Inez Smith Reid Interview 7

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Oral History of Judge Inez Smith Reid
Seventh Interview
December 22,2009
This is the seventh interview of the Oral History of Judge Inez Smith Reid, Associate
Judge of the District of Columbia Court of Appeals, as part of the Oral History Project of The
Historical Society of the District of Columbia Circuit. The interviewer is Devarieste Curry, now
of the law firm Mcleod Watkinson & Miller. The interview took place in Judge Reid’s
Chambers at The Historical Courthouse,430E Street, N.W., Washington, D.C.
Ms. Curry:
Judge Reid:
Ms. Curry:
Judge Reid:
Ms. Curry:
Good morning Judge Reid.
Good morning.
Judge Reid, first offlet me thank you for making time today to continue this
interview. I know that you’re very busy and, of course, this is the holiday season
and everything has been complicated by the blizzard we’ve just had., It is, indeed,
quite treacherous still to drive andto walk. So thark you for making time to do
this.
Thank you for coming.
When we stopped last week, we were talking about your service on this bench and
your relationship with the prior Chief Judge, Chief Judge Annice Wagner. Now
you and the former Chief Judge attended high school together. Based on how
society typically measures success – from schools attended, degrees received,
class rank or standing, professional positions one has held – all of those measures,
you would be considered the far more accomplished or successful of the two of
you. Given your credentials compared to those of Chief Judge Wagner, how did
you feel serving in what some may view as a subservient role to her?
Well, first of all, Iet me tackle your underlying premise. I’m not sure I would
describe my background and accomplishments as greater than those of former
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Chief Judge Wagner. I think she has had an excellent ctlreer, and sometimes I
think I cannot hold a candle to her. But nevertheless, let me go on and accept
your underlying premise. And I guess I would respond in a couple of ways. First
of all, I do not believe that I had a subservient role. Rather, I would describe it as
a collaborative role. We collaborated in a number of respects, and the Chief
would often seek out my opinions on a variety of things. And when it carne to the
whole issue of fairness and access to the Court, and fundaffrental justice within the
judicial system for all participants, I think we had a very strong collaborative
relationship that panned out beyond the Court to the Bar and other quarters. But,
secondly, I would Eu:r.swer it is that I enjoyed being in the background. I do not
like the limelight. And I’ll tell you when I first rcalizedthat I’m not a limetight
person. And that is when I was in New York and teaching at Barnard
College-Columbia University,I was in demand in terms of speaking
engagements. And I recall on one occasion I accepted the engagement to speak in
Albany, New York, at this big, big weekend dinner of the, I think it was the Black
Caucus – the legislative assembly. And there were politicians, and civic workers
from all over the State of New York who gathered in Albany for that occasion.
And a number of them were jockeying for position onthe stage. As the keynote
speaker I, of course,had a position on the stage during the dinner. But I was
prompted to give up my seat at the dinner table so that other people could gather,
because the competition was so fierce to sit at the table and to be seen. So
ultimately, after everybody had his or her say, it was time for my keynote address,
which I made. And it was kind of hard-hitting keynote address and extremely
Ms. Curry:
Judge Reid:
Ms. Curry:
Judge Reid:
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well received. So what really, I guess, unnerved me was the fact that after the
conclusion of my address – which was the last thing on the program -people
swarmed onto the podium and, I mean, I was surrounded. And it was the most
uncomfortable feeling I think I have ever had. And, in fact, in this one sense it
was a frightening feeling because I really did not want to be in the limelight. And
so from that point on I recogn izedthatl’m not a limelight person, and that I prefer
to work in the background and not to be on the front iine. So those are the two
responsos that I would give you.
Let me ask a question, when you say you were prompted to give up your seat on
the stage – By the program planner?
No, no. On my own. On my own I decided I was going to give up that seat
because so many people wanted to bb seen, and I didn’t have any need to be seen.
Well, because you knew you had a speech that would be heard, and once it was
heard you would be seen?
Yeah, that was the purpose. To be heard, but not necessarily to be seen. I could
have, I could have done it behind the scenes and have itjust broadcast over the
loudspeaker.
Judge Reid, you disagreed with me – and I’m not surprised – with my
charucteizing or describing you as what I said many believed, based on how
society measures success. You said you did not think you were the more
successful of the two. Clearly, Judge Reid, I mean, JD, Ph.D., three Masters,
positions at several distinguished colleges and universities in teaching, Inspector
Judge Reid:
Ms. Curry:
Judge Reid:
Ms. Curry:
Judge Reid:
Ms. Curry:
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General at EPA, Corporation Counsel of the District of Columbia. Tell me how
you could make that statement.
Because I actually believe it. I think accomplishments are a question of
perception, and the perception that I have of the former Chief Judge is that she
made some very, very strong contributions. Not only on this Court, but in the
District of Columbia at large and also nationally through her work with the
Conference of Chief Justices. Now that’s not to detract from my own
accomplishments, but I just don’t try to look at my success as being superior or
not superior to anybody else. One of the things that I did early in life, once I
rcalized that I had certain talents, was to pray consistently for humility and
patience, for humility and not a display of pride. That was very important to me,
and I can honestly say that I’m grateful that my prayers were answered through
the years.
Would you describe yourself as a confidant of the former Chief Judge?
Oh, absolutely. Absoluteiy. Yeah.
Now, I intended that question to mean when she was serving as the Chief Judge.
When she was serving as the Chief Judge. Yes, that is correct. And, in fact, she
wanted to groom me to replace her. But that was not in my book.
Consistent with your not liking the limelight?
That’s absolutely correct. And I thought that it was time to pass the mantle to
someone else.
Ms. Curry Describe your relationship with the current Chief Judge.
