Indeed, the opinion shows we looked
at a lot of legislative history in defining whether or not Congress had answered the question.
Mr. Pollak: How did the writing of the opinion get assigned?
Judge Wald: I’m glad you asked that. This is one of our cases on the complex
track which was started back in ’86. This would have been a couple of years after that. Every
year, there are some cases which have so many issues in them, they are almost entirely
administrative cases, though sometimes we get a criminal case, a big conspiracy, which we put on
a complex track. The Staff Counsel’s Office, which does the initial screening of all cases as to
what track they go on, realizes the case just can’t be handled on a regular sitting day with three
other cases, so they schedule it separately. There are a couple dozen cases of this sort every year.
Then judges are assigned to them in random panels. These assignments are over and above the
regular panels, in other words, they’re not a tradeoff. You just have to take your couple of
complex cases each year over and above your other work.
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And you know that you’ve been assigned one for months ahead, so if any motions come
up early on they’re sent to that particular panel, they don’t go the regular motions way. And
because there are usually many issues involved, a practice has grown up. It doesn’t have to be this
way, but a practice has grown up to treat them inside the panel a little differently in two ways.
One is we have the clerks get together with some guidance from us and divide up the bench
memos, so that one clerk’s memo on one-third of the issues will be circulated to all of us.
Normally, we do all our own bench memos, we don’t exchange them or circulate them before the
argument, they’re just for our own use. But if everybody did a bench memo on every issue on
these complex cases, we’d be inundated.
It doesn’t mean you have to take Judge Henderson’s or some other judge’s clerk’s bench
memo as the final word, but at least your clerk doesn’t have to do it all by himself or herself.
Then, we set the time for oral argument, and it may go quite long. We usually set these cases
down for argument on a day when there’s no other argument, or in the afternoon. Argument will
generally go on for several hours on these complex cases. Sometimes days. We’ve had some
arguments that took a couple of days. Then, afterwards, generally we divide up the opinion.
That’s why it’s generally per curiam. Often, there will be a little star telling you who wrote what
part. But we will divide it up so that one person will not be writing hundreds of pages alone.
Now if this complex track arrangement had been around in Sierra Club, I’m sure the
opinion would have been split. But it wasn’t. In the State of Ohio case, it was Judge Mikva,
Judge Robinson and myself who split the writing.
Mr. Pollak: But you really had the laboring oar.
Judge Wald: I took the major part, yes. Judge Mikva had a couple of issues and
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Judge Robinson, who was then toward the end of his tenure, took a smaller part.
Mr. Pollak: What about the statutory requirements for preserving electronic
materials, Armstrong v. Executive Office of the President.
Judge Wald: That was just a couple of years ago, August 13, 1993. There was
one we had to do on the quick. Mikva, Wald and Henderson. It was argued in June and decided
in August, and we split that one up too.
Mr. Pollak: Right. Parts one and two authored by Wald; four authored by Mikva,
and it doesn’t indicate who authored three.
Judge Wald: That’s because Judge Henderson believes that if you do a per curiam,
like most of these divided opinions are, that you shouldn’t indicate who the authors are for each
part. Judge Mikva and I felt differently. The reason I feel differently is I think it’s a little bit more
accountable. These complex cases are not the old fashioned per curiams.
The usual per curiam is a smaller opinion. When you get into a big, important case, with
a lot of different issues that have to be split up for the reasons I’ve explained, it seems to me that
it’s better to tell people who’s writing. It’s a legitimate difference of opinion. But at any rate, this
was the second trip of Armstrong up here.
As you know, Scott Armstrong through two, three administrations and generally
represented by Alan Morrison’s group, Public Citizen, tried to prevent outgoing administrations
from wiping the stuff off the computers during their last days.
The first time the case came up, I wrote an opinion which actually was pretty
conservative, certainly it was the only one that the panel would have agreed to, which said the
only thing we could really review was the guidelines that the Archivist put out for the
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preservation of these records under the Federal and Presidential Records Acts.
Mr. Pollak: And when you say review them, do you mean review whether they
fulfilled the statutory –
Judge Wald: Whether the Archivist promulgated guidelines and monitored record
disposal under the statute. I must say that I will tell you frankly on the basis of these two cases, I
hope we get a much more diligent and vigilant Archivist in the future. I don’t think this
administration has appointed one yet, but the lack of action on the part of past Archivists in
taking any kind of decisive action, in either of these two cases, was, I think, quite an eye opener,
at least for me.
The point of the first case which is not the one we’re going to talk about, was to tell the
Archivist he ought to do something, to get going. The point of the second case was a little bit
more specific. By the time we had the second case, the Clinton administration was in power even
though the problem had arisen at the end of the Bush administration.
At the end of the Bush administration, Public Citizen had come in for and gotten a TO and
preliminary injunction from Judge Charles Richey to stop the throwing out of all of the electronic
records, so they were preserved and the immediate emergency was over. By the time we got to
adjudicate the issue, the Clinton administration was in place, but they were still defending the old
policies. The issue was very important because we’re now talking about taking old statutes,
which were written in a paper age like the Federal Records Act, the Presidential Records Act, into
the electronics age. Congress should hopefully do that itself, but in the meantime, problems arise.
The Bush administration and Clinton administration, at least for purposes of defending
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the action, were saying the following: We are abiding by the Federal Records Act. Let me focus
on the Federal Records Act because that comes much much more into this than the Presidential
Records Act and also is subject to greater review.
A federal record is very broadly defined as any record that might be expected to be of
interest to historians or to have memorialized some action of consequence; the statutory terms are
very very broad. And there were some guidelines in place that applied to paper records. Now,
the question was, when you moved into an electronic records system where you basically have
different types of computer documents, the position of the government was basically … people in
the government make the decision whether or not that’s a federal record. And if it’s a federal
record, then they punch it out into hard copy and we preserve all the hard copy federal records, so
we’ve done our duty.
The opposing notion was, Oh no, it’s not, because what you’re punching out isn’t the same
as what’s appearing on the screen. What’s appearing on the screen has dates, has copy list names,
has other things which can make it different, those are information. They can make it a different
record and they had some interesting examples of having to go into the computers which had
been saved by the last injunction in order to get much of the Iran Contra information, which was
not available elsewhere. The government again was saying these fell within the exception for not
preserving extra copies of records because they had a hard copy of it.
Chuck Richey said, “No way.” Chuck was very strong and adamant on this issue, straight
up throughout. This court has not upheld him in everything, but I mean in the core, the basic
notions, I think he got it right down below. So we sided with him on this. We said you had two
sets, there were two parallel tracks of records, and decisions had to be made on each track. You
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can continue to go ahead and preserve your hard copies, make your decisions on those, but you
also have to make decisions independently on these computer records.
I think the net effect, if it’s followed, is that almost everything, except maybe “see you for
lunch Tuesday,” will be a federal record and it can be sorted out under the Archivist guidelines
later on as to what has to be preserved long range, what can be destroyed by permission of the
Archivist. The Archivist is the central figure in this and I must say, these cases did not give me
any confidence that that job is being done – but on the other hand, that’s the way Congress said to
do it. It was a good case, it was an important case. The fact that the new administration was
content to go along with the old administration’s policies surprised me.
Mr. Pollak: I thought it came out 1,000 percent right. Anybody who has tracked
his way through discovery where a document that looks different than another document even if
there’s only a check on it, has to be produced.
Judge Wald: I suppose it might be, if one wanted to get global, which I try to
avoid, one of those instances where it’s good to have a court around. Even if you like the
administration and you think it wants to do right, the fact is, as you and I both know, having been
in administrations that we believed in, administrations are themselves constrained by institutional
forces. This litigation was in motion when they took over. I’m sure that people were arguing we
can’t abandon our old position now, etc., but I still think it was good that you had Chuck down
there to say “Halt” and eventually we upheld him.
Mr. Pollak: Here at page 1285 this statement is made under your pen, I believe,
and I wondered how it got into the opinion. It says, “Tomorrow and tomorrow and tomorrow of
government “will be allowed to” creep in their petty pace from day to day without benefit of the
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last syllable of recorded time.” Shakespeare, MacBeth.
Judge Wald: I did that. You may think it’s a bit of writing overindulgence but
when you’re writing opinions every once in awhile, you get an irresistible urge to cite something
from outside the law. After all, isn’t it funny to think the case was precisely about that – “the last
recorded syllable of time” which we said had to be preserved. But I think my clerk swallowed
twice when I insisted on keeping it in.
Mr. Pollak: I vote for keeping it in. We’ve got three more. What order, North,
Finzer v. Barry, and Shurberg?
Judge Wald: Let’s do them timewise: Finzer v. Barry, Shurberg, and
North last.
Mr. Pollak: First Amendment, demonstrating with critical signs within 500 feet of
an embassy, not permitted.
Judge Wald: Finzer v. Barry was one of those cases, I was really surprised that I
ended up having to dissent in. The other judge was Oscar Davis, and it was also, again, one of
these instances where there is an outside counterpart to what’s going on inside. This was the
period when we were having all sorts of people arrested in front of the South African Embassy
demonstrating against apartheid.
Every day people were violating this law. Now, Joe DiGenova was not prosecuting them
for obvious reasons. They were getting checked in at the police station and sent home. They
weren’t spending overnights in jail, but they were being technically dispersed and arrested for
doing exactly what was involved here. This was a different instance, this was a priest protesting
in front of the Russian Embassy, as I recall. But it seemed to me, if there ever was a content-
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based law or viewpoint, this was it.
I was really surprised at both Judge Bork and Oscar [Davis] when they bought into it. The
statute involved was the D.C. statute that was 30-40 years old. Judge Bork thought that we were
in an area where international obligations required us to take appropriate measures to protect the
dignity of foreign embassies here, that if we didn’t do that, people might be nasty to our embassies
abroad. Now, all of that, I always felt, as I said in the dissent, could be accommodated perfectly
by one of these laws which we now have that says that there is a certain number of feet in front of
the embassy where you can’t do demonstrating of any kind so that people can come in and out and
dispatch their business without being accosted, that applies to everybody.
Mr. Pollak: Pro embassy signs could go inside –
Judge Wald: That’s right. I must admit, this law really shocked me. It was
inconceivable to me that you could justify a law that said you could hold signs in favor of the
embassy but not against the foreign country’s position within those 500 feet. It seemed to be you
were under the First Amendment clear and loud, and this law couldn’t be a less restrictive
alternative when all over the nation, other states and cities had a neutral kind of law. But Judge
Bork worked this up, and Oscar, for whom I always had the greatest respect, agreed. The only
remark I remember him making was he recalled the days of the Nazis, but it seems to me that
would have cut both ways, so I don’t really understand his reasoning. But he never wavered for a
minute.
Mr. Pollak: The opinions placed the First Amendment issue sort of frontally as
clashing with foreign affairs power, so it really was argued between you and Judge Bork in high
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constitutional terms.
Judge Wald: Judge Bork, I will say for him, when he went into something, he
usually did it with aplomb, relish and a great deal of work; he believed in the argument though I
didn’t, and ultimately neither did the majority of the Supreme Court. But he certainly went at it
with a great deal of care. This case, you know, was reversed in the Supreme Court on this point.
Scalia wrote the opinion.
Mr. Pollak: He said that the judiciary has no role in a foreign policy decision.
Judge Wald: He was very strong on the President as the chief foreign policy
maker. That came up in many of his decisions while he was on the court. This was also the
period of intense separation of powers debate and war powers disputes were going on between
Congress and the President. I think Judge Bork’s notion was that the President was the ultimate
maker of foreign policy, but in my view this is a congressional statute. This is one of the few
times I’ve admired counsel for a little bit of self-discipline. The plaintiffs’ lawyer, having gotten
the panel against him, did not come up asking for rehearing en banc.
He might have gotten it, but it would have taken another two years. Rehearings en banc
take a long time and you come out with some very splintered decisions. So he just was confident
enough that he was in the right that he skipped that whole thing and went straight to the
Supremes, got it taken up and had it reversed within a much, much shorter period.
Then, as I understand it, D.C. passed a law just like everybody else’s, providing for a
neutral zone in front of embassies.
Mr. Pollak: So at the end of your opinion you said “I hope that Congress will
revisit this statute and show it has the constitutional sense to do what this court – .”
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Judge Wald: But the Supreme Court had reversed our court by the time Congress did it. From
my point of view, Finzer was never a difficult case. It was just very surprising to me … it was
one of the cases, it was hard for me to see the other side. Judge Bork did a lot of work and
certainly articulated it well, but it would have been so surprising to me in light of our past
precedents, Supreme Court precedents, if we had ended up saying you can have people who are in
favor of the embassy with signs but people who are against the embassy policy have to stand 500
feet away. It’s one of those things that your gut, my gut, says “No, no, no, that’s just not the way it
is.”
Mr. Pollak: Tell me, Judge, do you – I don’t know that you have to cite chapter
and verse, but have you found over your time on the bench that there are occasions when you
change your mind about a case afterwards?
Judge Wald: Yes. We all know the most recent example of that, the one which
probably got more newspaper publicity than any other decision I ever participated in. I didn’t
write it, but it was the Moldea libel case from last year where Harry Edwards, I agreed with
Harry, first said that the scathing book review was susceptible to libel, was at least susceptible to
being the subject of a libel case, and then on rehearing, we changed our mind.
I’d say there have been seven or eight cases over the 15 years where I have changed my
mind. You can change your mind in a couple of places. You can change your mind between the
time you leave conference and the time an opinion comes out. Nobody but us know about that,
but it happens. It happens. People circulate a memo saying, As I get into to this, it doesn’t write.
Mr. Pollak: I think the bar is aware of that. And as you say, sometimes the
opinions indicate that there’s been a switch.
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Judge Wald: That’s considered par for the course. Then there is the stage when an
opinion comes out and there’s a petition for rehearing and I’ve seen, as I said, six or seven cases in
which I’ve changed my mind because, if it’s a close case, you call it one way, and then people
come in, and you think about what they say, and you reluctantly conclude, Gee, maybe they’re
right. Occasionally somebody will raise something new which hadn’t been argued or argued
precisely that way before.
There’s a third way the bar doesn’t think about, but it happens a lot. Somebody writes an
opinion one way. It gets taken on rehearing en banc, and, either the author or panel members who
agreed with the original writer, will join the other side on rehearing en banc. That happens much
more. People don’t think about it. They think of rehearing en banc almost as like a new case,
which it is. But a lot of that switching goes on because sometimes when a case goes from panel
to a whole court participating at a much higher stage of visibility, it’s rebriefed, and intervenors or
amici may come in, it takes on a new life, and judges who thought one way on the first go-round
change their mind on the en banc.
Mr. Pollak: What about not the same case, later on, doctrinally, you shift
positions?
Judge Wald: Yes. It can happen. I’m trying to think of an example. It’s usually
more subtle than that, however. It’s rare that you get exactly the same case. You may get the
doctrine and you may decide not to extend it to the next case, or –
Mr. Pollak: But you must know internally that you’re turning away.
Judge Wald: You’re not as thrilled with this doctrine as you were before, and that
can be very legitimate. Sometimes in the meantime you’ve seen the application of that doctrine
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in a number of cases and been disturbed at the direction it’s going or the results it’s producing.
You say I want to cut it off here. Occasionally, you’ll come outright and say, in the facts of that
first case, it really seemed that you could make that principle of law. Now I’m seeing somebody
take that principle of law and apply it to the second state of facts and I don’t think it’s right.
Therefore, I defined the principle too broadly the first time; it should have been much more
limited, or maybe not even applied at all because it had the implications for making bad law.
Some people are more flexible about that kind of mea culpa than others. There are some judges
who really think it a cardinal sin or a concession of incompetence to say I was wrong.
We all know Justice Jackson’s view about admitting past error. We’ve all done a few of
those confessions of errors over the years. You don’t do it lightly because of its implications (1)
for the consistency of the law, but (2) also for your own self-image or even image of credibility
out there. I suppose the presumption is always to stick with what you’ve said before, but there are
times when it just doesn’t seem right to do so.
Mr. Pollak: The next case in terms of time is Shurberg.
Judge Wald: Well, Shurberg, of course, dealt with affirmative action and came
mid-stream in a whole series of Supreme Court cases and cases in the circuit. The circuit had
early on decided in a case written, I think, by Skelly Wright, back when the court was
predominately liberal, that the Federal Communications Commission could indeed, in granting
comparative licenses, give an extra credit to minority owners. They had a whole series of criteria
for granting licenses and they added up points. The court said they could give an extra point for
being a minority owner. So we had this case on the books, saying that’s okay for the FCC, in the
interests of seeking a policy for diversity of programming, to give an extra credit where
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management and ownership is integrated and the management/owner is a member of a minority
group.
Then along came a case in the mid-’80s which attempted to do the same thing for women,
a lesser credit, but still a credit. That came to a panel of Scalia, Tamm and myself, and they said,
Oh no, you can’t do that. They didn’t say it’s unconstitutional. They said it’s not “in the public
interest,” as the FCC authorizing Act means that term. It was a Judge Tamm opinion called
Steele v. FCC. The rationale in that case, I find it pretty hard to understand, was that women were
different from minorities because, if you gave minorities control, they had a unified interest in
bringing about programming that would be attuned to or directed at minorities, but there was no
such cohesiveness in the case of women. They were kind of all over the place, they were
everybody’s mothers, they were sisters, or daughters, so it wasn’t “in the public interest to
affirmatively encourage their ownership of media.” I dissented from that. Along about this time
the FCC said we want to take this Steele case back down. We want to have a hearing about
whether it’s constitutionally right to have any kind of race or gender preference in these license
proceedings. So a majority of the court in the Steele case which had then a pending petition for
rehearing en banc, a majority of the court agreed to remand it to the agency.
The FCC started out having this rulemaking on race and gender preference. This all
becomes relevant to Shurberg. In the middle of that rulemaking, Congress came in like
gangbusters and said no, no. They had FCC Commissioners up there to testify and concluded you
can’t have that hearing. There was a rider on an appropriation that said we don’t want you to have
that hearing about race and gender preference. No money can be spent on that. So having done
that, the FCC closed up shop on the hearing and just went forward with its old rules.
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Now one of the rules which would have been up for grabs in the hearing, although it
hadn’t been the subject of one of these earlier cases, gave a preference for minority ownership in
the sale of a license when the owner was facing revocation. This minority distress policy had
been in effect for some years.
Basically, and it applied only to minorities, if a station was coming up for renewal and it
looked like the current licensees weren’t going to get it, if they had a really serious financial or
ethical problem, and those are apparently quite predictable in broadcasting, they hadn’t complied
with some requirements or things looked pretty bad for them, they would be allowed to sell the
station to a minority at a certain price discount. In that way, they got a reprieve of having their
license taken away from them at a renewal proceeding – you can’t just give up and walk away
from the station – and they would get some money back. The price might not be what they
wanted or would have gotten on the open market; I don’t even remember how the discount was
calculated, but they would get something for it and you’d get more minorities in broadcasting,
who don’t many times have the money to buy or build a station from scratch.
Actually, the statistics, which I don’t have in front of me, show that it hadn’t been used a
great deal. Nonetheless, in this particular instance, the policy was challenged because somebody
else who wanted to buy that station didn’t get it because the minority applicant was given
preference. So it came up to us. This was Larry Silberman, George MacKinnon and I, and Larry
wrote an opinion. I can’t say it was a majority opinion. The result George agreed to, but George
wrote his own opinion. It said that they couldn’t do this on constitutional grounds, that it was a
racial preference and was therefore subject to strict scrutiny. Strict scrutiny meant that you had to
have a compelling reason to do this and then adopt the means that were least restrictive to
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implementing the compelling purpose; that this policy could not meet any test of remedying past
discrimination because, and this part was true, there was no record that these particular owners
had been discriminated against or even any particular minorities in the past in that area. There
wasn’t anything much in the record except general stuff about minorities not being able to buy in
to broadcasting historically. There was no record to show, outside of this just general notion, that
old boy networks tend to exclude them purposefully.
Mr. Pollak: Sort of sounds like the kind of considerations that led the Supreme
Court in Croson to strike down –
Judge Wald: Croson figured very prominently in this debate and Judge
Silberman’s opinion relied upon Croson to a great degree. The big difference I thought, and he
acknowledged the difference, but didn’t find it controlling, between Croson and Shurberg, was
that we had a congressional law here. It was more like Fullilove. Our law was a rider to an
amendment, but it did have hearings and Congress had spoken and said it wanted these programs
to continue. And it wanted them to continue in the interest of diversity of programming.
Judge Silberman and Judge MacKinnon, who wrote his own opinion, said that there was
no compelling interest that was being fostered here. I dissented recognizing that affirmative
action, this was in ’89, I don’t know how much better it is now, was in pretty much of disarray; if
you were trying to get a clear read from the Supreme Court opinions and our own opinions, you
were in trouble. But basically my approach was that a couple of reasons had been accepted by the
Supreme Court in the past cases, as being compelling interests to remedy specific instances of
discrimination. But those reasons did not exhaust the reasons that might justify giving a
preference. In this case Congress had recognized and the FCC had recognized the need to get a
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diverse mix of broadcasters as a kind of surrogate or proxy for diversity in broadcasting itself.
The FCC had been told it could not directly regulate broadcasting content; in the interests of
diversity, it couldn’t say you have to have so many programs for women, or so many for Blacks,
or what the content of the broadcasts should be, so therefore, the way to get at diversity in the
media was to have a diverse mix of broadcasters. The amount of specific data that you needed to
justify that, the number of studies, etc., was much less than in Croson because Congress deserved
a much higher degrees of deference than state or local authorities.
As you know, the case went up to the Supremes. It was Brennan’s last opinion, Metro
Broadcasting. He managed to get White to agree with him – White, Brennan, Blackmun,
Marshall, Stevens. It was five to four. It was the last day of his last term that it came down.
Now there is a followup though, just to show you, this is one of those things where a great social
problem kind of continues, nothing ever decides it, it just keeps going.
A lot of people say Metro Broadcasting is a shaky precedent not only because of the
changing nature of the court up there, but following Metro Broadcasting, the old Steele case came
up a second time here, it came up with a different name because it was a different case, but
involved the same question of a woman’s preference. This time it was Thomas, Buckley, and
Mikva on the panel. Judge Thomas wrote an opinion which said it was unconstitutional for the
Congress to give a woman’s preference even though that came out of that same congressional
hearing in a rider that proved so determinative in Metro. He distinguished what he said was the
backing to show that connect between minority ownership and minority controlled programming
in a minority case – I don’t know; I find it a totally unconvincing rationale, but that there weren’t
studies to show that giving women more ownership and control was going to lead to women’s
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broadcasting, which I’m not sure is the way the issue should have been defined. I thought it was a
pretty unconvincing opinion. Judge Mikva had a very strong dissent on it. The FCC is not
always I think way out front in defending its principles. I’m sure it is buffeted by the political
winds, but I don’t find it a terribly courageous agency, they just decided to take it no further. This
was ’89. They didn’t even try.
This was also, incidentally, the opinion that caused all the flak because somehow it was
leaked during Judge Thomas’ confirmation hearings, it was leaked to the press and then there was a
big fuss about whether or not the court should’ve hired somebody outside to come in and
investigate the leak. But we did pass a rule, which was much more stringent, I happen to think too
stringent, on what clerks and everybody else can talk about even after they left the court. That was
the way it was handled here, but it still comes up. For instance, on Judge Mikva’s recent change in
job, the Wall Street Journal ran an editorial saying this should have been investigated, this leak was
allowed to lie dormant. Anyway, I think that we have a very strong tension in our law now
between the Lamprecht case, it was never taken up, which says that even if Congress says you can
do this, still you have to have this meticulous study of evidence to see what they were basing their
findings on in the case of women, but you don’t have to have it for minorities. We have that, and
we have Metro, and I don’t know for how long considering the new membership on the court.
The affirmative action problem, I think, will haunt us for a while to come. I mean the legal
standards by which it’s judged will plague us for some time to come –
Mr. Pollak: Was this an unusual case where the conservative position found an
action that Congress took to be an unconstitutional action?
Judge Wald: Well, I don’t know whether it’s always the conservative position to
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uphold Congress. I’ve been on other panels that struck down laws, sometimes in agreement with
the “conservative” members of the court, sometimes not. Let me give you one example. A case
that’s up in the Supreme Court now. They’ve heard argument on it. It started out with a panel
consisting of Larry Silberman, myself and Ruth Ginsburg. Then in the middle of it, before it got
decided, she went onto the Supreme Court, so under the rule of this court, it just takes two
members in agreement to issue the opinion. Well, this was a constitutional challenge to the FEC,
Federal Election Commission, requirement in the law that they have two designated members of
Congress who are ex officio members of the Commission. They don’t vote, but they can attend
all meetings, all deliberations, get all notifications, get all evidence. Is that a violation of
separation of powers? Larry wrote the opinion saying it was a violation and I agreed with him.
