James Robertson Seventh Interview: July 28, 2015

ORAL HISTORY OF JUDGE JAMES ROBERTSON
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Ann Allen, and the interviewee is
James Robertson. The interview took place at the offices of JAMS, 555 13th Street, N.W., in
Washington, D.C., on July 28, 2015. This is the seventh interview.
MS. ALLEN: Judge Robertson, do you have a statement you would like to make for the
record?
MR. ROBERTSON: I do actually. I have spent some time in the last couple of days going over
one of the recent transcripts, and I realized that the transcriber of these
tapes is accurate to a fault. Lawyers are used to being embarrassed to read
what they have actually said when it comes back on a transcript, but the
embarrassment seems to have diminished over the years because court
reporters seem to give a break to judges, and then when you see a
transcript of what I said on bench, it doesn’t have all of the “uhms” and
throat clearings and quiet chuckles and restarting sentences that appear in
this transcript. So just for the record, I have edited this transcript to make
me look much more articulate than I really am. End of statement
[laughter].
MS. ALLEN: An excellent statement. All of us have our “uhms” and “ers” on record. I
think we’re winding down, or moving slowly, to the end of this interview,
which I have really enjoyed immensely, and I know there are a few things
that you just wanted to talk about briefly, so I’m going to turn it over to
you with a softball question of what would you like to discuss first.
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MR. ROBERTSON: This interview and oral history is being done under the auspices of and for
the D.C. Circuit Historical Society of which I have been a member and a
supporter, if not a terribly active participant, for some years. I am a fan of
history and I read history. It’s a little daunting actually to think that I am
history or that history pays attention to anything that a district judge does
or thinks or has done. I remember just before I became a judge and after I
learned that I was going to be nominated, I spoke to a partner at the
Cravath firm. I was up in New York with my wife and felt a little puffed
up and I said, “I’m going to be a district judge.” And he said, “Well, two
things you need to know. First of all, you will never know again whether
you have a funny joke.” And he said, “You have to remember that district
judges write on water.” What we write disappears. It’s not precedent.
Nobody pays attention to it unless the court of appeals rules on it. And
with a very few exceptions of very famous and well-noted district judges
that, of course, has proven to be true, so that the cases that I have decided
probably have very little historic value.
We have talked about, I think, two of them, the two occasions on
which the Supreme Court reversed the Court of Appeals which had
reversed me. And I have waxed, if not eloquent, at least delighted, about
those cases, because it doesn’t get any better than to have the Supreme
Court reverse the Court of Appeals who reversed you. Those are the
Hamdan and Hubbell cases.
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If you look on Wikipedia, or if anybody wants to know anything
else that I’ve done that is noteworthy, you will probably find references to
the Schroer case and to a case called American Council of the Blind and
I’m going to mention them briefly and say a little something about them.
Schroer was a decorated Army Special Forces Ranger Colonel
who retired from the Army and was looking around for something to do
and saw an advertisement by the Library of Congress that they needed a
terrorism expert to do research, and that was right up his alley. That’s
what he had done in the Armed Forces. He was a combat veteran. So he
applied for the job. The Library of Congress was thrilled to have him
apply for the job, and he got an enthusiastic offer which he
enthusiastically accepted. And then the next day or shortly thereafter, he
called up his new boss and said, “I think we should have lunch.” So they
went out to lunch, and at lunch he said to her, “You should know that
when I report for work next month, I’m going to be wearing a dress,
because I am transgender and I am preparing myself as I am required to do
before all of the formal surgery and so forth is done. I’m required to live
as a woman for a certain length of time.” The person with whom he was
having lunch said “Oh,” and went back to the Library of Congress and
consulted with the Office of General Counsel and called him up and said
maybe not. Maybe not. He was represented by the ACLU. Art Spitzer
and others filed suit. The suit landed before me, and I didn’t quite know
what to make of it because Title VII of the Civil Rights Act of 1964,
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which is the core discrimination statute, protected against discrimination
“on account of sex” but had been construed up until then not to provide
any protection either for homosexuals – nor had there been any mention of
transgender persons. And frankly, I being sort of a conservative, or if not
conservative, a not very adventurous judge, thought that that was probably
the solution I was going to have to reach in this case. But I had a law
clerk, and I’m going to name him here because he deserves a lot of credit
for the decision I finally entered in the case. His name is Matt Peed. And
Matt Peed came from Georgia and Duke Law School, and was, I think it’s
fair to say, of a conservative mindset when he came to me, but Matt retired
into his office, and I didn’t see him for weeks. He was studying, and
reading, and thinking and agonizing about this case. He came to see me
finally, and he said, “Judge, we have to deny this motion to dismiss.
There is protection under the statute, and we can find it, and there is a case
out in Illinois in which a judge decided something like this and we should
follow that reasoning and we should rule in favor of Schroer.” And then I
started to wrestle with it. And Matt and I wrestled and wrestled until we
came up with an opinion denying the motion to dismiss. Ultimately
Schroer, whose name I think now is Linda Schroer, won a substantial
judgment in my court.
The amazing thing about this story is that not only was it the first
time that any transgender person has been granted rights under Title VII in
this country, but within 15 minutes after that decision was filed
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electronically in the Court CM-ECF system, somebody had edited
Wikipedia to note this. (I should note that this discovery was made by a
law clerk!) The LGBT websites, of which there are many, many, many,
lighted up with news, and I was the hero of the LGBT movement for a day
or two until they went on to something else.
