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ORAL HISTORY OF JUDGE MICHAEL W. FARRELL
THIRD INTERVIEW
AUGUST 11, 2015
The interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is the Honorable Michael W.
Farrell, Jr. The interviewer is Lory Barsdate Easton. The interview is taking place at the District
of Columbia Court of Appeals on August 11, 2015. This is the third interview.
MRS. EASTON: I just wanted to make sure that was on. Okay. We are now recording and
I want that to be unobtrusive and non-distracting.
JUDGE FARRELL: Good.
MRS. EASTON: So, you graduated in 1973 from the American University and went to
work for Judge Moore for a year.
JUDGE FARRELL: Correct.
MRS. EASTON: —and through him met Phil Monahan, who had gone into the Appellate
Section at DOJ.
JUDGE FARRELL: DOJ.
MRS. EASTON: And you told me the last time we were together that your work consisted
of oppositions to cert petitions and some merit briefs for the Supreme
Court—
JUDGE FARRELL: —Supreme Court.
MRS. EASTON: —when you could get them past the SG’s office. (Both laughing.)
JUDGE FARRELL: That’s right. That’s right, past Frank Easterbrook and many of the other
luminaries.
MRS. EASTON: That’s exactly right. And you also were doing appeals for the Strike
Force, so that took you all over the country.
JUDGE FARRELL: Most of the Circuits, probably six or seven, but not all of them.
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MRS. EASTON: And then also you were doing Indian law, which I think is fascinating.
JUDGE FARRELL: Well, I did about three or four merits briefs and have succeeded in
forgetting everything I ever knew about Indian law. But it was important
stuff at the time because —I was sort of proud, in a way, of one case I
worked on, which established indirectly what people had come to doubt,
which was that the Indians are regarded under our constitutional system as
separate sovereigns. And that reinforced an idea that had kind of been lost
in the past, when everybody over the decades was trying to assimilate the
Indians. But this was a case in which, for criminal law purposes, it helped
the government to establish that the tribes were sovereigns, the equivalent
of a sovereign nation, because it allowed the federal government to
prosecute crimes even though the tribes had already prosecuted somebody
for the same offense. If they’re separate sovereigns there’s no double
jeopardy problem. It’s sort of like comparison of the states and the
federal. There’s no double jeopardy because they’re regarded as separate
sovereigns. And so the indirect good in that decision was that it helped—
the Supreme Court had occasion to say that the tribes are to be taken
seriously because they have their own system of governance. That was
one. There are others, but that’s the only one I think I remember.
MRS. EASTON: Oh, but that’s fascinating.
JUDGE FARRELL: Yeah.
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MRS. EASTON: That’s really great. Well, I did want to ask you about some of your work
on the Strike Force cases too, because that would have been organized
crime.
JUDGE FARRELL: Organized crime. None that really stands out as terribly memorable for
me. There was one memorable little event, which was I think my first oral
argument down in the Fourth Circuit. They rode circuit down there then.
In the summer they would go out to Asheville, for example, because one
of the judges had a summer place. So my first oral argument was in the
courthouse—in the post office building out there, because there was no
courthouse. And I stood up to argue on behalf of the government as
appellee. And a buzz saw of a judge, who later became chief judge on that
court, his name was Harrison Winter [Harrison Lee Winter, Judge of the
U.S. Court of Appeals for the Fourth Circuit from 1966 to 1990] from
Baltimore. First question out of his mouth was, “Mr. Farrell, is this part of
the cover-up?” And I should explain. This was at the time of Watergate
and the word “cover-up” was in everybody’s mind, covering up things
going on. And the case I was arguing had to do with an issue under Brady
v. Maryland [373 U.S. 83 (1963)] of alleged suppression of evidence by
the government which should have been disclosed to the defense. So the
words came tripping off Judge Winter’s tongue, “[Mr.] Farrell, you being
here, is this part of the cover-up, the suppression?” And I was kind of
puzzled because I was new. My stomach was churning, and I probably
muttered something like, “Could you help me out, I don’t quite understand
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what you’re saying,” and so forth. And he immediately shifted in a way
and said, “Where’s the trial lawyer?” —who was part of the cover-up, in
his thinking. And I said, “Well, Your Honor, the appeals from convictions
involving the Strike Forces are handled out of the Department of Justice in
Washington, a separate section, so the trial lawyer is not here.” And he
said, “Oh, great,” with considerable regret. He said, “Oh, I’m sorry that
he isn’t because I had some questions for him.” Well, things didn’t get
particularly better in the oral argument. But it’s nice to remember that at
the end of the argument, after my being eviscerated, they came down and
shook my hand and said, “I hope you won’t take it personally.” (Both
laugh.) Because that’s what the Fourth Circuit did and I think still does.
And of course they affirmed the conviction about five days later in an
unpublished opinion. Maybe he had a sense that I was a rookie lawyer
and he wanted to take it out on me. (Both laugh.) Not a lot of memorable
oral arguments; fairly routine cases, sometimes with four or five
defendants in a drug conspiracy or something. I argued a couple of cases
out in San Francisco in the Ninth Circuit. They were not friendly to—
particularly friendly to prosecutors at the time. And a government
attorney arguing a case right before me was asked by one of the judges,
“Why are you out here from Washington? Can’t you find a lawyer out
here in California to argue this case? The taxpayers have to pay for this?”
And of course the lawyer then had to pick himself up off the ground and
make the kind of pitch that I had made in Asheville. So there were some
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good times, but not terribly memorable cases—some routine, some more
interesting, a few government appeals.
MRS. EASTON: Oh, so you got to be the appellant from time to time?
JUDGE FARRELL: Yes indeed. Not often. Some of the U.S. Attorney’s Offices around the
country guarded their cases, even the Strike Force appeals they insisted on
handling. So, I didn’t get any arguments in New York, for example.