Mr. Pollak: Did you strike it down in your opinion?
Judge Wald: Yes. Larry wrote the opinion, but I agreed with him.
In another case a summer or two ago, we had a constitutional challenge to the franking
privilege, insofar as the privilege had been extended to mail sent to newly-redistricted areas by
Congressmen who were going to have to run from the new district in the next election. We had
an emergency appeal on this in the middle of the summer before the election, and Judge
Silberman and the other person struck down that statute as unconstitutional. I would have
upheld that statute. I really don’t see a clear line at all where conservatives tend to uphold statutes
and liberals not. Shall we go on to the last case?
Mr. Pollak: A book-length set of opinions in the North case.
Judge Wald: There were a lot of issues in that particular case. I think the only
one, unless you want to talk about more than that that I will address myself to would be the self-
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incrimination issue.
We could talk about the authorization defense if you want to, but the rest were what I felt
were mainly procedural issues that you can see in a lot of cases.
Mr. Pollak: This was a case in which the panel was composed of yourself, Judge
Silberman and Judge Sentelle and there were an opinion by the court per curiam, a dissenting
opinion of yours and a concurring and dissenting opinion of Judge Silberman. Go ahead.
Judge Wald: Well, it was a very visible case, as you’re well aware. It also had
excellent counsel on both sides. It was not Brendan Sullivan who argued it to us. Barry Simon
argued it for North, but he was certainly able, and Gerry Lynch argued it on the IC side. They
were both really, really good. It was one of those cases in which you encouraged all the law
clerks to go and watch high class, first-rate counsel.
Basically, the big issue, the one that ultimately proved determinative, was whether or not
the self-incrimination privilege, as expounded by the Supreme Court in past cases, covered this
situation which was somewhat novel. It wasn’t a question of the jurors having been over-exposed
to the fact that Ollie North had had these hearings which were televised, or that the prosecutors
made any wrong use of his testimony. They had built this elaborate, elaborate Chinese wall to
insulate the prosecutors which we all, including the majority, accepted. The place that the
privilege came to bear was whether or not any witness who was supposed to be testifying at trial
from recollection alone had seen the hearings and might have been influenced in his or her
memory of events by North’s testimony at the hearings.
Gerry Gesell had been the trial judge and he had taken several precautions which
ultimately I thought were enough to cover such a risk. He had not only, of course, warned the
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witnesses to testify only from their own memory, but he told us, and I certainly believed him, that
he had gone back and compared their court testimony with the grand jury testimony that had been
canned before North testified publicly. What had happened was all but two witnesses who
testified at trial on the counts for which North was convicted, which were the crux of the appeal,
all but two witnesses who had anything to do with those counts for which he was convicted, had
finished their testimony to the grand jury before North ever appeared on television. That
testimony had been canned, put in cans and preserved. The trial judge had that canned testimony
and he said he reviewed that, and I’ve got to believe he did. What that would show, the
independent prosecutor said, and I agree with him, is, if the witness’ testimony at trial did not
differ in any relevant way from the grand jury testimony, which was given before North ever
appeared, then it was okay to presume that their testimony hadn’t been influenced by it. Now if it
differed in some way, there would be cause to have a hearing. But absent anybody pointing to
any kind of material difference, or even in this case, non-material, they didn’t even get to the level
of the difference, then it was alright for the trial judge to presume that they had testified in
accordance with earlier testimony. In addition, he gave them warnings not to rely on anything
they heard, and asked them point blank if they had. He ruled they didn’t have to have a
particularized hearing line-by-line comparing their two sets of testimony.
There was one witness, Bud McFarlane, who had testified before North was on television,
but then come back after North was on television. There was one other person whose testimony
was totally immaterial, but nobody fussed about him at all. McFarlane came and gave some
testimony. North had his public testimony, and then McFarlane came back –
Mr. Pollak: Before the grand jury?
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Judge Wald: Before the grand jury. He gave some testimony. In my dissent, I
examined that and went through it in the opinion and, as I say, Gesell also said he had examined
it, we must believe him, and said that there wasn’t any difference. So I said, Look, if the
defendant can come up and can show us some evidence, facts, somebody who changed their story
or did anything different, then you have to hold a hearing. But right now you’re just saying that
what Gesell should have done because of these things having happened is subject each witness to
a line-by-line particularized hearing as to whether or not each line of their testimony was
influenced by the hearing, which to my mind, was practically saying you can’t use it, which I
think was really the point of the majority. The majority said there must be this particularized
point-by-point comparison with each witness. I think they set up a rule that, in all honesty, would
be practically impossible to abide by. And that, of course, is what happened. Subsequently, after
this reversal, they went back down to Gesell, they put on one witness, McFarlane, who later,
incidentally, repudiated North all over the place, calling him a liar and everything else, in the
current Senatorial campaign, but in that little hearing, he, McFarlane, having pleaded guilty long
since, got on the stand and said, “Oh yes, I did testify partly on the basis of the North testimony,
not from my own memory.” So at that point, it never came up on appeal; my understanding from
reading the paper is that the independent prosecutor kind of threw up his hands and Gesell said,
“Okay, I’ve no choice,” and they threw out the whole prosecution.
At any rate, I felt it was an unjustified extension of Kastigar that no previous court had
ever hinted at. I must admit that since then I haven’t seen any application of the North rule to
other cases. In fact, we’ve had one later case here, interestingly enough, in which the majority to
my mind went much easier on applying it and Judge Sentelle, one of the North majority,
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dissented, saying they didn’t apply the North opinion.
So subsequent to this, just to put this all in perspective, came the Poindexter case. I did
not sit on that panel, Mikva, Doug Ginsburg, and Sentelle sat on that appeal. There Judge Harold
Greene had tried the Poindexter case. He had taken even more precautions than Judge Gesell did.
I don’t remember all the particulars, but I know it was distinguishable because he, I think, had
actually had a little individualized hearing for each witness who heard the public testimony. I
don’t know if he did it line-by-line, but he had a little bit more of a hearing process on each
witness. They threw that one out on appeal, too.
Mr. Pollak: I wonder whether after North there could be a reasonable anticipation
that an immunized witness could be tried?
Judge Wald: I think Congress seems to have operated on the notion that they can’t
because you hear a lot of discussion, I heard lots of discussion from Senators and House members
watching TV during the Whitewater hearings this summer, talking about why they wouldn’t
immunize a witness any more up there. In fact, the Whitewater hearings, from my understanding
watching TV again, had just set out these very specific little areas that they thought were not
going to interfere with what was then Fisk’s investigation. They were afraid, Mitchell or Dole or
somebody said on TV, that should they immunize a witness who later became a target of the IC, it
was more or less all over.
I don’t know. It’s not for me to say whether that’s ultimately the right solution, and that all
sides, Congress and the courts and special prosecutors, can live with that kind of demarcation.
Maybe they can. I did think, and I said it, the court laid down an extremely stringent standard that
really could not be met in most cases and had not been anticipated by prior precedent. But that’s
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only my opinion.
Mr. Pollak: Do you think that the North outcome represented some failure of the
judicial system?
Judge Wald: Not failure of the judicial system. It’s hard to say that. Every time
you disagree with your brethren you might think it’s a failure of the judicial system. I think the
North case laid down much too stringent a burden on the prosecutor that couldn’t be
accommodated in any case where Congress had gone its way and immunized a witness who later
was criminally tried.
I mean, Congress and the special prosecutor will have to work it out. I’m not in a position
to say that: (1) the policy is dead wrong, or on the other hand; (2) that there won’t be particular
cases in which public injustice will result from having to make that kind of a hard, cold choice up
there on the Hill.
I always thought I was a civil libertarian. But I thought this case went too far. It probably
won’t affect the run-of-the-mill criminal prosecution. It will affect only big, high publicity cases,
and those will be settled ultimately on some kind of political basis where Congress either accedes
or makes a deal with the special prosecutor like they did in Whitewater as to what areas they’ll
have hearings on.
Mr. Pollak: I think one thing interested me in view, particularly, of the sensitivity
of the differences between the judges in the case, and you did agree on some conclusions. How
did you reach your decisions in the sense of conferences? Was there an initial conference?
Judge Wald: Yes. There was a long initial conference. This was a long argument,
a couple of hours, I recall. We had a long conference and we had a lot of discussion. We divided
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up the issues. We knew we had a difference on the basic issue, self-incrimination. But there
were a lot of issues which we either were together on or one or more members were dubitante, so
we divided up the opinion. I wrote a lot of the per curiam, actually. I didn’t write the portion I
disagreed with, but I wrote a lot of the other issues, Judge Sentelle and I. Judge Sentelle and I
agreed on several that Judge Silberman wrote separately on. I wrote several of those per curiam.
Two basic issues I dissented on. They reversed one of the counts, because they said that Judge
Gesell had given too restrictive an instruction to the jury as to North’s defense that he was only
following orders, what I saw as a variation on the Nuremberg defense. That’s an issue which I
disagreed on.
Mr. Pollak: What do you make of the effect of an opinion reversal of this kind on
the role and scope of the trial judge? The trial judge has a living, breathing trial to conduct and
then the appellate court comes in.
Judge Wald: I’m not sure. It’s hard to evaluate what the long-range effects of an
opinion like this are. But I really thought they were much too tough on the district court and that
was exacerbated by the Poindexter ruling in which they were just as tough on Judge Greene who
had gone to even greater lengths than Judge Gesell to insure no adverse effects from North’s Hill
testimony. I remember just reading the record, the record was in boxes up to here. Most
documents didn’t come up on appeal; all the business of the government’s not wanting to disclose
certain material, the grey material, and what you did if they wouldn’t disclose it.
It was tough for a trial judge to have to conduct that trial in the glaring light of publicity and
with all the security problems involved and everything else. Not that is an excuse for real error,
which can happen sometimes, a big case like that with one person in charge of it. If there’s real
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error, you can’t say I’m sorry for the trial judge, so it’s okay to commit real error. Unfortunately,
that’s part of what they have to live with. In close cases, in so many other areas of the law, we tend
to side with the judge. But you can’t do that in a criminal case. And where you’re going to really
depart from prior law, now the other judges on the panel would not have said that they were really
departing, but in my view, they were really departing from prior precedent here and staking off into
a new area and to do that to a trial judge after the amount of time and effort that went into this case
is a hard thing. I must say, I had a great deal of sympathy for him. Characteristically, he never said
a word about it publicly or to me privately. I never said a word about it; we sort of smiled at each
other in the hallway, but it was tough and I think it was tough on Judge Greene, too.
Mr. Pollak: Well, Judge Wald, those are great cases, great issues. Is there
anything else you want to say?
Judge Wald: Let me make one departing comment and I think we will call it a
day.
Mr. Pollak: Let me just say that in your parting comment, you said something
quite provocative to me before we began this morning, and that is, you recall, that we had been in
this oral history for three years, or almost three years, and that in that time you have had some
changes, as all of us, I suppose, do, and I wondered if you wanted to put anything on the tape that
indicates any amplification or understanding for the historians as to changes that you may have
experienced in this?
Judge Wald: Well, I’m going to make two brief ones. Brevity, everyone loves it,
but it’s sometimes misleading. I have two thoughts which may seem in contradiction, but I do
have them simultaneously.
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One is, I’m increasingly convinced of the importance of having an independent and
somewhat feisty and irritable judiciary, regardless of the changes in administration. I’ve been
through four administrations since I’ve been on the court, in the end of the Carter Democratic
administration, the two Republican administrations of the 1980s, and the first two years of the
Clinton administration.
I think there are some issues the courts justifiably tackle and they have to tackle regardless
of which administration comes in. In other words, what I’m saying is there are still issues of
importance to our jurisprudence which I would not depend upon any administration to solve
politically. I mean, Armstrong was one. Is an e-mail a federal record? Well, okay, so nobody is
going to vote or not vote for a President on that basis, but I think in the long run it probably is an
important issue and that’s what the court has to be here for despite changes in administration.
And there are other issues like that. Last year, we had three cases of some note en banced
that are still yet undecided. Judge Edwards, Judge Mikva and I sat on the first panel in September
which was highly publicized as either the dream panel or the panel from Hell. But by random lot
again, though nobody seemed to believe it, but I can attest to it, we were assigned a gays-in-themilitary case, the midshipman at Annapolis who was discharged for saying he was a homosexual;
and two FCC regulation cases involving regulations on indecency and a gag rule on abortion
advice by federally funded doctors. The first one involved whether indecency programs, which
still have First Amendment protection, could be confined to a midnight to 6:00 a.m. safe harbor;
the other one involved rules for cable companies making their own decisions about what’s
indecent on these channels, public access channels. It was all in one sitting.
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Three of those are up for en banc now. One has been argued, but not decided, the other
two FCC cases will be argued Wednesday.
So we had three en banc out of the sitting. We had three en banc out of one sitting. I
think those are important issues, however they come out, which the courts needed to decide, once
the current administration decided to stay with the policy of its predecessor administration. I may
not be on the winning side of what the courts decide, but I guess I’m glad they are at least taking a
look. So, even more so as time goes on, I think of the worth of having this other branch around
even though I’m often in the minority and often disagreed with.
The second thing is the longer I’m at this job, the more humble I am as to what we can
really do and when we just spin our wheels and when we make things worse. I think more often
about that as I move along. I think less than I did in my early years about what’s the right decision
in this case and now more about what if we do this? Is this likely to do anything good? Would it
be better if it went to some other branch to decide this and get it done with? Are we just creating
impossible obstacles, either for people or the agencies or other entities and just indulging
ourselves in our theoretical preferences? So, it’s kind of a tension between thinking there are
some issues that it’s very good we’re here to look at, and some issues maybe we ought to leave
alone. That’s the extent of my acquired wisdom.
Mr. Pollak: Thank you.
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December 7, 1998
This is the sixth oral history session with Circuit Judge Patricia M. Wald of the U.S. Court
of Appeals for the District of Columbia Circuit. Present are Judge Wald and the interviewer
Stephen J. Pollak. The interview is taking place on Monday, December 7, 1998, commencing at
10:23 a.m. in Judge Wald’s chambers. The interview is being conducted as part of the Oral
History Project of the Historical Society of the District of Columbia Circuit.
Mr. Pollak: Good morning, Judge Wald.
Judge Wald: Good morning Steve. Nice to have you back.
Mr. Pollak: Nice to be back. This is your session so why don’t you start off.
Maybe you want to say what gave you the thought that you might want to augment your oral
history.
Judge Wald: Was it 1995 when we concluded the last session?
Mr. Pollak: It was. We had five sessions. Time passed. You served on the court
additionally. We saw each other and you said you might like to pick up . . .
Judge Wald: I may live to regret that, but let’s say that two events triggered a kind
of judicial nostalgia. One was that when I finish this term I will have spent 20 years on the court
which is not nearly as long as some of the old veterans who have done 30 and 35 years. I doubt
I’ll ever be in that category, so 20 seems to be a point at which you stop and think. Second, of
course, we’re heading in another year into the Millennium which I haven’t thought much about.
Originally, it sounded more hype than reality to me, but recently I’ve begun to think about it. I
felt it would be kind of interesting to still be on the court, God willing, at the time that we
switched over into the new century. That further provoked my thinking about the past 20
years.
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Mr. Pollak: Could I make a comment? I think you assume this, but we went
through all those other interviews, you edited them and placed them under a seal until you died or
left the court. I have always treated what you said as confidential and that’s how I approach this
morning’s interview. I don’t talk to anybody about it and my secretary who transcribes these
materials doesn’t either, so I hope you’ll feel free to put on the record what you’d like the record
to hold.
Judge Wald: Okay. I can’t remember most of what I said in the other interviews.
Mr. Pollak: I don’t think that matters.
Judge Wald: No I don’t either.
Mr. Pollak: You can repeat or as you wish.
Judge Wald: I’m really just going to say a few things about the last several years.
So let’s say the 1990s, rather than the precise moment at which our last interview concluded. I
can’t remember what I was talking about at that point.
I think that the decade of the ’90s, which is almost over now, has been interesting on the
court for the reason that in a sense it’s been like a third court for me. I now think of myself as
having served on three courts. First, the court that I came on with in 1979 which had Wright and
Bazelon and Robinson and McGowan and for a short while Leventhal; Bazelon had just taken
senior status and Spotts and all of those other people I mentioned plus the three new people that
came in during the same year that I did. Then, second, there was the court of the early years of
the ’80s going through the early ’90s which was a court that gradually became dominated, in
numbers certainly, by the appointments of Presidents Reagan and Bush. We saw the cycling out
through death or attrition of basically all the judges that had been on the court when I came in,
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except for the three that came in simultaneously with me, Bazelon, Wright, Leventhal, McGowan
all died off, Wilkey left the court, Robb, Tamm and MacKinnon died off. We had the advent of
Bork, Scalia, Thomas, Starr, Silberman, Buckley, Williams, Sentelle, Henderson, and Randolph.
And, of course, some of those appointments themselves cycled in and out in that period, Bork,
Scalia, Thomas, Starr. So after we entered the ’90s, basically from about the time of the Clinton
administration, we had, as it were, a third court. First of all, within a couple of years, Ruth
Ginsburg was appointed to the Supreme Court. Ab Mikva left in 1994 for the White House
Counsel position. He had to retire of course from the court in order to do that. We had three new
Clinton appointments – Judy Rogers, who had headed up the local court, Dave Tatel and Merrick
Garland. So the dynamics of the court are now different. The Reagan/Bush appointees still have
a majority. They don’t all vote monolithically, nor do we, but if you’re looking first in a snapshot
fashion you’d say we are now basically a six-five court because, of course, we only have 11
judges.
Mr. Pollak: Six-five with the Reagan/Bush court having six.
Judge Wald: Yes, having six. There being Harry Edwards, myself and the three
new appointees. Now, we don’t, I have to emphasize, always vote that way as anybody who
reads en banc knows. That means two things. It means that it isn’t just when we all vote together
that we may have a six-five. You have a greater chance of pulling somebody over, one person
over on the other side, and winning, certainly, than you did during the ’80s in many en banc cases.
But also the panels are different. You’re more likely to have one or two other people who will
think like you do on some issues, not all, than you did during the ’80s. So that you have more
play in the joints. The dynamics are different now. This might be illustrated by the fact that late
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last year we had two en banc. I ended up writing both of them for a seven to four majority on the
court. It’s been a long time since anything like that happened. Now I did write some en banc in
the ’80s but they were usually on issues that were pretty procedural or non-substantive value
oriented . . . The issues in the two recent en banc were a little bit more in the center of where you
would expect controversy. One was on standing which has always been a very controversial
issue, the other on Title VII.
Mr. Pollak: Do you remember the style of the case, the name of the case?
Judge Wald: Yes, Animal Legal Defense Fund v. Glick man. It had to do with
standing of people to challenge the treatment of animals on exhibition, but it had all of the
elements of a classic standing case which a few years before we had lost, I think, eight to three.
Ironically, as the Legal Times pointed out, the earlier case had been written by Dave Sentelle (it
was a Florida Everglades case, I can’t remember the exact title) and I had been the dissenting
view. This time, I wrote for the majority and Dave wrote the dissent. The cases were not on all
fours but they had a lot of the same elements, as the commentators were quick to point out. Now,
that illustrates not only that you have a better chance statistically of winning, we couldn’t have
won it with just the five of us. We got two people from the other camp. So things are more fluid
now.
The other en banc was an employment discrimination case. Such cases are often the
subject of much controversy. The issue here was who has the burden of proving what in a prima
facie case and rebuttal in an employment discrimination case. How do you get over summary
judgment to trial.
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Mr. Pollak: And what was the style of that case?
Judge Wald: Yes, Aka v. Washington Hospital Center. So I say, these two
en bancs may not be portents of a trend, but they say to me that we are operating in a somewhat
different atmosphere. So that’s one interesting change that has taken place in the ’90s as it were.
The other of course is – I left the chief judgeship in 1991. We covered this in the earlier
part of the biography. I left early so that Judge Mikva would be able to serve as Chief Judge
before his 65th birthday. Now he did serve for three and one half years. He left in 1994 to
become Counsel to the President and Harry Edwards took over. I think courts do reflect, to some
degree, differences in Chief Judges. So for that reason I think it has been different. Harry is a
very dynamic, energetic would be an understatement, Chief Judge. He’s made a lot of changes
and I think by and large I agree with all of them.
Mr. Pollak: Why don’t you describe them.
Judge Wald: I will. Operational changes. Harry is a real, I won’t say computer
nut, but let’s just say he really understands computers and software and their potential. So he’s
introduced some very innovative online procedure things I could never have done or Judge
Mikva; we didn’t have this degree of computer expertise. He has introduced a lot of changes in
the way we operate through making every conceivable kind of computer program available. We
now vote by computer. We have something called “Team Talk.” We vote on en banc and on
motions by computer. I would guess, without knowing, that we’re the most technologically
advanced appellate federal court in the country. We, of course, do a lot of communication by email now. There are a lot of things necessary to operating a court that take time and parts of them
might be better handled by other personnel. For instance, in C.J.A. cases, we have always had to
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okay the appointed counsels’ vouchers. He now has one staff person who does the pre-screening
work on that. The judge must still sign off and has final judgment, but this one staff person goes
through it all and sets the options up for you, instead of the judge having to look at the number of
hours that somebody spent on this and that. This introduces an element, whose absence had
always bothered me before, of uniformity into the process. I have always had a very different
philosophy about compensating counsel, than certain of my colleagues did. I think as a result if
counsel wanted to get excess compensation, the administration of the C.J.A. compensation
program was quite erratic among different judges. Whereas now it doesn’t prevent a judge from
taking issue with the recommendation by the one staff person, who is, incidentally, very good.
But it means that everybody starts off with, at least, uniform criteria being involved in the
recommendations. So there are things like that Harry has introduced which make certain
peripheral aspects of the judges’ job easier. He’s done some good stuff on having seminars once
a year to introduce counsel to how the Clerk’s office works.
Mr. Pollak: Right. Can I ask one question about these reforms or changes in
respect to utilization of computers? Would you say that they conserve the time of judges so you
have more time to address other duties? Would you say that they affect in any way the
substantive performance of the judges?
Judge Wald: Well, it’s interesting that you should ask that Steve, because as I
mentioned to you earlier I have just given a talk a week ago to the Cosmos Club Legal
Committee. I had a section here (referring to the copy of remarks dated December 2, 1998,
attached to this transcript) dealing with changes that I thought had taken place in the court in the
last couple of years and one is technology. I think that convenience-wise, technology has been a
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good thing. The e-mail, the voting, etc. But what little research, and it is by no means scientific,
I’ve done does not suggest to me that these changes have helped us to produce more opinions or
better opinions. In fact the numbers, which are not controlled by whether we have technology or
not, suggest we are putting out fewer opinions every year. That is due to a dramatic decrease in
the last couple of years in the number of filings. The number of filings has gone down such that
we have now canceled five or six sitting days this year.
Mr. Pollak: That surprises me.
Judge Wald: It’s there. It’s gone way down. This year will be the least number of
sittings in my entire 20 years. Not just me, everybody else on the court has had whole days
canceled. They don’t know why at the Clerk’s office. There’s a decrease in agency cases. It
might be temporary. Over the years we’ve had many up and downs.
Mr. Pollak: Do you know whether the docket of the district court has dropped?
Judge Wald: Yes.
Mr. Pollak: It has dropped too?
Judge Wald: I understand so, but this is only by hearsay. There’s been a real
question as to whether the district court can support the number of judges, for very long, that it
already has.
Mr. Pollak: It’s interesting because you can’t attribute the drop then in sittings to
ADR because ADR attaches.
Judge Wald: No. The numbers are not due to ADR. I mean there are nice ADR
numbers and ADR has been a very helpful supplement, but, no, it couldn’t begin to account for
the drop. . ..
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Mr. Pollak: Because ADR attaches after cases are docketed.
Judge Wald: Anyway, in terms of the computer, I suppose you might say that the
technology is there. So if it’s there, you might want to avail yourself of it. It is easy, for instance,
to run over to the computer. You can see exactly where the voting is on a particular motion or a
particular en banc case, but does it mean that we now produce a lot more opinions or we produce
better opinions, the latter, of course, is subjective, but I don’t think so. I had an interesting
statistic. Last year the court put out 290 published opinions. Now, as you know the trend over
the last 20 years has been for us to do more and more of our final dispositions by unpublished
order in the special panels, occasionally by unpublished order in the regular panels after oral
argument. We’re probably somewhere between 50 and 60 percent dispositions by unpublished
opinions. That’s low for the country. In many circuits, the big number circuits, it’s at 76 percent.