But speaking of writing on the water, that decision was not
appealed by either side. I granted a little bit to the government and I
granted a little bit to – I think I did not grant her what’s called front pay.
Both sides had reason to appeal, and neither side did. The ACLU didn’t
really want to hazard that opinion to the tender mercies of the Court of
Appeals. And the government, the Library of Congress, had the same
reaction, so nobody appealed. You can find the opinion out there, but I
doubt that it’s ever been cited by anybody anywhere. It’s an interesting
commentary on the way the law works.
The other quirky case that appears on Wikipedia if you Google it,
you will find some reference to a case called American Council of the
Blind. The American Council of the Blind filed suit and said that the
United States Department of the Treasury was violating discrimination
laws by refusing to issue currency that accommodated the needs of blind
or other visually challenged people who could not tell a one-dollar bill
from a five-dollar bill from a ten-dollar bill from a twenty-dollar bill,
unlike almost every other country in the world which does provide ways
for visually impaired people to sort out their money. For example, the
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5 Euro bill is smaller than the 10 Euro and so forth. The Pound or the
Deutsche Mark or almost any other major currency in the world, there are
size differences, vivid color differences, or in some way tactile
differences.
MS. ALLEN: A lot of foreign currencies have writing on the edge.
MR. ROBERTSON: Right. Embossing or writing on the edge or additives. It turned out that
there are two organizations for the blind and the visually impaired, and
they were at odds about this case. The American Council of the Blind was
the plaintiff in the case, and the other group, I’ve forgotten the name of it,
but they were either amicus against it or didn’t think we should make a big
thing of it or thought there was something sort of discriminatory about
singling out blind people. In any event, after a lengthy hearing and after
quite a long time waiting for briefs, I decided that the Council for the
Blind was correct, and I issued an order to the United States Department
of the Treasury that they redesign the currency so that it would be
accessible to blind people. Well, that case wound up on Stephen Colbert’s
Daily Show.
MS. ALLEN: Really?
MR. ROBERTSON: Colbert had great fun with this opinion. You may be able to find it on
YouTube. He had somebody make up a five-dollar bill that had fur on one
side of it, and I’ve forgotten what else, but he had fun with it. Oh and by
the way, the Court of Appeals, Judge Judy Rogers writing, affirmed me in
that case I am happy to say.
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MS. ALLEN: Excellent. What did the Department of the Treasury say?
MR. ROBERTSON: Well, they first of all made the accurate point that by statute nobody can
mess with the one-dollar bill. The one-dollar bill is a greenback. It’s got
George Washington on it. It’s protected by statute. Well, that’s fine.
Keep the one-dollar bill and change everything else. So finally the case
was settled with the Treasury Department agreeing that the next time any
major bill was redesigned – they wouldn’t redesign them all at once
because it’s incredibly expensive and they have to plan for phasing money
out and so forth – but the next time bills were redesigned, they would
make some accommodation, and basically we were going to have to leave
it to them as to how to do it, but they were going to do it.
A few weeks ago I had occasion to go to the bank and get a few
$100 bills which my wife and I wanted to give to one of our grandchildren
for the occasion of a graduation. I don’t deal with $100 bills. You can get
$100 bills out of the ATMs in Las Vegas, but not around here. The
$100 bill to my surprise and pleasure has indeed been redesigned, and if
you look at it, you can see that it has a sort of foil strip on it.
MS. ALLEN: I hadn’t noticed that. I don’t really deal in $100 bills.
MR. ROBERTSON: I don’t either, but you can feel that it’s a $100 bill. Well the wheels of
justice grind slow but exceedingly fine, and I was very pleased to see that.
So The Council for the Blind and Schroer ensure that if there is any legal
legacy that I leave behind, it’s probably those two cases and Hubbell. So
much for writing on water.
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MS. ALLEN: If you don’t have many cases going to trial, there are not a lot of
opportunities to write.
MR. ROBERTSON: Well, it might work that way. You end up writing more for the cases that
don’t go to trial because the cases that go to trial get decided by a jury and
it’s yes or no. The verdict is guilty or not guilty. It’s plaintiff or
defendant and so many dollars. You may write an opinion along the way
or after or a challenge to it, but you don’t write as much for a case that is
actually being tried. And, of course, I think I probably wrote something
like 1,000 published opinions. Frankly, I didn’t keep track of it. But if
you go back and look at them, as I do from time to time, you find some
decisions that actually have been cited elsewhere and are somewhat
important. But they are just minor points along the way, and they are
frankly not all that memorable. I wrote a few opinions in the
pharmaceutical field that received some notice. I wrote one opinion in the
antitrust field which 50% of the antitrust bar absolutely loved and thought
it was groundbreaking, the other 50% disapproved of it, and so did the
Court of Appeals. So that one is gone, too. That one involved baby food.
So you really don’t, I don’t at least, spend much time thinking
about or remembering or unearthing or doing archeology on the actual
cases I’ve decided. You decide them, you write the opinion and you move
on. One case that I made a note to you and to myself to talk about is the
Cobell case. Have I talked about that in previous sessions?
MS. ALLEN: You have not.
