Abner Mikva Text of Interview Only (October 29, 1996)

Oral History of Abner J. Mikva
Sixth Interview-October 29, 1996
This is 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. The interview was held at
his home, 442 New Jersey Avenue, S.E., Washington, D.C., on Tuesday, October 29, 1996. A
portion of the tape consisting of pages 211-230 was previously under a “Confidential” stipulation
until Judge Mikva’s death. It is being unsealed as of July 20, 2024. The donation instruments
may refer to different page numbers, due to final formatting.
Mr. Pollak: Good Morning, I wanted to open by asking you generally to comment on
talk which has gone on historically, I can’t say when it began, of factions or blocs or disputing
segments on the D.C. Circuit. Certainly, I recall those kind of comments being made long before
you arrived on the scene.
Judge Mikva: Well, I think that like most stories about factions and tensions within an
institution, it depends on the players. The stories you heard, as a practicing lawyer in
Washington, and that I heard as a member of Congress in Washington, were of the factions that
lined up loosely around Judge Bazelon and Judge Burger. They were pretty disputatious
factions, but it didn’t carry down into every individual. I remember when I got to the court
hearing some of the people who were supposedly aligned with Judge Bazelon expressing their
unhappiness about the fact that the Court had become so factionalized and there was always this
assumption that there was the Burger camp and the Bazelon camp. When Warren Burger was
elevated to Chief Justice, it removed that factionalism. It isn’t that the players changed their
views. Judge Robb and Judge MacKinnon and Judge Wilkey were just as strong-minded on their
views as when Burger was there, but with the absence of that kind of sharp prod and, of course,
with Judge Bazelon taking senior status, the court became much more collegial. When I came on
the Court, we had strong disagreements in views but there really was very little personal hostility
or animus and everyone got along very well with everyone else. There was some tension, about
the cases as there should be, because the cases were important and people felt strongly about
their points of view. But it never became ad hominem, it never became a personal kind of thing.
That carried through the first appointments by President Reagan.
Mr. Pollak: Could I ask preliminarily for you to give some context as to the number of
cases, if any number, that factionalism or polarization or disputation would be material to?
Judge Mikva: No more than a dozen a year, probably. I was always amazed at that.
Most of the others, even ones that had some hot-button issues in them, did not. Because the law
was clear, the Supreme Court had just recently ruled or there was a clear line of decisions that
said what the law was, even on some hot-button issues, the Court did not polarize. There were
maybe a half of a dozen or a dozen cases a year where there were some vagaries in the law or
there were some doctrines still being moved one way or the other and it was in those cases that
the Court would split, people split because they felt very strongly about them.
Mr. Pollak: Would those cases produce dissents?
Judge Mikva: Usually.
Mr. Pollak: Would they go en banc?
Judge Mikva: That varied from time to time. The first couple of years, I voted for lots of
en bancs because I thought that was something we ought to do. As I developed some experience
with how poorly the Court handled its en banc capacity, its en banc function, I started to vote for
less and less of them. No matter how wrong the decision was, I thought we were better off
leaving it as a panel decision rather than trying to straighten it out en banc. Usually, in my
humble opinion, most of the time the Court sat en banc, we did not help clean up the law. We
frequently made the results worse than they were when the panel came down with its decision.
So I began to vote against it.
Mr. Pollak: Is that what you mean by poorly performing the en banc function?
Judge Mikva: Yes. We weren’t used to sitting as a court as a whole. Unlike the Supreme
Court which always sits as a full court, we were used to sitting in panels of three; when we
would end up with a full court, our bench physically didn’t even hold all the judges, but that was
a minor problem. The difficulty was that the judges would not know how to restrain themselves
in questioning, we couldn’t restrain ourselves in writing, we ended up with a plethora of opinions
on every case and we frequently just muddled up the law. If the law is supposed to provide some
guidance for the bar and for the district court judges, we frequently made matters much worse by
taking it en banc.
Mr. Pollak: I wonder if I could ask you to comment on the difficulties of sitting en banc
in other circuits which are geographically widely disbursed, as compared to the D.C. Circuit
where one might think that sitting en banc would be easy because you’re all in Washington?
Judge Mikva: It’s even worse there. The Ninth Circuit has had to develop special
administrative rules because of their number and vast geography; a certain number of them
would be considered to be an en banc court. It is far less than the total membership on the court.
