David B. Sentelle Seventh Interview: August 7, 2014

325 ORAL HISTORY OF THE HONORABLE DAVID B. SENTELLE Seventh Interview August 7, 2014 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is the Honorable David B. Sentelle, Judge of the United States Court of Appeals for the District of Columbia Circuit. The interviewer is David Frederick. The interview took place on August 7, 2014. This is the seventh interview. MR. FREDERICK: Well Judge Sentelle it’s been a few years since we last spoke in your oral history. When we left off you were just about to become the Chief Judge of the Circuit. Can you describe for me what that was like to become Chief Judge of the D.C. Circuit. JUDGE SENTELLE: Well it was a part of a very complex five year cycle, David. As Chief Judge of the circuit not only did I suddenly have the ultimate responsibility for a staff approaching a hundred and half the responsibility for a building of significant size, but I also automatically became part of the Judicial Conference of the United States that 26 judges who serve on as sort of a board of directors. The Chief Justice then took that occasion to appoint me as a member and ultimately as chair of the Executive Committee of the Judicial Conference so that I was involved in not only with the running of my circuit but of the entire judiciary. And very time consuming although interesting and demanding and in rewarding ways. MR. FREDERICK: What were some of the big issues that you confronted in that capacity? 326 JUDGE SENTELLE: The big thing during that term and now, and Judge Traxler has succeeded me in Executive committee and Judge Garland has succeeded me here. The big thing was the financial crisis nationally, the budget cutbacks, the sequestration. How to try to save money in the operation of the courts. MR. FREDERICK: Now for historical purposes, can you give us some like specific, how, how significant were these cuts? And what by percentage terms, how did it affect the federal judicial system? JUDGE SENTELLE: In this building, we had seen this court, we had seen what was coming. And we had been allowing our staff to decrease for some time. We still had to lay off three or four people that we had to lay off to meet the sequestration goals, which is a very hard thing to do. At least two of them we were able to assist placing somewhere else. That was not an easy task. Now nationally, there were lots of things that we have tried to do, some of which we succeeded in. There are a number courthouses around the country that are not needed. Generally they’re the unstaffed ones. There’s no judge resident in some of the courthouses around the country. They need to be closed; there were about 90 of them. I got the list of 90 as the chair of the executive committee and started on the process of trying to get them closed. We got about six of them closed. A few years of effort there. I know Bill Traxler is still trying as my successor to… MR. FREDERICK: It sounds like the military base closing… 327 JUDGE SENTELLE: Yeah. MR. FREDERICK: …problem JUDGE SENTELLE: Yes, I think we need to close, base closing, or court closing, or courthouse closing commission to try to get rid of these things. MR. FREDERICK: Were there a lot of political, small p, political dynamics in that process? JUDGE SENTELLE: Yeah. MR. FREDERICK: How, how did you feel as an Article III judge interfacing in some of those issues with Congress, or did you have to do that? JUDGE SENTELLE: I had to do some, the executive director of the Administrative Office of the courts runs a lot of interference for you on that, so when I was asked if I would be interested in consideration for that position after I got out, the executive director, I sent word to the Chief Justice that, look, the last thing I wanted to, the thing I miss least about politics is interfacing with Congress and budget matters. And I said, I’ve just gotten through with some of that, I don’t want a whole lot more of it. It’s not something I like to do at all, David. Granted there was a time in life when I was in love with politics and I had to do it but when I went on the bench one of the great things about going on the bench is that you get out of politics. And so, it was a difficult five years in that regard but it was very rewarding and interesting. Merrick, asked me, Judge Garland asked me when he became Chief, he said “Am I making a mistake?” I said Merrick if I could do this for one more year, I would 328 do it for one more year. If I could do it for two more years, I would do it for one more year. MR. FREDERICK: [Laughter] Well, it sounds like your term ended more or less at about the right time. JUDGE SENTELLE: About the right time, yeah. As it happened, I had some non-life threatening surgery suddenly came upon me around that same time; it turned out to be a very fortuitous time, too. MR. FREDERICK: Can you describe the process of the transition between Chief Judge Ginsburg and you taking on the role of Chief Judge of the Circuit? JUDGE SENTELLE: It was perhaps more sudden than you might really expect it to be. Doug and I knew we were going to do it but we hadn’t gotten around to doing a lot of interfacing on it. Until the time came for Doug to step down and me to take it, so really the biggest help to me is our Circuit Executive, Betsy Paret, who is familiar with the new Chief coming in. And she was ready to go over with me all the personnel matters and what I could delegate and what I couldn’t so she and I spent a few days going through the personnel and determining what I was going to keep control of and what I would delegate to her. Similarly, at the Administrative Office of the Courts, they give you a day of conference over there on what your duties, responsibilities, and authorities are as Chief and your authority is a lot like the cliché goes − it’s a lot like herding cats. You’re responsible for all these things but you can’t do anything about a lot of them. 329 MR. FREDERICK: What did you regard other than the budgetary issues, which I know were quite significant, what did you regard as the biggest challenge you faced as Chief Judge? JUDGE SENTELLE: Maintaining internal, an internal placid condition among the judges of the court. I will not go into detail but although we’ve been very good for years at being a generally collegial court and projecting an image of a generally collegial court there are problems that you have to deal with to try to keep collegiality and as I say I won’t go into them but it would be washing our dirty laundry in public. But that was something that I had to deal with every day, and there were personnel matters. There were people complaining about Betsy because I was the Chief and I’m the person they would complain to. Betsy’s a great Circuit Executive and I needed to have her back but at the same time I still had to be available to other people. She is a very good Circuit Executive. I told her and the Clerk of the Court both when I came in as Chief that I wanted to extract the promise that neither one of them would leave or retire during my tenure because she and Mark are both so good but that still there were people who wanted to come to me about things that I could then say, look I’ve delegated that to Betsy but I had to have her back. And she would come to me at times with things where she wanted to make sure that − we had somebody who had violated a safety procedure in the handling of incoming mail. As you might imagine we do have an anthrax room, as it were, for incoming mail and there had 330 been a violation of safety procedures and she thought the person should be terminated. She wanted to make sure that I was on board; I was. MR. FREDERICK: That the anthrax procedures occurred right around the time of September Eleventh, 2001, if I recall correctly, have there been any security issues that you felt needed special attention during your time as Chief Judge? JUDGE SENTELLE: There were security questions, David, pretty well monthly. There would be something that we would need to, we have an excellent Marshal here and he had taken over and come up with what he thought needed to be dealt with on the security side. Then we, that is, Chief Judge Lamberth and I and our staffs would work with him to try to get the budget to do the things that he needed. He also had a very good eye for things we could save money on and shift without hurting security but yeah there were little things about every month that we needed to deal with, with respect to security. As simple as what’s happening with the shortage of CSOs I mean we might have three vacancies for contractual security officers, it takes an incredible process to get a person on board even though you’re contracting with an outside contractor they still have to go through the Marshal Service for background checks and so forth. Which always takes longer than they ought to so we were always on the back of what was being done about the CSO shortages. Whether we could get the money to put a security 331 glass, device, on one more elevator and things of that nature would come up repeatedly. MR. FREDERICK: Now can I ask you in a general way about relations among the judges, how did you experience them differently in your role as Chief Judge than as simply a circuit judge? JUDGE SENTELLE: David, it’s really a sense of responsibility when it gets to the boiling point and you’re not Chief, you’re hoping the Chief will do something about it. When you are Chief you have to figure out what to do about it. It is an intense sense of responsibility. MR. FREDERICK: Now in that regard, you served under a number of Chief Judges, were there qualities in past Chief Judges that you wanted to try to emulate in your time as Chief Judge? JUDGE SENTELLE: Yeah, Harry Edwards had been a watershed change in the process of trying to maintain collegiality on this court. Little hard to quantify but the main thing is being there and being, making the persons aware that you’re trying to maintain peace will you please help me with this. Instead of trying to take sides and push somebody’s agenda and have an agenda of your own, Harry was always there and trying to keep things collegial. Doug, I think, fell into Harry’s tradition and that was my goal as well, was to do what Harry had done to try to avoid the taking of sides unless absolutely necessary. And to keep people on an even keel and working for the same goal in the end. MR. FREDERICK: Temperamentally was that easy or hard for you? 332 JUDGE SENTELLE: I think when I was younger it would have been harder. I think as you get older maybe you begin to realize more the value of peace as opposed to the value of getting exactly what you think is the best result. Getting a result sometimes is much better than barely getting the right result and leaving a lot of carcasses along the way. MR. FREDERICK: Can you describe, you’ve described a little bit some of the functions but on a daily basis how much time would you spend performing Chief Judge functions and what would those be? JUDGE SENTELLE: Sometimes it is a little hard to sort out what was Chief Judge and what was executive committee, but I spent, it was like having another job. I spent probably half my time on administrative matters, on one or the other of those positions. MR. FREDERICK: Did you feel that affecting… JUDGE SENTELLE: And I actually spent my total time, more total time, than I had in the past, and half of it, half of my total was spent on that. MR. FREDERICK: Did you find that affecting your work deciding cases and writing opinions? JUDGE SENTELLE: It put me further behind a good amount. I finished up later in the summer on catching up my opinions but that’s about all. MR. FREDERICK: Probably shortened your vacation time… JUDGE SENTELLE: Shortened the vacation time some, it meant I worked on weekends a lot more than I had. I had worked at home in the evenings much more, much more than I had in the past. It was hard to get disengaged from 333 the job. Tom Hogan, who was Chief District Judge at the same time he chaired the Executive Committee, told me as I was finishing out on Friday before I’d be coming back on Monday said: “you’ll come in Monday, you’ll open your inbox, and there won’t be 13 things you have to deal with before lunch and you’ll realize I’m not Chief or Chair anymore,” and he was exactly right, he really was. Quite a release to get rid of the morning list of budget emergencies and judges, and all who want to do something about getting more security for their building and things you had to put up with for the executive, and had to deal with for the Executive Committee. So it was good to get those put down. MR. FREDERICK: Can you describe the relations between the Chief Judge of the District Court, was it Judge Lamberth the entire time you were Chief Judge? JUDGE SENTELLE: Yes. MR. FREDERICK: And I know you’ve described earlier in our times your friendship with him, what issues did you have to work on together with him that were challenging for the two of you? JUDGE SENTELLE: Budget allocation and there were times when we could not agree, I mean, no matter how good a friend somebody is there are different interests that are going to be served and I was trying both in my role as Chief here and more so in the role as Chair of the Executive Committee to try to get more consolidation of functions. Put all the IP under one committee, one organization rather than having one for each court, that 334 sort of thing. Royce was not nearly as committed to consolidating function as I was. We, we would cross paths on that at times. We would not pursue the same goal all the time. I wanted to improve efficiency and cost. He wanted to be sure to maintain the independence of the District Court and both goals were positive goals but they were not always consistent. And he and I have had, and this has been displayed publicly before, so I’m not really telling tales out of school, he and I have had a disagreement for a long, long time about press relations. I don’t believe in having any and he, I think, talks too much to the public about a lot of subjects. MR. FREDERICK: How have you seen the relations between the Court of Appeals here and the District Court change in the time, you’ve been a Judge over a quarter of a century here? JUDGE SENTELLE: I think for a number of reasons, I think they are better than they were, much better than they were when I came here. In the old, the historic judges dining room, very often I was the, for years, I was the only circuit judge who was a regular up there after MacKinnon died. It was district judges. Now we have a nice dining room down in the annex that my colleagues frequent and although it’s still going to be a predominately district judge there’s a social intercourse that goes on there that makes things much better. The more social contacts you have, the more interaction, benefits our profession. It’s harder to write a nasty opinion about somebody you just had a hamburger with. The personal 335 relationship between Royce and me made things, help things move here in the five years that I had but even without that it still has been a better relationship between the courts than it once was. I do think that the, this is going to be hard to identify, but the appointment of Robert Wilkins to the circuit is going to be a beneficial thing in that regard to have one, a former D.C. District judge on the D.C. Circuit has not happened in a long, long time. They liked having, the district judges liked having me there, as a former district judge and having a former D.C. District judge will be even better. MR. FREDERICK: Now how, he’s been on the court for about 6 months or so, how has that started to manifest itself? JUDGE SENTELLE: I was going to say that it’s going to be hard to quantify but I just get a sense that there is a, an element leading toward good will there. MR. FREDERICK: While we’re on the subject of having lunch with judges, have you seen any change among the new judges in terms of having lunch regularly with their older colleagues? JUDGE SENTELLE: I think intergenerational it works very well both district and circuit − there’s not any gap of, that has to be bridged so much as there is a sense of they’re coming into our experience base and maybe they can share that with us. I think it’s working very well. MR. FREDERICK: Now the Judicial Conferences are a way for there to be interaction among the judges as well as members of the bar and you were very kind to invite me to several Judicial Conferences while you were Chief 336 Judge, can you describe what you liked and didn’t like about the Judicial Conferences that you superintended? JUDGE SENTELLE: Let me say first that the reason we’ve had a gap and it has been the budgetary reason. We haven’t been able to afford the Judicial Conferences. My colleague, my successor, and Royce’s successor, I think, are about to get it back together to start having conferences again. Maybe we can see you again at some of those, David. Putting them together, the district, the chief district judge and chief circuit judge take the lead on putting the conferences together and they were interesting projects. We would try to come up with a theme, we would try to get people with expertise, we would use our people for panels and such. And it was a place to, as you suggested, socialize the bar with the bench in ways that are not easily done at a lot of American courts. The Brits are very good with their Inns of Court, having lunch with judges and judges having dinner with the court lawyers and such. We’ve not been so good in the American courts in a long time; those Judicial Conferences help to restore the bench-bar confidence. As far as what I personally a. liked and b. will miss, but will not necessarily mind missing, was being in charge, being involved in everything going on. It kept me very busy and maybe more tense than other people were at the conference but I liked it; I liked being involved, knowing everything that was going on and being in the middle of it. 337 MR. FREDERICK: Well, you showed great stamina and having a chair up there on the stage watching every program from up close. Do you recall any programs with kind of special – that you thought that was a really great program and was important to have? JUDGE SENTELLE: I really hate to say it but I really can’t think of one at this time. I really should think of something to say in answer to that question. MR. FREDERICK: Well it was kind of an off the cuff question. I had been helping, not that I am fishing for compliments but I had helped with the formation of the Watergate panel, which I thought … JUDGE SENTELLE: That, that was a really good one. And, as you recall, I was personally involved in that also. I got Rufus Edmisten to come up from North Carolina for that one and it was very interesting to recreate Watergate in part for people that knew nothing about it. You know, the younger lawyers, they’d heard of it, I mean they had some sense that in ancient history, in my day that, that went on but they, I think they learned a lot by the presentation we had there. MR. FREDERICK: Well, we are now 3 days away from the 40th anniversary of the resignation of President Nixon, so I suppose that there’s a, you know, a, it’s been coming up a lot in the news. There was even an article by George Will this morning about, about that. I think we’ve talked about that before, but are there any reflections, you know, just about that time period that you want to share? 