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MR. ROBERTSON: Well, Cobell was a famous case. Still is. Eloise Cobell was a Native
American. I’ve forgotten which tribe she was from, somewhere up in the
Northern Plain states, Blackfeet, perhaps, who brought suit against the
United States Department of the Interior, also the Department of Treasury,
but mostly the Department of the Interior and the Indian Affairs Section of
the Department of the Interior, complaining about the behavior of the
United States over the previous 125 years in dealing with the trust
accounts of Native Americans. It’s a very, very long story and one that
frankly I’m not prepared to talk about in any detail this morning. I don’t
need to anyway because so much has been written about it. Cobell, when
it was originally filed, was assigned to Judge Royce Lamberth. Judge
Lamberth labored with and over that case for, I think, 13 years, issuing
opinion after opinion after opinion and dealing with appeal after appeal
after appeal. I think there were nine trips to the Court of Appeals. The
suit was so complicated and the attorneys were so combative that the case
developed its own toxicity really within the small group of people who
were litigating it. The plaintiff’s lawyers and the Justice Department
lawyers did not get along, and that’s a euphemism for the way they
behaved. Judge Lamberth became increasingly disturbed by what he saw
as the behavior of the federal government in not producing documents, not
producing information, and resisting much of what the plaintiffs wanted.
But in fairness, some of the lawyers on the plaintiff’s side were pretty
outrageously difficult people.
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I won’t try to reconstruct the whole history of it, but suffice it to
say there came a time, sometime around 2008, when the Court of Appeals
had had enough of whatever they saw that was happening in this case, and
they not only reversed Judge Lamberth but remanded the case with
instructions to the court, which meant to the Chief Judge, to assign another
judge to the case. In other words, they fired Judge Lamberth from the
case. That was shocking. To my knowledge, they had only done that
once before that I knew of which was when they took the Microsoft case
away from Judge Jackson. They may have taken a case away from Judge
Sporkin. But Royce Lamberth was the next most senior judge on our
court after Tom Hogan, who was still the Chief Judge. He was about to
become Chief Judge himself, was universally respected among other
judges on our court and on the Court of Appeals for being a hard worker, a
call-it-as-he-sees-it, stand-up straight-forward judge. If he had one
characteristic that may have gotten him into trouble with the Court of
Appeals, it was that Royce Lamberth was never afraid to use all the power
that a judge has to sanction or hold people in contempt. And at one point,
he held the Secretary of the Interior in contempt. He may have held the
Secretary of the Treasury in contempt. He was, shall we say, frustrated
with the government. But the Court of Appeals said ‘no more Lamberth,
give it to somebody else.’ Well, I confess here that I volunteered for the
case.
MS. ALLEN: You did?
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MR. ROBERTSON: I did. I suppose for the sake of history, I’ll make that confession right out
in front of everybody. I volunteered for it because I had my own theory
about the way warring lawyers should be dealt with. And the theory was
partly home-grown and it was partly the offshoot of a speech I once heard
by Judge Robert Merhige. Have I mentioned him before?
MS. ALLEN: No. It’s such a distinguished name from the past.
MR. ROBERTSON: Judge Merhige, of the Eastern District of Virginia, sitting down in
Richmond, gave a talk at one of our judicial conferences here maybe
25 years ago, which I attended and heard and it stuck in my mind. He said
the way to deal with the problem of incivility among lawyers is not to pass
rules or sanction people but to lead by example. And he said that when he
was a practicing lawyer and a new case came into his office, he made it a
habit to call the lawyer on the other side and say ‘Let’s go out and have
lunch together.’ And he said that when you break bread with another
lawyer, you get to know him a little bit, you can talk about the children,
you can talk about their backgrounds. It’s awfully hard to yell and scream
and be nasty to them in court. Such a simple yet human way of dealing
with conflict.
One of the first things I did when I got the Cobell case was to bring
all of the lawyers together. I remember we sat in a jury room some place,
and I’ve forgotten whose jury room, and the electricity in that room was
palpable. You could see that the lawyers could hardly stand to be in the
same room together. That’s how bad it had gotten. There was one lawyer
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in particular on the plaintiff’s side and I, for the sake of his privacy and
maybe my liability, won’t mention him. But everybody who was involved
in the case knows who I am talking about. He was just impossible. And
that poison had spread everywhere. Well, long story a little bit shorter,
after that meeting I recalled for these people the Merhige story and I said
that I wanted them to go have lunch together. I said as a matter of fact,
come and have lunch in the judges’ dining room. So it was a little
strained, it was a little awkward, but we all had lunch together.
MS. ALLEN: In the dining room?
MR. ROBERTSON: In the judges dining room, and slowly but surely people began to warm up
a little bit to each other. Well, I don’t mean to put too much weight on
that little trick, but suffice it to say that after a couple of hearings and a
couple of long opinions – and I’m going to name another law clerk here
who was critical to this effort, her name is Emily Coward. Emily was
indispensable in helping me through the two long opinions that I issued in
this case. They led up to the settlement of the case. The case was settled
just before I retired. Now I have dined out on that settlement ever since.
My JAMS publicity thing says that I settled the Cobell case.
I just recently facilitated, I would have to say, the settlement of
another major Indian claims case in which I was selected by the Justice
Department and by the Indian tribes because of the work that I had done in
the Cobell case. But the historical purposes of this interview would not be
served if I sat here and told you that it was I who settled the Cobell case.
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The Cobell case was settled principally because the Obama government
had decided that it wanted it settled. There were four people in the
Interior Department and the Justice Department who basically got it done.
MS. ALLEN: These were Obama appointees?
