Stanley Harris Text of Interview (June 3, 2002)

Oral History of STANLEY HARRIS
June 3, 2002
This is the seventh session in an oral history conducted under the auspices of the oral
history project of the Historical Society of the District of Columbia Circuit. The interviewee is
Stanley Harris, a lawyer in practice and in the judiciary, and the interviewer is William Ross.
The date is June 3, 2002.
Mr. Ross: Judge, this is June 3. It is the seventh session of your oral history on
Side A of a new cassette. We are coming to the point of a sum up or wrap up of this oral history,
which doesn’t mean that we won’t have further sessions after you and I have both reviewed the
transcripts to pick up on other things. We can cover almost anything in this area that you had
thought about or think about. I would like to ask you now about a couple of your significant
cases which are mentioned. You have mentioned here or are mentioned in your earlier oral
history. One is the Vietnam protest case, which is mentioned in your resume.
Judge Harris: You must be referring to the case that I had in the Superior Court
back in 1971 when the Vietnam protests were going on and I had the assignment of Judge-inChambers
one day. That is, a judge is assigned to be available to police officers for arrest
warrants, search warrants, to the citizens for protective orders and that type of thing so that
anybody who needs something immediately is not unduly delayed. And I received a call from
Harold Greene, who was then the Chief Judge of the Superior Court. And Harold very quietly, in
a low-keyed voice, said that he had a protest case that he would like me to try and would I mind
taking it. And I said, “Of course not.” Well, it turned out that there were 850 co-defendants.
They had all been arrested on the Capitol steps. And that proved, as might be expected, to be
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quite an administrative nightmare. I seriously question whether any other judge in the country
has ever had a case with 850 co-defendants in a criminal case.
Mr. Ross: I think you may be right.
Judge Harris: And an awful lot of those criminal co-defendants, by the way, were
named Johnny Appleseed. They had given false names to the Metropolitan Police and somehow
or another the Metropolitan Police who had been doing the arrests had never even heard of
Johnny Appleseed.
Mr. Ross: It could have been George Washington or Julius Caesar, maybe.
Judge Harris: But we ended up in the case with selecting eight representative
defendants and having a trial, and after a fairly lengthy trial, the jury acquitted them. And so the
case was overall dropped by the United States Attorney’s Office, which relieved me as I
envisioned the rest of my time on Superior Court trying batches of people who refused to vacate
the Capitol steps when they were ordered to do so by the Chief of the Capitol Police and I think
the reason, parenthetically, that they were acquitted was that while the entire episode was on
video tape, somehow or other the video tape did not include the clearly noticeable warning by the
Chief of the Capitol Police to the demonstrators that if you do not vacate the steps of the Capitol
within ten minutes we will be forced to arrest you for unlawful entry. And that was nowhere on
the tape and the·defendants said they didn’t hear anybody say anything about leaving.
Mr. Ross: Great big crowd. The jury figured in those cases. In that case, they
were not — how do you think, based on your appraisal of the jury or sense of the jury, were they
reacting to this?
Judge Harris: Difficult to tell. I think it’s hard for a trial judge to really get a
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good sense as to the jury. There are so many things that you have to be conscious of. The
conduct of the lawyers, looking at the clock as to whether it is time for a break. It’s like
managing a stage production and it is difficult to focus in on any one thing and get a real good
read on a jury.
Mr. Ross: Do you recall the names of the lawyers who were involved in that case,
the prosecutor and the defense counsel?
Judge Harris: Well, the lead prosecutor was Assistant United States Attorney
Luke Moore, who was the head of the Superior Court prosecutions team. Luke, of course, had
been the United States Marshal and later became a judge on Superior Court. He was a marvelous
guy.
Mr. Ross: He sure was.
Judge Harris: Chuck Work, another Assistant U.S. Attorney, was the nun1ber two
prosecutor on the case. Chuck later became, I believe, president of the District of Columbia Bar.
Among the defense counsel, Phil Hirschkop sticks in my mind and I believe Ralph Temple was
also an attorney.
Mr. Ross: Temple, yeah. We were involved in that case and I was trying to pin
that down. That was the time when I was chairman of the organization that Ralph was
representing.
Judge Harris: There was, to me, a rather remarkable little sidelight to that case.