’Didn’t get any arguments in Chicago, in the Seventh Circuit, because
they argued their own cases. But I was happy. I got a chance to see
Cincinnati four or five times. Had never been there. Have never been
there since. (Interviewer laughs.) But New Orleans, a few other places—
it was fun. I only did that for about three years, three and a half years I
suppose. And then came over to the U.S. Attorney’s Office.
MRS. EASTON: Right. Right. So Andy Frey calls you or comes to see you and says, “I
want you in the Solicitor General’s office.”
JUDGE FARRELL: Well, he said—he said, “I want to make you an offer, I think you’d
probably do it, would you really want it?” And I said, “Yeah.” I wasn’t
kind of sure, because it’s a brutal, brutal job in terms of preparation, and I
wouldn’t have been one of the younger people. It was a thrill to be offered
the job. But I had to think down the road, and I had ambitions to be a
judge, and I had this offer from the U.S. Attorney’s Office to basically
eventually take over their appellate section—not quite yet, but come over
as a deputy. And it seemed to me that that was more likely to offer me a
path to a judgeship than working, even in the Solicitor General’s office,
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because at that time there was not much of a history of people in that
office being able to get judgeships. The reason is you had no—you had no
rabbi, you had no state senator who was particularly interested in you,
because you were a Washington lawyer. And at that time I think the only
people from that office who had moved into judgeships had moved to
what was then the Court of Patent and Customs Appeals, now the Federal
Circuit. Dan Friedman [Daniel Mortimer Friedman, former United States
Solicitor General (Acting) and judge on the Court of Claims and US.
Court of Appeals for the Federal Circuit] and Oscar Davis [Oscar Hirsh
Davis, former assistant to the Solicitor General and judge on the Court of
Claims and Federal Circuit], people like that. They had gotten those kinds
of jobs. It’s changed since.
MRS. EASTON: But at the time, in the mid Seventies, it seemed more likely going from the
U.S. Attorney’s Office?
JUDGE FARRELL: I could get a judgeship on the local court, and that was kind of my interest
in going over there.
MRS. EASTON: So you went to work, and who was the chief of the appellate division?
JUDGE FARRELL: John Terry, who is a senior judge on this court. He had been there for a
number of years. [Note: Judge John A. Terry was appointed to the
District of Columbia Court of Appeals in 1982. Prior to his appointment
as a judge he had served as the Chief of the Appellate Division of the
United States Attorney’s Office for the District of Columbia for thirteen
years.
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http://www.dccourts.gov/internet/documents/DCCA_Bio_Terry.pdf] It’s
very incestuous. There’s a long tradition of people going from chief of
that appellate division onto this court of appeals, or its predecessor back in
the Sixties. Judge [Frank] Nebeker is still a senior judge; he had been
chief of the appellate division earlier. So Judge Terry was my boss when I
went over there, but everybody was nudging him to try to apply for a job
on this court. ’Took a while to nudge him, because he seemed
comfortable with what he was doing, but about 1982 we succeeded in
nudging him hard enough. He put his hat in the ring, and he got picked.
And he’s had a long career on this court. So, between 19—maybe 78,
79—and 1982 I was deputy chief. And my main job—beside reviewing
briefs written by the attorneys in a section that had maybe twenty lawyers,
twenty-five lawyers—was to argue the big cases. Judge Terry preferred to
give them to me to argue. I think he felt less comfortable arguing in that
kind of setting than I did. And so I got a chance to argue quite a few en
banc cases and some significant cases that came up over that time.
It was a time when there were some interesting cases. One of the first
things I had was the constitutionality of what they call preventive
detention, pretrial detention. There had been a statute in the District of
Columbia allowing that. It was passed during the Nixon administration.
But it was never used, because everybody had doubts whether detaining
somebody before trial for a period of a couple months or more was
constitutional, and so there was reluctance to test it. Finally, we did test it,
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and I got a chance to argue that before the court en banc and it was
upheld. And the Supreme Court later upheld it. And I think the reason
why they upheld it, indeed the federal government passed a pre-trial
detention statute, was because throughout the land people were in fact
being detained before trial, for significant periods of time, under the
pretense that they couldn’t make money bonds. Judges were imposing
high money bonds on defendants, you know, partly as a risk of flight but
also as a danger to the community, knowing full well that they couldn’t
make those money bonds. And so it was a kind of a cynical system in
which people were locked up pre-trial because they couldn’t write a check
or get a bondsman to post a bond for them. Finally, Congress passed a
statute, first in the District of Columbia, which is the statute I had to
defend, and then later a federal statute, led by Senator Ted Kennedy and
others, some very liberal senators, who saw the problem with money
bonds and decided better before trial to have an evidentiary hearing and
decide whether this defendant is in fact dangerous to the community, in
which case you can detain him for a limited period of time. Better that
than posting—requiring him to post a one hundred thousand dollars bond,
which he could never meet, and locking him up anyway.
MRS. EASTON: Or, in some instances, failing to.
JUDGE FARRELL: Well, in the routine case, nobody could make the bond, so judges were just
locking people up before trial and thinking it was not pretrial detention,
which it was. That was one of the interesting cases. Then we had a whole
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series of cases, some of which I argued. You may have seen the movie
recently, I can’t remember the name, involving the old Abscam. [Note:
The movie American Hustle was released 2013.] Did you see that movie?
MRS. EASTON: I didn’t see the movie, but I know the sting.
JUDGE FARRELL: Yeah. It went back to the Eighties, the various congressmen who were
lured to what they called the “honey pot,” where in return for promises to
introduce some legislation to help some Arab sheiks, and things like that,
they were offered money and they took the “honey.” It was a very
colorful scenario that the government adopted because they—these FBI
agents would come in dressed as sheiks and things like that. And the lead
person in this sting operation was a gentleman by the name of Mel
Weinberg who could put on a great appearance of being a New York
representative of all the sheiks and so forth, and he’d sit down with a cigar
in his mouth and talk to all these congressmen and senators and so forth.
