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ORAL HISTORY
JUDGE MICHAEL W. FARRELL
APRIL 26, 2017 Interview
This interview is being conducted on behalf the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is Judge Michael W. Farrell. The
interviewer is Lory Barsdate Easton. The interview is taking place at the District of Columbia
Court Appeals on April 26, 2017. This is the sixth and final interview.
MRS. EASTON: Well, it is so good to see you again, Judge, and I would like to pick up on
our oral history—
JUDGE FARRELL: Right.
MRS. EASTON: —when your first fifteen-year appointment was winding down. I have the
documentation that you were highly recommended and automatically
renewed.
JUDGE FARRELL: I must have sent you that. I only sent you flattering things. (Both
laughing.)
MRS. EASTON: Well, it was definitely flattering. It was definitely flattering. But then in
2004, you re-upped for what would have been a fifteen-year—
JUDGE FARRELL: Another fifteen-year term. But I think around 2008, by then I had been on
the court for nineteen years. I thought of holding out for twenty as an
active judge. I still had two more years during which I could be an active
judge because the deadline when you have to either leave the court or
become a senior judge is seventy-four, I believe, now. But I went down to
Virginia—William & Mary—to participate in a moot court conference.
’Ran into a judge from the Virginia Supreme Court [Justice Elizabeth B.
Macy]. We talked a little bit, and she said she was retiring, and I said,
“Well, how many years have you got in?” She said, “Nineteen years.” I
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decided if she can retire after nineteen years, why not myself? So I took
senior status in 2008, just to give me a little bit more flexibility in
scheduling, a little bit more freedom to do some traveling with my wife
and to just pursue some other things—hobbies that interest me. And since
2008—we’re now in 2017—I’ve been a senior judge. In general, the
senior judges work about half the schedule that the active judges do.
Occasionally, there are months where you work a little bit more. There
are some where you work a little less. There’s perhaps a little bit more
pressure on us at the moment since we only have seven active judges. So,
the senior judges are fairly important to the court. The problem has
become slightly more acute in the last year or so because we lost one
judge—Judge Schwelb died, S-C-H-W-E-L-B [Frank E. Schwelb]. A
wonderful judge died, and we’ve had three retirements. The former Chief
Judge Wagner retired [Annice M. Wagner]. Recently a former Chief
Judge, Theodore Newman, he retired. He decided he likes his home in
Virgin Islands too much to come up here and labor away. And most
recently Judge Warren King retired. So, we’re down to about maybe five
or six senior judges to help out the active judges. And, with an active
judge compliment of only seven, the court has kind of shrunk
substantially—for the moment, we hope, we hope. And that means that
the senior judge is required to pinch hit, do a little extra duty. But it still
remains roughly half the workload of the active judges. And that means
probably in a given month you have—you’re assigned one regular
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calendar, the cases that qualify as “regular,” which are argued
automatically. And maybe you have two summary calendars, sometimes
maybe only one summary calendar, but for each summary calendar you
have two cases. So that’s about half of what the active judges do and
it’s—frankly for me, it’s quite enough.
MRS. EASTON: And you have no clerks as a senior judge, is that correct?
JUDGE FARRELL: We do have clerks as a senior judge. We have a pool of clerks, of five or
six I think we’re up to six now. Although with our recent retirements it’s
not clear that we need six. But they are a pool; they work for each of the
senior judges under a little system that they follow for parceling out the
cases among the judges. And at any given time, they’re doing projects for
two or three judges, sort of like a low-rank associate at a law firm who
could be working for three or four supervisors or partners.
MRS. EASTON: But at least then you have help with the research.
JUDGE FARRELL: You have help with the research. You don’t have the same personal
relationship with your clerks that you had as an active judge. You don’t
have as much control over them. You may, for example, have something
with a little bit of a timed deadline that you would like the law clerk to
research, only to learn that the clerk has one or two projects that are even
more urgent than yours, so you have to be patient. But it’s wonderful
learning for law clerks, this experience of working for multiple bosses.
Because they really have the experience of having to juggle three or four
balls in the air at the same time. When I was an active judge, I was
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probably a softy because I tried to have my two law clerks each work on
only one or maybe two projects at a time. I thought that was the most
advantageous way of getting the best work out of them. With a senior
judge pool arrangement, it’s not possible to do that. The clerks have to
really learn to, multitask is the word, I guess, these days. And so they
spend a lot of time late at night trying to service multiple judges.
MRS. EASTON: Which is excellent training.
JUDGE FARRELL: (Both laugh.) Yeah.
MRS. EASTON: Are the pool clerks for a one-year period or—
JUDGE FARRELL: Just one-year period, yeah. And I think, in general, my experience has
been they’re pretty much of the same quality as the clerks who clerk for
the active judges. My sense is that the average law clerk coming out of a
good law school would probably prefer to clerk for an individual judge.
But not all can and not all are hired to do so, so sometimes our senior
judge law clerks, this is kind of their second-best, clerking for the senior
judges, but it’s still a wonderful experience for them.
MRS. EASTON: It’s terrific, it’s one I’ll remember to recommend.
JUDGE FARRELL: Yeah, absolutely if you know one. Yeah.
MRS. EASTON: It would be great training.