In other places which are geographically split, the en banc decisions are even more difficult to
put together because, again, the judges have to come from far away. The clerks don’t have the
same networking that they had in our court and so it is much harder to develop a single thread of
argument on which the sides can say we think the court or the law to be here and the other side
says we think it ought to be here. Frequently, you end up as we did on our Court with cases
going every which way.
I remember one in particular. I don’t remember the name of the case but it involved
sleeping in the park. It had to do with whether or not one of the protest groups had the right to
sleep in the park overnight. The original panel had decided — it was very unusual, Judge
Ginsburg (Ruth Ginsburg) was on the panel and she decided the question was so important that it
ought to be put en banc. So, before they even heard argument in the panel, she petitioned, as
judges have the right to do, she sent around a memorandum suggesting that we hear the case en
banc. I remember going to see her at the time and said, “Ruth, we’d be much better off if the
panel just wrote its decision.” She said, “No, no, this is an important question — we really have
to work our way through this.” There were a lot of confusing precedents in the circuit about that
First Amendment issue and the United States Supreme Court hadn’t been particularly clear as to
when an action was speech and when an action is viewed as not speech. Anyway, so she
prevailed and we heard the case en banc. As I recall, there were four or five opinions. I wrote
for the Court. Judge Skelly Wright was then Chief Judge. He assigned me to write for the Court
— the only one who joined my opinion was Judge Wald. But judges were every which way on
the case. When it went up to the Supreme Court, they disagreed with us strongly about our
bottom line and it was like sending a soft lob up to the plate, they just hit it out of the park. It
was a disaster.
Mr. Pollak: Do you think that there’s a trend in the D.C. Circuit or nationally to avoid the
en bancs?
Judge Mikva: Well, I think so, partly because, as the courts become more evenly divided
or as judges just become better known as to where they are going or become more predictable as
to how they are going to come out, judges on the court decide that they are really not going to get
much different results on an en banc than they got on the panel except for those rare occasions
when it’s an issue that is not completely settled and where the panel particularly is out of sync
with the rest of the court. So, I think there are less en bancs. I was so impressed with it as a
lawyer, with whoever had thought up the concept, to figure out this wonderful way of the court
making sure that its positions were internally consistent — it’s a great theory, it doesn’t work out
quite that well in fact.
Mr. Pollak: Back to the disputes on the Court, I gather your view is that they do exist at
least historically at some points as something that would be noticed?
Judge Mikva: They do. There are issues about which the Court will divide. Before I
came on the bench, as you know, the hot issue, the hot generic issue on this Court of Appeals
was the Judge Bazelon and Judge Burger disagreement about some criminal law concepts and
precedents. Judge Bazelon had prevailed on some of these but not without Judge Burger’s
vigorous dissent, and as the complexion of the Court began to change under Nixon and, later on,
under Reagan and Bush, some of those precedents began to get wiped out, but never without
Judge Bazelon vigorously opposing it and resisting it and frequently preventing it. I can’t
remember the name of the case, but I remember one case where he had tried for a long time to
get poverty — and that’s the way his opponents criticized it — that someone who had an unhappy
and unnatural childhood with a lot of violence in his childhood and a lot of deprivation in his
childhood, ought to get some kind of allowance made for that person’s subsequent conduct as an
adult. He tried to do that several times, but never could persuade the Court to go along with him
or the majority to go along. I think he had one or two cases where he got Skelly Wright to go
along and was reversed en banc. I remember one time when he was already a senior judge and
he was sitting with me and Judge Edwards. It wasn’t really that close a case but he decided it
was and he was pushing very hard that we should make another stab at applying that doctrine
that would take into account this reduced responsibility doctrine. Judge Edwards, I remember
saying to him, “David, you lost that fight.” And David said, “No, no, this is a chance to do it.”
When we were walking back to our chambers, Harry Edwards said to me, “Boy, that guy never
gives up, does he?” I said, “You know, I just hope I feel that way when I’m well into my 70’s,
that I feel as passionate as he does about some of these issues.”
Mr. Pollak: Are these differences traceable to those who come on the Court from a
Democratic president and those who come on the Court from a Republican president?
Judge Mikva: Usually, but that’s not the basis. When there is a difference, when the
factions develop, it’s sometimes because one side is headed up by a judge who is appointed by a
Democratic president and the other faction is headed up by a judge who is appointed by a
Republican president. It doesn’t have to be who appointed the judge — it usually turned out that
the factions turned on the fact that there were at least two or more judges who cared deeply about
certain kinds of issues and from that, they developed a faction that spread to the other judges.