And they’d take the bait, some of them. And so it resulted in a handful of
convictions in New York and Pennsylvania and in D.C. Two of them
involved one congressman John Jenrette from, I think South Carolina,
another one, Richard Kelly from Florida, a congressman also. They were
convicted and I had to handle their appeals, and they were interesting
things. And there were some interesting issues that arose out of them:
Entrapment, due process violation, and—so, those cases had some
inherent interest but also a lot of publicity surrounding them. Other than
that, what I did over the next three years in the way of oral arguments was
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what you would do in any U.S. Attorney’s Office. There were some
serious cases and a lot of routine ones. We argued, of course, and briefed
cases in both courts, the D.C. Court of Appeals and the D.C. Circuit—
more in the local court system than in federal, but cases in both. And it
was an enjoyable part of my experience. And then in 1982, Judge Terry
was promoted to the D.C. Court of Appeals, and I took over there for the
next seven years.
MRS. EASTON: Did your job change much?
JUDGE FARRELL: Not really, no. In good part it was reviewing drafts of briefs, rewriting in
many cases, but in other cases trying not to rewrite so as to discourage the
junior attorneys. And occasionally arguing cases. I probably argued
fewer over the next five or six years because I had two or three deputies
then, but I still managed to argue a few cases of a little bit of visibility, I
guess, in the courts. But it was what you would expect for an appellate
division which has a lot of work and a lot of good young people who can
write but some who don’t write so well and so you had to kind of, as best
you could, train them in the art of appellate writing.
MRS. EASTON: From your time as the chief, do you remember deputies or junior lawyers
that you worked with that are still people that you see in the legal
community?
JUDGE FARRELL: Yes, I do see them. One is a good friend of mine by the name of Judith,
Judy Hetherton. She worked with a number of government agencies
[Note: including as general counsel to the inspector general of the U.S.
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Department of Housing and Urban Development] and a couple of law
firms and then ended up being I think an assistant bar counsel in the
District [Office of Bar Counsel for the D.C. Bar] for a while, I think she’s
retired now. I had a young friend. I had a friend by the name of Thomas
Tourish, T-o-u-r-i-s-h, who died a few years ago. He was a very able
lawyer there. [Note: Thomas J. Tourish served as deputy chief of the
appellate division for 25 years, according to his 2009 Washington Post
obituary. http://www.washingtonpost.com/wpdyn/content/article/2009/07/11/AR2009071100037.html] And a young
lady by the name of Elizabeth Trosman, T-r-o-s-m-a-n, who has made a
career over there and is now the chief of the appellate division. The
interesting thing is, and I already kind of tipped you off about it earlier, it
is kind of incestuous, because the young man who succeeded me, young
man then, John Fisher, F-i-s-h-e-r, became and stayed as head of the
appellate division after me for about ten years. He’s now on our court.
(Both laugh.) And the young man who succeeded him, Roy McLeese, Mc-L-e-e-s-e, after about ten years he was put on this court. (Laughter.) So,
there are currently five of us, including senior judges on this court, who
came from that same job.
MRS. EASTON: That’s quite a line of succession.
JUDGE FARRELL: Yes. And there were times when I think it annoyed the heck out of the
defense bar, the criminal defense bar, and the public defender service,
because they say, “When is our turn gonna come?” Well, a few years ago,
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two or three years ago, their turn came. And there are now two young
ladies on our court from the public defender service, Judge [Corinne]
Beckwith and Judge [Catharine] Easterly, E-a-s-t-e-r-l-y. So, you know,
what goes around comes around. But—
MRS. EASTON: But we are waiting for Elizabeth, is that it? (Interviewer laughs). —for
Elizabeth Trosman?
JUDGE FARRELL: Oh! (Laughs.) No, no I don’t think—I think her time has come and
passed. Don’t tell her, but I think she recognizes that, probably. I’m not
sure she would want the job anyway at this point. So, the Eighties were
spent as—mostly as chief of the appellate division, trying to nurture and
discipline and educate young attorneys in the craft of saying the right
things to the Court of Appeals. In a way it was a lot easier for the young
lawyers to be, in most cases, on the side of the appellee. As you know
from your experience it’s harder being the appellant because then you’ve
got to imagine and devise and figure out the best arguments to make. The
appellee, you’re kind of responding. Nonetheless, it was—we had our
share of wins, our share of losses. But I think we established and
maintained a pretty good reputation as an appellate office. Most
U.S. Attorney’s Offices in the country don’t have separate appellate shops.
Chicago does, New York does, probably San Francisco, L.A., and the
District. But ours was and is an independent office, and that allows
lawyers to come in and just concentrate on doing appellate work for a
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year. I’m not sure doing appellate work makes them terribly marketable,
but it’s a good experience.
MRS. EASTON: And your entire career has been appellate.
JUDGE FARRELL: My entire career has been appellate. My only appearances in the trial
court have been where over the years in the U.S. Attorney’s Offices, on
about maybe seven or eight or nine occasions, to go in and argue motions
before judges, where the U.S. Attorney would call me up and would say,
“I want you to go in and argue that motion on a legal point.” One of those
was the old problem—which came up in our court and was eventually
decided by the Supreme Court—of one-house vetoes, whether one house
of Congress could veto legislation that the president had proposed and the
other house had passed, and the Supreme Court said, “No. Laws require
both houses to act and the president to sign.” That was an interesting issue
for a time and then it disappeared.
MRS. EASTON: That came up through the U.S. Attorney’s Office in D.C.?
JUDGE FARRELL: Yeah, it came up, I can’t remember how—I think it was involving a
reform of our laws involving sex crimes. They had been passed by
Congress under Article I, which is the part of the Constitution they operate
under in enacting legislation for the District, but apparently only one
house had passed the statute, and the other house had not gotten around to
doing it, and the president had signed it, and people thought that was
enough, and I think we argued—I can’t remember. I’m kind of drawing a
blank on exactly how it came up in this court system. But we defended
the one-house veto and seemed to prevail for a while until the Supreme
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Court got the issue and said, “No.” [Note: See Gary v. United States, 499
A.2d 815 (D.C. 1985) (Michael W. Farrell, Asst. U.S. Attorney, lead
counsel for appellee) and McClough v. United States, 520 A.2d 285 (D.C.
