Stanley Harris Text of Interview (May 10, 2002)

Oral History of STANLEY HARRIS
May 10, 2002
This is the fourth session in an oral history conducted under the auspices of the oral
history project of the Historical Society of the District of Columbia Circuit. The interviewee is
Stanley Harris, a lawyer in practice and in the judiciary, and the interviewer is William Ross.
The date is May 10, 2002.
Mr. Ross: When we broke the last time, Stan, we had ended up finishing pretty
well your time on the Superior Court. It comes to 1972 when you were appointed to the D.C.
Court of Appeals. We’ve touched on this earlier in your history, but I would like to go over it
again. How did you come to be nominated for, or appointed to, the highest court in the District
of Columbia?
Judge Harris: Well, I had been on the Superior Court for I suppose about a year
and a half when I received a call from Don Santarelli. I had known Don slightly and he had been
a previous director of the LEAA, Law Enforcement Assistance Administration, which was
allocating funds to various law enforcement agencies around the country and then after Don had
been in that position, he went to the Department of Justice, and I’m not sure which of the
political appointee jobs he held, but there was a vacancy on the District of Columbia Court of
Appeals at the time of course. Andrew Hood, who had been the Chief Judge of the court, made a
decision to retire. Judge Hood was a marvelous person as well as a fine judge. When I first got
the call, I did not know what he had in mind, but he asked me to come to the Department of
Justice and knowing there was a vacancy there, I thought that it might be possible that he was
going to talk to me about that. Well he was. But the purpose of his call was to ask me what I
thought about Sylvia Bacon, who was another judge at that time on Superior Court. She was a
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very able woman, among those who had been very helpful to me when I made the transition from
being a federal regulatory lawyer to a trial judge on a court of general jurisdiction. And I had a
very high opinion of Sylvia. And Don asked what I thought about her. I told him I thought that
she was terrific and would be a fine choice. I was a little surprised by that, I don’t know why he
didn’t just ask me that on the phone, but I went to the Department of Justice to have that
conversation with him. And that was the end of it. So I thought, well, I was not going to be
asked to go on the D.C. Court of Appeals, and as I mentioned earlier, that was a time in which
the Department of Justice and the White House had a free choice as far as who went into the
Article I court system. There was no nomination commission as later was created by the Home
Rule Act. Then a week or so later I got a call from Don again asking me to come back to the
Department of Justice, and I went back, and he said we keep hearing your name. Would you do
it? I said yes I would. So that was it. I’ve had sort of a nutty existence in that I’ve had four
presidential appointments. I have never been active one iota in politics. Each of the four
positions that I’ve had have basically come about by telephone call from somebody asking me if I
would undertake a particular responsibility.
Mr. Ross: How many members did that court have at that time?
Judge Harris: Well, as part of the 1970 court reorganization, the District of
Columbia Court of Appeals had been enlarged from six to nine judges and among the eighteen
new judges that were added to the court system as a part of the 1970 reorganization, three went
on the Court of Appeals. Those three were Gerry Reilly, Hubert Pair, and Walter Yeagley. And
so then it became a nine-judge court which is pretty standard for — that was the same number that
the U.S. Court of Appeals had and that so many appellate courts had, which I think is a good
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number.
Mr. Ross: Did the court sit in panels of three?
Judge Harris: Yes.
Mr. Ross: What led you to say, “Yes, I will accept the appointment”? You had
an opportunity to think about it, obviously, in some way.
Judge Harris: Well, there is a curious mindset amongst judges. There are a lot of
trial judges who have no interest at all in becoming appellate judges, and conversely, there are a
number of appellate judges who shy away from the opportunity even to sit on a trial court, which
they could do by designation. I suppose because of a lack of familiarity with it. I personally like
both types of work. I like writing. I like researching. I like considering subtle legal problems
and it seemed to me as though it would be a different and challenging shift to make, and so I
readily accepted.
Mr. Ross: Had you had any practice before the Court of Appeals prior thereto?
