39
ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
SECOND INTERVIEW
NOVEMBER 10, 2014
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is Judge Michael W. Farrell. The
interviewer is Lory Barsdate Easton. The interview is taking place at the District of Columbia
Court of Appeals on November 10, 2014. This is the second interview.
Mrs. Easton: Yes, we’re [back to the University of Notre Dame].
Judge Farrell: What inspired me at Notre Dame were a couple of teachers in the
English department who taught me, really for the first time in my life,
to read novels, to read fiction, to read literature. So, I majored in
English, and at the end of four years I graduated with a degree in
English. I was magna cum laude because I was dutiful, I studied, did
all my work, I wasn’t a rebel, and, as I say, I don’t think the courses
were so demanding, and I succeeded in doing fairly well. But at the
end of four years I was about as immature as I was when I started
college. I had no idea what I wanted to do. These professors, who
evidently thought they saw something in me as an ability to write and
to read literature and to interpret literature and to be a literary scholar,
urged me to go on to graduate school and try to get a Ph.D. in English.
You probably don’t remember because it was, I think it was before
your time, a little bit, but at the end of the Fifties, beginning of the
Sixties, everybody who had any—not everybody but many, many
people who had any kind of intellectual pretentions went to graduate
school with the anticipation that they would get a master’s and a
doctorate and teach in college. The government was throwing money
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at people to do graduate work. There were grants all over the place,
particularly after the Russians launched Sputnik and our country
decided we gotta get a little more intellect, and so the government was
making money available. Foundations had tons of money for graduate
studies. Law schools didn’t enter my mind because the teachers that
influenced me so much considered law school to be selling yourself out
to the world of commercialism and business. So, to make this part of
the story short, I packed up and, after a year in the Army—I’ll tell you
just a little bit about that—but after a year in the Army as a reserve
officer, I went off to the University of Chicago with a Woodrow
Wilson Fellowship to study English and to begin the process of getting
a Ph.D. in English, even though I really didn’t think I wanted to do that.
I really didn’t think I had the ability at that point at the ripe old twentytwo to do serious literary criticism and make something of myself in
that way. But first let me, before I get to that and the thereafter, yes,
indeed I was in the Army Reserve while in college. I graduated with a
commission of second lieutenant. There was no war going on then, so
we all had our choice of what branch of the military, of the Army, we
wanted to go to. I was an Army officer, and I said, well, I want to go
into the Signal Corps because Fort Monmouth, New Jersey, was the
headquarters of the Signal Corps and it was fifty miles from my home.
I had nothing in the world that qualified me for the Signal Corps, which
was electronics, radio technology. I didn’t know AC from DC. But it
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looked like a good place to spend six months, which is all I had to
serve, followed by several years of reserve. So I spent six months at
Fort Monmouth, after minimal basic training, and I was the head,
basically, of the Signal Corps Museum for six months, which consisted
largely of babysitting for stuffed pigeons. You remember during the
Second World War, carrier pigeons were very important, they
transmitted messages. After they died they would send them to
taxidermists, stuff them, put them in the Signal Corps Museum, and my
job was basically to dust them off occasionally and do things like that.
I’m exaggerating only slightly. So, a rather boring six months. Nice
little job as a second lieutenant. Very, very fortunate, pure luck,
because the Korean War was long over, the Vietnam War had not
begun. I was a reserve officer, owed the government only six months
active duty. My classmates, when I graduated from Notre Dame in
1960, a number of them, similarly in ROTC, signed up for regular
Army, they had three-year tours of duty that took them up to 1963-64.
Their duties were extended, they ended up in Vietnam, and at least two
of them got killed. So you know it was just pure accident that I wasn’t
one of them. But I had no desire to be a regular Army officer. So that
was that.
I finished that up in ‘61, started at the University of Chicago because it
was paid for by a fellowship, and I found out in the course of the year
that I really didn’t like it. As I said, I was beginning what I will call
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seven or eight or nine years of “drift.” I was pretty immature. I didn’t
really enjoy reading literature at that time. I really didn’t think I was
very good at reading poetry and interpreting poetry and things like
that. And, while I did okay in my classes at Chicago, I really didn’t
think that I wanted to be there very much, so I only lasted a year and I
terminated the program, I didn’t continue. I liked Chicago. It was a
very nice city. The campus is very nice. The professors I had were
wonderful, including one professor who wrote a book you may
remember about trout fishing in Montana—Norman Maclean, A River
Runs Through It, Robert Redford made a movie. Wonderful man,
Maclean, I can still remember his face, taught a fine course in
American Literature. But at the end of March or April or May, I said
to myself, I don’t know what I’m doing here. I really don’t know
whether this is what I want. Because a Ph.D. meant two more years of
classes and a thesis and so forth. So I came back home and my mother
and father said, well what the hell are you gonna do with your life now
at the age of twenty-two or twenty-three? I said, “You know, Dad,
what I think I’m going to do is to go off to Europe and learn a foreign
language,” and he said, “Well, you know you got your B.A. in English,
you don’t want to teach?” I said, I don’t see myself doing that for the
rest of my career. And so I went to Germany, because, through
college, I had had a certain amount of exposure to philosophy, as you
would at a Catholic college, and I developed a kind of an interest in
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particularly some German philosophers like Immanuel Kant, Hegel,
people like that. So I said why not go to Germany, spend a little time
learning the German language and reading these people—but still not
having any idea what I wanted to do with my life. I had saved some
money, from working summers and so forth, and it was very cheap
then in Europe as a student living in the hostels and things. So in 1961
or 1962 I went over to Germany. I got myself a job teaching English
at the Berlitz School of Languages in Frankfurt. Eventually I went up
to Hamburg, then down to the University of Mainz and took courses. I
attended interpreter school, learning German, and then took college
courses. ’Stayed there for about two years just learning the German
language. Enjoying it. No responsibilities at all. The kind of thing a
young person now couldn’t possibly do, having $100,000-200,000 of
student loans. Nobody had that kind of debt back then. We were so
lucky and we didn’t realize it. And it was so cheap to live, particularly
in European countries, because the dollar was king, and so I just
basically wondered around Germany for a year and half or two.