JUDGE FARRELL: Yeah.
MRS. EASTON: So you are writing opinions actively now about one a month?
JUDGE FARRELL: Yes. Uh, well yes. Not all of them are for publication. A great many of
them are not for publication, but that’s been true of my career throughout.
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We don’t publish everything, by any means. But it’s—you’re probably
writing two to three a month, including a regular calendar case opinion
and a couple of summary calendar case opinions. The unpublished
opinions, we call them memorandum of judgement, MOJs, and there are
quite a few of those. Still, you have to apply yourself to several cases a
month. That’s in addition to, of course, preparing the other cases where
you aren’t the assigned judge but on which you’re expected to participate
with the same degree of diligence and thoroughness. So it’s, it’s all the—
all the work that I feel I need at this stage in my career.
MRS. EASTON: Maybe a bit more. (Both laugh.)
JUDGE FARRELL: Ha, yeah.
MRS. EASTON: Some months.
JUDGE FARRELL: Some months, yeah, it depends entirely how complicated the cases are and
since the cases are assigned by luck, by draw, there’s nothing preassigned
about them, you can, in any given case, in any given month, be assigned
some fairly substantial litigation to work on.
MRS. EASTON: And the caseload of this court has not dropped at all even though the
number of actives judges has dropped.
JUDGE FARRELL: I don’t think it’s dropped. I don’t think it has increased, but I think it’s
been fairly constant, with the same number or the same percentages as
there were before: probably nearly 50 percent criminal and then the rest
divided among civil, administrative, disciplinary, and the usual things. I
think it’s stayed the same. But fortunately the caseload has not increased.
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MRS. EASTON: How are you doing with your 90-day rule?
JUDGE FARRELL: Oh, my own? The Farrell Ninety-Day Rule? In general, I’ve been able to
adhere to it. It’s easier, I think, as a senior judge with a slightly, or
substantially, reduced caseload it makes it easier. It gets harder if you
luck on to a very tough case that may take a little longer. But I think I’ve
managed to adhere to my three-month rule.
MRS. EASTON: So, in 2008, you went senior and that was to have more freedom for
hobbies and travelling. I want to hear about your top hobbies and travel
JUDGE FARRELL: Oh, well, it’s always been a passion for reading, my rather maybe
idiosyncratic reading tastes. Not to mention the arts. I’ve always been a
kind of a devotee of the arts since I majored in English, and humanities,
and have been an opera fan for many years, chamber music, and things
like that. But, you know, all judges have their own particular things that
they like and dislike. These things kind of interest me; as a senior judge, I
am able to get out more in the evening to go to things like this without
worrying that I have to be in court at 9:30 the next morning to sit.
Reading is also—it leaves you more time. And, above all, until recently,
it’s been travel. During the last seven or eight years my wife and I have
travelled quite a bit. I think we’re beginning to cool on the idea of longdistance travelling because it—it becomes a burden in many ways
nowadays to drag yourself off to Italy or France or Germany or
somewhere like that.
MRS. EASTON: Looking for sympathy? (Both laugh.)
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JUDGE FARRELL: Somebody has to do it, I know (laughing). But it’s—uh, sometimes you
reach a certain age where the disadvantages of travelling, the burdens, the
annoyances, threaten to outweigh the pleasures. And so I think we may be
doing less travelling in the future. Particularly as we develop these
physical ailments that we have. But nonetheless, the advantage—an
advantage of being a senior judge is that in any given month, you can say,
“I’m not available for assignments because I plan to be somewhere, not
here.”
MRS. EASTON: Now, your wife [Ellen Bass] was a government lawyer—
JUDGE FARRELL: She was a government lawyer for a long time, and then she did five years
with a nationwide law firm in their D.C. office, Kutak Rock, she did civil
work with them. After that, she then went back into government, so to
speak; she became the chief of investigations in the inspector general’s
office at WMATA and did that for six or seven years. [Ellen Bass served
as the Assistant Inspector General for Investigations and Counsel to the
Inspector General since August 2007 and retired in November 2011, per
https://www.wmata.com/about/inspector-general/upload/semiannualreport-03-12-12.pdf.] You know, investigating the usual: fraud, graft,
mismanagement and things. WMATA, like any agency, has these kind of
problems. She did that and then she just finally got tired of it because she
had been doing inspector general work at the Department of Education for
ten years earlier, just tired of that. She never really, I think, had a deep
passion for litigation, so she didn’t want to do that; five or six years at
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Kutak Rock doing that was enough for her. And then she just decided to
retire and let her husband support her. (Laughs.) No, she, she’s not in the
situation where she financially had to work so she has spent the last six or
seven years doing a lot of things, including a good deal of tutoring in the
D.C. public school system. She has tutored French, and English to foreign
students, so forth. She keeps busy.
MRS. EASTON: Wow. Have you been doing any tutoring, given your teaching
background?
JUDGE FARRELL: I have not been doing any tutoring. I have the feeling that I paid my dues
to the teaching profession many years ago. I used to, in my early years as
a judge, go to the local law schools on invitation of people I knew, and I’d
occasionally talk about various things, little lectures and so forth. But that
kind of stopped eventually. I kind of—maybe the people I knew there
stopped teaching or whatever then, and I just found less time available to
do that kind of thing.