Judge Harris: Not before that court. That court previously had entertained only
appeals from the Court of General Sessions, which as indicated in our last session, handled only
misdemeanor cases in the criminal area and only civil cases which involved less than $10,000 in
the civil area. And I may have on a pro bono basis done one or two things to help somebody in
the Court of General Sessions, but certainly I had never done anything before the D.C. Court of
Appeals. But I had had a number of cases before the U.S. Court of Appeals.
Mr. Ross: So, in a sense it was a new venture for you and the other judges?
Judge Harris: Yes.
Mr. Ross: Tell me about your colleagues as they were when you went on the
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court.
Judge Harris: It was really a very, I thought, terrific group of folks. Andy Hood,
whose seat I took, was still sitting on the court as a retired judge, a marvelous man who had done
a fine job as Chief Judge of the court. The others who were on it when I came on it were
Catherine Kelly, Austin Fickling, Frank Nebeker, George Gallagher, and John Kern. The new
ones who came on that court at the same time I just named, Reilly, Yeagley, and Pair, so it was a
fine bunch and there was a very collegial atmosphere on the court.
Mr. Ross: How did you make the transition from being a trial judge or being a
practitioner who would argue before a court like that and a judge who was hearing appeals? You
had schedules and periods of time when you sat and heard oral argument and so forth.
Judge Harris: It was an awfully simple transition. Simple in one unique way. I
mentioned previously how we had had to function for some time in the early days of Superior
Court out of what was basically an office building that had been remodeled and the way that
permitted some courtrooms to be created. In the meantime while I was, during an early period on
the Superior Court, the old Pension Building had been remodeled to create courtrooms and
chambers, and I moved from the office building on H Street in which we were located to the
Pension Building and the new chambers, but knowing that I was about to go or would be soon
going on the Court of Appeals, I never unpacked my boxes. So during the months in which I
worked in the Pension Building, the boxes stayed packed in anticipation of another move and at
that time, of course, the District of Columbia Courthouse, now the H. Carl Moultrie Courthouse,
as it was named after Judge Moultrie from the Superior Court died, that had not been built as yet,
so that there were chambers for a few judges in the old building B of what had been the Court of
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General Sessions and the District of Columbia Court of Appeals. I moved into the chambers,
which were in another office building at 601 Indiana Avenue, where there were six ofus before
the new courthouse was built. I was there during my early time on the D. C. Court of Appeals.
Mr. Ross: Did you find that there was an atmosphere of collegiality on the court?
Judge Harris: Very much so.
Mr. Ross: People got along by and large?
Judge Harris: Yes. It was a fine group of folks.
Mr. Ross: And you didn’t have an ideological split, I assume, or did you on that
court?
Judge Harris: I think at that point I would say definitely not. There was as you
would expect on any court a mix of those who politically would be some Republicans and some
Democrats. That happens anywhere. But everyone took pride in putting their political
predilections aside to the extent to which they could, but they did their best to do the right thing
in the courtroom. It was a very collegial group.
Mr. Ross: What law clerks did you have? You personally? How many?
Judge Harris: Well, at the time that I went on the court, the court was authorized
to have only one law clerk. That is, each judge on the court was. The difficulty that that
presented was ari outgrowth of the fact that the jurisdiction of the court grew enormously when it
was officially designated as the highest court in the jurisdiction and all the felony cases moved
from the United States District Court into the newly created Superior Court which created a
significantly larger number of more meaningful appeals in both the criminal and in the civil area.
There was an oddity though in that the number of law clerks which a judge on that court could
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have was determined by statute so that it was necessary to go to Congress and get legislation
enacted to change the number of clerks from one to two. So I recall that Gerry Reilly who by
then had become the Chief Judge of the court and John Kem and I had to go before a
congressional committee and testify as to our needs to be able to get a second law clerk.
Mr. Ross: You were able to get that I take it from the Congress?
Judge Harris: Yes.