338 JUDGE SENTELLE: Since this is more opening up than I do generally speaking, I would have to say that the present administration has become so imperial that it seems to me people may have forgotten some of the lessons of the Nixon administration. We talked before about imperial presidents, we have one now who openly said well if Congress won’t act, I will – which sounds a lot like ignoring the Constitution. I’m not saying that any crookedness is going on but there are some disturbing aspects of the present Administration that sort of remind me in a way of the Nixon years. MR. FREDERICK: Well, and have you seen, we’ll get to Noel Canning in a little bit but have you seen other issues that are coming up through, that you’ve had to judge that kind of speak to that theme? JUDGE SENTELLE: Well, of course, Noel Canning is the biggest example but we’ve had other things with respect to, I hate to pick on NLRB but with respect to – various agencies – where they seem to have been much more interested in accomplishing their mission, their goals than they are in following the laws and regulations, and precedents that should govern the way they get there. If they can’t get there without kicking them over or ignore them then they get there anyway. So we’ve had to reverse and rein in the agencies. MR. FREDERICK: Is, I’ll ask these questions because I know we won’t have this public for many, many years so you can speak more freely and candidly, if you 339 wish. Other than the NLRB, are there agencies that have caused you particular concern? JUDGE SENTELLE: EPA, I think, is very concerning and though they have a great goal and they’ve done some great, the agency has done some great things. But the present one does seem to be of the same imperial mindset that they’re going to do what they’re going to do and damn you if you won’t go our way we’ll run over you. MR. FREDERICK: Any others that you want to… JUDGE SENTELLE: The two that come to mind are the NLRB and the EPA but I’m not limiting it to that many names, it does seem to be sort of a general mindset in the executive agencies now. MR. FREDERICK: Now, just as a matter of you’ve been in Washington for almost 30 years, do you think that some of that is just because of relations between Democrats and Republicans in Congress have become more tense or is it because, you know, where do you…. JUDGE SENTELLE: That is certainly true and it’s easy to blame that but I think that it would be wrong to say that causes the behavior on the part of the Executive. I think that there was a lack of experience on the part of the Executive, for one thing, but there does seem to be a lack of a commitment of a separation of powers that is reminiscent of Nixon and perhaps of FDR but certainly of Nixon. In the sense that the President acts as if the other branches of government are there to serve his accomplishment of his goals. 340 MR. FREDERICK: In that sense, I recall that the last Judicial Conference was the day the Affordable Care Act was decided by the Supreme Court… JUDGE SENTELLE: Yeah. MR. FREDERICK: The basic case, you were not on the panel in which Judge Silberman wrote for that, but do you have any reflections on the Affordable Care Act and how that whole process played out in the courts? JUDGE SENTELLE: Silberman’s opinion of course got the results similar to the Supreme Court but it was not remotely similar in how it got there. And Kavanaugh as I recall dissented from Silberman’s opinion but his dissent was not remotely similar to the dissent of the Supreme Court. I would quite honestly say that I think the dissent got it right and I think the Chief Justice, whom I greatly admire, strained at gnats and swallowed camels to get to where he got. MR. FREDERICK: I want to turn to the en banc process and while you were Chief Judge, I counted four cases that went en banc. I hope I didn’t miss any and if that comports with your recollection. JUDGE SENTELLE: I have not counted but it was damned few. MR. FREDERICK: Can you describe the process for having a case… JUDGE SENTELLE: Set aside the category of statutory en banc for a moment and the normal process is: a panel decides the case and then the court either on petition of party or on its own motion, somebody on the court says I think we ought to take this en banc. They get rebriefing on the question of whether to en banc it. If a majority of judges in active service says it’s 341 going en banc then it goes en banc. If not, then it doesn’t. Now under the national rule, which is different than it used to be when we could have the set rule, it has to be a majority of judges in active service who are not recused. Used to be we had a local practice which I think was wrong that we counted recused judges almost like no’s because you had to get a majority of the total number. The national rule was finally adopted was to the effect of it has to be a majority of the judges who are not recused, which is much more sensible. But in any event, it had not happened very much during the last few years. There was and is a special category of cases under one of the election laws that any preceding that challenges the constitutionality of a portion of the election finance act is taken en banc ab initio, so that that falls outside the normal pattern. Now, as a senior judge, my role in relation to en banc is very limited. I can call for a vote on en banc if I was on the panel but I can’t vote on whether or not to en banc it. I can sit on an en banc only if I was on the panel. If I wasn’t on the panel I have no further role in the en banc. MR. FREDERICK: But even that rule is somewhat different than in other circuits, isn’t it, that don’t allow senior judges even to participate on the en banc court even if they were on the panel? JUDGE SENTELLE: No, I think that’s national now. MR. FREDERICK: Has that been changed? 342 JUDGE SENTELLE: If you were on the panel you have the option of sitting on the en banc court, if it goes en banc. I think that it is now national. MR. FREDERICK: The, several of the cases that went en banc while you were serving as the Chief, involved Judge Edwards who had been on the panel and… JUDGE SENTELLE: One of them he chose not to sit on, at least one on the, I don’t remember the exact issue but it was, I think it was a criminal case involving, or I don’t remember what it was exactly and he chose not to sit. MR. FREDERICK: So the first one, and I, I just am curious more about process because the opinions are a matter of record but the first one occurred in the transition between you, Chief Judge Garland and you, is the Askew case. JUDGE SENTELLE: Chief Judge Ginsburg… MR. FREDERICK: The Terry stop case, this is where the officers partially unzipped the jacket of the defendant and discovered a weapon, the question was whether that unzipping … JUDGE SENTELLE: Constituted … MR. FREDERICK: Constituted an improper Terry stop that would cause the suppression of the evidence and that was one where Judge Edwards wrote the opinion for the en banc court. I was curious because my, my observation was that your role as Chief Judge for the en banc decisions while you were, was really more procedural, you seemed to allow the process to play out among the judges without, you know, exerting the kind of authority 343 one might think of as a Chief Judge, and I wonder if you think I’ve mischaracterized that for… JUDGE SENTELLE: It works best that way David, if you, you don’t try to keep too short a rein on it, it works best. These judges are very independent professionals and it’s, it’s best not to overreach in presiding with them. MR. FREDERICK: Well, and in fact I guess you dissented in several. JUDGE SENTELLE: I dissented in that one, didn’t I? MR. FREDERICK: Yes, you were with Judge Kavanaugh. JUDGE SENTELLE: Kavanaugh. MR. FREDERICK: In dissenting in this one. JUDGE SENTELLE: Henderson joined us… MR. FREDERICK: And Randolph, as well. JUDGE SENTELLE: And Randolph. JUDGE SENTELLE: Now that would bring up the point, our practice and this is not codified but our practice is on the en banc the Chief assigns the majority opinion unless he should dissent. If the Chief is in dissent then the senior judge in the ranking judge in the majority assigns the opinion. Apparently in that case it was assigned to Harry. Theoretically I would have assigned the dissent but in fact I think that Brett dissented from the panel and yeah there was a reason why I gave it to somebody else on that one. MR. FREDERICK: The, I was struck by how, I want to say little “d”-democratic the Court’s en banc opinion writing seemed to be when you were Chief Judge, and whether that was conscious and by design? 344 JUDGE SENTELLE: Yes. MR. FREDERICK: Are there, did you feel like in those cases that went en banc that it was worth it? JUDGE SENTELLE: By and large probably no. I can’t, I wouldn’t single out a particular case and say no. Spottswood Robinson was Chief Judge of this court many years ago. Spotts told me early on, he said when he was practicing law, first practicing law, he thought what a great thing an en banc court was to clarify the law of the circuit. Then the first time he got one when he was Chief Judge, they had about three different opinions in the majority and it was less clear than it was going in. MR. FREDERICK: I actually wanted to ask about that, because it seemed that every en banc case drew 4, 5 opinions. JUDGE SENTELLE: Most of them… MR. FREDERICK: And one of them, in the Burwell case you wrote separately to say, you know, stare decisis is why you are voting the way you are voting but you’re kind of wondering was this enterprise worth it to begin with. JUDGE SENTELLE: Yeah, that’s certainly one in which I thought we had improvidently granted en banc and I confess that I voted to en banc it. But I think we should not have, I think we should just let the stare decisis stand. MR. FREDERICK: Do you think those lessons, kind of linger on into the future, have you noticed, that was a couple of years ago, has that affected do you think voting on en banc cases? 