So published opinions are now a minority mode of disposition. That certainly is a change from
when I came on board. When I came on the court 20 years ago, I don’t think more than five
percent of our final terminations, not motions, but final terminations, were unpublished but now
it’s well over 50 percent. Anyway, last year we put out 290 published opinions on the merits. In
1986, we put out 304. Now that’s not much difference, but it shows we aren’t called upon nor do
we publish a greater number of opinions. Perhaps, I didn’t check the figures on whether we’re
getting them out faster, but if so, except for one or two problems we had in the old days with a
particular judge being slow, my notion is that if we get them out any faster it’s a matter of a
couple days. So I guess what you have to say is, if we take full advantage of the technology, it
probably aids us in a certain amount of convenience, but I’m not sure that it changes or has
remarkably improved either the quality and certainly not the quantity of our work. I do see a
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downside which I treat in my speech to the Cosmos Club. A downside is that so much of the
work can be done by computer, i.e., we put out our comments on en banc petitions by computer
even if they’re just a couple of paragraphs, that I think the amount of actual interaction between
the judges has gotten less, for a couple of reasons. One, there are some judges who literally do a
great deal of their work at home and that means out of the jurisdiction in some cases. They’re not
in the courthouse except when they have to be here for an argument, maybe an occasional judges’
meeting, a special panel. But they literally are not there a lot of the time. You do not see them
for months at a time. You can communicate with them by e-mail or by phone, but you literally
don’t see them. Now that used to be the case, of course, in other circuits, lots of other circuits,
which cover several states and lots of territory. Judges only see each other when they meet at oral
argument. That supposedly has been one of the advantages to this court. We were all in the same
building, but I would say that our actual physical contacts have gotten less by and large. Because
you don’t even need the phone anymore. You don’t need the interaction of human voice. A lot
of it is done –
Mr. Pollak: On e-mail?
Judge Wald: On e-mail. The second thing is that, I think again this is just an
impression, you’re able to make decisions faster either as a panel or as an en banc court through
this device. You know it used to be that you voted on a sheet of paper and a messenger came and
took your sheet of paper and he took it to the next chamber, took copies and then somebody
else’s came – and just from the pure mechanics of the situation it took a couple of days minimally
to arrive at a decision. You can vote an en banc in an hour now because you just go to the
machine and you can see where everybody else is. It doesn’t always happen that way, sometimes
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it takes days, but I have seen things go very fast. It’s a click of a mouse now. You certainly can’t
say in the old days it took more thought and reflection to check a box and wait for the messenger
to come, but there is something about the new medium that militates towards very fast reactions.
I’m not sure that’s always the best way to do things. It’s interesting. On the other hand, the
technology is there and Harry has helped us to avail ourselves of it totally. I mean he has all sorts
of programs that are in there if you want to plan your time and calendars. I don’t use any of
those. I’m not very computer literate. Until a year or so ago, I was totally illiterate, but I realized
you just have to be in the computer mode now or you can’t even interface with your law clerks or
your colleagues. You can’t do anything. So I went to computer school. They have a school for
judges in San Antonio which is a very nice operation. You go down there for a week. At least
when you come back, you know how to do computer-assisted legal research. You know how to
do e-mail and you know how to use – you don’t have to get your secretary to enter everything
when you are voting by computer. So that was an interesting experience.
Mr. Pollak: Judge, I wonder whether the speed with which these functions can be
performed and the use of the computer in any sense changes the judge’s approach to the briefs or
the oral argument. Is it just the same or is there a change?
Judge Wald: We generally don’t get into the computer mode until after we’ve
read the briefs and the papers. So I don’t see any difference in that respect. It will be interesting
when we get into electronic filing to see if that makes a difference. I see the computers making
some difference in the way judges interact with each other. Now, so far the lawyers are
concerned, we’re still getting hard copy of everything and we’re still going to court and hearing
their oral argument. So I don’t see any difference in that way. Now when that becomes more of
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a computer activity, I simply don’t know. But I would speculate that it’s hard to think you could
make that big a change and not have there be some difference, but right now I don’t see any. But
again, we’re deciding more than half of the cases with no oral argument.
Mr. Pollak: And those are identified by the Clerk or by the judges or by God?
Judge Wald: [Laughs] Well, who says that judges aren’t God? If the case is a socalled 34J, that’s the rule number, the staff in the Clerk’s office makes a recommendation for
decision, but the recommendation has to be agreed upon by whatever special panel is sitting. As
you know, you sit for three months or so on a special panel and meet every couple of weeks. The
special panel decides a lot of cases. We have to okay anything that goes on the 34J list and any
one judge on that panel can say, “No, I think this ought to go to oral argument.” We do that
occasionally, but the fact remains that well over 90 percent of the recommendations that are made
for 34J go to 34J. There is a procedure whereby counsel are notified that their case is being
considered for 34J treatment and can make a plea by paper. “No, no, this is the most important
case that’s come down in the last 10 years and you can’t do it.” Occasionally that works, but by
and large the things that are siphoned off for 34J treatment by the Clerk’s office staff get to the
panel on that basis, are decided by the panel, result in unpublished opinions and that’s the way.
But as I say, we’re low, I mean if you look at the Fifth, Ninth and the other circuits, they are up in
the 60 and 70 percent.
Mr. Pollak: Is the lead recommender the Clerk, Mr. Larger, or the Counsel to the
Court?
Judge Wald: It’s somebody in the Clerk’s office. Mark Larger can’t do
everything. No, actually it’s the Legal Division. Marty Tomic heads that. It used to be Mark
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was Staff Counsel and then he became the Clerk and now it’s the Legal Division of the Clerk’s
office that’s headed by Marty. Now who exactly does it up there, I don’t know. As I say,
occasionally we’ll pull a case out and say we think there’s more to that, put it on the regular
argument calendar and it only takes one judge to do that. It may be that if our filings keep falling
and we can’t fill the number of days that we’re used to sitting, needless to say, the criteria for
deciding what doesn’t need oral argument, is going to adjust to that and more cases that we might
have said don’t need oral argument, we’ll go ahead and give them oral argument.
Mr. Pollak: I’m a little unclear as to whether it’s one judge of the full court or one
judge of the special panel?
Judge Wald: No it’s one judge of the special panel. The whole development has
been something which is paralleled across the whole federal judiciary. As I say, we are not one of
the leading circuits because we are not an overwhelmed circuit the way some are. Some of them
treat up to 76 percent of their cases this way. So, gone are the days of Atticus Finch and Clarence
Darrow. The parties have to convince us initially from their papers that the case is really
important enough to get on the argument calendar and later on not unimportant enough so that it
will be taken off the regular argument calendar before you even get a shot at us. So I think, we’re
a unique circuit. For most of the federal appellate courts, case filings have gone way up over the
last 20 years. We’re aberrational that way. I think filings have multiplied 10 times since 1950
across the country, so that we are clearly in a spot here, a different spot, than almost any other
circuits. There may be one or two other circuits that have seen their filings decline.
Mr. Pollak: Well, it sounds like it’s essentially food for one or more research
projects. It may well stem from a change in the federal government’s approach to issues and
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decision of issues.
Judge Wald: I just wanted to correct something. I just checked my paper. Since
1950, federal courts of appeal merits decisions have multiplied more than 20 times. Here’s
another interesting statistic again and that is, of course, as they multiplied 20 times, the Supreme
Court’s docket has been halved through their use of certiorari. When I came on the court and for
many years thereafter, the Supreme Court was putting out roughly 150 cases a year. Now they are
down to what, between 85 and 90 now. Something like that. That, of course, is a conscious
choice on their part. When Justice Scalia was on this court, he was a proponent of Article III
judges spending more of their time on selected important cases. Now he’s in a position to put
that into operation. You can’t do that on any other federal appellate court. You have to handle
every case that comes somehow, but, of course, the way we’ve reacted here and in most of the
other circuits is to create a track system. The track I’ve just talked about, where a case gets
truncated briefing, no oral argument, is decided by a panel of three judges who decide 20 or 30
cases in a couple of hours that way.
Mr. Pollak: It’s the 34J track?
Judge Wald: Yes. Those decisions, I should be frank with you, are basically
edited versions of the Staff Counsel’s memorandum. In other words, they are not written in the
same mode as something on the regular calendar that gets assigned to a judge: In calendared
cases, you come back, you work with your personal law clerks and then you produce a decision.
That whole mode is not used for the 34J cases. In a 34J, you get the staff clerk’s memorandum
along with the briefs but you get 20 or 30 of those for one sitting. You read them through. If you
agree with the staff memorandum, you may want to edit it a little bit or make some changes, but
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basically it becomes the unpublished decision. Then, of course, we have our very small complex
track for those mega cases which come in, usually big administrative agency cases, sometimes
multi-conspiracy cases, criminal cases, which go to special complex panels. Not the 34J panels
but special ad hoc panels. So all of that is certainly a change from the old days. In the old days,
there were no special panels. When I first came on the court, the day before your regular sitting
you had one day in which you would get mainly orders and stays and you’d go through them.
The orders were usually perfunctory. Occasionally, you might get a stay, but no case of any
consequence would be put through for summary disposition.
Mr. Pollak: Have these events or the change in the make-up in the court of the
’90s changed the recourse of the court to en banc sittings?
Judge Wald: It seems to me that the number of cases we take en banc over the last
few years is pretty stabilized at four to six. There was a period in the late ’80s, middle-to-late
’80s, when I think the court was sort of in equipoise. Sometimes, then we had more en banc.
That’s sort of quieted down. I think last year we had four. So far, we have scheduled two for
January. It’s rare, certainly rare, that any case that was 34J would be the subject of an en banc.
The 34J status practically guarantees that it won’t be. If you’re on that track, forget it. I would
think that is true for the Supreme Court too unless it’s some terrible manifest injustice. The fact
that you don’t even get a published opinion virtually guarantees that’s the end of the track for
you. No en banc or upstairs. I don’t know what effect it has, if any, on the cases that go to
regular argument. The voting on en banc, in the last several cases has been close. I mean they’ve
been six to five, seven to four. Not the en banc itself, but the voting to en banc.
Mr. Pollak: I see. Whether you’ll have it at all.
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Judge Wald: They haven’t been all unanimous, not unanimous. Usually the
panel will resist. But they’ve been close. They could have easily gone the other way; they’ve
been cliffhangers waiting for one judge at the end to decide which way either he or she will go.
We had started to get into collegiality a little bit and I’ll come back to it, but we did have
our famous or infamous experience with the Gender Bias Task Force which is worth noting
certainly. I don’t think it was an entirely pleasant experience, but I suppose there are probably
useful lessons to be drawn from it. I don’t want to spend a long time on it except to say the
impression I derived from it was the following. The task force itself composed of outside lawyers
and law teachers, people like Vicki Jackson and Todd Peterson, did a really fine, academically
creditable job. There might have been a rough edge or two, but I saw no qualitative difference
between what we did and what the Ninth Circuit had earlier done. In fact, the same Rand
Corporation study consultants who did the Ninth consulted on the methodology for ours, and I
think our report wasn’t markedly different from the 35 or 40 state court reports. In fact, the task
force stayed away from some of the areas that the state courts, even the one across the street, the
District of Columbia court system, went into. You recall the task force got a very negative
reception from several of my colleagues up here who promptly disassociated themselves from it.
I think this was part of a bigger movement which was going on in the country to try to stop the
whole inquiry in the federal system as being tied somehow to an attempt to get preferences for
women and minorities, which of course it wasn’t. I often said that report was so mild that in the
’60s and ’70s you and I would have been reluctant to sign it because we would’ve have thought it
didn’t go beyond what was almost commonplace. Suddenly it became controversial, but that was
part of this bigger move that was then taken up by the GAO study which, I will say frankly here, I
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thought was not professional or independent enough of those Congressmen who initiated it. I lost
a fair degree of respect for the GAO in that process because I had always worked well with them
when I was in the Justice Department and had respect and still do for some of their other studies.
If I ever saw a cave, a report change between versions, under pressure, that was it. Also, then
there was the attempt, successful in large part, to cut off the funding of other courts in the country
which had embarked on similar studies based on the so-called bad methodology of our study,
which was really, I thought, a totally bum rap. It was senseless. The same methodology had been
used elsewhere. I thought the whole experience left a bad taste. I’ll mention two other points.
One is that fortunately it didn’t stop the effort elsewhere. The Second Circuit went ahead and
produced its report. The Third Circuit did an excellent job. I went up to the Third Circuit
Judicial Conference when they presented their Gender Bias report. Theirs wasn’t any more
methodologically exacting than ours was, but yet they had a consensus among their judges, even
the more conservative ones, and their report just went through. It was like a different experience.
It was like being in two different worlds. I watched the presentation up there in the Third Circuit
Judicial Conference. The Third, Second and Eighth Circuits adopted reports and so did some
others, so the treatment of our report didn’t stop the others in that sense. I think what was too bad
was that really hard work and professionalism of people like Vicki and Todd were never
acknowledged the way it should have been. When the report’s quite mild recommendations got
to the Judicial Council again, although we had the support of our district court judges, regardless
of party or philosophy, and I give them a great deal of credit for that, including Norma Johnson
who was not then the Chief Judge but who was a strong advocate of the report and Jack Penn
who defended the report, we were able to get a limited amount of progress in adoption of the
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sexual harassment procedures and grievance machinery changes. The Circuit Executive, then
Linda Ferren, put through some staff training on discrimination and related staff problems. This
was not as much as I thought we should have been able to do. The final note was that last year
the courts’ women law clerks got together on their own but with strong encouragement from
Norma Johnson and put on a bunch of super programs in the courthouse in March, for Women’s
History Month. They got all the women judges together. They had one program that was
historical about their impressions, the problems they had met. They had an overflow crowd in the
courtroom. They did it at lunchtime, no budget, no anything and it was fascinating to me. I heard
things, tales of the experiences of June Green and Norma herself that I had never heard before.
There was a lot of spirit among them and it was well attended by some male judges as well as
female judges and courthouse staff. Then Sandra O’Connor came down for another one of the
programs and it was sufficiently successful so that they are going to do it again next year. So
regardless of this disappointment one of the deep impressions I have gained over the last 20 years
is that women have firmly established their place in the court administration. We now have three
women judges on the court of appeals and four or five downstairs, on the district court. If you
count the senior judges we have the two Judges Green, Norma, Gladys, Colleen, and Judge
Magistrate –
Mr. Pollak: Robinson.
Judge Wald: Yes. And, our Circuit Executives now for the last 12 years since
Linda Ferren came on have been women and their deputies too. We’ve had women Clerks of
Court. We now have women running a lot of the divisions. When I came here women were
clerks and secretaries. They ran nothing. Now, I think, it’s pretty impressive they’re running a
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lot of the administration in the court and in their divisions. So I think that’s been a change, a
welcome change. Even if sometimes you have momentary setbacks like the task force episode.
Mr. Pollak: Well, it almost calls for a kind of a pull back to analyze over a decade
or two decades quite what led to the opposition to the Gender Bias Task Force. It seemed as if it
wasn’t related to the caliber of the work or the issues or even the record that the task force would
attest to?
Judge Wald: Well, that’s why I think it was so unfair. The opponents grabbed
onto this methodology thing and they got this one Harvard professor, Thernstrom, and he and his
wife are very much, as they have every right to be, identified with anti-affirmative action
sentiments. But for him to attack the methodology, I think, was just off base. But it was so
quickly picked up. When you looked at the colloquy on the floor of the Senate between several
conservative Senators who I believe had close contact with some of our own people down here,
they would say, “in light of the bad methodology,” which was wrong. When they talked about, I
always laughed at this, the “divisive impact of the studies in the D.C. Circuit,” we were used as
the bad example for why they shouldn’t give money to any other court in the country for this
purpose. The divisive impact, of course, was as much a reflection of the proclamation by the
dissenting judges, as anything done by the task force itself. But anyway, our task force report was
used as the whipping boy in order to cut off the funds elsewhere, which I’m glad to say, it did not
succeed in doing. It caused Rya Zobel of the Federal Judicial Center some trouble because she
was seen as having let the Center encourage these studies because her people had put out manuals
on how to conduct the studies based on ours and the Ninth Circuit’s studies. But in the end she
survived. Although there was some support for us in the Executive Committee of the Judicial
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Conference, this is my understanding secondhand of the Judicial Conference, when you got above
that level there was no support to try and get back the money. Anyway, that is to some degree,
past history. I think there were some good results, though limited, here in the circuit and more
elsewhere probably due to the relentless perseverance of a lot of people like Judy Resnik who
writes about these task force inquiries and their importance. I think, that it didn’t slow down
anything nationally.
Now, to move from the task force to collegiality, things have been really quite peaceful
over the last six or seven years apart from the task force. I think our judges seem to get along.
There are no major or even minor feuds going on. I feel that some of my own rough edges have
perhaps worn off with age. Some of the rough edges of my colleagues have too. So, except for
this incident, things have been relatively peaceful, I would say. I suppose what it teaches you is
how, if you’re on a court and you’re in a close knit community and you care about something
very much, it’s bound every once in awhile to result in people rubbing each other the wrong way.
Although I was disappointed that that happened in this circuit, to the Gender Bias Task Force
report, and it didn’t happen in any other circuit to my knowledge –
Mr. Pollak: I’d like to push you to say what rough edges are in a judge who has
served a long time.
Judge Wald: I think in earlier years when you first come on the court you are so
anxious to do things right or to bring about a result you think is the right result that you perhaps
harbor notions that you can persuade other people by the pure dint of the merit or even the
intensity of your argument. Perhaps you tend to write more in a, not a dismissive, but a harsh
critical way when you don’t succeed. If I look back on my own early stuff it probably could be
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said that I felt or perhaps even wrote that way on occasion. In turn, I was written about in that
way, so it wasn’t one sided. I think that sometimes when you look back after 20 years you realize
that you don’t always know what’s right and when the other side is automatically wrong. You
may think so, but you don’t always know the significance, the unintended consequences of
decisions and so perhaps you become a little bit more tolerant as you move along. I don’t say you
change your mind in the face of opposition and cave in on everything. But you do recognize that
maybe I have to be a little more tolerant to the other side because you don’t always turn out to be
right. I have to tell you on the other side, people that you assumed were your allies and you
assumed that they would be there when you needed them, are often not. So you gradually get
more self-reliant in the sense that you don’t see people as your friends or your opponents
anymore. You go your own way trying to do the best you can and, as I say, being a little more
tolerant of other people and maybe not even expecting after many disappointments that other
people will always see things the same way you do. That sounds a little bit vague but that’s the
best I can do.
Mr. Pollak: It’s helpful to have.
Judge Wald: Everybody leads her own life and everybody, even over the course of
20 years, changes and ultimately, in my own case, I think you depend more upon your
independent view of things. At the same time you’re more tolerant of other people’s views of
things.
Mr. Pollak: Would you care to express a view on whether the substantive
outcomes benefit from the process of greater experience?
Judge Wald: I don’t know. I really don’t. I can see two sides to that. There’s no
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question that, if you have a great deal of intensity and you are willing to throw yourself with a
great deal of energy into something, you may produce a very good product. You can hope that
other people will see it the same way as you. They don’t always. It’s quite possible that judges in
the early part of their careers do their best work. I wouldn’t be surprised if that is true. Even
though it may not always elicit unanimous acclamation. It’s not to say that some of our older
judges don’t do fine work, but I think it’s like every profession, there’s no question the amount of
energy that’s poured into something is going to change with time because the human body and
mind change with time too. On the other hand, I think, it is possible that as you move along and
you’re less sure about or you’re less intense about winning or having the opinion be exactly the
way you want it, line by line, it is possible to get consensus in more cases to do, maybe not the
perfect, but maybe the best that can be done in that situation. Rather than to have an up/down
majority/dissent. No matter how brilliant the writing is on both sides, two polar ends, sometimes
it’s preferable to get a less brilliant product everyone can agree on. Also, I must admit, my own
views about the body politic and about things generally, not just court decisions, are now much
less allied to causes than when I was younger. So maybe some of that carries over.
Mr. Pollak: Is that a function of age, experience?
Judge Wald: I think it’s a function of the times. Who am I to say. I think the last
several years have made me much more independent, less allied or affiliated with anybody in my
thinking about issues in the national body politic.
I wonder about the law schools, I mean, as more and more of the academics seem to me to
be more and more engaged in their own life, their own academic life, whether it’s on TV [laugh],
we’ve seen a lot of that recently, or in their intra-academic disputes in the law reviews that can’t
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have any interest to anybody who isn’t in the middle of them; sometimes I wonder whether or not
the students haven’t become for a lot of them like implementors, their legal research assistants.
They write an exam or they write a paper and I have no idea how much attention that paper or
exam gets from the faculty. The students in turn reflect that their aim seems to be to get through
this or that professor’s class with a minimum of disruption. My God, I mean, I remember what a
wonderful experience just to have sat in on Harry Shulman’s labor law class. What a sense of a
man who had worked in the field and this overall feeling you got for an area of the law and how
much it meant if it went one way rather than the other. I don’t have that clear a sense about the
faculties or students today. That’s my own impression, of course. God knows, they can whiz
around with the computer, but straight out of law school many don’t seem to be able to transcend
the material. It’s as though nobody really engaged them. I hope the clerkship does that. There
are obviously exceptions. I read the law reviews and since all of the authors there went to law
school it must mean some of them got up into that higher realm of cerebral thinking. Between
these, I see two extremes, the thinking which doesn’t really have any relationship to what the rest
of us are doing in the world or a kind of inability to say much more than this argument is better
than that argument.
Mr. Pollak: Do you see this manifested at all in the younger attorneys that you –
Judge Wald: I can’t tell, Steve, they come in and argue their case. I don’t expect
them to give me their philosophical views, so it’s impossible unless you happen to be in some
other milieu where you can engage them in conversation.
I think again I’m going beyond my competence here. I’m just guessing. I see a current
obsession, in the legal profession as well as elsewhere, with celebrity status. I see it infecting the
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academic, the legal academics. I mean you have to be on this committee, you have to be there
when they have the congressional hearing, when they have this, when they have the TV thing you
have to be there. That becomes, I think, for many of them, for the younger ones particularly,
more important than, or just as important as teaching or thinking. You have to have your article
in the New Republic. My guess is that a lot of them spend more time on that than they do on
working with individual students by a long shot. I think there’s some of that – let me see how I
can say this – a little bit of that even with some judges. There’s a kind of a need to be out front,
judges have always been ambitious, don’t kid yourself, there have always been judges who want
to go from here to there to up there. That’s the nature of the game, but I think there’s more
emphasis on getting in the forefront and in the public consciousness, more than 20 years ago. In
the old days, the Bazelon and the Wrights were well known but they were well known for what
they had done. The old notion was whatever you do, do well. I think, the old notion was of a
judgeship being the culmination and the capping of a career; doing your work and assuming your
reputation would come from the quality of your opinions, etc. Of course, judges, a lot of them
tend to be much younger now. You can’t cap your career at age 37. Many more judges now
cycle in and out of the judiciary and I think that the notion is not entirely absent in their calculus
that you may be the next X in this administration or Y in that administration, etc. There’s more
of a sense of keeping your name in the main stream. It’s an atmosphere sort of thing.
Mr. Pollak: So how does this make you feel as you look to the turn of the century?
Judge Wald: Well, I don’t know, I’ve got another year and a half. No not a year
and a half, just another year to try to bring that to closure. I’m now the most senior person active
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on my court. In other courts, some judges have done 30 and 35 years. I think there are great joys
of the job (this will be my closing) and if I had my life to live over there’s probably nothing else I
could have done at the end of my legal career I would have liked better. For one thing, I couldn’t
have replicated elsewhere the independence aspect of it. Independence in the sense that you don’t
always get your way in the end, but nobody can tell you have to do anything. I mean the Supreme
Court can lay down a rule, but on an individual case nobody can tell you can’t say this or you
have to do that. Although I had my brief periods of working in the practice, I don’t think I would
have liked forever having to get out there and say what somebody else told me to say or take a
position that somebody else told me to take. So I think that’s one of the great joys of the bench. I
think, though, sometimes you think you’re working in a dark forest that nobody knows or cares
about. I’m not saying this in a plaintive sort of way, but I’m now in my 800s in terms of the
number of opinions I’ve written and you just have the feeling, “Well things come and go,” and
the opinions you wrote in the first couple of decades are probably, basically, many of them
obsolete now. Events have overtaken them, like the old Carl Sandburg poem, “Why does a
hearse horse snicker when he hauls a lawyer’s bones?” An architect builds buildings and an
author produces books or poems and sometimes I have that sense of “Was I just sort of an
elaborate tinkerer?” There are always enough cases to look back and say, “Well maybe that did
make a difference.” But it is largely an anonymous job. It’s a little bit like the blind dart thrower.