Mr: Ross: How did you work with clerks?
Judge Harris: I started out with the unrealistic idea that I would be able to write
everything myself, getting guidance from a clerk through memos, and then do all the drafting. I
found it didn’t take long to conclude that that was an idle dream, that the demands on my time
were such that that was infeasible so that I had to go to the result that I think virtually all
appellate judges have had to go to with modest exceptions and that is let your cierk know, or
clerks after we got to the point of having two, which was just a couple of years — I can’t
remember exactly when the legislation was passed increasing the number of clerks from one to
two — but I finally concluded that the only feasible way to approach it would be to have your
clerk or clerks do a draft of an opinion and edit and modify it rather than starting out at the very
beginning and writing it all from scratch. With one exception. I basically always wrote my own
dissents because in dissents you have a particular point of view and you’re speaking only for
yourself and not for the Court and it would be difficult to — I found that it was always difficult to
implant the subtle nature of my thinking, if I happened to be writing a dissent, into the mind of a
clerk in a way that was satisfactory.
Mr. Ross: The way the court worked, you held scheduled oral arguments and then
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you had conferences, I assume.
Judge Harris: Yes.
Mr. Ross: And those were held periodically?
Judge Harris: Yes. They would be held right after the oral arguments.
Mr. Ross: Usually after the oral arguments. So it was fresh?
Judge Harris: Right. And then in some cases, in most cases, the panel of the
court could make a determination as to what result it wanted to reach. When I say wanted to
reach, the one that it decided was the correct result. And an assignment would be made as to
whose responsibility it would be to write a draft of an opinion. Of course, things did not always
work as planned. There were a number of instances in which the panel would reach — and this is
true of any appellate court of course — where the panel would reach a conclusion as to how it
believed the case should be decided and then when the authoring judge undertook to write an
opinion, the authoring judge would conclude that it wouldn’t write. That the result that we
thought was correct was not the correct result so you would have to change and go back to the
others and say, “I think we were wrong.” That led me to get quite a bit of criticism in one case,
as a matter of fact. We had one case in which we readily agreed that a conviction should be
affirmed in a criminal case. Because of that, I didn’t give the case a very high priority and
thought it could·be taken care of rather simply and it got put aside because of the more
emergency nature of several other cases. But then, along the lines that I just mentioned, once I
began to really analyze and try to get an opinion out in the case a lot of time had gone by and
concluded that in fact the conviction should be reversed. So I went back to the panel and said, “I
think we’ve got to reverse this.” They agreed. And for that exercise in seeking justice I later
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caught hell for — not for reaching the correct result, but for having taken so long to get there,
when all along the reason we didn’t get there was because I thought it was going to an
affirmance. So, speedy trial questions were raised when we remanded the case back to the
Superior Court.
Mr. Ross: Did you follow the practice ofreading briefs or at least going into them
prior to oral argument or not?
Judge Harris: Yes. I would always read the briefs the day and night before oral
argument.
Mr. Ross: I know that there are some judges that don’t do that. The Second
Circuit, for example, is famous for, or in years past, having a sort of tradition that they come
totally virgin to the bench when they are hearing argument and the bar of that court, many, many
were very upset about that. They thought that the court was busily asking rather mundane
questions about what was in the record. But you didn’t approach it that way.
Judge Harris: No.
Mr. Ross: How about colleagues? Did you have any colleagues who didn’t
follow that practice?
Judge Harris: Well, of course one of the interesting things about judging is that
you never really
‘
know quite how your colleagues work. Certainly without exception I believe
that my colleagues understood the issues in the case. Whether they actually read the briefs
themselves or whether they relied on bench memos prepared by their law clerks, there would be
no way that I would know. Certainly nobody went on the bench cold in the way that you’ve
suggested was followed by that court.
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Mr. Ross: Did you find the research facilities and support services adequate on
the court?