One of the defendants was a rather attractive looking young woman who was quite a zealot with
respect to the Vietnam War and the military in general. And every time that she would pass this
one particular deputy marshal, she would kick him. And it was something that I kept trying to
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keep under control, and at the end of the trial when they were acquitted she came up to the bench.
She said, “Judge, I never thought we could get a fair trial.” And I said Miss, whoever you are, I
forget her name. I said, “That’s what we are here for,” and left the bench. And the odd footnote
to it is that later, this woman who was so anti-military and so difficult to contend with in the
courtroom joined the Anny in a rather remarkable transformation.
Mr. Ross: Yes. These turnarounds. Let me talk to you about a couple more
cases. What about the Hinckley case, the young man who attempted to assassinate the President?
Judge Harris: Well, that was quite unique, of course. John W. Hinckley, Jr. shot
President Reagan, along with Jim Brady, and a Secret Service Agent named McCarthy also was
hit. And that happened just before I became the United States Attorney. I remember being in my
chambers in the District of Columbia Court of Appeals when I heard the news of the President’s
being shot and, of course, had no idea at the time that I would end up being the United States
Attorney at the time of the prosecution. But there was a superb team that was put together by the
time I became the United States Attorney. The lead prosecutor was Roger Adelman who was a
very able and extremely talented prosecutor. There were two other Assistant U.S. Attorneys
assigned full-time to the case, Dick Chapman and Marc Tucker. The case also had assigned to it
full-time three Metropolitan Police Department homicide detectives, two FBI agents, one Secret
Service agent arid they worked together in harmony and extraordinary dedication. A number of
decisions in the case had to be made by me, but I could not be active in the actual trial of the
case. The U.S. Attorney’s Office, of course, here is so large that no U.S. Attorney can spend his
time in a courtroom trying a case no matter what his experience and I was not an experienced
prosecutor, so I did not want to play an active role. Roger Adelman, however, wanted me in the
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courtroom full-time during the trial. And looking at about a three-month trial, and I simply could
not do that and attend to all the other duties I had as U.S. Attorney, so I cut the baby in half and
told Roger that I would be in the courtroom when the government was presenting evidence, but
would not be in the courtroom when the defense was presenting its, and that worked pretty well.
We had an interesting problem with respect to the testimony of President Reagan. The White
House kept telling me that they would be glad to have the President available for a video-taped
deposition and the line prosecutors and I were agreed that we did not want to have John Hinckley
and the President in close confines in the deposition and also President Reagan was at that time,
who now is 90 and has Alzheimers, but is an extremely warm and likeable person, and we felt
that his effect on the jury would be enormous. But it became apparent to me that Nancy Reagan
and Mike Deaver on the President’s staff did not want to have him testify, I suppose in part
because they didn’t want him to relive the experience. fu part, perhaps, because they didn’t want
to have it look as though the President was coming down on this confused young man. So Roger
Adelman and I — I turned down their request for a video-taped deposition, but we still wanted a
shot at him, so Roger and I went up to the White House and spent about 45 minutes with the
President and with Jim Baker and Mike Deaver in the Oval Office trying to convince him that we
wanted his testimony and needed it. But we did not succeed in having him agree to testify and
we would not agree to going the video-taped deposition route, so he did not testify. The team
worked incredibly hard. I made it a regular practice during the trial to call them. Each night I
would watch the ten o’clock news at home and then take our dog for a last walk, come back in
my home at about 11: 15, pick up the telephone and call them at the office to say good night.
They were always there. And when I’d get up in the morning and go out and get the paper and
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bring it in, I would call the office and say good morning and they were always there. But I
wanted them to lmow that I knew they were there, so I made two calls every day at the end of the
evening and early in the morning. But the jury unfortunately was just hopelessly confused by the
insanity defense and my soon-to-become colleague, Barrington Parker, lost a little bit of the skills
that he had earlier as a trial j?dge and the case was not as well tried as I would have liked to have
seen it. For example, we had one situation in which we had four photographs that the FBI had of
bullet fragments that were taken from those who had been shot. We had a lengthy argument as to
whether the photographs of the bullet fragments were admissible or not admissible. And Judge
Parker ultimately concluded that we could put two of them in. Well, they were either admissible
or they weren’t admissible, but to say we will let two of the four come in was indicative of a
compromise. And we know what the jury was thinking because we had the unprecedented, I
believe, situation in which shortly after the jury reiumed its verdict of not guilty by reason of
insanity a congressional committee had a hearing and brought up a number of the jurors to testify
before it and those jurors in their testimony made it quite clear that the insanity defense was
beyond their ken and that they were just hopelessly confused as to what should be done.
