This is the first po?on of the sixth interview of the Oral History of former Chief Judge
Abner J. Mikva as part of the Oral History Project of the D.C. Circuit Historical Society. It is
being held at his home, 442 New Jersey Avenue, S.E., Washington, D.C., on Tuesday, October
29, 1996. This portion of the tape consisting of pages 1-33 are under a “Confidential” stipulation
until Judge Mikva’ s death.
[NOTE: Pages 222 – 242 ARE CONFIDENTIAL UNDER SEAL Both the donative
instruments and the text of Judge Mikva’s oral history refer to 33 transcript pages of the
interview of Tuesday, October 29, 1996, as sealed. However, due to formatting changes,
the actual sealed portion of the transcript consists of 20 pages. As verified against the
confidential tape of the interview, 20 pages constitute the entire portion of the oral
history which has been designated as CONFIDENTIAL and UNDER SEAL until Judge
Mikva’s death.]
222 -242
INTERVIEW NO. 6 (continued)
Mr. Pollak: Comment as you might want on your observations of Justice Thomas as a
Judge on the Court of Appeals during the period you were on the Court with him You might
indicate if you remember how long that period was.
Judge Mikva: He was on the Court for a little over a year, I think, maybe as much as two.
I found him to be a delightful colleague. He was very warm and very gregarious and had this
booming laugh which you could hear through most of the building. He liked the work, he
enjoyed it. He had a great rapport with not only his own clerks, but with the other clerks. He
really was a charming person. It’s been kind of dismaying to see the personal change that has
come over since he went through that searing confirmation process. It clearly affected him,
embittered him in a way that was hard to watch because on the Court, on our Court, you could
not have asked for a more outgoing, friendly, warm person than Clarence Thomas. Even his
views, I think, were much more measured on our Court. There were several criminal law cases
where I was pleasantly surprised at his strong support of defendants’ rights in cases where the
government was on the other side. I haven’t seen any reflection of that in his work on the
Supreme Court. So I really think that this is a case where the confirmation process, which I
defend, painful as it is, took a very heavy and terrible toll on the person.
Mr. Pollak: I’m sure it must have been excruciating, although I remember, historically as
you must, the confirmation process involving Chief Judge Haynesworth. It was hard on him
His ethics were attacked and yet he came out of it and continued to serve on the Fourth Circuit.
Judge Mikva: I remember one that you may or may not remember. President Nixon, at
one point, was prepared to. I;lqminate, in fact did nominate, Richard Poff. He was a Congressman
from Virginia, a very conservative Congressman from Virginia who I had served with on the
House Judiciary Committee. I was still in Congress at the time. Congressman Andy Jacobs of
Indiana and I were prepared to go over to the Senate and testify in his support. The pressure went
on, about some of the votes he’d taken in Congress and then something, I think, in his family, a
family issue of some kind that he just didn’t want to have aired publicly. Early in the process, he
asked the President to withdraw his name. So, it’s a painful process, but one that I think is
necessary if you’re going to appoint a judge for life.
Mr. Pollak: Ab, I have a series of questions which address relationships to other courts
and institutions. You may in our interviews have covered some of this; so, if you feel you’ve put
your views on the tape, just indicate and we’ll move on. One is your perception of the role of the
District Courts and the proper role of the circuit court with respect to them?
Judge Mikva: I think it’s a very complicated process. As I indicated earlier, you don’t ….
I learned from Judge Tamm, who was a very courtly judge and himself a former District judge,
that District judges don’t like to be referred to as a lower court. I stopped using that phrase early
in my career when Judge Tamm cautioned me about it. But the fact of the matter is that District
judges are appointed for life, as are the Circuit judges. They obviously ar? skilled people before
they even get on the bench They develop some very incredibly important and unique skills as a
District judge if they are any good. Here are these Court of Appeals judges sitting up there and
reviewing their papers, and they are reviewing them in an altogether different milieu and
atmosphere than the way the District judges have to make the decision in the first place. The
District judges are always under the gun. They are always asked to decide a motion, decide an
objection, decide an issue rigbt there on the spot. The Court of Appeals judges sit up there and
take their time and think about it, consult their clerks, read the books and then come down with a
much more measured decision. There is this wonderful story that District judges like to tell that
the Court of Appeals judges sit up there above the fray and when the battle is over, they come
down and shoot the wounded. It’s sort of a view that the District judges have. I came away with
a tremendous admiration for the District judges. They work very hard, by and large. They do an
incredibly good job. They give the federal judiciary prestige; they are responsible for most of the
good reputation that we have.
Mr. Pollak: I think this historical record would like to know the District judges whom
you rate high in performing?