MRS. EASTON: Well, I know you did CLE courses for the D.C. Bar.
JUDGE FARRELL: I did them for a number of years.
MRS. EASTON: When I was first being admitted here in D.C., you were the instructor in
one of my required courses. (Laughs.)
JUDGE FARRELL: Oh, really. Although, we require much less CLE than any other
jurisdictions really. It’s uh—yeah, so I haven’t done any teaching in
years.
MRS. EASTON: And what are your tastes in opera? Do you go off to Ring cycles?
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JUDGE FARRELL: My tastes are pretty comprehensive. Ever since I studied German, way,
way back in the dim, distant past, I’ve had a passion for Wagner. I don’t
tell that to everybody because occasionally the conversation stops when
you say something like that. So, German opera, of course, I’ve liked. But
in the last thirty years I’ve acquired a passion for Italian opera as well—
Verdi, Puccini, and all the greats. So, I like most of it!
MRS. EASTON: Do you find the offerings of the Kennedy Center—
JUDGE FARRELL: Yeah, I find them very interesting. Occasionally, they have new stuff,
some of which I missed this year, but they experiment. They’re
desperately trying to attract new audiences because the demographic for
opera—for concert going—is getting older and older. I always joke with
people and say, if you want to see the audience for opera these days, go to
the telecasts from the Metropolitan Opera that you can find in movie
theaters around the area. And when they pan the camera around the
audience, you’ll see that what you have is a combination, at least among
the men, of either no hair or gray hair. So, concert going, opera going is a
serious problem in this age—attracting young people. And nobody quite
knows the answer to it. One is to do newer things or interesting things,
cross-genre kind of things, combining classical with popular and so forth.
And I enjoy a lot of that, although I’m old enough that my tastes are still—
are probably fairly set in traditional classical music and opera.
MRS. EASTON: I have to ask if you’ve seen Hamilton.
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JUDGE FARRELL: I have not seen Hamilton. I don’t know whether I ever could have gotten
a ticket if I wanted. (Both laugh.) I always had doubts that even if I got a
ticket whether I’d understand very much without first reading the text.
MRS. EASTON: Yeah, well, you have to read the libretto. (Laughs.)
JUDGE FARRELL: You have to read the libretto on events. I have not seen it. We do get to
New York, my wife and I, for three or four times a year to see a show or
two and musicals if we can find a good one. But Hamilton, I just haven’t
maybe pursued it enough; t will eventually come here, and I’ll see it.
MRS. EASTON: Exactly.
JUDGE FARRELL: And then I mentioned travelling. It’s of no interest of anyone where we
like to travel but we tend to prefer either the United States or Europe.
Only because I refuse to travel to Asia, where my wife would love to go to
again, because she spent—before I married her, she spent a lot of time in
various countries in Asia and loved them. And in the Middle East. But
those distances for me and my long legs and my bad back are a little bit
hard to cover without being very uncomfortable.
MRS. EASTON: At one time, you were an avid hiker.
JUDGE FARRELL: I was an avid hiker but since I had cancer in 2014, prostate cancer and
rather rigorous treatment for it, the hiking days are essentially over. I am
sorry about that but it’s just a fact. I’m happy to be alive. (Laughs.) So,
when we do take hikes, I find myself looking for the park bench fairly
quickly. So there’s not much hiking left. And my wife was never an avid
hiker either, so (laughs) she’s quite satisfied with not hiking.
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MRS. EASTON: Did you go up into the Shenandoah or—?
JUDGE FARRELL: Not often, a few times. What I used to do, I was kind of a passionate
supporter of the national parks and probably over twelve, fifteen years, I
probably had visited two-thirds of them and did some hiking in all of
them.
MRS. EASTON: Oh, wow.
JUDGE FARRELL: Yeah. Nothing very rigorous, no overnight hiking. I was always sure—
made sure there was a hotel there somewhere to camp in at night. But I
just like the outdoors and enjoyed that. I feel I’ve done much of it, most
of it, so I don’t really miss it that much now.
MRS. EASTON: And how is your health now?
JUDGE FARRELL: My health, I think, is excellent. I have relatively little stamina, that’s the
result of the kind of treatment of radiation and other things. But I’m able
to exercise. I go to the gym a couple, three or four times a week, and I do
light exercise. And I’m able to come to work and work, and I eat a
healthy diet and I take care of myself. So, on the whole, I can’t complain.
The doctor seems to shake his head and think that I’ve fooled him or
something because I am still reasonably healthy.
MRS. EASTON: I’m delighted to see that.
JUDGE FARRELL: I mean, at my age, you know, you don’t know whether it’s your medical
condition or just advancing age that tells you, you can’t do the things you
used to do.
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MRS. EASTON: Well, from the time that you’ve been a senior judge, are there any cases or
experiences on the court that stand out?
JUDGE FARRELL: I don’t think anything more really unusual than when I was an active
judge. Indeed, what you generally don’t have as a senior judge is the
experience of participating in the en banc decisions of the court where all
nine judges, or now seven, convene to decide cases of special importance.