You’re throwing the darts and you’re never sure whether they hit home or whether they don’t. So
you’re never sure whether you get any better or whether you get worse.
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May 6, 2003
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. It is the seventh interview of the Honorable Patricia
M. Wald, former member of the U.S. Court of Appeals for the District of Columbia Circuit. The
Interviewer is Stephen J. Pollak. The interview took place at Shea & Gardner, 1800
Massachusetts Avenue, N.W., in the District of Columbia on Tuesday, May 6, 2003, at 3:00 p.m.
Mr. Pollak: The Society is grateful for your doing this. I went and checked the
record and the last interview you gave was on December 7, 1998. Could you run over briefly
your activities and experiences since that time. I believe you left the circuit court in 1999.
Judge Wald: Yes. I left the circuit at the beginning of November 1999, and was
appointed by the Secretary General of the UN to fill out the unexpired term of Judge Gabriel Kirk
McDonald who was then the American Representative on the International Criminal Tribunal for
the former Yugoslavia, which I will hereafter refer to as ICTY or the Hague Tribunal. So I went
over there literally a couple of days after finishing up my last sitting which would have been the
October sitting of the D.C. Circuit. I went over there in November and began about November
15
th
. The term was two years, and I came back in November of 2001. Since then I have been
doing a variety of things. I’m the Chair of the Open Society Institute Justice Initiative, which is a
newly formed part of the Open Society Institute, otherwise known as the Soros Foundation. Our
part deals exclusively with legal programs abroad, not U.S. programs, the rule of law, human
rights, freedom of information, anti-corruption, a few other things. I’ve also been doing an
arbitration, and I’m still doing some work with CEELI (ABA’s Central & Eastern Europe Law
Initiative), making a variety of public appearances, speeches, and doing some writing.
Mr. Pollak: Pat, when you say “we” and the Soros Foundation, is this a board, is
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this a staff position? What is it?
Judge Wald: I’m the chairperson of a separate board. We have our own
international board which is made up of about 12 members from all over the world. We operate
basically on a budget. The money is provided by Soros through the Open Society Institute,
although we’ll have projects in conjunction with other foundations, sharing the money. I’d say
the best way to characterize it would be a working chair. I have an office with the OSI, D.C.
office here and I spend probably about 60 percent of my time on this activity.
Mr. Pollak: I see. For two years, you were a judge on the ICTY. You returned
home. You took this board spot. You’ve taken an arbitration. You’ve made speeches. Did your
service on the court finish in November 2001?
Judge Wald: The service on the ICTY?
Mr. Pollak: Yes.
Judge Wald: Yes.
Mr. Pollak: From that time to this you have not been serving as a judge other than
this one arbitration?
Judge Wald: Yes. That’s not really a judge or at least not in my parlance. Yes, as
you know, Steve, I had to formally retire from the circuit court in order to go overseas and when
that term was up, that was the end of judging.
Mr. Pollak: Since we haven’t spoken on this oral history since your leaving the
bench in November 1999, what was your reaction to leaving the circuit bench?
Judge Wald: Well, I was quite excited about the opportunity to go onto the War
Crimes tribunal so I’d say that I didn’t spend much time in being nostalgic about my departure. I
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had a very pleasant series of parties and receptions that the court and friends gave and it was very
nice to have people say nice things about you, but I was really thinking much more along the lines
of what my next two years would be like than about leaving the past behind.
Mr. Pollak: Did you find that people related to you differently when you were no
longer “their judge” or their “possible judge?”
Judge Wald: There was a big time gap here. I think the opinion issued in the last
D.C. Circuit case I sat on on a Friday and I left that Sunday for the Hague, so I really wasn’t
around D.C. for two years except to come back for a week here and a week there. I really didn’t
see any difference in reactions from the people that I saw on Christmas holidays or summer
holidays, it was not the type of interaction where you are going to notice whether they relate to
you differently. But I’ve now been back a year and a half and yes, they do relate to you
differently. I mean, if you are a judge and they think potentially they might appear before you, I
think there is more of a reserve, more of a reticence, even more of an interest perhaps than when
you return to ordinary citizen life. But I’ve spent most of the time since I’ve been back among
people I knew before I went on the bench in the public interest community, so I have other roots
to draw upon.
Mr. Pollak: Do you ever wish you’d stayed as a judge?
Judge Wald: This is how I come out on that question. I am not one bit sorry that I
left the circuit to go onto the ICTY. That was a unique experience that I couldn’t have paralleled
any place else or at any other time. So there are definitely no regrets there. If I had my druthers,
would I have liked to have been able to come back and resume being a judge here after that?
Yes. I really enjoyed judging. There are two things unique about judging. One is you are
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consistently guaranteed interesting things to work on and important enough things to reach the
circuit level so that there is very little of what I call spinning of wheels which one inevitably
encounters in both the NGO world and the advocacy world in general. You know, a lot of dead
ends, a lot of things you work on that don’t work out. All of that is inevitable. Secondly, I have
to say selfishly, the support staff at the circuit court was great. I had a wonderful secretary,
Estelle Chichester, and three or four of the “best and brightest” law clerks every year. When you
make the jump into at least the areas of the law I’m concerned with now, you’re dealing with no
law clerks, only part-time secretarial help, and you have to do an awful lot of stuff for yourself
that you sometimes have forgotten that you once knew how to do but you have to relearn.
Mr. Pollak: Is there a counter-balancing feeling of freedom to act and speak in
ways that are precluded to a federal judge? Is that meaningful or not much?
Judge Wald: I don’t think it’s a huge factor at least in my case – even as a judge,
you could always speak to your intimate friends, certainly not about anything that was in the
court, but about your feelings about public affairs in general. And although you can now write
op-ed pieces which I haven’t done, I don’t think that extra freedom is a big factor, at least in my
case. I don’t feel, “Oh, boy, now I can tell everybody what I think of X, Y and Z.” I always felt I
could tell the people I cared about what I thought about X, Y and Z, assuming it had nothing do to
with court business.
Mr. Pollak: I wonder if your views have changed about the D.C. Circuit and the
federal court system as a result of being off the court and serving abroad. It may be that it is
better to come to that question after you talk about your ICTY experience.
Judge Wald: Well, I can give you an overview on it. Number one, I have to be
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honest. I haven’t read every D.C. Circuit opinion since I left. I always follow with interest cases
that are written up in the newspaper. I still have social relations with several of the judges on the
court. I’ve been over there a couple of times for lunches and attended the judicial conference, etc.
But I don’t think my views have changed as to how they should do their work. I still agree with
some of the decisions, disagree with some of them, but that was true when I was on the court. So
it’s as though it were a finite part of my life which is over. I’m now jumping to your second
question. There are not, I think, too many transportable experiences I had abroad where I said,
“Oh, gee we did it like that over there. Why don’t we do it like that here.” I think the opposite is
true. There were many things we did in the D.C. Circuit that I wished could be introduced into
the international court system. I think the only looking back view I have is that I think things by
and large worked pretty well in terms of the expedition with which the court did its work and –
Mr. Pollak: Which court are you referring to?
Judge Wald: D.C. Circuit. The support that we had from the staff in getting our
work done – I appreciate more than perhaps I did on the scene how important having access to
law clerks and having access to your own staff is in getting your own work done. But other than
that, I thought the two experiences were quite separate.
Mr. Pollak: You are now three and a half years after leaving that long service on
the federal bench. How does the federal bench look to you after being off for three and a half
years? The totality of it; its performance in the system, or do you have any different feeling than
you did when you were right in the middle of it?
Judge Wald: I don’t think it is so different if you are talking about the federal
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court system as a whole. It looks to me by and large as though it’s a pretty efficient system. I
liked certain things about it at a general level, and that is, in my experience, most of the judges
that I came into contact with had a real sense of urgency about their work and getting it done. I
think that they had certain assumptions that they had to manage their case loads and they had to
get work out which are not necessarily true in some of the other systems. I think the judges felt
that they were in charge. Now I have to stand back a little bit on that one because of recent
events, especially in the sentencing area. There’s still a significant movement to take away
discretion from judges in the sentencing area in ways I think that are sadly mistaken. So, having
watched both systems, they have different missions, and I think one has to take that into account,
and quite different problems. Still I think more than ever I’d be willing to impose more control
and more discretion in the hands of judges in the criminal law area. That of course is the only
kind of thing I dealt with abroad.
Mr. Pollak: I want to turn then to your service as judge on the ICTY. What was
the physical setting? Where did you live? Where was the court located? Were you living among
judges? Were you living out in the society? Paint the picture for us.
Judge Wald: The ICTY itself, which was set up as an ad hoc tribunal in 1993, is
in a converted insurance building which is really very unpretty, I guess is the word. I mean, there
are no pictures on the walls. There are a lot of beaver board partitions. It is not a marbled kind of
courthouse, such as the one that we have here. Nor is it anything like the Peace Palace which is
down the street in the Hague from where the ICTY is located and which houses the ICJ or the
International Court of Justice, which is the old world court under its new name. That has been
around a long time and is a permanent court. It deals only of course with cases between states,
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not with individual criminal responsibility cases. But the ICJ has a beautiful set up. It was
endowed with Carnegie funds. We used to joke walking by it. They had rose bushes. They had
black swans in a stream that wandered between its lofty buildings. They have people coming to
see it, tourists all the time. They have ming vases in the foyer. They have wood paneled
courtrooms, so it is very much in the old style, very gracious, a respect-inducing kind of locale.
Now, just up the street is the ICTY in this old converted insurance company building which is
right next to a cross street from a big convention center which has everything from jazz bands to
international crime conventions. So it is not in mid-town, but it is near a busy neighborhood and
a commercial activity street. There is nothing particularly pretty in its surroundings. We had
what we needed to work, but barely. For instance, as to my chambers, every judge only had one
room and it was probably the size of this room.
Mr. Pollak: Which is probably about maybe 15 by 12.
Judge Wald: I would say so. I had room enough for a desk. You had a computer
and some bookcases, a table like this, etc. But the secretaries were not next to you. They were on
a separate floor – you did have your own secretary – but she was with other secretaries down a
floor. The legal assistants were all together in little cubicles, at least a five-minute walk across
the building. So, it was not the same situation as in the courthouse here where I could call out to
Estelle (my old secretary) and my law clerks were in the next office, and we were all in one
chambers. If you needed to talk to or assign work to anybody, you had to call them on the
telephone or go see them. And everything was under lock and key. I always felt a little bit like a
warden. You had to carry all these keys around in order for you to get over to the part of the
building where the law assistants worked. You had to punch several buzzers and open several
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doors and in general it was much more akin to working in a high security government building I
guess, much more than a court. Now the courtrooms themselves –
Mr. Pollak: Let me ask whether the secretary and your law assistant were from the
U.S.? Were they kind of named or selected by you and did they go over there with you?
Judge Wald: You did have an opportunity to select your secretary and one law
assistant. But let me tell you, the set up of the ICTY is such that there are three parts. There’s the
prosecutor’s office, there’s a tribunal for the judges and their legal assistants and secretaries.
Then there is something called the registry. The registry is like a much, much larger
administrative office of the courts. It deals with the logistics, the filings and it also deals with
getting witnesses there. It deals with pretrial detention. It deals with the logistics of the court and
the translators and it is a big enterprise. It is not subservient to the court. It is like an equal
branch and so there is a lot of negotiating that has to go between the two branches. Technically, it
is run by UN rules, UN personnel rules. Technically, it is the registry which hires all legal
assistants and all secretaries. In reality, as in all institutions, there are informal working rules
which I was told about by my predecessor, Gabby McDonald, who brought me in on the inside of
several things. I took over her secretary, which was a good thing because her secretary spoke
fluent French and English. She was from Belgium. Since the operating languages of the tribunal
are French and English, and a lot of people don’t speak English, they speak only French, it is a
great asset to have a secretary who is fluent in both and she worked out very well. I did choose
my own legal assistant who had clerked for Steve Breyer on the Supreme Court, and before that
Guido Calabresi, Jenny Martinez who was great. She came over and she had to learn along with
me, but she is, needless to say, a quick learner, and so we formed a very close relationship – and
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still have one – that first year because we had to figure out everything that was going on by ourselves. Technically, even Jenny had to be hired by the registry, put on a list and I had to pick her
off the list. The rest of the other legal assistants were already picked by the head of the chambers
who was the senior judge. He was a Portuguese judge. The judges in the chamber to which I was
assigned spoke predominantly French, which meant in all honesty, that it was very difficult sometimes to agree on memoranda or draft decisions because while people may be able to get along
orally in two languages, when they sit down to write a memorandum in a language different from
their native tongue, it is sometimes very difficult to make it comprehensible.
Mr. Pollak: The legal words and the nuances would be very hard?
Judge Wald: That is one of the problems. But of course it’s not just a problem of
international courts, it must be a problem of all international agencies. It was, however, the first
time I worked in the middle of such a situation. You have problems on three different levels.
One is the pure language level, making sure you understand someone else’s language. The
second level comes up when you get into a specialized area like the law; there are different legal
terms in different legal cultures for the same concept, and so it is not a question of just translating
words, it is a question of translating concepts. Below that is the third level – a whole legal
culture in which certain terms carry meanings reflecting 200 years of experience. The people
who have used them all their lives know those meanings, but strangers don’t. So, it is not an easy
business. I found actually that the problems of deliberating outside the courtroom with your
colleagues that came from different cultures and spoke different languages and with dealing with
the research and memoranda of legal assistants who spoke different languages, came from
different legal cultures, were much harder than the actual courtroom work where a bank of
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translators worked at instantaneous translation and judges wore ear phones all the time and
looked at screens. It was a very high-tech courtroom and the prosecutor might be speaking in one
language asking questions. The witness was answering in Serbo-Croat. The defense counsel
might be either speaking in French or Serbo-Croat and the dialogue was going back and forth.
The translators were very good and after a while you kind of picked up the rhythm of that and you
weren’t conscious of the fact the dialogue was in three languages.
Mr. Pollak: So you were just living in English?
Judge Wald: Yes, basically. Occasionally there were disputes over translations
and that sort of thing, but you were hearing English. It was, however, a little bit disconcerting
occasionally; we talk about the trial court’s responsibility to make judgments of credibility partly
based on the demeanor of witnesses. That is a completely different process where you’ve got a
60-year old 200 lb. man on the stand speaking Serbo-Croat making gestures, etc. The voice that
comes over the earphones is a high treble, English woman’s voice doing I’m sure an excellent job
of translation, but God knows there’s no way you are ever going to know what the witness is
really saying and occasionally the tone and gestures don’t quite mesh with the translation. But, as
I say, after a while, you kind of pick up the rhythm of that. It is when you get outside the
courtroom and try to deliberate that it becomes more difficult.
Mr. Pollak: Tell me, how did you come to be named? How did it all begin?
Judge Wald: Actually, I knew about the court and had interest in it going back
several years, way back to the time it was first formed. Gabby McDonald announced she was
going to retire in the middle of her term. David Andrews was then the Counsellor of the State
Department. And David Andrews was somebody I had known way back in the Carter
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79.
administration, because he did the legislative work for EPA, and had seen since. When he was
named as Madeline Albright’s counsel, he asked me if I would swear him in. This was probably
a year before this vacancy came up, so we had some chance to renew our contacts. The second
thing that occurred was that Madeline Albright’s Special Assistant was Elaine Chakos who had
been Birch Bayh’s legislative person at the time of my confirmation going back to ‘ Then I
also had been working with CEELI, which had an adjunct organization CIJ (Coalition for
International Justice) that worked to promote the ICTY and the ICTR. Mark Ellis was very much
involved in the tribunal’s work. Mark was a very good friend and I was on the CEELI Board. So
three people actually asked me simultaneously if I would be interested in the ICTY vacancy.
Elaine ran into my husband in Fresh Fields doing grocery shopping on Sunday afternoon and said,
“Do you think Pat would be interested in that,” and Bob said, “Ask her.” Dave Andrews called
me and Mark Ellis called me. So it all sort of came together.
Mr. Pollak: That’s a great story. Did you consider anything else? Was it just one
thing that came your way and you did it?
Judge Wald: That’s right. I was very interested in this. I was excited. It was an
adventure of sorts. I believed in the court and at this point I had been on the D.C. Circuit for 20
years and I did have a certain yen to do something else before I finished out my career and there
wasn’t anything that I could think of I would like better. I was certain there wasn’t anything that
was available that I wanted to do more than this, so I immediately knew when it came up that I
wanted to do it.
Mr. Pollak: Tell me about the mechanics. Did you take an oath? Did you go be
interviewed by Kofi Annan or his predecessor?
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Judge Wald: Kofi Annan was Secretary General. David Andrews of the State
Department managed the process – this appointment is run out of State. It eventually goes over to
the White House to make sure that the White House doesn’t have any objection, but basically it is
not run through the White House. David ran it through the relevant State Department processes.
I had known Madeline since the Carter administration and she was supportive. Then they
checked in with Chuck Ruff, who was then at the White House. But it is not a presidential
appointment. It’s a UN appointment. So then I did go up for an interview with Kofi Annan,
which was very pleasant actually. I was quite impressed with him. He had several other people
in the room, but we had about a three quarters of an hour interview and that was it. Then they
announced it. It doesn’t have to be confirmed by the Senate or anything like that.
Mr. Pollak: What kinds of things was he interested in in the interview?
Judge Wald: One thing I remember talking about, which the State Department had
warned me might come up, and this is, remember, 1999, long before any more recent fissures that
have arisen between the United States and the UN or other groups. Somebody else was in the
room, one of the people from the legal division of the UN, and that person asked some kind of
question along the lines of “What do your authorities say about that?” after I gave an opinion on
something. I said, “Well, the way I look at this job, I won’t have any authority over me.” In other
words, I’m not acting as a delegate of the United States. The notion was an ICTY judge is not the
United States’ representative there to pursue its interests or take the United States’ point of view.
“ I’m there as an international judge, hopefully forwarding the law of the community of nations
which set up this court.” Kofi Annan seemed to like that answer very much.
Mr. Pollak: I don’t blame him.
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Judge Wald: I don’t remember too much else about the interview, but it was
certainly pleasant. He seemed to have done his homework and I was very much impressed by
him.
Mr. Pollak: As a judge of the U.S. Court of Appeals, authority existed in the
Constitution and the federal statutes, if it was a statutory case, in the rulings of the Supreme Court
if it had dealt with the issue, and in the precedents of your own court. Were there comparable
authorities or what authorities did you look to as a jurist that wasn’t looking to the United States
on the ICTY? You were an independent judge looking to the law of nations?
Judge Wald: Well, under the statute which set up the ICTY (actually it is the UN
resolution with a statutory form annexed to it, which sets up the jurisdiction of the court, etc.) it
says that the ICTY shall be governed by the law of war, the Geneva and the Hague Conventions
and customary international law, those kind of phrases, which while they need a lot of refinement
and application, do refer back to some specific source material. I mean, you could go into the
library and find 1,000 treatises telling you at least conceptually what customary law is and you
have treaties, you have the Geneva Convention, the Hague Conventions, which are mentioned
specifically in the ICTY statute, the Genocide Convention, etc. So there are treaties and conventions, none of these are precedents, but they are sources for finding international law. Customary
international law also consists of other kinds of documents which countries have issued or
international bodies have issued which can be shown to be obeyed by the majority of civilized
countries, etc. When it came time to actually make decisions on fine points of law, there is no
precedent as such, but we looked to everything including our own statutes and cases as well as
that on other courts, the rules of the court, on procedure and evidence which are a combination of
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common law procedures and civil procedures. Sometimes for instance to address a genocide
case, you rely very heavily on the Genocide Convention which was virtually repeated in the ICTY
statute itself. The statute itself, when I say statute, I mean the ICTY statute, does define to some
extent what crimes of war include or crimes against humanity include, what are the jurisdictional
prerequisites for those kinds of crimes. We looked very often at Nuremberg precedent, though,
again that was 50 years old. You didn’t follow it automatically. Even the ICJ, the International
Court of Justice, whereas it doesn’t deal in criminal liability, has made a lot of decisions and
certainly filled a lot of pages of paper on certain international issues which come up, for example,
the famous Nicaragua case dealing with command responsibility and effective control. Sometimes we would have issues for which there was no authority in prior cases of any international
court.
To give you an example, one of the defendants wanted to take a polygraph and have the
results introduced at trial. Certainly, there wasn’t anything in international law that would cover
this. You looked at the comparative jurisprudence of countries, not just ours, but other countries.
As it turned out in that case, the majority of countries were in the same line as the U.S., they
didn’t accept polygraph examinations. But there were some cases where doctrines we had were
not accepted by other countries. For instance, a Supreme Court case here says it doesn’t matter if
U.S. officials participate in kidnaping somebody from another country and bring him here, once
he was here the U.S. courts have jurisdiction.
Mr. Pollak: That was Eichman, wasn’t it?
Judge Wald: No. This was a Spanish name, a couple of years ago. The DEA
conspired with another country in South America to bring back somebody on drug charges and
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kidnaped and brought him back and he raised the question whether the court had jurisdiction
since he had been brought in illegally. The Supreme Court decided yes, the court had physical
jurisdiction, etc. Now, a lot of European countries don’t accept that. That was one example of
the kind of situation where certainly I never felt that when I was sitting on a case I had to rule the
way U.S. jurisprudence ruled because heaven knows I wouldn’t have wanted my fellow judges
who at the trial court were from Portugal and Egypt to feel that they had to rule the way the
Egyptian courts ruled on certain things.
Mr. Pollak: Did you serve more as a trial judge or as an appellate judge?
Judge Wald: I spent more time as a trial judge because I was basically on two
trials each of which lasted about a year – we went in and out of the two of them over the whole
two-year period, just finishing the last one a couple of weeks before I came home. We would do
several weeks on one trial and then go into the other trial. They were very long complex trials. I
can stop for a moment even though it comes later in your outline to describe them – one was the
Krstic massacre trial in which we had the Bosnian-Serb general who was just one rank below
Mladic who was still at large, Mladic being, Ratko Mladic the commander-in-chief of the
Bosnian Serbs. He and Kavadzic are the two most wanted Yugoslav indictees still at large.
Mr. Pollak: Who was the second one?
Judge Wald: Karadzic, President of the then-autonomous Serbian Republic. But
just below him was Radislav Krstic, who was the general in charge of the Bosnian-Serb army and
the whole area where all of the massacres of these 7,000-8,000 young Muslim men happened in
a single week. This particular indictment was the result of five years of investigations, including mass grave exhumations – I don’t have the numbers in front of me, but there were well over
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100 witnesses and almost 1,000 exhibits, etc., so this was a very complex trial. Krstic had lost a
leg from a land mine, not in the Srebrenica period, but before that and it was bothering him a lot,
very legitimately, so there was one period where we had to adjourn for a month while he had an
operation, remedial things done to his leg. So the other case that we went in and out of for over
the two years – we did finish both of them, brought down the judgments before I left – the other
one was five guards, and a deputy commandant at the infamous Omarska prison camp. This was
the camp exposed in the beginning when the whole Bosnian war kind of came onto the scene by a
journalist called Roy Gutman for Newsday. He brought the whole thing to the forefront and
provoked a State Department response. Many people thought he had a large role in bringing
about the establishment of the criminal court. Pictures came out of there that were accurately
compared to the World War II concentration camp pictures, etc. In this prison camp, Omarska
case, we had five defendants. If you can imagine, each one of them had two counsel which were
allowed under the rules of the tribunal. Then, you had a prosecution team of five or six lawyers
and three judges. You had three translators. You had, again, hundreds of witnesses, etc. I won’t
say it was a circus because it was run probably as well as you could run anything, given that kind
of atmosphere, but it was quite a job to try to run that. So those were the two trials.
Now what happened was there’s an appellate panel to the tribunal which is supposed to
consist of five permanent judges when I was there. I think it is seven now. What happened was
because the tribunal had already been around for several years and some of the judges who had
been trial judges had moved up to be appellate judges and would then have to disqualify
themselves on the cases that they had been involved in as trial judges, we on the trial bench were
constantly being pulled up to do the appellate work in our spare time, as it were. I ended up
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sitting on five or six appeals while I was there. On one of them I was the Chief Judge and that
was a really big appeal. Appeals are somewhat different under the rules of the tribunal and civil
rules in that new evidence is allowed on appeal. That is one thing I did not think we should
import over here, and I tried very hard to suggest that they might want to go our way and change
their rules so that if you had substantial new evidence coming in, you would have to go back to
the trial court and get it ruled on –
Mr. Pollak: Seems a reasonable procedure.
