Henry Kennedy, Jr Fifth Interview, February 12, 2008

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ORAL HISTORY OF THE HONORABLE HENRY H. KENNEDY, JR.
Fifth Interview
12 February 2008
This is the fifth interview of the Oral History of Judge Henry H. Kennedy, Jr. as part of the Oral
History Project of The Historical Society of the District of Columbia Circuit. The interviewer is
Gene Granof. The interview took place in the chambers of U.S. District Judge Kennedy in the
Federal Courthouse in the District of Columbia on Tuesday, February 12, 2008, at 2:00 p.m.
Mr. Granof: So when we left off we had pretty much covered your tenure as a U.S.
magistrate.
Judge Kennedy: Yes.
Mr. Granof: And that took you up to about ’79?
Judge Kennedy: Yes, to ’79.
Mr. Granof: And that was about three years?
Judge Kennedy: I was a United States magistrate for three years.
Mr. Granof: And then you went to the Superior Court?
Judge Kennedy: That’s right. I enjoyed being a United States magistrate, but I thought it
would be a good thing to be a judge of a court of general jurisdiction.
And so when I learned that there was a vacancy, I applied. There’s a
Judicial Nominating Commission that posts notices when there’s a
vacancy. I was considered three times before being actually selected by
the president for appointment. I’m sure you know what happens when
there’s a vacancy. The Judicial Nominating Commission sends to the
president of the United States three names of persons who the commission
believes would be suitable judges to be appointed. The third time was a
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charm, and I was appointed by Jimmy Carter. Never met him, but I was
certainly very pleased to get the appointment.
Mr. Granof: Now, aside from putting in your application, what do you have to do? Do
you get support from people?
Judge Kennedy: Yes. Actually it was a while ago but, yes, as I recall, that’s what you do.
You try to determine who has influence with the powers that be in the
party of the president of the United States and ask those persons to support
your candidacy.
I have a funny story here because one of the persons that I
approached to ask for her support was a woman by the name of Ann
Brown. Ann Brown was the head of the Consumer Products Safety
Commission, and she was known to be a person who was very active in
Democratic politics. I called her up, and actually went to see her and
asked her to support me. She looked at me — she was a friend — and she
says, “Oh, Henry I’m afraid not because I am supporting Harriett Taylor
for that particular seat.” Harriett Taylor was appointed. I say it’s a funny
story because I then got the next seat and Harriett Taylor became my very
closest friend on the court. When I was appointed it just so happens that
my chambers — the entrance to my chambers — was right across from the
entrance to hers. I didn’t even know her before. All I knew is that she
was the person whom my friend, Ann Brown — and Donald Brown was
her husband, a big developer in the city — had supported rather than me.
But as it turns out, I got to know Harriett Taylor very well. She’s just an
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absolutely wonderful person, and we became just very close. So close that
we both decided that we would never move from our chambers on the first
floor to anywhere else in the courthouse unless we could move together.
So there would have to be two chambers side by side.
At the time, the Chief Judge of the court was H. Carl Moultrie, for
whom the Superior Court building is named. He had this humorous,
funny idea that the more senior the judge, the higher up in the courthouse,
physically, the judge should go, so that the more senior judges should
have their chambers on the third floor. That was just his way of thinking.
That was just the natural hierarchy thing. So he actually tried to get us to
move. He’s saying you’re becoming more senior, you know, you’re
supposed to move your chambers. We never did. When Judge Taylor
died, years later, her chambers were still right next to mine.
Mr. Granof: Other than the president appointing you, there’s no confirmation process?
Judge Kennedy: Oh yes there is. Oh boy, yes there is. Under the statute, the president
nominates and there has to be Senate confirmation. But the hearings are
not conducted by the Senate Judiciary Committee, which is the committee
that conducts the hearings for Article III federal judges. Rather it’s the
Senate Committee on Governmental Affairs. And so it’s that committee
that held the hearing on me. And I’ll never forget that because the chair of
the committee was for a while the running mate for McGovern —
Mr. Granof: Oh, Senator Eagleton?
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Judge Kennedy: Senator Eagleton. And he conducted the hearing. And I was very young
at the time, and he commented on that. But he said since I was — referring
to himself — I think he was Attorney General of the State, of whatever
state he was from —
Mr. Granof: Missouri.
Judge Kennedy: Missouri, at the same age as I was being appointed a judge. He says he
certainly can understand that perhaps a person’s relative youth —
Mr. Granof: How old were you?
Judge Kennedy: Thirty-one or thirty-two years old.
Mr. Granof: And what’s the confirmation process like? Does the White House provide
an assistant to walk you through it? Or you just show up?
Judge Kennedy: For the Superior Court?
Mr. Granof: Yes, for the Superior Court.
Judge Kennedy: You know, it’s so long ago. I don’t remember anything like that. I don’t
remember any of the kind of vetting that is done for federal judges for the
Superior Court. I just don’t remember anything like that.
Mr. Granof: Did you deal with the committee staff beforehand at all?
Judge Kennedy: I don’t remember. Other than submitting answers to questionnaires, and
there were those. But nothing that I can remember like that, you know,
which is very much different for the federal bench. My goodness.
There’s quite a bit of activity for that. There’s, in fact, a whole division of
the Department of Justice that is charged with preparing the president’s
nominees for the hearings before the Senate Judiciary Committee. I’ll
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never forget that. They give you these big, black binders with transcripts
of other judges’ hearings, and others talk about questions that you might
be asked. Not suggestions as to how to answer but, you know, you give
your answer and then they say, “Well, I don’t know. Could you say it this
way, you think? Do you think you could say it this way, and say the same
thing, but without saying just that?”