You don’t sit on that; you can’t even vote whether to go en banc or not as
a senior judge, unless you were on the panel whose decision is being then
reviewed en banc. In that case, you can participate en banc, and some of
our judges do. That’s an experience that I miss in a way. Although we
don’t go en banc very much because we can’t really afford the time to go
too often given how busy we are as an ordinary intermediate kind of
appellate court. You also miss, perhaps, the experience of the
administrative policymaking that the court undertakes and has to pursue
every month with their monthly meetings to decide administrative
questions and so forth. But I’m happy to be free of that. I was on the
Joint Committee on Administration for seventeen, sixteen, well from 1992
to 2008, that’s sixteen years. That was enough of worrying about the
budget and things like that. I’m happy to have turned that over to other
judges. I’ve had some significant cases since 2008, but I don’t think
they’re really markedly different than the cases I had earlier. I would
think, on the average maybe once a year, or maybe a little bit more than
once a year, you have to write an opinion in a case where you really think
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it’s worth talking about or that somebody might be interested. All of them
are interesting to the litigants, the winner and the loser. But beyond that,
much of what we decide doesn’t have any kind of resonance with the legal
community at large.
MRS. EASTON: Have you ever been involved in the associations of state court judges?
JUDGE FARRELL: No, I really never was that much. Um, our chief judges get very involved
in the Council of Chief Justices. Beyond that, what there has been over
the years is the ABA’s appellate judges kind of conference and appellate
judges’ annual meetings and so forth. I’ve gone to a couple of those, but I
never became active in that. I never really felt I had the time or wanted to
devote the time to that kind of extracurricular activity. It’s immensely
valuable; you learn from judges in other courts better ways to kind of
handle difficulties, like how to get judges to produce their opinions. But
in the kind of balancing that I really undertook as to how I was going to
spend my time, I felt that it was more valuably spent just trying to do my
own job as best I could. And so I really didn’t participate a lot in the kind
of bar activities of the appellate judges’ bar. And not many of my
colleagues did either. I think when you’re on a court that has a heavy
caseload like ours, I mean, traditionally we have had probably the heaviest
caseload of courts around the nation in states that have only one court of
appeals. There isn’t a lot of time to, um, to do that kind of fraternizing in
the judges’ bar, the judges’ community. Maybe it’s something if I were to
do it again, I would have participated in more. But my experience, my
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limited experience, in doing it is that it has been a lot of socializing. Not a
huge amount of judicial education that I couldn’t pick up otherwise. What
I have done over the years, although not in recent years, was take part in
moot courts at the universities around the country, law schools and so
forth. I always found that interesting. I went down to William & Mary
periodically over the years, they have a very good moot court, and the
local law schools also have moot court panels. Those are interesting; you
meet judges from other jurisdictions and you get to see the—you’d like to
think the best and the brightest in the coming lawyer community. But
sometimes all you get to see is the glibbest among the new lawyer crop,
not necessarily the best.
MRS. EASTON: Have you observed changes in the qualifications or personalities of the
young lawyers?
JUDGE FARRELL: Young lawyers—that’s a difficult question. I don’t know whether my
exposure to law practice is wide enough that I can really make a
judgement on that. I think the quality of the advocacy that we see has
remained pretty constant. The kinds of people who get attracted to
appellate work remains pretty much constant. A lot of lawyers, if they
don’t think they have that really analytical quality and writing ability for
appellate work, shy away from it. So we tend to get the self-selecting
lawyers who like to do appellate work. And we get a lot of appellate cases
from institutions like the U.S. Attorney’s Office, Public Defender Service,
the Attorney General for the District of Columbia. These are pretty
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selective organizations. They don’t send lawyers in to do appellate work
unless they’ve given them some reason to believe that they’re going to do
good appellate work. And so we tend to get often the best of our
lawyering from those institutions, and they remain good.
Now everybody, I’m sure, particularly people in law practice, have their
own views as to whether the young lawyers are as good as they used to be.
Everybody kind of recites the cliché that lawyers now, young lawyers, are
a thousand miles wide and an inch and a half deep, when in the past they
used to be narrower in their ability to gather information but they could
analyze it more deeply and more probingly. I don’t know whether that’s
true or not. You do get a sense that there has been some effect due to the
fact that everything is done by young lawyers on a computer now—all of
their research, all of their composing, the word “writing” doesn’t even
exist in their vocabulary. I don’t know how that influences behavior,
really, except to recite kind of the cliché or the truism that young lawyers,
young people, spend so much time on the internet, surfing it, are exposed
to such an extraordinary amount of information, that there really isn’t the
time or the interest in concentrating on specific little topics and subjects. I
do know that when I give my senior law clerks an assignment to do some
research they do it thoroughly and they seem to have the skills and the
ability to do it. They do tend, it seems to me, to give you longer
memoranda than they did when they had to write them out in hand.
(Laughs.) Because it’s easier to write twenty, thirty, forty pages if you’re
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composing rather than having to write it in longhand. I think there is a
periodic complaint from judges who have law clerks draft opinions for
them that they’re too darn long and the judge has to spend all his or her
time in cutting it down by two-thirds. I think maybe that’s always been a
problem. But I have no reason to think that the lawyers, the young
lawyers, at least the young lawyers we see, aren’t just as good as they ever
were and maybe, in fact, because they’ve grown up in the information age,
grasp matters, grasp issues quicker than their predecessors, I don’t know.