Mr. Ross: Well, it has some lack of clarity.
Judge Harris: No question about it.
Mr. Ross: Why did you reject — this is a point of interest, I think would be
interesting to lawyers — why did you reject the video deposition of the President?
Judge Harris: We did not think it would be that effective with the jury and the
three Assistant U.S. Attorneys who were handling the case on a day-in and day-out basis agreed.
All with the help, by the way, of a senior Assistant United States Attorney named Vic Caputy
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who was extremely experienced. I think Vic was in his 70s at that time, but was a regular and
very helpful part of the team also. They felt strongly that they did not want Hinckley to be in the
presence of the President in a small room for a video-taped deposition. It was a combination of
those factors that led us to conclude that we just would not do it.
Mr. Ross: Yes. What sense did you and your team get ofHinckley’s motivation
which, of course, has been a matter of discussion for many years? Why did he end up there or
outside the hotel entrance with a gun shooting at this President?
Judge Harris: I don’t know that anybody can really answer that ideally. Certainly
I can’t, but the basic difference between the psychiatrists who testified in the trial and there were
multiple psychiatrists. The defense psychiatrists, of course, took the position that he was
mentally ill. Our psychiatrists took the position that he was not mentally ill, but rather suffered
from multiple personality defects including narcissism, and it seemed to be he was obsessed with
the actress Jodie Foster at Yale, that he communicated with her and it seemed to me sort of a
bizarre attention-getting device. He had gotten some psychiatric help in Colorado before
wandering around and ending up in Washington. But interestingly enough, after he was found
not guilty by reason of insanity, as is required by District of Columbia law, he was sent to St.
Elizabeths for a psychiatric evaluation, and when he came back from there, the evaluation of the
St. Elizabeths’ psychiatrist was precisely that of the government psychiatrists at trial. That he did
suffer from multiple personality defects but was not mentally ill. But he continues to be held to
this day. June Green inherited the case after Judge Parker died. I’m not sure who has it now
since June Green died recently, about a year ago at age 85, within about a week of the time that
she left the court. But it’s an interesting dilemma as what to do with him now. Our psychiatrists
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back at that time were concerned that if Hinckley and his parents cloaked him in the insanity
defense that that could well tip him over the edge of having multiple personality disorders indeed
crossing into the nether world of mental illness and that he would cloak himself with that to
absolve himself from feeling responsibility or guilt for what he had done, and there seems to be
validity to the approach that they took at that time. One of the things that I mentioned was that I
had to make a number of decisions. One of them that I made during the trial was that we had
four psychiatrists lined up to testify for the government. But the first two, Park Dietz, a
psychiatrist who at that time was a professor at the University of Virginia Law School and now
practices in California, and Sally Johnson, who was the chief psychiatrist at the Butner
Correctional Institution and was a part of the federal prison system. They were such superb
witnesses and took about a week each that I made the decision and I’m not sure Roger Adelman
has forgiven me since. We haven’t brought the subject up. I concluded that we should not put
on the other two psychiatrists that were waiting in the wings because of the time that we were
taking and because the first two had been so outstanding.
Mr. Ross: Well that must have been a memorable experience.
Judge Harris: It was that.
Mr. Ross: I’d like to ask you now about the Lockerbie Scotland air case that’s
also called the Pan American 103 case. Could you tell us about that? That’s obviously a major
and still continuing matter.