Judge Milcva: Well, I had the privilege of being on the court for a good piece of the time
that Judge Gerry Gesell was on the court – a superb judge, worked hard – he knew what a judge’s
role is. Judge Louis Oberdorfer was on the court when I came on, and he still is on as a senior
judge as we give this interview. Judge Harold Greene. Judge Aubrey Robinson. These are
really judges who perform, as judges, in an incredibly superb way. As I look back over the cases
that they sat on that I reviewed, including probably some where I voted to reverse or maybe even
wrote the opinion reversing them, I realize what really fine judges they were and how well they
did their craft. Judge Tom Hogan, one of the current active judges, always impressed me. I’m
not sure that the public ever appreciates how complicated a District judge’s role is and how really
bright and capable they have to be to do it right. There are lots of good judges, but the ones I just
mentioned are outstanding. I’ve missed some, I’m sure, but these are the ones who come to mind.
Mr. Pollak: What are your comments about the proper role of the circuit court vis-a-vis
the District bench
Judge Mikva: I’m not sure that this is shared by other judges or even expresses itself in
the case lore. Obviously, you defer to the District judges’ decisions on questions of fact; they are
final just as a jury’s decisions on questions of fact are final. In rare occasions, there is some
wiggle room for Courts of Appeals to review even them But I always felt that on all issues,
there should be a deference given to the District judge. There is a milieu in which a case is
considered. There is a time frame and a set of circumstances that surround the trial of a case that
only the District judge can fully appreciate. If you’ve got a good District judge and he or she is a
part of that milieu, there ought to be a substantial deference given the judge’s decision by an
appellate judge who is reviewing a cold record and is looking at that cold record trying to
recreate what went on during the trial below. I learned this after awhile. I’m not sure I came on
the Court with that kind of proper respect for the District judges, but I learned it after awhile – to
realize that when in doubt, go with them, they were there.
Mr. Pollak: It must be that the circuit bench here in the District of Columbia on which
you’ve recounted that there are differences of, substantive differences, personality difference?,
disputes, nonetheless must come together in that view because aren’t the figures that about 80
percent of the district rulings are affirmed?
Judge Mi.kva: Yes. I think that it is probably lower than it should be. As I look back,
some of the times – if I can start pointing a finger at myself – there are some of the times when I
should have given more deference to the District judges than I did. I sometimes was too quick to
look at the cold record, isolate something and treat that as a basis on which to reverse a judge’s
judgment in an overall case. Something the Supreme Court said, some years ago, I don’t
remember who it was, has continued to impress me in my later years on the bench That is that
nobody is entitled to a perfect trial, and for a reviewing court to single out some small piece of
that whole trial episode and say, “Aha, the judge did this wrong, therefore throw the whole thing
out.” There is a basic unfairness to that and an inefficiency to that.
Mr. Pollak: Is that a view that you would lay on the circuit court when it is reviewing a
trial outcome, and would you distinguish reviewing grants of SUIIllilfilY judgment or dismissals of
complaints where the District judge was making a more paper ruling?
Judge Mil{va: Yes, absolutely. When the District judge is acting just the way a court of
appeals judge acts, they are entitled to some deference for having decided the first instance; and
you look at what they did and how they did it and so on; but certainly there’s no reason why their
judgment should be given any specific deference. But when you are talking about a whole trial
and all kinds of sub-rulings on evidentiary matters and witnesses and decorum and demeanor and
so on, then it seems to me that that deference should grow geometrically. One of the issues, and
it is true there is a lot of difference between criminal law and civil law in this respect, but even in
the criminal law, I became more impressed with the harmless error doctrine and began to realize
that there was more to it than I used to think there was when I was a student taking criminal law
in law school. I thought it was just a device for denying some poor defendant his rights.
Mr. Pollak: What about your relationship as a circuit court or as a circuit judge with the
regulatory agencies, the rulings which you would review directly and some comparison of that
relationship and role as compared to your review of the District Court rulings?
Judge Mil{va: I don’t think I gave the same deference to a regulatory agency in terms of
their performance. Now, the law even before Chevron, but certainly after Chevron, required a
certain amount of deference. to their interpretations of the statute and so on. I don’t think that I
ever felt, and I’m not sure that most of the Circuit judges felt, that the regulatory agency really
performed as well, as far as trial functions are concerned, as did a District judge. Now, there
weren’t that many cases where the evidentiary pattern was in dispute; but I never felt quite as
comfortable giving deference to an adrnmistrative law judge in a labor case, for instance, as I
would about giving deference to a trial judge in a case corning up from the District Court. Partly,
it’s that you’re dealing with Article ill judges as opposed to an adrnmistrative law judge. I
appreciate that we made them all judges when I was in Congress, but that doesn’t necessarily
mean that they have the same capacity or the same quality. Sometimes their very expertise on the
subject matter made it less appropriate to be too deferential. They were such specialists that they
very frequently lost the forest for the trees.
Mr. Pollak: What about the decisions that would move then from the adrnmistrative law
judge through a whole commission, the Federal Trade Commission, the Federal Communications
Commission, the Securities Exchange Commission, FERC?
Judge Mikva: Again, the more layers you pile on – and sometimes they’d even go
through the District Court before they’d get to us, not usually, but sometimes – the more layers
you pile on, obviously, the more deference you have to give; you’ve got to take into account that
a lot of other able people have been looking at this problem If they come out a certain way, you
have to find some very good reason to undo it, make them do it over or do it the other way.