345 JUDGE SENTELLE: I don’t know David, I think it’s something people have to learn for themselves. MR. FREDERICK: How have you seen the en banc process change, if at all, in the 25 plus years you’ve been on the court? JUDGE SENTELLE: When I got here we en banced a lot more cases, that was partly because there had been such a dramatic personnel change. It had some very liberal judges – Bazelon’s group had established a lot of circuit law that the incoming Judges Bork, Starr, Silberman, myself, thought were incorrect so when the questions came back up we called for en bancs. We changed a lot of law. I think it got much smoother once we got patterns established and traditions established anew. And as we began to realize that we were not accomplishing a lot by a lot of en bancs, we quit calling for them. We just didn’t have very many for years there. MR. FREDERICK: How would you say the en bancs affected relations among the judges? I talked to judges in other circuits, who say the en bancs tend to create more friction than clarity. JUDGE SENTELLE: I think that used to be correct, and I think it may be becoming true again. Maybe it’s the more en bancs you have the more trouble they cause because we are having some en bancs now I think people, not including me because I’m out of this thing now. I do see some tension among my colleagues that is traceable to the en bancs. I don’t think this all, friction problems they may cause is going back to a time before I was Chief before Harry was Chief. We once called for an en banc that 346 nobody ever knew about because the opinion, we pre-circulate our opinions to the full court, when it went around somebody called for an en banc vote without releasing the opinion. We got the votes to have the en banc and the panel then withdrew the opinion and put out a new one that didn’t have the controversial portion in it. But I think there were feelings out of that one that lasted, never did get over for some of the people. I do think the en bancing process causes as many problems as it solves as far as intra-court relations. MR. FREDERICK: Now I was aware that the Second Circuit did that kind of precirculation but I don’t think I was aware that the D.C. Circuit… JUDGE SENTELLE: We do it, the Fourth Circuit does it, the Eleventh Circuit does not, and that’s the only circuits that I can authoritatively speak about. MR. FREDERICK: 30 years ago when I clerked in the Ninth Circuit, the Ninth Circuit did not pre-circulate opinions. JUDGE SENTELLE: Well a few months ago when I sat in the Eleventh Circuit they do not pre-circulate. I sent my opinions down and the two colleagues signed off on it and then it was published. It never went to the rest of the court and by the way one of those is now undergoing an en banc. MR. FREDERICK: Well, I wonder if that may be a reason why courts like the Second Circuit and the D.C. Circuit statistically have many fewer en banc rehearings. JUDGE SENTELLE: We work things out, yeah, because it goes around on the precirculation. Either you can ready the dramatic solution, the nuclear 347 solution, you can actually say let’s call for an en banc or you can just contact the judge and say look I think you’re wrong on that, can you think about changing that. You see, it works out most of the time. It’s not a common thing that I would send a memo to a colleague or call a colleague and say look you’ve got an opinion circulating that I think you need to change but it does happen. Each of us does it from time to time and it, it helps. I think a circuit that doesn’t pre-circulate, like you said the Ninth did not and the Eleventh does not, they’re missing an opportunity there. MR. FREDERICK: How, how long do you give, how long does that process play out? JUDGE SENTELLE: A week. MR. FREDERICK: So, you’ve got to jump on it pretty quickly if you want to… JUDGE SENTELLE: Yeah and sometimes you don’t even get them read during that week but it, it blunts your ability to say anything, if you don’t get it read and don’t say anything. MR. FREDERICK: Can we talk about the Noel Canning case? JUDGE SENTELLE: Within proper limits. MR. FREDERICK: Your opinion for the D.C. Circuit was affirmed; not on reasoning that was on all fours in particulars with the way you had approached the problem. JUDGE SENTELLE: The separate concurrence was pretty much in the frame of pretty much what we had done here. 348 MR. FREDERICK: Did you feel, well how did you feel when the Supreme Court decided the case? I should ask in an open ended… JUDGE SENTELLE: I was and remain convinced that we were absolutely correct in Noel Canning. I’m not that way about every opinion, but that one I would, we had done the history and the, us here and the Scalia concurrence, I think absolutely correct on the history. I was disappointed with Justice Kennedy in particular for going on an, a much I think incorrect analysis. They, what they said, what they based their result on was correct but dispensing with the broader result I think was wrong. So I had mixed feelings about it, certainly was glad that they did say that the President does not have the power to simply disregard the Constitution and make appointments when the Senate’s not in recess. I mean, you saw all these things in the paper about all Presidents that made recess appointments, yes, but they didn’t all make them when the Senate said we’re not in recess. He was the first one ever to do that. Nobody before ever tried to make an appointment, a recess appointment when the Senate had said it was in session. And they talked about whether it was just a pro forma session but that didn’t start during this Administration. Harry Reid invented that to stop Bush from making recess appointments and Bush was stopped. Because Bush followed the law and didn’t try to make recess appointments when the Senate said they were not in recess. So he was trying something new and it was an imperial reach, and he had his hand slapped. 349 MR. FREDERICK: What effect do you think Noel Canning will have on the Executive Branch? JUDGE SENTELLE: Actually, fairly little because the Senate in the meantime did away with the filibuster of appointments so it makes much less difference than it would have made at any prior time. MR. FREDERICK: So the, the tie-in is a direct one between ending the filibuster and having the… JUDGE SENTELLE: I don’t know if there was a cause and effect on that or not. Whether Harry Reid had anything about Noel Canning in mind when he stopped the filibusters but they were trying to stop the minority’s ability to hold up appointments. And it has the effect of making the recess appointments decision much less important than it would otherwise have been. It hasn’t lost all importance but it is not nearly as much an effect. It also is a public announcement, look the President has to follow the Constitution and I think that we needed that. MR. FREDERICK: How does Noel Canning rank for you among the opinions that you authored on the D.C. Circuit? JUDGE SENTELLE: I will tell you what I said while it was still pending at the Supreme Court, as of right now, that is jurisprudentially the most important opinion I ever wrote. In a few months it will not be jurisprudentially important at all because the Supreme Court will put out something that will become the jurisprudential all-star on that so it was very important 350 while it lasted but a Supreme Court opinion will always be what goes in the casebooks now. MR. FREDERICK: Sure, but, just speaking personally, would that rank among the most important… JUDGE SENTELLE: Yeah, yes… MR. FREDERICK: …of the opinions you’ve written JUDGE SENTELLE: Yes… MR. FREDERICK: …on the court JUDGE SENTELLE: Yes. MR. FREDERICK: And, so you must feel a lot of pride in the authorship and care that you put into that opinion. Can we talk about the, so let me just ask is there anything more about Noel Canning that you’d like to say for the historical record? JUDGE SENTELLE: No, I guess I pretty well got it said, David. MR. FREDERICK: Can we talk about the Guantanamo cases for a few minutes? Those cases, I think when we look back at this post 9/11 period, will be among the most important cases that the D.C. Circuit has decided and the kind of relationship between the D.C. Circuit and the Supreme Court is very much reflected in those cases. Can you give us an overview of how you felt about how that process of lawmaking has played out? JUDGE SENTELLE: I didn’t think and still don’t but I don’t have the same sense of certainty I had on Noel Canning. I didn’t think that the right of habeas extended 351 to, beyond the territorial sovereignty of the United States. I thought that the Eisentrager case had established that decades ago in the 1950s and that there was nothing different at Guantanamo that would have made habeas extend there. The Supreme Court in a divided court disagreed with that and again although I think the dissent was correct, I don’t feel it with the same certainty that I would express on Noel Canning, there were certainly two sides to the issue. Congress tried very hard to return it to the status where there would not be habeas review of Guantanamo prisoners. The Supreme Court kept pushing it back the other way, so that we finally did wind up with the result in which we were hearing habeas petitions from prisoners being held in Guantanamo. It was in a sense a very new thing for the courts to be doing. The courts had not generally been involved