Judge Harris: Yes. Of course in those days we used only books. Computers were
not used, were not at the point — that was in the early days of word processors as opposed to
typewriters. Those were the days when, among other things, the secretary in a judge’s chambers
had a very critical role because the judge and his clerks would do drafts of whatever they were
working on in long hand, and then convey it to the secretary to type it out. Later, secretaries
became relatively underutilized appendages in chambers and many judges, particularly on district
courts have gone — instead of having secretaries — have gone to having a so-called permanent or
third law clerk person who has adt-ninistrative responsibilities, and who will answer the telephone
and do that sort of thing, but also will fulfill part-time the role of a law clerk.
Mr. Ross: Right. What’s your feeling about the caliber of the bar, the
characteristics of the bar that appeared before you in appellate court?
Judge Harris: By and large, so much depends on one’s frame of mind, the old “Is
the glass half full or half empty?” Psychologically, I’m one of those who sees it as half full. You
don’t expect everybody to be an Edward Bennett Williams or a John Roberts or a Barrett
Prettyman, but I felt that by and large it was a very capable group. But part of that is attributable
to the fact that in the District of Columbia area geographically you had a significant number of
defendants represented by the Public Defender Service which had its own appellate section and
those were quality folks. You had of course in that Article I court system, as later I encountered
in the Article ID court system of the district court, you have a number of folks who as the saying
goes who would try cases out of their hats and basically they were trial lawyers who were
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comfortable only in the courtroom and did not wish to handle cases that they lost on appeal and
then new people would be appointed. So if you had someone, the lawyer who tried a particular
criminal case did not wish to handle the appeal because they didn’t feel that they had the skills,
the research tools, the writing ability, the court of appeals would appoint a lawyer to handle the
appeal.
Mr. Ross: Are there certain appeals that you were on the panel that stand out in
your mind for any reason, whether because they were notorious or because they were interesting
and important?
Judge Harris: Well, there’s an odd factor that operates here and I was comforted
in finding that Gary Gesell, who later became my colleague on the district court, readily
acknowledged the same fact. He would analogize handling cases to a hose and say, “Well, the
water comes in at one end and it goes out the other, and the hose then is cleaned,” by which he
meant of course that you would be working on a case and focusing on it intently and then later it
didn’t come back to you.
Mr. Ross: Flushed your mind out.
Judge Harris: You turn to the next one and it’s hard to think back. There are a
couple that do stick out in my mind, particularly one that involved a defendant named Keith
Crews, and he liad been engaged in robbing women on the grounds of the Washington
Monument in the ladies’ restroom there. The Park Police thought they had apprehended the
fellow who had been perpetrating these offenses, and they had a camera, and they wanted to take
his picture there on the monument grounds, but it had gotten dark, and so they took him to the
police station to photograph him and then promptly released him once they had gotten his
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photograph. A number of the victims of this fellow identified him, and so he was tried and
convicted and a motion to suppress had been filed on the grounds that he should not have been
taken to the police station, and that was an unlawful seizure because the police did not have
probable cause at that point to arrest him. Well, to suppress in that case would have meant
suppressing the defendant’s identity, which struck me as rather extreme. It would mean that the
victims of a criminal were in perpetuity precluded from the opportunity to identify the person
who had victimized them. When we had the case on appeal, we had a two-to-one vote. Frank
Nebeker and I voted to affirm his conviction, and I believe it was Catherine Kelly who dissented
— it may have been Austin Fickling — in any event, it was two to one. So the panel split two to
one in affirming the conviction. I wrote the opinion, and the court then went en bane, and by
seven to two, overturned the panel. Judge Nebeker and I who had made up the majority initially
suddenly were a two-member minority in the full court. The case then was taken by the Supreme
Court which by a vote of nine to nothing went our way, which is a little on the unusual side from
which we took a certain amount of gratification.