Mr. Granof: So, obviously, you got through the confirmation process and apparently
without much trouble.
Judge Kennedy: No, it went very, very smoothly. Very, very smoothly.
Mr. Granof: And you became a judge on the Superior Court.
Judge Kennedy: Yes.
Mr. Granof: But you had been, in fact, a judicial officer for three years as a U.S.
magistrate?
Judge Kennedy: Right.
Mr. Granof: So how was it different?
Judge Kennedy: Well, I suppose the main difference came in the criminal area. As a
United States magistrate in the criminal area one would conduct the
arraignments — or actually the presentments — make bond decisions as to
whether a person should be released pending the resolution of his or her
criminal trial, or not. We set bond, we conduct preliminary hearings. But
really, except for the most minor offenses, you didn’t try the cases, and
therefore weren’t called upon to sentence anyone. I would say that the
biggest difference had to do with handling criminal cases — actually trying
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them. I had been an Assistant U.S. Attorney so I knew how to try a case.
But it came down to the aspect of sentencing, determining what the
appropriate punishment should be. And this was a time, by the way, when
there were no guidelines at all. There was what is called indeterminate
sentencing where the statute would prescribe the maximum sentence, very
rarely a minimum sentence. Sometimes there were mandatory minimum
sentences. But for the vast majority of cases, there would be a maximum
of, say, ten years. And the judge could impose any sentence that he or she
wanted up to that. To be called upon to do that was a very challenging
thing. And, you know, it’s just a profoundly important thing, of course.
So, that was a big difference.
Also, the Superior Court really is a court of general jurisdiction
and handled just all kinds of things. One of the very important divisions
of the Superior Court — one that I think many people would not consider
as all that important, but which really is — is Landlord and Tenant Court.
When you just think about it, of course, of all the things that are important
to you, your housing is very important. Well, it was the Landlord and
Tenant Court that basically adjudicated disputes between landlords and
tenants. Often the tenants were not well-heeled people, and many of them
had complaints about the housing that was being provided by the landlord.
The landlord was operating a business and certainly expected to have the
rent paid on time. And it is the judge who has to apply the law to the facts
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and resolve these very important disputes. I found that to be very
challenging and very interesting. And let me underscore “challenging.”
Mr. Granof: Why challenging?
Judge Kennedy: For one thing, trial judges on the Superior Court really are trial judges. I
say that in contrast to the trial judges on the United States District Court.
I’m here to tell you that judges over here are not on the bench — that’s
actually on the bench, trying cases, resolving disputes — anywhere near as
much as over in Superior Court. Now, what I have just said about the
difference between the Superior Court and United States District Court is
even more of a contrast when you think about what a judge who presides
over Landlord and Tenant Court does. Back then, these assignments were
for as long as three months, and every day for three months — every day —
the judge would take the bench at a certain time and would be faced with
fifty cases. Now there were systems to kind of weed out the cases, but the
judge had to be there resolving these disputes, important disputes, day in
and day out.
The body of law that is applicable in Landlord and Tenant Court is
very complex — the substantive law and the procedural law. So it was
challenging, one, learning the law — substantive law and procedural law —
and also for three months, every day, taking the bench. A lot of
preliminary matters are taken care of before the judge gets on the bench,
but you get on the bench at 10 o’clock and you’re there on the bench until
5 o’clock just knocking out cases each and every day. And what was at
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stake, again, a person’s housing. Many of the litigants were not
represented, and there was just a lot of — what should I say — emotion. I
mean, just think about it. A person who is in danger of being thrown out
of his or her house. A person who, perhaps, has a family member who is
sick who can’t afford to pay the rent. On the other side, suppose you are a
person who owns an apartment building and that’s your main source of
income, and here you have tenants who don’t pay the rent for no good
reason. You’re trying desperately to get somebody in the apartment who
will pay the rent. And this is your retirement. Maybe you have social
security coming in, but this is how you make your living. And so, the
judge is there, trying to do justice and to apply the law.
Mr. Granof: Fifty cases. So you don’t have a lot of time.
Judge Kennedy: No. And most of those cases, by the way, did not go to trial. Actually, as
I recall, what you did was in the mornings you basically winnowed out
things and found out which cases were left for trial. And maybe there’ll
be three or four in the afternoon, but that is three or four. And that’s,
again, day in and day out.
Mr. Granof: When you were talking about your experience as a U.S. magistrate you
indicated that you were pretty good at effecting settlements, and you were
pretty good as a mediator. Did that help you in Landlord and Tenant
Court?
Judge Kennedy: Well, I like to think so. I mean I really do. I’ll never forget there were
some judges on the Superior Court who were really known for their ability
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to effect settlements — Judge Stewart, Judge William “Turk” Thompson —
and they had different kinds of techniques. I never felt like I had a real
technique. What I always tried to do was to be as forthcoming as I could
be with people. But everybody knows that one good thing about a
settlement is that you could control at least a part of it, which is not what
happens when you decide to go to trial where you have no control. And as
much as anyone might say that they would just as soon lose rather than
compromise, my instinct tells me — and I think it to be true — that that’s
not really so. That’s not really so. And so, I would try to effect
settlements, and I think I was pretty good.