MR. ROBERTSON: They were Obama appointees. One was Ken Salazar, who was the
Secretary of the Interior, one was David Hayes who was the UnderSecretary of the Department of the Interior, and, by the way, had been an
Oberdorfer law clerk. The third was Hillary Tompkins, the Solicitor of the
Department of the Interior, which is like General Counsel of the
Department of the Interior. And the fourth was Tom Perelli, who was
either the Deputy Attorney General or maybe an Assistant Attorney
General. Those people did what they had to do to pull the right levers to
get this case settled. And it settled for a huge amount of money – I think
$3.4 billion dollars. They had to go to Congress to get enough money to
fund it. I’m happy to accept all of the accolades that come to me for
settling that case. When Royce Lamberth presided over my portrait
hanging, he was kind enough to mention the Cobell case and to give me
credit for settling the case. But the case wouldn’t have settled without the
people that I just mentioned. Now, the alumni of the case. Steve Harper
was a plaintiff’s lawyers, and not, by the way, the obstreperous one
[laughter]. Steve Harper is now an Ambassador.
And life has gone on. Eloise Cobell has passed on. But the Cobell
case was really quite a tour de force for me, for Royce Lamberth, for the
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nine opinions of the Court of Appeals, for Secretary Salazar, who by the
way is now a partner in my old law firm of Wilmer Cutler Pickering Hale
and Dorr and who was importantly involved in the settlement of the most
recent Indian case that I was a mediator of. So what goes around, comes
around. Salazar is still an important player in that field.
I think that tape recorder ought to be filed with the Historical
Society with the transcript of this because it has done yeoman’s work in
this history and it is obviously a historical object all by itself.
MS. ALLEN: I think I told you my 6-year-old granddaughter when she saw the tape
recorder said, “What’s that?” [laughter].
MR. ROBERTSON: Some two or three years after I became a judge, I had some lawyers before
me in the courtroom one morning who were very, very serious and very
anxious and very distressed about some discovery disputes they were
having. It was for them a real nail biter and they were upset and angry
with each other and I issued an opinion at the close of that thing. Not an
opinion, but about a two-line order ruling on the dispute and telling the
lawyers to “lighten up.” And that little two line order went viral or
whatever the pre-Twitter, pre-YouTube version of going viral was. It was
circulated by emails all over the country and I got a lot of responses from
old friends who thought that was pretty funny. As I was saying earlier, I
think lighten up would be a pretty good inscription to put on my
tombstone. I’m going to see what I can do to make that happen. And
speaking of fun, the other really fun case I had was one of the birther
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cases. And birther is now a well-known word meaning cases that
challenge the citizenship of Barack Obama. The case was filed by a
former Marine officer, long since retired, and now, I think a retired reserve
officer who hadn’t been in uniform for many, many years, but whose
complaint said that he was still technically subject to recall in the Armed
Forces of the United States, if ordered to do so by the Commander in
Chief. And who could not be certain if the person purported to be
Commander in Chief was actually his Commander in Chief. Because it
hadn’t been proven that he was born in the United States. Well, it turned
out – I dismissed the case in an opinion that I will cheerfully confess was
snarky. I made the comment somewhere in the opinion that many people,
perhaps as many as a few dozen, were convinced that Barack Obama had
not been born in the United States and I got all kinds of hate mail for that
comment about only a few dozen of them. But I think for the first, or
maybe the second time in my 16 years on the bench, I issued with the
opinion an order to the lawyer who signed the complaint to show cause as
to why he should not be sanctioned for violating Rule 11. Well the lawyer
turned out to be an 80-year-old man in Washington who had had – and I
use the verb form very deliberately – who had had a distinguished career.
I think he may have even been a Rhodes Scholar at some point in his life,
but he had apparently gone off the rails and filed this kooky lawsuit. And
to make a long story short, he responded to the show cause order with a
blistering response. And I wound up issuing some sort of letter of censure
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and no financial sanction at all. The birther case ended with a whimper
instead of with a bang. But it is something of a footnote to my “legacy,”
whatever it is. I often think that the real legacy that I leave to the judiciary
and to the legal system of the United States, has nothing to do with any
case over which I presided. It has to do with something called Oscar.
MS. ALLEN: Oscar. Is Oscar an acronym?
MR. ROBERTSON: OSCAR is an acronym. It was selected by the late, lamented, famous and
revered Third Circuit Judge Eddie Becker. Judge Becker helped me with
the creation, implementation and roll out of a computerized system, an
online computerized system, for dealing with the flood of paper that came
in every year for law clerk applications. OSCAR stands for on-line
system for clerkship applications and review. That’s OSCAR. Here’s the
story. I had been, as I think I indicated earlier, the chair of the Judicial
Conference Committee on Information Technology. That was a very, very
interesting job, and I enjoyed doing it very much. And somewhere about
the second year of that assignment I got it into my head that the way we
were dealing with law clerk applications was just crazy. Every year it all
happened on a day certain because by gentleman’s agreement the whole
judiciary had established a nationwide calendar. All law students take a
course in procrastination in law school and learn to live by deadlines. On
the agreed deadline, the mailman would arrive with hand trucks full of
boxes full of applications from law clerk applicants. Applications that
would come in by FedEx, UPS, regular mail and express mail. They’d
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come in in huge envelopes and then letters started coming in from law
professors and people recommending candidates. The recommendations
would have to be married with the applications, and then somebody would
have to go through the applications and sort them out and do a first cut.
And I’m talking about 400 or 500 applications every year, all or most of
them arriving simultaneously.
MS. ALLEN: Wow.
MR. ROBERTSON: In the Court of Appeals, 1,000 applications. In fact, one year I did get
1,000 applications or more in my chambers. So it was an enormous
burden, and every year it got worse and worse because clerkships became
more and more important to people looking for jobs. And I said there’s
got to be an easier way to do this. I started asking questions in the
judiciary. Well, the Office of the Director of the Administrative Office of
the US Courts had a lot of IT people, but they didn’t want to deal with it.
