Abner Mikva Text of Interview Only (October 28, 1997)

This is the eighth int?ryiew of Abner Mikva in the taking of his oral history as part of the
Oral History Project of the Historical Society of the District of Columbia Circuit. The interview
is being taken at Shea & Gardner by Stephen J. Pollak on Tuesday, October 28, 1997. The
persons present are Judge Milcva and Steve Pollak.
Mr. Pollak: Good morning, Judge Milcva. It’s a pleasure to see you; you have a Midwest
color to your face.
Judge Mikva: I do?
Mr. Pollak: We had concluded at the last session with some comments of the standards
you applied in recusing yourself, and I don’t see a need to reraise that subject and I’m sure you
don’t quite remember the precises of what you said. Unless there was something in your mind
about recusal, I’ll move to a new area
When you became a federal judge and thereafter, what did you find your experience was
with your personal friends? Did they change? Did they remain the same, and who would you
identify as people you knew throughout your judicial service as your personal friends?
Judge Mikva: The change was my relationship with lawyers. I’d had some good friends
among the bar, the Washington bar, while I was in Congress; and when I went on the bench, I
realized, and as I thought about it, was … I’m sure it happens with every judge … there was a
sometimes subtle and sometimes abrupt influence/change in the way the relationship continued.
Many of them had matters in the federal courts. They weren’t quite as free to talk about them
when I was on the bench Sometimes, if they didn’t, their firm had involvements and it … I,
myself, started imposing sort of restrictions on who I would have lunch with If it was somebody
from a big firm, I would try not to do it during the sitting period or try to make sure there were –
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other people around. I simply did not want some other opposing lawyer to see me sitting with a
partner at Shea & Gardner, ?d the next day somebody else is arguing a case before me. So then
I found that, and I don’t know whether that was our court, I think not, I think it has to do with the
nature of judicial work, but I never developed the kind of really close intimate friends that I had
when I was in Congress.
Mr. Pollak: Among your peers?
Judge Mikva: Among my peers. Most of the other judges, the relationships with them,
we had lunch together once in awhile, have an occasional court social event, but it was not the
kind of camaraderie that I was used to in the Congress.
Mr. Pollak: Did you … do you have a different view respecting the District judges? Do
you think they have a camaraderie?
Judge Mikva: No, I think it’s the same kind of a problem The judge’s work is so
uniquely alone. A District judge does most of his work alone. A Court of Appeals judge, aside
from the oral argument and the conference, does most of his work alone. And, even on the
opinions, even after the conference, almost everything is done by mail, by written word or, at the
best, telephone conversation. But it’s very seldom that the judge will go back and talk to a
colleague about a case after there has been a conference on it. The District judges had lunch
together – that was the one break – and I would sometimes go to the lunch room I found that
while I would do it every once in awhile just to show the flag, especially when I was chief judge;
it either did or should have chilled their conversation because frequently they would be talking
about cases that were happening, and many of those ended up coming up on appeal.
Mr. Pollak: Did you find that friendships such as they were with members of your court
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cut across lines which were at least identifiable, if not certain, between more hberal or more
conservative judges?
Judge Mikva: I think so. Jim Buckley and I had a very good personal relationship.
Again, we didn’t do a lot of socializing together, but I was very fond of him and his wife Ann;
and when we weren’t disagreeing about cases, lfound our relationship very pleasant and, well, it
was pleasant even then, but I found we saw eye-to-eye on many, many things. It surprised me;
I’m sure it surprised him too. I became a great … I developed a great affection for George
MacKinnon, especially after I had served with him for a little while. I don’t know if you
remember him or not.
Mr. Pollak: I do, certainly.
Judge Mikva: He had an incredible bark … you know, he couldn’t say good morning
without sounding like he was barking at you, and this was really a very nice, gentle person that I
became very, very fond of after I realized that it was just a bark.
Mr. Pollak: Of course, you and he had in common the legislative background.
Judge Mikva: We did, and that helped a lot.
Mr. Pollak: What about outsiders from the court? You and your wife must have had a
constancy of friends. Did they carry on in the same way or did being a judge either promote or
interfere with those relationships?