Again, the issues where I felt most comfortable disagreeing with the regulatory agency was when
you were talking about an important statutory matter where they were interpreting the statute in a
way that I thought was inappropriate. On some of the issues, I would feel that my expertise was
as good or better than theirs. I had seen the law-making process close up. Some of them had
only read about it, if that much But, usually, if there were things resembling a trial and a trial
record that was made in the regulatory agency, with or without review by the full agency, you
tended to give them substantial deference.
Mr. Pollak: Well, this leads me to ask you something that I certainly would be remiss if
your interviews didn’t touch on it, given your background in Congress, and that is, legislative
history. I trust that what you were alluding to in terms of the statutory review of an
administrative agency’s interpretation is the “plam meaning rule” and all of its attributes and the
place of legislative history. It seems to me that this is a time for you to say your piece on that
subject, as both a legislator and a judge.
Judge Mikva: I always felt that the appropriate role for all judges, regulators and Article
ill judges and everybody else in the spectrum, is that if there is any justification for unelected
judges makmg decisions that have such a material effect on people, it’s that we are carrying out
the policy that others have made, that elected officials have made. We’re not makmg the policy
in the first place. I know that I’ve been accused of being an activist judge, and I long ago realized
that that term is in the eye of the beholder. I never thought of it being appropriate, nor did I want
to take the place of the policymaker. The policymakers have made the decision, no matter how
much I disagreed with that decision as a matter of policy; if the decision was clear, I was
prepared to carry it out and interpret it that way. There were many cases where I interpreted
statutes that I would not have voted for if I had been in Congress, or, that I would have voted
differently had I been in Congress. But that is the role of the policymaker as distinguished from
the judge. The problem is statutes aren’t always clear, and that is what the “plain meaning rule”
is all about. If the meaning ,is plain, judges shouldn’t go looking for ways to nibble around at it or
come out with a different decision. I think one of the biggest disagreements on theory that Judge
Wald and I ever had was that she agrees with me on “plain meanmg,” but her idea of using the
legislative history was to say that you would always look at legislative history, even if the
meaning was plain, to confirm the plain meaning. No matter how plain it appeared on its face,
something in legislative history can show that that wasn’t what Congress meant. I used to
disagree with her. I say if the meaning is plain, don’t look; don’t ask for trouble because, once
you get into the legislative history, you are in difficult waters. So, if the meaning is plain, the
judge’s role is to interpret it the way that Congress wrote it and go on to the next case.
Unfortunately, many times the meaning isn’t plain. The meaning isn’t plain because words don’t
always have only one meaning. The meaning isn’t plain because frequently for Congress to reach
an agreement with 218 or more House members and 51 or more Senators all of whom are prima
donnas of one form or another and then get the super prima donna down on Pennsylvania A venue
to sign the bill that becomes law, there is lots of fudging and lots of ambiguities and those
ambiguities are often necessarily to be resolved by the judges. That is when you do go in and
look at legislative history to see if you can sense where it was that Congress wanted to move,
notwithstanding the ambiguity in the statute. But, looking at legislative history is a very tricky
business and I think that one of the problems – it is a place where Justice Scalia and I agree – is
that judges frequently can get fooled and misled. He has some ironclad rules that you should
never look at committee reports because that’s just staff and so on. I think you look wherever the
looking is good, but you should realize that sometimes you can be misled. The easiest place to
be misled is reading phony legislative debate where congressmen get up and make statements for
the folks back home or ask pbony questions that have nothing to do with what the bill is really
about, where it isn’t easy to recognize hot debate in a cold record. One of the reasons I always
was most leery of floor debate was because even I, with all the years I’ve read congressional
records, couldn’t always tell when the members were serious and when they were just going
through the motions for the home folks. I always find committee reports to be the most useful
place to look because that is where staff are trying to bring out the consensus that the committee
had when they voted on the obscure language and what it was that they meant by that language.
So a good committee report, I always thought, was very, very useful to understanding a statute.
But always the purpose of legislative history is – this is where Justice Scalia and I had our
biggest disagreement – I feel the use of legislative history is to constrain the independent
judgment of a judge, to keep him or her from entering into the policy arena and becoming activist
and taking the place of the congressman or the elected Congress. If you don’t use legislative
history, it’s too easy for the judge to say, ”Well, the language is fuzzy, therefore this is what I’m
going to think it means,” which is just to say, “Okay, I’m not elected to Congress, but I like that
Mr. Pollak: It comes up all the time. I guess it always will.
Judge Mikva: It always will. Words are less than perfect.
Mr. Pollak: Well, then the lawyers go into the cold record and they pull out any
statements that help their side.
Judge Mikva: Well, of course. That is why the judges have to be very careful about
using statements. Again, it’s sort of like a reviewing judge trying to review a District Court trial.