Judge Harris: Actually, I did quite little in the case, although it was probably
about the most significant case I had as a judge. It happened that the two Libyan intelligence
agents were indicted here in the District of Columbia under a statute which gives jurisdiction in
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the District of Columbia for terrorist acts committed overseas against American nationals. When
the two Libyan intelligence agents were indicted, the indictment was randomly assigned to me. I
read the indictment and it was quite lengthy. I think it was about a 50-page indictment and a
remarkable, remarkable bit of investigative work that had gone into it. What happened in the
case is rather remarkable in that they placed the bomb on a plane in Malta, which then flew to
Frankfurt, Germany, and then the suitcase containing this bomb with a timer was put onto a flight
to London and then it was placed on a flight to the United States. But the plane was a little bit
delayed in getting out of London, and as a result, the timed bomb went off over Scotland as
opposed to over the Atlantic Ocean and that meant that bits and pieces of the plane and
everything on it were scattered over miles and miles of Scottish countryside. And they fanned
out hundreds if not thousands of people just checking virtually every inch that they could and
they found a little piece of metal, about the size of a fingernail, that they ,vere able to identify as
coming from a timer that had been manufactured in Switzerland and sold to the Libyan
government. And from that they began to piece together how this all came about and to track the
actions of the two Libyan intelligence agents who were responsible for it. I kept in contact with
the people at the Department of Justice periodically to see what the likelihood was of our getting
the bodies of these two intelligence agents so that I would have had the trial. They were never
produced. I confess that I thought that it was quite likely that they might go for a fishing trip in
the Mediterranean and suffer some sort of an accident that might prove fatal to both of them
because I did not think that Muammar Quadhafi ever wanted them to come to the United States
where they might work out a deal and talk. And ultimately, quite a few years later, the case was
tried before three Scottish judges in the Netherlands and one of the two agents was found guilty.
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One was acquitted. The one who was found guilty is now serving a life term. I’m not sure where
he is incarcerated. But I never had to do any work in the case beyond reading the indictment and
following it and I also read a couple of books about the case just so that if I got it I would be as
informed as possible. One of the books was about the victims — the Americans who had been on
the flight. It was a very moving thing and a very tragic act of terrorism that killed about 260
people.
Mr: Ross: You never had any discovery proceedings?
Judge Harris: No.
Mr. Ross: I see.
Judge Harris: No one ever entered an appearance.
Mr. Ross: But it was a fascinating case. I would like to ask you now some more
questions about your family. We had only the briefest coverage of your family. You mentioned
your mother, Mary Elizabeth Sutherland, was the daughter of a Senator and I remember vaguely
about Senator Sutherland. Can you tell us something about her?
Judge Harris: You mean about my grandfather Senator Sutherland or about my
mother?
Mr. Ross: About your mother and that will lead back into your grandfather.
Judge Harris: Well, my mother was a lovely woman and wonderful woman. She
met my father when I guess she was about 20 and he was then managing and playing for the
Washington Senators baseball team here, and ultimately they fell in love and got married in 1926
— October 1, 1926 — so that it would have been just after the baseball season. Ultimately in the
1940s they became divorced. A profession such as baseball which has somebody on the road as
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much as baseball requires its players and managers to be can be very tough on marriages and I
think that was a contributing factor to their difficulty. But they remained very good friends and
had a good relationship through the years.
Mr. Ross: Was she raised in the Washington area?
Judge Harris: No. Basically in West Virginia.
Mr. Ross: Was her schooling in West Virginia?
Judge Harris: Well, she went to Madeira School out here in suburban Virginia,
but that was when my grandfather served two terms in the House of Representatives and then one
term in the Senate so that she came up here as a girl. I’m not sure what year. I can’t put my
finger on it. And like a lot of women she fudged her age by a year, just one year. I don’t have
the dates pinned down in my memory.
Mr. Ross: Did you know the senator at all? Ever meet him?
Judge Harris: Yes. We were close.
Mr. Ross: Tell me about him and your relationship.
Judge Harris: Well, he was a very dedicated man of high ability and absolute
bedrock ethics. If a constituent even sent him a pack of matches, he would send it back to them
and say, “I’m sorry, I don’t feel I should accept anything from anyone.” And I think of the state
of our political life today where integrity does not exist to the extent that it did back in those
days. And I don’t mean that my grandfather was unique in that respect. I think there was a broad
respect for the process of government and a higher degree of integrity than I think we see today.
The mass media and attention-getting politicians now seem to seek, whether that has contributed
to some of the degradation of standards or not I don’t know, but he was a fine man, whom I’ve
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always been very proud of. And I did get to know him pretty well. He lived well into his 80s
and I had a chance to spend considerable time with him which I treasure.
Mr. Ross: Was he a native of West Virginia?
Judge Harris: Originally from Missouri.
Mr. Ross: Missouri. And what was his educational background as far as you can
recall?
Judge Harris: I knew it at one point, I can’t recall it now. Westminster College
sticks in my mind because he was from Fulton, Missouri, but I’d have to check his biography to
be able to recall that at this point.
Mr. Ross: Was he in politics in West Virginia?