Judge Mikva: The relationships that carried on the most vigorously were the
congressional relationships. I would see the Members of Congress that I had been friendly with
after I went on the bench. I still continued to play paddle ball and tennis with them and see them
socially. We probably, Zoe and I, saw them probably more than we saw anybody else. I started
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off every morning working out at the House gym, so that was a place I could keep up with them
Mr. Pollak: Do you \1/ant to name a few of those?
Judge Mik:va: Don Edwards, Bob Kastenmeyer, Phil Burton before he died, Don Fraser
before he went off and became Mayor of Minneapolis.
Mr. Pollak: That’s a very estimable group there.
Judge Mik:va: Wonderful people. We were all part of something that we called “The
Group” when I was in the Congress. I think there were 10 or 12 of us.
Mr. Pollak: The Democratic Study Group?
Judge Mik:va: No … no … no …
Mr. Pollak: Something different than that.
Judge Mik:va: No, this was much more … this was a smaller group. There were only
about 10 or 12 of us, and our common bond originally was our anti-war posture. Oh, one that I’m
forgetting is Ben Rosenthal who also died. But we were very close, not only on the war issues,
but on a lot of other things besides and from that we developed strong social relationships. In
fact, I still remember that Phil Burton was very insistent on wanting to keep the group as small as
possible so that we could relate to each other and not get institutionalized like the Democratic
Study Group or some of the others. I remember at one point, I think it was Ben Rosenthal, but
there may have been others, pushing to put Bella Abzug in as a member of the group when she
was in the House. Phil kept resisting saying, “You know, we just won’t be able to stay collegial.
If she comes in, she’ll blow up the meetings.” And she did.
Mr. Pollak: I see, she did come in and she did.
Judge Mik:va: She did come in, and she criticized us. Our agenda wasn’t doing enough
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things, and we weren’t being militant enough That was Bella’s style. That was one of the things
that made her a great Meml?er of Congress, but it sure was not good for collegiality. The
“Group” started to wane, and then members left, died, and it became a different kind of a
grouping. But, some of them like Edwards and Kastenmeyer and Rosenthal, I remained friends
with even after I went on the bench
Mr. Pollak: What newspapers and periodicals did you regularly read when you were on
the bench or television news programs or public affairs programs? One thing that has always
fascinated me is whether judges read and are influenced by, what I would call, major thrusts that
appear in fourth estate?
Judge Mikva: Well, while we were living here, of course, I read the Post every day. I
would see the New York Times relatively frequently. I lost my contact with the Chicago papers
after I left the Congress. When I was in Congress I would see the Tribune and the Chicago Sun
Times, but when I went to the court it was just too inconvenient to see them I’d see them during
the summer whenever we went back to the Dunes, but other than that I relied, for my news,
mostly on the Post and, to a lesser degree, the New York Times. I stopped watching the talking
head shows pretty much after I left Congress. I have a feeling that those can more subtly
influence a judge. That isn’t why I stopped watching them, I stopped because I really just got
tired of the same pundits propounding the same expertise week after week after week; and since I
wasn’t doing policy making anymore, I just sort of lost my enthusiasm for it. So I pretty much
stopped watching the Sunday shows.
Mr. Pollak: And why do you think they can more subtly influence the judge?
Judge Mikva: Because they will have more engagement on an issue. There will be, you
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know, thrusts and parries; and there will be several people talking about the issue. It frequently
will be more extensive on iμi. issue than a newspaper story, for example. And, again, that wasn’t
why I stopped watching them; but there were a couple times when I would flip on a show I would
see something on an issue that I was involved in and somehow it didn’t seem right. These were
clearly advocates, these were not newscasters. They were expressing a point of view and
somehow, I don’t know why, I would have had no problems reading law review articles or even
magazine articles expressing similar points of view; but there seemed something almost
invidious about my being influenced by a television show where some advocates were proposing
or stating their points of view on an issue that I had before the court. I remember one
particularly, because this was some time after I had stopped watching the shows on a regular
basis. Ralph Nader was on a show, it was either Ralph Nader or Joan Claybrook, and it was just
about the time that I heard the seat belt case. There is nothing they could have said that would
have been new to me about their positions; they had been strong advocates when I was in the
Congress of automobile safety, and I knew that; and I don’t think they were saying anything
spectacular, but somehow it seemed inappropriate for me to be watching them, so I flipped it off.