Judge Reid:
Ms. Curry:
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Our current Chief Judge and I have had avery good relationship. We came onto
the Court – he went onto the Superior Court and I came onto the D.C. Court of
Appeals at the same time. We had our hearings together over in the Senate before
senator william Cohen. And we have abond in the sense that we both are
graduates of Tufts University, and we refer to ourselves as Jumbos. In addition,
he’s a graduate of Columbia’s law school, and my graduate work was done at
Columbia, so we have that bond. And we attend the same church, so that’s
another piece of the bond. So I was delighted . . . . In fact, I t}rew my support
behind Chief Judge Washington to become the Chief Judge despite the fact that I
was approached by someone who was in a position of influence and power to
stand for the position of Chief Judge. But I thought that Eric Washington would
be agreat Chief Judge and I was pleased to throw my support behind him.
I just wanted to check the tape to make sure that we’re each being picked up.
Judge Reid, once again you found yourself then in a position, if you had wanted
to be, in competition with someone who had not done as much at a professional
level as you, yet you chose to support this person. And sometimes when people
support . . . . Well, let me strike that question. You chose to support him. Did
you have any reservations, or was there at least apart of you that thought, perhaps
I should do this?
Well I $ew up under the concept of noblesse oblige,and I gave it great thought
because of being approached not once, but at least two times and urged to do this.
But I have no regrets in deciding that it was something that I should not do. I
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Judge Reid:
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thought the position needed really new blood. I thought the position needed
someone who had great vision and great energy. And I thin . . . .
But Judge Reid, let me stop you. You need vision, you have a vision. And then
energy; I’ve never met anybody with more energy than you.
Yes, but Chief Judge Washington has a different kind of energy. I thought he
would be able to tackle some of the problems that existed on this Court better than
I could. And I would have had to have a more delicate approach because the
position, first of all, required somebody who was going to be very aggressive in
tackling the backlog of the Court of Appeals. And I thought that Eric was equal
to that task, whereas I would have had to have had kind of a delicate balance in
approaching that because of my relationship with the past Chief Judge. In
addition, Chief Judge Washington is very well connected, probably more
connected than I am to pockets of influence throughout the District of Columbia.
I thought that would be very helpful in terms of the well-being of the District of
Columbia Court of Appeals. Now I’m not saying that I don’t have some of the
same kinds of connections, but he is more outgoing than I am, let’s put it that
way.
Did you discuss your final decision with George?
Yes, and he told me that I should do it. But, of course, I have a mind of my own.
And not only that, but I let it be known to Chief Judge Washington that I had been
approached and like a gentleman he said, “We11, I will step aside.” And I said,
“[N]ow I’m telling you because that’s just exactly what I don’t want you to do. I
Ms. Curry:
Judge Reid:
Ms. Curry:
Judge Reid:
Judge Reid:
Ms. Curry:
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want you to stay the course because it’s not going to happen, in terms of my
becoming Chief Judge.”
So he has a gteat admiration for you also and your abilities now?
We have a very, very good relationship.
What is your opinion of him as a jurist first, and then secondly, as an
administrator?
Well, I have developed a strong admiration for Chief Judge Washington as a
jurist. If you come to the oral arguments, you’ll see that he is very well prepared.
And he has kind of a spin on his questions which not only reflects greatlegal
knowledge, but the ability to translate the legal issues on a practical level with the
questions that he poses. So I think he’s a very, very strong jurist. And, of course,
he would have to be being a graduate of Tufts and Columbia Law School. AIso,
he was a partner at Hogan & Hartson, and I think we both know that he would not
have become a partner at Hogan & Hartson if he did not have some inteliectual
acumen.
And the second part of that was yow opinion of him as an administrator.
I think Eric is avery, very good administrator. And he’s able to push forward
despite the push back. And to his credit, he has helped to decrease the backlog in
outstanding opinions. And he keeps the pressure on individually whenever he
sees things flagging. For example, if we have an en banc argument and
somebody else has been assigned to write the opinion but is not producing the
opinion, then he doesn’t hesitate to step in and to make a change in the
assignment. I think he keeps the Court running smoothly. In terms of calend.ars,
Ms. Curry:
Judge Reid:
Ms. Curry:
Judge Reid:
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you know way ahead of time what calendar you’re going to be on, and what,s
your assignment on the respective calendars. And the calendar sets are received
in the chambers in more than a timely manner. For example, if we’re in
December, we get January’s calendar by the middle of December. He’s just that
well organized,, andl think he’s an excellent administrator.
A couple of things, you’ve mentioned his role in the assignment, but I thought I
heard you say the other day that assignments are made randomly from the Clerk’s
Office.
Oh yes, initially. But once the assignment is made, we have priority with respect
to en banc opinions. So after orai argument, conference, the assignment is made.
Now en bancs are different. The person who is assigned to write the en banc
opinion is not by random, but it’s the person who’s in the majority. Or if the
dissenting opinion for the panel becomes the majority position of most of the
people, then that dissenting person gets to write the en banc opinion. But once
that assignment is made, if the judge assigned is not carrying through, then he
doesn’t hesitate to step in.
So, let me understand this. The person who wrote the majority opinion for the
panel will be the person who is assigned to write the en banc opinion initially.
Provided that that position prevails among the majority of the en banc Court.
I see. I see. Now you said that he has the ability – to use your words – to push
forward “despite the push back.” Exactly what did you mean by that, “push
back?”
Judge Reid:
Ms. Curry:
Judge Reid:
Ms, Curry:
Judge Reid:
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Judge Reid:
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If people make excuses for not beirig able to get their opinions out, that’s what I
call apush back. “You don’t understand, I’ve got X, Y and Zto do.” And then
he will push back again and say, ‘olt has got to be done.” And he will keep the
judge’s feet to the fire until that opinion is out. Now it’s a thankless task, a really,
really thankless task. But he keeps going ahead regardless of how much he might
like a particular judge.