Lookmg at statements in isolation, lookmg at little pieces of testimony in isolation doesn’t give
you the picture of what really happened there in the whole. The same thing is true about a bill
going through Congress – knowing all the vagaries of the way things happen, the way
amendments are adopted, aren’t adopted, the way language is put into the committee report and
isn’t put in and the kmds of things that are said on the floor. This is my favorite example, and I
might as well put it on the record. I was one of 38 people that voted against the Organized Crime
Act in 1970. This was the one that first wrote RJCO, Racketeering Influenced Criminal
Organization. That was one of the reasons I was opposed to it. There were others too. All the
years after that when I ran for re-election, people would say, ”How come you supported
organized crime? You voted against the Organized Crime Act in 1970.” I did end up opposing
the bill, so I pointed out how reckless and loose the language was in the RJCO section. I said,
”You know when this law passes, we’re going to have garden variety fraud suits being brought
into the federal court as a part ofRJCO. We’re going to have all kinds of things being made
subject to RJCO.” It was a hyperbolic speech with a kind of hyperbole that politicians make
when they are opposed to something. And, unfortunately, over the years, every time somebody
wants to expand the definition ofRJCO, they say, ”Even Congressman Milcva, who voted against
the bill, acknowledged that it would be used for these purposes, and therefore, it’s legitimate.”
Knowing now what I didn’t know then, I wish I had gone to Chairman Celler, who was my
Judiciary Committee Chairman and managing the bill, and said to him, “Manny, we’ve got 38 of
us who are going to vote against it anyway, will you engage in a little parliamentary pas de deux
with me, and I’ll … ” And he would have said, “Sure. Go ahead; you write it up, and I’ll do it.”
And I could have gotten up and said, “Now Mr. Chairman, this won’t apply to fraud suits, will it?
This won’t apply to securities actions, will it?” And he would have said, “Of course not, of
course not.” Whatever I ?¥1:ted to put in there, I could have substantially influenced the course
of that legislative history and of history generally if I’d been smarter than I was. But that is what
is dangerous about legislative history.
Mr. Pollak: Very demanding, whether to act in time present or to act in time future.
Judge Mik:va: We get smart so late.
Mr. Pollak: Did you have any occasions, or is it even worth inquiring into, where you
conferred with District judges on a private basis about the matters that were before you?
Judge Mik:va: No. I used to like eating in the upstairs dining room where mostly the
District judges ate and few of the Court of Appeals judges ate. Judge MacKinnon was a regular.
I stopped going there regularly because so frequently the District judges would be ta1king about
cases that –
Mr. Pollak: I see, that you might hear?
Judge Mik:va: Yes. Sometimes they did it deliberately and sometimes just by accident. It
could have an impact on our judgment and so I decided to stop going there. I’d still try to show
up a little bit, especially when I was Chief Judge instead of shunning it, but; on the other hand,
the conversations sometimes would get uncomfortable.
Mr. Pollak: Do you have anything you want to say in relation to your perception as a
Circuit Judge of the Supreme Court?
Judge Mikva: Well, I sort of feel that that was probably the closest that Court of Appeals
judges could understand how the District judges felt when they’d end up having one of their
decisions reversed by the Supreme Court or even taken by the Supreme Court. There were a
couple of cases where the Supreme Court affinned me, but they did it in a way that made me very
unhappy with the fact that ¢.?y clearly hadn’t read the records as carefully as I thought they
should; they hadn’t understood some of the things that I had said in my opinion. Then you
realize that for the same reasons Court of Appeals judges can misconstrue what a District judge
has done, so, obviously, the Supreme Court justices are not going to put themselves squarely in
the shoes of the Court of Appeals judges. They are not going to hear the same argument. The
same issues aren’t going to be before them Chevron is a perfect example. The case came up on
what we thought was an important issue of whether Congress had, what I thought was an
important issue oflegislative history, whether Congress had or had not contemplated that result.
I didn’t write the opinion, Judge Ginsburg wrote the opinion; but the court used that as an
occasion to reiterate in somewhat stronger terms a kind of deference thai ihe Court should give
administrative agencies in interpreting the law that Congress wrote. That happened on other
cases that we had sent up in one form and the decision had come back in a different form because
everyone was concerned about a different spin on the issue or sometimes a different issue on
which the case should turn. So there was that kind of tension. I think that the one thing that all
Courts of Appeals judges learn early on is that you just have to accept as a given that the
Supreme Court is final, not because they are right, but they are right because they are final!
Mr. Pollak: It’s the view of some people that Circuit judges should be innovators or legal
innovators illuminating issues, or of others that they should merely apply the law leaving the
innovation to the legislatures and the Supreme Court. You’ve alluded to the fact that you felt an
obligation, certainly understandable, under the Constitution, to apply the policies that the elected
leaders adopted. Do you have other views in respect to innovation in the mind of and pen of a
Circuit judge?