Mr. Granof: Well, one of the things that I have been curious about is when you’re on
the bench day-in and day-out handling a huge number of cases — and you
really want to do justice and right and you have a sense that it’s important
for people to do that — what happens if you come in one day and it’s a bad
day. You know, the traffic was bad, you had a flat tire, whatever. Maybe
you’re not feeling so great, you’ve got a bad cold. How do you deal with
that and keep focused on it?
Judge Kennedy: Well, you know, to me that is what you swore to do, and you’re paid to
do. And that is to not let any of those things that you mentioned — bad
day, maybe your wife has said something that you would just as soon that
she not say, your kids are driving you crazy — but I think that all of us
who are judicial officers, at least the people whom I’ve had the privilege
of being associated with, really appreciate that this really is a trust where
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one simply must, simply must be about the business of doing justice as
best one can in each case. And I think most of us feel — and I certainly
feel this way — that not only is it important to try to do the right thing and
come out with the right answer, but also to be perceived by the litigants as
doing so. The appearance of justice is absolutely — I’ll say it because I
believe it — almost as important as the eventual result. And, therefore, to
convey that you are listening, that you are focusing your attention, that
your decision and what you do is not affected by anything other than the
merits of the respective parties’ positions is absolutely crucial. And that’s
what at least I tried to do, and try to do it to this day.
Mr. Granof: I think that’s an interesting approach. I’ve been in court where I’ve seen a
case which is absolutely frivolous and ridiculous. And yet I’ve seen the
judge be very solicitous of the litigant and say, almost apologetically, “I
can’t do anything for you. The law doesn’t allow me to.” And I take it
that’s sort of your attitude.
Judge Kennedy: Yes, that is my attitude. I have to say this. In preparing to be a judge on
the Superior Court I talked to several people — judges mainly — about the
job. And I must say, one thing that Ted Newman, who at the time was the
Chief Judge of the D.C. Court of Appeals, one thing that he said that
really did stick with me and became one of the principles by which I was
guided, he said that it’s absolutely essential to take one case at a time and
not be influenced by the crush of the caseload. I must tell you that when
you see a sea of people out there, there is this pull to want to bang the
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gavel and get this case done and go on. Now I spent a lot of time resisting
that urge. I don’t know what my statistics were. I suspect that I was never
considered to be the most efficient judge, but I really do believe that after
all is said and done that’s the better approach to take than to do it
otherwise. So, that was my philosophy. That’s the way I did things.
Mr. Granof: I want to come back and ask you about sentencing. But before I do that,
just to get some framework, how many judges were there on the Superior
Court?
Judge Kennedy: Even when I was there it changed. I mean the number of judges has
grown. Every five years it seems to me that there were more and more
judges appointed. As I recall, there were about between 40 and 50. So it
was a large bench.
Mr. Granof: So it was hard to know all your colleagues?
Judge Kennedy: Yes, though I must say certainly not well. But each one of the Chief
Judge’s with whom I served over there — H. Carl Moultrie, Fred Ugast,
Gene Hamilton — all of them felt it a good thing for there to be kind of a
sense of camaraderie. On that court there were various things done from a
big lunch table where all the judges kind of sat together, various training
conferences, and various conferences, where there was the opportunity to
get to know your colleagues on the bench. And I must say that in the
Superior Court we really were a very collegial group.
Mr. Granof: You had mentioned that there are different divisions in Superior Court,
how was it organized?
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Judge Kennedy: When I was there, there was the Criminal Division. And the Criminal
Division was divided into Felony I’s — Felony I’s were murders and rapes
— Felony II cases, and then Misdemeanors. Then there was the Civil
Division. Civil I had the more complex civil cases. A medical
malpractice case, for example, would be a Civil I case. Other not so
complex cases would be Civil II cases. There was the Probate Division, in
which I never served. There was the Family Division, which I mentioned
was a challenge. It’s one of the most challenging divisions in which to
serve for a judge. So, there was Criminal, Civil, Probate, and Family.
Mr. Granof: And Family is divorce and custody?
Mr. Kennedy: Yes. Landlord and Tenant, and Small Claims were also divisions. So
those were the divisions. And the Chief Judge of the court would appoint
the associate judges to serve in those divisions on a rotating basis for
various periods of time.
Mr. Granof: Was there an administrative judge who is head of each division?
Judge Kennedy: Yes, there is what we called a presiding judge. There was a presiding
judge at each division and a deputy presiding judge. I was never a
presiding judge of any division. I was the deputy presiding judge of the
Criminal Division for about five years during the time when Fred
Weisberg was the presiding judge.
Mr. Granof: Did the presiding judgeship rotate, or was that sort of a permanent
assignment?
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Judge Kennedy: It didn’t rotate. It was the Chief Judge of the court who would make that
assignment.
Mr. Granof: It was clearly within the discretion of the Chief Judge?
Judge Kennedy: Yes.
Mr. Granof: How did he make decisions, and how did you find out about it?
Judge Kennedy: I forgot whether you got a memo or he gave you a call. I’m sure the
Chief Judge wanted to keep everybody happy. For example, I mentioned
the very challenging Landlord and Tenant Division. You would want to
rotate the judges through that division, and not have one person do it all
the time. One of the judges might rebel against that notion. With respect
to the Probate Division, I think that the Chief Judge really had to kind of
go out of his way to try to find someone who had, perhaps, a background
in probate work. And there’s also a Tax Division. And that division as
well required a background in the subject area to be effective. By the
way, in the Probate Division there were generally just two judges. And
Tax. I think Tax also had two judges. In the other divisions there were
many more judges.