Judge Harris: I do not think he was. He was with the David & Elkins Coal
Company for a time in Elkins, West Virginia. I don’t believe he held elective office in the State
of West Virginia before becoming a United States Congressman.
Mr. Ross: Did he continue to live in the District after his term?
Judge Harris: Yes he did, and he became the Alien Property Custodian at one
point following World War I, which was a significant government position and held that, then
lived on Wyoming Avenue here in Washington until his death.
Mr. Ross: So you were over there sometimes in his home?
Judge Harris: Yes.
Mr. Ross: He was in yours?
Judge Harris: Yes. Frequently.
Mr. Ross: Would you continue Judge, and tell us something about your brother
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and sister and your relationship with them?
Judge Harris: Well, we were close although of course several years difference in
age means you are doing different things when you are young. My sister, after graduating from
Woodrow Wilson High School here in Washington, went to nursing school in Baltimore. And
unfortunately while being in the hospital or perhaps in some public transportation ride or
something ended up contracting tuberculosis and that washed her out of nursing school, and
when she finally recovered from that, she did not go back to school and ended up marrying a man
who became a minister. They ultimately divorced after she and her husband had several children,
then she moved to Orlando, Florida, where she has been living ever since, although for a time her
husband was the Chaplain at the United States Military Academy at West Point, which was an
interesting experience for her and for him, of course. My brother also went to Woodrow Wilson
High School here and then went to Wake Forest University. I enjoyed playing a lot of sports.
My brother was a better athlete than I, and after his junior year at Wake Forest, turned
professional and played professional baseball for several years. And then he set three years as the
maximum time period within which he would be willing to play in the minor leagues before
leaving baseball ifhe didn’t get to the big leagues. My own decision was a little bit different. I
played varsity baseball at the University of Virginia, but knew that I would never be a good
enough hitter to.make the big leagues and so was not tempted at all to play in the minor leagues
for a while.
Mr. Ross: Good field, no hit.
Judge Harris: That’s reasonably accurate. (Laughter) I would add I have no
doubt but that my brother would have made the big leagues today with there being more teams,
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but at that point there were 16 teams.
I might add with respect to my brother that after he finished with professional baseball
and came to Washington and got into the stock brokerage business when I was practicing law, we
had never, with five years difference in our ages, had the opportunity to play together and we
started playing the top rung of softball competition in Maryland and it was great fun being
teammates. So we played together for quite a few years and won a couple of championships and
had a great time. The difficulty is that a couple of high school knee injuries, coupled with
playing competitive sports into my 40s, took me to the point of needing a couple of knee
replacements at this stage of my life.
Mr. Ross: You really suffered for your addiction. Were these brothers and sisters
close? Did they play a meaningful role in your life? I know that’s a hard question.
Judge Harris: It is a hard question. I’m deeply attached to both of them. Like
most brothers and sisters, we don’t see as much of each other — well, practically you don’t see as
much of anybody you really care about as you’d like to these days with so many activities going
on and with my sister in Florida. My brother is still in this area, so we’re able to get together
occasionally. His life and ours are divergent and it’s hard to get together.
And as one further footnote as I think back to my brother and my playing on the same
softball team and what a pleasure that was. My father had never seen me play a game because
whenever I was playing baseball and later softball, he was always with his team, so he never saw
me play. And finally after my father retired he had an opportunity to come to a softball game in
which my brother and I were playing. So that was the only time he ever saw us play at a game
together and it was the only time he ever saw me play in a game at all, and we happened to run
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up against a practically world-class pitcher and had a perfect game thrown against us at the one
game my father got to see. (Laughter)
Mr. Ross: Oh, dear. How about other recreation and hobbies? I know baseball
was a big part of your life. What else can you say about your interests?
Judge Harris: Well, they are varied. We had a sailboat for a number of years
which we enjoyed greatly and kept at Annapolis, but after we had kids we concluded that we
weren’t able to use it enough and disposed ofit. I’ve enjoyed playing golf and went out the other
day, a year after my retirement from the court, and played a weekday morning. I think that’s the
first time in my life I’ve done that. I thought when I became a judge I’d have time to play a little
golf and improve my game, but it never worked out that way. I never could get away from the
courthouse. I’ve enjoyed photography through the years. But basically my professional life has
been very demanding and there has been very little time for many other activities.
Mr. Ross: Are you following the Kemper?