Judge Mik:va: No .. .I _cmne on the Court probably much more enthusiastic about the
notion of innovation and finding new ways for Courts of Appeals judges to resolve some of these
legal dilemmas. Over the years I began to realize that is not a good rule for us because we are
intermediate court judges. If it is important, the Supreme Court is going to have to do it. If it’s
policy, the policymakers have to do it, and that leaves the area in which the intermediate court
judges can operate as very, very small, usually not that significant. The plate was full enough
without having to look for ways to find new wrinkles on which you can decide an issue. I
remember once I was out of town, and one of my clerks called me who had been working on a
bench memo the night before and said, “Judge, this can be a seminal opinion.” I said, “I don’t
think so. I try not to do seminal opinions.” In any case, I do opinions that hopefully confirm
what the law is or else on some occasions to resolve a dispute that the Supreme Court is
ultimately going to resolve. But, in any event, I don’t think of myself as doing seminal opinions,
and I don’t want to do seminal opinions. I think that most of the innovations that Court of
Appeals judges try to do sometimes are much less useful than the time they spend on them I still
think of Judge Posner’s insistence that he could develop a formula to decide when a District
judge should issue a preliminary injunction in a case – a mathematical formula for those opinions
-judges stilljoke about it. But the fact of the matter is he was trying to be helpful by innovating,
but the time he spent on it was hardly worth it.
Mr. Pollak: In your own bank of opinions and rulings, are there some or one or some that
you think of that, not necessarily because of your intent, have become or been judged to be path
breaking, innovative, whatever word you would refer to?
Judge Mikva: Well, the ones I’m proudest of are the ones where the jury is still out as to
whether the doctrine will pr?yail or not. I wrote an opinion involving American Express many
years ago in which I said that contracts of adhesion have to be strictly construed against the
creditor — the person who wrote the contract – and that, therefore, some pieces of it that might
otherwise be given a strict construction, that is given a favorable construction that could be used
against the debtor, couldn’t be used. One had to do with cancellation of credit cards. I said that
you could not cancel a credit card without notice after the credit had been given. So, if the credit
had been extended, the credit company was stuck with it; or the card issuer was stuck with it
until notice had been given to the debtor. It had to do with a law professor who had taken his
wife out to an anniversary dinner in a fancy restaurant here in Washington. Actually, he wasn’t in
arrears but the credit card company had him in arrears and had canceled the contract. They
canceled the card but hadn’t told him; the company instructed the maitre d’ not only to refuse to
accept the card but to destroy it. The maitre d’ came out with a pair of scissors and cut the card
in two in the restaurant. This law professor proceeded to sue and, of course, was offered several
settlements that he rejected. He took it all the way up to our court, and we upheld his claim that
the contract couldn’t be canceled after the credit had been extended. American Express made
several moves in the direction of trying to get certiorari. They never did decide whether they
really wanted to get cert or not. They finally didn’t, and so it’s the law of the circuit, although I
don’t know if it’s ever been applied elsewhere.
One of the places where I tried to be innovative was one of my early cases. The case
came out all right, but the Supreme Court quickly rejected my effort to be innovative. The case
was State Farm, the seat belt case. They upheld my decision, but did not uphold my opinion,
because one of the things I did in my opinion was talk about something called congressional
gloss – something like judi<;:iaj gloss – where Congress, on several occasions failed to act, where
efforts were tried to change the language in some way that weren’t successful; but then you had
to assume that the language had the original interpretation that was given to it.
Mr. Pollak: A later Congress trying to change the interpretation and failing to do so –
that was a major issue.
Judge Mikva: The court said that’s not the law. You don’t pay any attention to what later
congresses did unless they, in fact, changed the law. The fact that they tried and failed cannot be
taken into account in deciding what the earlier Congress meant. Whether they were right or
wrong, so much for the intended innovation. They were clearly right and I was not.
Mr. Pollak: What was your feeling when you were reversed or your grounds were not
accepted by the Supreme Court?
Judge Mikva: You can’t be anything in the public sector or maybe even the private sector
without having a pretty healthy competitive itch. We all catch it early in life, whether it’s playing
sandlot baseball or just doing well in school or wherever; and, if you want to be successful at
your profession, at your trade, that competitive itch has to keep driving you. So the first thing
you feel is that you’ve lost, you personally have lost, it’s like a personal rejection. The score is
now 1-0 for the other side; and then you start to think about and analyze it, sort of reconstruct the
situation so that it isn’t quite as big a loss as you thought at first. I think the biggest advantage I
had as a judge in terms of being reversed was that I’d lost several elections. I’d lost two elections,
and nothing is worse than losing an election where several hundred thousand people vote against
you. My wife came out with our favorite holiday card the year I’d lost my seat in Congress. We
used to send out Christmas cards, Chanukah cards every year, pictures of the kids and some
clever saying up front. Th? y?ar I lost – 1972 – she showed all of us, the kids and us and the dog,
all with knapsacks on our backs heading back to Chicago. On the card she said, “Over 200,000
people asked us to come home …. ” On the inside it said, ”None of them are getting this card.”
[Laughing] You get to realize that it isn’t a personal rejection, you obviously can’t live with it or
treat it as a personal rejection. Compared to being reversed in a case, it can’t be treated as a
personal rejection. But, again, Supreme Court justices aren’t that sensitive or sympathetic to all
that the Court of Appeals judges have said or done any more than Court of Appeals judges are
sympathetic to what the District Court judges have done. I remember at least on one or two
occasions where justices who were good friends of mine used rather sharp language disagreeing
with my decision. But that’s what the court system is about.