How does he generally communicate with the judges, through email or walking
the halls and going into the chambers?
He does both. But he does a lot of walking the halls and into chambers and
having face-to-face discussions with the judges. He was also very good in taking
up the mantle from Chief Judge Wagner in getting this building completed. In
fact, that was a tremendous job because he had to interface with a number of
different sectors, not only the architects and the engineers, but the National
Capital Planning Commission – I think it’s called – and the Fine Arts Association,
and also the Congress to get the funding continued.
And at what point did he step in? Where was this process when he stepped in?
We had broken ground. We went over there and did the shovel to break the
ground for the – went over here I guess I should say – to break the ground for the
renovation. And then at that point he stepped in and carried it forward.
And what about his role with Congress and with the – there’s a Judicial Council, I
believe, that the Superior Court Chief Judge is a part of?
You mean within the Court?
Yes.
Judge Reid:
Ms. Curry:
Judge Reid:
Ms. Curry:
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The Joint Commiffee on Administration. Yes, he does very well. He’s really the
leader of both courts. And from my understanding – I’m not on the Joint
Committee – but from my understanding, that process has gone well. And I know
in my role as Chair of the Standing Committee on Faimess and Access if we have
an issue that has to go before the Joint Committee, he’s been very good in seeing
to it that the issue is presented, and the resolution is one that we had
recommended.
I will not ask you to opine about what otherjudges think about him.
Oh, I can tell you that he enjoys the respect of all of the judges on this Court. I
have never heard a negative word about him from any judge. I mean he’s just got
a nice, infectious personality. But he can be stern, but very pleasant at the same
time.
How would you describe your relationship with your colleagues on this Court,
other than the two chiefjudges about whom we just spoke?
I think I talked, when I first came onto the Court, about Julia Cooper Mack, Judge
Julia Cooper Mack, And I had a very good relationship with her. Some of the
other judges, it took a while for me to get accustomed to them and get acclimated
to their personalities. One judge in particular has a biting wit and at times – and
it’s kind of sarcastic – and at times I would feel uncomfortable around that judge.
But eventually I got to see that that judge treated everybody the same way, and his
wit, which sometimes was negative wit, was directed at everybody. I mean, that’s
just the way he was. And in addition, there were some people who have this
tendency * I may have mentioned this before – to be editors because in their
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Ms. Curry:
Judge Reid:
Ms. Curry:
Judge Reid:
Ms. Curry:
former positions they had edited briefs and other documents. And so it took a
while for judges to understand that I didn’t believe that their main role was to edit
my work. But I think we’ve all come to a meeting of the minds now. So there
were some undercurrents there, I think, which were natural because judges begin
to feel out a new judge and to question everything about that judge’s work until
they are satisfied that that judge meets their own individual tests.
Were the comments that the judges who had a tendency to make editorial
comments, did those judges also make substantive comments, or were their
comments generally limited to those that may be described as editorial?
Mainly editorial. Some limited substantive comments, but mpinly editorial. And
I think that was partly a function of their past existence as supervisors of a cadre
of attorneys and they were accustomed to doing that kind of editing.
How did you communicate to your colleagues that you did not desire them to play
that role, or that you thought that was an inappropriate role for them?
Well I guess the most drastic thing I did for one judge was to simply say to that
judge, “[W]e11I think it would be better for you to write the opinion.” And I
turned over the assignment to that judge. And from that point on, I did not get as
many editorial comments.
Judge Reid, we’ve been talking about your experience compared to that of the
former Chief Judge, and a bit compared to that of the Chief Judge. But actually,
your academic accomplishments and the breadth of your experience, eclipse that
of most of your colleagues. How do you navigate through the thicket of working
Judge Reid:
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with and for people whose academic preparedness and experience are not equal to
yours?
well, accepting your underlying premise for the moment, I have a fairly soft
approach to individuals, and I try to come in on the most positive side of the
individual and to do the best that I can to relate well and to point out things that
need to be done. Let me give you an illustration. I received a draft opinion from
onejudge several years ago, and I was astounded that thejudge had overlooked a
controlling precedent. And so I sent the judge an email saying, “I don’t think the
draft can go as you have prepared it because of this particular precedent.” The
judge pushed back on me, and then I strongly suggested. that he read the
precedent. And then the judge came back and said, “oh, that precodent proved
that I was right.” But that is one of the techniques that I have. It’s kind of a soft
approach. I put on the table something that the judge may have overlooked that
needs to be addressed. Now on the other side of the coin, we have some
extremely, extremely bright judges on this court. And i lift up by name one
judge, and that’s John Steadman. i think John Steadman probably has the greatest
intellect and the greatest mind on the Court. Sometimes it takes a little bit for
him, surprisingly, to grasp an issue, but once he’s grasped it, he’s good to go.
And I’ve worked fairly well with Judge Steadman through the years. He will
send you these long emails, what I call a stream of consciousness email. And
when I first got those emails, when I first came on the Court – and before emails
he did memos – when I first got those memos, sometimes in three pages, I would
say to myself, “\\Ihat on earth does he expect me to do with these three pages, and
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what is the point? What is he trying to tell me?” And then I would force myself
to calm down and to read it. And throughout those three pages, sometimes he’s
only saying to you, “I think you should make this adjustment, and this is the way I
would say it.” But it took him three pages to get through that simply because his
mind is so fantastic that it’s like a labyrinth, and you have to follow it and then
come to the same point that he comes to in order to understand where he’s going
and what his puzzlement might be at a given point in time. But I lift
Judge Steadman up because I’ve enjoyed through the years working with him and
foilowing his intellectual line. But as I say, I think he’s probably got the greatest
intellectual mind on the Court. And next to him I probably would put
Ted Newman, who has an extraordinary mind and extraordinary retention. He
recalls these cases and there is no equal for him, I think, in the evidentiary world.