Another case that sticks in my mind was a rate case involving Washington Gas Company
and a rate increase which had been denied and it was an enormously complex thing. You’ve had
experience in rate cases and I thought that — I mean it seems to me — that public utilities are
entitled to earn a fair rate of return and that the Public Utilities Commission was denying that to
Washington Gas Light, which was not in the interest of either the consumers or the company or
the community or anybody. But because it’s such a tough area of the law, I took — once I
designated a law clerk to work on it, I gave her first a textbook, I forget the name of it, and said,
“Before you start working on this case, read this book so that you get a quick education on rate
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cases,” and ended up I wrote an opinion which was ninety-some pages long. It was one of those
cases that I — we have a place at Bethany Beach and I ended up, in order to be able to focus
entirely on such a complex case, taking the record and a dog and going to the beach by myself for
a week or two to finalize an opinion. With respect to which I ultimately did not prevail and
ultimately the Public Utility Commission was affirmed over a lengthy dissent of mine with the
majority opinion including much of what I had written when I thought it was going to be a
majority opinion reversing the Public Utility Commission.
Mr. Ross: Well, we could be a lonely voice at certain points in our careers trying
to protect the basic interests of utilities, which I did as a career.
Judge Harris: I was comforted — I hadn’t thought of it in some time, but Roger
Robb, whom I had known for some time, who was on the United States Court of Appeals,
apparently took the time to read my dissenting opinion in that rate case and was kind enough to
call and say he thought it was the finest rate case opinion he had ever read.
Mr. Ross: Terrific.
Judge Harris: But I lost.
Mr. Ross: On your en bane procedure, that was what, the active judges voting to
grant an en bane?
.fudge Harris: Yes.
Mr. Ross: So it would be similar to the Court of Appeals.
Judge Harris: Correct.
Mr. Ross: Do you have many of those?
Judge Harris: Not many and I have no recollection of the statistics and I, of
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course, anybody who serves on ah appellate court quickly learns an appreciation for the difficulty
of being on the Supreme Court where you are always sitting with nine Judges or Justices,
because the more you have the tougher it gets to work out language and results.
Mr. Ross: There was an item that appeared in your earlier history which I don’t
know whether you would want to go into here, but I was unable to really understand it. It
involved, as I understand it the possible appointment of Judge Newman as the Chief Judge of the
Court of Appeals. You discussed that, but there was a lack of clarity I think partly, maybe this is
some of my having no relevant background. That apparently received a fair amount of publicity.
Judge Harris: A regrettably large amount of publicity.
Mr. Ross: Could you give your version of that here now?
Judge Harris: Well, Gerry Reilly had served very well as the Chief Judge of the
District of Columbia Court of Appeals and I can’t recall the exact years and haven’t made any
effort to research the precise year involved, but Ted Newman had served on the Superior Court at
the same time that I did, and Ted was a very able hard-working guy, there was no problem
whatsoever with his ability. But by that time, through legislation enacted in 1974 — the Home
Rule legislation — the designation of someone as a Chief Judge of the court was no longer done
by the President of the United States, but rather was done by the nomination commission. There
was a rather remarkable timing involved. I’ve never heard of it happening before or since. Ted
Newman was nominated to the D.C. Court of Appeals and it also was contemplated that he
would become the Chief Judge of the Court of Appeals. And I remember that he was nominated
on a day when I was going to the beach for a few days, and on the news that night, I had heard
that he had been confirmed by the Senate, apparently on either the same day or the next day after
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his nomination had reached the Senate and that enabled the nomination commission to make him
— he not only became a new judge on the court, but he was named as the Chief Judge of the
court. A critical component for any chief judge is collegiality, and Ted, despite his many good
qualities, was a very volatile fellow and in my view did not have the personality that lent itself to
having the most cohesive functioning of an appellate court and so he served for four years as the
Chief Judge and the question came up whether his period of time as Chief Judge should be
renewed, and there were four ofus who were active judges still who took the position that it was
not in the court’s interests for him to be redesignated as Chief Judge. And that was — I, John
Kem, Frank Nebeker and George Gallagher. Politically it happened to be a mix of two
Democrats and two Republicans, although it was not politically motivated in any way. The
unfortunate fact is that all four of us who thought that his temperament was not such that he was
a good choice to continue as Chief Judge, all of us were white. Ted is black and the matter
became unfortunately more politicized and these things are very difficult to view analytically in
the public perception and the media. The whole dispute was covered in remarkable detail by the
Washington Post through efforts of a then-young reporter named Ben Weiser, and Ben was an
enthusiastic, bright, politically liberal young reporter who spent an enormous amount of time
talking with everybody and getting in-depth in the case. He started out with the presumption that
the four of us were sort of the bad guys and there indeed was a racial overtone to the position
which we took. Ben later came around to our point of view, but he of course could not write his
own point of view in his stories. It got a lot more press than we would have liked. But we had
to ask — the four ofus had to submit statements to the Judicial Nomination Commission which
was as I indicated a relatively new creation with the feeling that we in effect were spitting into
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the wind. That they were not likely to listen to us, but we followed our consciences and did what
we thought was in the best interests of the court and the legal community and opposed his
renomination unsuccessfully.