’Worked partly teaching, going to school, making a lot of friends,
having a lot of fun, and then finally my father called one day and said
isn’t it time to come back and get serious? And so I said okay, I’ll
come back and get serious. About ‘63 or ’64, after Kennedy died,
came back and said well what the hell am I going to do? I have to
have some kind of job. So I took a job teaching German at a high
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school in New Jersey. Private school, Saint Peter’s Preparatory School
in Jersey City. ’Taught German there. Liked it. Decided I liked it
enough to go over to Columbia University, enroll in a course in a
master’s degree program for teaching of German. ’Picked up that
masters in a year and a half, that wasn’t very hard. I enjoyed
Columbia. And then I enrolled at NYU, New York University, in their
Ph.D. program in German. Still deep down inside maybe not certain
this is what I wanted to do, but I had developed a certain fluency in
German. I liked German literature. I loved to dabble in German
philosophy and things like that as a hobby and read that kind of stuff.
So I enrolled and spent two, three years continuing my teaching in the
high school up there in Jersey City and doing night classes at NYU.
And in about ‘67 or ‘68—you see I’m rushing you through the Sixties
because nothing really happened of interest—I went over, I finished
my comprehensives for the doctorate at NYU in ‘67 or ’68. I picked
up another fellowship—remember I told you these fellowships were
there for the taking—went over to Europe to write my dissertation,
and, like so many young people in that era, never finished my
dissertation. One reason was that I discovered that the subject I was
going to write my dissertation in, I didn’t know anything about. It was
nominally about a wonderful Swiss novelist by the name of Max
Frisch, F-r-i-s-c-h. But the topic I had chosen with the advice of a few
teachers at NYU had to do with Max Frisch and depth psychology and
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how it influenced his novels, his frame of mind. He was a neurotic as
a novelist, and I discovered quickly I didn’t know a damn thing about
depth psychology and—
Mrs. Easton: Now this is depth—
Judge Farrell: D-e-p-t-h, depth psychology, psychology of the mind and of the
unconscious, not you know rats running around a maze, not
experimental psychology, but clinical psychology. I didn’t really
know much about it. I think the topic was a little bit over my head that
I chose for myself. But I worked away and plugged away at it for year
and a half. Came back in ‘69 and discovered the job that I thought I
had teaching at NYU as an instructor, provided I finish up my
scholarship, was gone. I was teaching as a graduate assistant at NYU
in a wonderful little campus they had up in the Bronx, called
University Heights campus. You clerked in New York, but you’re not
a New Yorker, or are you?
Mrs. Easton: I’m not.
Judge Farrell: No. They had a wonderful campus up there. But this was the late
Sixties, we’re in the thick of the Vietnam War. Modern languages fell
off the table in terms of interest, nobody was signing up for them
among the undergraduates. Undergraduates wanted to discuss politics.
And so the enrollments were way down. NYU was in a financial crisis
at the time, for a lot of reasons, and they sold their campus up there to
the City College of New York. It’s now the City University of New
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York. They consolidated their humanities departments down to
Washington Square where their headquarters was and abolished my
department where I was supposed to have a job. So I came back, had
no job, had my dissertation about half done, didn’t know what to do,
didn’t like the subject of my dissertation—I think I had gotten through
about two of Frisch’s novels and had about three more to go through
and I wasn’t sure whether I even understood what I was writing, but I
was doing it because I wanted to finish up the damn thing if I could.
In the back of mind I was saying to myself, do I have a future here
when enrollment in languages is way down? I’m not going to be the
most gifted scholar in German literature on the earth. I’m not going to
get probably hired by Harvard and the others who will survive in this
area. And I was not alone; there were a lot of people at that time on
the Ph.D. career teaching path in college who were having serious
second thoughts in the humanities because the jobs just weren’t there.
In a way the bottom fell out of the humanities in the end of the Sixties,
probably because of the war. And the best and the brightest, strange to
say, started thinking law school. So by the early Seventies, the focus
had really shifted heavily toward—for humanities specialist
graduates—toward law school because you had a career there, and so
many of the Ph.D.s in the languages and so forth ended up managing
McDonald’s restaurants and things because the jobs weren’t there in
languages.