He’s mastered evidence very, very well. And some of our colleagues quietly go
to Judge Newman to get his opinion on some of the more difficult issues that they
have to grapple with. So I give you those two illustrations.
So that’s still the case with Judge Newman, because when I clerked for
Judge Rogers, what I found arnazingwas that irrespective of any of the judges’
personal views or anything, when there were difficult issues, they all found their
way to Judge Newman’s door.
That’s correct. That’s still the same situation to this day regardless of how people
feel about how he reacts to some things, and whether or not he will go offon
attorneys as they are trying to argue their cases.
Ms. Curry:
Judge Reid:
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Now Judge Reid, you keep saying, or you said at least twice, you said in respect
to my question about your credentials compared to those of Judge Wagner’s, and
then with respect to this question you said, “accepting your underlying premises.”
Do you not at least agree that from a societal standpoint, that’s generally the way
people are judged. I mean, whether we are looking at them in the Obama
administration or however. It’s not just my underlying premise.
Sure, yes. That’s why I say accepting the underlying premise for the moment.
But it’s not necessarily how I look at things because I think there are perceptions
of intellectual ability that may differ along the spectrum.
Have you had any particular challenges with any of your colleagues that you’d
like to discuss, or that you feel you can share on the record?
Two things I would lift up. I may have mentioned this before. One has to do
with – The interesting thing is we all come from different backgrounds. There’s
one judge on the Court who grew up in this area, and he belongs to the majority
culture. And he had a set of experiences that gave him a virtual lens on society
and how things develop in society. I also grew up in this area, and I have a
different perspective, And our dif[ering approaches, I think, met in a particular
case that we had.for which he wrote the majority panel decision and I dissented.
And then ultimatety we went en banc and then I forged the majority unanimous
en banc opinion. And I raise that as an illustration because that was a particular
employment discrimination case. And I think our respective backgrounds brought
something different to the table so that in the end we came out on the same wave
length. But it took a bit to get there. It took a lot of patience, it took a lot of
Ms. Curry:
Judge Reid:
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working through those particular issues and problems. But that’s one illustration
of how I worked together with someone who’s views were not the same as mine,
but we came out in the final anaiysis at the same point.
Do you recall the name of the case?
Yes, I was avoiding it intentionally.
It was a published opinion, wasn’t it?
Yes, it is. I will give you the name of the case. It’s Lively v, Flexible Packagtng
Company.
I think you addressed it the other day, but not with respect to this particular issue.
Right. That’s right, it’s a different nuance on issues. And the second illustration I
witl give you is something I didn’t want to do but I was forced to do. If a judge
sits on a draft too long, I become anxious. I become anxious because I think it’s
not fair to the parties – to the litigants – particularly to those people awaiting the
outcome of the case and have a stake in the outcome. At some point in time
during the course of my tenure, I finally came to the conclusion that I could no
longer really work on cases with this particular judge, so I did something
extraordinary that I normally would not do. I went to the Chief and I made a
request that I not be assigned to any panels with that judge, because I was on a
waiting curve anywhere f,rom two months to a year before I could get a reaction to
my draft. And I felt that that was just too long. And then when I got the reaction,
there were so many what we call nitpicks that it began to – simply put – get on my
nerves. And so I made that extraordinary request to the Chief and it’s not known
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Judge Reid:
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generally in the Court, but it was honored. But we did it in such a way that
periodically I do sit with the judge so it’s not absolutely obvious.
Well, that was my question. That if you never sit with this judge, wouldn’t people
divine that there’s been some arrangement?
Not necessarily because keep in mind we have our own problems and our own
workload. And no judge has ever come to me and said, ‘oI notice you’re not
siuing with Judge X.” ‘oWhy aren’t you sitting with Judge X.” I don’t think it’s
been recognizedyet.
Now you said that if a judge sits on a case too long – I’d like for you to define for
the record what you perceive as too long, because you’re known to be on this
Court, but also just generally, yow work ethic is almost unequaled and you
produce at fast clips. What’s too long for you?
Well, we have internal operating procedures that when I arrived on the Court
simply were not honored. They’ve been revived a little bit but, for example, if
you send out a draft opinion to a judge, that judge has fourteen days to respond.
Now the judge can come back and say, ‘ol-isten, this is a very difficult case and I
need a couple of more weeks,” or “I need tlree more weeks.” If the judge says
absolutely nothing, then you’re supposed to have the right to move on in the
process to send the opinion to the full Court if the other member of the panel has
approved it. But people have been extremely reluctant to do that, and so the
internal operating rule has been dishonored, generally dishonored. But to me if
the procedures say two weeks to respond, and you have not responded in two,
three, twelve months, then something is radically wrong with the system.
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Ms. Curry: You’ve mentioned sending an opinion to the fi.rll Court. So is it my understanding
that even panel opinions are circulated to the full Court before they are
distributed?
Judge Reid:
Ms. Curry:
Ms. Curry:
Judge Reid:
Yes, except for MOJs, which are unpublished. But any published opinion has to
go to the full Court before it is released. And there’s a five-working-day period
for the other judges to review it and to comment on it.
Based on their knowledge of the Court precedent?
That’s correct, or if there’s a recent Supreme Court decision that has been handed
down that the opinion does not mention, then they’ll mention that too.
Your comment about your background vis-i-vis that of one of your colleagues
and how that might in some small or indirect ways inform how you perceive or
approach your inteqpretation of the law brings to mind a comment by
Justice Kennedy – and I believe they were published in a Stanford Law Journal in
honor of Justice Marshall – where Justice Kennedy recalled that on a number of
occasions Justice Marshall – Thwgood Marshall – hearing of his background
sometimes influenced really how he began to view the cases. Do you see that in
yow judging that often or even sometimes the background of a particuiar judge?