Mr. Ross: So, you had him as Chief Judge for the next few years?
Judge Harris: Yes.
Mr. Ross: That was — how many years would that have been?
Judge Harris: My guess is that we were opposing somewhere around 1976 so that
he then — we are probably talking about a four-year appointment, perhaps from 1976 to 1980,
and then he was reappointed again. But Ted and I and the others, we didn’t have a hostile
relationship at all after that. I’m sure he wasn’t happy that we opposed him, and I think Ted
would be the first to acknowledge that he is indeed a very volatile person who could storm out of
an en bane. Ifwe had an en bane hearing and he didn’t like the way the discussion was going, he
could once or twice storm out of the meeting and we then would have a very erudite discussion
of the law. Then he would come back and — but we’ve always had a good relationship since, as
good as could be had under the circumstances. We have always greeted each other with
cordiality ever since.
Mr. Ross: I’ll tell a little story here. I don’t like to do this too much. I had a case
in the Third Circuit Court of Appeals. I had it in a sense that I was senior lawyer on it, but the
brief was basically written by a senior associate, almost near to be partner, who to his intense
delight I offered the argument because I felt he could handle it and it was time for him to do that.
And there was a judge on the Third Circuit at that time, who I think was of an Italian-American
origin, who was very well known for his effervescence, his volatility and so on. And my young
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colleague unfortunately got on the wrong side of him in the oral argument, didn’t handle it very
well. He didn’t do anything terrible. And he had not been briefed about this man or his
temperament, and the judge became incensed and apparently was trying to do something about
him — contempt citation or something. And I went up to Philadelphia and called on Judge Garth,
who at that time was the Chief Judge of the court. I didn’t know whether he’d see me, but he did
and we talked about it. And he said well, you know, so and so — the name of the judge — has a
“Mediterranean” temperament. Judge Garth says I’ll talk to him; I think maybe we can pass this
one. So he did, and I never heard anything more about it. Mediterranean. Your colleague Judge
Newman perhaps had a Mediterranean temperament.
Judge Harris: And he tended to be the antithesis ofme at oral arguments. Ted
liked to sort of take charge in an oral argument, whereas my feeling was give the lawyers an
opportunity to express the viewpoints that they’ve worked so hard on and ask questions only
when you want something clarified. I never viewed oral argument as an opportunity to show that
I knew what the case was about, but rather to give the lawyers a chance to make their arguments.
Mr. Ross: It would be a blessing if there were more like you. What were your
relationships with the Court of Appeals and the governing structure of the judiciary in the District
of Columbia?