Again, though, it varied from, it really was a case of personality. We could have some very
strong disagreements on the Court and not end up with any kind of ad hominem tensions. On the
other hand, sometimes the disagreements were about trivial things, but if the personalities
clashed, that was enough to set up a serious tension.
Mr. Pollak: Do you think that this phenomenon is only present at the D.C. Circuit?
Judge Mikva: No, I think we have a longer tradition of it and that somehow judges don’t
seem to be willing to exercise a kind of self restraint in terms of their personal relations than they
do on other courts.
Mr. Pollak: Is there a different flow of cases here, more public law cases?
Judge Mikva: That’s another problem, of course, the cases do tend to be more, not more
important, but more given to ideological disputes than dealing with diversity cases or dealing
with property disputes or commercial disputes which so many of the other circuits have as their
chief fare on their agenda. It’s harder to get that worked up about a commercial law case. It’s
much easier to get that worked up about a civil rights case or about an affirmative action case or
a criminal law case.
Mr. Pollak: What did you find during your tenure in respect to factionalism?
Judge Mikva: When I came on the court, I had heard all the stories about the
Burger/Bazelon disputes. I was a good friend of Judge Bazelon and sort of his protégé, and so he
would always tell me these terrible stories — his comments, of course, were always colored by
his viewpoint. I was pleased to see that since Judge Burger had already left by the time I got on
the Court, that the other judges were supposedly in his faction really were relatively easy to get
along with. There were some disagreements, but I found little difficulty in getting along with
Judge Tamm or Judge MacKinnon. Even Judge Robb and Judge Wilkey, who tended to be a
little more prickly, there certainly wasn’t any kind of sharp animosity that there was during the
Bazelon/Burger years. So, for most of the, certainly all the early years that I was on the Court
and even through the first round of judicial appointments by President Reagan, I found that the
collegiality was good. We’d have disagreements, sometimes they were sharp, but they would
never last beyond the case. I found that Judge Bork, who was my classmate, and I would have
sharp disagreements about things, but they never carried through to the personal side. The same
with Judge Scalia who was a delightful colleague, and Judge Starr, Judge Buckley. It began to
change and I would put the sea change with Judge Silberman. He came on the Court feeling
very strongly, not only about issues, but about the way the court behaved. He had made up his
mind about how the Court should run and what he thought about certain people on the Court. It
wasn’t only among the Court of Appeals Judges. There was a certain decorum that he would
follow most of the time with his colleagues, but the attitude toward the District Court, I thought,
until he came on, most of the appellate court judges recognized that the district judges were
good, that we had a very good District Court: they were very hard working, and they probably
had the hardest job in the whole federal judiciary trying to manage their docket. Of course, with
the sentencing guidelines, the U.S. Attorneys pushing more and more drug cases into the federal
courts, the district court judges’ jobs became very, very difficult. Most of the appellate court
judges respected the talent of our district judges and the fact that they were hard working. I
remember Judge Tamm once said, when I had written a draft of an opinion and I had said the
“lower court did so and so” he said, “You know I was a district judge, and I hated whenever the
Court of Appeals would call me the lower court, I didn’t feel I was ‘lower.'” I never used the
term again. From there on I used the term “trial court” or “trial judge.” That changed and I think
at this point there is a lot of tension between the District Court and the Court of Appeals and it
goes beyond issues; there just isn’t the kind of respect that I think the Court of Appeals judges
should have for the District judges.
Mr. Pollak: To what do you trace that?
Judge Mikva: There was an arrogance with some of the members of the Court of
Appeals. They really do think that the District judges are the lower courts and they can be
shoved around and pushed around.
Mr. Pollak: Is that a view that you attribute to any particular appellate judge or judges?
Judge Mikva: I attribute it to several of the judges, including some of the judges with
whom I agree. I’m not sure that Chief Judge Edwards, for instance, really appreciates the fact
that the District judges are trying all the time. Judge Edwards gets very enthusiastic on an issue
and result and pushes it and sometimes forgets that there are other people that work very hard on
what they are doing, even if they come out with a decision different than his. It certainly is true
of Judge Silberman and Judge Williams and Judge D. H. Ginsburg. I just don’t think that there’s
any presumption that the District Court did it right. There is no respect for the complicated way
that the District judges have performed their job.
Mr. Pollak: That must be an attitude irrespective of ideology because certainly on the
District Bench, there are plenty of judges who agree with the judges you’ve named.