Mr. Pollak: Did you ever endeavor to make an opinion cert. proof?
Judge Mik:va: I would sometimes resist going to certain questions that I knew would
force a court to take it in that respect. Judge Wilkey had this theory that if you wrote up an
opinion that was long enough and had enough footnotes, that would make it cert. proof. I didn’t
like footnotes to begin with, and the length of opinions has always bothered me from way back in
law school, so I didn’t subscribe to that theory, although it might be right. But there were times
when we would pick up people on the panel who agreed with me to not reach a certain question
because we thought that would make it cert proof or make it ridiculous for the Court to take it.
Again, sometimes that’s just another variation on a doctrine of what Court of Appeals judges
ought to do and that is, “don’t decide any more questions than you have to to resolve the case.”
Mr. Pollak: Yes, it certainly seems to me that it is kind of a slanted question to say, ”Do
judges make something cert. proof?”
Judge Mikva: I foup.c;l it always easier to write an opinion in a case where a court had
made its views clear. The hardest opinions for me to write were in that area where the court had
deliberately left all kinds of hanging questions about what they would do in the future, whether it
was in terms of affirmative action or gay rights or attorneys’ fees. It was in those cases that the
court left these things open, and there was difficulty in trying to anticipate what the Supreme
Court would do.
Mr. Pollak: When I had a pro bono case on set asides, Croson v. City of Richmond, we
were reading three opinions that the Supreme Court justices had written in earlier cases. You
know there was an opinion that had three judges/justices and another that had”ee.
Judge Mikva: I happen to think that that opinion is still one where the Court came down
with a doctrine that is inconsistent with what they did before, and it is causing great difficulties
where the law is going. I have worried very much that the Court is on a collision course with the
Congress when they say they don’t care what Congress finds, which is what they did in Croson v.
City of Richmond.
Mr. Pollak: Do you have any comment on whether there is and what there is in the way
of a shift in the Supreme Court? You’ve been a judge, you were a clerk there, you’ve seen a long
history of the Court and, of course, Presidents put different justices on the Court.
Judge Mik:va: Most of the shifts have been very evolutionary. There have been very few
watershed cases, and that is healthy because every time there is a case like Roe v. Wade or
Brown v. Board of Education or Miranda, the Court pays a high price for it. It is, at that point,
resolving a very divisive question and in a way that closes off all debate. I guess the current topic
that worries me the most is the fact that the Court has taken cert in the two cases involving the
right to die — the assisted suicide cases. I don’t think that question is ripe for final decision. I
wish the Court hadn’t taken cert. and I hope that they find a way of resolving it without saying
there is absolutely a right to an assisted suicide or there absolutely is not a right to assisted
suicide because that question is still dividing the society too much. The Court functions best
when it can move as an evolutionary force, when it can interpret what the Congress is doing and
can move the country ahead along those lines that the Congress has perceived politically. When
it decides that it has to do something that is fundamentally going to change the legal or political
topography, whether it’s Baker v. Carr, Roe v. Wade, or Brown v. Board of Education, there is a
big upheaval in society, much more so than if those changes had happened politically. Now
some of them would never have happened politically. I’ve always found it fascinating that the
critics of the Warren Court, including Judge Bork and Justice Scalia, all accept Brown v. Board
of Education as the one case where the Court had to step in. Now, in terms of the analysis that
Judge Bork would make, for instance on what the Court has done in other cases like Roe v. Wade
or Miranda, it’s hard to distinguish Brown from Roe v. Wade or Baker v. Carr because it was the
same kind of policy decision that the Court was stepping into and saying “discrimination is over,
is going to terminate now.” The only explanation which I don’t think holds any water is that this
was a mistake that the Court had made itself in Plessy v. Ferguson, and they were undoing it by
Brown; but they have could have corrected the mistake in Plessy without any of the things that
Brown achieved. As I say, I defend Brown; I defend Baker v. Carr. I defend Roe v. Wade, but
the price was very high for the Court having to suffer the serious political consequences from
those kinds of decisions. So I think of the Supreme Court as being a very evolutionary institution
that hopefully and perceptively measures its use of power. It doesn’t always come out that way.
Mr. Pollak: Baker v.. Carr or Sanders v. Georgia or whatever presented issues that had
come before the Court a lot of times. There had been Colgrove v. Green.
Judge Mikva: Yes.
Mr. Pollak: Did it seem to you that if the Court didn’t bite that bullet, the nation never
would because the Congress couldn’t?
Judge Mikva: Colgrove v. Green came up the year before I clerked. Justice Frankfurter,
as you recall, had written the opinion in which he had included that great phrase, ”This is a
political thicket in which the Court should not tread.” Colgrove v. Green was an Illinois case.