Mr. Granof: When you were first appointed is there a particular division that judges are
assigned to, like something easier, a break-in period?
Judge Kennedy: Yes, I probably served in the Misdemeanor Trial Section.
Mr. Granof: Did the Superior Court hear traffic cases then?
Judge Kennedy: We did, but I believe that the Commissioners handled most traffic cases,
and a judge was assigned to handle the more serious traffic cases. Those
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were a part of the Criminal Division. And there was a period of time
when I did serve in that section in charge of DWI and reckless driving —
the more serious traffic offenses.
Mr. Granof: So when you get on the Superior Court, do you go through a training
program? I think you said you did for being a magistrate.
Judge Kennedy: We had a very, very rigorous training program that was designed by a
committee of judges on the court. I remember that for a long time Judge
Tim Morrison was the chair of the Training Committee. And this
committee would devise training programs that would take place during
the course of the year. Sometimes we would go away to study various
aspects of our jobs. And so, yes indeed, there was a training program that
was created and implemented by the judges themselves.
Mr. Granof: And did you find that helpful?
Judge Kennedy: Yes indeed. Very, very helpful. Also, I previously mentioned the fact
that there was a greater collegiality on the Superior Court. Much of that
collegiality took place during lunchtime at a big table. It was at that table
that if you had a question, many of us wouldn’t hesitate to go down there
and pose it to our colleagues. And there was a whole lot of learning that
took place at that lunch table. Not planned, but that’s what happened.
Mr. Granof: Lets talk about sentencing because I think at that time judges had a lot of
discretion.
Judge Kennedy: Yes.
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Mr. Granof: What do you think of the tightening up of the statutes to take away
discretion? Do you think that is a good thing or a bad thing?
Judge Kennedy: What a good question that is. I can’t answer that without being a little bit
long-winded about it. There are some aspects of it that are good. One of
the reasons for sentencing guidelines was to address the problem that
many people saw with disparity. It does strike me as not a good thing if
the sentence which a person received very much depended upon which
judicial officer he appeared before. That doesn’t sound right to me. And I
believe that there were many studies done that showed this — to the extent
that you can show this because, in fact, every defendant is different. So
it’s very difficult to draw comparisons to a point. However, that having
been said, you can look at certain things — what a person did, his criminal
history, I mean his history. You can draw those comparisons. And if you
do have wildly varying sentences, that’s a bad thing. And the sentencing
guidelines were created to try to do something about that. So, I think that
there was some good to come out of sentencing guidelines.
Unfortunately, I think the federal guidelines — particularly as they were
until the Supreme Court addressed the matter recently with respect to the
United States sentencing guidelines — were not guidelines at all but were
really mandatory. And judges did, in my view, just too much of
computing. You know there was a quantitative number assigned to the
offense, and you determined the criminal history category.
Mr. Granof: It’s a point system?
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Judge Kennedy: It’s a point system and where that person fell, you had to sentence that
person within this range. The judge could not take into consideration
some things that judges traditionally took into consideration, and it
seemed to me that that was a bad thing. I mean it just is not the case that
the rich man who steals money simply to become richer should be treated
the same as the poor man who steals, perhaps, for survival. And so, to the
extent that the judge was not able to just bring, how should I say, his —
Mr. Granof: Judgment?
Judge Kennedy: Judgment, that was a bad thing. So, on balance, with respect to the United
States sentencing guidelines, until just recently, I think they were bad.
They really did result, in my view, in justice not being done.
Mr. Granof: As a Superior Court judge, initially do you have fairly wide discretion?
Judge Kennedy: Yes. And I’m going to tell you, the judges there, we were cognizant of the
problem of disparate sentencings, and we tried to do something about it.
Judges there, with respect to, particularly, serious crimes, sometimes
would convene what are called sentencing councils. Where what judges
did they would actually have two or three other judges kind of review the
facts, and talk about what is appropriate. I participated in many of them.
And in that way judges tried to take into consideration what it is that other
judges would do under similar circumstances, but would also be able to
bring to bear again, yes, judgment. And that would work pretty well.
Mr. Granof: Were you ever subject, as a Superior Court judge, to sentencing
guidelines?
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Judge Kennedy: They came in after I left. And so, no.
Mr. Granof: What was your favorite, or did you have a particular favorite, division?
Judge Kennedy: No I didn’t. I always felt most comfortable in the Criminal Division.
Because I had been an Assistant United States Attorney, I was very, very
familiar with both the substantive law, the procedures to be followed. I
felt very comfortable. Very knowledgeable and comfortable. I was not as
comfortable in the civil area. Though, given my work as United States
magistrate judge where I handled a lot of discovery disputes and what
have you, I felt more comfortable there than I felt in other divisions and
sections except for Criminal. The Family Division was absolutely eyeopening and I found it very, very challenging. And because I found it
challenging — I kind of like challenges — I came to really like certain
aspects of the Family Division where there’s very little law that tells the
judge what to do with respect to, let’s say, in the neglect area. What a
judge is to do is basically guided by the principle, “You should do what is
in the best interest of the child.” Best interest of the child. How many
times did I serve in what is called the Abuse and Neglect Division of the
Family Division, where you had this scenario: you have a mother who is
a drug user, and who because she is a drug user is unable — and, perhaps,
even unwilling — to care properly for a child. The child is taken away
from the mother by the Department of Human Services — the Child &
Family Services Department of the Department of Human Services — and
later the mother’s drug addiction problem is successfully addressed, and
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now the mother wants to regain the child. But in the meantime the child
has been put with a foster parent who has fallen in love with the child.