Judge Mikva: Absolutely. Many times we’d have internal disputes over the way the
Court was managed. The District judges and the Court of Appeals judges would line up on
opposite sides, almost independent of their ideology on the bench, sometimes on matters of
disciplines, sometimes on matters of procedure, even something like holding a judicial
conference. One time Judge Silberman decided he wanted to test my capacity to call a judicial
conference which I thought we were supposed to hold every year. He wanted to postpone it for a
year or cancel it for a year and took it to the Judicial Council. I got most of my support from
District judges. I remember one of them, the late Judge Revercomb, said, “You know I always
thought that that was something that the Chief Judge ought to decide, it’s not something that
judges ought to second guess about, so I will support you.” And he did. It grieved me the last
few years that I was on the Court. I really felt that that personal instability really can almost
overwhelm the important and good work that the Court was doing. The real tragedy is that some
of the ideological disputes and some of the disputes that have been voiced were the kinds of
disputes that should be aired, they were the kinds of disputes that needed this kind of discussion
and division; unfortunately, they took on a personal quality, and people started assuming that the
other side had evil qualities and evil motives. It lost its light-shedding and became heatshedding.
Mr. Pollak: Judge, let me inquire further just in the interest of providing you with the
opportunity to say what it is you want to say. There were personal frictions between Judge
Silberman and others or between some judges and other judges and you’ve named Judge
Silberman. Did those influence the work of the Court and, if so, how? What, other than making
it an uncomfortable place to be when those personal difficulties were going on, what else would
you comment about it?
Judge Mikva: It took so much time and energy away from the work that I think judges
ought to be doing, that is, deciding these hard cases. For example, Judge Silberman decided that
it was a bad idea to have visiting judges and he led a crusade first when Judge Wald was Chief
Judge and then when I was Chief Judge to make it so difficult to invite visiting judges that we
stopped inviting them. Now, I happen to think that is too bad because I think visiting judges sort
of added a special diversity to the Court that was useful. But in addition, we spent an incredible
amount of time arguing about it at judges’ meetings and at Council meetings and all kinds of
other times. The paper flow about just deciding whether we would have visiting judges and how
we would have them and when we would have them became incredible. The Gender Bias Study
took place mostly during Judge Wald’s tenure but got carried over to mine and actually was
finished after I left. Judge Silberman and others just took it on as a crusade and, again, aside
from the merits of having to study and finding out what impact gender bias had on the way
judges administered in the Court of Appeals and District Court here in D.C., it just took an
incredible amount of time. Instead of judges just supervising what was being done by the
lawyers and academics and others who were looking at the evidence, and other hearings and so
on, we just spent incredible time in judges’ meetings fighting about what should go in and what
shouldn’t go in and whose report it would be and what the impact of the report would be and so
on. Whether or not to host a judicial conference, I can’t tell you the number of meetings we had,
the amount of time that was spent just getting enough judges to agree that there ought to be a
judicial conference. This went on about all kinds of issues; that interfered, I think, with the time
that should have been put on cases. But, in addition, it was what was said in the opinions as
well, the veneer of mutual respect for both the judge and the other side of the issue began to be
worn thin and frequently the language got very terse. Again, not the kind of thing that the
average lay person would recognize, one calling the other judges names, but the kind of language
judges don’t normally use about their colleagues. It was beginning to be more of that as time
went on. I still remember my first exposure to the collegial process was when I was a clerk for
the Supreme Court. There were some very sharp disagreements on the Court that I clerked for. I
remember that my boss Justice Minton who had strong disagreements with Justice Douglas and
Justice Black just thought the world of them and they would stroll arm and arm and go to lunch
and kibbutz with them. That’s what I thought the collegial process was supposed to be on our
Court. It dismayed me to see that collegiality disappear.
Mr. Pollak: Are there remedies for it, or, as you commented with respect to Judges
Burger and Bazelon, that it ebbs and flows at least on this Circuit historically with the arrival and
departure of particular judges?
Judge Mikva: I think it ebbs and flows with the arrival of particular judges and, to be
very candid, I think when Judge Silberman takes senior status, it will improve tremendously. He
really just finds it difficult to operate any other way than he does in an institutional setting. I’ve
heard stories of his other government experiences that are not too dissimilar. I just think that
when he takes senior status and is no longer an active influence on the Court, it will improve
substantially because the other judges, regardless of their ideology, don’t have the same bite to
their conflict that he provided.
Mr. Pollak: Do I detect possibly that there’s a factor in these disagreements that brings
them more forcefully to the door of the Chief Judge and that the Chief Judge feels that Bazelon
was a Chief Judge, Wald was a Chief Judge, you were a Chief Judge, Burger was not, Silberman
is not.