Let me ask the question this way. In the conference or in discussions is there any
reference to one’s particular background in elucidating your discussions?
Occasionally, but generally not. Most people, particularly myself, tend to keep
things that developed in their background to their chest. Most people really don’t
know what my background is, particularly growing up here in Washington, D.C.
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Judge Reid:
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Some people will put their background on the table. For example, at least one
judge was the victim of an assault, a mugging, and he will often put that on the
table. Some people have grown up in different parts of the country, and they will
put that on the table. But generally, background is not displayed in the
conference.
You don’t see or have not seen where your revealing more of your background
and how Washington was at the time you grew up may, in fact, be important to
interpreting or deciding the cases? What Justice Kennedy said Justice Marshall
explained so well for them was how the law would impact the real world. What it
meant.
Those considerations, I think, are fair play xa conference because part of our
looking at a particular opinion is what will be the impact of this opinion on other
cases coming down the line, or what will be the impact of this opinion on a
variety of the segments of society. I think that’s fair game. But while
background inevitably plays some part, I strive to control the background and the
influence the background will have on decision making. I mean I prefer to look at
precedent. I prefer to look atpractical considerations, lines ofcases not only in
this jurisdiction, but outside of the jurisdiction rather than to look inwards to the
particular cultural experiences that I had in growing up here in V/ashington, D.C.
We talked about your working with your colleagues, and what I deduced from
what you said is that you have a very understated, quiet, dignified personality, and
that those traits have facilitated your ability to work with your colleagues. Am I
correct in that conclusion?
Judge Reid:
Ms. Curry:
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I think that’s a fair statement, yes.
Would you describe your professional activities and associations as a court of
appeals judge. I know you served on the Access to Justice Committee. Are you
chair ?
I am Vice Chair of the Access to Justice Commission. Early on some
representatives from the D.C. Bar and the D.C. Bar Foundation, the Consortium
of Legal Service Providers and one other group came to us and asked the Court to
set up an Access to Justice Commission because they were just beginning to
evolve in other parts of the country. With that thought in mind, Chief Judge
Wagner asked Eric Washington and myself to meet with these representatives to
start the ground work for consideration of an Access to Justice Commission. And
we worked with them. We worked with Andy Marks through the D.C. Bar
Foundation; I forget who was the Bar president at the time, but that person;
Jonathan Smith and Patfy Fugere of the Consortium. And we had a number of
sessions together and they presented us with issue papers which we helped to
refine and ultimately we all came to a meeting of the minds that the Access to
Justice Commission should be established. But, I want to stress that that took a
long time, and it took a lot of conversation to get us to that point where we could
go to the rest of our colleagues on this Court, including Chief Judge Wagner and
say, “Yes, we think we’re ready now to surface the idea of an Access to Justice
Commission and what its mission should be-” And we were able to get that
through. Now the tricky part was to make sure that the Access to Justice
Commission was not treading the same ground as the D.C. Courts Standing
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Committee on Fairness of Access. And so we stressed that the Access to Justice
Commission should look outward, should look at collaborative efforts among the
various legal service providers, should look at the possibility of public funding,
should look at the kinds of systemic changes that would be necessary. So through
time and over time we managed to distinguish and to intenelate, to a certain
respect, the work of the Standing Committee on Faimess and Access and the
Access to Justice Commission. So that’s one of the outward-looking activities in
which I have been involved. And it’s a big area because it encompasses a whole
range of things including language access.
[Side B] Judge Reid, you were describing your professional activities and
associations on the Court and, in particular, you were talking about your activities
on ttre Access to Justice Commission and some of its accomplishments and some
of the things you are looking at when you were talking about the language aspect.
Yes, as aprt of the Standing Committee on Access and Fairness to the D.C.
Courts, we have been looking at some of these language issues to make sure that
when litigants came into the Court that they have the proper language for an
understanding of the proceedings. And the District is complicated now because
of the changing demographics. It’s not only spanish that we need to provide
interpretation for, but there are other languages such as Amharic, Vietramese,
Korean, chinese and several of the chinese dialects like cantonese and
Mandarin, even Tigrinya which the Eritrean population speak. Amharic is spoken
by Ethiopians. And the challenge is, not only within the Court, making sure that
the parties have proper interpreters, but it’s also outside the Court because legal
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service providers have difficulty understanding what it is that some of their clients
are saying because they don’t have the skills in the various languages. So, one of
the things that we did in integrating the work of the Standing Committee on
Faimess and Access and the Access to Justice Commission was to say that the
Access to Justice Commission needs to focus on t}re outside world, making sure
that there is language access for persons in the community who need lawyers but
who can’t even say, “I need a lawyer,” in English. It has to be in their own
language. So part of what we’ve done in the language area through the Access to
Justice Commission is to set up this interpreter bank – language interpreter bank.
And one of the things that the bank does is to train interpreters in the language of
the law. In other words, you might have agood interpreter in Vietnamese, but
that person doesn’t know anything about the American judicial system. And so
part of the grant that we were able to get through the appropriation from the
Council is designed to make sure that interpreters know the language of the law,
andthat….
This is the Council on Court Excellence?
No, no, no. The Council of the District of Columbia.
Oh, the D.C. City Council?
Yes, the D.C. Access to Justice Commission approached the Council for public
funding.
I see.
And part of the funding was for interpreters and to establish that interpreter bank.
Another part of the funding was to make sure that we were beginning to have
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attorneysinourLandlord&TenantCourt,andinsomeoftheotherareaswhere
lawyersarenottraditionallySeensothattheclientscouldhavesomegoodhelp
from attorneYs.