Just fallen in love with the child and, indeed, wants to adopt the child.
And the child, by the way, has fallen in love with this family that has
provided the type of life which the child had not to that point known.
Mr. Granof: What do you do?
Judge Kennedy: You did your best. You tried your hardest. But the point is those kinds of
cases are just very, very difficult to deal with. And that kind of thing
didn’t come up, you know, often, but it did come up from time to time.
Much more often the problem was trying to make the bureaucracy work
the way it’s supposed to. In a case like this where the mother needed
services, each one of these families would have social workers appointed
to help. Many of them were overloaded. So your job was to try to make
sure that the social workers did their jobs. The point is that was very, very
challenging work for a judge.
Mr. Granof: As a judge looking at the social service bureaucracy in the District, was it
your sense that they were overloaded, or that they were just inefficient, or
some combination of both?
Judge Kennedy: A combination of both. Some of it was inefficient. Some of it was just
overloaded. Frankly, I think while there are some social workers who
were just absolutely excellent, some of them weren’t so good. I suppose
they’re like every other area of human endeavor. There were some very,
very good ones and some who were not so good.
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Mr. Granof: Now, in your relationships with your colleagues, judges must have some
sense that some judges are better than other judges. How can you tell
that? How do you determine that?
Judge Kennedy: I doubt that there are any judges who speak in terms of judges who are
better than other judges. When I was in Superior Court you had statistics,
but even if you didn’t have statistics you kind of knew which judges tried
more cases than others. Every time the court of appeals writes an opinion
— over in the Superior Court, in particular — they put the name of the
judge whose decision was being reviewed right there on the opinion itself.
The opinion would say, “The Superior Court erred in determining — .”
However, if Judge Kennedy’s name was right there, you know who it was
who erred. And, you know, we followed these things.
Mr. Granof: There are some high-profile or just complicated cases and the Chief Judge
has got to make a decision, I suppose, on the assignment.
Judge Kennedy: Well, no. Generally speaking, that is not the way it works. Generally,
what happens is you’d be assigned to a particular division and within that
division everything was random. So it’s not the situation that there for a
particularly complex case or high-profile case the Chief Judge would
appoint one judge rather than another.
Mr. Granof: So, in fact, it really was random?
Judge Kennedy: Yes.
Mr. Granof: As a Superior Court judge did you have much time for research? Did you
have a clerk?
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Judge Kennedy: Yes. Judges on the Superior Court had — I think they still do — one clerk.
Mr. Granof: Assigned to you personally?
Judge Kennedy: Yes.
Mr. Granof: Did they also have a pool of clerks?
Judge Kennedy: No. We had one law clerk. My very first law clerk, and I’ll just say this.
I am very, very proud of this. My very first law clerk was Kaye Christian,
who is now a judge on the Superior Court.
Mr. Granof: So you must have trained her very well.
Judge Kennedy: She says that I did. Recently, my law clerks gave me a dinner to celebrate
my 10 years on the federal bench, and all of the clerks were invited to
come. And she did, and she kind of gave the main address and said some
very, very nice things about me, and gave me that clock over there.
Mr. Granof: Very handsome.
Judge Kennedy: For the most part, the judge had the one law clerk handling the case.
Mr. Granof: How did you choose your law clerk?
Judge Kennedy: We would get many applications. We get many more here in this court, by
the way. We’d get many applications. I’d go through them. I’d try to
figure out who would be able to do the job. You know, bring that certain
intellectual firepower. Someone who seems to have good judgment.
Basically, someone who has excelled.
Mr. Granof: Some judges have sort of “feeders,” such as law school professors who
recommend law clerks to them. Did you have that?
Judge Kennedy: No, not in the Superior Court. No, not at all.
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Mr. Granof: Now, to what extent did you actually do written opinions in the Superior
Court? If you’re handling 50 cases a day in Landlord-Tenant you’re not
going to have a lot of time to write opinions and maybe it’s not required.
Judge Kennedy: Well, I must say, I did write opinions. Remember, one of the divisions
was the Civil Division. And one division of the Civil Division, in which
judges served, was the Motions Division. And when you were in Motions
you did a fair amount of writing, and you did it when you could. You
know, it’s not a nine-to-five job. And so you just simply devoted the time
that was needed to write opinions.
Mr. Granof: What do you think of the system in which you have a Motions Division
but the judge isn’t the one that’s going to hear the case? Is that a good
system?
Judge Kennedy: I much prefer the system that we have here where the case is assigned to a
judge from beginning to end. I think that’s good because in every case I
read the complaint when I get the case. And I follow the case. I mean I
deal with the discovery problems or will often refer the discovery
problems to a United States magistrate judge. But I’m on top of the case.
And I do believe that that provides a better background for resolving the
case both efficiently and also correctly than having different stages of the
case handled by different people. I’m not saying that it can’t be done, but
I much prefer a situation where the judges follow the case from beginning
to end.
Mr. Granof: Have you had feedback from lawyers on that at all?
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Judge Kennedy: No. In almost every civil case that I know of at some point there’s a
motion for summary judgment where the movant is indicating that there
are no material facts in dispute and the movant is entitled to judgment as a
matter of law. Well, now, suppose as a motions judge I disagree and deny
the motion, and I don’t write anything. Then the trial judge gets the case,
and it seems to me that a better system is one where maybe you have
decided the motion for summary judgment and you have let everybody
know that these are the facts that really are not in dispute and I don’t need
to hear those, but these are the factual issues right here. And so we can
have a trial devoted to what is — at least I have determined to be —
important, rather than all the other stuff. So I would be surprised if every
lawyer wouldn’t prefer an individual case assignment system rather than a
system where you have different aspects of the case decided by different
judges.