Judge Mikva: I think so. On the other hand, I understand and I have not been on the
Court and have not talked to Judge Silberman at all about anything. I haven’t talked to Judge
Edwards about this problem. I sense though that maybe he has just run out of gas or maybe there
was a chemistry problem that he had with Judge Wald and with me. I sensed that Judge
Silberman and Chief Judge Edwards seem to be having more rapport than Judge Silberman had
with either Judge Wald or me except, again, this is something that doesn’t show to the outside
world, but among judges it’s a matter of gossip. I do not know of another instance where a judge
went up to the Hill to contradict a position that his Chief Judge was taking. It just isn’t done.
There were lots of times that I disagreed with things that Judge Bazelon was saying on the Hill or
that Judge Wright was saying. And in other Circuits, I know, for instance that people don’t like
some of the things that chief judges do, but the notion of going up to the Hill and publicly
disagreeing with their chief judge, somehow, I think most judges feel that that would destroy the
camaraderie that’s necessary to keep the court together. Chief Judge Edwards went up to testify
about the need for having a twelfth judge appointed; Judge Silberman saw no problem in going
up and sharply disagreeing with Judge Edwards and saying, “No, we don’t need 12 judges —
there’s not work to keep us busy now.” It was commented on not only by members of this Court,
but by members of courts of appeals in other circuits.
Mr. Pollak: Is there anything else that you would like to comment on in respect to the
relations among the judges and your experience?
Judge Mikva: Again, it grieved me greatly, partly because I have prided myself over the
years on being able to get along with people in the Congress where sharply ideological disputes
are the order of the day. Some of my best friends were conservative Republicans and we didn’t
vote together on two issues during all the session, but considered ourselves friends. Part of it
was there were more opportunities in the Congress to have social relations and personal relations
with people than there were on the Court. In Congress, we would play paddle ball together or
tennis together or, if we represented the same State, for instance, we’d be put in many social
situations together. On the Court, there aren’t those opportunities. You sit together when you
hear oral argument and you meet in conference after that to decide how the case is going to be
decided and after that the social opportunities are only those that are created by the judges
themselves. There weren’t very many of those. On some of those that were created, some of the
judges didn’t show up. So it became hard to find any common ground at all. That bothered me a
great deal. I was kind of relieved, as fond as I was of Judge Bazelon, that as he took senior status
that the sharp disagreements that he had with some of the others began to disappear and that we
were getting along reasonably well, even though there was not the kind of closeness or personal
affection that we had in the Congress. Interestingly, Judge MacKinnon and I had probably more
disagreements on issues than any two judges up there, but he and I got along very well. I think
part of it was that we both served in Congress and both understood that you could disagree
without being disagreeable. To the date of his death we had conversations about many things.
He had a good sense of humor and frequently he would tease me about some of my views and I
would tease him. It was a nice collegial relationship. Unfortunately, it was not shared by other
people up there.
Mr. Pollak: I have a next set of questions which we either might terminate this
confidential tape for the present or possibly you have something that you would prefer to say on
it. During your tenure, I believe, four judges on your Court Scalia, Bork, Ginsburg and Thomas
went to the Supreme Court. I want to inquire as to the atmosphere on the Court during the
nominations and your own relationship with those judges and the hearing process which, at least
in the cases of Judges Bork and Thomas, was difficult.
Judge Mikva: Maybe we ought to keep that piece on here.
Mr. Pollak: Okay, I think I kind of misframed it because Judge Bork didn’t go to the
Supreme Court.
Judge Mikva: He didn’t go on the Supreme Court, but I can sense the kind of questions
you want to ask and I think some of this I would just as soon keep confidential for awhile.
Mr. Pollak: Did you have any public role in any of the nominations?