1987) (same).]
MRS. EASTON: Well, so with the exception of these rare arguments where it was clearly
going to become an appellate issue so you were arguing the legal point
before the trial court, not only was your entire career appellate, but it was
also criminal.
JUDGE FARRELL: It was also criminal. When I began in the U.S. Attorney’s Office, the
appellate section handled the criminal and the civil appeals.
MRS. EASTON: Oh, it did!
JUDGE FARRELL: It did both. And that became a problem, because you had young men
whose experience in U.S. Attorney’s Office—and women, more men than
women at that time—whose only experience had been handling, trying
misdemeanor cases. And then they came to the Appellate Section. And
then they were asked to write a brief defending a decision, summary
judgment, say, in the trial court in a civil matter that had been handled at
trial by the civil division. So civil cases and criminal appeals were
funneled up through the appellate division, which handled both. What
happened is that, more often than you’d like, the attorneys would write a
decent brief in the civil case, they’d go over to the Circuit Court [the
United States Court of Appeals for the District of Columbia Circuit],
where the civil appeals were handled, and they would be outclassed by
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civil lawyers who had a long background, a lot of experience doing civil
law. They’d be embarrassed by hostile questions by very, very gifted
judges over there, like Judge [Harold] Leventhal and others, who were
disappointed to find out that this young assistant U.S. Attorney knew so
little about, for example, government contracts, disappointed bidder cases,
things like that. And of course they knew very little about it because this
case was the only one in which they’d ever heard of the subject!
Eventually it was decided soon after John Terry, Judge Terry, joined the
D.C. Court of Appeals, I think the U.S. Attorney—maybe then it was
Charles Ruff [U.S. Attorney for the District of Columbia 1979-81], ’can’t
remember—decided that the civil appeals would be done by the civil
division. So they established their own civil team. So, I had civil
background for about four or five years doing civil appeals, but relatively
little. ‘Little to no trial experience, little to no civil experience, and still
they put me on this court. (Laughter.) And so I spent a couple of years
here—my first couple of years on this court, of course, I was recused from
a lot of criminal cases. So I got my fill of civil cases.
MRS. EASTON: Those first two years I bet.
JUDGE FARRELL: And probably did no end of mischief. But managed to learn what
summary judgment was and things like that. (Both laugh.)
MRS. EASTON: That’s very interesting. You know, you talk about the attorneys. It
sounded as if there was a rotation through, so every new assistant
U.S. Attorney—
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JUDGE FARRELL: —would go through a sequence of assignments. You would start at that
time, it’s been changed I think since, they would start with misdemeanor
cases, then they would come to the appellate division and learn a little law.
Then they’d go back to the felony trial division.
MRS. EASTON: Oh, interesting. They brought them to you before they went to try
felonies.
JUDGE FARRELL: To teach them a little law, the hope was. And then after felony trial they
would graduate to Felony 1, so-called, murder cases. Some would go over
to federal district court and try the cases over there. And then after four or
five years many, most, would move on to private practice because they
had become somewhat marketable. That was kind of the tour in the
U.S. Attorney’s Office. It’s a pretty prestigious office. It differs from
every other U.S. Attorney’s Office in the country in that it handles local
matters, local prosecutions. On the civil side, it doesn’t. The only civil
matters it handles are federal. The city handles civil. Except for juvenile
cases, though, and traffic offenses, the U.S. Attorney’s Office handles
local crime. ’Doesn’t anywhere else in the land. Which made it
interesting in a way because you got a broad variety of crime, not just
federal crime, but you got everything from drugs to larceny and things like
that.
MRS. EASTON: Sure.
JUDGE FARRELL: Over the years, it’s been a subject of dispute; various mayors have made
efforts to, perhaps, transfer prosecutorial authority for local crimes to a
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separate city attorney general. We now have a separate attorney general’s
office. Maybe that will happen one day. It hasn’t happened so far, partly
because it would be a huge cost for the city to set up another three hundred
person shop and so forth. Who knows, though? It became a home rule
thing.
MRS. EASTON: Good. So, how big was the U.S. Attorney’s Office during this time?
JUDGE FARRELL: Oh, I don’t know. When I was there, maybe, it was probably 150 lawyers
or so, now it’s probably twice that many.
MRS. EASTON: And so you would have, when you were the chief, you had two or three
deputies—
JUDGE FARRELL: And twenty lawyers or twenty-five.
MRS. EASTON: But all twenty or twenty-five of the lawyers were on rotation? None of
them were career appellate lawyers?
JUDGE FARRELL: Not really, no. A few stayed a little longer. And one of the few things I
suppose I should take credit for at the time was, I was a little bit
instrumental in allowing people to do job sharing. That was a time when
job sharing was starting to be popular, where women, and in a couple
cases men, wanted to do the child rearing, or the wife insisted (laughs),
where they would work part-time and be able to raise their children. And
that meant you had to have kind of two people doing the job of one. And
we managed to work that out, because you can work that kind of thing out
in appellate work. You can’t do it in trial work. So I think probably for
the first time in the history of the office, we developed that process where
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lawyers could work part-time and have somebody else do the other half of
their job and accept part-time pay. And it was always a wonderful thing
for the U.S. Attorney’s Office because you knew that the lawyers were
good, and they never worked only part-time. (Laughs.) You always
worked more than part-time, even if you were a part-time employee. And
we had some superb women who were doing that for a number of years.
A few—Elizabeth Trosman did it for a while, Ann Simon (Ann Simon
Hadley) still is with the U.S. Attorney’s Office and does part-time work
even though her kids, I think, are grown up. But that worked in wonderful
ways to the advantage of the appellate division of the U.S. Attorney’s
Office because it allowed us to keep some very, very gifted women,
especially. Men also who were doing part-time, but mostly women and—
MRS. EASTON: Who otherwise would have left, right?