Mr. Granof: Pieced out?
Judge Kennedy: Pieced out.
Mr. Granof: So what drives the “pieced out” system, judicial efficiency?
Judge Kennedy: I think at least perceived efficiency. Yes.
Mr. Granof: Although I would think in some way it might be less efficient because if
you’re the judge in charge of the case, you’re likely to move it along.
Judge Kennedy: Yes. Absolutely would. But there must be some reason for the other
system. I mean these systems are not devised deliberately to be
inefficient. I’m a person who doesn’t believe that I have all the answers
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and know it all. But my opinion is that the system in which a judge
handles a case in its entirety is the better one.
Mr. Granof: As a trial judge I guess some of your cases got appealed to the court of
appeals.
Judge Kennedy: Yes. You want to know my record?
Mr. Granof: I wasn’t going to ask, but if you want to give it to me.
Judge Kennedy: Well, I must say my record is very, very good. That was one of the things
in filling out these questionnaires when I was being considered for this
court. That was one of the things that the Senate Judiciary Committee
and, perhaps, the American Bar Association as well, wanted to determine.
And I’m very pleased to say that my record on review was quite good. I
don’t know precisely what it was, and it’s not the case that I wasn’t ever
reversed because I certainly was.
Mr. Granof: How do you feel as a trial judge about being reversed.
Judge Kennedy: Don’t like it. I’ve heard some judges say well, you know, that’s just a
difference of opinion.
Mr. Granof: Well, certainly, if it’s a two-to-one decision or something like that you
know that you got a split there.
Judge Kennedy: Yes. I’m pleased when I am affirmed and I have to tell you that when I
am reversed I read very, very carefully what my brethren — and sisters —
on the appellate court have to say. And I try to avoid repeating what they
said was error.
Mr. Granof: It is a learning process.
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Judge Kennedy: Sure. I can say that I don’t know of any judge who wants to be reversed.
And, again, to answer your question very forthrightly, yes, I would prefer
not to be reversed. I’m not so egotistical as to think that I’m always right
and so that if I’m reversed somehow somebody has gotten it wrong.
Particularly, as you say, when you get three judges looking at the issue
and saying you erred. I just got reversed as a matter of fact. It’s a really
interesting case. I won’t explain it, but I must say I read the decision with
some interest, and was so glad that the writer of the opinion pointed out
that the reversal could be explained a bit because it was reversed on a
point that had never been brought to my attention, at least not directly.
Mr. Granof: But apparently enough was in the record?
Judge Kennedy: But enough in the record. Exactly. So, yes, this is one trial judge who
doesn’t like being reversed.
Mr. Granof: You know anybody who does?
Judge Kennedy: Well, I must say, from time to time I do hear things that suggest
otherwise. But you know you have to wonder whether judges really
believe that, Well, it doesn’t matter to me. It’s just a difference of opinion.
Well, I don’t see it that way.
Mr. Granof: Did you hear any medical malpractice cases?
Judge Kennedy: Oh yes.
Mr. Granof: A fair amount of them?
Judge Kennedy: Yes.
Mr. Granof: In light of the push for tort reform, what do you think as a trial judge?
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Judge Kennedy: I didn’t see many frivolous suits. I think that there are many proponents
of tort reform who posit that there are a whole lot of “frivolous” suits.
Now, the ones that I tried, they weren’t frivolous. Sometimes — by the
way — the plaintiff lost, but not frivolous. Perhaps what is being said is
that the real frivolous suits do go away and the judge never sees them
because they die on the vine for some reason. But the doctor,
nevertheless, has to bear the cost of having malpractice insurance which is
affected or influenced by having to defend against even a frivolous suit.
Now maybe that’s the case. But I didn’t see it. The fact of the matter is
sometimes doctors make mistakes. And guess what, we all do. Now it’s
unfortunate, but we all do. And when that mistake does result in some
real injury, it’s like everything else in this life: sometimes there’s no
perfect answer. But to not permit the person who is the victim of
negligence to have some kind of recourse, I’m not wild about that idea.
Now I think that some would say, Well, the real problem is not so much
the fact of suit but some of the monetary awards. I can say that I have had
occasion to reduce awards and so make things right as far as I’m
concerned.
Mr. Granof: So there is judicial discretion to reduce awards.
Judge Kennedy: Yes. And, by the way, I have had occasions where, to me, for whatever
reason, the jury did not award nearly enough. There was this medical
malpractice case, a negligence case that was brought against the city
government, and it had to do with city government being on notice of the
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malfunctioning of a heating unit in a public housing project. The boiler
would heat the water too much, so that the water would come through the
pipes and be scalding hot. I’ll never forget this case where this little girl
fell into this scalding water and was just — she lived — but she was
disfigured terribly. Terribly. And I tried the case and the jury found for
the little girl, but the award was just — I forgot what it was — but just too
little. I did something which — very few times does this happen — I had
another trial. And guess what, the award again was very, very low. And I
tried again after that. I kind of wondered, well, what’s behind this, you
know. Was it the case that this was a poor kid? You know you have to
wonder what would have happened if the kid had been the child of a
wealthier person or maybe a well-known person. Would that person’s
injuries have been valued higher than this kid who lived in a housing
project and wasn’t so favored in this society?