Judge Mikva: No. Again, at that time, the tradition was, and I think this one is still kept
up, judges on our Court did not involve themselves in the process of selecting the Supreme Court
Justices and didn’t comment on it publicly in any way. When I was Chief Judge, I had kind of a
stock phrase that I would say about anybody who was being considered, that he was a fine judge
and would make a fine justice or something like that. Beyond that, we didn’t testify or write
letters or so on. That was certainly true of the ones you name. As I indicated, Judge Bork and I
had been classmates and were good friends and the friendship did get strained during the
confirmation process–not because I did anything to oppose his nomination but because I didn’t
do as much as I think he might have expected me to do for his nomination. It’s kind of
interesting. I really have a great affection for Bob Bork. I’m not sure about his most recent
expression of views in the book, I understand, he’s written, which I haven’t read, where he seems
to have gone off the deep end. I had always thought that Bob Bork was very much in the main
stream of legal thought. I disagreed with him on a lot of things but I certainly didn’t think that he
was an extremist. I remember when he was first nominated for the Supreme Court, he mentioned
to me that he was going to see Senator Simon. Paul Simon and I were seatmates and roommates
in the State Legislature and remained very close friends over the years. I knew that Bork can be
a little bit scratchy sometimes on first impression, so I thought I would call Paul and assure him
that while he wouldn’t have been my choice for Supreme Court Justice, but coming from a
Republican president, Bork would be a good choice, would be a good Supreme Court Justice.
So, I called Paul and Paul thanked me. After Bork went to see him, Simon called me back and
said, “Well, I want to tell you about your protégé.” And I said, “Oh my protégé?” He said,
“Well, he came in and I mentioned that you had called and said nice things about him and he
proceeded to explain to me that you and he didn’t agree on very much and I should not assume
that any of your views were his views. He said, “If he was trying to impress me about how independent
he was, I guess it worked,” he said, “but I must say I didn’t come away with a great
enthusiasm for his nomination.” On the other hand, that was early in the process when the
opposition was still fairly modest, but it got to get thicker and stickier. I think Bob somehow
expected me to do more than I either felt I should or that I was inclined to do. At that point, I’m
not sure he really wanted my help. What it was he thought I could do, I don’t know. It was one
of those situations, which I understand from my political experiences, anybody who is not for
you is agin you. Since I was not doing anything affirmative, I was not his friend.
Justice Thomas ended up in a situation because we were on a very hot case in which he
was writing for the majority and I was dissenting. The case was sub judice when he was
nominated and I assumed he would just do what other judges had done before and just call and
say, “Look, we are going to have to reargue that case because I can’t find time to write the
opinion.” But, for reasons I don’t understand, he decided he was going to stay on the case and he
stayed on it and didn’t hand down the decision until after he was confirmed. It was a very hot
case — it was about the preferences women licensees are given at the Federal Communications
Commission. It was a case in which I thought he was completely undoing a Supreme Court
precedent from just a couple of years earlier that Justice Brennan had handed down. I had a
vigorous dissent and he had a vigorous majority opinion. But it leaked out just before his
confirmation and the leak became the news, not what his views were or anything else but how
the leak occurred. I think some people assumed that I was involved in it. Actually, as we dug
into it, it turned out that what happened was that one of his clerks was so proud of the opinion
that he started showing it to other clerks. Traditionally, the only people who would see drafts of
the opinions are the clerks that are working on the case and other people in the chambers, but a
clerk doesn’t normally show a draft of something to a clerk in some other chamber and
particularly if they are not on the panel. But other clerks apparently had gotten to see this draft
and one of them–we didn’t find out which one–but one of them apparently leaked it to Legal
Times as a matter of fact and they had a big story about how Judge Thomas was ready to come
out with this opinion but he wasn’t going to come out with it until after he was confirmed.
Fortunately, the issue itself didn’t play much of a role in his confirmation but the leak issue
ended up playing a big role in a several day’s stories in the press. It became a very big issue
within the Court because some of the judges were determined to find out where the leak came
from.
Mr. Pollak: You were Chief Judge at the time.
Judge Mikva: I was Chief Judge at the time. Again, I think some of them were very
suspicious that I was involved in the leak, but it’s not the way I play the game. In any event, I
didn’t think it was appropriate. One of them suggested we bring in the FBI to investigate. I
didn’t think that made sense and I didn’t really want to hang the clerk, whoever it was that leaked
it, much as I disapproved of it. I didn’t think the clerk should spend the rest of his life in
purgatory because of some foolish mistake he made as a clerk. But, in any event, it was one of
Justice Thomas’ clerks who was the original culprit here; because he was so proud of his boss’
work, he was showing it to everyone.
Mr. Pollak: So a judge who is nominated or even confirmed to the Supreme Court before
being sworn in as a Justice could continue to do the business of the Court of Appeals?
Judge Mikva: They usually don’t. What happened in Justice Thomas’ case is that, and I
think this happened with Justice Scalia too, is after they were confirmed and after they had taken
their oath, the Chief Justice designates them to sit for one day as a Circuit Judge and that’s the
day they conclude their work and issue their opinion. Now, again, Justice Scalia did that with a
couple of cases that were very well along when he was nominated but as to most of them, he just
stepped away from them. Either another judge was appointed if they weren’t controversial, or
the cases were reargued if they were. The same was true with Justice Ginsburg when she went
on.