in determining whether prisoners of war were being properly held. I know that there are precedential cases but that they were outliers in the past. This became a norm for the District Court and the D.C. Circuit and the District Court complains quite justifiably that we haven’t given them a whole lot of guidance on how to do it and we concur in saying we weren’t given any guidance either so we’ve had to make it up as we went along to a certain extent. But it has been beneficial to demonstrate that all parts of the U.S. government are under the law. That once we establish that there is a right of habeas extended to Guantanamo then we send cases back and say look you’ve not given it adequate justification for why you believe this intelligence 352 that was uncorroborated and you’re holding this guy who may just be a shepherd, come up with a better reason or turn him loose. So it has demonstrated I hope for the people and certainly for the bar that we are going to follow the law, every part of the government is going to have to follow the law. And as I said, I don’t think that habeas rights really extended there but the Supreme Court said differently and they’re the boss. MR. FREDERICK: Well I was not involved in any of those cases, so I can ask the question from a completely uninformed perspective but my sense was that the Supreme Court had great confidence in the D.C. Circuit’s ability to superintend the process and so it left the details to the D.C. Circuit to develop. JUDGE SENTELLE: That’s what we felt like. MR. FREDERICK: Was there a lot of, well can you describe in general terms that process of figuring out those processes? JUDGE SENTELLE: The District Court had it in the first instance and they had to figure out what was sufficient involvement with the forces identified in the authorization for the use of military force, what was sufficient connection to make these people detainable. They had to find out, figure out how the traditional definitions of combatants applied and what traditional definitions of unlawful combatants applied. And then we could take it on the record and look at it and figure out if we thought they had done it correctly or not. It involved an awful lot of classified 353 evidence so a lot of the stuff that we were looking at nobody but us will ever see. But it, at times, and Merrick wrote the opinion in the Parhat case, I was on the panel, but Merrick wrote that opinion, we said all we can tell is that they have a piece of classified information, we cannot tell that the corroborating evidence didn’t come from the same source, so for all we can tell, they didn’t have but one piece of hearsay and they’d been holding this Uighur, I think he was, anyway the name was Parhat, you’re going to have to go back and review this evidence to see whether you can hold this man or not. That was an example of how we, how the district court had worked through it and then how we decided they hadn’t adequately made the comparison determining if the evidence was sufficient. It became managed litigation; we began to know what we were doing. MR. FREDERICK: How significant a part of the docket was that for the D.C. Circuit? JUDGE SENTELLE: For the district judges, it varied from judge to judge because they lumped some of them together and let one judge work out all the procedures except one judge chose not to participate and then he kept his by himself. For us, it was awhile there it seemed like you had one of those habeas cases every time you sat down. It wasn’t as high as one out of four but damn it felt like it was about one case out of four, but I say it was not that high; it just seemed like it we saw so many of them it felt that way. 354 MR. FREDERICK: Now, with all the experience you’ve had reviewing administrative records, how different was it to review this highly classified information and make judgments about what was true and what was not true? JUDGE SENTELLE: For reasons, some of which I can’t really discuss, I had had more background in classified information than a lot of judges had so perhaps it wasn’t as new for me as it was for some of the colleagues but it was different. You’re looking at something that cannot be tested by the normal means of cross-examination and the disinfectant of daylight. You have to look at it as it comes in and understand what the agency’s done with classified information gleaned by their confidential informants and, as we said, in Parhat in all we couldn’t tell if everything came from the same guy. There was not any corroboration if you just said two or three different agents get the same information from the same guy. It was different than when you can look at something that was tested by cross-examination or by that notice and comment process. You have to do the mental process of testing everything yourself. MR. FREDERICK: Did you feel you’re summoning up old district judge skills that you had developed? JUDGE SENTELLE: Oh yeah… MR. FREDERICK: And did that make… 355 JUDGE SENTELLE: I’ve always said I missed the trial court so it was a good way back, I guess. MR. FREDERICK: Why do you think the cases seem to be taking so long to get resolved? JUDGE SENTELLE: The people managing aren’t in any hurry. They would just as soon take their own time, I bet. There’s not much bonus for speeding through them. MR. FREDERICK: So this would be on the military prosecution side? JUDGE SENTELLE: Yep, on military prosecution side. MR. FREDERICK: It is easier to keep them detained and tied up in pretrial proceedings. JUDGE SENTELLE: And as you know, they put together those review panels and such that have slowed things down and may have, and they may be doing a good job. MR. FREDERICK: How do you think the process is working compared to what would happen with the U.S. Attorney’s office prosecuting one of these detainees in a federal court? JUDGE SENTELLE: It is a procedurally different animal. There is sort of a link sausage way of going at it, I think, that’s going on down in Guantanamo now where they’re cranking them out. If a U.S. Attorney’s office had it, at least for a while, it would be much more individualized. They would be taking a much more tailored approach to a case. Anything they’ve got is going to be bigger, it’s going to have more ramifications to it now but the military is going to be handled down there but the U.S. Attorney’s 356 office is by inclination trying to do it more individualized, individualized process. MR. FREDERICK: And by more individualized, that necessarily alters the procedures that would be followed. Are you an advocate of the military commission after seeing these cases bubbling up…? JUDGE SENTELLE: I think it’s the most efficient way of dealing with those cases. U.S. Attorneys are not used to dealing with that particular kind of case and individualized is good from a viewpoint of that individual case but it’s not an efficient way of proceeding. I’m, you may not know David, that I’m on a, I’m not on, but I’m an advisor to a special commission to revise the Uniform Code of Military Justice. And I will say without too much fear of telling tales out of school but I have advised that they make the military process in several respects more like the civilian process. I do think that individualized handling is better at protecting the rights of those involved, not just the defendants but the victims as well. But now for purposes of handling these war crimes or unlawful combatant situations or just the detainee situations, the old process, it works pretty well. MR. FREDERICK: Can you be more specific about the processes that you think ought to be adopted? JUDGE SENTELLE: Right now in the military, you have that Article 37, or anyway Article something process where instead of, we have a grand jury in civilian life and they have an investigator who goes out and investigates as to 357 whether there’s enough to bring charges. That’s not, either as efficient or as fair as if you had a permanent court sitting like a grand jury. Simply take evidence, let the investigators be separate from the process of decision making, so that you’d have judges functioning like a grand jury to decide whether to bring the equivalent of an indictment. Also, the present system in the military discourages joint trials, you have separate trials for people who would be tried jointly in federal court. I think that is an inefficient and ultimately unfair to the victim kind of a process, to do it that way. There are others but that’s two that in particular jump out in my mind as the whole charging process that they presently have is inefficient and potentially unfair to the defendant and the trial process in a number of ways including the failure to have the joint trials is potentially unfair to the victims and less efficient. MR. FREDERICK: I think in one of our prior sessions you commented on the high quality of the advocacy in normal cases before the D.C. Circuit. How would you rate the quality of the advocacy in these military detainee cases? JUDGE SENTELLE: We’ve had some really first rate volunteer pro bono lawyers representing a lot of the detainees so on the whole they’ve had good advocacy for the detainees. On the government side, you generally have people who’ve become expert in what they’re doing so they’ve been well advocated on the whole, David. MR. FREDERICK: I’d like to just shift to talk about your colleagues, I was honored to be there for your portrait unveiling and to hear Judge Tatel speak about 358 you and I wonder if you could kind of explain what it was about Judge Tatel that caused you to ask him to speak at such a special event for you? JUDGE SENTELLE: David, I think David Tatel and I had a very special relationship for a number of years that he’s been on the