Green was the Governor of Illinois; I lived in Illinois and I knew how impossible it was for the
legislature to ever reapportion itself. One time we had Justice Frankfurter down to lunch and I
and one other clerk from Illinois who had more experience in this started badgering him about
how could he ever expect the Illinois legislature to correct this temble injustice with this
inappropriate distribution of political power. He said, ”Well, that’s what elections are for; the
people should throw those rascals out and put in better people.” Obviously, the problem was that
the people who were the beneficiaries of this inordinate maldistribution of political power and
malapportion weren’t about to throw the rascals out who had given them all that power. I still
think he was wrong, and I’m glad that Baker v. Carr came out the way it did. Now, this is a sign
of my age; there weren’t any great historical analyses I have done, but I’ve often wondered how it
came to pass that women finally ended up with the right to vote in this country. They had zero
political force. They were not part of the voting process that first passed the amendment through
the Congress by a two-thirds vote in both Houses and then ratified it in the state legislatures in
three-fourths of the states. How did this nonpolitical force achieve that kind of political power?
If they were able to acbieve.h, maybe there was some way for other rnmorities, including big city
minorities and racial minorities and so on, to achieve political power without the Court stepping
m. I would not want to repeal Baker v. Carr and find out. [Laughing]
Mr. Pollak: The Court spends a lot of capital in addressing those issues?
Judge Mikva: And it is capital that is never in long supply. The Court and its supporters
must always be aware that this is a very, very precarious exercise of power and distnbution of
power that has to be handled very, very carefully. The classic example is Brown. At the time the
Court handed down that decision, the entire enforcement arm of the Supreme Court was this one
superannuated overweight marshall, and the picture of him going down to Little Rock waving a
decree in the midst of that swarm of angry parents and led by their Governor — determined that
these black kids weren’t going to get into Central School in Little Rock is ridiculous. It could not
have happened. You will recall that President Eisenhower had to send in 10,000 troops to
enforce Brown v. Board of Education in Little Rock. Considering that Eisenhower himself didn’t
like the decision, you just don’t want to put the Court in that kind of a position too often because
sometime you are going to get the political actors saying: They issued a decree, let them enforce
Mr. Pollak: Well, those are really great issues, Judge.
Judge Mikva: Which we will not resolve in these interviews.
Mr. Pollak: Do you want to say anything about your own personal interactions with
Supreme Court Justices?
Judge Mikva: No, I’ve gotten to know many of them over the years. The nice part about
being active in political life and being a judge, Chief Judge, and just being around as long as I’ve
been, is that the Justices, ?t?ad of being these mythical figures that I clerked for, or whose
opinions I read about in law school, become real live people; and some of them are friends. They
have human attributes that are good and bad, and that makes for a different feeling about the
Court that is more healthy and, I suppose, in some respects less healthy than I had. I just
assumed that it was the most powerful deliberative body in the whole world. They all either did
descend or should have descended from Mount Olympus. They didn’t though
Mr. Pollak: What is your own galaxy of great judges? District Court? Court of Appeals?
Supreme Court judges?
Judge Milcva: I just had a great admiration for the way in which Earl Warren operated. I
saw it not close up but sort of saw it from being in the state legislature and in the Congress when
he was Chief Justice. He was never a great legal scholar; I think he would be the first to admit
that he was not. He clearly had a working majority on the Court, and he got that fairly early on
partly because President Eisenhower made what he said were the two worst appointments he had
ever made. Chief Justice Warren knew how to work with the Court. It just developed that he
worked it the way a good political operative works a collegial body. He made alliances. The
description of “Super Chief,” of how he brought a near-unanimous Court on Brown which was
just incredible, and how he got them to do Cooper v. Aaron unanimously, each Justice
individually signing the opinion to make it clear that this was something that was the law of the
land. He understood the political consequences of these momentous decisions that the Court was
handing down during that period. Frankly, had he not had the great political experience and
deftness that he had, I think the Court might well have blown open during this period because
they were very, very hard decisions to swallow. We’re still trying to swallow pieces of Brown v.
Board and it’s true of all th? qthers. So I just have a great admiration for him as this judicial
figure not because of the great legal scholarship or the great prose, but because he understood the
potency of the Court – how you made it not only come together as an institution but how you
made its product acceptable and digestible in the public arena.
I had a great personal admiration for Justice Black. I didn’t know him that well. He was
there when I was cler1cing. I read his biography. He combined his knowledge of the political
arena, having been a Senator, with becoming a great judicial scholar. In the last years of his life,
he got a little testy. He really was probably the brightest Justice, certainly when I was cler1cing,
and understood the craft and understood how things worked and had some feelings about the
Constitution that were very provocative. His views on the First Amendment are a case in point.