Judge Harris: I suppose I was fortunate. It was a positive that I had been on the
Superior Court. I knew, of course, all of the Superior Court judges, although that began to
change with time. The Superior Court is a difficult court to serve on, as I indicated before,
because the volume of work is overpowering and having been there, I had empathy for the
problems that the trial judges on that court were facing. The Court of Appeals was a great
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experience and I enjoyed it and the judges worked together to get the best result. One judge on
the court, he was obsessed with — I mean it in a constructive sense — with the idea of being able
to disagree without being disagreeable, and I think his thinking permeated the court whenever we
had differences of opinion on the result of a particular case. Everybody really made a
conscientious effort to make sure that we were never disagreeable about that.
Mr. Ross: Did you have any direct dealings with the Federal Court of Appeals?
Judge Harris: No. Not officially, although as a part of the court reorganization
and while the District of Columbia Court of Appeals became the highest court of the jurisdiction,
there was a transition period and so that there could be continuity in the law which governed the
District of Columbia, opinions of the U.S. Court of Appeals were considered to remain as
binding precedent in the jurisdiction unless and until they were overturned by the District of
Columbia Court of Appeals, not by a panel but en bane. That was the only basis on which a
valid opinion of the circuit court could be overturned by the D.C. Court of Appeals.
Mr. Ross: Did that cause any problems?
Judge Harris: No, I don’t think so. And here of course we are going back more
than 20 years, but I would say no, there were certainly — the fascinating thing about the law of
course is that you just don’t have any cases that are 100 percent one way and zero percent the
other. There are an awful lot of cases that are 51 percent one way and 49 by the other and people
of good faith can reach opposite conclusions in these close cases. And certainly there were cases
that had been handed down by the circuit court with which I was not in complete agreement, but I
had no trouble accepting that that was binding precedent and following it. Nor did my
colleagues.
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Mr. Ross: To what extent did you feel as a member of this appellate court that
you were one of a body of I’ll call them state judges, non-federal jurisdictional court judges -Appeals
Court of New York or the Boston Court, Supreme Court of California, and so on? Did
you feel a sense there of collegiality of some kind, perhaps in getting together with them in the
conferences in the organizations that bring that multiple judiciary together?
Judge Harris: Well, I’m not sure I follow your question, but I was born, raised
and practiced law only in the District of Columbia. So I have no experience with state supreme
courts and this was the court system in which I found myself and it would be like I suppose a bit
like being in the Navy, you serve on whatever ship you’re assigned to and become preoccupied
with having it function well. You take and play with the cards that are dealt you and we were on
that court and did the best job we could.
Mr. Ross: How about precedent — let’s suppose you had a case, which I’ve had in
the District of Columbia courts, with no district precedent at all that one could discern. You
could go through the digest — the question had never come up in the District — was there any
kind of methodology or common understanding as to how you would deal with foreign
precedent? None of which of course was binding. Was there a sense in which some courts were
more equal than others when their decisions were cited to you or did you just treat it as a kind of
an undifferentiated mass of possible precedent and it would be the persuasiveness, internal
persuasiveness of the foreign opinion that would effect you?
Judge Harris: The latter. I think that if you had a novel question you’d certainly
think it through yourself as best you could and then if other courts had dealt with the same issue
and you could read somebody else’s analysis you could conclude that that analysis seems sound
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and it happens to be the same analysis I’ve gone through or that analysis is interesting, but I think
I don’t agree with it, but other opinions can always be helpful in shaping your approach in
making you either comfortable or uncomfortable with what seems to you to be the right result.
Mr. Ross: When you were interpreting the District of Columbia statute, did you
have accessability to the legislative history involving that statute, particularly the D.C. Council
statutes? Would that be available to you to determine the legislative intent?
Judge Harris: Again, I’m vague in my recollection of that and I can only come to
two conclusions thinking about your question and one is that a lot of the council stuff came later.
Virtually during my entire time on the Court of Appeals, we were dealing only with
congressional actions. Later of course the D.C. Code could be amended and was amended by the
council, but I think that during the whole time that I was there it was basically congressional
action. I have always tended to be of the school that puts minimal reliance on the iegislative
history. Those of us who have been around here, certainly including you, who have watched
Congress through the years know that occasionally a particular member of Congress will get up
during discussion of a bit of legislation and make some comment that he’s comfortable with that
doesn’t really fit, isn’t a part of — to me should not be considered part oflegislative history just
because one member of Congress said, “Oh, this is what we want to do by this language which
otherwise is clearly to the contrary.”