Mr. Pollak: Did any of the judges involve themselves in any of those confirmation
processes?
Judge Mikva: I think my phone calls to a few selected senators like Senator Simon were
probably as much as anybody did. Judge Silberman was supposedly helping Justice Thomas but
I think that was more his wife being involved and legitimately so. She was working as a lobbyist
for somebody. No, she was on the EEOC and she was obviously helping Judge Thomas.
Mr. Pollak: I guess maybe she had served with him.
Judge Mikva: She had. But, other than that, most of us, as I say, felt that there was this
legitimate tradition that, first of all if you testified for somebody, then it becomes very obvious
when you don’t testify for somebody that there is some animosity. It just reads too much into it.
So, many of the reasons why you would be for or against somebody are the kinds of things that
you can’t really discuss publicly — the decisional process itself and the secret nonpublic
conference procedures and so on. I think most judges based on court felt that it was
inappropriate.
Mr. Pollak: I gather from what you have said that you must have received inquiries from
the press or from people and you would turn them away?
Judge Mikva: Again, when I was Chief Judge, there were some things I had to say
publicly and I did, like he or she is a fine judge and will make a fine Justice. I was smiling
because when Justice Ginsburg was nominated, she was a great judge on our Court and she is
making a fine Justice in the Supreme Court, but she wasn’t my first choice. I preferred to see
Judge Wald be nominated and I guess that sort of showed in the way I was making these public
answers about Judge Ginsburg, and what kind of a Justice she would make, and sort of
equivocating on some of the adjectives. Apparently there was no great enthusiasm or
effusiveness about my statement and one of the press that I knew very well called me up and
said, “You know Ab, I don’t want any of this formal talk about Judge Ginsburg, just answer one
question, how many times did she come down to your chamber and shmooze?” I laughed
because obviously that is not her forte. [Laughing]
Mr. Pollak: Does the pendency of one of these nominations come in to the Court’s work?
Judge Mikva: Yes. Whenever there is a vacancy, it starts to affect the court indirectly, if
not directly. There are always some people on our Court, and our Court is a double AA league,
we get people ready for the “show” and there is always somebody on our Court that is being
considered whenever there is a vacancy. They are frequently being considered when there is no
vacancy. Or, at least they consider themselves when there is no vacancy. It does complicate the
work of the Court because people start jockeying to get into an ideological position, either in fact
or at least are suspected to be doing that; and so you worry about somebody taking a position on
some case. Is that where they are, or, are they just trying to show or make some kind of a
showing for a Senate confirmation? It’s an uncomfortable kind of process that the Court goes
through when someone is being considered. It is much better when judges are being perceived
as doing their work on this Court rather than doing prep work for promotion.
Mr. Pollak: Did you aspire to the Supreme Court?
Judge Mikva: Oh, I suppose every lawyer aspires to it. I suppose every judge certainly
aspires to it. There was a brief window when Fitz Mondale was running and Mike Dukakis was
running and my name was bandied about as potentially a Supreme Court Justice. The
assumption was that if President Carter had gotten re-elected, then there would have been a very
distinct possibility that there would certainly be vacancies during a second Carter term as there
were in fact vacancies during the first Reagan Administration. But anyway, when Fitz Mondale
lost in ‘84, I sort of internally made up my mind that it wasn’t going to happen and not to worry
about it anymore. I’ve had a very full, rich, career both as a judge and in other branches of the
government; to say that I didn’t aspire to it would be not telling it straight, but to say that I felt
some how deprived is just not so. By the time President Clinton became President in ‘92, I
developed a stock answer when people asked me, “was I aspiring?” and I think I said I was “too
White, too old and too liberal to be a Supreme Court Justice. I wasn’t ready to change any of
those.
Mr. Pollak: Do you have any other comments about either the fractious nominations of
Judge Bork and Judge Thomas that you want to put on the tape?
Judge Mikva: No, I don’t think so. Judge Scalia’s nomination was quite uneventful. His
charm stood him in very good stead. I was surprised and pleased at how well Judge Ginsburg’s
confirmation went because, again, she is so painfully shy I was afraid that would cause her
problems. Some of the senators, one of them who I’ve known for a long, long time called me up.