Judge Harris: I was doing a lot of things. I’ve gotten into arbitration and
mediation since retiring from the court and I had an awful lot to do over the weekend and I
worked most of the weekend. And I thought, wait a minute, this is retirement?
Mr. Ross: One gets that sense. Tell me about your boat a little bit. I’m a sailor
and I’ve had boats all my life.
Judge Harris: Well, one ofmy partners and a very close friend for years was a
man named Frank Reifsnyder, and Frank and I worked at Hogan & Hartson together. We jointly
bought a sailboat, a Pearson Vanguard, 32 1/2 foot sloop which we kept at Annapolis and jointly
owned for quite a number of years. I would add that joint ownership worked out beautifully
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because every time we would leave the boat we would have to leave it immaculate for the
Reifsnyders and vice versa, so we always went to a clean boat and so did they and never had the
problem of saying oh, let’s leave these dishes soaking and we’ll get them when we come back.
Mr. Ross: And that’s fatal.
Judge Harris: It also, of course, cuts the costs in half, so that worked out very
well for someone on a judge’s salary educating kids.
Mr: Ross: Did Nancy Lee like sailing?
Judge Harris: Not a great deal.
Mr. Ross: I wouldn’t have thought she would.
Judge Harris: Although Frank had children from his first marriage and the
sailboat for him was a wonderful opportunity to be able to get together with his sons.
Mr. Ross: Did you sail with Bozey or sec someHling of him?
Judge Harris: No, although I had known Bozey for years.
Mr. Ross: How about writings? Are there any writings you’d like to note — I
mean of your writings or written things that you would like to mention here to put on the record?
Judge Harris: I’ve never written anything except what I’ve done as a judge. I
have worked hard as a judge and never had time to do anything beyond the job that was in front
of me, so I never ventured into anything else, although God knows there is a warehouse full of
opinions that have been written through the years.
Mr. Ross: Yes, I bet there are. Have you ever thought about possibly excerpting
some of the more interesting ones and publishing, maybe it would be a private publishing event if
it wasn’t commercially feasible or a list of your opinions with some commentary and narrative?
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Judge Harris: I don’t know whether it would be of interest to anybody but me, but
there are so many things that I have to do from the standpoint of family history, such as going
through 40 years worth of slides and photographs and trying to organize those and everything
else, I doubt I’ll ever get to that. I think judges tend to forget their cases, though. You focus very
intensely on a case while you are working on it and then you focus equally intensely on the next
one and they tend to get out of your mind, so it’s quite intriguing now and then when I run across
an opinion in an old case and have the flood of memories in connection with the processing of
the case coming back to me. And, I should note, my secretary very graciously had all of my slip
opinions from the D.C. Court of Appeals put in bound volumes, and West Publishing has
provided me with bound volumes of my district court opinions.
Mr. Ross: I’ve had the experience of sometimes coming across something I wrote
30 years ago, and ifl hadn’t had my name on it, I wouldn’t have recognized it. If you were a
benevolent dictator, someone who could make things happen and decide on matters around you,
what changes would you make in the law broadly and you can address things like law practice,
the court system, law teaching, law and government, lawyers in government, anything that you
want to?
Judge Harris: Well, I’d have trouble tying together many thoughts at this point.
Several thoughts occur to me. One, I think we desperately need some sort of reform of the class
action mania that has come along and has driven so many companies into bankruptcy with
virtually no real true liability for what they may have done. I think we have way too many
lawyers and having too many lawyers results in too many lawsuits because they need to keep
active and make a living. With my own kids, for example, with respect to law school, I never
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encouraged anybody to go to law school. I said, “It’s up to you. If you want to go, there are too
many lawyers. I think you’d be a good one if you did it,” but my old friend Catherine Kelly, one
of my colleagues on the District of Columbia Court of Appeals, used to go to great lengths to
discourage people who consulted her and discouraged them from going to law school because the
law schools graduate more lawyers than the profession can accommodate or assimilate. And I
think that part of that is that law schools being popular, more and more universities have
developed law schools because they can get revenues from them and graduate just too darn many
lawyers. I’ve had one recurring ifl were a dictator thought, but I’d argue with myself on both
sides of it. I think I’d like to see a rule that nobody could become an appellate judge without
having been a trial judge first and nobody could become a Supreme Court Justice without having
gone the route on both courts before. Where that breaks down a bit is that I think it’s more
difficult to be a good trial judge than it is to be a good appellate judge. That is, it requires a
different collection of skills for one to be a good trial judge. Working on an appellate court is an
extension oflaw review from its analysis and writing and doesn’t require the quick decision
making and people skills that a trial judge has to have to be good. Judges, of course, are human.