JUDGE FARRELL: —otherwise would have left. And I think it continues, because you can do
it in appellate work in a way you can’t do it in trial work.
MRS. EASTON: Well that was extremely progressive for the early Eighties.
JUDGE FARRELL: Oh, yeah. There was a lot of resistance to it early, in part because the
sense was we are a prosecutor’s office, you know? And prosecutor’s
office in the first instance means, trying cases and getting convictions,
right? The appellate work—it’s not that the appellate work was
secondary, it’s just that people’s mindset was in terms of, “We want
people who will work sixty hours a week here or not at all,” because that’s
what the job requires. Well, then finally people discovered that, (a) you
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had more and more gifted young women coming out of law school. You
didn’t have that before the Sixties in those numbers, you know better than
I. And [(b)] you would lose people if you didn’t offer that kind of
opportunity to them, because for some reason the women had the brains to
realize that working seventy hours a week isn’t all that life is. You know?
(Laughs.) And so I would get calls periodically as deputy chief, and then
chief, from women saying, “Hey, Mike, have you got any openings in the
appellate division because things are happening in my life and I’m looking
for kind of a part-time thing.” We managed to work it out and it worked
out very well and it’s continued ever since.
MRS. EASTON: That’s fantastic.
JUDGE FARRELL: Yeah, I mean I can’t take all the credit for it. I think the U.S. Attorneys
evolved into recognizing this was an effective way of keeping some of
their best lawyers.
MRS. EASTON: But you had to have the foresight—and show that to them.
JUDGE FARRELL: Yeah.
MRS. EASTON: Overcoming prosecutorial machismo by demonstrating productivity.
(Laughs.)
JUDGE FARRELL: Yeah, yeah, yeah, yeah, yeah.
MRS. EASTON: Well that’s fascinating. So the U.S. Attorney, the first U.S. Attorney you
had worked with was Earl—
JUDGE FARRELL: Silbert, S-i-l-b-e-r-t. Still is practicing and—
MRS. EASTON: Do you know where?
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JUDGE FARRELL: Yes, I believe—I don’t know whether he’s wound down his practice, but I
think he’s still there [at DLA Piper]. In fact, I have a friend, a relative by
marriage, who was a prosecutor here for quite a while who joined Piper
about two or three years ago, and he says, “You know, that Earl Silbert, I
don’t know what kind of case load he carries at his age,” he said, “but
every morning there are four or five lawyers lined up outside his office for
counsel.” (Laughs.)
MRS. EASTON: Wow.
JUDGE FARRELL: Because, you know, people like that have an institutional knowledge that
can’t be replicated.
MRS. EASTON: Right, exactly. Now, was he—he was one of the Watergate prosecutors?
JUDGE FARRELL: Exactly.
MRS. EASTON: Did that start—
JUDGE FARRELL: Exactly.
MRS. EASTON: —while you were there? Tell me about the—some of those things that
came through the office.
JUDGE FARRELL: Uh, that was before my time there. That was well before my time. I
mean, I can only have vague memories of Judge Sirica and people like
that, but Earl was very much involved in that at the time.
MRS. EASTON: You were just catching the fallout with the Fourth Circuit. (Laughs.)
JUDGE FARRELL: Yeah, that’s right, that’s right, yeah. I mean, at that time my connection
with the D.C. U.S. Attorney’s Office was nonexistent. I was at the DOJ.
MRS. EASTON: Right, right. And then, after Earl—
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JUDGE FARRELL: Earl, then Chuck Ruff, Charles Ruff, bless his soul, he died some years
ago, came over before going to a distinguished career at Covington, I
think. And, I think Jimmy Carter may have appointed him, if I’m not
mistaken. Chuck was a wonderful man to work for. After him—Stan
[Stanley S.] Harris [1982-83], and then Joe diGenova, Joseph diGenova,
was the U.S. Attorney in the Nineties for a while [Note: 1983-88], from
Republican administrations. And then a succession of people after that
whom I really haven’t gotten to know very well. But I think I worked
under probably four or five U.S. Attorneys, all with different notions of
how you operate. But in general, they were clever enough to leave the
appellate division alone, either on the theory that it wasn’t all that
important or that they knew their job. So, I had an enjoyable ten years
over there, and I learned an enormous lot, which enabled me, when I did
get this job, to fit in fairly easily without too much trauma of learning it,
because I had been doing that kind of work for all those years.
MRS. EASTON: So you had a tremendous advantage—
JUDGE FARRELL: Yeah.
MRS. EASTON: —from that wealth of experience. You came to law essentially as a
second career.
JUDGE FARRELL: Oh yes, indeed. Yeah.