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Well, anyway, not to dwell too long on this, I was confronted with what
do I do next when that job wasn’t there. I had happened to meet a
woman in France, French woman, little bit older than myself but we
had just met casually, she was from the Washington, DC area. She was
over there chaperoning a group of American students on some kind of
thing and I ran into them when I was in Paris, just wandering around to
make a visit, my first visit to Paris. We talked and we got—I couldn’t
say we really got to know one another, but we exchanged addresses and
so forth. When I came back, I had some communication with her from
New York, as I was trying to figure out what to do next, and she said,
you know there’s a job opening down at the place where I teach now.
She had just finished her first year teaching at a prep school out in
Rockville called Georgetown Preparatory School, not connected with
the university, but same religious order, the Jesuits. She had previously
been the president of the school in Falls Church called Congressional
Schools of Virginia, a private school. So she said, you know, why
don’t you apply, you got nothing else to do. You’re not really wedded
to New York. You’re not even sure you want to stay in German as a
career. You can come down here, teach for a couple of years, and
decide what the hell you want to do. And now it gets fun, because I did
that. I disappointed my folks up at NYU, they thought I should just
kind of hang around up there, get the dissertation done come hell or
high water, and then get a college job. I wasn’t confident I could get a
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college job anywhere I wanted to be. The jobs weren’t there. So I
packed up and came down to Washington in ‘69. Have I brushed
through the Sixties too fast? Those ten years?
Mrs. Easton: It’s a pretty rapid tour for a pretty long and exciting decade.
Judge Farrell: Yeah, I just basically was teaching high school and doing graduate
school and it was costing me almost nothing. Impossible now, I was
spoiled in that way. I have no doubt that if I was really struggling
financially, I would have been more productive, maybe accomplished
more. As it turns out I think I accomplished a lot from the standpoint of
my life because during those ten years, what I call my “wander years,”
you know my Wanderjahre—like Wilhelm Meister, his Wanderjahre
[referring to Johann Wolfgang von Goethe’s novel Wilhelm Meister’s
Journeyman Years]—I got exposed to an enormous amount of stuff that
you could only get exposed to if you were a young man of leisure, if
there weren’t pressures on you. I was able to read widely in German
literature and in German philosophy and I fell in love with Nietzsche
and Freud and Marx and Wagner and Darwin and all the things I had
never really been exposed to at the University of Notre Dame where
they didn’t want you reading stuff like that. (Laughs.) But anyway, it
was a wonderful kind of escape from an upbringing that was fairly
restrictive.
Mrs. Easton: But you ended up teaching at a Jesuit school. (Both laugh.)
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Judge Farrell: I had to, because it was there. And it was very difficult for me in a way
because I, you know, I wasn’t religious by that time. They were very
good to me. I came down there, they thought that I kind of qualified
because I had taught at a Jesuit school—high school in Jersey City. So
they didn’t have any worry about me polluting the minds of the
children with secular ideas, I was just there to teach German. Anyway,
the interesting thing is that–[Brief interruption as someone enters the
room.] Hi Frank!
Frank: I put a legal journal on your desk. You need to take a look at it.
Judge Farrell: Very good! Thank you. I came down, I taught for a year, guess who
my boss was at Georgetown Preparatory School. She was now the
chairman of the modern languages department, this woman I had
known from Europe! Within a year and a half we were married. She
had been divorced for a number of years. We just got along very, very
well. She was somewhat older than I, but I didn’t care, I was in my
mid-Thirties and the interesting thing is that as the chairman of the
department she was the one who came around to monitor my classes as
I was teaching these young men German, it was a boys’ school. And
she said to me fairly quickly after about six months, she said you’re a
lousy teacher. You think you should be teaching college. You’re not
teaching college, you’re teaching high school, she said. And I also
was teaching English at the time, literature, because they needed
somebody there, and she said you are teaching the best students. She
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was very perceptive. “I see, you know, I come in and watch; you’re
teaching the best students, unconsciously—you’re putting the
questions, then you’re engaging in dialog. They don’t really need
you.” It was an exaggeration, but it’s the kids who aren’t that gifted
who need you and you’re not really happy being with them. “Michael,
why don’t you really think about something else?” And I thought
about that a good deal. I stayed another year or two there. Eventually
no more German, I became chairman of the English department
because there was need for that. And meanwhile though, at her
suggestion, I started looking around for law school. Because I started
thinking, wait a minute, English didn’t go anywhere, German really
didn’t go anywhere, Ph.D.—you didn’t have a career there ahead of
you. You’re a reasonably smart guy. You’re married now, or you’re
engaged, you’re going to be married. You’re probably not going to
have kids, because she had already [pretty much raised hers], and I
was thirty-five, I wasn’t really looking to raise kiddies. I said, but
nonetheless, you’ve got to help support a wife, you’ve got to have a
family, you’ve got to do something to finally make your father
satisfied that you’re doing something with yourself. So I looked
around for law schools. And I said, why not American University,
because American University was ten blocks from where I lived, and it
didn’t matter where I went at that point. Harvard wasn’t going to let
me in at thirty-five. Yale wasn’t going to let me in at thirty-five. It
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was going to be night school anyway because at that point I had to
support myself and I had this nice job as chairman of the English
department, it paid okay, and so I said, why not go to American
University Law School at night. And I did. I enrolled there in 1970
and succeeded over the next three and a half years, nights and
summers, in getting my law degree—in all honesty, without having, at
the time, fallen in love with the law. I was schizophrenic, you know:
You spend your whole day teaching literature, fiction and things like
that, and poetry, and at the same time studying contracts. It was a little
bit hard to know what your loyalties and interests were. Nonetheless,
and I don’t mean to be self-deprecating, but American University
wasn’t at that time the shining-est star in the firmament academically.