court. Each of us understands that the other is trying to apply the law as we see to the facts that are before us in the fairest way to everybody that we can and not try to advance any goals of our own and we’ve tried to help each other do it. David is an extremely nice, considerate, kind person which has drawn my affection but has made him a very good friend. I think we have, I’m not saying anything against anybody else but I think we have to a very large degree tried to be the collegial, the leaders of collegiality on the court. We’ve both tried to calm down and pour oil on the waters when there have been any problems arise. David has characteristics that I haven’t really seen in anybody else on the court that I’ve sat with, if we have something and it’s a very sensitive subject matter in a case that people might get offended, knowing that I’m approaching things from a different process, a different side than he, he will contact me about it and say will you go through this and see if anything about the wording that you think might offend some group and I’ve done it back but he was the one who initiated it. We just have found a very common ground on trying to do things in a professional but yet humane way that’s made us sort of drawn to each other over the course of the years 359 and he’s one of the most remarkable people I’ve ever known. You forget he’s handicapped. There’s been times at lunch when somebody’d ask him if he’s seen something, David has to say uh no! MR. FREDERICK: Well, well I’ve had the occasion once or twice to have that, make that same mistake and say Judge it’s nice to see you… JUDGE SENTELLE: Well he uses language as if he’s sighted, so there’s nothing wrong with saying nice to see you. MR. FREDERICK: Well, and he’ll say nice to see you too. JUDGE SENTELLE: And he will say nice to see you, so I will be seeing you, he uses that language and I mean somebody will ask him literally if he’s seen something at times. A colleague, Larry Silberman actually, asked him, David did you see the shoes that that woman had on arguing in court. There was a long, long, long pause then somebody says “Larry, that was a Joe Biden moment.” [Laughter] MR. FREDERICK: How quickly did it take for this kind of relationship to build between the two of you? JUDGE SENTELLE: David would say from the very start, I think, you know he referred in the, in his remarks that when he first came, he didn’t have much of a gap between the time he got here and the time he had to sit. I contacted him and said look I’ve got bench memos on those cases if you want to get your people to bring you up to speed on that. He really, really liked that and it just started us out on a very good footing which I didn’t think 360 was a remarkable thing to do but he thought it was a considerate thing to do. I think it started us out. MR. FREDERICK: Have you had other colleagues with whom you’ve developed a similar close bond? JUDGE SENTELLE: That one is kind of special but of course Karen Henderson and I have been friends for decades. I’ve known her since law school. Ken Starr, I miss, because Ken and I were very attuned from the very start. Ken had contacted me before I got up here and whether right or wrong he included me in some memos about what was going on in the court. There was some dissension in the court that he thought I should be prepared for when I got here and I appreciated Ken’s heads up on that and then we had a good relationship even though we served only a short time together. We had a good thing. Buckley also I miss, Buckley’s been retired for some years now but a couple of years ago he called me. No it hadn’t even been a matter of months ago, he called me to ask my opinion about something. I said Jim, I’m not Chief anymore, he said “I know you’re not Chief, I just want your opinion, I want David Judge Sentelle’s opinion on this.” Jim and I always had a good working and friendly relationship as well. I guess in the building now, the closest friend I’ve got is Royce from the other court. And Hogan, Hogan is a very good friend as well. Karen is gone so much of the time, she stays in South Carolina an awful lot. 361 MR. FREDERICK: Had, does that affect her ability to, well obviously interact but how do you think that, that this distance has played itself out? JUDGE SENTELLE: It’s been a distancing factor. She just hasn’t been a factor in an awful lot of the court’s personnel process just by not being here. I guess that’s about what I can say about that. MR. FREDERICK: Has, has a similar phenomenon occurred with Judge Griffith? JUDGE SENTELLE: He actually spends more time here than she does though he’s gone farther when he’s gone, that doesn’t really matter how far it is. And when he’s here, he’s more involved. So it really has not been as much of a factor with Griffith, Griffith no. MR. FREDERICK: He has such a kind and a warm spirit about him. JUDGE SENTELLE: He does. MR. FREDERICK: I would think that he would be the kind of judge you would be looking forward to him being in town because he’d be a good lunch companion. JUDGE SENTELLE: Yeah. MR. FREDERICK: How, how has the court changed with the influx of these new appointments by President Obama? JUDGE SENTELLE: I think, David, it’s really too early to give you much of an answer on that. If we talk again in a couple of years, I can add more on that but right now it’s a bit early. MR. FREDERICK: You came into the, this process in part because of the closeness with Senator Helms, how do you think the Senate confirmation process will change by virtue of the filibuster rule being done away with? 362 JUDGE SENTELLE: Now let me say this first about that, Jesse did not get involved until after I had already been chosen, maybe not chosen but I was already on the short list of the Reagan Administration before Helms even knew that I was involved in this. Well he got me the district judgeship, I mean that one Helms was very involved in. But he wasn’t very much on this one. Doing away with the filibuster is, short way you’re going to see it’s going to speed process up a whole lot. More importantly, it’s going to cause some people to be confirmed that would not have been confirmed before. There were a lot of people, and this is a bipartisan flaw that went on in the last few administrations, there were a lot of people not confirmed for this, this court in particular but around the country that should have been confirmed. But the filibuster process and it was a two way street, it happened with both administrations, both parties. Going back to Allen Snyder for this court, and about the first time John Roberts was nominated, Miguel Estrada… MR. FREDERICK: Peter Keisler JUDGE SENTELLE: Peter Keisler, that was the next one I was coming to, people who should have been confirmed for this court and never were. Today without the filibuster process, they’d be confirmed. MR. FREDERICK: It’s remarkable when you think about those lawyers and I was, have been privileged to know all of them and Caitlin Halligan also, fits into that category too. JUDGE SENTELLE: Now, I don’t know her but… 363 MR. FREDERICK: Terrific. JUDGE SENTELLE: and she fits the same category. MR. FREDERICK: Terrific lawyer. She’s… JUDGE SENTELLE: Doug Ginsburg speaks very highly of her. MR. FREDERICK: She, she actually has a very similar kind of way about her as Peter Keisler. And I consider both friends. It’s remarkable how different this court would be had those lawyers been confirmed. JUDGE SENTELLE: Yeah. MR. FREDERICK: And, you know, the change is a remarkable one. JUDGE SENTELLE: Filibuster is like a lot of other things in life that got completely out of hand. And while I, as a Senate observer, historically I would have said it was on balance, a positive thing but it came to the point it was not anymore. It has become on balance a very negative thing and its death was ultimately inevitable. You abuse something, it’s going to die. They abused it and they abused it through administration after administration and finally for better or for worse, for right or for wrong reasons and some of each probably, they got rid of it and it’ll never come back. MR. FREDERICK: Are there any kind of… JUDGE SENTELLE: Just let me pause and say the filibuster per se still exists because it can still be done to Supreme Court Justices and pieces of legislation. It’s virtually gone. 364 MR. FREDERICK: Are there any internal processes that have the same kind of effect in the court, where if they become abused over time there will be a radical change in the way the court does its business? JUDGE SENTELLE: I mentioned a while ago about asking for, calling for an en banc before a case issues. If we were to do that very often, we’d have to quit doing it. It only works if it’s only done once in a while. If we started doing it all the time it’d just be, become routinely to be rejected out of hand. So yeah, there are things like that, thus far it hasn’t happened. The sound of me knocking on wood there. MR. FREDERICK: Right, let me ask about the system, just generally, having been a district judge, a circuit judge, having been a chief judge, on the executive committee, how well do you think our judicial system works? JUDGE SENTELLE: The short answer would be I think about as well as can be expected under the circumstances, David. The chief is selected by a process that has nothing to do with your ability to do administration. The Chief becomes Chief by process that has nothing to do with their ability to do administration. And yet it seems on the whole to work pretty good. Now there have been Chiefs that were miserably suited to the job but on the whole, I think, it works pretty well. MR. FREDERICK: Now, speaking just about the, you know, the legal system in your role as a judge, are there things that, changes that you’d like to see in how decisions get made in the legal system? 