I hadn’t initiated contact with him. He and I are still good friends. He said, “Well, I just met
with your colleague — Judge Ginsburg.” I said, “Oh, how did it go”? He said, “It was the
strangest meeting I ever had. She came in for a courtesy call, and she sat down, and I mentioned
your name and she just sort of looked at me. I thought apparently, she didn’t have a good
relationship with you. So I went on to something else.” I answered, “She and I get along very
well. I think that is just her way.” He said, “I figured that out, because then I gave some quote
from a case that I remembered of Brandeis’ and she just looked at me and I thought, oh boy, I got
it wrong.” He said, “I just kept talking. I talked about some other case that I remembered and
she just looked at me.” He said, “By that time, I was so uncomfortable, I didn’t even think to ask
her any questions.” After 20 minutes, she looked at her watch and said, “Thank you very much,
Senator,” got up and walked out. He said, “I don’t know what to make of her.” I said, “Well,
that’s Judge Ginsburg.” Anyway, he voted for her and she had a very easy time with the
confirmation.
[This is the termination of the confidential tape and transcript of Judge Mikva. The rest
of this oral history was not under seal.]
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 in a way that was 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, but I think that in this case it 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 nominate, 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 are 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 right 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 Mikva: 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 which 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 differences,
disputes, nonetheless must come together in that view because aren’t the figures at about 80
percent of the district rulings are affirmed?
Judge Mikva: 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 summary judgment or dismissals of
complaints where the District judge was making a more paper ruling?
Judge Mikva: 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 Mikva: 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 administrative law judge in a labor case, for instance, as I
would about giving deference to a trial judge in a case coming up from the district court. Partly,
it’s that you’re dealing with Article III judges as opposed to an administrative 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 administrative 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 reasons 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 “plain 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
III judges and everybody else in the spectrum, is that if there is any justification for unelected
judges making 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 making 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 meaning” 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 to 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
Avenue 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 phoney legislative debate where Congressmen get up and make statements
for the folks back home or ask phoney questions that have nothing to do with what the bill is
really about, where it isn’t easy to recognize hot debate in the 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 power.”
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.
Looking at statements in isolation, looking 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 in to the committee report and
isn’t put in and the kinds 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 RICO, Racketeering Influenced Criminal
Organization. That was one of the reasons I was opposed to it. There were others too. All the
years after that that 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 RICO 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 of RICO. We’re going to have all kinds of things being made subject to
RICO.” 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 of RICO, they say, “Even Congressman Mikva, 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 wanted 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 Mikva: 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 Mikva: 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 talking about
cases that. . ..
Mr. Pollak: I see, that you might hear?
Judge Mikva: 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 affirmed me but they did it in a way that made me
very unhappy with the fact that they 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 that 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 of legislative history whether Congress 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 that the 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 Mikva: No. I came 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 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 policy makers 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 still joke 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 prevail 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 maître d’ not only to refuse to accept the
card but to destroy it. The maître d’ came out with a scissors and cut the card in two in the
restaurant. This law professor proceeded to sue, and, of course, was offered several settlements
which were rejected by the law professor. 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 alright 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 to talk about something called congressional
gloss — something like judicial 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 failed 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 its 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. The year 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 or did you ever endeavor to make an opinion cert proof?
Judge Mikva: I would sometimes resist going to certain questions which 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 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 found 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, and
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 three.
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 Mikva: 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 which 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
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 vs. Board 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 v. Board; but they have could have corrected the mistake in Plessy without
any of the things that Brown v. Board 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 terrible 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 achieve it, maybe there was some way for other minorities, including big city
minorities and racial minorities and so on, to achieve political power without the Court stepping
in. 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 distribution of
power that has to be handled very, very carefully. The classic example is Brown v. Board. At
the time the Court handed down that decision, the entire enforcement arm of the Supreme Court
was this one superannuated over-weight marshal, 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 it.
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, instead of being these mythical figures that I clerked for, or whose
opinions I read about in law school, is that they 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 of Appeals?
Supreme Court Judges?
Judge Mikva: 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 the others. 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 clerking. 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 clerking,
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. As 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 it 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
saw.
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 we 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 Mikva: I don’t think, 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 think there was anybody who was
universally recognized as a Learned Hand was 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: Again, 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 that 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 they used to be,
at least. We get these cases that have 27 different issues and we go straight to trying to resolve
the case. It’s hard to think, aside from Judge Bazelon because of his unique role on the Court, it’s
hard to think of any judges on the D.C. Court of Appeals 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.