You could do reasonably well there as a night student by being a little
bit of a grinder, doing your work, reading your cases. And I managed
to do okay. I don’t think I was in the top of my class but I succeeded.
The courses weren’t, as I remember, hugely demanding, but they were
okay. Within five or six years, American University became much
more selective, like many law schools. Why? Because the
competition was greater. More and more kids were going into law
school, and now I think it’s a damn good law school, but at the time it
wasn’t so great, particularly the night school. So I did that for three
years while I finished up my little tour of being an
administrator/teacher at a pretty good private high school, with my
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wife nagging me all the way to stick with law school. You didn’t stick
with your English, she said, you didn’t stick with your German, you’re
going to stick with this and you’re going to get a law degree and then
we’re gonna— you’re going to practice law or do something. And I
owe it all to her. Because she really was—I think she wakened my
mind and my eyes to the idea that I was kind of a frustrated college
teacher who wasn’t going to teach college because he never got the
doctorate, so law may be the kind of the thing to do. And that kind of
then ends my academic career and begins my professional career.
Before we go forward, you may want to fill in gaps; if you do—
Mrs. Easton: Well I want to go back to a couple of things. But, I’m particularly
interested actually in your going to night school, which at that time, I
mean how big was your class? How many students?
Judge Farrell: You know, there may be forty or fifty in each class, thirty, forty or
fifty. It was mostly adjunct professors, a few of the regular faculty.
They had some good people. But American U. was really at the
beginning of a transition. Half a dozen of my teachers had been there
from the beginning of American University Law School, going back
into the Fifties or earlier, and were at the end of their careers. There
wasn’t a lot of scholarship or publications, it was kind of a third tier
law school, I think. But there were some gifted people in my classes,
very hard working because they were night students. A few people
who ended up becoming judges: Reggie Walton, of the United States
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District Court here. Irma Raker, who became a judge on the Maryland
Court of Appeals. They were all in my class, struggling night students
like myself, and we had fun, but you really only had so much time in
the day to devote to your law studies.
Mrs. Easton: Well this is a pretty exciting era. You’re in law school in a time when
there are really significant developments in the law, in civil rights and
you’re at American right here in D.C., so—being a night student and
having a day job, did you have time to even think about those things?
Judge Farrell: No, no, and when I kind of began, we were at the end of the Warren
Court era. There was the excitement of criminal law and so forth, that
kind of intrigued me. But I think there later on became more
excitement associated with American University because the
succession of deans then became very much interested in international
law and the way Washington related to international law and so forth.
But, at my time, I can’t sincerely say that being a student at American
U. engaged me more with the political life of Washington than if I had
been at UVA or anywhere else. It was essentially just a—almost a
chore to get the degree and to move on and do something different. As
it turned out, being in Washington was very much a help to me
because the wife of a judge in Montgomery County was secretary to
the president of the high school, so, you know, this is where
connections help. I was fortunate enough by that time, probably
thirty-six years old, to get a clerkship the next year for this judge who
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was a trial judge in Montgomery County, and who immediately got
moved up to the Court of Special Appeals, their [Maryland’s]
intermediate court of appeals. And that’s how my law career began.
But you still want to fill in my “wander years” in my twenties [and
Thirties]. But AU was—I don’t think there was a lot for me, a lot of
excitement associated with it. Maybe for the day students more, that
had more time. I was just so filled with responsibilities of teaching
and administering and also being a student that I was basically—you
did what you had to do and you hoped you passed your courses.