MRS. EASTON: Do you think the—tell me about how you think your maturity, and the
wandering—your “wandering years”—
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JUDGE FARRELL: Oh, well, I think it helped. All the years that I spent, wasted time,
studying the various things that we probably went through in the last
interview, and all the reading I had to do, and the writing and thinking,
probably gave me a certain maturity—I won’t say sophistication of
thought, I would say maturity of thinking—that helped me when I started
law. I think the writing I had done in graduate work and in clerking for a
judge over in Maryland and so forth, and the writing that I did at the
Department of Justice, made me a fairly good mentor for young lawyers
when I started in the late Eighties, as deputy chief and then chief,
reviewing the work of other attorneys. I think I had—by that time I had
developed a certain style of writing, and a certain sense of what good
writing is, and a certain economy of writing. And, to a limited extent, I
could kind of pass that on to our young lawyers, who would often
grumble, I’m sure, when they gave me a fifty-page draft and I gave it back
to them in thirty pages, or something like that, telling them, “You’ve gotta
learn to think and write shorter,” you know, and compress and compress
and compress. And I think I had a certain amount of success in being able
to pass that on to younger lawyers. It is a sad thing that I’ve learned in
my—a lot of years now on this court—that I, as a judge on a very, very
busy court, you kind of lose that ability to sit down with your law clerks
and get drafts from them, and kind of take them through draft after draft
after draft and to work the best product and develop the best product you
can. You really don’t have the time for that. Judge Abner Mikva, who
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was on the D.C. Circuit for a number of years, used to say that he liked to
work that way. He had a round table in his office and he’d sit down with
the clerk, take the clerk’s draft of an opinion, take out a red pen or
something like that, and go through it line by line, paragraph by
paragraph, kind of teaching him what’s right, what’s wrong about it, and
send the clerk back to do another draft and give it to him. It’s a wonderful
way, if you can do it. It’s a huge learning experience for the young lawyer
that way. The sad thing is that in most appellate courts—particularly ours,
kind of an intermediate appellate court for many purposes—you can’t do
that. The time is not there. You’re almost like a four- or five-person little
law shop. Everybody’s working on something at the same time. So I used
to end up over many years telling my law clerks when they began, or
when I was interviewing them, look, you work for Judge Farrell, you’re
gonna learn by example. Less than by—you’re going to learn by doing
and by example. That is, you’re going to give me some kind of input into
the case early on, maybe a memorandum, maybe a drafted opinion,
although that not so often. And you’re going to end up at the end of the
process seeing what comes out. And you can compare the way you
analyzed, the way you thought about the case upfront, and how the judge
ended up issuing the opinion. And at least you’ll have a sense of what one
judge considers to be good analysis and good writing. What you won’t get
from me, because I don’t have the time, is that kind of pedagogy that
Judge Mikva liked, where you sit down, and you kind of mentor the clerk
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through successive drafts. Federal judges have fewer cases, so, here there
wasn’t that time. But, I think that I was—because of my teaching
background, and my educational background, I had a kind of a
pedagogical instinct. I had a kind of an ability, I think, to—if not by
actual teaching, at least by an example, to give a sense to young people of
what I think good writing is. I remember when I first applied for this job,
in 1987 or ’88, it was pretty clear I wasn’t going to get it because there
was another lawyer by the name of Fred Abramson [Frederick B.
Abramson], and we thought the fix was in for him. He subsequently
died—nice, very nice guy, and was highly qualified. And so, at the
meeting of the Judicial Nomination Commission, one of the members of
the Commission asked me, “Well Judge Farrell, wouldn’t you like to be a
trial judge?” In other words, “You’re not going to get it. The appellate
judge job is taken care of, you’re not going to get it. Wouldn’t you like to
be a trial judge?” And I had to tell him, I said (a) I really am not
interested in being a trial judge, and (b) I’d be terribly unqualified for it,
because my whole background has been in writing and— (laughs)
MRS. EASTON: I’d have to go learn the rules of evidence (interviewer laughs)—
JUDGE FARRELL: I’d have to go learn the rules of evidence. (Both laugh.) And I don’t think
I have a quick mind, which you need at the trial court. I think I need time,
and given time, I think I can think with a little bit of sophistication about
things. But I probably wouldn’t be a—and she, the member of the
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Commission, smiled and said, “I understand.” (Laughs.) So I had to
come back a second time.
MRS. EASTON: (Laughs.) When you were in the U.S. Attorney’s Office, did you have that
kind of more pedagogical time? I mean, it’s a busy office.
JUDGE FARRELL: Yes, in two respects. I had a good deal more. It is a busy office, but bear
in mind, you had a couple of deputies, and they were also very good at
working with the lawyers. And you managed to make the time, because
you really felt that was your job there. Your primary job was to file the
best product you could in the Court of Appeals, but it was also to educate
the young lawyers in what good appellate work was. And you had more
time available for that. It was sad when I came on the court and realized
you don’t. Because in a way it’s an assembly line: The things keep
coming, you don’t want to really get behind, and so you have to do an
enormous amount of work yourself, and that means there’s less time for
the law clerks. But, as chief of the appellate division, U.S. Attorney’s
Office, and as deputy chief, that was a primary obligation I had, which
was to teach young people, as best I could, to do the kind of writing that
judges expect on courts of appeals.
MRS. EASTON: Well, I’m going to ask you a philosophical question, but is it possible to
teach writing?
JUDGE FARRELL: Well, yes and no. I think it is possible to take somebody who is fluent,
and who can put sentences together, and is not just stuck at their word
processor not being able to put things down—it’s possible to teach them
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after the fact on how you can compress and do it much more concisely and
much more economically. That you can do. If people simply have no gift
of writing, if they can’t simply put paragraphs together, they’re not likely
to—my experience was they weren’t likely to have been hired by the U.S.
Attorney’s Office, because there was a pretty good recognition in the
hiring process that these people had to come from pretty good
undergraduate careers and law schools and must have learned the basics of
pretty good writing. I can probably remember four or five instances of
people in my years there who really couldn’t write well and clearly and
logically. But that was almost a sense of their being unable to think
clearly, and you wondered why they had been hired, and I’m not sure their
careers lasted very long there. Most young people came with that kind of
skill at least from three years of law school and four years of college,
where they could basically write. I think, within limits, you can teach
writing. You can teach people, as I said, to say things in many fewer
words. What you can’t—what you can’t really teach them, except by an
example, is, “What are the three things I need to say,” in other words, to
really come up with the insights and the ideas. That they only pick up, in
a sense, by experience. And some are just highly gifted. I’ve had a few
clerks over the years who were of that nature. I was astonished in the
way, at such an early age and just out of law school, they had an ability to
get their teeth into legal issues and give you the four reasons why you
should reach this decision—or not. That’s a rarity, that’s a very gifted
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person. Those kids tend to end up on the federal courts and in the
Supreme Court clerking, and in the law school professions. But if a kid
had the basics, the basic analytical skills, and had basic writing ability,
you can teach some things. Or at least you can teach them a little bit of
the craft of appellate writing, which is not the craft of writing law review
articles. It’s not the craft of writing legislation, things like that. It’s
different. But it’s an art, and you can teach it.
MRS. EASTON: I see, actually a really lovely full circle from your first wife telling you
that you were a frustrated college teacher—
JUDGE FARRELL: Yeah, yeah.