It was just too complicated. And they said why don’t you go to the
Federal Judicial Center, because they’ve got IT people there too. The
Federal Judicial Center said no, we don’t want to deal with it either. I’m
making a long story. It really was a tedious story, because there were turf
wars between the Federal Judicial Center and the Administrative Office
for years, about IT stuff and lots of other issues. Neither team wanted to
handle it, and I finally said, “You know, we don’t have to invent the
solution here, we can buy this stuff off the shelf.” Long story a little bit
shorter, I got some people together and we put together some rough
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requirements for what we’d like to see and we got a request for proposals
out to five or six providers of software to see if any of them were
interested in adapting this program.
We put together a small committee and Judge Becker was one of
them. Judge Lamberth was very helpful on this one. He had been
involved with the IT Committee. In fact, I took his place on the IT
Committee. And there were two or three others. And we had a committee
and we supervised the work of this off-site guy who was developing the
program. And ultimately the product that we rolled out was the product
that we now know as OSCAR. There was a period of two or three years
when it was hard to get people to buy into it. Some judges didn’t trust it.
They thought it would encourage people to send too many applications.
There were people who didn’t want to deal with it. But OSCAR finally
became the standard for law clerk applications. And what it enabled a
judge to do was to make a quick review of all the applications that came
in. So, if, for example, I wanted only law students from Harvard, Yale,
Michigan, Virginia, Pennsylvania, Georgetown, Stanford and Berkeley –
which unfortunately many judges do – I would screen for those. Those are
the only ones that I would read. Or if I wanted only somebody who was in
the top 10 percent of the class, I could screen for that. Or if I wanted
someone who had experience in the singing of barbershop quartets, I could
do that. Actually, that’s not so far off the mark. There is a judge in the
Eastern District of Virginia, in Alexandria who routinely looks for clerks
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who have singing experience because she likes to sing. And her clerks
sing with her in choirs and singing groups and so forth. It’s perfectly okay
with me. And it also provided automatically for letters of
recommendation to marry with the clerkship application so that you could
see everything in one screen, in one program. You could screen what you
wanted, put together what you wanted, you could get it down to the 15 or
20 folks you wanted to interview and then go from there.
MS. ALLEN: And OSCAR churns on today?
MR. ROBERTSON: OSCAR is still there as far as I know and is still doing well. The last thing
I want to mention has to do with law clerks. I’m sure I have said earlier
somewhere in this history that having law clerks is one of the great joys
and benefits of being a judge in the first place. But I’ve had about 35 of
them. They are so much a part of the whole experience. And they have
been so important to the work that I have been doing that I’d almost like to
add an addendum of this thing identifying them. But I, just for the hell of
it, I have pulled up on my iPhone, a spreadsheet that I have of all the
addresses, of hundreds of peoples’ names and addresses. And I have them
sorted. So here are my law clerks. The first two were Claudia Salem and
Mike Yeager. Claudia had been an intern for Judge Urbina. Michael
Yeager was my younger son’s best friend. They rode bicycles together
across the country after they graduated from high school. Michael grew
up across the street from us. And I was a brand new judge and I didn’t
know who I was hiring and I hired Michael Yeager. Yeager and Salem
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are now both involved in the immigration business, if you will. Claudia is
in the Office of the General Counsel at the Immigration and Naturalization
Service and Michael Yeager is doing congressional relations work for INS
or one of the new alphabet soups that has to do with border control. The
next two were Charlie Moore and Syd Patel. Charlie Moore was a late
applicant for the job. He had been I think number 1 or 2 in his class at
Stanford Law School. A brilliant fellow. Syd I think is referred to as a
second generation immigrant. Her parents both came from India. She was
raised in this country and went to law school at Yale. Brilliant, wonderful
people. Neither one of them is still a lawyer. Charlie went on from me to
clerk for Judge Tatel, went on from Tatel to clerk for Justice Breyer, went
to Williams & Connolly for a while and then escaped into the money and
is now doing, I don’t know, not a hedge fund but he’s doing private equity
in New York and is probably worth three times, ten times, fifteen times
what any of the rest of us are. But Charlie was one of the smartest people
I ever met in my life. Syd is brilliant, too. She is a poet. And we talked
earlier about lawyers who were contract lawyers who went to work for a
few months so they could be sculptors?
MS. ALLEN: Right.
MR. ROBERTSON: Syd is a poet. She has a poetic soul. She came to me after doing a lot of
research on bride burning in India because a cousin of hers had been a
victim of the whole bride burning thing, and she was more interested in
the human rights part of things than she was in the law. She married at the
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end of my clerkship. She had a clerkship with Judy Rogers after mine, but
she didn’t do it because she got married. Then she got divorced. And
now she’s living out in California. Long story.
MS. ALLEN: Not practicing law?
MR. ROBERTSON: She’s writing. She’s teaching yoga. She’s living in Haight-Ashbury and
she’s happy.
MS. ALLEN: Good.
MR. ROBERTSON: Then came the dynamic duo of Sean Fox and Lisa Stevenson. They were
kind of my all-American law clerks. Sean was an athlete and had been a
White House fellow and was the leader of the law clerk’s softball team at
the Courthouse and was clearly a leader. Absolutely a leader. And Lisa,
who was British born, had gone to the University of Michigan. Sean is
now running a dot com company in California, not a lawyer anymore.