Mrs. Easton: So, you mentioned criminal law kind of caught your attention in law
school. Do you remember anything about your professor, or what was
it that—
Judge Farrell: No, I think it was largely because we were kind of studying cases— I
took a couple of criminal procedure, criminal law—I think we were
studying these cases, almost as they came out because of the Warren
Court. A number of the Warren Court decisions had been in the
mid-Sixties and earlier, but they were still very fresh and this was a
kind of a little revolution in criminal law. So, people found it very
interesting and your classes would be kind of sitting around and
waiting, when’s the next case going to come down, to make that kind
of excitement. And I remember going up to a few oral arguments in
the Supreme Court at the time, when I could squeeze out the time, and
watching Justice Douglas and others, great men, and even Hugo Black,
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I think I remember was still there. I remember being excited by the
whole thing but that was basically it. Other areas of the law really
didn’t attract me that much at the time; it was just a matter of studying
what you needed to study to get out. The question, of course, in my
mind at the time, all the time, is, “What’s the next step? Am I going to
go into practice, be a trial lawyer, that kind of thing, or what else is
there?” The advantage of being in Washington is that you had options,
and one of them came along for me. While I was clerking in Maryland
for—I loved the clerkship in Maryland for a year, it was just the most
wonderful fit because I discovered that, after all, I did know how to
write. It’s just that it wasn’t writing dissertations on literary
interpretation, it was writing judicial opinions. My judge, who was a
trial judge at heart, he had filled a position on—Governor Marvin
Mandel of Maryland appointed him to the intermediate court of
appeals because John Moore, my boss, the judge, was a big democratic
politician in Montgomery County. [INTERVIEWER’S NOTE: Per
the Maryland State Archives, available at
http://msa.maryland.gov/megafile/msa/speccol/sc3500/sc3520/002900/
002973/html/2973bio.html, John P. Moore was in the Montgomery
County House of Delegates (1962-1966) and then served as a judge on
the Montgomery County Circuit Court from 1966 to 1973 and then on
the Court of Special Appeals from 1973 to his death in 1982.] Marvin
Mandel was going to move a Democrat from Montgomery County,
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and he did up there. I don’t think my judge was ever terribly happy in
his six or seven or eight years on the appellate bench before he died,
because he had spent so many years as a trial lawyer and a trial judge,
and he found appellate work kind of dull, I think. The result was for
me, he would trust me with an enormous amount [of writing], not like
Judge Winter [for whom the interviewer clerked] who had a scholarly
background and who probably had his own writing style. Judge
Moore basically trusted me a lot as a mature young man who he
recognized could put ideas together fairly well, could read legal briefs,
and give him a pretty good sense of how cases should be decided. So
he’d say, “Mike, go ahead and draft the opinion.” I did that all year. I
had another clerk, too. And there was a certain luxury associated with
it, because if you got it wrong, as I did on a couple of the cases, you
had a higher court in the state to reverse you to pick up your mistakes.
You know, not like here in the Washington, there’s only one. (Both
laugh.) But anyway, that’s how I transitioned slowly into professional
law from law school, because I had the luck of that connection with
the judge through his wife. And then, as I started to say, the advantage
of being in Washington came next because an old college friend of my
boss’s, the judge’s, was a senior attorney at the Department of Justice,
in—guess what—the Criminal Division. And I got in touch with him,
had dinner with him, and he said, “Mike, you know, from the judge, it
sounds like you’re a pretty good writer, you like appellate work,
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you’re thirty-five or thirty-six years old, you’d probably make a
crummy trial lawyer, partly because you’re so used to being able to go
home at four o’clock in the day as a school teacher!” (laughs) where
for a trial lawyer, everything begins after five o’clock and so forth. So
at that time, I was trying to decide what to do. I had an offer from a
couple law firms in Montgomery County to get into their trial practice,
personal injury and stuff, didn’t really excite me, and so I took this job
at the Department of Justice because it seemed to be a good fit. After
a year of writing opinions, I had become confident in my ability to
write pretty well. And it’s the sense of the judge—you’re advocating a
position, or you think it’s the right one. And, that led then to my next
career, part of my career, at the Department of Justice. But we do
want to finish up back filling on before that—anything?
Mrs. Easton: I wanted to find out—so this old college friend, now it was Judge John
Moore—
Judge Farrell: John Moore from Montgomery. M-o-o-r-e, yeah.
Mrs. Easton: Who was his college friend, who was at DOJ, do you remember?
Judge Farrell: He was at DOJ, his name was Phil Monahan, M-o-n-a-h-a-n, a veteran
Department of Justice attorney who was in the Appellate Section,
Criminal Division.
Mrs. Easton: He was in the Appellate Section?
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Judge Farrell: Appellate Section of the Criminal Division, yes, that’s why it was such
a natural fit. That’s why Phil Monahan said to me, “Mike, you’ll be
able to go home at four o’clock.”
Mrs. Easton: That predictability of the appellate calendar.
Judge Farrell: He was not telling me the truth; actually, I burned a lot of midnight oil
there. But nonetheless, you know, you didn’t have to worry about
clients, you didn’t have to worry about witnesses, whether they were
going to show up. It was paper record stuff.
Mrs. Easton: So, what was your first job there in the—
Judge Farrell: So, there I was an assistant in the—I forget what my title was, but just
an assistant in the Criminal Division of the Appellate Section of the
Department of Justice, one of the staff of twenty or twenty-five
lawyers, who did basically two things. And it was really very, very
interesting. In a way it was the most interesting stuff I found myself
doing for the first time in my life—at thirty-five years old! It was a
combination of what to some people would seem dull, much of it was
writing oppositions to petitions for certiorari in the Supreme Court.
Can you imagine? Telling the Supreme Court why they should not take
a case. And of course, since they don’t take many anyway, it probably
didn’t matter whether you wrote an opposition. But the government
wrote an opposition in every criminal case in which somebody
petitioned for certiorari. Later on, they got wise and said we’re not
going to respond to certiorari petitions unless (a) we think we have to,
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or (b) the Court orders us to, and that’s the way it’s been ever since.