Ms. Curry: Sotheseattorneys,andalsotheinterpreterswhoworkedthroughthelanguage
bank are Paid –
Judge Reid: Throughappropriation’Thefirstyearwereceiveda$3.2millionappropriation
from the Council. What haPPened was that money went to the Office of the
AttomeyGeneral,andthenwasfarmedouttotheD.C.BarFoundation.Andthe
D.C.BarFoundationawardedglantstovariouspersonsandentities.Andlthink
it was Ayuda that got the language grant to develop the interpreter bank’ So that’s
oneofthewaystheAccesstoJustioeCommissionwashelpful,wastogetthe
public funding – the $3.2 million – which then translated into grants to some of
the legal service Providers’
Ms. Curry: AndsowouldAyudaberesponsibleforgettingotherthanSpanishspeaking
interPreters?
Judge Reid: Oh,yes.Yes.Therearesixmainlanguagesnowthatarerecogrizedinthe
DistrictofColumbia,thecorelanguagesforwhichpeoplewillneedinterpreters.
And that bank is working on all of those six languages and training people in the
language of the Court in those particular languages’
Arethereanyotherprofessionalactivitiesyou’veparticipatedinthatyou’dliketo
address?
Well,IdecidedearlyonwhenlfirstcalneontheCourtthatthisistheareal
wanted to carve out for myself – Access to Justice and Fairness and Access to the
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Courts – and that’s where I’ve put my energies. And we’ve gone through a wide
range of things.
I believe your good friend, or a person you admire much, is Peter Edelman?
Yes. He’s the Chair of the Access to Justice Commission. Yes, and we’re, again,
in a collaborative mode. I was his General Counsel for the New York State
Division for Youth. And then when we both ended up here in Washington, we
collaborated with the Washington Lawyers’ Committee in establishing the Fair
Empioyment Council. And we used testers to go out to do some testing to try to
help eradicate employment discrimination in the District of Columbia. So Peter
and I have worked together through the years.
Judge Reid, you spoke a few moments ago about at least two judges whose
intellect you much admired. Are there other judges that you admire, ffid-
Well, let me ask the question this way. Name some other judges who you most
admire, and what qualities they have that make them admirable to you.
Judge Mack would be at the top of this list. Judge Mack had a flair for writing
and translating some difFrcult legal issues into understandable prose. In addition,
having come to understand her background and what she had to go through in
order to get to where she ended up as, perhaps, the first African American woman
on a court of appellate jurisdiction. I can honestly say that I admire where she
started and where she ended, and the struggles that she had to overcome to get to
where she ended. So, Judge Mack would be there. And I’ve talked about Chief
Judge Wagner, and I’ve talked about Judge Newman and Judge Steadman. Two
people whom I believe know the criminal law areabetter than anybody else on
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this Court are Judge Terry and Judge Farrell. And they were of enorrnous help to
me when I first came on the Court in understanding the bolts and nuts of criminal
law. I had done some – I call it – criminal work before coming on the Court, but
frankly I had not had any kind of cases dealing with the run of the mill criminal
defense. And now Judge Fisher comes ftom that same kind of background and
he’s been helpful on the Court. So those are some of the names that come out.
The more recent judges, of course, Judge Thompson has a wonderful mind and a
wonderful background, and Judge Blackburne-Rigsby also. And I enjoy working
with them. Now I should probably get out my picture so I can see who else I’m
overlooking,
One judge is Judge Kramer. I believe she came on after you did.
Yes, yes, Judge Kramer. She is delightful to deal with because of her background
on the trial court, and I always like to listen to the way in which she asks her
questions from the bench in a very skeptical way if she thinks that the judge is
really, really off- offthe center.
Are there judges on this Court who are particularly effective in influencing other
judges?
I think Judge Farrell has been a mainstay of the Court, and he always has done his
work in a timely manner, and he keeps abreast of the latest developments. So
people tend to listen to him. People will listen to Judge Newman, people will
listen to Judge Steadman. So those are some of the, what I call, the leading lights
of the Court.
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Which reasons do you think account for their leadership in particular? Just their
intellectual ability?
I think not just intellectual ability, but the background and the demonstrated
ability to get the job done.
Aren’t those all senior judges? Aren’t they all in senior status now?
Yes, they’re all in senior status now.
Weli that presents aproblem now. The judges that you mentioned as the most
effective in influencing others and the ones whom other judges respect the most
are all in senior status on this Court.
Yeah, the historical journey that I’ve made from 1995. Yeah, those are the people
who had deep influence. Now there are others who are budding and who are
beginning to come up. Judge Thompson, I think, is one who in another two or
three years could be one of the greatest influences on the Court. But it takes time
to develop that kind of reputation.
And, of course, you spoke earlier of Chief Judge Washington also.
Yes.
What would you say is your overall view of this Court and your impact on this
Court? Two separate questions.
Give it to me again.
Well first let me just break it down. What is your overall view of this Court and
its impact in administering justice in the City and establishing the rule of law in
the city?
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I think this Court has great influence simply because it is equivalent to a state’s
highest court, and the opinions that have come out of this Court through the years
have influenced the development ofjurisprudence in the District of Columbia.
But I think the Court is respected highly by different corridors of the District and
the nation. One of the things that has surprised me is the influence that this Court
has with respect to access to justice issues, and fairness and access issues. And
we are being touted as one of the leading courts in this particular area. Now tlere
are courts like California and New York that have been at this for a long period of
time. But in terms of the work that’s being generated here in the District of
Columbia, that work has been influential in other parts of the country, and we
often get requests from other jurisdictions to help them in terms of their fledgling
efforts at Access to Justice Commissions. But also, I think, the opinions that have
emanated from this Court have been influential. You’ll see that other
jurisdictions periodically and increasingly quote from opinions in this jurisdiction.
That was my next question.