MRS. EASTON: —you needed to be with the right students.
JUDGE FARRELL: Right.
MRS. EASTON: (laughs) —and actually, it sounds like at the U.S. Attorney’s Office you
found the right students.
JUDGE FARRELL: I think I did, yeah. You know, I compare my experience with the
experience of a friend of mine, James Klein, who is the head of the Public
Defender Service [appellate division chief] in D.C., and has been for thirty
years now practically. [Note: James W. Klein joined the D.C. Public
Defender Service in 1978 and became head of the appellate division in
1983, see https://www.dcbar.org/bar-resources/publications/washingtonlawyer/articles/june-2007-legal-beat.cfm. As of 2015 he was serving as an
Appellate Training Director for the CJA appellate panel. See
http://www.pdsdc.org/about-us/historical-timeline.] A marvelous lawyer,
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appellate lawyer he’s been for all these years. We were competitors back
in the U.S. Attorney’s Office. I was chief of mine, he was chief of his,
and so forth, or deputy chief, I can’t remember. And in a sense, it’s a
similar situation: He has some of the most gifted young lawyers in the
country, coming out of some of the best law schools, who want to work
for his office, who come through his appellate division. And he gets a
chance to learn from them, to teach them. And, in a way, what better job
could you have? Because you have a lot to teach them. And they revere
him over there, because he has such a gift of helping them craft and polish
their briefs. But he learns from them, too, because you have kids who
come up with insights day in and day out that you don’t think of,
particularly as you get older, you know. But it’s a wonderful kind of mix,
if you’re anybody with my kind of background, who likes writing and has
done it over the years and wants to help mold a good product. And it’s
wonderful when you’re working with young people who can give you the
raw materials of that in such a good way, without requiring you to take the
brief and rewrite it from the beginning. I had many times over the years,
in the U.S. Attorney’s Office, I would have to basically rewrite the brief.
That was just unfortunate, that the things didn’t work out. But in the vast
majority of cases you were able to work from a good draft by good young
lawyers, and you got pleasure in working together with them to produce a
good product. I’ve said to Jimmy Klein over the years, “Why don’t you
go up and teach at Harvard?” He said, “Why the hell should I go up and
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teach at Harvard? I’ve got the best people down here. I’ve got the best
students here to work with, you know, the cream of the crop.”
MRS. EASTON: Who’d already been trained?!
JUDGE FARRELL: Who had already been trained and—(laughter)
MRS. EASTON: (laughter) —you make the point of meeting the right student. Once
they’ve made it to the Office of the Federal Public Defender or the U.S.
Attorney’s Office, they’ve been vetted. My philosophical question
actually arises, thinking about someone coming into law school.
JUDGE FARRELL: Yeah.
MRS. EASTON: Because now, in most law schools, legal writing is a mandatory course in
the first year, and I—I look at that somewhat askance, I’m not sure what it
is you can teach at that point.
JUDGE FARRELL: Yeah. It is true. I think the kids nowadays, the young people who come
to work as law clerks for judges and so forth, and the young people who
come out of law school, have gifts that we never had. I think they have—
number one, they’ve mastered the basics of electronic research.
Therefore, they can produce a ton of research in a short time, which would
have taken us a week to come up with. And they have the fluency that
comes with having grown up now in composing rather than writing. You
know, composing on a computer. And it’s almost as though the words and
the sentences trip off their tongues, because it’s such an easy process. I’m
putting aside the problem of cell phones and tweeter and things like that,
but assuming that they’ve done writing in college, it seems to come easily
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to them. The problem becomes the discipline that we all recognize that
the young people need now, of—call it of “overfluency,” in a way,
overwriting. And so that’s the problem of getting fifty pages on a subject
in a draft opinion, and when you know that eighteen pages might be
enough, or twenty-five might be more persuasive, and you’ve got to try to
persuade them to be their own best critic and cut it down.
MRS. EASTON: And not demonstrate all that they’ve learned.
JUDGE FARRELL: Yeah, yeah. That’s the thing. I must say, in my first two years on the
court, probably, I was guilty of overwriting. We all are. Because you do
research, particularly for me it was in civil matters, and you almost feel
that part of your education is to put it all down on paper in a coherent
order. And only later do you recognize that most of the world to which
that opinion would be directed—your audience—didn’t need all that
because they knew the stuff; they just want the right result. And you learn
to become more concise. I think all of the judges over the years learn to
trim their work down.
MRS. EASTON: The instances in which they don’t are rather sad.
JUDGE FARRELL: Yeah, yeah, yeah, yeah. (Laughs.)
MRS. EASTON: Well, I’m going to ask a little bit about some of the changes. You
mentioned the technology and the fluency of young lawyers. In the
Seventies and Eighties you were—all of this was being done, what, by
hand?
JUDGE FARRELL: By hand, with carbon copies and, you know, it was—there was no email.
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MRS. EASTON: When did you make the transition to having lawyers writing for you who
were using either the [IBM] Mag Card or some of the earliest word
processing? It would have happened during your time as chief.
JUDGE FARRELL: Yes, maybe not even then very much. We still—when—up to ’89, when I
became a judge, we still had a large platoon of secretaries, they called
them then, who would receive drafts from the lawyers in appellate cases,
sometimes typed up on the early versions of computers, but more likely on
typewriters, and would get them and then would convert them into some
kind of electronic format, or would simply type them up from stuff being
written out on yellow pads, and would actually do the composing of the
opinion and give the draft back to them. So I think until the end, we still
had a big cadre of people who were doing the actual preparation of the
opinions. Nowadays, as you know, I mean, that’s basically gone. When I
started with the court in ’89 and ’90, I think that was still the early days,
the early kind of primitive computers. And what we call now a judicial
administrative assistant, my secretary then, had come over with me from
the U.S. Attorney’s Office. She was one of the very first people to really
learn computers and became kind of an educating force here for other
secretaries in the court. And it evolved then over the years for most
judges; not for me, I regret to say. I’ve never become terribly fluent with
computer technology, because it hasn’t really been necessary for me to do
it. But most of the judges, particularly the younger judges now, it’s
embarrassing to me how sophisticated they are in that, to the point where
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they don’t even have secretaries in the office. They hire a paralegal
instead of the secretarial position, who can, in effect, give them another
half of a law clerk, and also a kind of administrator, and the two or three
law clerks, plus this legal assistant they have, end up managing the office
themselves. And everybody just does their own work on their computer
and you don’t have the need for giving it to somebody else to work on.