That was one part of my job. More interesting was when the Supreme
Court granted certiorari. Then we would write what they call the merits
brief for the Supreme Court—for the government in the Supreme Court
cases. And that consisted of two areas. Your admiration for me is
going to soar when I tell you this. One of them is criminal cases, and I
wrote over, over five years, from ‘74-‘78, four years, I wrote maybe a
dozen drafts of briefs in criminal cases in the Supreme Court—I’ll tell
you more about that in a minute—in criminal cases. The other part:
Somewhere along the way, somebody decided I should work on Indian
cases, and so I acquired a little, mini-mini-mini expertise in issues of
law affecting the Indian tribes. Because, in some way I never figured
out, the Criminal Division Appellate Section had responsibility for
those cases, even though the Civil Rights Division should have and
probably did in other years. So, I was doing these kinds of cases, and I
wrote a couple of Supreme Court briefs in Indian cases too, although to
this day I don’t really think I knew very much about the subject. The
interesting thing about these merits briefs is that—this is the way the
Department of Justice is already [still] operating, or it always operated.
What they call the operating division — civil, criminal, environmental
is the lands divisions, and things like that—they write the first draft of
the briefs for the Supreme Court, when the Supreme Court has a case.
Then you send that draft up to the Solicitor General’s office. And what
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we used to say, only half-jokingly, was the assistant solicitor general
would then proceed to throw your draft in the trash can and start all
over. (Both laugh.) Right? Because this was our cynical view of it, if
you wanted to really be a hot shot in the Solicitor General’s office and
impress your bosses, you had to show them that you were more original
and more gifted than anybody else, and the only way you did that was
by starting all over again. Something of an exaggeration because by
the time I finished there, I think a few of my briefs were good enough
that they went through sort of unscathed. But not many of them. There
were a lot of egos in the Solicitor General’s office at that time. One of
them was Judge Frank Easterbrook, now on the Seventh Circuit. And
Frank knew that he was smarter than most people, and so he would give
your drafts a look, but he wouldn’t feel bound by them. And there
were other people, too. But it was a fun experience. The other part, the
most interesting part about my job there was, we also did appeals, we
wrote briefs and argued cases for what they used to call the “Strike
Forces” which were kind of elite groups set up within the Department
of Justice to prosecute organized crime around the country. How did
they relate to U.S. Attorney’s Offices? In many areas, they took over
the organized crime cases from U.S. Attorney’s Offices, prosecuted
them from Washington, and then we did the appeals. In other offices,
like in New York—the Southern District, the Eastern District—they
really weren’t welcomed very much because the prosecutors up there,
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you may know from experience, thought that they were the cat’s meow.
They thought they were pretty smart. They knew what organized crime
was. They knew how to prosecute it. They didn’t need, you know,
these little pointy-headed intellectuals from Washington to come up
there and take the cases. The result is I didn’t get much to do in New
York, but I got a lot to do in districts all over the country for four years
in the way of briefing appeals for the government in criminal Strike
Force cases, and going out and arguing them, and it was a lot of fun. I
mean, it taught me an enormous amount about legal writing, appellate
writing, in a fairly short four-year period of time because we were
busy. We did a lot of these things. And it was just the excitement of
appearing in all the circuits, or most of them, and being beaten up by
the succession of panels of judges, many of whom would ask you, the
only thing on their mind was—California for example, the Ninth
Circuit—what are you doing here? Why is the government wasting
money sending a Washington lawyer out here to argue this case? Can’t
a U.S. attorney from San Francisco argue this? And you’d have to say,
“Your Honor, we’re from the Department, we do the Strike Force
appeals.” They couldn’t have cared less if we did, you know.
Mrs. Easton: How interesting that they were protecting their local prosecutors’
appellate experience. (Both laughing.)
Judge Farrell: So, that was the four years there. It was interesting stuff I think. I got
to know some wonderful people whom I really revered as lawyers.
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One fellow’s name was Andrew Frey from the—oh you’ve had contact
with him one way or another?
Mrs. Easton: Oh yes, definitely.
Judge Farrell: Yeah, Andy Frey was the chief deputy responsible for criminal cases, a
marvelous legal mind, who I think more than anybody else, shaped
significant parts of the criminal law during the Seventies into the
Eighties because there was a lot of it. [INTERVIEWER’S NOTE: Per
his bio on the website of law firm Mayer Brown, available at
https://www.mayerbrown.com/people/Andrew-L-Frey/
Andrew L. Frey served as Deputy Solicitor General in the U.S.
Department of Justice from 1973 to 1986.] The Supreme Court was
doing a lot of law-making in areas, like double jeopardy law—you
know, there aren’t many criminal law issues around anymore, like the
olden days. There were then; Frey had an enormous amount of
influence on the way the federal government’s position was developed
in these cases, and I kind of revered him, because he was up there on
the fifth floor, in the SG’s office, and I was down here in the Criminal
Division, but we had contact through time. He read some of my briefs.