I have enormous respect for the judges that I’ve known, but there’s a range. There are some
outstanding judges and there are some that are not so good, which is true of any profession of
course. One problem that we have now, of course, is a concern of the bar and I think to a large
extent when you get below the Supreme Court level, the function of the entire judiciary
throughout the country, and the bar is concerned that too much of the decision-making process is
controlled by law clerks and I’m afraid that that’s a concern that has some validity. All the
judges that I have known on the courts on which I have served — and I’ve been a member of three
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courts and sat on five others — and the judges have more to do than they can handle and you have
to place a lot ofreliance on your law clerks. And if a judge’s instincts and common sense and
legal learning are not sufficiently good to be able to distinguish good from bad work or flawed
work by a law clerk who has very little experience, you can end up with some law being made
that is not as good as we would like it. And I think that’s part of the reason for my earlier
thought that I’d like to see appellate judges have trial court experience before they become
appellate judges because they just simply too often do not have any sense as to what happens in
the courtroom and you end up in my view with some silly reversals.
Mr. Ross: Let me go back to the question of fairness and the ability of the nondeep
pocket litigator to advance or defend positions in complex matters in the federal courts.
You were talking about class actions. I’ve long thought that the discovery rules which are, of
course, great engines for truth when they are properly and efficiently used but offer too much of a
temptation on the part of either plaintiffs or defendants who have deep pockets to defeat causes
simply by prolonging them and their expense — and even in a very legitimate use of the
discovery, it can become overwhelming for a particular defendant or even a plaintiff Have you
ever thought about the possibility of adopting something more like the British system in
discovery, which puts more of a premium on conciseness and expedition and limiting discovery
and also discolll’ages the bringing of a lawsuit itself because of the possible occurrence of costs,
the way it assigns costs in litigation? If one brings the lawsuit and loses, the costs can be quite
crushing. Have you ever thought about whether our system would work better as a whole if we
went more to the British style?
Judge Harris: I think I must yield to you with respect to aspects such as discovery
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of the British system. I just have no familiarity with that. I am troubled by the so-called
American rule as opposed to the British rule on costs and attorney’s fees in our court system. I
think that we would be helped very significantly in the overload of cases, including many of
which are frivolous and brought with the objective of achieving some sort of a nuisance
settlement value. I think that if we could assess costs against the losing party, we could get rid of
a lot of unwanted and undeserving litigation in this country.
Mr; Ross: So it might be something that some state might try in an exploratory
way.
Judge Harris: I would hope so.
Mr. Ross: They haven’t so far as far as I know. And that would be an approach
to dealing with the problem of overwork and overload in the court systems I suppose.
Judge Harris: Yes it would.
Mr. Ross: And because it seems that state legislatures and Congress are probably
never going to be willing to fund courts in the way in which judges would think was ample and
adequate.
Judge Harris: Well, I think the federal court system is probably funded adequately
— not ideally — but adequately, and I have no real personal knowledge of funding of state court
systems.
Mr. Ross: Well, you were in the equivalent of a state court system.
Judge Harris: But the funding was federal.
Mr. Ross: Right. That’s true. How about law school, law teaching, law training?