Mr. Pollak: I asked you when we were beginning these interviews to identify ten or so of
your opinions that you thought were representative of the jurisprudence that you left for posterity
or were noteworthy for other reasons or were representative of other aspects of your service that
you thought would make this oral history more informative. You gave me a handwritten list, I
think, in your writing which I will attach to the transcript. I will also attach copies of the
opinions that have been xeroxed from the West Reporters. What I thought was that at this
juncture I have studied nine of twelve, and I’ve organized them from the earliest one to the latest.
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I do have some questions about them, but in the main I know there may be things you wish to say
about them
The first one is United States v. Foskey, a decision of the United States Court of Appeals
for the D.C. Circuit, argued May 1980, decided smartly thereafter on August of 1980; and the
cite for our record is 636 F.2d 517. It was a decision of yourself writing the opinion for a court
composed of Circuit Judge Robb and sitting by designation Judge Gesell; and I’m going to lay it
down in front of you. I think you might refer to what it’s about. It is a search and seizure review
in connection with the outcome of a criminal proceeding. I want to ask you for starters what led
you to select this 17-year-old decision on a fine point of admissible evidence of a prior arrest and
a criminal prosecution?
Judge Mikva: Well, I think it was one of my more successful effo11s and also a good
example of how a collegial court, a multi-member court, reacts to each other. It isn’t the case
where everybody comes in, as many lawyers think, and, unfortunately, sometimes appears to be
the case when you’re reading opinions, that every judge marches into oral argument with a fixed
view of some important question of law, that nothing that is said in oral argument or nothing that
will be said by the other judges will influence that point of view. This was a case where my two
colleagues, one was Judge Gesell who was considered one of the best of the trial judges that we
had in Washington. (Later on, I think Judge Wald initiated the practice not to ask District judges
from our court to sit with us anymore and this was an example of why.) Judge Gesell clearly
agreed with me that there had been error. Clearly in the normal course of events, I don’t
remember what the other cases were that were being heard, but Judge Robb as a senior judge
probably would have assigned this case to Judge Gesell. This was Judge Gesell’s bailiwick, he
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dealt with evidentiary questions every day of the week. I’m an appellate judge. By the time I’d
come on the court, we didn’t have that much criminal practice anymore, it was something that
Judge Gesell could have written with more expertise. But Judge Gesell made it clear that he
preferred not to write the opinion, even though he agreed with me, because it meant reversing
one of his colleagues; and that was a very uncomfortable feeling. That’s why Judge Wald (and I
continued the practice when I was Chief Judge) stopped ask.ing District judges from our court to
come sit with us. It was just too big a strain to ask them to sit in review of their colleagues. The
other thing that fascinated me was that I had a strong feeling that sections 403 and 404 of the
Rules of Evidence are almost the touchstones of what should be admissible and that a trial judge
should always be looking at evidence that the prosecution proposes somewhat askance if it deals
with prior activities that are bad or anything that could possibly influence the jury beyond the
facts of the case. I think Judge Robb started out with almost an opposite presumption, that is,
that the prosecution should win these cases, that you don’t look for hypertechnical interpretations
of two statutes that were passed a long time ago as part of the Rules of Evidence, neither of
which Congress probably wouldn’t pass today. I’d be the first to admit that if you asked this
Congress, or even Congress when I was there, to pass an exclusionary rule of any k.ind, they
probably wouldn’t do it. Sections 403 and 404, as you remember, are pretty strong statements of
what the policy-makers thought should be the elements of a fair trial. Anyway, it was interesting
to see how I came in, as I said, with a very strong view that the judge had erred in admitting this
evidence. I think that’s where Judge Gesell would have started out. I think Judge Robb, if
anything, was probably leaning the other way. We were dealing with the work of a competent
trial judge who didn’t make a lot of errors. She was not reversed a lot.
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Mr. Pollak: That was June Green?
Judge Mikva: June Green. And it was interesting to see the group dynamics. First, as to
the oral argument, the defendant’s lawyer, and I don’t remember who argued it anymore, but he or
she did an excellent job. The government lawyer was not as effective.
Mr. Pollak: Ed Willheit for the appellant and Tom Hill, an Assistant United States
Attorney, with whom, interestingly, the U.S. Attorney then was Chuck Ruff. That is an
interesting lineup- and John Terry, who went on to our District of Columbia Court of Appeals.