Mr. Ross: But you would use the usual congressional materials, committee
reports and so forth?
Judge Harris: Yes.
Mr. Ross: Have you ever thought about the so-called strict — I’m sure you have
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thought about it — the strict interpretation doctrines? You’ve read Justice Scalia on his notions
about that and Judge Bork during his time on the Court of Appeals and elsewhere?
Judge Harris: Well, Justice Scalia is not a big one for legislative history, as you
are suggesting, and I think my approach parallels his pretty broadly. That is, as far as what you
look to beyond the words of the statute itself in determining what Congress intended in what
laws and how the language should be applied to a particular fact situation.
Mr: Ross: And in the construction of statutes, the press, including the legal press
to some extent, seems to want to make a dichotomy between broad interpretationists and strict
interpretationists on construction of statutes, particularly where they can’t find a rule or provision
in the U.S. Constitution, they are much less likely to incorporate or put it into a very generalized
concept like due process, equal protection and so on. You must have encountered that in your
appellate work in particular.
Judge Harris: Yes, with I suppose the most glaring example being the term
“unreasonable” in the Fourth Amendment. What you’re protected against are unreasonable
searches and seizures. Unreasonable is not a very precise term.
Mr. Ross: No. Did you feel that there was a rule that you could formulate for
yourself on that issue or did you just feel that you had to take each case at a time and you were
disinclined to say I’m a strict constructionist.
Judge Harris: Well, this makes me think of a motions assignment which I had
when I was on Superior Court and you would have a given period of time — whether it was three
weeks or four weeks I can’t remember — in which year and time was devoted entirely to motions.
And the bulk of those motions would be motions to suppress in criminal cases. And I started out
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that assignment making an effort to read not only each motion and the opposition thereto, but to
read the cases that the lawyers were relying on. And it didn’t take very long to realize that there
is something for everybody in the Fourth Amendment area. Perhaps one of the most notable
cases in that area is Coolidge v. New Hampshire, and when I later attended the Appellate Judges’
Seminar which was conducted up at New York University, I went to the library to review
Coolidge v. New Hampshire, a Supreme Court opinion, and found that the pages were about
twice as dark as that of any other case in the reporter system. So many people had gone to the
case to try to find what was in there and there is something for everybody in Coolidge v. New
Hampshire, as there are in many other cases. So what I shifted to from the standpoint — certainly
it fits the use of unreasonable searches and seizures, and sitting on the Superior Court with this
great volume of motions is I concluded that I wasn’t getting commensurate help from the
opinions that I was looking at and you start to rely on your gut. Did what happened here seem to
be fair, to be reasonable, within the terms of the Constitution or was this defendant treated in
such a way that this evidence should not be used? You begin to rely more on your gut than going
through an unending series of totally varying factual situations that end up with.a lot of different
conclusions.
Mr. Ross: You don’t find much guidance at the end of that process.
Judge Harris: Not at the end, no. You can spend an awful lot of time to be right
where you were when you started.
Mr. Ross: Well, perhaps we have come to a natural stopping point and I’m almost
completed one cassette side. And it’s 3:30 at the moment. Next time, we’ll go into — I have
some follow-up questions on the Court of Appeals, I want to go onto those. We’d like to cover
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your time in the U.S. Attorney’s Office and then probably go into your appointment as a federal
judge. I won’t try to predict how many more sessions we will have. I do want to go back into, as
I told you, at the end of this, when I had gotten to know you a little bit better, and then more into
your personal life and your children, grandchildren and how you feel about a lot of things that
aren’t as directly related to your career as the things we have been talking about. But shall we
call it a day?
Judge Harris: All right, sir. Whatever you wish.
Mr. Ross: All right.