Mr. Granof: With respect to medical malpractice, there’s an article in The New Yorker
by a well-known Harvard surgeon who writes that doctors make mistakes.
He said, “I’ve made mistakes; it’s inevitable.” And he really thought that
perhaps the tort system isn’t the best way to handle it. What do you think
about that?
Judge Kennedy: I think that is probably right. When I was in law school — Harvard Law
School — there was a professor, Louis Jaffe, who taught me torts. But
there was another professor — I think at one time he probably taught at
Harvard but was not teaching there when I was there — whose last name, I
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think, was Keeton. He advocated a type of system that did not depend
upon the tort litigation mode. And it seems to me that that is something
that is certainly worth considering because I just wonder about these “tort
reforms” where you’re only addressing part of the problem. Many of my
friends are doctors, and they are very heartfelt, feel very, very strongly
that they’re not being given a fair shake, and that the system, in fact, has
driven some of them out of business. And many of these people who have
dedicated their lives to learning their craft or learning the science, learning
what they do, you know it becomes so burdensome and expensive they
leave it. I think it has been shown that we have some great medical care
here in the United States if you can afford it. But that’s a whole other
issue. So, yes indeed, I think that that would be a very good thing to study
and devise a system of figuring out how to best deal with the negligence
of doctors.
Mr. Granof: Compared with your time on the federal bench, were there many more
jury trials in Superior Court?
Judge Kennedy: Yes. I mean when a person was assigned to the Criminal Division —
Felony I’s, Felony II’s — or the Civil Division – Civil I, Civil II. In the
Civil Division there was the Motions Division where you didn’t try cases,
you just decided motions. But you could count on being on the bench
during that assignment each and every day. Day in and day out. As a
matter of fact — I hope I’m not talking out of school — but it just happens
to be true that the judges on Superior Court, sometimes we would have
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little contests to see how many trials you would actually start, how many
trials you could kind of juggle at the same time. There have been times
when I have been involved in three trials at the same time.
Mr. Granof: Did you have a deliberating jury?
Judge Kennedy: What happened is you’d actually try a case and while the jury is
deliberating you’d try another case. Maybe it’s a really short one. And
then that jury would be deliberating. So you’d have two juries, and the
problem would be finding enough jury rooms. And then you’d start
another case. And that happened all the time in Superior Court. Much
different here. Last year I tried no more than five cases. That’s because,
first of all, our criminal caseload is very, very low when compared to
Superior Court. Second, here there are many, many more pleas. And on
the civil side, so many of the cases are just decided on the papers. Or even
when you don’t decide the cases on the papers, if you write an opinion,
say, on a motion for summary judgment and really kind of set out the
facts, you know, what’s in dispute, what’s not. The parties often settle.
So there really is absolutely no comparison between the number of cases
that are tried in Superior Court versus the ones that are tried here. But let
me say this: when we try a case in federal court, sometimes the case is
huge and takes months and months to try. I have tried cases in this court
that have taken months. One case took six months to try. It was a
criminal case. And by the way, I tried it twice. The first time, after six
months, the jury deadlocked. Tried it again, six months, the jury
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deadlocked. Over in Superior Court you have some criminal cases you
can try in one day, one-and-a-half days. Maybe the majority in two or
three days. Very seldom a case would take a week to try. I never tried a
case that took a month to try over in Superior Court.
Mr. Granof: What’s your feeling — since you’ve had such extensive experience,
particularly in Superior Court — do jurors get it right?
Judge Kennedy: I think most times. I think most times. Yes, I do. Sometimes jurors are
unable to reach verdicts and so there is no resolution. It’s a non-decision.
So, yes, sometimes there are deadlocked juries, but for the life of me I
can’t understand why.
Mr. Granof: Well sometimes you just have one ornery person.
Judge Kennedy: That’s right. You have one or two people seeing the evidence in a way
that is completely different from the way others do. But, that being said, I
think that for the most part the jurors do get it right.
Mr. Granof: The noted legal lecturer, Irving Younger —
Judge Kennedy: Ah, Younger on Evidence.
Mr. Granof: Yes. And on one of his tapes he says, “Collectively, the jury is the
smartest person in the room.” Do you agree with that? Do you think
that’s true, or is that just Younger having fun?
Judge Kennedy: I think that’s Younger being a little hyperbolic. I think that Irving
Younger, like many of us, does revere our system. It really is a
wonderful, wonderful system that we have here in the United States. Not
only do I believe that, but I have talked to judges from other countries
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who also marvel at our system. And it is kind of a curious system where
you place in the hands of the ordinary citizens the final decision on
matters of fact. So when Younger says the smartest person in the
courtroom collectively is the jury, I think he might be commenting on just
the wonderful system that it is. But the fact of the matter is jurors
sometimes do get it wrong. So no, I don’t know if I would go as far as
Younger.
Mr. Granof: What about the caliber of lawyers practicing in Superior Court. How
would you evaluate them, particularly since you’ve now had experience
on the federal bench?
Judge Kennedy: I think there’s a wider variety in terms of quality in Superior Court than
here. I think that, for the most part, the quality of lawyering here is really
quite good and quite high, both in the civil side and the criminal side.
Over in the Superior Court there was more variation. Now, I think that
makes sense since there were just so many more lawyers that you would
come into contact with. And I think that there probably is a certain —
what should I say — panache, intimidating factor, that comes into play
when you go into federal court which is not the same as when you go into
the Superior Court. But I do want to just emphasize again there were just
some excellent lawyers who appeared before me when I was in Superior
Court. People like Ken Mundy.