Judge Mikva: Yes, this is 17 years ago; but I remember at the time being impressed with
the appellant’s lawyer, the defendant’s lawyer, and not as impressed with the U.S. Attorney’s
argument, who sort of said, “well, I didn’t try the case, we do it all the time,” boilerplate
arguments that didn’t carry any weight. But, as I said, partly the oral argument and then partly the
discussion in conference determined the outcome, I have to give the late Judge Gesell the credit
for persuading the late Judge Robb that this went over the line, that this really was prejudicial
error and could have tilted the jury that otherwise might have come in with a not guilty verdict.
At that point I ended up with this as one of my first criminal law opinions. I’d only gone on the
court that previous fall. It was a fairly important one at the time; it’s certainly not one of the
seminal cases about exclusion of evidence, but on the other hand it did send a message to the
U.S. Attorney and to the trial judges that those exclusionary rules were going to be looked at and
were going to be treated seriously by the Court of Appeals and they should look at them carefully
when they’re deciding whether to admit prior conduct.
Mr. Pollak: It’s your recollection, then, that the role of a competent District judge was
quite significant in the outcome of this conference?
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Judge Mikva: Oh yes, absolutely. Agam, maybe that dictated our keeping District judges
in the mix. We stopped using visiting judges altogether after awhile, but I think that after we
stopped using our own District judges we still did bring in District judges from other areas, from
other courts; and it was just that there was this clear problem that the District judge had ifhe or
she was asked to review the work of colleagues on the sitting court.
Mr. Pollak: Contents of a paper bag were taped to the gas pipe of a car, and the question
was whether that was evidence that was admissible; and the other issue was whether the District
judge had properly admitted some post-arrest statements.
Judge Mikva: Right.
Mr. Pollak: This was very early in your career on the bench Do you recall that, as you
sat on that bench for many years after that, these exclusionary rules came up before you later and
that you applied the same standards? I don’t know whether a judge would have recollections of
that kind. Each case is different.
Judge Mikva: What I remember is that we did have other cases where there was prior
conduct evidence, and I was not successful in other cases. I don’t even remember if I dissented in
some of them, but I remember there were a couple of instances where at least I started out being
concerned that the tilting that we did in Foskey in favor of the defendant on 403 and 404 was not
being done in some of the later cases. I would think that the current state of jurisprudence as far
as these sections are concerned is that their impact has been tempered somewhat by subsequent
opinions. Foskey was never overruled and certamly was not challenged by any other panel that I
recall, but I know on a couple of occasions where I tried to … I started out thinking …
Mr. Pollak: This was a place where Foskey ought to govern?
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Judge Mikva: I couldn’t persuade my colleagues that it did.
Mr. Pollak: Did yQlJ., in your chambers, maintain a filing system which would pull back
to your attention, for example, when a 403, 404 evidentiary issue arose, your prior opinion on
that?
Judge Mikva: Yes, and it was modestly orderly. Actually, I got my best index just as I
was leaving the court. A volunteer intern came in, and she did a marvelous indexing and crossindexing.
The problem was that even though I tried to index them by subject matter, if you don’t
have the proper cross-indexing, the issue doesn’t always come up with the same rubric that it did
in the previous case. I didn’t always have enough cross-indexing to be able to go back. At least
on the important issues, I was able to remember the cases where I had either written or opined
differently. The clerks were very good about that. When a case would come in and they would
start preparing the bench memo for oral argument, they would go back and see what other cases I
had sat on that were at all close to the current case.
Mr. Pollak: It’s a custom that I follow as best I can in presenting a case to the court of
appeals. The procedures of the court now – they changed during my time practicing before that
court – are that you know the panel quite early. As you prepare your papers or at least prepare
for oral argument, I try to pull up all the cases that would be relevant to the judges who sit there.
Judge Mikva: Of course. This was Justice Scalia’s contribution to our procedures. We
had, as you indicated, when I came on the court the panels were not disclosed until, I think, the
day of argument.
Mr. Pollak: Right, you went and read the sheet that was out in front of the court.