And Lisa Stevenson is, or recently was, I think is, Acting General Counsel
of the Federal Election Commission, which is a vexed job. She had been a
partner at the Zuckerman Spaeder firm, and she’s now over there. A huge
job. Then came Stephanie Marx and Todd Richman.
MS. ALLEN: Did you always have a woman and man?
MR. ROBERTSON: No. It happened that way. I was trying to be even handed but I wasn’t. It
wasn’t deliberately woman and man. Stephanie has probably gone as far
as any of my law clerks in government. She is now in the White House
General Counsel’s office doing all kinds of sophisticated stuff. Before
that she was Senator Schumer’s – I think she was his Chief of Staff. She
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had a big job. She, by the way, is married to a partner of the Wilmer Hale
firm, and, by the way, I did her wedding. And I did Syd Patel’s wedding.
MS. ALLEN: You were saying earlier that you went online?
MR. ROBERTSON: Oh yes. I did tell you that, but that was much later.
MR. ROBERTSON: Stephanie’s co-clerk was a guy named Todd Richman who worked for a
Boston law firm for a while and is now a Federal public defender across
the river in Alexandria. After Richman came Cassie Motz and Harry
Wingo, two fabulous people. Both Yalies. Cassie is the daughter of two
judges, Fred Motz of the District of Maryland and Diana Motz of the
Fourth Circuit, and she is the granddaughter of Daniel Gribbon of the
Covington & Burling firm, so she was born to the purple, no question
about that at all. She worked for a while as a Special Assistant to the
Attorney General of Maryland, who is now a candidate for President of
the United States. She has left that job and is now running a foundation in
Baltimore, doing good works there. I did her wedding too.
Harry was an NCAA boxing champion at the Naval Academy, a
Navy Seal, a Yale law student, an African American. It was great fun to
walk down the street with Harry Wingo. He was always checking the
buildings to make sure there were no snipers nearby because he was hardwired into this whole military security thing. It took Harry six months to
stop saying “sir” at the beginning and end of each sentence that he spoke
to me. There’s a long story about Harry which I guess I will not put on
this tape. But anybody who meets Harry should ask him about his ride in
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a sports car on his first vacation from Naval Academy, when he and a
classmate of his were riding with two young ladies and somebody got into
the back seat with a knife. Shall I finish that story?
MS. ALLEN: Yes [laughter].
MR. ROBERTSON: Harry was a brand new midshipman at the Naval Academy, African
American kid, home for his first vacation, went out for a date with a young
woman and one of his classmates was in the back seat with another young
woman. I guess it wasn’t that small a sports car, but it was a small car.
They were driving along and some nut jumped in the back seat of the car
and said “Drive.” Kind of a carjacking thing.
MS. ALLEN: Sounds like a movie.
MR. ROBERTSON: Harry began thinking about how he was going to solve this problem, and
once again, to make a long story short – he tells a rather long story of
driving up and down Connecticut Avenue and being told what to do –
began to think, well, do I do this or do I not. Finally he did. He smashed
the car into another one and used the moment of confusion to turn around,
jump into the back seat, grabbed the guy with his hands, and put his eye
out with his thumb.
MS. ALLEN: I mean under the circumstances ….
MR. ROBERTSON: Whereupon, of course, the police gathered and Harry was braced up
against the car because young black guys in cars are obviously guilty of
something. But when the cops realized what he’d done, he became —
MS. ALLEN: A hero.
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MR. ROBERTSON: A hero – of the cops and at the Naval Academy and every place else. And
the story has gone with Harry all of his life. And anybody who knows
Harry knows to be careful.
MS. ALLEN: So what is he doing now?
MR. ROBERTSON: He is now the President of the Washington, D.C. Chamber of Commerce.
A distinguished job for a distinguished guy. I’m deliberately doing this
because I am so proud of my law clerks that I really think I should cover
this ground.
MS. ALLEN: It’s very interesting. They’ve done such a variety of different things.
MR. ROBERTSON: The next two law clerks were Sean Palmer and Matt Solomon. Two men.
Sean went from my chambers to Covington & Burling, but he moved to
Amsterdam with his partner four or five years ago, and I frankly haven’t
heard much of him since then. He was doing great before he went and I’m
very fond of him. Sean’s co-clerk was Matt Solomon. Matt has had a
very distinguished government career as an AUSA in the Fraud Section of
the Justice Department, and now I think is Deputy Chief of Enforcement
at the Securities and Exchange Commission. Very distinguished
government service. I did Matt’s wedding.
After two men, came two women, Stephanie Brooker and Kelly
Cochran. Stephanie went on to become law clerk to Judge Motz, the
Fourth Circuit Judge Motz. From there she became an Assistant United
States Attorney and served with great distinction for a number of years.
And now she has a very high position in the group which calls itself
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FinCEN. I don’t remember what the alphabet soup stands for but it’s
financial. It’s part of the new government, all new Dodd-Frank financial
enforcement establishment. Kelly is now with the Treasury Department
doing the same kind of enforcement work. Kelly went first to Wilmer,
Cutler, Pickering, Hale & Dorr – then Wilmer, Cutler & Pickering – and
then into the Treasury Department, where she is now serving in financial
enforcement. After Kelly and Stephanie came Jihee Suh and Vassily
Thomadakis, my ethnic clerkships. Jihee is second-generation Korean.
She is now working as an Assistant United States Attorney in New Jersey.