Judge Harris: I tend to defer to the academics in areas like that. I went to the
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University of Virginia Law School. Thought they did a marvelous job down there. I’ve had very
little exposure to other schools and have never gotten much into academia at all. And the Bar
Association of the District of Columbia was a voluntary bar and I’m sure you have seen some of
those wonderful photographs back from the ’30s and ’40s when one montage could show all 350
members of the bar and everybody knew everybody and everybody’s word was their bond and it
was a wonderful fraternity. There still were not that many members of the bar when I started
practicing in 1953: It became apparent as the bar grew that there were needs — in particular, in
the area of lawyer discipline and whether a lawyer might have a drinking or a drug problem and
needed to have the public protected from that particular lawyer. A better mechanism and what
the voluntary Bar Association of the District of Columbia was among the entities looking into
was the creation of what is often referred to as integrated or mandatory bar. I happened to have
been made chairman of what was called the Bar Association’s Committee on the Integrated Bar,
which I hasten to add had nothing to do with race but had to do with a mandatory bar, and then
the District of Columbia Bar was created to which every lawyer who wishes to practice in the
District of Columbia must belong. So, when I left the District of Columbia Court of Appeals
after serving nine and one-half years on that court, the District of Columbia Bar, the mandatory
bar, integrated bar, if you would, presented me with a Distinguished Service Award. The Bar
Association of the District of Columbia is something in which I had been active, as I indicated,
with that one committee chairmanship among other things and in addition to giving me the
Lawyer of the Year award in 1982, they also very graciously gave me an award for a
Distinguished Career in 1996. I went to the Landon School in Bethesda for seventh, eighth and
ninth grades. Later served on the Board of Trustees at Landon on a couple of occasions. In the
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late 1980s, I think it was, I was honored to receive the Distinguished Alumnus Award from
Landon School. I had never been active in the District of Columbia Bar, the integrated bar, if
you would, because by the time it was created I had become a judge. With respect to the bar
association, I had served on committees. I have been an officer of the bar association and served
on its Board of Directors. I had the honor of serving as President of the Lawyers Club of
Washington, D.C., which is purely a social organization for lawyers that has no useful function
whatsoever beyond getting together like-minded folks who enjoy each other’s company and it’s a
pretty good group. I was an officer and member of the Executive Committee of the Barristers,
another comparable organization.
I have enjoyed my career a great deal. As I indicated in one of our early sessions, I really
was quite reluctant to leave Hogan & Hartson when I was asked on a number of occasions to go
on the Superior Court when it was created. I have developed concern about the future oft.lie
federal judiciary. I think the federal judiciary through the years has served the country
extraordinarily well and attracted extremely capable people. When I went on the bench, I took a
60 percent income cut and if anything, I think the differential has become aggravated through the
years instead of alleviated and it gives me concern as to the quality of people who are willing to
become judges because no judiciary can be any better than the ability of the people who are in it.
A number of years ago, Congress created a Quadrennial Commission which was
supposed to look at judicial salaries and Congressional salaries and executive salaries and
provide for their keeping up with inflation, but that floundered on Congress’ persistent
unwillingness for political reasons to vote itself pay increases and judges’ pay is tied to
Congressional pay. So if you look at what has happened to the federal judiciary in the last 25
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years, that’s a rough estimate of time, you have gone from having, almost without exception,
really outstanding members of the bar going into the federal judiciary at a later stage of their
career now to having a very significant percentage of people going into the federal judiciary for
whom it’s a promotion from an income standpoint to accept a federal judgeship rather than a cut.
Unfortunately, I think the selection of judges has become more politicized than I would like to
see it. I think the Bork situation was a disaster. Clarence Thomas’ confirmation hearing I
thought was a very sad situation. Now you have the Senate Judiciary Committee declining to
hold hearings on extraordinarily talented people like John Roberts and Miguel Estrada whose
qualifications to be superb federal judges are beyond question, but because they are not liberal
they are not being processed by the Senate Judiciary Committee. I was interested in listening the
other day to Senator James Jeffords from Vermont who left the Republican Party, which had the
rather remarkable effect of giving the Democrats control of the Senate, including the Judiciary
Committee. But the other day was the one year anniversary of Jim Jeffords having left the
Republican Party and giving control of the Senate to the Democrats and then having a to-do
about that, and I guess it sticks in my mind so clearly that as a part of his comments when he
accepted everyone’s compliments he turned to Pat Leahy, the Chairman and other Senator from
Vermont and Chairman of the Judiciary Committee, and said, “Pat, just keep picking those
judges.” Well, we have a Constitution and it is up to the President of the United States to pick
judges. I think any court is well served by having a mix of people on it. That is our system. If
we have a Democrat as the President, you are going to have people who politically are attuned to
the people selecting the judges, so you end up with a mixture of people who are Democrats and
people who are Republicans because everybody has some views on the issues facing our society
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and our country, but good judges leave those thoughts behind when they walk into the
courtroom. I mentioned earlier when I had tough problems and wanted to be sure I wasn’t going
astray, I would go to Aubrey Robinson, Gary Gesell and John Pratt for guidance. Well, they
were all Democrats. I happen to be a Republican. But when it came to judging, we all viewed
ourselves as judges. Any political attitudes we had were left behind when we went in the
courtroom. But unfortunately politics have come more into play than I like to see in the judicial
selection process and recently in the confirmation process.