Yes. So I think we have established ourselves as a good court. And the work of
this Court is very difficult because we don’t have an intermediary court. And we
have mandatory jurisdiction. I know my brother’s court up in New York when he
sat on the New York Court of Appeals always could choose their cases to be
heard. My nephew-in-1aw’s court – the Virginia Supreme Court – also chooses
the cases that it will hear. But, by and large, we don’t have any control.
Generally, parties have the right to appeal, and we hear the appeal.
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At one time there was at least some talk of an intermediary court. Has that just
died completely?
Well Chief Judge Judith Rogers spearheaded that effort, and got it to a certain
point but it just would not fly. And periodically we would dust offthe concept
and put it on the table, and inevitably the conclusion is that Congress is not
entertaining that, so we can’t get it approved.
What do you think your impact has been on this Court?
I think I’ve been a quiet presence on the Court. The opinions that I’ve generated
through the years, I think, have been well received. I think, setting humility aside,
my colieagues respect the work that I have done. So I think I’ve had a place in
the history of this Court. What that place ultimately will be, I don’t know.
What would you think describes your most interesting case, or the case that you
think will have the greatest impact at this point in your career?
Well that’s difficult to say. Probably I would point to the Ltvelyv. Flexible
Packing opinion on the civil side, and I would point to Sykes on ttre criminal side.
One of the things that I’ve tried to focus on are criminal procedures in the
criminal area, and making sure that the defendants have a fair shake. And I’ve
written some opinions that deal with the obligation of the U.S. Attorney to turn
over to the defense Brady material and material requested under Super. Ct. Crim.
Rule 16. And I think the Sykes case, in particular, has had an impact in making
sure that the U.S. Attorney’s Offirce does turn over those materials in a timely
way. And there have been other opinions in different areas of the Court, whether
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attorney discipline, or administrative law, or medical malpractice that I think
someday may be viewed as important decisions.
What kinds of cases are typical? Are they the medical mal or the administrative
law cases?
One of the great things about this Court is that we have a variety of cases. Yes,
we get criminal cases – both the routine and the very complicated criminal cases
from simple assault to sexual abuse to first-degree premeditated murder – and on
the civil side, we get the simple slip-and-fall cases up to the complicated medical
malpractice cases – neurosurgery. And I recall the last opinion in the malpractice
ueathat I wrote concerned a very delicate brain neurosurgery. And some of
those medical malpractice cases have been very, very challenging. So the thing
that I have always liked about this Court and the reason I’ve always said to
people, “I don’t want to go anywhere else,” is that we have had a great variety of
cases, and at least I’ve never been bored. And the challenge has been very strong.
V/ould you describe Sykes as your most difficult case, or is it hard to say what the
most difficult case is, or the most challenging?
It probably was not the most difficult. It probably was one of the most
challengin gthatl’ve ever had simply because it took not only going through the
record and the franscripts and reading the applicable law from Supreme Court
cases to cases out of other jurisdictions – lower court cases out of other
jurisdictions – but it also took sitting back and thinking. Judge Newman often
says that the problem with appellate court judges is that we don’t look out the
window often. And that’s one of the things that I think he’s right about, that you
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have to look out the window and look up and ponder. You can’t just keep
writing. You’ve got to really reflect on what it is that you’re thinking and writing.
And so Sykes in that respect was quite challenging. Some of the med mal cases
have been very complicated and diffrcult to work through. In another areul
remember lhad, aconstitutional takings clause case one year that involved firnds
that were put into the Court registry. And the case lasted a number of years. And
that takings issue became very, very complicated, in part because the money
eventually was sent to the D.C. Treasury due to.the length of the case. So a
number of the cases I’ve had have been extremely challenging. I don’t know
why, but my plate has been filled through the years with some very, very difficult
and complex issues.
Judge Reid, before I stopped to check the tape again I was about to ask you, in the
cases you find that arevery challenging, where you need to look out the window a
lot, are there any particular judges that you speak with before circulating your
draft opinion?
I generally do not speak with judges before circulating the draft opinion. I think
there are probably two exceptions, and I neglected to mention this judge early on.
Judge Glickman is one whose opinion I value a great deal. He and I both went to
the same law school, and he’s got a giant intellect. And I enjoy being on panels
with him and watching him go through the process of thinking through some
issues. And we’ve developed a good working relationship since he’s been on the
Court. And I might go to him and just try to figure out . . . bounce offof him
some of the ideas that I have. I don’t often do that, but if it’s very difficult, I may
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do that. And the other judge I’ve done it with is Judge Newman, particularly in a
case that I had where he wrote the seminal decision and now the case czlme to me
with a challenge to part of Judge Newman’s decision based upon what the
attorney perceived as developments at the Supreme Court level. And so I wanted
to get some conversation in with him before I sat down to actually draft the
opinion. But generally, I’m kind of quiet and I just prefer to do my own thinking
and working through the issues, and then I will surface it and wait to see what the
reaction is.
I asked this question of a federal judge I was interviewing, so I want to ask it even
though I know this court does not handle federal cases. In what way, did any, or
have the events of September I I and the responses to September 1 1 affect your
jurisprudence?
I don’t think it really has except in the sense that if one is looking at criminal
cases that touch in any way upon security issues – and we have few and far
between of those cases – then there is some sensitivity there. But in terms of the
jurisprudence, no, I don’t think it really has impacted the way in which I perceive
these cases.
Well, judges must exercise judgment in the performance of their duties, and by
judgment I mean a balancing of rights when different societal goals are in conflict
in the case. In these situations where policy choices must be made, what do you
look to to help you resolve the conundrum and to exercise good judgment?