Judge Mikva: Right. We discussed it at a judges’ meeting one time, and then Judge
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Scalia said, ”Why shouldn’t we let the lawyers know who the judges are, as long as we don’t give
them continuances. They have to understand, they can’t do any shopping if they don’t like the
panel.” I remember one of the judges, I don’t know who, said, ‘Well, if they know what the
panel is they may … ,” and he tried to stop himself in the middle; he couldn’t and he said, ”I guess
they might settle the appeal.” [Laughs] ”Nino” said, “So, isn’t that something we should
encourage?” And I think he was right. I think that first of all the lawyers did tailor their
arguments to the judges and I don’t think that was bad, and secondly they did, on some occasions,
if they felt it was a bad panel from their point of view, work out a settlement.
Mr. Pollak: Dovetails with the current ADR procedure.
Judge Mik:va: That’s right, that’s right.
Mr. Pollak: Well, I suppose the trends fostered by the dominant judges on evidence
admissibility and suppression on the Supreme Court is to narrow the scope of these rules?
Judge Mikva: And that has to have an influence on the jurisprudence of an intermediate
court. When you know that the Supreme Court, even if they have not overturned any of their
earlier precedents on the exclusionary rules, that they’ve clearly combined them and made their
application narrower and you know there is agitation in Congress to overturn the basic
exclusionary rules and even talk about trying to do a constitutional amendment to get rid of
Miranda or whatever. It just has a subtle influence on an intermediate court and, clearly, in my
mind and I’m sure in my colleagues minds as we would look at some of these cases involving
exclusionary rules, “Do we really want to send up a soft curve for the Supreme Court to hit out of
the ballpark and also narrow the exclusionary rules even further?” I certainly didn’t, and I think
that was true of some of my colleagues.
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Mr. Pollak: I can’t resist a momentary digression. You mentioned the subtle influence,
and it leads me to ask you whether you think the current public efforts of leading conservatives to
float the idea of impeaching federal judges has much reach into the decisions judges are making.
Judge Mikva: Absolutely. Even ifno impeachment proceedings are commenced, the
mere fact that they’re being contemplated or, I guess, Congressman Delay may have actually
introduced some resolutions, some proposals for impeachment of some judges, I’m not sure. Just
the constant news coverage of Congressman Delay’s charge against the federal judiciary that
they’re doing all of the terrible things and that he’s going to impeach some of them has an effect
on the way judges behave. It’s asking the impossible for judges to be that impervious to public
influence and public criticism. A Chicago columnist once said that about the Supreme Court a
long time ago. ”The Constitution may follow the flag,” which was a big controversy at the time
whether the Constitution had extra-territorial effect, ”but the Supreme Court follows the election
returns.” And, it’s a fact of life. I don’t think the day after the election the Supreme Court
Justices sit down and say, “Okay, we’ve got to do so and so and so and so and so and so.” But
the influence of what the people have said in an election does fashion a milieu in which all
judges operate and the influence of what the policymakers in Congress say, let alone do, does
fashion a milieu for intermediate court and Supreme Court judges. I think the classic case is the
incident involving Judge Harold Baer in New York shortly before the 1996 election. I don’t think
we’ve covered this.
Mr. Pollak: No, we have not.
Judge Mik:va: You might recall the case involved his excluding some evidence because
he said that the only probable cause for police stopping this woman and searching her car was
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that she ran away. In his first opinion … this is roughly what the facts were. In his first opinion
he said, “It’s well known that people living in ghetto neighborhoods run away from police
because they have reason to run away; the police are very threatening to them, very dangerous,”
and he excluded the evidence and threw out the arrest, which meant this person would go free.