Judge Wald: This is what we have, but it’s not the procedure in many, many civil
countries. So as a result, in the particular case that we had, we had 20 different petitions for new
evidence. Some involving new witnesses. Many involved new documents. It was a very, very
intense period of about six months just getting this new evidence into the record before you got
onto the main appeal.
Mr. Pollak: You sat with two other judges, an Egyptian man and a Portuguese
man?
Judge Wald: That was on the Tribunal. Yes.
Mr. Pollak: As the trial bench. And on the appellate bench?
Judge Wald: There were basically five judges on the appeals court but because
very often one or two of them would have been disqualified and replaced by a trial judge, it
varied. The biggest appeal I had, there was a judge from China, myself, a judge from Italy, a
judge from Malaysia, and, who am I forgetting, oh, and a judge from Columbia, South America.
Mr. Pollak: You commented earlier today that in the federal system, one of the
givens is the objective of the judiciary to get the job done, to apply themselves without making
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value judgements on individuals. What was the credo of your fellow judges on the ICTY?
Judge Wald: They came from all different systems and some of them had not had
any courtroom experience before. I don’t think they had any experience to draw upon in how a
trial is run. They had been diplomats or international law academics or that sort of thing. I think
this changed and has changed now, so I limit my comments solely to my period. There did not
seem to be the same kind of “let’s get on with it now.” Although I was not a trial judge here in
the U.S., I had some sense what was going on in our district courts and I could imagine what
Judge Gerry Gesell would have thought of some of our prolonged proceedings – there was more
like, “Well, if the lawyers want to talk about this some more, let’s talk about this some more,”
and very often you yourself had the sense of okay, “We’ve had enough talk, let’s move on with
it.” But that was not always the same sense that pervaded all the judges.
Mr. Pollak: This is Side 2 of the Wald interview on May 6, 2003.
Judge Wald: There were inevitable kinds of things that demanded continuances
there which might not have here. For instance, witnesses came from all over the world. A lot of
people had been refugees and gone to other countries, settled in them. Also, the ICTY does not
have the subpoena power. There is no international subpoena power. If the court wants a witness
for the prosecution or the defense, the court will issue an order, but the only way that order gets
obeyed is, say the witness is in Australia, and we did have witnesses from all over the world,
either the witness comes voluntarily, or the country authorities where the witness is may, under
their own laws, require the witness to go the same as they would require the witness to go to one
of their own courts. There were a lot of witnesses who didn’t come at the last minute which is
not likely to happen here. In general, it seemed to me that there was a real impetus, even during
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the two years I was there, to give the judges more power. For instance, when I arrived, the rules
of the court said the judge should strongly suggest to the prosecution how many witnesses it
needed on a certain point, or the length of the testimony. Well, the incentive of prosecutors who
worked for five years on a case is to get all the evidence that they worked on in and so very often
they would just have long lines of witnesses on a point which really had been proven and the
judges did not think they had the authority to say okay, that’s enough. By the time I left, we
changed the rules so the judges could limit both the number of witnesses and the length of
testimony. So, I think things have improved.
Mr. Pollak: How did the panel of judges make rulings as a trial went along when
there was some dispute over the admissibility of evidence or some other issue?
Judge Wald: Well, it wasn’t always easy. The presiding judge who was the senior
judge, it was a Portuguese judge, sometimes would make them, but he was a generous man and
very often, most often he’d ask the two of us. We would have to huddle there and it was not easy.
The Egyptian judge really didn’t have any legal experience. The Portuguese judge had some
experience in his country. We would just do the best we could. Sometimes we would take it
under advisement and come back the next day with the ruling, but sometimes you had to make the
ruling right there. Occasionally, the presiding judge would make it himself and I might disagree.
We worked out a formula on disagreements after I got advice from another English judge or an
Australian judge, who was in a different chamber, to whom I used to go for advice who told me
that happened in his chamber a lot and what he did is simply the next day just politely say I’d like
it to be noted for the record that I don’t agree with the ruling. You just did the best you could, but
it was not always easy.
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Mr. Pollak: What was your routine? What hours did you work?
Judge Wald: In the trial court, we worked from 9:00 – 4:15 until – we had to take a
break at lunch. It usually was an hour because the prisoners were brought from the detention
center which was on the outskirts of the Hague and Screviningin and there was a big routine for
them. They were brought under guard, etc. and they had to have time to eat. It was such a routine
to get them down to the holding quarters and feed them that we all always had to take a
reasonable lengthy lunch break so they could be fed and then we would go until sometime
between 3:00 and 4:00 in the afternoon. Sometimes after that there might be special hearings on
motions, etc. The trials were five days a week, except as I say, occasionally something would
happen. Witnesses wouldn’t show up, those kinds of things. Then occasionally, we would take a
week off to catch up, if there were a lot of lengthy motions or something like that. It was during
those periods that we tried to schedule the appeals.
Mr. Pollak: I meant to ask whether Kofi Annan or the UN gave you any charge?
Did you take an oath or anything?
Judge Wald: Yes, I took an oath. The oath was something about upholding the
honor of the court, you know, deciding according to the law and conscience. It was a very
generalized oath.
Mr. Pollak: I see.
Judge Wald: I didn’t have to swear to Kofi Annan or anything.
Mr. Pollak: Was there any routine of preparation to undertake your judicial
duties?
Judge Wald: They now have training. They now have a training session of a
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week or so, maybe more, a week or two weeks for new judges coming on. But that was not so in
my time. But I have to tell you because of this chambers routine and the business that three
judges have to sit on a court, for the first month or so, I didn’t have anything to do, so the other
two judges in this chamber were finishing up a trial that of course, I had no part in, and it was
actually quite frustrating. I was sitting there and actually not doing anything for a month, so I had
plenty of time. Nobody gave me instructions, but I had a lot of time to read or to ask questions.
Mr. Pollak: Could you sit in on the court?
Judge Wald: Yes.
Mr. Pollak: And see what was going on?
Judge Wald: Yes.
Mr. Pollak: What about the anatomy of reaching a decision? You heard this long
trial. You got mountains of evidence. I take it the trials were more than a year long?
Judge Wald: Yes. They both began around March, late February or March of
2000, and one ended in late July of 2001 and the other ended in late October of 2001.
Mr. Pollak: Was there a written record?
Judge Wald: Well, this was something my law clerk – well, first of all yes. There
is a transcript of 10, 12 or 13,000 pages. Because I had never been a trial judge before I had my
little series of notebooks. I took notes, quite copious notes during the testimony of all the
witnesses, so I had something to refresh my recollection. All of the trials are televised, too. And
actually the television is sent out to parts of the Balkans that want to hear it and to other western
European stations.
Mr. Pollak: Did it make you think differently about that issue?
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Judge Wald: Well, yes, you completely forgot about the fact that it was being
televised and it didn’t make any difference. I never watched the television that came back, although there was one judge who I will not name who we found out later requested from the
registry television films of all the days of trials he’d sat on I guess to take back and show his
countrymen what was going on. I usually asked my legal assistant to come to the trial so that we
could discuss things afterwards. Since I’m somewhat of a panicky person on getting things done,
and because she was new to the country, too, although she obviously made friends among the
other legal assistants, we had a lot of time on our hands so we went out to dinner a lot together.
We decided early on that because the judgments of the tribunal, some of which I had a chance to
read in this month are like 200 pages, 300 pages long, and are done in the European style, and
especially in the Srebrenica case because we knew that the testimony was going to be
momentous, that we would have to get control of the facts early. Judgments over there are
written in several ways. One is completely by staff, surprise! surprise! The law clerk dispute is
not limited to the United States, some judgments are actually written pretty much completely by
the staff. We certainly didn’t want to do that. Others would be written by one judge who would
kind of take over the whole thing and direct it, writing some parts himself, directing the rest, but
that was fairly unusual. Very often, parts of the judgments would be divided up between
chambers and written by combinations of judge and clerk. And this is not different from what the
D.C. Circuit does in the special complex case tracks.
Mr. Pollak: Right. We went over some of that in your prior oral history.
Judge Wald: Yes. This is not so different, but we decided in the Krstic case – this
was the first full-scale genocide trial that this tribunal had had, the Rwanda tribunal of course,
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because of the nature of the Rwandan massacres, had many genocide cases early – but this would
have been the first genocide case out of the Bosnian conflict that went all the way through trial.
Several of them had had the charges dismissed. In one of the appeals I sat on, the trial court itself
dismissed the genocide court mid-term. So Jenny Martinez, who was my legal assistant, and I
decided that we would opt, it would be up to the senior judge on the panel, but we didn’t think he
would really oppose it, we would volunteer to do the facts. My notion always being that he or she
who controls the facts, not “controls,” but he or she who drafts them will be able to guide the
judgment. And we wanted to make sure there was what we thought was a really adequate
coherent statement of the facts in this case. It was not an easy case. It was not an open and shut
case because the genocide charge was based pretty much on command responsibility and what we
call the criminal enterprise doctrine. The particular general on trial was not himself on the
battlefield ordering the executions. That, if anybody, was Mladic who has not yet been
apprehended. So it was not like the Rwanda genocides where people got on the air and said,
“Kill all the Tutsis.” We knew that the facts had to be very carefully assembled, not to come to a
foregone conclusion, but to assure that you could think through what conclusion you should come
to. So, Jenny and then later on, she left after one year and I had a very excellent woman from
Australia who is still over there who replaced her, came every day to the trial and we
began together to draft the factual part early. My Australian judge friend down the hall told me
to do this. He had been there for several years. He said, “Begin writing the facts during the trial.”
I remembered Harold Greene saying that is what he did in the AT&T case. He took the transcript
home every night and began writing the facts. So, Jenny came and we began doing drafts of the
facts as we went along because it wouldn’t work to wait to the end of two years and go back to
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what witness A said 15 months ago. We were working on the facts all the way through the
couple of years. Then, as to the key legal issues based on our facts there were different people
who worked on early drafts, research-wise, on certain issues like the command responsibility
issue, or the Genocide Convention which has been very very rarely construed by an actual court.
You had the Eichmann case. You had a couple of cases in France. It is not an easy Act to
construe, and there have certainly been people writing treatises – but little actual judicial
construction. The Convention’s definition of genocide raised many, many thorny issues. Some
of the early drafts were not great that were coming in, and so there was a lot of work to do. By
the end of my first year, Jenny had left and I was working with an Australian assistant.
Mr. Pollak: What was the Australian assistant’s name?
Judge Wald: Michelle Jarvis. She worked earlier years in the prosecutor’s office
at the tribunal. She taught. She’s written a book. She is very good. She is still over there at the
prosecutor’s office. The chief legal officer was there for the chamber when I arrived. Every
chamber had a chief legal officer. He had been hired and picked by the senior trial judge, the
Portuguese judge. He was French. In turn, he had hired chamber assistants who were mostly
French, though not entirely. So, we were really dealing with a lot of legal memoranda. To make
it palatable from our point of view, Michelle and I and Jenny had to do an awful lot of reworking
and writing of our own. We also changed the whole format. For instance, the way a typical
ICTY judgment was structured was first the law – all this abstract law, almost like repeating a
hornbook, genocide consists of blah, blah. Then there would be the facts. And then there would
be a short section saying, we looked at the law and we looked at the facts and here’s the way we
come out. We did not want this to be the structure, so we fought somewhat to get the facts first
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and then the law related to those facts at each juncture.
Mr. Pollak: And you were successful?
Judge Wald: Yes. We were successful. I won’t say it’s a primer, but we were
happier with the judgment – which is still on appeal. I suppose the appeals chamber could throw
it out for all you know.
Mr. Pollak: You reported how long the trials were. How long were the written
opinions?
Judge Wald: You mean how many pages, or how long did they take?
Mr. Pollak: Both.
Judge Wald: Well, they were a couple hundred pages each. I should have brought
them along. I think the judgment in the Krstic case, which is the genocide case, must have been
300 and something pages, and the Omarska prison case must have been 200 and something pages.
One thing we tried to do, we didn’t want to make them 1,000 pages, like the recent federal
election financing case. We wanted somebody to be able to read it, sometime, that is, who cared
because obviously, an ordinary person isn’t going to read 200 pages, anyway. This was a
nuanced, complex case. You really did have to read the facts to decide. It was not primarily a
legal issue case, although there were a lot of touchy legal issues in there.
Let me give you just one or two examples relating to the genocide case. Genocide – the
definition of genocide in the Genocide Convention is certain acts, the acts were laid out. They
weren’t any problem – murder, torture, keeping people in inhumane conditions, that kind of
thing. They have to be committed with an intent to destroy a racial, religious, or ethnic group as
such. Now it sounds easy. But here, what happened was that when Srebrenica was captured by
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the Serbs, it was supposed to have been a safe enclave guarded by the Dutch UN protection forces
who were young kids. They just folded and they also had confused orders whether they could
fight back. The Bosnian-Serb army just came in and took over the town, although it was
supposed to be a safe enclave under UN protection. Two things happened. Most of the women
and children and some men, about 25 to 30,000 altogether fled to the nearest UN base at Poticari
which was on the outskirts of Srebrenica and they were just there. They didn’t know what to do.
They were trying to get into the enclave and the UN people didn’t know what to do. A separate
group led by a few tattered remnants of the Bosnian Muslim army, but mostly just civilian men,
military-age men but not members of the army, fled through the woods toward Muslim-held
territory at Tuzla. So you had these two things happening at the same time. For the 25-30,000
people that assembled in Poticari, it was terrible. There was no food. There was no water. There
was no medicine. There were random rapes and murders, all in this area where the women and
children and the 1,000 men were. So, the Serbian army comes along and they said, okay, we will
bus them out. They were very efficient. In 48 hours, they bussed 25,000 women and children out
of Serbian-held territory to the Muslim-held territory. Aside from the terrible things that
happened while they were waiting, they did bus them out. They separated all the men and a lot of
the boys and held them over separately in quite bad conditions. Meanwhile, the group that is
trying to make its way toward Muslim-held territory –
Mr. Pollak: The men who went into the woods?
Judge Wald: The men, yes. They are being ambushed, pursued, culled out under
all sorts of pretenses. People were wearing UN hats saying, “Come down. We’ll get you
protection.” They don’t have any arms or anything except for the thin layer that’s leading them,
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so thousands of them were captured within a couple of days. They were held on football fields,
held in warehouses, held in schools, etc. Under international law they should have been prisoners
of war and taken to some kind of POW camp and later exchanged, you know, that kind of thing.
They were in about nine to ten different locations. Thousands at a time were just taken out and
executed, just shot, and buried in mass graves. This all happened in a week. Well, that’s the
background. The big legal question, though, when you got down to it, is whether or not this is
genocide. Questions came up like, “Can you show an intent?” Obviously, people didn’t write
things saying, “We intend to destroy the Muslim people.” First of all, can you say that just the
population of Srebrenica – that’s only one enclave with 40,000 people in the whole BosnianMuslim territory – can you say that targeting them for destruction is intending to destroy the group.
It’s not like all the Jews in Germany. It’s a very discrete group location-wise. Then, the second
aspect of it is, “Aha, but they didn’t intend to destroy everybody. They let the women and children
go.” So, can you say the fact that they destroyed virtually every male of military and childbearingage in the area, can you say that that is destroying the group. So there were those issues, none of
which had ever been decided before.
Mr. Pollak: I would at least raise with you whether your oral history might not
include those two opinions.
Judge Wald: Yes, I’ll give you copies.1
Mr. Pollak: I think your oral history should include your reactions to being a trial
judge as compared to being an appellate judge. How do you see the difference?
1 The two opinions are: Prosecutor v. Kvocka, et. al., “Omarska and Keraterm Camp”, Case No.
IT-98-30/1-T (July 8, 2002), available at https://www.icty.org/x/cases/kvocka/tjug/en/kvotj011002e.pdf and Prosecutor v. Radislav Krstic,”Srebrenica”, Case No. IT-98-33-T (Aug. 2,
2001), at https://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf.
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Judge Wald: It’s much more difficult to be a trial judge. I think it probably takes
a different kind of temperament, although I say that I realize many excellent trial judges,
beginning with Learned Hand, went up and became excellent appellate judges, so it’s obviously
not a generalization. But I do think that the temperament of a trial judge has to be somebody
who’s sort of on the alert every minute for long periods of time, for five and six hours a day,
making sure that everything runs, there has to be a kind of an entrepreneurial or managerial
talent and a kind of a toughness and attention to detail. Appellate judges do tend, maybe from
their work, maybe from the fact they are attracted to the appellate bench, to be more cerebral in
the sense that, “Well, never mind about that little thing, what we’re worried about is this big
trend or what’s this ruling is going to do to future cases.” I think that you have to care more
about the details and running something, to get pleasure out of that as a trial judge. Now, having
said that, I will say that I don’t know if I would have liked to be a trial judge in the federal
system. I really enjoyed the variety of the appellate court. Four cases a day, 20 cases a month,
all different, as opposed to two trials and six appeals over the two-year period. I will say that I
am immensely grateful that I got assigned to the trial bench of the ICTY. For this unique
experience which only lasted two years, to sit in the trial court and to see the parade of witnesses
and to hear them tell their tales, to look at the defendants day after day, to see this piece of
history played out before you was to me much more satisfying than the appellate experience,
even though there the appellate bench, just like our appellate judges, ends up having a much
greater say on the content of the law and its interpretation. But I wouldn’t have missed the
variety of experiences, heartbreaking as some of them were, of really seeing history replayed and
seeing what the defendants were like.
One of the most vivid experiences for me was hearing first hand about the terrible
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atrocities that were committed and seeing the actual people, their full-scale human dimensions.
Let me take up the second case where we had five different defendants.
Mr. Pollak: Yes. What were the defendants like?
Judge Wald: They were much younger. They were much less educated. Krstic
was a high class, second-level government four-star general, educated in the Belgrade War
College. He had done life-long military service – actually two years after the Yugoslav war
ended, he worked with the West on the Dayton accords before he was indicted and captured. He
was an educated, relatively sophisticated person. The people we had in the Omarska case were
relatively uneducated, two hadn’t even gotten the equivalent of a high school education, they
were waiters, taxi drivers. One or two had been policemen or reserve policemen, in a tiny village,
somewhere in the mining complex in the Prejidor corridor. They were caught up in the war
situation. Only two of the five ever committed any laying-on-of-hands atrocities. One was
charged with beating prisoners in the camp and one of them had made sexual advances to women
prisoners. The other three were basically your family men who were assigned to the camp from
the police station. Their crime, again, on the criminal enterprise kind of doctrine was, they were
there and didn’t object. They were put in charge either as shift commanders or, in one case, a
deputy commander of the camp and they saw these thousands of men who were being starved,
beaten, not by them, but by other guards and other people, the interrogators. All sorts of really
terrible, terrible things they saw and didn’t do anything about them.
Mr. Pollak: How did you come out? How did the two cases come out if you can
say?
Judge Wald: They were all convicted.
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Mr. Pollak: They were. And did the judges then perform sentencing?
Judge Wald: Yes. The sentencing, let me say a few words about sentencing,
which I think deserves more attention and may be getting it now. Certainly, many of the experiences of this court will be looked at and improvements will be made and are being made in the
procedures in the new International Criminal Court. But the strange thing about sentencing was
that they didn’t have a separate stage for sentencing. It didn’t have to be done this way under the
statute. Any material that needed to be brought in by either side on sentencing had to be
presented in the main trial. It seems to me this worked mostly badly for the defense counsel who
were basically saying, “My guy didn’t do it, but, hey, if he did it, you ought to take into account
the fact that his mother died when he was young.” In fact, in the Krstic case, they refused to do
anything about sentencing – they (the defense counsel) were going to go down on their sword that
he could not be held legally responsible for what went on as to the executions, so they were not
putting in a factual case on sentencing. In the other case, they didn’t put much in much of any
thing. But that has changed in the new ICC.
Mr. Pollak: Did you evaluate the prosecution and the defense counsel as
competent and dedicated to their responsibility?
Judge Wald: The prosecution was by and large good. In the two cases I was in, I
think by happenstance, since I was put into the chamber late, they were Americans from the Civil
Rights Division who had been over there for several years. There is a whole contingent of
American prosecutors that went over early on and then stayed on, so that was always a treat for me
in the sense that I understood what they were saying. I even understood where they were coming
from. Now the main prosecutor would often have other people who performed cross- examination
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of one or two witnesses. Some were okay and some were not so okay and some of
them would speak English but they wouldn’t speak English very well so that it sometimes made
for somewhat erratic examination or cross-examination. In a few cases I think it was very hard
for the witnesses, even when the witness spoke the language, to understand. I can remember a
witness who spoke English, was Dutch, but spoke English, kept rephrasing the prosecutor’s
questions and he was right, because you couldn’t – I couldn’t understand what the prosecutor was
getting at. But by and large I think the prosecution maintained a certain high level of competence
and some were really good. Mark Harmon, who had been ten years a public defender in California
and had been in the Appellate Section of the Criminal Lands and Natural Resources Division of
the U.S. Department of Justice, was very good.
Mr. Pollak: Again as a prosecutor. And how were the defense counsel?
Judge Wald: Defense counsel were all over the place. Defense counsel, most of
them, were assigned to “indigent” defendants. Most of the defendants claimed to be indigent.
Whether they are or not is sometimes a question, but there’s really very little to check when they
are from another country. You don’t just send out and say tell us whether Joe Blow has any assets.
You’ll never hear from the local assessor or the local court over there. The defendants over there
when I was there got to choose from the list of assigned counsel and a lot of times they chose
Balkan counsel, obviously because they would understand the language. I would have to evaluate
counsel pretty much through the translator because counsel would be speaking Balkan. Now a few
of them were excellent lawyers. There was a Canadian over there who taught in France and had
written a textbook, O’Sullivan, Eugene O’Sullivan, he was very good. I don’t know if he
represented by assignment. A few defendants pay for their own counsel. Some of the counsel I
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saw on appeal were like keystone cops. They really didn’t know what was up. There
were a few English barristers on appeal who were very good. But I must tell you, in the Omarska
trial, we worried about some of the counsel who were just awful. And they either didn’t
understand the rules or they didn’t even seem to be doing what their clients would expect them to
do. They were constantly “Uriah Heep-ing” on the judges, kind of, “Oh, your Honor, I’m so sorry
about this; I never meant to do that.” It turned out, after I left, that there was a scam going on
among a few defense counsel, not all but just a certain few, including one of the ones that we had
had in the Omarska trial. The defendants would pick them off the list, but only on condition that
the lawyers would agree to kick back a certain amount of their fees, because the assigned counsel
fees were in U.S. dollars and the pay was so much better than anything that the Balkan counsel
could make that the assignment was a plum to get. One woman I remember, we had a symposium
of defense counsel over there, said that the night her husband had been indicted, she got 24 calls
from defense counsel asking to be assigned. The defendants were supporting their families,
buying apartments with the kick backs. In one case, including the case we were in, they claimed
they had hired two investigators. In fact, they hadn’t hired anybody at all.
Mr. Pollak: The money was just going into the pockets.
Judge Wald: Yes.
Mr. Pollak: Did the entire ICTY experience change your view about being a trial
judge? Would you have been a different kind of appellate judge if you had been first a trial
judge?
Judge Wald: I don’t know. It’s hard to speculate. I always had a fair amount of
respect for trial judges. I liked to think maybe more so than some. But the ICTY experience en-
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hanced that respect. I think it’s like being in the infantry compared to the Pentagon. On the other
hand, I have to say that given my own abilities and temperament, I’m not sure I could have done it
my whole life, and I really enjoyed the appellate work. And I enjoyed the kind of give and take
between appellate judges. I wouldn’t say I enjoyed every instance, but I enjoyed the general
notion that you got the different view points and accommodated them or at least you had to take
account of them. Now of course when you’re dealing with a three-judge trial bench, you are
getting a mixture. On the other hand, for someone coming out of our system, it seems to be an
awkward system where three judges have to agree on every piece of evidence that is admitted, or
whether this cross-examination question is within the scope of the direct examination. On the
other hand, in the district court the buck stops there. The district court judges have total control,
but they also have total responsibility.
Mr. Pollak: I guess that somebody somewhere must have thought that you three
trial judges served not only as the assemblers and hearers of the record, but somewhat as the
jurors.
Judge Wald: Well, yes, because of course they don’t have juries and there are
many doctrines which are honored in the ICTY rules and jurisprudence which are very familiar to
us. One of them being that the appellate court is supposed to give great respect to the trial court’s
assessment of the credibility of witnesses. On the other hand, the thing about the ICTY when I
was there, and it has changed, it is going to be different in the new ICC, is there seemed to be a
random nature as to whether you got assigned to an appellate court or a trial court. One might
have thought that after 20 years of appellate experience I would have gotten assigned to an
appellate court. In fact, there was an opening in the appellate court, but I got assigned to the
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trial court and a judge from Italy got assigned to the appellate court. He didn’t have any
experience in trial court, but he didn’t have any experience in appellate courts either. The
president of the tribunal made the assignments. Like all institutions, I suppose his personal or
subjective judgments played a part. But as I said in the beginning I now feel, “Oh God, I am so
grateful.” I really think that trial court experience is something I never had before and will never
have again and I’m so grateful I had it. And I got enough of the appellate court experience at the
ICTY, so that I don’t feel I was cheated out of anything at all.