And I just thought he was—I would go up and watch him argue cases,
and he was just a wonderful example of fine appellate advocacy. But
not only he, there were other great people in the department at that
time. Ed Levi [Edward H. Levi, U.S. Attorney General 1975-1977]
was the attorney general when I began, from Chicago. I actually got to
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know him mildly at a social event once and touched this guy who I
thought was really an impressive professor type. There were other
wonderful people, Dan Friedman [Daniel M. Friedman] in the solicitor
general’s office, and Ken Geller [Kenneth Steven Geller], and people
like this I got to know somewhat. So, I kind of enjoyed the experience.
I missed one of the great luminaries in the Department of Justice
because she had retired by that time or moved on, [namely] Beatrice
Rosenberg. Bea Rosenberg, who was legendary up there, had headed
the Criminal Division Appellate Section but left shortly before I began.
But I met interesting people, and they valued my work. I became a
kind of a supervisor deputy in my last two years, reviewing other briefs
and so forth. And then, the question became what to do next. ’Always
does, you know? Andy Frey called me up one day, it’s an amazing
coincidence, and said, “Come on up and talk with me.” He was
simultaneously doing the same thing with a woman who was the head
of the Lands Division, Lands and—I forget what they call it,
Environmental, whatever. Her name was Kathryn Oberly.
Mrs. Easton: Oh, yes.
Judge Farrell: Who happened to succeed me on this court a few years ago. Andy
called us both up there, we didn’t even know one another at the time,
and he said, “I’d like you both to come up to the SG’s office.” He had
had some departures, and I said give me time to think about it. Number
one, I knew what a dreadful grind that is. It’s exhilarating to work
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there, but it’s around-the-clock work in the SG’s office. I was thirtyeight years old, thirty-nine years old. I wasn’t sure I wanted to. He
said, “You can do it. You won’t kill yourself.” I said, “I’m not so
sure.” About two weeks later, I got a call from a gentleman by the
name of Earl Silbert, who was the United States Attorney for the
District of Columbia [1974-1979], who said, “Mike, I want you to
come over here and be deputy chief of the appellate section in the U.S.
Attorney’s Office because the head of it, John Terry”—a judge on our
court, and this is all incestuous, you know (laughter)— “John is losing
interest in arguing cases, in the big cases in court, and besides that he
has ambitions to get on the D.C. Court of Appeals. How about coming
over and being deputy for a couple years and then taking over our
appellate section and arguing our main cases.” I agonized with it, I
agonized with it. My wife, it was very simple to her: Which of the
choices is going to get you home at seven o’clock at night for dinner.
The more important thing—I made a rational decision, I think, at the
time. I said to myself, “I want to be a judge.” By this time, I was
convinced I wanted to be a judge. I had clerked for a judge and loved
it; I had done appellate work, nothing but; I hadn’t the slightest
qualification to do trial work; and I knew that going to work in the
Solicitor General’s office did, does nothing for you in terms of a
judgeship down the road because the only people that, at that time, and
I think since, who have ever gotten judgeships from that court, were put
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on what is now the Federal Circuit—the business court, the patent
court. It used to be the Court of Customs and Patent Appeals. Dan
Friedman, Oscar Davis— these are great DOJ legendary names—and
finally my friend William Bryson, Bill Bryson, who is on the Federal
Circuit now, just took senior status I think. These are the only jobs
they could get because they had no constituency, they had no senator,
no rabbi, as a SG pointy-headed intellectual. So I told Andy, “I’m
sorry.” He said, “You’re making a big mistake.” I said, “Yeah, easy
for you to say.” (Laughs.) So, in 1978 or 1979, around then, I left after
four years, four and a half years of DOJ and came over here to the U.S.
Attorney’s Office. Before we move on from there, anything you’re
missing?
Mrs. Easton: Well I want to be respectful of your time, because we are at forty-nine
minutes.
Judge Farrell: I want to be respectful of your time, you’re not, you have—
Mrs. Easton: This has been a wonderful session, and I think what makes sense is, if
you know, because we surpassed your forty-five minute stretch, we can
pause here and resume in a couple of weeks after I’ve had a chance to
go through and see if there are gaps?
Judge Farrell: That might be good, because we’ve covered about fifteen years, and
when we come back, you might have some questions and things to fill
in.
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Mrs. Easton: That sounds great, why don’t I get this transcribed, and if we can
calendar a date in December to get together and go through and finish
up all of the pre-law and go into more depth—
Judge Farrell: That would be wonderful.
Mrs. Easton: –in the DOJ transition and first jobs, because I think it’s a very
interesting thing to start a legal career at a point when you’re mature
enough to really be able to make decisions.
Judge Farrell: Well, it is true. When I look back, if I had gone to law school in 1961
or 1962 when I got out of college, I would have had no idea why I was
there. Because I would have had no sense of what the law is. I had no
passion for it. I had no real interest in it. As I told you, people
regarded law back then as somewhat grubby—at least the professors
did. And so in a way, from the standpoint of a career, it is much better
that I moved into that, or got moved into that, career path fifteen years
later. The other side of it is, it kind of makes you seem like you’ve lost
fifteen years of your life by wandering around in academia and
achieving not a hell of a lot there. But, I’ll tell you, the older I get, the
more I realize that years are not wasted. I mean, I have talked more
about this. I have an ongoing passion that I’ve always had for things
like German literature and literature of other languages, Italian, and
things like this, and a passionate interest in philosophy an avocation, as
a hobby. I can’t talk intelligently to professors about it, I’m sure, but I
enjoy it and I read it. And I’ve always kept this interest. And, that
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wouldn’t have been possible without the ten or twelve years at
somebody else’s expense. To wander around and expose yourself to
these, to good minds, to courses, to professors, without having the
pressure of having to pay off debt and get a job—so I’ve been the most,
one of the most, fortunate people in that sense.