The prosecutor filed a motion for trial reconsideration or whatever; but the news hit of Judge
Baer’s first decision (he wrote an opinion, always a mistake when you write a long opinion about
a controversial subject like that; you’re leaving yourself open to criticism) and the New York
papers had a field day with him Judge Baer threw out this dead bang arrest because in his
opinion the police intimidated ghetto residents. It crune up in about the spring of ’96 and that
srune day, Mike McCurry, the ‘White House Press Secretar;, was asked about Judge Baer’s
decision in his session with the press that day. He said the President was thinking about asking
for Judge Baer’s resignation, and it just blew it up. I heard it, saw it over the wire, heard it over
the radio or something; I immediately called up Jack Quinn, my successor, and said, “My God,
what’s going on there?” And he said, “We’re trying to control it, I’ve talked to McCurry.” Mike
McCurry is not a lawyer. Quinn said, “when I called him, before I could even tell him what I was
calling about, he said, ‘I stuck my foot way down in my mouth, didn’t I?'” Quinn said, “You sure
as heck did.” Well, what I suspect happened, this being an election year, is that the President
looked at the clips early that morning and saw this big story about this federal judge. I guess I’ve
heard this from one of the people that was there that morning, and it probably was their Cbief-ofStaff
Panetta and McCurry and the President who usually went over the clips at 6:00-6:30 in the
morning to sort of plan the day as to what they would have to respond to. The President read that
clip and slammed it down and said, “There’s the Willy Horton of this campaign.” I should add
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that Judge Baer was a Clinton appointee. Well, Mccurry, not being a lawyer, misread or
overreact what the President was saying and came out with this resignation thing. He
immediately backpedaled and said, “No, well we were just criticizing it, but we don’t, we
certainly aren’t going to ask for his resignation.” Unfortunately, for the concerns that I’m
expressing, Judge Baer reconsidered and reversed himself. Now, he may have had all the reasons
in the world, legitimate reasons, for reversing himself; and I’m sure that he thinks so and I’m sure
that whatever the opinion was in which he reversed himself recites those reasons. Whether it’s
the evidence or that the evidence wasn’t as strong as he thought against the police or whatever,
the message that went out from that whole incident to every other judge in the system, not only
the federal system but everywhere, is this is what can happen to you if you get too far out on a
limb in these criminal cases; and I think that’s unfortunate.
Mr. Pollak: I maintained a friendship with Judge Gesell who had been my mentor at
Covington & Burling. Judge Gesell who, despite a position on the bench that was highly
respected and impregnable to vagaries of public opinion, I think, often expressed the need of the
judiciary to have the organized bars protecting the judiciary, that the judges cannot argue their
own matters in the courts of public opinion.
Judge Mikva: I think that he was absolutely right, and I think that’s why something like
President Clinton’s supposed state of mind, which McCurry then insisted really wasn’t his state of
mind, makes judges so vulnerable. There was nothing that Judge Baer could do at that point to
defend himself. And, indeed what he did do, not to defend himself, but to proceed with the case,
sent out, I’m sure what he considers a very unfortunate signal, if I’m right that it was a signal. He
certainly doesn’t want federal judges to put their finger in the wind to decide which way a
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criminal case should be decided. But Judge Gesell was right: judges cannot defend themselves,
and if the bar doesn’t do it ?c;l if elected public officials who should know better, like party
leaders in the Congress, start criticizing the judges for their individual decisions in a way that
threatens their security and their willingness to stand up, that’s a very troublesome event.
Mr. Pollak: The next case is called Big Mama Rag v. The United States, an appeal from
an order of Judge Sirica granting summary judgment to defendants in upholding the Internal
Revenue Service’s rejection of an application for tax-exempt status. You were sitting in this case
with Judge Tamm and Judge Spottswood Robinson; and you wrote the opinion for the court
which was unanimous. There were considerations of constitutional law, and it was a denial of a
feminist-oriented non-profit organization’s application for tax-exemption. The case was argued
and decided in 1980, close by the Foskey case in time, and is reported at 631 F.2d 1030. Again,
after you’ve had a chance to look at it a bit, I’m interested in what led you to select that opinion
and what you think the decision represents as a reflection of your own jurisprudence and
decisionmaking.
Judge Mikva: I think it was one of my first First Amendment cases that I wrote on. I’m
trying to remember; I wrote on two that first year, and in one of them I either lost the panel and
wrote a dissenting opinion or I was reversed by the Supreme Court. I don’t think it was this one,
I think this one held up; but again, it was a long time ago and I don’t remember. We might want
to check whether or not the Supreme Court looked at this again. The reason I included it was it
was the first time, as I said, that in my tenure I was asked to write in the First Amendment field
on something really important. We struck down a Treasury regulation as to what was and was
not educational because I thought that the term itself was incapable of constitutional definition
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under the First Amendment. I remember getting criticized after it came out by a couple of my
former professors, including i:py former tax professor, Walter Blum, who really thought that I had
given the Internal Revenue Service an incredibly impossible mission to try to frame a regulation
that did keep out some journals that weren’t entitled to tax-exempt status in order to try to force
them to rethink this issue of what is and what is not educational. I remember, in fact, there were
even a couple of law review articles criticizing the case. The women’s movement and the gay
movement, of course, were enthusiastic about it; it was a big victory for them But I remember
some law review articles criticized it, again because the thrust of the decision really was to tell
the IRS that they had to do it over again as to the regulation, but not really giving them any clues
as to how to do it. I still don’t know how you can fashion a regulation that would allow
something like Big Mama Rag in and keep out other stuff that really is outside the pale, and I
think I said that. I marked this paragraph:
We are not unmindful of the burden involved in reformulating the
definition of educational to conform to the First Amendment
requirements, but the difficulty of the task neither lessens its
importance nor warrants its avoidance.