Mr. Pollak: In reading the materials you gave me and the articles and talks that
you had given, you identified a number of serious issues relating to the way the ICTY does its
work. I am prepared to inquire of you about those. They are real issues. You’ve written about
them. I wonder if given the time we have if I shouldn’t move beyond them?
Judge Wald: I covered a lot of them. I could even sum some of them up. I think a
lot of them are being remedied. I think the cases could be tried faster and I think many of the
rules are being changed to allow the judges to take more control. I think the business of making
sure the people, especially the judges on a panel, have had some trial experience beforehand in a
complex case is also being remedied. That is certainly a requirement now for the ICC and I think
it’s probably being attended to more at the ICTY.
Mr. Pollak: One of the issues you wrote about, spoke about, is really quite an
interesting one in terms of some of the things that are coming up in dealing with terrorists in the
United States. That is the paper testimony versus live testimony issue. I don’t know whether you
want to say anything about that?
Judge Wald: It was still in a state of flux, the tribunal law, when I left. For one
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thing, as you know, the whole continental tradition is much more paper bound than ours. They
don’t have any ban against hearsay as such the way we do, although I know we have all kinds of
exceptions. You have to fit yourself into an exception. They don’t have that. Now, the rules of
the tribunal were unclear in that from time to time the burden shifted from one side to another
as to how much hearsay was permissible and were there any limits on it. The rules were revised
while I was there. I sat on the rules committee when they were revised to some extent to permit
more hearsay. Given the kind of trials that are being held at the ICTY, some of that is okay, for
instance, if you need to put into the record as you often do, the background of a whole
campaign, what happened prior to the capture of Srebrenica that led to its destruction.
Obviously, I’m sure historians may differ, but still I think it’s not unreasonable for an expert
witness to prepare a written record of that kind of account and then be subject to crossexamination on it, and for the other side to put in a written record where they differ. I don’t
think you really have to have a live witness for every such submission.
Mr. Pollak: But what about where a witness is out in the field, is afraid to come to
the Hague, and his affidavit is put in.
Judge Wald: Well, that doesn’t happen just that way. It didn’t while I was there.
It might happen as I understand it under some of the proposed rules of our own country at least in
military tribunals, but it was not that wide open over there. There were certain areas like
background and statistical proof where experts testified almost as they do before an administrative
agency. They would present written prepared testimony ahead of time. If somebody wanted to
ask questions about it or cross-examine particular statements, usually they could do it.
Occasionally, somebody would submit a transcript for the same witness who testified about the
same instance subject to cross-examination in a prior trial. The question came up because very
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often you can’t catch all the same people involved in a particular episode at the same time and
you may have – I’ve seen this happen – six trials going on about the same basic event because
the people were caught at different times. Thus, the question came up if somebody testified in
trial one and was subject to cross-examination by defense counsel in trial one – admittedly
there will be different defense counsel in trial two – can that witness’s transcript be introduced
in the second trial. The compromise that was reached in that instance was it could come in but
if the other side could show that there were questions that they would have asked or wanted to
ask but hadn’t been asked in the first trial, then the court would consider that and decide
whether or not we had to bring the witness in. We did have a rule that any testimony that went
to the role or conduct of the accused had to be live and direct. Even that raised questions
because some of the cases are done on a command responsibility or criminal enterprise
doctrine, not unlike our conspiracy doctrine. The question then becomes when you are talking
about role or conduct and you’re in a setting where the law says the actions of one person can
be attributed to another if you’re in this criminal enterprise or if you are in this conspiracy, does
that mean that some of the evidence about the conduct of third parties that might be attributed
to the defendant can be admitted without a live witness. I sat on one appeal case where we
overruled the trial court which allowed a letter from a dead person who obviously couldn’t be
brought to the trial into the record because it was unsworn, and never subjected to crossexamination. It was a letter and it implicated somebody else, and we said no, there’s no indicia
of credibility on those kinds of things. Now as to the use of depositions, it is more lenient than
in our situation here in the U.S., but we had also had video testimony and I have no problem
with that. It was the first time I had ever seen it. In fact, it was
interesting in the Krstic trial, we had a relatively important witness on a key point. He was here in
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the States. The district court – I won’t say what state it is, because he went under a pseudonym –
the district court here in the United States arranged for his testimony to be taken here in the United
States.
Mr. Pollak: This is the last side of the interview on May 6, 2003. You were just in
the middle of discussing use of video taped testimony.
Judge Wald: So this particular person was testifying from here in the United States
on video tape. The video was in the courtroom and we could, which is I think the essential thing,
we the judges could ask him questions and get the answers right there in the courtroom as well as
the prosecutors. That’s another aspect which I sort of liked. I forgot to mention that earlier.
Mr. Pollak: It went on in time present?
Judge Wald: Yes.
Mr. Pollak: That is, you were hooked in?
Judge Wald: Yes, that’s right. After a few minutes you forgot that he was on a
video because the whole business in the ICTY, as it is in some civil law countries, is the judges
can take a much greater role at trial. They can ask questions. Now admittedly our U.S. judges can
ask some, but they are always supposed to kind of hold back. The judges take a much more active
role in questioning over there. Any questioning you feel didn’t get asked that should have been
asked, you ask. Although I have to tell you one episode in the Srebrenica case which was
interesting. The rules also allow judges to call witnesses that they think should be heard from.
This is not used excessively, but when we got through with all the testimony in the Srebrenica
case, we decided, it was the opinion of all three of us that we had heard from the prosecution and
a whole parade of all the victim witnesses, all the expert witnesses, the exhumations and
everything; we had heard from the defense about all the strategy and the whole point of view of
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the Bosnian Serb army as to what happened; but what we hadn’t heard at all was any testimony
from Muslim army people. As I told you, the remnants of the Muslim army that were in
Srebrenica were leading the march to Tuzla. Most of the column was civilians, but the army
remnants were leading it and there were some remnants of the Muslim army in Srebrenica. It
was kind of one of those missing witness kind of things. You want to hear their story. So we
said, “We’d like to hear them” – and the Muslim generals had been identified in other people’s
testimony, who the two generals were – “the Muslim generals.” So we asked that they be called.
One of them was then a high-ranking official in the current Bosnian government – both of them
had written books about the war. So they both came. They didn’t ask for any kind of protective
conditions or anything. They testified. The testimony didn’t turn out to be controlling, but it was
part of the picture. Under those circumstances when the judges call witnesses, both sides
obviously get to cross-examine them as if they were not their own witnesses. The defense asked
a lot of questions. The prosecution asked none, so okay, we came down with our opinion. That
week and maybe a couple of days after our judgment, the prosecutor’s office issued an
indictment against one of the generals, but not for anything he did in our case, but for something
totally different. A week or so later they brought down an indictment against the second. They
never told us ahead of time; should they have, maybe they shouldn’t have. Should we have
asked –well, it was too late once they got there.
Mr. Pollak: Because they were testifying and possibly incriminating themselves?
Judge Wald: Well, they knew that indictments were a possibility. Both of them
knew. Generally, since they were high level officials there wasn’t any fear –Mr. Pollak: I see. Do
you think that’s why the prosecution didn’t ask any questions?
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Judge Wald: Oh, absolutely that’s why the prosecution didn’t ask any questions.
But I think that the generals probably knew that they were at least under suspicion and came anyway, but the question of the position it put the judges in, not only to have called them as our
witnesses, but to have relied to some degree on their testimony without ever being told – I don’t
know what the ethics are there. Maybe they shouldn’t have told us. That would have prejudiced
us in our evaluation. It was a tough call, but it made for kind of an interesting feeling about the
perils of being an interventionist judge.
Mr. Pollak: Do you have anything to say about the comparison of being an
appellate judge on the ICTY as compared to being an appellate judge on the D.C. Circuit?
Judge Wald: Well, I think my preferences there would be for the area I knew best,
which was the D.C. Circuit. Maybe primarily for the reason I told you. I think this business of
getting new evidence in – it’s trying to compare apples and oranges – and having it all floating
around up there make the ICTY appeals different. Also the oral arguments – of course, we
occasionally had a long oral argument in the D.C. Circuit in a complex case, but generally as you
know, they are under half an hour per person – over there they go on for days.
Mr. Pollak: It is sort of like the British system, reading decisions.
Judge Wald: That’s right. It was an interesting experience. There were two really
excellent British barristers arguing on the big appeal that I sat on.
Mr. Pollak: Would you please identify that?
Judge Wald: Yes, that’s. I’ll give you the three judgments. The
Kupreskic appeal was interesting in that it was the first time in the history of the ICTY that the
appellate tribunal reversed convictions. We had five defendants. It was another big appeal. We
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reversed the convictions for lack of enough credible evidence on three of them. This caused quite
a stir over there. This was I think just less than a week before I left. The last six months were
really very hectic, getting all this stuff done. I was the Chief Judge on the appellate panel and so I
kind of acted like an American judge and handed out assignments, coordinating the whole thing. I
don’t think the prosecution was very happy about it, but several people said they thought taking a
long-range view was a good thing because it showed that the court was interested in due process
and it wasn’t going to automatically rubber stamp all of the convictions.
Mr. Pollak: On the appellate cases that you sat on, would one judge write an
opinion for the court? How did that work?
Judge Wald: There were two kinds of appellate rulings, as I told you, while I was
there, although interlocutory appeals have been clamped down of late. In fact, I helped write the
rule that clamped them down. During most of my time, however, the rules allowed interlocutory
appeals so several of the cases, like the one I told you about the letter, would come up on a single
issue. In that case, one judge would volunteer to draft the opinion. Now when you get a
judgment, however, as on this big case, where you had five different convictions, with 60 or 70
issues – there what we did, at least with the agreement of the other judges, it was a unanimous
opinion, we would assign parts to particular chambers. What went on inside the chambers,
whether the judge wrote it or the assistant wrote it, I don’t know, but we would assign to the
chambers particular parts. Then we would get it back and we would –
Mr. Pollak: And we being the Chief Judge, yourself?
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Judge Wald: Me and there were one or two legal assistants I worked closely with –
Michelle and one or two other very good legal assistants.
Mr. Pollak: And you put it together?
Judge Wald: We put it together. If we thought the thing didn’t make great good
sense we would go back to the chambers and to the judge.
Mr. Pollak: In your prior oral history you spoke about your panel’s review of the
Oliver North conviction in Judge Gesell’s court.
Judge Wald: I remember that.
Mr. Pollak: You spoke to it there saying, “ Two basic issues I dissented on.
Judges Silberman and Sentelle reversed one of the counts because they said Judge Gesell gave too
restrictive an instruction to the jury as to North’s defense that he was only following orders, what I
saw as a variation on the Nuremberg defense. That’s an issue which I disagreed on.” I just
wondered whether your service on the ICTY leads you to make any comment on that.
Judge Wald: The “Nuremberg defense” – that’s a short-cut description, of course –
for “I was only following orders.” I should have gone back, but I didn’t check back the details of
the North case. Let me put it in the ICTY context. The so-called Nuremberg defense is
specifically outlawed in both the statute of the ICTY and the statute of the new ICC. Both say it
shall not be a defense.
Mr. Pollak: What was a defense for or an argued defense for Colonel North was
not available to the defendants in the ICTY case?
Judge Wald: That’s right. But I’ll tell you in an earlier case which preceded my
time, the question arose as to a person who had pled guilty a couple years before, just a common
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soldier, to being on the execution squad where they killed 100 innocent men every 15 minutes.
He had been drafted into the Bosnian-Serb army. He was told to do this duty. He said he didn’t
want to do this duty. This is his testimony. And they said if you don’t do it, we’ll shoot you. So
the question came up, “Is that a defense?” I mean, if you are told that unless you do this terrible
thing that you don’t want to do and know is wrong, that you yourself will be killed. That really
split the appellate section of the ICTY wide open as to whether or not a documented case of
duress would excuse his act and then his superiors said if it’s not you, the next guy will come in
and we’ll put somebody else in here and we’ll shoot you. Now, several of the judges said no even
that’s not an excuse. It can be taken into account on sentencing. There were several that said yes,
you know, a really documented case of duress does make a defense so the Nuremberg defense as
such is not recognized – well it didn’t even work in Nuremberg. I mean they called it Nuremberg
defense because it was raised there, but it was not validated at Nuremberg.
Mr. Pollak: No?
Judge Wald: As I recall now, but I wouldn’t guarantee it, the way it came up in the
North case was, of course, he said he was following Poindexter’s orders. The prosecution’s
argument against that was, “You can’t follow orders which are on their face illegal.” If you
follow an order and you don’t have any reason to believe it’s illegal and it turns out it’s illegal,
well I guess that’s a defense. But if you have reason to believe it’s illegal you can’t follow it.
Mr. Pollak: The world has changed since you went to the ICTY insofar as the
United States is concerned.
Judge Wald: 9/11 happened while I was over there.
Mr. Pollak: Right. So, I wondered what lessons you draw from your experience
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on the ICTY respecting procedures and trial for persons accused of terrorism or related crimes?
Trial under the Federal Rules of Criminal Procedure or special procedures? I don’t know that you
have views on this?
Judge Wald: I have some reactions. I don’t have a tight view. I think that the
cases at the ICTY, I was satisfied, were fundamentally fair. They didn’t follow the Federal Rules
of Criminal Procedure, but as to the two trials I was in, I don’t know of anything that happened in
them that I felt, “Gee, this is really taking somebody’s rights away.” It might be done differently,
but I felt that basically they were fundamentally fair – but they were long trials. I don’t operate on
the notion that we can give everybody who is accused of committing a war crime a year-long trial.
I think that there may have to be some accommodation made for war situations in the sense of
evidence. It does seem to me if you have a key witness somehow you have to produce the key
witness or make the key witness available through a video tape so somebody gets to crossexamine him. They can’t do it by affidavit. We didn’t go so far as to ever let a key witness on the
role of conduct of the accused come in by way of affidavit alone. There were parts of the
proceedings that were closed, but only for a witness who had been physically threatened or
something close to that. And then the defense always got to see and hear the witness. It was just
a question of closing the public gallery and turning off the T.V. for those situations.
Mr. Pollak: Were they all public trials?
Judge Wald: Every one was a public trial. Little parts closed, but there were not
completely closed trials as such. The ICTY model is one which will not be repeated because it’s
too expensive and too time consuming and even some of the international hybrid tribunals like
Sierra Leone are now much more geared to the top leaders. They use a combination of national
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and international judges. They are not all international judges. Not UN created. The UN
cooperates and approves the procedures, but it doesn’t run or support them.
Mr. Pollak: Was the ICTY a big financial burden under UN?
Judge Wald: Terrible. Yes. The ICTY and the ICTR, the Rwanda tribunal, were
taking up 10 percent of the UN budget, barring peace-keeping, but 10 percent of the basic budget.
They just were never going to create another one like that, so I think so far, the problem I have
with what is going on post-9/11 is that it seems to be kind of a cherry picking operation for the
government. In some cases, they are putting people into the regular civil trial system and in some
of them they are going this enemy combatant role route.
Mr. Pollak: Where you don’t get a trial at all?
Judge Wald: Where you don’t get a charge or a trial or a lawyer or anything. I
think that is highly suspect; this is being challenged through the courts right now and we’ll see. I
think that the use of the material witness statute, which was passed in yours and my time I
remember back in the ’60s, nobody quite envisioned that you could hold somebody as a material
witness for a grand jury not for a specific date or time, but just indefinitely because some place
years down the line they might be relevant to a grand jury operation. So I think there are a lot of
question marks here.
Mr. Pollak: Do you have any views that you want to state based on your
experience in respect to the International Criminal Court?
Judge Wald: Yes. I’m very much supportive of the ICC. In fact, the Justice
Initiative, where I’m working now, has as one of its areas support of international courts and we
are working on various aspects of the International Criminal Court. I think the rules that they
-379
drafted have in many aspects satisfied a lot of the procedural problems I had with the ICTY. I
think the judges who have been elected and the prosecutor, it’s very hard to make out a case that
they are the kind of people who are going to bring down a political vendetta against the U.S. I
believe that a permanent International Criminal Court is necessary because, while it is the hope of
everybody that countries will take care of their own war criminals, they’ll set up the procedures to
go after them, we all know from experience it doesn’t always work. Even Nuremberg, when they
tried to put some in the German courts right away, they were getting all acquittals. I mean, it
takes a while for these things to settle in, not only for courts in countries that are ravaged by war to
get their infrastructures, their judicial systems up and running again. Also, in many countries the
political will to prosecute is not there. These are people who are still regarded as heroes even after
the war is over. I think that unless you are just going to say, “Let’s forget about it once the war is
over and never mind the war criminals,” then you do need some forum like the ICC. It seems to
me for the top leaders you need a certain amount of international credibility and that would come
from the ICC, but it could also come from setting up these hybrid international courts which have
the approval and are at least overseen by the UN. I do think the International
Criminal Court is preferable to setting up a new ad hoc court every time you get a new situation,
without any continuity, precedent, etc. The U.S. certainly has nothing to fear in my view that
servicemen are going to be targeted. The International Criminal Court has already got 250
prospective cases that have been filed there. They are not going to go after some servicemen. I
think the real fear, as I understand it, is that there would be cases brought on political grounds,
that they would go after the leaders of countries and say that when you bombed Belgrade or when
you bombed X country, you committed a crime. The U.S. has always been in the forefront up
-380
until now of international justice. I mean we were the people who were the spur on Nuremberg.
We were the ones who really had the greatest role in setting up the Rwanda and ICTY tribunals.
We were perfectly happy to see the international-type tribunals in Sierra Leone, East Timor,
Kosovo. But the notion that somehow those are all of course geographically limited, their
jurisdictions limited, the notion that somehow you can be for international justice but we always
have to have a complete waiver as to our own people, or we can’t take any of the risks that the rest
of the world is expected to take, is one I think that’s brought about a fair amount of cynicism in
other parts of the world. So I am hopeful that if the International Criminal Court gets up and
going and does a good job, it shows that it can be impartial, that it is not going to be politically
motivated, that maybe after a number of years we can look again.
Mr. Pollak: Pat, do you have any comment on the application of any existing
processes for charging and trying war crimes relating to former rulers of Iraq.
Judge Wald: I’ll just sort of sum it up. I think that for the very top leaders, whether
there were 55 in the deck of cards or not, there ought to be a court which has some international
presence and approval. It doesn’t have to be set up by the UN. It can have Iraqi judges on it. It
can have neighbors from other Arab countries on it. But it must accede to the kind of minimum
rules of international fairness and due process which are set out in international law and have some
visibility and transparency so that people can see what’s going on. I think it would be plausible to
do that only for the top leaders and then to hope that you can resurrect and bolster enough of the
national system to try fairly the lower-on-downs. But I think the U.S. government has said that it
plans to try people who have committed war crimes during the current war in military tribunals.
-381
Mr. Pollak: Anything else you want to say?
Judge Wald: No.
Mr. Pollak: Well that’s the end on May 6 at 5:10 p.m. Thank you, Pat.
A-1
Oral History of Patricia M. Wald
INDEX
PMW denotes Patricia M. Wald
Adams, Courtney (labor economist), 110
Adamson, Terry (staff-White House), 130-31
Affirmative action, 152-53, 226, 246, 295-97, 298, 300
See also Blacks; Minorities; Women
Agency for International Development (AID), 42, 76
Agger, Mr. and Mrs. Donald (law school classmate), 84
Albertus Magnus College (Conn.), 16-17
Albright, Madeline (Secretary of State), 345, 346
All Our Children (Carnegie Council for Children), 129
Alternative Dispute Resolution (ADR), 215, 317-18
America First movement, 26-27
American Bar Association (ABA), 128, 154
Central & Eastern Europe Law Initiative (CEELI), 335, 345
American College of Trial Lawyers, 231
American Dilemma (Gunnar Myrdal), 19
American Federation of State, County and Municipal Employees (AFSCME). 118
American Friends Service Committee, 70
American Law Institute (ALI), 108, 186
American Psychiatric Association, 116
American Psychological Association, 116
Andrews, David (Counsellor of the State Dept.), 344-45, 346
Annan, Kofi A. (United Nations Secretary General), 335, 345-46, 354
Antisemitism, 55. See also Jews
Archivist, role of, 286-89
Armstrong, Scott (newspaperman), 112, 286
Arnold, Fortas & Porter (D.C. law firm), 75-82
Arnold, Thurman (D.C. attorney), 76, 77, 78-79, 81-82
Arnold & Porter (D.C. law firm), 53
Authorization defense, 302
Babbitt, Bruce (Secy.-Interior Dept.), 1 10
Babcock, Barbara (Justice Dept.), 132,133, 134,148,152-53
“Baby judges’ school,” 181
Bacon, Sylvia (staff-D.C. Crime Commission), 90
Bail Conference (1964), 86-87
Bailey, Dorothy (plaintiff-loyalty oath case), 79-80
Bailey, Patricia (“Pat”) (Justice Dept.), 153
Bail in the United States (Daniel Freed and Patricia M. Wald), 86
Baker, Botts (Texas law firm), 124
Baker, Donald (“Don”) (Justice Dept.), 134
Baker, James (Secy. of State), 228
A-2
Ballard, Fred (D.C. Crime Commission), 89
Baroni, Father Gino, 164
Barrett, David (“Dave”) (Justice Dept.), 157
Battachini, Raymond (attorney), 292
Baum, Martin (“Marty”), (Justice Dept.), 151
Bayh, Sen. Birch, 165, 167, 169, 345
Bazelon, Judge David, 95, 98, 109, 120, 171, 174, 189-91, 199, 202, 225, 265, 313, 333
Bazelon, Mickey (wife-Judge Bazelon), 174
Bell, David (“Dave”) (Ford Foundation), 106
Bell, Judge Griffin (Attorney General), 35, 139-40, 147-50, 152, 154-55, 159, 161, 163, 167
Hires PMW, 130-36
Bellows, Gary (legal services advocate), 88
Bercu, Steven (“Steve”) (attorney- Legal Services), 119-21, 123, 125-26
Bernstein, Carl (newspaperman), 112
Bernstein, Jody (law school classmate), 41, 43-45, 47, 55-58, 83, 153
Bickel, Alexander (“Alex”) (law school classmate), 44
Bittker, Boris (“Borie”) (law school professor), 42, 48, 57, 61
Blacks, 21-22, 40-41
Ford Foundation projects, 107
Lawyers, 101
See also Affirmative action; Minorities
Black, Justice Hugo L., 75
Blackmun, Justice Hany, 188,246, 275,299
Boasberg, Tersh (McGovern campaign), 109
Bork, Judge Robert H. (“Bob”), 141-42, 184, 190-92, 195, 224, 246, 249, 264, 271, 277, 291-93
Botein, Judge Bernard, 102
Boudin, Leonard (attorney), 238-39
Bowles, Gov. Chester, 44, 46
Brademas, Rep. John, 117
Brennan, Justice William, 178, 299
Breyer, Judge Stephen (“Steve”), 223, 342
Brimmer, Andrew (“Andy”), 105
Brock, William E. (Secretary of Labor), 271-72
Brothers Karamazov (Fyodor Dostoyevsky), 34
Buckley, Judge James (“Jim”), 191-92, 195, 299
Bundy, MacGeorge (Ford Foundation), 105, 107-108
Bundy, Mary (wife-MacGeorge Bundy), 104
Bunn, George (D.C. attorney), 76
Burger, Chief Justice Warren, 104-105, 182, 217, 218, 220
Bush, President George H.W. Administration, 191-92, 287, 312, 313
Byrd, Sen. Robert (“Bobby”), 169, 254, 255
Calm, Edmond (legal philosopher), 69
Calabresi, Judge Guido, 342
Caplan, Gerry (Law Enforcement Assistance Admin), 132
Carnegie Council for Children, 128-29
A-3
Carter, President James, 130, 133, 158, 160
Administration, 110, 127, 131, 134, 143, 256, 182-83, 218-19, 309
Judicial selection process, 153-55
Transition Report, 137
Carter, Richard (“Dick”) (Neighborhood Legal Services Program), 102
Center for Auto Safety, 193
Center for Justice and Accountability (CJA), 315-16
Center for Law and Social Policy (CLSP), 108-109, 113-29, 148
Central and East European Law Initiative (CEELI), 345
Chakos, Elaine (special assistant-Madeline Albright), 345
Chayes, Abraham (“Abe”) (staff-Gov. Bowles), 44, 46
Chayes, Toni (law school classmate), 44, 88, 109-10, 153
Chichester, Estelle (PMW secretary), 85, 338
Children’s Defense Fund, 108, 129
Children
Civil rights, 162
Disabled, 114-17
Runaway, PINS category, 119, 128
See also Juveniles
Christopher, Warren (Deputy Attorney General), 88, 159
Church, Sen. Frank, 170
Civiletti, Benjamin (“Ben”) (Justice Dept.), 133, 134, 135
Clark, Judge Charles, 42, 70
Judge Jerome Frank, relations with, 70-71
Clark, Ramsey (Attorney General), 86, 89
Claybrook, Joan, 153
Clean Coal, Dirty Air (Bruce A. Ackerman and William T. Hasler), 254
Clinton, Hillary Rodham, 128-29, 162
Clinton, President William (“Bill”)
Administration, 287, 309, 313
Yale Law student, 128-29
Coalition for International Justice (CIJ), 345
Columbia Law School, 28, 30
Competitiveness Council, 143
Complex track, 209, 211, 284-86
Computers in court, 187-89, 216, 315, 316-17, 318-21
Congress, U.S., 282-84, 292-93, 298-301, 305-306
See also House of Representatives; Senate, U.S.