I will say that they’re very smart. And, again and again, going into oral
argument and watching young lawyers and seeing the poise they have and
the self-possession and the self-confidence makes me envious, because I
wish I would have had that when I began doing that kind of stuff. And I
don’t know where they get it, but they seem to have it. Hard to say; I
think it’s partly because, particularly in a city like Washington, which
attracts very good, young lawyers—they seem to like to come to the big
cities—we may not get a fully fair sampling of what the younger
generation of lawyers is like. But what we see is awfully good.
MRS. EASTON: I’m interested, did you ever make the switch to composing on the
computer?
JUDGE FARRELL: You would ask that question, wouldn’t you?
MRS. EASTON: I’m just curious because uh, it is—you’re probably right on the cusp
where—
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JUDGE FARRELL: I’m going to give you anecdote which or—a little story which will tell you
the answer to that. Not long ago, one of our senior judges, who has kind
of made the switch, was unhappy because he came back from oral
argument and found that on the bench for oral argument were long legal
pads. He sent around an email to the clerk of the courts, saying “I would
think we ought to substitute letter size pads; legal size pads have gone out
of fashion. You can’t put them in your case file as easily as letter size
because everything else is letter-sized nowadays. Can’t we get rid of the
long yellow pads?” I immediately sent out an email, tongue-in-cheek, and
said I want to go en banc on that issue, because although I may be the last
judge on the court to do it I’m still a fan of long yellow pads. I have only
partially made the switch to the information age. I’m perfectly adept at
doing email, but I don’t compose opinions on the computer generally.
Sometimes I do, but more often I stick to my old habit of just writing them
out. And I’m probably one of about a dozen judges in the country who
still do that. It’s a remarkable thing; it’s the kind of thing that sometimes
tells you maybe your judicial career oughtn’t last all that much longer
when you see the younger judges, and we have a number of them, who
march onto the bench with their laptop computer. No such thing like just
a fountain pen, or a ballpoint pen. Everything is done on their little
computer there and they work, I’m sure, far more efficiently with that than
does Judge Farrell who brings out a sheaf of handwritten notes from his
research and thinking about the cases. It’s simply part of a general
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mutation in our culture toward the electronic age. I’ve made the transition
much more slowly, if at all, than some of my colleagues. But I think it’s a
problem in general for older judges—older appellate judges and trial
judges. We have gone more and more towards strict electronic filing.
We’re going to be within, I think, fairly short order strictly electronic
filing. Judges will no longer get copies of the parties’ briefs in their
chambers; parties will not be required to file paper briefs. What it
currently means, to the extent we have already gone over to that practice,
is that the older judges tend to overwork the printing machines. You get it
online and you print it out because you like to read the briefs on Metro or
something like that, or you don’t feel as comfortable as the younger judges
do reading forty, fifty, sixty pages on that little screen. I find it personally
very difficult to read at length, whether it’s transcripts or briefs, online.
Maybe it’s just my posture, for a lot of reasons I’m just used to—and, of
course, I haven’t even begun to master the idea of how to electronically
make notes online, reading things and bookmarking and things like that.
My wife says I’m just lazy in that respect, that I refuse to change my
habits. And I plead guilty.
MRS. EASTON: (Both laughing.) I might counsel you to not leap into that plea. I still—I
mean, I’ve been doing things, composing electronically since law school,
but I strongly prefer to read long things on paper. And I—so I’m a
dinosaur right there with you. Do you use a Kindle or any other device?
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JUDGE FARRELL: I use a Kindle. My wife has a Kindle. I found it very valuable, although
selectively. I tend to still prefer to get my books from Amazon or
somewhere else or a bookstore —they still have a few—and read them
between covers. But I confess, I’ve read, in the last three or four years,
quite a few things on Kindle. You get used to it. There’s something
sentimental, something nostalgic, about closing the covers of a book that
you’ve just finished of three or four hundred pages and putting in on the
shelf somewhere knowing you can go back to it and you can look at it and
remembering where you made a note in it and so forth. When you finish
your book on Kindle, it’s as though it disappears into the ether. ‘Not
necessarily true, you can call it up again and reread it if you want. But I
think I use my Kindle reading for things that I really don’t feel I’m going
to ever look at a second time.
MRS. EASTON: Aside from that nostalgia, I’d be curious if you think that browsing for
books has become more difficult in the electronic age. It’s delightful, of
course, to search on Amazon or elsewhere, but I miss the stacks.
JUDGE FARRELL: Ah, yeah. In the bookstores, just coming across things that you didn’t
even know were out there. If you’re any good at computer research, at
Googling things, you can no doubt find a dozen ways of looking for books
in any area you’re interested in. But still, it’s nice to go to a bookstore and
look at the heading for history books and just start with A and go through
Z and find something interesting. But how long the bookstores are going
to survive is anyone’s guess.
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MRS. EASTON: Sad but true. Well, up until fairly recently, there were more senior judges
than active judges on the court here.
JUDGE FARRELL: There were, but I think it’s almost fifty-fifty now, because we’re down to
about seven seniors and have seven actives currently.