I’m not one who really looks at social policy. If the attorneys raise policy issues
that we have to address, then I will address them. But I generally don’t look at
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cases from that point of view. One of the things that I do do in the criminal area,
and probably because of my work in faimess and access, is to take a hard look at
procedures to make sure that the procedures that the defendant has experienced
coming up through the line have been fair procedures. And I think I will stop
there. I started to go into another direction and that is the direction of child abuse
and neglect, particularly when it comes to cases involving sexual abuse where
policies may loom large. I guess I could also talk about the domestic violence
issues where there are some tensions between the rights of the defendant and the
protection of women, or even men, in those domestic violence type situations.
Well it might be appropriate because I wanted to ask you. You alluded to this
earlier but you didn’t address it specifically. And that is, how influential is this
Court on public policy?
I think what most of us attempt to do is to steer a narrow course on public policy.
Policy generally is generated through rules and regulations, or even touched upon
in laws. And our function is to be judicial decision makers, not regulatory
decision makers, or even legislative decision makers. But at times, policy does
come in. I’ll give you an illustration. Several years ago we had to tackle the
doctrine of at-will employment. And the.question came up, if an at-will employee
is fired and the at-will employee is asserting that he or she was fired because of
devotion to certain definitive public policy issues, then what happens? Could we
follow the at-will line of decisions and simply say that if that employee is
terminated, that’s the end of the story. Or, do we look at it and say because this
employee was exercising a public policy right, then perhaps the termination was
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unfair. So we do get to look at policy in certain respects. But “policy qua
policy,” I just try not to get too involved in that. For example, if someone says
you’re deciding an insurance case and the policy ought to be X, if the parties have
not argued that policy then I don’t reach out to get to the policy.
At least at the federal level, there’s been a lot of talk about a trend toward what
some call judicial activism and others call judicial legislation. You don’t see
much of that on this Court, do you?
No, and I think I can understand it at the federal level because the U.S. Court of
Appeals, for example, has to decide a number of regulatory issues where policy
comes into play at the agency level. And sometimes that Court has to grapple
with those policies and may come out on a different side, or one side or the other
of that policy perspective. We sometimes see policy at the administrative level,
but not as much as the federal courts see. Now I hasten to add that if you ask
some of the other judges on this bench about their perspectives on policy, they
may give you a totally different answer.
But none of you are viewed as judicial activists on this bench?
Not to my knowledge, no.
How would you describe your view of what a judge’s role is in society?
When I ha! my judicial hearings, one of the things that I did in response to a
question was indicate my belief in judicial restraint from the Felix Frankfurter
perspective. I don’t believe that my role is to reach out and grab issues that
should be decided. And one of the frustrating parts of this job is to see the issues
that a trial attorney may have missed in the trial court. And you really wish that
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you could reach out and grab that issue and say to the attomey, “This is the issue
on which you should focus.” I mean I’ve seen too many cases lost because the
focus is not proper in the trial court. But because of my belief in judicial restraint
– you just can’t reach out and decide any issue that you really think needs to be
decided – I forego the temptation of getting into that issue. But I may put
something in the opinion which suggests that this was an issue that was
overlooked that should have been treated.
The attorney missed the issue?
The attorney missed the issue. Too many attorneys miss too many issues.
Is there a way that courts can address that? I mean I know you just said you don’t
want to be a judicial activist, but your last statement, ‘otoo many attorneys miss
toomanyissues”….
Sometimes we can remand a case, and remand with instructions to develop X, Y,
andZ as essential to proper decision making in this case. And that happens
occasionally, but not that often. But I think the problem has to be addressed in the
first instance by the law schools. I think the law school development is extremely
important to turning out attomeys who won’t miss those kinds of issues. And I
think the kinds of things that the University of the District of Columbia School of
Law – David A. Clark School of Law – has been doing with clinical education for
so many years, and that Washington &Lee recently came up with in its prograrn.
In its third year.
And Georgetown. Even American University has started some of that, and
Catholic too. This is very important, but once the attorney becomes a member of
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the Bar, then I think there has to be a devotion to continuing legal education. Too
many attorneys don’t participate in voluntary continuing legal education, they do
only what is required to maintain their Bar credentials. But the law is a
continuing learning process, and to understand the new issues that may evolve
and that could be raised in the trial court, you’ve got to do the study. You’ve got
to do the courses. So I think that if we can mold attorneys, the continuing legal
education type attorneys, then attomeys are going to miss fewer issues in the trial
court and justice will be better served by the proper preparation of those attorneys.
I want to retum to that when I talk later about the qualities of a good lawyer, but
let me continue right now with your role as a judge. Has your judicial philosophy
evolved over the years since you’ve been on this bench?
I don’t think I have a judicial philosophy, qua judicial philosophy. I take each
case that comes to me, and it’s like I’m reading a new story. And I take that case
as it comes to me, and I don’t think I have any overarching judicial philosophy or
judiciat ideology that guides my cases. Now somebody looking with hindsight
twenty years down the road mrght say, “Well, no, that’s not true. She did have a
judicial philosophy.” But at least I’m not aware of any particular judicial
philosophy.
Well, if you do not think that, then I won’t ask my next question. And I think
what we will do is conclude for today and we will pick up next week talking a bit
about the qualities of a good judge and the qualities of a good lawyer. Because
your last comments, in particular, about what needs to happen in law schools and
with CLE, we want to pursue that for a minute. And I believe I said next week,
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actually, Judge Reid, it will probably be in the next year now because the
Christmas holidays are coming up.
I was wondering about that when you said next week.
I am leaving with you today, Judge Reid, the transcript of the fifth interview
which Mr. Pollak gave me permission to give to you. At your leisure, please
review this, make any corrections, and you can either send it back to Stephen
Pollak.
Okay.
Or give it directly to me and I witl give it to them.
Alright. Very good.
Thank you so much, and happy holidays to you and your family.
Thank you. And you travel safely.
Thank you.