Vassily Thomadakis is second-generation Greek, now working as an
Assistant United States Attorney in Boston. Both of them came to see me
in Washington faithfully every once in a while. Jihee was here for a
reunion I had last year. She is a wonderful woman. I wish we could get
her back to Washington in some government job, and I haven’t given up
hoping that she will come back. Vassily, same thing. I don’t know how
he stays away. He’s a great Georgetown basketball fan. He will come
down here four or five times a year just to see a basketball game. His
mother was a very distinguished historian and professor and academic at
Harvard and connected with Dumbarton Oaks. She was very important at
Dumbarton Oaks at one time.
Where are we? We’ve gotten as far as Lisa Kaufman and Ashley
Lunkenheimer – two women, both distinguished collegiate rugby players.
MS. ALLEN: They both played rugby?
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MR. ROBERTSON: They both played rugby and they both were all-stars.
MS. ALLEN: Did you know that?
MR. ROBERTSON: I did not when I hired them, but they were both all-star and NCAA topgun rugby players. Ashley is the daughter of a well-known United States
Attorney from Philadelphia and is now back in Philadelphia where she too
is an Assistant United States Attorney, married to her partner and they are
the parents of three children, two of which were born within months of
each other. Ashley used to tell a hilarious story of going to birthing class
with her partner. Because they were required to do slow dancing and they
were both out to here with their pregnancies. Ashley is fabulous fun.
Lisa Kaufman married a park ranger and moved to the mountains
of California where she and he built a house. She comes down from the
mountains to work as a permanent law clerk for a federal judge in Fresno.
And the last I heard she is still doing that. So that was two women rugby
players.
That brings me to Rob Ditzion and Mona Sahaf. Rob and Mona
were the two law clerks that I had when I decided that Hamdan case and I
believe I have mentioned them both.
MS. ALLEN: Yes, you did.
MR. ROBERTSON: Rob went to work for a plaintiffs’ law firm outside the Boston area and
has recently moved to the Massachusetts Attorney General’s office. Mona
was an Assistant United States Attorney here and has also moved recently
into the financial enforcement field with one of the government agencies,
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but I frankly lose track of which agency is which. She, Stephanie
Brooker, and Kelly Cochran are all in the same field.
Ruza Afram, now Ruza Shellaway, and Matt Peed were my next
two law clerks. Ruza started at what used to be called Hogan & Hartson,
now Hogan Lovells, then moved to a government agency, and has now
become Assistant General Counsel at Vanderbilt University. And Matt
Peed I’ve already told you about, but what I haven’t told you is that Matt
was the lawyer who represented one of these pirate cases from the horn of
Africa. What country am I thinking of?
MS. ALLEN: Not Somalia?
MR. ROBERTSON: Yes. Somali pirates. He represented the fellow charged with piracy. His
actual function in this particular piracy takeover was as a mediator. My
understanding is that he mediated the release of hostages and then was
arrested himself and charged with conspiracy. And brought to trial here in
the District of Columbia before Judge Huvelle.
MS. ALLEN: How could there be jurisdiction?
MR. ROBERTSON: International piracy jurisdiction reaches anywhere you can grab anybody.
MS. ALLEN: Oh. Okay.
MR. ROBERTSON: And this guy lived here in the United States. He went from Virginia to
Somalia to —
MS. ALLEN: To be the mediator.
MR. ROBERTSON: To be the mediator, and when he came back he was arrested.
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Then there was Emily Coward and Jonathan Olin. Emily is the
lawyer who was so helpful to me in the Cobell case. She is now in North
Carolina where her husband is a professor at the University of North
Carolina, and Emily is doing work for some public interest organization
down there. Jonathan has also escaped private practice. Last I saw of
him, he was in the Justice Department, where he is now getting to a pretty
high place in the Civil Division. And that leads to Anna Baldwin and Eric
Citron. I did Anna Baldwin’s wedding too, to Emma Cheuse, in
California. No need for the Universal Church there. Anybody can marry
anybody. Anna works on election law in the Civil Rights Division of the
Justice Department. Let’s see. Bill Meeks and Bharat Ramamurti. Bharat
also a second-generation Indian. Came to me from the Boston Red Sox.
MS. ALLEN: The Red Sox?
MR. ROBERTSON: He had a summer intern job with the Red Sox and when he graduated from
law school they offered him a job in the General Counsel’s office. He
said, “I don’t want to work for the General Counsel, I want to work for the
statistician.” The famous statistician of the Boston Red Sox, Bill James,
who is the guy who really brought statistics to baseball. He was the
predecessor of the hero of Michael Lewis’s Moneyball.
MS. ALLEN: In the movie.
MR. ROBERTSON: In the movie and the book. Bharat was, and is, fascinated with statistics. I
did Bharat’s wedding, too, and I’ll come to that in a minute. Bharat and
Bill Meeks knew each other I think in law school. Bill Meeks is now one
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of my only law clerks who is still in private practice. And he has gone to
work in New York for one of the premier plaintiffs’ law firms doing work
in securities class actions. Bill Meeks will be able to buy all of us within a
few years. Wonderful guy. I hired law clerks because I liked their stories,
I liked what they had done in life.
MS. ALLEN: And kept on doing.
MR. ROBERTSON: I didn’t want to hire anybody who went straight from college to law
school to a clerkship. I wanted people with life experience. Bill Meeks
had been a tree surgeon and he’d written a book about ice cream parlors.
MS. ALLEN: Where was he from?
MR. ROBERTSON: Somewhere in New York. Wonderful guy. And Bharat. I have told you
about the statistics. About the time Bharat and Bill were getting ready to
leave, I announced that I was going to retire. I had a short clerkship left
because I was going to retire in June and the clerkship began in
September. I didn’t have a full-year clerkship. Bharat’s girlfriend was a
woman in the Wilmer Hale office in Boston.