365 JUDGE SENTELLE: I would dramatically limit the discovery process. I think that has gotten way, way, way out of hand. I think it’s a reason why people are turning to mediation and arbitration, away from the courts, and why young lawyers not even wanting to try cases because, because cases never get to trial. They’re so bogged down with the overgrown discovery process. When I started practicing law, there were depositions and there were discovery motions but they were really in a process on the way to getting to trial. Now they’ve become an end in themselves, how much can we burden the other side so they’ll cave in for us? So that would be the place that I would start, would be to limit discovery dramatically. On the criminal side, it’s substantive and it’s something that a lot of people would disagree with, most people perhaps. I think that the suppression remedy was a mistake. It’s a wholly judge-made remedy. I’m not saying that I have any problem with the rights protected under the Fourth Amendment but I think the draconian remedy of essentially saying if the constable errs the killer goes free is, was a mistake. I think it has caused us to make some very convoluted and very difficult to defend decisions, to get evidence in to keep from applying the remedy that we would not have done if we would have protected the rights better in the long run without it. If we had used Bivens type remedies instead of exclusionary. MR. FREDERICK: So that would be the kind of middle ground that you would… JUDGE SENTELLE: Something like a Bivens remedy rather than an exclusionary remedy. 366 MR. FREDERICK: Those are interesting ideas. Are there any other thoughts that occur to you? JUDGE SENTELLE: No, there would be lots of small things. I’ve never become totally able to accept a jury of less than twelve. If they get the six people jury, I think there’s too much chance of an aberrant selection. The bigger jury you’ve got, 12 is about the biggest you can be and be manageable but when you have only six, there’s an awfully good chance of getting an aberrant selection. The smaller the group is the more likely there is a departure from the norm. I think you’re more likely to get a generally acceptable result if you have the traditional larger jury. I don’t know how to, I do know some way, I don’t know how to bring in to being what I’m about to ask for, but I would like to see prosecutors quit getting themselves and the country in these Brady violation problems when they do not turn over evidence that is favorable to the defense. And then they turn up, I don’t know if you’re familiar with the trial Royce has going on now but there was some dramatic exculpatory evidence for the Blackwater defendants that was not turned over. So in the trial, they are now finding Royce had to stop the trial to instruct the jury and even have some witnesses recalled that the prosecution should have turned this evidence over and didn’t. You know the Senator Stevens story, when I was a prosecutor we used to literally open the file. If you didn’t have a security reason for not letting the defense lawyer see it, if we had it, they saw it. And that not only produced a 367 more just result but it got you more pleas, we got you pleas sometimes you wouldn’t have gotten otherwise. Once they saw you got it, then they went ahead with it. Now North Carolina, I’m told, and this is after I left, but I read an article that North Carolina now has a statute that essentially mandates an open file except for security protection. And I think it would be beneficial if we had that. Prosecutors should do it without being made to and if they won’t I think they should be made to carry out what the Brady rule is designed to do. They have, the defendant has a right to know what the evidence is even if it, even if they don’t want him to. MR. FREDERICK: One of the effects of the budget situation was to affect greatly the defenders office, almost even more than the prosecuting offices. Has that situation gotten resolved in a satisfactory way at this point? JUDGE SENTELLE: I’m not really that involved in it anymore. I really did try to take my hands off of things when I quit being Chief and the, chair of the executive committee. I know that in this district, A.J. came up with some creative ways of involving pro bono assistants and interns to get things done by different people since he couldn’t afford as many people as he needed. MR. FREDERICK: This is A.J. Kramer the public defender. JUDGE SENTELLE: A.J. Kramer the public defender. JUDGE SENTELLE: The excellent public defender, I would say. 368 MR. FREDERICK: One of the things that I have been struck by is the fact that the judicial pay situation has seemed to continue to stagnate and do you have thoughts about … JUDGE SENTELLE: Are you familiar with the recent litigation? MR. FREDERICK: the, yes… JUDGE SENTELLE: There was a settlement in which the, some back pay was given to us and the front pay was increased. It still remains smaller than would be expected for attorneys of the experience that we have but it’s not as out of line as it once was. So there have been significant improvements, and it will not get any better than that. What will happen now is we will get the same kind of pay raises as other federal employees get but it is a lot better than it was before that litigation was, which I did not think would work, I have to say. I told Silberman, who was one of the named plaintiffs – pessimists don’t get disappointed. If you’re a pessimist and you’re wrong you’re happy about it, you get pleasantly surprised. So I was a pessimist, I was pleasantly surprised. We got some back pay and we got some increase. Every one of us, and I have to say this, every one of us took this job knowing that we were not going to make the money that we made before. We, we made that decision and I did think that it had gotten too far out of line but I think it’s gotten better now. I feel better about it. MR. FREDERICK: When you say you don’t see any change going forward, why, why do you say that? 369 JUDGE SENTELLE: Well I think we got what we’re going to get for a long time. Since we got approximately a hundred thousand apiece for back pay, more than that actually, that’s with taxes I guess. And we got an increase that put us in line with the increases that have been given to federal employees and Congress did not get those things for itself, they’re not going to give us anything for a long, long time, David. There again I’m being a pessimist perhaps but pessimists don’t get disappointed like I said. MR. FREDERICK: Yeah, well the time, I mean it, making congressional pay a political hot potato and then tying judicial salaries to congressional salaries has always seemed to be a way to drive good people away from public service. JUDGE SENTELLE: Yes, you’re right. Yeah. MR. FREDERICK: I’d like to just shift to kind of the last topic that I want to explore with you today and just talk about the next phases of your life and your career and ask you if you want to reflect on your 25 plus years on the D.C. Circuit and now that you’re a senior judge, where do you see the next phase of your life? JUDGE SENTELLE: I guess more than ever before, I may have to decide things one year at a time but we have to decide ahead of time what kind, what size case load we’re going to take for personnel allotment. So far, I’m taking a 100% caseload I had thought about reducing it for next session but because they’ve appointed more judges than we need our case load is going down, our 100% case load is going down so much that I see no reason 370 to cut below 100% case load. In fact I am visiting some other circuits, the Eleventh Circuit is at a crying need and I went and sat with them for a couple of days. I will sit with them again a couple of days in the spring. The Sixth Circuit has a case where all the judges recused and three of us are coming from other circuits to go out there to handle that case. The Tenth Circuit has some need, I’m going to Denver in September so I’m going to be sitting with some different colleagues for off and on, just a few cases here and there but it is an interesting change. And I would have to say they didn’t cheat me on the quality of work in the Eleventh Circuit, I got probably the two most controversial cases they had that term, I wrote the opinions on. I like, I miss the interaction with the staff but I do like not having to devote the time to administrative duties. Therefore, I’ve got more time to do things like visit other circuits and because of the overload, over personnel we had in judges, I’ve got the time to do it. MR. FREDERICK: How would you distinguish the cases that you’ve encountered in those other circuits from those here in the D.C. Circuit? JUDGE SENTELLE: Tenth Circuit I will hear six criminal cases and that’s all I will have when sitting out there in September. I do not remember a time when I ever had six criminal cases in a row in the D.C. Circuit. I had no administrative case there. I did have a little bit administrative law in the Eleventh Circuit, but nothing like the administrative law we get here. As it happens I did have a couple of very interesting cases down there 371 in the Eleventh Circuit that could have risen anywhere. One of them had to do with the, whether or not you need, police need a warrant to obtain cell tower location, telephone cell tower location information. I wrote the opinion saying that they did have to, I think that’s probably currently pending an en banc vote. In the Eleventh Circuit now. I had the Chiquita Banana case down there, the civil side of what Eric settled, the big criminal