It’s become a very, very complicated world for old people like me, but for
them it’s the most natural thing in the world.
MRS. EASTON: Do you have a recollection of when electronic research became the reality
for your work? Was it while you were a chief? I mean, that would have
been about the time.
JUDGE FARRELL: About the time, in the Eighties, you think it was that early?
MRS. EASTON: I know I was doing it in the Eighties, so—
JUDGE FARRELL: I guess, but basically, I—to the extent that I had to actually get into
writing, I was probably an old barnacle who would go down to the library
and look up the digests. Remember the digests they had? I would do that
because I didn’t have to do too much of it, and I had the time and I could
do it. And I knew my own ways of getting cases. I am sure that the young
lawyers who were producing drafts for me were doing it far more
efficiently electronically, because they had already mastered the earlier
versions of West and Lexis and whatever research they had. But not for
me. I just never—I wasn’t forced into the situation like you would have
been, say, in practice, where time is money. You’ve got to learn the stuff
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to do it fast. You didn’t have to do it as chief of the appellate division,
because you had the people doing it for you. And what you brought to
bear on the ultimate product was judgment and some sophistication in
shaping the final product. Yeah, but the research changed enormously.
And now one of the pleasures about the job—sometimes you think it may
be a little bit of a curse, too—is when you tell a law clerk to go out and
find me the law on a kind of a thing, a day later, in your case maybe a half
a day later, because you tell them, they’ve—you’ve got the product,
you’ve got it there. Sometimes I think they work too fast and you’re not
sure they have it all. But the change began, and I was the beneficiary of it,
because I had very good young people, particularly as a judge, young law
clerks who could do the stuff so well. And I think they just shook their
heads throughout my twenty-x years as an active judge, or my twenty
years as an active judge. While they were doing all this, applying all these
state-of-the-art tools to producing what they produced for me, there was
poor Judge Farrell sitting there down in with his yellow pad, writing out
his opinions and so forth. But there are only a couple of us. One of them
is my dear colleague Judge Frank Schwelb, who died last year. We were
colleagues for fifteen, eighteen years here. He never learned the computer
stuff. He was older than I am, but not by much. He could never really
learn it. He either would depend on the clerks to do the research for him,
or he would go down to the text books in the library—we still do have the
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books—and go down to the hornbooks, to the Restatement. We grew up
with the Restatement, things like that, you know.
MRS. EASTON: I know. Young lawyers now don’t know what the Restatements are,
unless I send them to look at them. (Both laugh.)
JUDGE FARRELL: Yeah, so the change has been monumental. Fortunately it’s a change that
affects appellate judges less than I think trial judges for example. You
cannot be a good trial judge now, with a busy docket, without having
mastered all this electronic stuff and being able to have it up on the bench
with you. And you know, you see it all the time, being able to get to the
stuff immediately, and control electronic filing. And all that is something
that we are just getting around to in our court of appeals. And my quip to
them whenever they threaten with, “The day is here when it’s all going to
be electronic!”—my quip is, “Well, you better get a lot of printers,
because there are a lot of judges on this court who are going to insist that
their clerks print out every piece of electronic information that comes
before us.” (Both laugh.)
MRS. EASTON: It’s true, it’s true. It’s just, it is convenient to be able to take the file from
one place to another, but I still prefer to read the hard copy.
JUDGE FARRELL: (Laughs.) Yeah.
MRS. EASTON: And I suspect—
JUDGE FARRELL: (Laughs.) Yeah.
MRS. EASTON: —there are quite a few judges that are the same. (Both laugh.)
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JUDGE FARRELL: Right. But I think I was just a little bit too late to really benefit from the
education I would have had in electronic research and everything to do
with computer technology as it relates to the law. Or maybe, as my wife
tells me, I was just, in a way, lazy. I prefer—“You prefer to do it your
way, Michael,” she says. “And you’ll never change.” And my response
is, “If the chief judge over the years had been willing to send me off to La
Jolla for a month of learning Lexis and West and computer analysis and
research, I would have done it, but short of that, I’m doing it my way.”
(Laughter.)
MRS. EASTON: Exactly, in order to get it done. (Laughs.) Well, I want to ask you if you
would think about anything else from your U.S. Attorney years that we
should be sure to talk about next time. And then when we get together
next time, I will want to talk about the application form that—you
mentioned that you—you were put up once—
JUDGE FARRELL: Right.
MRS. EASTON: And then decided to do it again—
JUDGE FARRELL: Right.
MRS. EASTON: —before starting on the bench. And then start, at least, talking about your
years on the bench.
JUDGE FARRELL: Right, right.
MRS. EASTON: But I’ll go back and do this transcribing and we’ll see if we can move on
into your judicial years.
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JUDGE FARRELL: Well, we should—maybe we can finish the whole thing in one more
session, although it’s twenty years of judicial stuff.
MRS. EASTON: And the more recent things, we can, you know, actually sit and talk about
some opinions if you’d like.
JUDGE FARRELL: Yeah, sure.
MRS. EASTON: So, I’ll give you a little bit of homework in that, if there are some things
from your U.S. Attorney days, or particular opinions you want to discuss,
let me know about it so I can get up to speed and ask questions about
them.
JUDGE FARRELL: Wonderful. Maybe I’ll do—I’ll send you a list of a few of them and we
can talk about them.
MRS. EASTON: I’d really enjoy that. That would be fantastic. Well, let’s go ahead and go
off the record.