Mrs. Easton: Now, your father was a newspaper man.
Judge Farrell: He was a newspaper man.
Mrs. Easton: And, he clearly was a very significant influence in your undergraduate
education, decided where you would go.
Judge Farrell: He did.
Mrs. Easton: What was his view of your turn to law?
Judge Farrell: I think he was bewildered by it. He was getting older. I was second
youngest of eight children, so by the time I was out of college and into
graduate school, he had lost his job and the newspaper had fired upper
management. He had an alcohol problem. He had all kinds of
problems in his own life. I think he was just bewildered by the fact that
this young man, his son—without costing my father much—was
wandering around in Germany and in Europe through a good part of the
Sixties, not seeming to accomplish anything, when my two older
brothers went right into business and were married by then and so forth.
So, I think he felt kind of fearful for what was going to become of me.
He didn’t really know why I seemed to take an interest in these kind of
unpractical subjects. But he wished me well. And so I had this
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reputation among the family, the grandchildren, everybody else, of
being kind of the wandering student. You know, Uncle Mike, someday
he’ll settle down, but he’s the kind of free spirit in the family. That
kind of thing. But, they never put any pressure on me, God bless them.
They never tried to force me to come back and do something
meaningful, like go to law school. But, they may have been a little
disappointed that it took me so long to kind of find my footing.
Mrs. Easton: And, during law school, which was while you were still in the high
school and—
Judge Farrell: Teaching high school, yep.
Mrs. Easton: —running a department, as well as teaching, and then in an incredibly
busy time, clerking for a judge, working at DOJ, learning to be an
appellate lawyer, doing both appellate briefing and Supreme Court
briefing and arguments, and Indian law as well as criminal law, did you
have time to read any German literature?
Judge Farrell: Oh, yeah!
Mrs. Easton: How did you stay in touch with that?
Judge Farrell: Oh, yes, I did. Oh, yeah! In a way, once the pressure got off me, of
picking up the Ph.D., finishing the damn dissertation—I’ll tell you,
incidentally, the dissertation was sitting in my closet about half finished
for many years thereafter. And my wife after a number of years—we
were married for twenty-five years—at some point during that, she said
to me, “Why don’t you dust off the dissertation, do something about
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it.” I made inquiry at NYU and discovered that they had what they
called a “matriculation fee.” For each year that you didn’t complete
your Ph.D. work, the fee was $1,500 or something like that. And that
was to discourage people from doing exactly what I did: Letting it
hang around and not finish up, going off to Europe, cavorting, you
know, running around, having fun, and not getting serious and finishing
it. And so it would have cost me, over ten years, it probably would
have cost me $15-20,000, a lot of money then, to get it, and I said,
“Who needs it?” But in a sense being freed of that freed up my
curiosity, my interest in German literature just as a fun thing, as a
passion, so that I still read it regularly now. I read—I have my old
favorites, Thomas Mann and people like this, and Kafka. I do that and
I enjoy it. Although I’m still convinced I would have been a lousy
teacher of it. And, I also—it gave me an abiding interest in languages
so that when my first wife died back in 1995, I taught myself Italian,
and I’m an equally avid reader of Italian fiction now. But it’s just a
hobby. Everybody has their hobbies; this happens to be mine. And my
view is that once you’ve learned one language, foreign language, the
second one is not that much more difficult, at least to read it. I can’t
speak Italian very well, but German I can. Anyway, that was kind of
fun.
Mrs. Easton: Oh, that’s wonderful.
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Judge Farrell: And then, there’s my great passion which I must have got from college,
despite myself. I’m an avid reader of Henry James. And this is my
life, in a way. A mini-part of my life but I, for some reason, as I’ve
gotten older, have fallen in love with his fiction for the last twenty-five
years.
Mrs. Easton: Oh, how wonderful.
Judge Farrell: But, anyway—
Mrs. Easton: Well, thank you.
Judge Farrell: There’s something nice about being a dilettante.
Mrs. Easton: Well, and being relieved of any pressure to pursue it.
Judge Farrell: As my wife tells me, my second wife, she says you are one of the
luckiest people who’s ever walked this earth for all the reasons that I’ve
explained to you. Between wars, you lived in an era when it wasn’t
expensive to be an endless student. You lived in an era—this is where
she gets kind of nasty—where white guys had all the opportunities, all
the judgeships went to white guys whether they were talented or not.
And it’s hard to say no to any of that. She’s not wrong.
Mrs. Easton: Sounds like it puts you in a place of gratitude. (Both laughing.)
Judge Farrell: So, I’ll walk you down, and then we’ll, at your convenience strictly,
we’ll meet again.