Mr. Granof: You mentioned that when you were a magistrate he impressed you.
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Judge Kennedy: Oh yes. Ken Mundy and Leroy Nesbitt. Jack Olender — you mentioned
medical malpractices cases — boy was he good. And — I wish I could
remember their names — on the defense side of medical malpractice, it’s
just excellent. But there were some lawyers who just didn’t seem to me to
be as prepared as they should be in bringing the type of — what should I
say — vigor to the process that one would want to see every lawyer bring
when representing a client in a court of justice.
Mr. Granof: Among your colleagues on the bench, whom did you respect the most?
Judge Kennedy: Oh, I must say I really respected all of them. I thought that the judges on
Superior Court — my colleagues — were really first rate. There were
judges who I think were really well known for just their excellence and
their knowledge in various areas. I think about Fred Weisberg, who was
the Presiding Judge of the Criminal Division of the Superior Court when I
was there. He was just an excellent guy. He had been with the Public
Defender Service for many years. He was smart and just knew criminal
law like the back of his hand. He just was so very, very knowledgeable.
The same could be said of Frank Burgess. I have to tell you that when I
came on the bench there was a man by the name of Luke Moore. He was,
in his way, just a wonderful man in terms of his demeanor, his caring. I
always had kind of a soft spot in my heart for Luke Moore because he
used to work with my father. My father was very proud of Luke Moore.
Mr. Granof: I’ve heard of him. You had mentioned he was the U.S. Marshal at one
point.
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Judge Kennedy: He was the United States Marshal. I think he was the second Black
United States Marshal for the District of Columbia, Frederick Douglas
being the first one. And he was an Assistant U.S. Attorney. He served on
the Superior Court, and he was a person who was just known for his being
a wonderful face of the judiciary in terms of his caring. Not only doing
justice, but also giving the appearance of doing justice. All of the chief
judges — Fred Ugast and H. Carl Moultrie and Gene Hamilton —
wonderful, wonderful judges. And likewise some of the judges now —
Rufus King, who is now the Chief Judge of the court — I served with for a
period of time. And those are just a few. I was very, very pleased to be
associated with the Superior Court because this is the nation’s capital after
all. We have no dearth of lawyers in this city, so there was a wonderful
pool from which to draw judges. I enjoyed my relationship with my
colleagues on the Superior Court.
Mr. Granof: Was the arbitration program started during your tenure on the court?
Judge Kennedy: I don’t know, but I think so. I think Nancy Stanley ran our Alternative
Dispute Resolution program. And I think, yes, it was started after I was
appointed.
Mr. Granof: Did you think it was a good thing?
Judge Kennedy: Yes.
Mr. Granof: Useful?
Judge Kennedy: Yes. I think it was useful. I remember looking at the statistics — not that
statistics tell you a whole lot — but it seems to me that whenever you can
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kind of get people together and effect a settlement, often that’s the better
way to resolve disputes. Each party controls a bit and goes out not being
totally satisfied, but not feeling just devastated. Sometimes when you
have a trial somebody feels absolutely devastated, sometimes feeling that
justice wasn’t done at all. And I think that as often as one can to avoid
that scenario, the better.
Mr. Granof: What’s the hardest thing that you’ve felt you had to do as a Superior Court
judge. You’ve mentioned real problems with child neglect, and that area.
Judge Kennedy: Yes. I want to tell you that the Family Division really posed a problem. I
mentioned child neglect. When you tried these divorce cases and you had
to make a decision as to which parent should get custody, it was very, very
difficult. Sometimes the property division in divorce cases also posed a
problem. Here you have these people who have been married for a long
time and they’re going to get divorced. The question is who gets what.
The man, perhaps, has amassed a nice pension, and the wife feels that, “I
believe that part of that pension I should have.” “Oh, really?” “And how
much?” I can tell you I found that very, very challenging.
The sentencings — some of the sentencings — you just had to hold
your head because what to do? I’ll never forget one sentencing that got
me into a lot of hot water when I sentenced a young man who had killed a
baby. The sentence that I imposed — now that I look back upon it —
probably was too lenient. I sentenced that young man to, I believe, 18
months in prison. And, certainly at the time, I felt that was appropriate
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under the circumstances. The circumstances were that this young man had
had exactly one prior contact with the law. He had smoked marijuana. He
had been convicted of possession of marijuana. He and his girlfriend were
raising his girlfriend’s daughter. I was convinced — I had evidence — that
this man in fact was very supportive of the girlfriend and the daughter, and
that on this particular occasion he was left at home with the daughter —
entrusted with the care of the daughter — while the girlfriend was going
out for a job interview. He had bathed the daughter and the child started
to cry. And, by the way, this is not an overly educated person, and he is a
young kid. I think he was about 19 years old. And, again, I have evidence
the child was bathed by the boy. The boy tried to feed the kid. In any
event, he ends up hitting the kid. The child goes into convulsions. The
child died either on the way to the hospital or very shortly after arriving.
The man tried to commit suicide. And it was not just a suicidal gesture,
but he tried to commit suicide. I had to sentence this man. He pled guilty,
by the way, to involuntary manslaughter. And I think the maximum
sentence — I’ve forgotten what it was. I think the papers assumed that it
was much more than what a person might receive. That was a very, very
difficult sentencing, and there were others. There were others.
[This concludes Interview No. 5]