MS. ALLEN: Was she an attorney?
MR. ROBERTSON: Oh yes. And she wanted to come to Washington to be with her boyfriend.
Wilmer Hale said I’m sorry we don’t have a place in our Washington
office for you – this was at a low point in law firm hiring. So Bharat said,
you know, Paige is available. Well to make a long story short (laughter), I
hired Paige as my last law clerk, and Paige and Bharat ultimately got
married. And she is now Paige Ramamurti, and they have a new baby.
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And I did that wedding. And that’s the one I did as a clergyman because I
was no longer a judge.
MS. ALLEN: So you had to go online for your credentials.
MR. ROBERTSON: So I went online for my credentials, and I’m Reverend Robertson on their
certificate.
With Paige was a lovely guy by the name of Daniel Cahn, and I’ve
kind of lost track of him. He went to Covington & Burling when he left
me, but I think he’s now gone to the FCC. In fact I know he has. So that
if I look down this list of 34 law clerks. Oh my goodness, somehow I
skipped over two very important law clerks, Joseph Hall and Abigail
Carter.
MS. ALLEN: They were clerks together?
MR. ROBERTSON: They were clerks together and they were clerks between Sean Palmer and
Matt Solomon – after those two and before Stephanie Brooker and Kelly
Cochran. Abigail Carter had been the reader for Judge David Tatel and
then she went to law school and really distinguished herself. She was a
slam dunk hire for the clerkship. Abigail is now a partner in a Washington
law firm, and Joseph Hall is now a partner in a Washington law firm.
They are, I think, the only two law clerks out of 34 that have stayed in the
private practice of law. Almost all of the rest of them are in some form of
government service. It’s very interesting and I’m actually quite proud of
it. Although they are not making enough money of course. Well, I take
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that back. Bill Meeks is a partner in a law firm in New York. Paige is in a
law firm here. Matt is in a small law firm, but he’s still practicing law.
As I go back up this list, government, government, government,
government, government, government, Amsterdam, Chamber of
Commerce, private foundation, federal public defender, White House,
Federal Election Commission, dot com business in California. I didn’t
mention Kathy Zern. She was not Zern at the time. She’s since been
married to Peter Zern. She was what I call a stub-clerk. She was my clerk
for three months because Syd Patel left to get married. So at any rate, I
don’t mean to stretch this out.
MS. ALLEN: I think it’s an important theme.
MR. ROBERTSON: So, very few of my law clerks have become full-time private practitioners.
Most of them are in public service, and actually I may be guilty of steering
some of them in that direction. I used to give a lecture to all my law
clerks. As a matter of fact, I bored a lot of them. I used to give them a
book to read. The book was called Generations. It was written by a
fellow named Bill Schultz. Schultz’s day job was that he was the founder
and chief songwriter for a satirical singing group here called the Capitol
Steps.
MS. ALLEN: Oh sure.
MR. ROBERTSON: But his passion in life was this theory he had about generational cohorts.
Sort of a mixed psychological, sociological, anthropological construct in
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which he began with the proposition that American generations – there
have been 22 American generations since the Pilgrims.
MS. ALLEN: Okay.
MR. ROBERTSON: They have followed each other one, two, three, four; one, two, three, four;
one, two, three four; in four repeatable types. Dominant, recessive,
dominant, recessive, dominant, recessive. It’s a fascinating book, and at
the end of the book, he predicts the future based on the past. I used to
order my law clerks to read this book. They would kind of roll their eyes.
Some of them decided they would read it, and some of them decided they
wouldn’t. And then I would give them a lecture about going to work for
big law firms, and I would say to all of them something like this: Look,
big law firms are a great place to practice law, but they will capture your
soul if you allow them to because you can eat breakfast, lunch and dinner
there. You can find your mate there. You can live your entire life within
the confines of a law firm, and I want you to remember when you leave
here that your law license is yours and not theirs. Establish an identity for
yourself outside that law firm in some way – Bar, arts, public service,
revolving door, be a sculptor, do something else. Don’t let your whole life
be sucked up into the life of a law firm because the law firm will suck it
all up. Particularly in these days when they want 2,000 hours a year from
associates. And I guess a lot of them took that to heart, because very few
of them still are in big law firms.
– 245 –
MS. ALLEN: That’s interesting. I think when I was a new lawyer, and I mean this is me
being from Columbia, in New York City. They wanted a clerkship so they
could get into a firm.
MR. ROBERTSON: That’s right. That’s the way it was. And for some people that’s the way it
still is, and there’s no sin in it. It’s honorable work, it’s exciting work, it’s
interesting work, and it’s very remunerative work, but it’s all-consuming.
At any rate, end of story.
MS. ALLEN: I think it’s wonderful to have that list included.
MR. ROBERTSON: Well, they are very much a part of my history.
MS. ALLEN: Thank you very much. I would interrupt if I had a question.
MR. ROBERTSON: And it’s been great fun to do this. And you and I will probably have to do
some more work to get it into publishable shape. I can’t think of anything
that I’ve said over the last however many years we’ve been working on
this that I would not want to be public, although I will go over it. I don’t
want to embarrass anybody if I’ve said anything inappropriate or
something that I don’t want uncovered until I die or until somebody puts
lighten up on my tombstone. I will probably excise it. But basically I
think I’ve told it like it is, and I really appreciate all of the work you’ve
done.
MS. ALLEN: Thank you. It’s really been enjoyable.