I thought at the time it was great to say that when it says “Congress should make no law,” that is
precisely what it means. I’ve gone back over the years and thought about the role John Marshall
played and realized how deft he was in his role as Chief Justice. I went back and read very
closely Marbury v. Madison and realized what an incredible example of judicial-political
deftness that was, considering what he did as compared to what he said. He [Chief Justice
Marshall] didn’t really do all that much It’s what he said about what the Court could do in
appropriate cases that has been preserved as a benchmark for several hundred years. On our own
Court, I had developed this great affection and admiration for David Bazelon, who served as my
mentor. By the time I came on the Court, he was probably past his prime as a Judge, but when
you look over the impact he had on the Court during those years, he really made that Court. He
used his influence in that Court to move the society in many directions that he thought were
important – some of them perhaps beyond where I would have gone – they were probably overactivist
in terms of what an intermediate court should do; but, on the other hand, he was very
effective. I still remember when Warren Burger went on the Supreme Court. He once said -apparently
this got out somehow – that he wanted to run the Supreme Court the way that David
Bazelon had run the Court of Appeals. You know I’m sure that they understood where the power
was. But Bazelon described, because I was close to him personally, he described to me some of
the ways he operated. For instance, it always used to delight him that many lawyers in this town
thought that he somehow manipulated the docket to see that he would get on certain kinds of
cases. But the docket was – and is- nonmanipulative. It’s nonmanipulative now. It was then.
But it pleased him that the lawyers thought he had that kind of power. He said, “I didn’t ever
manipulate the docket.” He said, ”If there was some question I wanted to resolve, I’d find it in a
case that I had; I didn’t have to find the case and put it on my docket, I couldn’t do that. I’d find
the question somehow involved with the case and I’d bide my time and wait until it came up in an
appropriate forum or an appropriate vehicle. I’d find the question, and I’d do it.” In many
respects, that was part of Oliver Wendell Holmes’ greatness. It’s one of the reasons his opinions
still are good teaching tools, are still recounted so frequently. Holmes would rearrange the case
the way he thought was necessary to make his point. I can’t remember the name of the case, but
this came up in a case that you were involved in. When I went back and looked at the earlier
case, Justice Holmes had narrowed the case down to a single question and wrote a two or threepage
opinion on that question. Judge Flannery was on the court, and he and I agreed with the
Holmes precedent. Justice Holmes wrote a short, pithy two- or three-page opinion on the subject
[Kelly v. Kosuga], which we thought was controlling and the Supreme Court decided wasn’t.
Mr. Pollak: Well, let me undertake to find out what that is for our next session.
Judge Mikva: I not.sure I wrote it but I think I wrote it. [Mullins v. Kaiser Steel Corp.] I
know Judge Flannery was with me on it, and I think we got overturned. I remember at the time
marveling at what a precise, narrow opinion it was and that was not what the Supreme Court
Mr. Pollak: Were there other great judges you’ve known?
Judge Mikva: I tried to limit it to Supreme Court Judges, because I didn’t want to go
through the rating order of all the other judges.
Mr. Pollak: In your time on the Bench, have you had any relationship that was really
meaningful to you as a judge with judges who sat on any other circuit courts?
Judge Mikva: I was friends with a lot of them Since I never served as a visiting judge
and we so seldom had visiting judges come in to us during most of my tenure, I didn’t get to
know them as well as judges. Now, some of them I knew from other arenas. I had known the
Chief Judge in the District Court in Chicago, Jim Moran. He and I had been in the legislature
together and knew each other for all those years. Milton Shadur from the District Court in
Chicago had been a law partner of mine. I had known him for a number years, but there weren’t
a lot of people like that. Justice Stevens had clerked the year before I clerked, and we went back
to Chicago at the same time and became good friends over the years. Steve Breyer and I were
good friends and became friends when he was with Senator Kennedy originally and then when he
became Chief Judge. He and I were on the Judicial Conference together- U.S. Judicial
Conference together – we were allies on many things there.
Mr. Pollak: But I gather that, however outstanding or relevant those judges were in their
own courts, it really didn’t impact your role as a judge on your court.
Judge Mik:va: I don’.t _trunk, and I say this with due deference to all Court of Appeals
judges all over the country, I don’t think we had anybody of a Learned Hand’s reputation and
standing while I was on the court. There were other good Courts of Appeals judges and some
that I would cite more regularly than others, but I don’t trunk there was anybody who was
universally recognized as a Learned Hand as somebody whose opinions were that influential, or a
Judge Cardozo in the circuit.
Mr. Pollak: Which is also by way of saying that you really didn’t have to have a personal
relationship with some other judge, you could read their opinions?
Judge Mikva: A.gain, there were judges whose opinions I liked better than others and
who, I thought, said things more plainly than others, whose views I agreed with more than others
but there were none that I felt that kind of personal relationship with and there weren’t, there
certainly weren’t any of that kind of stature. Part of it may be that the work of the Courts of
Appeals is all different than it was when Learned Hand sat or when [Judge Alfred] Friendly sat.
Mr. Pollak: Meaning what? Different in what respect?
Judge Mikva: More cases. You don’t get the single-issue cases the way we used to. We
get these cases that have 27 different issues, and we go straight to trying to resolve the case. It’s
hard to trunk, aside from Judge Bazelon because of his unique role on the court, it’s hard to trunk
of any judges on the D.C. Circuit that had that kind of national stature that a Learned Hand or a
Judge Friendly had. I say even Bazelon was more – his influence in taking on these issues and
pushing them into the arena rather than as a judicial scholar.