Connecticut College for Women, 16-17, 19-20, 23-24, 27-28, 30
Cosmos Club Legal Committee, 316, 319
Corcoran, Thomas C. (“Tommy”) (New Dealer-D.C. attorney), 75
Corporate Average Fuel Economy standards (CAFE), 193
Castle, Doug (EPA Administrator), 254
Coughlin, Father Charles (racist broadcaster), 27
Covington & Burling (D.C. law firm), 103
Criminal enterprise doctrine, 370
A-4
Cross, Hartley (college professor), 20
Cummins Engine Co., 107
Daisy Chain (Anon.), 36
Davidson, Rita (law school classmate), 41
Davis, Judge Oscar, 290-91
Days, Drew (Justice Dept.), 133-34, 148, 152
Dealing with Drug Abuse (Peter Hutt, James DeLong, and Patricia M. Wald), 103-04
Dellinger, Walter (Solicitor General), 230
DeLong, James (“Jim”) (Ford Foundation), 103
Democratic National Convention (1968), 96
Depression, Great (1929-1941), 11
Dewey, Thomas E. (presidential candidate), 44
Diamond, Norman (D.C. attorney), 76, 78
DiGenova, Joseph (“Joe”) (attorney), 290
Dilly, Margery (college professor), 19-20, 24, 43, 50
Disarmament Commission, 76
Discrimination
Gender bias, 39-41, 78, 325-28
Women Foreign Service officers, 275-79
See also Affirmative action
District of Columbia
Bar Association, 166
Bar Association Library, 100
Crime Commission, 88-95, 129, 132
School system, 116-17
Dole, Sen. Robert, 305
Donaldson, William (“Bill”) (Ford Foundation), 105
Donnelly, Richard (“Dick”) (law school professor), 68
Dostoyevsky, Fyodor (author), 34
Douglas, John (D.C. attorney), 166
Dupre, Connie (Clerk of Court), 212
Eagan, Michael (“Mike”) (Justice Dept.), 134, 152
Eagleton, Sen. Thomas (vice presidential candidate), 109
Eastland, Senator James 0., 148-50
Ebb, Kim (law clerk-Judge Frank), 61
Ebb, Larry (Agency for International Development), 42
Edelman, Marian Wright (Carnegie Council for Children), 128-29
Edgerton, Judge Henry, 212
Edwards, Judge Harry, 175,182, 184, 187, 189, 196, 203, 207-208, 244, 270, 249, 293, 309, 313
Operational changes, 315-16, 320
Eisenstat, Stuart (“Stu”) (staff-White House), 143, 158, 257
Electronic records preservation, 286-89
Ellis, Mark, 345
Embassies, foreign, protests at, 290-93
A-5
Emerson, Thomas I. (“Tommy”) (law school professor), 80, 158
En banc hearings, 73, 141-42, 175-76, 193-96, 224-25, 294, 309-310, 324
On computer, 318-19
Dynamics of, 313-14
Energy Department, U.S., 140
Ennis, Bruce (Mental Health Law Project), 114
Environmental Defense Fund (EDF), 261
Environmental Protection Agency (EPA), 139-41, 254, 256, 259, 260
Presidential influence on, 256-57
Ervin, Judge Samuel (“Sam”), 219
Evers, Eileen (law school classmate), 42
Ewing, Margaret (“Maggie”) (Neighborhood Legal Services Program), 98, 100
Exxon Valdez oil spill (1984), 280-81
Falwell, Jerry (religious activist), 165
Farr, Louise (PMW school classmate), 41-42
Farr, Nicholas (“Nick”) (law school classmate), 41, 47, 52
Farrell, Michael (“Mike”) (attorney), 239-40
Federal Bureau of Investigation (FBI), 157
Federal Communications Commission (FCC), 295-96, 298-300, 309-310
Federal Election Commission (FEC), 301
Federal Energy Regulatory Commission (FERC), 268-70
Federal Judicial Center, 181, 328
Federal Reporter, 257
Federal Rules of Criminal Procedure, 84, 377
Federalism relationship, 272
Feinberg, Judge William (“Bill”), 202. 217
Ferguson, Clyde (D.C. Crime Commission), 89
Ferren, Linda (Circuit Executive), 327
Fingerhood, Shirley (law school classmate), 41
Finkelstein, Linda (Circuit Executive), 213-16
Fiske, Robert E. (Whitewater investigator), 305
Flaherty, Peter (“Pete”) (Justice Dept.), 134, 135
Flannery, Judge Thomas (“Tom”), 209
Flug, James (“Jim”) (McGovern campaign), 108-109
Ford, Henry III (Ford Foundation), 105
Ford, President Gerald R.
Administration, 134, 137, 151
Ford Foundation, 80, 102-108, 114, 163
Black projects, 107
Women and, 104-105
Fortas, Abe, 76-77, 79, 81-82, 93
Fortas, Carol (wife-Abe Fortas), 77
Frampton, George (McGovern campaign), 110
Frank, Barbara (daughter-Judge Frank), 69
Frank, Florence (wife Judge Frank), 67
A-6
Frank, John (law school classmate), 164
Frank, Judge Jerome (“Jerry”), 42, 57 81-82
Death of, 68
Judicial procedures of, 70-72
PMW clerkship, 38, 42, 58-59, 61-76, 159
Frankfurter, Justice Felix, 84
Franking privilege, 301
Freed, Daniel (“Dan”) (law school classmate), 52, 55, 84-89, 91, 94-95, 97, 103
Freeman, Milton (“Milt”) (D.C. attorney), 76
Free speech, 246
Friedman, Paul (Mental Health Law Project), 114, 120-21
Fuller, Vincent (“Vin”) (attorney), 240
Furstenberg, Mark (McGovern campaign), 110
G.I. Bill of Rights, 37
Gardner, John W. (Secy.-Health, Education and Welfare Dept.), 23
Gardner, Richard (“Dick”) (law school classmate), 51, 52
Gardner, Warren (D.C. attorney), 209-210, 239
Garland, Judge Merrick, 313
Geddes, Nicholas (”Nick”) (Labor Dept.), 110
Gender Bias Task Force, 325-29
Gender preference, 295-96
See also Women
General Accounting Office (GAO), 325-26
General Services Administration (GSA), 214-15
Geneva Convention, 347
Genocide, 348, 349-50, 356-57, 359, 60
Genocide Convention, 347-48, 358, 359
Gesell, Judge Gerhard (“Gerry”), 99, 192, 242, 302-305, 307, 352, 375
Gilmore, Grant (law school professor), 146
Ginsburg, Judge Douglas (“Doug”), 184, 191, 192, 195, 305
Ginsburg, Ruth Bader
Judge, 175, 182, 184, 190, 195, 208, 216, 221, 247
Justice, 258, 301
Glennon, Robert J. (law school professor), 67
Gold, Harry (witness-Rosenberg trial), 59
Goldwater, Sen. Barry, 164, 170
Goodwin, Judge Alfred T. (“Ted”), 219
Green, Judge Joyce Hens, 159, 241
Green, Judge June, 190, 241, 327
Greenbelt Consumer Cooperative, 20-21
Greenberg (Greene), Bernard (“Bernie”) (law school classmate), 52, 55
Greenberger, Michael (“Mike”) (attorney), 239
Green Door (D.C.), 119
Greene, Judge Harold, 177, 241, 305, 307, 308, 357
Greenfield, Meg (newspaperwoman), 166
A-7
Griswold, Erwin (Justice Dept.), 161
Gutierrez, Annie (staff-White House), 158
Gutman, Roy (journalist), 350
Hague, The
Convention, 347
Tribunal. See International Criminal Tribunal for Former Yugoslavia
Halloran, Mary Beth (Neighborhood Legal Services Program), 98
Halperin, Charles (“Charlie”) (Center for Law and Social Policy), 113
Hand, Judge Augustus Noble, 70
Hand, Judge Learned, 70, 242, 362
Harmon, John (Office of Legal Counsel-Justice Dept.), 131, 132, 133, 148
Hannon, Mark (ICTY prosecutor), 365
Hastings, Judge Alcee, 219, 222
Hatch, Sen. Orrin, 158, 161, 165, 167, 169-70
Havell, Carolyn (Justice Dept.), 137-38
Heard, Alex (Ford Foundation), 105
Heightened pleading, 251-52
Heineman, Ben (Center for Law and Social Policy), 113, 118
Heller, James (“Jim”) (law school classmate), 78
Henderson, Judge Karen LeCraft, 191, 192, 285, 286, 313
Henderson, Vivian (Ford Foundation), 105
Herr, Stanley (“Stan”) (Natl. Legal Aid and Defender Assoc.), 114, 115, 117
Higginbotham, Leon (law school classmate), 41, 51, 219
Hinckley, John (criminal assailant), 240
Historical Society, D.C. Circuit, 216
Hoffinger, Jack (law school classmate), 52, 55
Holloway, Judge William (“Bud”), 219
Homosexuality, 36, 309
House of Representatives, U.S.
Judiciary Committee, 139, 147, 150
Republican Study Group, 162
See also Congress, U.S.; Senate, U.S.
House Un-American Activities Committee (HUAC), 36
Hufstedler, Judge Shirley 104-105, 155
Humphrey, Sen. Gordon, 163, 165, 167-68, 169
Humphrey, Sen. Hubert H., 95, 163
Hutchins, Robert Maynard (legal philosopher), 69
Hutt, Peter (D.C. attorney), 103-104, 163, 172
Indecency, regulations on, 309
Ingersoll-Rand Co., 3
Institute of Judicial Administration, 128
Interior Department, U.S., 177, 281-83
International Court of Justice (ICJ), 340-41, 342
International Criminal Court (ICC), 364, 367, 368, 378-80
A-8
International Criminal Tribunal for former Yugoslavia (ICTY), 335, 340-41,342, 347,
348, 367-68, 375-78
Appellate panel, 350-51
Interlocutory appeals, 374
Judges on, 352, 371
Judgments, 356, 358-59
Procedures, 353, 355
Prosecution, 364-65
Quality of defense, 365-66
Television broadcasts, 355-56, 377
Testimonies, 368-72
Training for, 354-55
Witnesses, 352-53, 365, 369-71, 377
International Criminal Tribunal for Rwanda (ICTR), 378, 380
Interstate Commerce Commission (ICC), 72
Iraq, 380
Jackson, Justice Robert H., 295
Jackson, Ronald (“Ron”) (Texas Youth Agency), 127
Jackson, Vicki (Gender Bias Task Force), 325, 326
James, Fleming (law school professor), 48
Jarvis, Michelle (Australian assistant -PMW), 358, 375
Jayne, Louise (law school classmate), 41
Jews, 17-19, 55, 59, 66
Johnson, Earl (D.C. Legal Services), 88
Johnson, President Lyndon B., 91, 95
Johnson, Judge Norma, 326, 327
Johnson, Stu (law school classmate), 44
Jones, Robert (“Bob”) (religious activist), 165-66, 167
Jordan, Hamilton (staff-White House), 154
Judicial Conference, 328-29
Juggins, Warren (librarian), 99-100
“Just and reasonable” standard, 269-70
Justice, Judge Wayne, 119, 120, 121, 124-27, 189
Justice Department, U.S., 136, 139-42, 155, 165, 168, 189, 257
Affirmative action, 152-53
Antitrust Division, 85, 134, 136, 156-57,270
Congressional relations, 136-55
Employment Review Committee, 152
Environmental Protection Agency and, 139-42
Judicial selection, 153-55
Legislative agenda, 147
Office for the Improvement of the Administration of Justice, 147, 156-57
Office of Legal Counsel (OLC), 146
OLA. See Office of Legislative Affairs
Women at, 131-33, 152-53
A-9
Juveniles
Corrections system, 91-95
Crimes committed, 94
Institutions, 121
Justice standards, 128
Legal services, 118-27
Offenders, 93-94
Kantor, Mickey (McGovern campaign), 109
Karadzic, Radovan (Bosnian Serb leader), 349
Katzenbach, Nicholas (“Nick”) (Attorney General), 86, 89, 90-91
Kaufman, Judge Irving, 59-60, 62, 66, 128
Kazem-Bek, Alexander (college professor), 34-35
Kearns, Doris (McGovern campaign), 109
Kearse, Judge Amalya, 220, 221
Kennedy, Justice Anthony, 145
Kennedy, Judge Cornelia, 220-21
Kennedy Sen. Edward (“Ted”). 109, 168-69, 170
Kennedy, Robert F. (”Bobby”) (Attorney General), 82, 85, 86, 89
Kennedy, Roger (Ford Foundation), 106
Kenniston, Kenneth (“Ken”) (Carnegie Council for Children), 128
Kessler, Fritz (law school professor), 50
Kessler, Judge Gladys, 327
Ketchum, Judge Orm, 121
King, Henry (“Hank”) (law school classmate), 52, 55
King & Spaulding (Atlanta law firm), 130-31
Kirbo, Charles (attorney-Atlanta), 131
Knab, Karen (Circuit Executive), 213
Kollar-Kotelly, Judge Colleen, 327
Konopka, Gisela (expert witness), 122-23, 126
Kozinski, Judge Alexander (“Alex”), 226
Kramer, Victor (“Vic”) (law school professor), 100
Krash, Abraham (“Abe”) (law school classmate), 78, 79, 89
Krstic, Radislav (Bosnian Serb general), 349-50, 363
Labor Department, U.S., 270, 271-72
Landon, Governor Alfred F. (“Alf'”) (presidential nominee), 12
Langer, Mark (Staff Counsel-Court of Appeals), 205, 321-22
Lattimore, Owen (blacklisting victim), 77
Law, international, 347-48, 377-78, 380
Law clerks, 174-75, 182, 204-205, 227-31, 235, 285
Relation to judges, 64
Law Enforcement Assistance Administration (LEAA), 132-33, 162
Law School Admissions Test (LSAT), 28, 36
Lawson, Marjorie (D.C. Crime Commission), 89
Lawyers Committee for Civil Rights, 108
A-10
Laxalt, Sen. Paul, 161, 164-65, 168-69
Lay, Judge Donald (“Don”), 219-20
Lazarus, Si (Center for Law and Social Policy), 113
Leahy, Sen. Patrick, 169
Learned Hand’s Court (Marvin Schick), 70
Legal Times, 244
Legislative history, 188, 193
Use in statutory interpretation, 144-46
Legislative process, 144-47
“Lesser of” standard, 281-83
Leventhal, Judge Harold, 98, 171, 173, 312, 313
Litigating authority of agencies, 139-41
Loss, Louis (“Louie”) (law school professor), 51-52
Lowell, Abbe (Justice Dept.), 135
Lujan, Manuel (staff-President Bush), 283
Lynch, Gary (attorney), 239, 302
MacKinnon, Judge George E., 99, 172-73, 175, 181-82, 189, 191-92, 238, 297-98, 313
Malson, Robert (“Bob”) (staff-White House), 158
Manning, Bayless (“Bay”) (law school classmate), 44, 52
Marker, Gail (Green Door), 119
Marks, Jonathan (McGovern campaign), 110
Marshall, Burke (Law school classmate), 52, 103
Marshall, Dorothy, (Board of Directors-Ford Foundation), 104, 105
Marshall, Justice Thurgood, 252, 299
Marshall Plan, 58
Martindale-Hubbell, 231
Martinez, Jenny (ICTY legal assistant-PMW), 342-43, 357-58
Mathias, Sen. Charles, 166
Maynes, William (“Bill”) (McGovern campaign), 110
McCarthy, David (“Dave”) (D.C. attorney), 86
McCree, Wade (Solicitor General-Justice Dept.), 134
McDonald, Judge Gabriel Kirk, 335, 342, 344
McFarlane, Robert (“Bud”) (National Security Adviser), 303-304
McGovern, Sen. George (presidential candidate), 109
McGovern, William (“Bill”) (D.C. attorney), 76
McGowan, Judge Carl, 98, 99, 106, 170-71,180, 183, 199, 312, 313
McGowan, Jody (wife-Judge McGowan), 174
McKenna, Margaret (staff-White House), 131
McKenzie, Jack (newspaperman), 166
McNamara, Robert (“Bob”), 105
Meacham, Ralph (U.S. Judicial Conference), 222
Meador, Daniel (“Dan”) (Justice Dept.), 147, 148, 156-57
Meizner, Doris (Justice Dept.), 153
Mental Health Law Project (MHLP), 113-27, 131
Merits track, 209
A-11
Merritt, Judge Gilbert (“Gil”), 219
Michaelson, Arthur (“Art”) (law school classmate), 45-46
Mikva, Judge Abner (“Ab”), 155,161-62, 164-65, 170-71, 175, 182, 195-96, 202, 208, 211,
285-86, 299-300, 305, 309, 313, 315
As Chief Judge, 224, 225
Miller, Cassidy (law firm), 229
Miller, Irwin (Ford Foundation), 107
Miller, Jack (D.C. Crime Commission), 89, 90
Miller, Judge Morris, 121
Miller, Professor Addison (“Ad”) (Yale Law School), 39
Minorities, 17-19, 226, 295-300
Judicial selection, 155
Yale Law School, 40-41
See also Affirmative Action; Blacks; Women
Mitchell, Sen. George, 305
Mitchell, John N. (Attorney General), 95
Mladic, Ratko (general-Serbian forces in Bosnia), 349, 357
Mobilization for Youth Program, 88
Moore, Frank (lobbyist-White House), 158
Moore, J.W. (law school professor), 50, 69, 84
Moorman, James (“Jim”)
Center for Law and Social Policy, 112, 148
Justice Dept., 134, 148, 152
Morales, Alicia (plaintiff), 121
Morris, Norval (Law Enforcement Assistance Admin), 162-63
Morrissey, Muriel, 157
Morrison, Alan (attorney), 193, 286
Murnaghan, Judge Frank, 160
Murphy, Jack (Justice Dept. attorney), 87
Murphy, Patrick J. (N.Y. police commissioner), 102
National Association for Retarded Children, 116
National Crime Commission, 90-91, 93-94, 103
National Labor Relations Board (NLRB), 72, 80
National Legal Aid and Defender Association, 114
Neighborhood Legal Services Program (NLSP), 96-101,
Neiman Marcus (department store), 79
New Deal, 70
Newman, Judge Jon, 186
New York World’s Fair (1939-1940), 8, 20
Nixon, President Richard M., 95, 112, 172
Norris, Jetta (law school classmate), 40
North, Col. Oliver, 301-307, 375
Novak, Robert (conservative columnist), 111
Nuremberg trials, 308, 348, 375, 376, 379, 380
A-12
Oakes, Judge James (“Jim”), 202, 219
Oberdorfer, Judge Louis (“Lou”), 217, 241
O’Connor, Justice Sandra Day, 178, 327
O’Donnell, Alice (U.S. Judicial Conference), 222
Office for Economic Opportunity (OEO), 87, 110, 119
Office of Legislative Affairs (OLA), 133-55
Function of, 151
Personnel issues, 137-39
PMW Heads, 133-55
Office of Safety and Health Administration (OSHA), 272
O’Mahoney, Joseph (“Joe”) (D.C. attorney), 79
Omarska prison camp, 350, 359, 363
Onek, Joseph (“Joe”) (Center for Law and Social Policy), 113
Open Society Institute. See Soros Foundation
Orthopsychiatric Association, 116, 122
O’Sullivan, Eugene (ICTY attorney), 365
Park, Rosemary (college president), 35
Parker, Alan (staff-House Judiciary Comm.), 150, 163
Parker, Richard (“Rich”) (McGovern campaign), 110
Parks, Junius (law school professor), 101
Paul, Weiss (N.Y. law firm), 55
Pearson, Drew (newspaper columnist), 79
Penn, Judge John Garrett (“Jack”), 326
Per curium opinions, 282, 286
Peters, Ellen (Yale Law School faculty), 48
Peterson, Todd (Gender Bias Task Force), 325, 326
Pickering, John (D.C. attorney), 166
Pine, Judge David A., 89-90
Pollak, Louis H. (“Lou”) (Yale Law School Dean), 101
Porter, Paul (D.C. attorney), 76
Posner, Judge Richard, 227
Powell, Justice Lewis F., Jr., 134
Prettyman, Barrett (D.C. attorney), 166
Public Citizen, 286, 287
Pugh, George (asst-J. W. Moore), 50
Qualified immunity defense, 251
Race preference, 296-97
See also Blacks; Minorities
Rand Corporation, 325
Randolph, Judge A. Raymond (“Ray”), 191, 192, 313
Reagan, President Ronald
Administration, 183, 189, 255, 257, 312, 313
Redlich, Norman (”Norm”) (law school classmate), 44-45, 57-58
A-13
Reed, Justice Stanley, 75
Rehnquist, Chief Justice William H., 145, 146, 217-18, 220, 221
Reizenstein, Gail (Counsel-Court of Appeals), 205
Reno, Janet (Carnegie Commission), 128
Resnick, Judge Judy, 329
Rhan, Rev. Sheldon, 21
Richey, Judge Charles (“Chuck”), 287, 288, 289
Robb, Judge Roger, 172, 179-80, 184, 189, 191-92, 238, 313
Sierra case, 247-48, 253, 254, 257-58, 259
Robinson, Judge Aubrey, 118, 214, 222-23, 241, 327
Robinson, Judge Spottswood W., III (“Spotts”), 98-99, 172, 177, 191, 199-201, 203, 208,
213, 216, 224-25, 285-86, 312
Roche, Charles (“Chuck”) (lobbyist-White House), 89
Rodell, Fred (law school professor), 42, 48-49, 57-58, 61-62
Rodino, Representative Peter W. (“Pete”), 147-48, 150
Rogers, Judge Judy, 313
Rogers, William (“Bill”) (Law school classmate, 52, 70, 75, 79, 89
Roisman, F1orence (Neighborhood Legal Services Program), 98, 99, 100
Roosevelt, President Franklin D., 11-12, 22, 27, 70
Rosenberg, Ethel (criminal defendant), 65-67
Rosenberg, Julius (criminal defendant), 65-67
Rubenstein, David (“Dave”) (staff-White House), 158
Ruff, Charles, 346
Rule 34J list, 321, 323, 324
Rwanda tribunal, 356-57
Ryan, Judge Joseph (“Joe”), 98-99
Saint Elizabeth’s Hospital, 99, 117-18
Sandburg, Carl, 334
Sandmann, Peter (Youth Law Center), 119-21
Santerelli, Donald (“Don”) (Office of Criminal Justice- Justice Dept.), 95
Sarbanes, Sen. Paul, 160,166,169
Saxbe, William (Attorney General), 133
Scalia, Antonin (“Nino”)
Judge, 91,192, 194, 195, 224, 271, 292, 296, 313, 323
Justice, 144-45, 146, 194
Schafly, Phyllis (political activist), 158
Schwartz, Larry (Mental Health Law Project), 120-21
Schwartz, Pat (law school classmate), 42, 43
Schwartzer, William (“Bill”) (U.S. Judicial Conference), 222
Segregation, 19, 21, 60
See also Blacks; Minorities
Seimer, Dianne (Defense Dept.), 153
Self-incrimination, 65, 301-304, 306-307
A-14
Sentelle, Judge David (“Dave”), 191, 192, 302, 304-305, 307, 313, 314, 375
Shalala, Donna (Secy.-HUD), 153, 164
Shapiro, Susan (D.C. attorney), 100
Shastack, Jerry (attorney-American Bar Association), 111
Shattuck, John (Harvard), 157
Shea & Gardner (D.C. law firm), 76
Shea, Frank (D.C. attorney), 76
Shearman & Sterling (N.Y. law firm), 55
Shenefield, John (Justice Dept.), 134
Shriver, L. Sargent (Office of Economic Opportunity), 87, 109, 111-12
Shulman, Harry (law school professor), 49-50, 332
Sierra Club Legal Defense Fund, 96, 148
Silberman, Judge Laurence (”Larry”), 191-92, 195, 243, 246, 249, 297-98, 301-02, 307, 313,
375
Silver, Larry (college classmate), 17-18
Silver, Larry (Neighborhood Legal Services Program), 96-97, 100, 102
Silver, Robert (law school classmate), 57-58
Simon, Barry (attorney), 239, 302
Simpson, Sen. Alan, 161, 165, 168
Skelton, Jane (law school classmate), 42
Smith, Gerald L. K. (racist orator), 21
Smyser, Hamilton (college professor), 10, 24
Snyder, Edward (”Ed”) (law school classmate), 70
Sobel, Morton (criminal defendant), 66-67
Soros Foundation, 335-36
Souter, Justice David H., 145
Sparer, Edward (“Ed”) (Mobilization For Youth), 88
Special Panel duty, 204-205, 206
Sporkin, Judge Stanley (”Stan”), 241, 252, 266
Srebrenica, Bosnia-Herzegovina, 356, 359-61, 369, 371-72
Standing, doctrine of, 193, 194, 210
Cases, 314
Starr, Judge Kenneth (“Ken”), 191, 192, 195,224, 313,270,271
Statistical Proof of Discrimination (David C. Baldus and James W. L. Cole), 276
Stevens, Justice John Paul, 299
Stevenson, Adlai (presidential candidate), 106
Stewart, Malcolm (law clerk-PMW), 188-89
Stewart, Justice Potter, 118
Stone, Sen. Richard, 170