MRS. EASTON: So tell me about your observations on the collegiality of this court.
JUDGE FARRELL: Well, I think, like most courts that—a lot of whose work is, call it, error
correcting, intermediate appellate court kind of work, it’s fairly easy and
fairly important to maintain a very high level of collegiality, because a lot
of the issues that are presented aren’t the kinds that tend to deeply divide
people. You don’t have the kinds of social issues that come to the
Supreme Court of the United States. That’s not our bread and butter work;
it can’t be for any intermediate appellate court. The number of cases
where there are potential divides because of the backgrounds of people or
because of their personal kind of beliefs and thinking, on our court—the
number of cases that present that kind of issue is fairly small. We have
disagreements. We have dissents, fairly often. But they’re often just
judgmental questions about, you know, whether the trial court really got it
correctly here, or whether the police did what they’re supposed to do
before they entered the home and searched the refrigerator, things like
that. And there can be deep divisions, but I think they’re not the kinds of
things that make people not want to talk to one another anymore. We all
get along quite well. We disagree. We come from different backgrounds.
In recent years we’ve had two people come from—very gifted young—
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younger than myself, “youngish” lawyers, come from the Public Defender
Service. One come from the U.S. Attorney’s Office. They come from
different backgrounds where it’s been almost internalized into their system
to think a certain way. But they swear an oath to do it objectively and call
the cases as accurately and honestly as they can. They all do their best.
Inevitably certain predilections, certain inclinations, certain attitudes come
into play in the way they look at cases. Some judges, perhaps if they have
come from the trial court bench and then moved up to the court of appeals,
have a slightly different sensitivity toward deferring to honest exercises of
discretion by a trial judge. Others may be less moved to give them that
kind of deference. And they stress more—a little bit more—the kind of
function of this court to announce general rules. But collegiality has not
been a significant problem here. I don’t think it’s a problem in most
courts nationwide. For years, people used to point out that a few of the
federal circuit courts tended to, where the appointees reflect the particular
president who is in the White House, have been marked by fairly sharp
divisions. But, as many have pointed out over the years, those kind of
divisions emerge in a tiny, tiny class of cases, even on courts like the
District of Columbia Circuit Court, the Ninth Circuit Court of Appeals.
Most of the work, the judges have very little difficulty in sitting down and
in a very collegial fashion arguing over and either agreeing on or politely
disagreeing on. The bigger problem that I have is that the younger judges
on our court are just too smart.
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MRS. EASTON: (Laughs.) How does that cause you a problem?
JUDGE FARRELL: (Both laughing.) I mean, not only do they come into oral argument with
their desktop, but they come in there loaded with information and loaded
with analysis and quick thinking. And you have some trouble as your
mind gets a little bit more, uh—it starts to slow down a little bit, you have
some trouble keeping up with them. But you try. You do your best. And
you at least delude yourself into thinking that what you lack in terms of
quickness of mind, which they possess, you have—you have in the way of
judgement, experience, and, dare we say, wisdom. And you can bring that
to bear in judging these cases.
MRS. EASTON: All of great value.
JUDGE FARRELL: But it’s nice to have the younger judges who have not only the enthusiasm
but the skills and the analytical smarts to tell you where you’re wrong.
MRS. EASTON: What is it going to take to get a full complement on this court? Because
it’s been years—
JUDGE FARRELL: Anyone’s guess. Anyone’s guess. We have some hopes that within the
next six months, maybe we’ll get at least one. But, you know, the first
hundred days of the present administration have been busy, at least some
say. And I don’t think they’ve been spending much time thinking about
filling openings on our court. There are a very sizable number of openings
on federal district courts including in the District of Columbia. Those jobs
have yet to be filled. They will be filled, I think, fairly soon. My guess is
the administration will probably give priority to the federal judgeship
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openings. On the other hand, in a way, their task should be easier, in the
case of our court and our superior court, our trial court, which also has
openings, because the President for each judgeship is given a list of three,
under our system, and just has to pick one, and is probably required to
pick one by statute. So it should not be that difficult. I think the opening
that we had for a year and a half or two depended on a particular situation
involving a lawyer who was nominated by the—by President Obama to
fill the position. There was some opposition to him on the Senate side,
where the confirmations take place, because of positions that he had taken
as an advocate working for the Attorney General of the District of
Columbia. My own view is it’s kind of unfair in the way that they have
kind of—some may have held against him taking those positions. He was
an advocate. He was doing his job. But there’s very little you can do
about it, because Congress is under no time restraint in confirming judges
and apparently they’ve decided to take their time.
MRS. EASTON: Have—now you were caught with a presidential change reappointment
situation back in ‘88 and ‘89.
JUDGE FARRELL: That’s true.
MRS. EASTON: Do you know if there have been even new issues —
JUDGE FARRELL: Well, yes. This one nominee who I talked about, when we were down by
one, was appointed by President Obama; that lapsed after the first term of
Obama. President Obama then reappointed him, and that has lapsed, of
course. His name is still before the White House, because the same list is
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there from our nominating commission. And it’s up to the new
administration. They don’t have to pick him, they can pick somebody
else.