case here a few years ago when he was at Covington. Where the class of 4000 or so, Colombians were suing the Peruvian, one of the South American countries, were suing under the Alien Torts Claims Act, alien torts statute. I wrote for a 2 out of 3 judge court saying that this was extraterritorial application and that it doesn’t apply extraterritorially and the third judge dissented and said that she thought there was enough contact to take it out of the reign of the recent Supreme Court decision. MR. FREDERICK: So the Eric, was Eric Holder, our current sitting … JUDGE SENTELLE: Yeah. MR. FREDERICK: Sitting Attorney General, just so the record is clear. JUDGE SENTELLE: Yeah. Right. He represented Chiquita at that time. Of course now his department is doing other things on the other side on that but they worked out the criminal case while he was representing Chiquita. MR. FREDERICK: Now several judges while you have served have left the court completely. Do you see yourself staying on the court in senior status or are there other things in life that you’d like to do? 372 JUDGE SENTELLE: David I don’t see any reason why I would leave. Bob Bork who did violate it, at one time had said well I accepted a life sentence and I plan to serve it out. Well, of course, he didn’t, he left. Well I accepted a life sentence, I think I’ll serve it out. I don’t see anything else that I want to do that would keep me, as long as I’m, as long as the Lord gives me strength to keep doing this I figure he wants me to keep doing it. I don’t know anything that I would want to do that would take me away from it. I certainly wouldn’t want to try to go back to the practice of law. I see lawyers do that, try to go back to that at my age put together a practice at 71 years old plus, I wouldn’t want to do that. I enjoyed practicing law when I was practicing it but it is a different time now. There is a story they tell in England about a judge who atypically over there applied to the Lord Chancellor when he retired from the bench to be relicensed to practice law and the Lord Chancellor is supposed to have said, “I should hate to see you do poorly as an old man what you did so well as a young one.” So I have no desire to go do poorly as an old man what I think I did pretty well as a young one. I could say that I’d like to have more time to write but I’m not sure I would do it if I did have more time. I don’t see anything that’s going to cause me to quit altogether now I may well decide to slow down little by little. I don’t see anything now that will take me, take me out of here. MR. FREDERICK: Are there any personal hobbies that you see yourself exploring now with more time? 373 JUDGE SENTELLE: I suppose really David that’s a reason why I’m not going to be leaving. My brother said somebody asked him, “When’s Dave going to retire?” and he said, “Retire and do what?” Because I really don’t have the kind of hobbies that, when Spottswood Robinson left, he went back to Richmond and reopened his woodworking hobby down there. I really, I hadn’t been fishing much in the last several years. I hadn’t hunted at all since I moved up here and now I’ve got a problem of tendons in my shoulder where I’ve been told not to cast and not to shoot so I couldn’t go back and do those if I wanted to. Gardening was something I really enjoyed in North Carolina but I’ve gotten out of the habit of it up here with the long commute and smaller land, I have neither the time nor the place to do the kind of gardening I used to do down there. Really had given that up when I came up here. There’s really nothing that, unless I were to decide to do more writing, which as I said I don’t know that I have the willpower to do it now anyway. MR. FREDERICK: Well I see you and, as really devoted to the institution of the D.C. Circuit and I wonder if, if you see yourself that way and if so, are there things as a senior judge that you can do to promote this institution? JUDGE SENTELLE: You know, the best thing I can do, I think, to promote the institution is whatever the Chief wants me to do. I told Merrick when I left as Chief, I said I’m available for anything you want me to do. I’m going to stay out of your way unless you ask me. And he from time to time will call me or we will talk about something that he may want advice or he may 374 just want to discuss something. So I’m available for that. I have given up a lot of the outside things I used to do just because I’m old partly. Like the presidency of the Edward Bennett Williams Inn that I had for twenty, thirty years. I gave that up. I still do the judges prayer breakfasts, I still chair that once a month. Part of it I don’t know who I would turn it over to. I picked on Jeb Boasberg at the Inns, I dragooned him into being the new chief, the new chair of the Inn. I don’t have a logical heir apparent for the prayer breakfast but I still do that. I don’t make the appearances for other groups that I did when I was Chief in part because I’m just tired of it. I told Annette I may never bring my black tie suit back, my secretary Annette, I may never bring my black tie suit back down again. I had to make so many appearances on behalf of the Court. So I think the best thing I can do is, do whatever the Chief needs me to. MR. FREDERICK: You are always very kind in meeting people and asking them how their family is and your former clerk Neil Gorsuch and I were talking about that when I last saw him and I’d like to ask you a question about how you think you’re family has been affected by your service on the D.C. Circuit? JUDGE SENTELLE: It changed the life of my youngest daughter dramatically. We moved her up here. When we came up here the oldest daughter was already in college. The second daughter was about, she was approaching her senior year in high school and we actually let her live with my brother 375 and his wife for a year so she could finish high school with her class. Rebecca, we made her move up here and she came kicking and screaming and never left. She still lives in the area now. It was a different, twice, they made their lives change. Once they moved from Charlotte to Asheville but not nearly as dramatic as Asheville to Washington. We had moved from Charlotte to Asheville when I went on the district court. Two years later we moved up here. They, actually 3 years later, though I was alone the first year and more or less commuted. It’s a different world up here, David, than Rebecca had been accustomed to and she did not think she liked it. But then as I say, now she never left. Raising her daughters here. I didn’t have as much time for the family while I was Chiefing and chairing as I should have had. Kids were grown but I didn’t have as much time with the grandchildren as I’d have like to have had and Jane, Jane was not demanding but she wasn’t getting much time during those years. I’m not sure if that answered the question you were asking or… MR. FREDERICK: Well, you know it was, yes it has and I have come to the end of my questions. Are there any other things that you would like to address before we close? JUDGE SENTELLE: Well David I would say something that should have said at the portrait ceremony that it has been a very different ride than the one I planned on. I went to law school expecting to be a sort of a semi country lawyer in Asheville, western North Carolina. I will digress and say that when I 376 went on the district court, Judge Sam Ervin, who was then on the Fourth Circuit, the Senator’s son introduced me and said, “I wanted to introduce a man who has a better claim on being just a country lawyer than either I or my daddy ever had.” You know his father used to always say I’m just a country lawyer. I admit to being a country lawyer in western North Carolina. We went back to Asheville out of law school to stay the rest of our lives. I kept being offered jobs in Charlotte until I was offered one I couldn’t turn down with the U.S. Attorney’s office and moved down there and stayed 17 years expecting that to be the rest of our lives. And then moved back to Asheville again to spend the rest of our lives when I went on the district bench. Two years later I was up here and it is a very different life up here. By way of example, I don’t mean this to be the end all, in Charlotte I played poker with a group of cops, sports riders, race car drivers. In D.C. I played with Chief Justice of the United States. Both of them were good poker groups, good people but that just shows how different things are there than here. I won’t say that people in North Carolina, Asheville in particular, are not interested in political or philosophical matters but they’re not anywhere near the top of their mind and they know they don’t have a great deal of influence. People with whom I’m in contact here have them at the top of their mind and think they have a lot of influence whether they do or not. Some of them may not but it’s a different emphasis in life there than here. Had I not come here, I would 377 have never been involved in the Independent Counsel matters that took up 14 years of my life. I would not have represented the Inns of Court in England, I would not have dined at the Supreme Court with some regularity for a while. Would not have served on the Executive Committee and gotten to know judges all over the country and would not have had the headaches of trying to manage a budget that was way less than the needs. But it’s been a very different life than the one I planned but it’s been a damned good one. I’ve been very blessed and thankful for it. MR. FREDERICK: Well on that note, thank you Judge Sentelle, it’s been an honor and a privilege for me to be part of this process of recording your oral history. JUDGE SENTELLE: Thank you David.