Strict scrutiny, doctrine of, 297-98
Sturgis, Walter (Dean-Yale Law School), 48
Sturz, Herbert (“Herb”) (N.Y. attorney), 86, 102-103
Suda, Judge John, 115
Suitable challenger requirement, 194
A-15
Sullivan, Brendan (attorney), 302
Summary dispositions, 206
Svirdoff, Michael (“Mike”) (Ford Foundation), 103-104
Swan, Judge Thomas Walter (“Tom”), 42, 66, 70
Swygert, Judge Luther, 189
Tamm, Judge Edward, 171-172, 189, 191,296,313
Tatel, Judge David (“Dave”), 313
Tepper, Julian (Natl. Legal Aid and Defender Assoc.), 114, 115, 117
Terris, Bruce (attorney-Justice Dept.), 87, 112
Texas juvenile institutions, 119-21, 123-24
Thayer, Stu (law school classmate), 52
Thernstrom, Stephan (Harvard professor), 328
Thomas, Clarence
Judge, 191, 192, 299-300, 313
Justice, 145, 243
Thomas, Frank (Ford Foundation), 102, 107, 108
Thornburgh, Richard (“Dick”) (Justice Dept.), 134
Thrasher, Michael (“Mike”) (attorney-Justice Dept.), 124
Thurmond, Sen. J. Stro35, 165, 167-68, 169
Title VII, 314-15
Tomich, Martha (“Marty”) (Counsel-Court of Appeals), 205,321-22
Torrington Company, 3, 31-32, 56
Trubeck, Louise (Wisconsin attorney), 85
Truman, President Harry S, 44
Tucker, Sterling (D.C. City Council), 213
Turgenev, Ivan (author), 34
Turner, Donald (“Don”) (law school classmate), 52
Turner, James (“Jim”) (Justice Dept.)148
Tydings, Joseph (attorney-D.C.), 155
Union of Concerned Scientists, 42
United Nations, 360, 378, 379
U.S. Constitution
Article III, 226
Fifth Amendment, 65
First Amendment, 290-91, 309
Fourth Amendment, 64-65
U.S. Court of Appeals for the D.C. Circuit, 73, 95, 161
Academia, influence of, 244
Advocacy, written, 236-39
Calendar scheduling, 207, 322
Caseload, 323, 324
Caseload, 185-86, 227, 235
A-16
Case management plan, 203,209
Cases, Supreme Court review of, 248-53
Collegiality on, 173-75, 319
Compared to District Court, 241-43
Complex cases, procedures of, 209, 211-12
Court dynamics, PMW views on, 194-96
Courthouse cafeteria, 214-15
Courtroom emergency protocol, 210-11
Influence of Chief Judge, 224-26
Judges, visiting, 217, 225-26
Judges on compared to ICTY judges, 373
Judicial conferences, 218-20, 237-38, 240-41, 262-64
Role of, 306-307
Judicial Council, administrative procedures of, 222-23
Judicial viewpoints, 235-36
Mediation to, 243-44
Mediation program, 215-16
Merits calendar, 207
Merits Panel, 209
Opinions, 318
Assignment of, 284-86
Writing of, 260-61
Oral arguments, 233-36
Personnel changes, 191-92
Reorganization of, 203-16
Restaffing of, 212-13
Special Panel, 204-205, 206, 209
Staff Counsel’s Office, 284
Summary track, 209
See also Wald, Patricia M.-Professional
U.S. District Court for the District ofColumbi161, 241-43, 266
U.S. Circuit Courts of Appeal
Eighth Circuit, 219, 220, 236
Eleventh Circuit, 219, 222
Federal Circuit, 147
Fifth Circuit, 120, 147-48
First Circuit, 223
Fourth Circuit, 160, 219
Ninth Circuit, 155, 217, 219, 223, 226, 325, 328
Second Circuit, 42, 61-63, 202, 218, 219, 220, 326
Seventh Circuit, 226, 227
Sixth Circuit, 219, 220
Tenth Circuit, 219
Third Circuit, 114, 219, 326
A-17
U.S. Judicial Conference, 216-22
Code of Conduct Committee, 220-21
Powell Committee Report, 218-19
Women on, 220-21
U.S. Supreme Court, 63-66, 79-80, 85, 115, 117, 191-92, 208, 245, 273, 298-99, 301
Caseload, 323, 324
Court of Appeals cases, review of, 248-53
Dynamics of, 194-95
Finzer case, 292-93
Injury-in-fact, 193
PMW decisions affirmed by, 245-46
PMW decisions reversed by, 176-78, 183, 245-47, 248-50
See also names of individual justices
Vassar College (N.Y.), 34, 36
Vieth, G. Duane (“Bud”) (D.C. attorney), 76, 79
Vorenberg, James (“Jim”) (1aw school professor), 91, 94, 100
Waddy, Judge Joseph C., 115-17
Wald, Douglas (“Doug”) (PMW eldest son), 83-84, 86, 168
Wald, Frederika (“Freddy”) (PMW third daughter), 83, 169
Wald, Johanna (PMW second daughter), 83
Wald, Patricia M.-PERSONAL
Aunts, 1-4, 8-11, 25, 51
Childhood, 2-6, 8-10
Children, 7-8, 35, 7784, 87, 112, 166, 169
See also individual names
Education
Connecticut College for Women. 10, 16-30
Phi Beta Kappa, 27 politics at, 33-36
High school, 12-16
Family extended, 2-3, 8, 11
Grandfather, 2, 11
Grandmother, 2, 5
Greenbelt Consumer Cooperative, 20-21
Husband. See Wald, Robert
LSAT, 28, 36
Marriage, interfaith, 7, 32-33
McGowan, Joseph (father), 1-2
McGowan, Margaret O’Keefe (mother), 1-5, 11, 13-14, 16, 31, 33, 43, 51
Minorities, relationships with, 17-18
Motherhood and work, 82-85, 87
Parochial school, 6, 12
Pepsi Cola Fellowship, 29
A-18
Political Action Committees (PACs), 23
Politics, 11-12, 33-36
Pregnancy of, 77, 78, 80, 82
Prejudice, experience of, 18-19
Reading habits, 4, 9-10, 15, 36
Religion, 6-8, 17-18
Research asst.-Prof. Loss, 51-52
Sister-in law, 78
Son-in-law, 239
Uncle, 1-2, 4, 8, 9
Winthrop Scholar, 27
Yale Law School, 29, 36-41
Application to, 28-30
Barristers Union, 50-51
Evaluation of, 42-45, 53-54
Faculty, 48-50
Importance of, 52-54
Order of the Coif, 46
Social life at, 44
Yale Law Journal, 45-48, 52
Wald, Patricia M.-Professional
Administrative law cases, views on, 72, 142-43
American Law Institute (ALI), 108
Arnold, Fortas & Porter (private practice), 75-82
Asst. Attorney General for Legislative Affairs, Justice Department, 130, 133-58
Congressional activities, 136-137
Equal Rights Amendment extension, 158
Staff relationships, 149-50,152
Task forces, 156-57
Author, 86, 87-88, 163
Carnegie Council for Children, 128-29
Center for Law and Social Policy (CLSP), 108-109, 113-29, 148
Central &Eastern European Law Initiative (CEELI), 335, 345
Chief Judge, U.S. Court of Appeals for the D.C. Circuit, 199-310
Advocacy, oral, views on, 232-35,238-40
Advocacy, written, views on, 236-38
Cases, complex, views on, 211-12
Chief Justice role, views on, 203, 337-39
Code of Conduct Committee, 220-21
District Court judges, relations with, 241-42
Influence of, 224-26
Judicial conferences, 218-20, 240-41
Judicial procedure, 235-36
A-19
Law clerks, 228-29, 231
Law review articles, views on, 244
Legacies, 208-16
Preparation for, views on, 200-202
Reorganization, 203-16
Seniority, views on, 202
Supreme Court review of Court of Appeals cases, views on, 248-49, 250
Supreme Court decisions
Affirmed, 245-46
Reversed, 176-78, 183, 245-47, 248-50
See also Table of Cases
Circuit Judge, U.S. Court of Appeals for the D.C. Circuit, 170-198
Application for, 160-61
Caseload of, 185-86
Congressional hearings, 165-70
Court dynamics, views on, 194-95
Decisions, changing mind about, 293-95
Dissents written, 196-97
Extracurricular activities, 186-87
Judicial collegiality, views on, 171-75
Judicial conferences, role of, 306-307
Judicial experience, effect on opinion writing, 264-67
Judicial philosophy, views on, 194-96
Law clerks, 182, 188-90, 228-29, 258-59
Law reviews, 265-67
Nomination for, 155, 161-66
Opinion writing, views on, 178-79, 197, 264-67, 280-81
Personnel changes in court, 189-92
Suitable challenger requirement, views on, 194
Swearing in, 170-71
Retirement from, 335, 336-37
Training for, 180-82
Work habits, I83-86
See also Table of Cases
Clerkship-Judge Jerome (“Jerry”) Frank, 38, 42, 58-59, 61-76, 159
Consultant, part-time, 85-86
D.C. Crime Commission, 88-95, 129, 132
Federal court system, views on, 339-40
Ford Foundation, Board of Directors, 102-108, 114, 163
International Criminal Tribunal for Former Yugoslavia (ICTY) trial judge, 340-80
Appellate panel to tribunal, 350-51
Appointment process, 345-47
ICTY appellate v. D.C. Circuit appellate judges, 373-74
Swearing in, 354
A-20
Wald’s routine, 35
See also International Court of Justice; International Criminal Court; International
Criminal Tribunal for Former Yugoslavia (ICTY); Table of Cases
Judicial personality traits, views on, 143
Law schools, views on, 331-33
Legal career, view of, 333-34
Legal Services attorney (Neighborhood Legal Services Program), 88, 91, 96-101
Volunteer work, 97,100
Youth Law Center, Texas case, 119-27
Mental Health Law Project (MHLP) Litigation Director, 113-127, 131
Open Society Institute Justice Initiative Chair, 335-36
Researcher- D.C.JC, 88
Researcher-W. Moore, 84-85
Role models, views on, 81-82
Shriver, Sargent, campaign staff, 109-111
Speechwriter -David Bazelon (McGovern campaign), 109
Trial judge v. appellate judge, 361-62, 366-67
Vera Foundation, 102
Wald, Robert (“Bob”) (PMW husband), 32, 49, 53, 56-60, 62, 66, 75, 80-84, 87, 89, 163, 169
Wald, Sarah (PMW eldest daughter), 81, 82-83
Wald, Thomas (“Tommy”) (PMW second son), 83, 87, 167
Wallace, Judge Clifford (“Cliff”), 217
Warren, Chief Justice Earl, 86, 224
Watergate scandal, 112
Webster, William (FBI Director), 35
Weddington, Sara (White House staff), 153
Well of Loneliness (Radclyffe Hall), 36
White, Justice Byron, 299
White, Lee (White House staff), 89, 109
White House. See individual administrations
Whitewater hearings, 305,306
Wilkey, Judge Malcolm, 172, 173, 175-176, 184-85, 189, 190, 191, 247, 313
Will, Judge Hubert (“Hugh”), 226, 272, 274-75
Willens, Howard (D.C. Crime Commission), 90
Williams, Edward Bennett (D.C. attorney), 239
Williams, Judge Stephen (“Steve”), 183, 191, 195, 273, 275, 313
Willkie, Wendell (presidential nominee), 12
Winter, Judge Harrison, 219
Wisdom, Judge John Minor, 120, 147
Wolf, Peter (staff-D.C. Crime Commission), 90
Wolf, Richard (“Dick”) (D.C. attorney), 100
Wolf, Roger (D.C.attorney), 100
Women
A-21
Carter Administration, 153
Compared to minorities, 296
D.C. Bar, 166
Excluded from Harvard Law School, 28-29
Ford Foundation, 104-105
Foreign Service officers, discrimination against, 275-79
Indigent, 98-99
Job sharing, 205-206
Judges, 154-55,181, 220, 233
See also individual names
Justice Dept.131-33, 152-53
See also individual names
Law clerks, 61-63, 75, 228-29, 231
Law students, 37, 51
Networking, 153,327
Preference for, 299-300
U.S. Judicial Conference Committees, 220-22
Veterans, 37
Yale Law Journal, 47, 56
Yale Law School, 37-40 faculty, 48
See also Affirmative action; Minorities
Work, Charles (“Chuck”) (D.C. Bar), 166
World War I (1914-1918), 1
World War II (1939-1945), 22, 25-27, 34, 37
Wozencraft, Frank (law school classmate), 44
Wright, Helen (wife-Judge Wright), 173-174
Wright, Judge J. Skelly, 98, 173-74, 176, 189, 191, 199, 202, 224-25, 250, 255, 277, 295, 312-
13, 333
Wyzanski, Judge Charles (“Charlie”), 104-1 05, 109
Yale Law Journal, 45-48, 52,56
Yale Law School, 28-30, 36-45, 56
Women at, 37-40
York, Larry (attorney), 124, 125, 126
Youngdahl, Judge Luther, 79
Youth Law Center (San Francisco), 119
Zobel, Judge Rya, 328
Zoellick, Ambassador Robert (“Bob”), (former PMW clerk), 228

B-1
Table of Cases
Aka v. Washington Hospital Center, 124 F.3d 1302 (D.C. Cir. 1997), 315
Animal Legal Defense Fund v. Glickman, 154 F. 3d 426 (D.C. Cir. 1998), 314
Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991); Armstrong v. Executive Office of the
President, 1 F.3d 1274 (1993); Armstrong v. Executive Office of the President, 90 F.3d
553 (D.C. Cir. 1996); Armstrong v. Executive Office of the President, 97 F.3d 575
(D.C. Cir.); see also Public Citizen v. Carlin, 184 F.3d 900 (D.C. Cir. 1999), 245, 268,
86, 309
Chevron v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984), 140, 193, 238, 270,
273, 282-84
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), 298-99
Doe v. Chaney, 885 F. 2d 898 (D.C. Cir. 1989), 246
Doe v. Webster, 991 F. 2d 818 (D.C. Cir. 1993), 249
Easter v. District of Columbia, 361 F. 2d 50 (D.C. Cir. 1966), 103
Energy Action v. Andrus, 654 F. 2d 735 (D.C. Cir. 1980), 177
Farmworkers Justice Fund v. Brock, 817 F. 2d 890 (D.C. Cir. 1987); Farmworkers Justice Fund
v. Brock, 811 F. 2d 613 (D.C. Cir. 1987); 271, 278
Farmers Union Central Exchange v. FERC, 734 F. 2d 1486 (D.C. Cir. 1984), 245, 268, 270
Finzer v. Barry, 798 F. 2d 1450 (D.C. Cir. 1986), 264, 290
Fullilove v. Klutznick, 448 US 448, 100 S. Ct. 2758, 65 L. Ed. 2d 902, 100 S.Ct. 2758 (1980),
298
Heckler v. Chaney, 470 US 821, 830, 105 S.Ct. 1649 (1985), 714, 273
Metro Broadcasting v. FCC, 497 US 547, 110 S. Ct. 2997, 111 L. Ed. 2d , S.Ct. (1990), 445,
299
Mills v. Board of Education, 348 F. Supp. 866, 876 (D.D.C. 1972), 114-15, 117
On Lee v. United States, 343 US 747, 757, 72 S. Ct. 967, 96 L. Ed. 1270 (1952), 64
Palmer v. Schultz, 815 F. 2d 84 (D.C. Cir. 1987), 245, 275, 277-80
Shurberg Broadcasting v. FCC, 876 F. 2d 902 (D.C. Cir. 1989), 245, 290, 295-96, 298
Siegert v. Gilley, 895 F. 2d 797 (D.C. Cir. 1990), 251-52
Sierra Club v. Costle, 657 F. 2d 298 (D.C. Cir. 1981), 141, 178-79, 245-47, 253, 255-57, 264,
268, 285
State of Ohio v. U.S. Department of Interior, 880 F. 2d 432 (D.C. Cir. 1989), 280-82, 284-85
Steele v. FCC, 770 F. 2d 1192 (D.C. Cir. 1985), 96, 299
B-2
Morales v. Turman, 364 F.Supp. 166 (E.D.Tex.1973); see also, 364 F.Supp. at 175, n. 1.;
Morales v. Turman, 383 F.Supp. 53 (E.D.Tex.1974); Morales v. Turman, 535 F.2d 864
(5th Cir.1976); see former 28 U.S.C. § 2281, repealed (1976); Morales v. Turman, 430
U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368 (1977), rehearing denied, 430 U.S. 988, 97 S.Ct.
1690, 52 L.Ed.2d 384 (1977); Morales v. Turman, 562 F.2d 993, 996 (5th Cir.1977), 119,
123
United States v. Field, 193 F.2d 92 (2d Cir. 1951), 65
United States v. John M. Poindexter, 951 F.2d 369 (D.C. Cir. 1992), 305, 307, 376
United States v. Oliver North, 910 F. 2d 843 (D.C. Cir. (1990), 239, 290, 301-07, 375-7
United States v. Rosenberg, 195 F.2d 583 (2d Cir. 1952), 59, 65-67, 73
C-1
Judge Patricia M. Wald
Judge Wald served on the U.S. Court of Appeals for the District of Columbia Circuit tor twenty
years, including five years as the Chief Judge. She is the author of over 800 judicial opinions.
Her most recent judicial post was as U.S. Judge on the International Criminal Tribunal for the
Former Yugoslavia (ITCTY) at The Hague, Netherlands where she rendered significant decisions
in the field of international humanitarian law.
Judge Wald received her Bachelor’s degree from Connecticut College and her law degree from
Yale Law School, where she was an editor of the Law Journal. She began her career as a law
clerk to Judge Jerome N. Frank of the U.S. Second Circuit of Appeals. She was associate in the
Washington, D.C. firm of Arnold, Fortas & Porter, an attorney. ln the Office of Criminal Justice
of the Department of Justice. attorney for Neighborhood Legal Services, member of the District
of Columbia Crime Commission, Co-Director of the Ford Foundation’s Project on Drug Abuse,
attorney with the Center for Law and Social Policy, and Litigation Director of the Mental Health
Law Project.
In 1977, Judge Wald was appointed Assistant Attorney General for Legislative Affairs in the
United States Department of Justice. and in 1979 President Carter appointed her to the United
States Court of Appeals for the District of Columbia Circuit where she served until her
retirement in 1999. From 1999 – 2001, she served on the ICTY. 2002-2004 as Chair. of the Open
Society Justice Initiative, and since 2001 as a member of the President’s Commission on U.S.
Intelligence Capabilities Regarding Weapons of Mass Destruction.
Judge Wald is a Council Member and former First Vice President of the American Law institute
(ALI) and is a Fellow of the American Academy of Arts and Sciences. She is the author of Law
and Poverty (1965) and co-author of Bail in the United States {1964) and Dealing with Drug
Abuse (1973). She has published numerous articles on a wide range of legal subjects.
Judge Wald is a Fellow of the American Philosophical Society and a former member of the
Executive Board of the American Bar Association’s Central European and Eurasian Institute
(CEEI). She received the American Bar Association Margaret Brent Women Lawyers of
Achievement Award, the Annual Award of the Environmental Law Institution, and the annual
Award of the International Human Rights Law Group. She has received numerous honorary
degrees from Universities and Law Schools including most recently Doctor of
Law, Yale University.
2005
STEPHEN J. POLLAK
Senior Counsel
202.346.4178
spollak@goodwinprocter.com
Areas of Practice
Stephen Pollak’s practice consists of representing clients in trial and appellate litigation of complex civil
cases at all levels of the federal courts and before federal departments and agencies. His fields of
concentration include antitrust, constitutional, and labor law, civil rights, ERISA and legal ethics. He also
represents individuals under investigation for possible violation of federal criminal laws, as well as
lawyers and law firms against whom complaints have been lodged with Bar Counsel. Mr. Pollak served
as Special Master for the Vitamins Antitrust Litigation in the U.S. District Court for the District of
Columbia.
Professional Activities
Mr. Pollak also serves as a mediator and arbitrator. Since 1989, he has been a member of the Panels of
Mediators appointed, respectively, by the U.S. Court of Appeals for the District of Columbia Circuit and
by the U.S. District Court for the District of Columbia. Mr. Pollak is a member of the American
Arbitration Association Panel of Mediators and a member of the CPR Institute for Dispute Resolution’s
Washington, D.C., Panel of Distinguished Neutrals. He has served as a training consultant in mediation
for the Office of Dispute Resolution of the U.S. Department of Justice.
Mr. Pollak served as President of the District of Columbia Bar (1980-81) and was a member of the Board
of Governors of the Bar for four years. He served as Chair of the Bar’s Public Service Activities
Committee (1989-95) and was the leader in reorganization of the Bar’s pro bono activities. Mr. Pollak
served as President of the District of Columbia Bar Foundation (2008-09) and as a member of its Board
of Directors (2003-09). He currently serves as a member of the District of Columbia Access to Justice
Commission.
Mr. Pollak served as a member and Chair of the District of Columbia Judicial Nomination Commission
(1984-90, 1994-96), responsible for selection of the Chief Judges of the District of Columbia Court of
Appeals and the Superior Court of the District of Columbia as well as presentation to the President
of candidates for nomination as judges of those courts.
Mr. Pollak is President of the Historical Society of the District of Columbia Circuit and Director of its
Oral History Program. He is listed in The Best Lawyers in America.
Professional Experience
C-3
Mr. Pollak was a partner at Shea & Gardner prior to its combination with Goodwin Procter in 2004, and
served as chair of its Executive Committee from 1993-1996. Prior to joining Shea & Gardner, Mr. Pollak
served in the U.S. Department of Justice and the White House from 1961 through 1969. Among his
governmental positions were Advisor to the President for National Capital Affairs (1967) and First
Assistant and Assistant Attorney General in charge of the Civil Rights Division (1965-67, 1967-69) and
Assistant to the Solicitor General (1961-64).
Bar and Court Admissions
Mr. Pollak is admitted to practice in the District of Columbia.
Recognition
Mr. Pollak is the recipient of the following awards: the Justice Potter Stewart Award from the Council for
Court Excellence of Washington, D.C. (2006); the Daniel Webster Distinguished Service Award from the
Dartmouth Club of Washington, D.C. (2005); the Thurgood Marshall Award for Service in the Public
Interest from the District of Columbia Bar (2001); and the Servant of Justice Award from the Legal Aid
Society of the District of Columbia (1994). He has been selected for inclusion in The Best Lawyers in
America.
While attending law school Mr. Pollak was Managing Editor of the Yale Law Journal and received the
Jewell Prize for highest second-year grades, and Second Prize for Best Student Contribution to Yale Law
Journal (1955-56), titled the “Expatriation Act of 1954.”
Education
LL.B., Yale, 1956 (cum laude; Order of the Coif)
B.A., Dartmouth College, 1950 (Phi Beta Kappa)
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