MRS. EASTON: From the list of—
JUDGE FARRELL: From the list of three. Or indeed, there will now be two lists up there
before long. And they can pick both judges from either list, if they want.
We hope that they’ll be happy with at least two and pick them and so we
can get back to nine. Many of the courts of appeals in the country, or at
least the high courts of appeals in the country, state courts’, only have
seven judges. So it’s not unusual to be down to seven. But we are—we
have become used to doing our job with nine over the years, and it makes
it a lot easier. We’re optimistic that now there’s some signs that we may
be able to pick up one judge before long. But nobody knows for sure.
MRS. EASTON: Well, are there any issues involving the court, or the state of the courts in
the nation, or anything else that we should cover?
JUDGE FARRELL: I don’t know, I think I should probably guard my speech when it comes to
talking about Farrell on the judiciary in general. But these things, of
course, go cyclically. Each administration has its preferences. It’s
entirely conceivable that on the federal side, including our court—we’re
an Article I Federal Court—you will see appointments that mirror the likes
and dislikes of this administration. And courts will become more
conservative. But eventually the wheel turns, and the next administration,
or whenever the Democrats are in office again, the balance will shift back.
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The wonderful thing about the system of—about being an appellate judge
is you have very little room, day in and day out, to exercise any biases that
you have either consciously or unconsciously. Because you’re constrained
by an enormous number of, uh, limitations, some of which I’ve discussed
in previous interviews, including, darn it, the need to persuade at least one
other judge, and the constraints imposed by the record in the case, and
imposed by stare decisis. As I said, we cannot go en banc all the time to
overturn prior decisions and, therefore, we are kind of bound by the law in
general that is developed in our court. And you work within those
constraints. On the one hand, they make the job a little bit easier, because
they kind of give you the guidelines, at least the guidelines, that you
follow in trying to reach the right result. On the other hand, they can be
irksome if you don’t particularly like those guidelines and if your feeling
is that the law of the jurisdiction should be going in another direction.
Well, you have only limited capacity to send it in another direction as an
individual judge. And I think that’s true in the courts around the country.
Generally, people tend to exaggerate the sense in which individual judges
or courts are perceived as going off the reservation or being too activist
and so forth. There isn’t really, day in and day out, a lot of ability of
judges, individual judges, to kind of send a court in a different direction.
Appellate courts, in that sense, are very conservative, in the sense that
they’re bound by the past in very significant ways. Which is why, like
probably I mentioned this once before, the old anecdote of the trial judge
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who ran into the appellate judge at a conference, and the appellate judge
said to the trial judge, “John, I’m sorry I reversed you recently in that
case.” And the trial judge said, “Fred, I reverse you every day in my
courtroom.” (Both laugh.) The trial judges, at least, think they have more
ability to make decisions day in and day out that are not going to be
second-guessed by anybody. So. No, to me it’s been a wonderful
experience, an extraordinary learning experience. And part of it is just—
part of it which makes you, uh, like it or not try to remain active and
interested and on top of things, is that you’re always getting younger
judges who come along and who test you. You do your best to keep up
with them in terms of their intellect and their skills. And they keep you,
uh—they keep you sharp, or at least they keep you as sharp as you were.
So there’s very little opportunity to go out to pasture, so to speak, while
you’re acting as an older judge, an elder judge, a senior judge. You still
have to do the work, and you still have to, in a way, compete in terms of
analysis and persuasiveness with a new generation of judges who don’t
quite have the respect maybe they should have for their older peers [both
laugh] but keep you on your toes. That’s the nicest thing about it.
MRS. EASTON: And were you to be counseling a lawyer who was an appellate advocate,
enjoyed appellate work, and had aspirations to being an appellate judge,
what would you advise him or her?
JUDGE FARRELL: Well, I’ve traditionally given the advice which is contradicted by my own
experience, which is you’re probably going to end up being a better
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appellate lawyer if you’ve gotten a good deal of trial work—trial
preparation and trial work under your belt, if you’ve started, not
necessarily in civil practice doing depositions and things like that or
reading documents, but at least started with a government agency where
you’ve had to learn the rules of evidence, for example, and rules of
procedure, day in and day out by actual hands-on doing and practice. The
number of appellate lawyers who are kind of born to the manor and excel
at appellate advocacy without ever having done that is fairly limited.
Those tend to be the people who were at the top of their law school class
in very good law schools, in law review, had just that natural gift for
writing and analysis and so forth, have gone to appellate clerkships right
out of law school, some have gone on to the Supreme Court, then have
gone on to places like the Solicitor General’s office in Washington. Those
kind of people—you know from your experience—those kind of people
find it very comfortable to go right into appellate work and to excel at
appellate work. And many of them never leave appellate work. That I
think is a very, very small number of people on the whole. There’s a
grumbling that you get now-a-days that you never got, I think, years ago,
for example that all of the Supreme Court arguments these days are done
by about a dozen lawyers. In a way, clients have decided they cannot
afford to make the mistake of not having the best Washington appellate
lawyer from Sidley & Austin or wherever argue their case, even if they got
a very creditable performance by a local lawyer out in Des Moines in the,
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uh, 8th Circuit or wherever out there. It becomes that way. In a way it’s
disappointing for the Supreme Court justices. They see the same people
before them again and again, the appellate practitioners, the Supreme
Court level of appellate practitioners. It is, to begin with, almost a deadend for the average lawyer to just plan to be an appellate lawyer. It’s not
going to happen. There isn’t enough of the work. Everybody says, it’s a
cliché now, if you have a decent Supreme Court issue as a citizen you can
get somebody to take your case into the Supreme Court without paying
them a nickel. Good lawyers and law practices, appellate practices in the
big law firms, are falling all over one another to get the cases that are
Supreme Court worthy. But the average young man, woman coming out
of law school can’t count on an appellate law career. The odds are even if
they want to they will never end up doing that. But beyond that, at least a
number of years of learning in the trenches how to try cases and how to
cross-examine witnesses. I was, in a sense, lucky. I didn’t do that partly
because, as we’ve talked about before, I started my legal career late. I
don’t think I probably would have been a terribly good trial lawyer. I
don’t know whether I would have had the patience for it or whatever—
maybe the quickness of mind. But you really have to test yourself, I think,
as a trial lawyer, and for a period of time, before you think about pursuing
an appellate career. And of course in organizations like the Public
Defender Service, for example, there are—they depend on their lawyers
having—in the same institution for having tried cases very effectively to
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produce a record that can be adequately litigated on appeal. We get quite
a few of Criminal Justice Act—quite a few lawyers who try to specialize
in appellate work. But by and large, I think the lawyers do the appellate
work for a number of reasons: Partly because they’re doing it part time,
some of them working out of their home, or they’re doing it to supplement
the trial work [where] there just is not enough trial work for them to make
a living, so the appellate work provides an additional source of income,
and a certain enrichment for them too as a—professionally. But I don’t
think appellate lawyering as a career for most is any more productive or
prosperous as—than it was in the past. It’s a very limited practice. So,
here I am and here I will remain. I don’t know how long I will remain as a
judge. ‘Could be one more year. I’ll turn 80 next year, that might not be a
bad number for— On the other hand we have a couple of senior judges
who are over 80 and show no signs of stopping. I could—I don’t know, it
will depend on my health. It’s a terrific job in the sense that you’re your
own boss. I’ve been my own boss since 1989. You have nothing
comparable to the kind of pressures on higher-level folks like yourself in
law firms, who are balancing and juggling the demands of satisfying
clients and partners and things like that.
MRS. EASTON: The work does come to you. That’s the part of which I’m most jealous.
[Laughing.]
JUDGE FARRELL: The work comes to you. The work comes to you, which makes it
astonishing to me, why—not really perhaps astonishing, but a little
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puzzling why we don’t get more applicants for our court. I’m told that our
latest opening has generated only at most a dozen applications and my
guess is probably heavily from government organizations. That has
always been the case, traditionally, for a lot of reasons. But in a way it is a
little disappointing that so many of the super-good lawyers out in law
firms find it an unattractive proposition to apply for appellate judgeship on
our court. There are a lot of reasons. Most probably don’t live in the
District of Columbia and they’re not really prepared to move in. They
couldn’t afford to maybe, and you have to have that. For many it’s a
matter of simply taking the pay cut. I mean being an appellate judge pays
fairly well, but it’s nothing like being a partner in a good law firm. And
also it’s the ambition of those who have wanted to do appellate work,
historically, is aimed toward the federal courts, where the chances of
getting an appellate judgeship are next to nil statistically speaking. But
that kind of work, federal and constitutional law and statutory law has
been the thing that has attracted people most. There’s a certain reluctance
on people from at least larger law firms to want to come and do
unemployment compensation litigation or workers compensation or local
regulatory kind of stuff or burglary appeals and things like that. So it’s
not so easy to get—to attract, I think, the breadth of applicants that we
would like to have for our court. I don’t think that’s going to change any
time soon. But that is the way it is. Nonetheless, we do get good people.
How’s that?
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MRS. EASTON: I think it’s excellent Judge, thank you so much.
JUDGE FARRELL: I think we’ve kind of wrapped it up. When I was reading through the last
transcript, I said to myself, “God, I didn’t realize you were so stupidly
verbose.” But, uh—(Laughs.)
MRS. EASTON: It’s been a delight for me to get to know you, and I’ve learned a lot from
you. So I thank you very much for this adventure.
MRS. EASTON: I think it’s a real treasure that they’re collecting this information, and I’m
so pleased and honored to be part of it. Well, I—do you have interest in
taking a professional portrait? Is that something that would—
JUDGE FARRELL: No. I will.
MRS. EASTON: —maybe you should get one.
JUDGE FARRELL: No, I won’t. I don’t think I’ll get professional one. I’ll just get, a—in laypersons dress, I’ll just get a head photo.
MRS. EASTON: Okay, yeah, that would be a nice addition.
JUDGE FARRELL: And I’ll give it to her because she certainly doesn’t want to limit herself to
me in my basketball togs.
MRS. EASTON: Although, that’s really—(Laughs.)
JUDGE FARRELL: That was the highpoint of my non-professional career.
MRS. EASTON: Your pre-law career. (Both laughing.) Oh, Judge, well thank you so
much—