This is a polite way of saying, “that’s your problem” [Laughing]
Mr. Pollak: Did you think that you could recall or refresh your recollection by looking at
who argued it or briefed it that the briefs were useful or more than useful in providing a basis for
the conclusion that you reached?
Judge Mikva: I seem to recall that this was both well briefed and well argued; but I can’t,
looking over the names here, there are some very prominent names, but I don’t remember who
actually did the arguing, and I don’t know who really wrote the brief. It would look like Robert
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Jenkins wrote it for the appellant and Robert Bernstein of the DOJ wrote it for the IRS. Again,
it’s hard to tell, especially on ? case like this where Treasury would not normally have much input
into the appellate briefs. It would be somebody from the Department of Justice. It could be that
somebody with tax experience would look at it mostly from a practical point of view. It could be
somebody who was more steeped in constitutional problems and concerns, but I have this vague
recollection that it was well briefed and lawyered.
Mr. Pollak: There are a lot of footnotes in the opinion. I wondered if possibly that was
influenced by Judge Robinson being on the panel?
Judge Mikva: Partly, but it was also before I had evolved my policy against footnotes in
opinions; that happened about two years later.
Mr. Pollak: Is that right?
Judge Mikva: Right. I should be able to remember who the clerks were because that was
one of my stories.
Mr. Pollak: As an opinion writer, what did you think excluding the footnotes served?
Was your message in the opinion clearer in that you had to decide issues in the text and not have
cavils in the footnote?
Judge Mikva: That is exactly why, as far as I’m concerned. There were a couple of nuts
and bolts reasons for doing it, but the main reason was that it forced me, and my clerks, to
consider whether we were off on some kind of a tangent or was this really essential to deciding
this case. If it was essential to deciding this case, then it should go in the text. And, when it was
one of those borderline forays, I cut them out completely. It pleased me that other judges picked
it up or at least, with the exception of Judge Robinson, were influenced by my strong urgings in
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this matter to cut back on footnotes. I remember this was in the late 80s or perhaps even early
90s, somebody looked at the number of pages we had turned out and there had actually been a
decline in the first few years in the length of pages per opinion after I started my policy and Judge
Buckley sort of took it up and others sort of cut back if they didn’t cut them out completely.
Justice Breyer, who was then Judge Breyer of the First Circuit, and I did this together at the same
time. We had had lunch with the late Justice Arthur Goldberg, and he had told us his strong
views that footnotes were just terrible to opinion writing because they allowed you to go off into
all the forays and, of course, the famous one is footnote 4 in Carolene Products, which has
nothing to do with dried milk, but has become a very important piece of doctrinal law in the
Supreme Court and in the country. It’s so important that it should have been decided in a case
where it was really appropriate or, if it was appropriate in Carolene Products, it should have been
up in the text. I remember reading a law review article by one of the clerks who worked on the
case with Chief Justice Stone. The clerk suggested that it may not have been given the full
review of the other justices that it would have been given if it had been up in the text of the
opinion as opposed to a footnote. So Judge Breyer told me that when he cut back on footnotes
and cut them out of his opinions, he noticed that his own opinions were shorter and the opinions
of the other judges on the court were being cut back. Again, there is a limit to how far you can
go with what was my strong but still a personal view. Judges on a panel don’t usually rewrite the
opinions of the majority judge who is writing an opinion if they are going to concur. You either
concur or you don’t. I mean sometimes you write a separate concurring opinion, but you don’t
usually respond to the draft by saying, “Why don’t you take out all those footnotes.” So,
whatever influence my decision had, as far as footnotes are concerned, was more subtle as far as
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the other judges are concerned. But every once in a while when a draft would come around, one
of the other judges would say, ‘Well, now I know you don’t like footnotes, but I think we needed
to cover these other subjects or else we’re going to be open to criticism” Judge Robinson never
conceded the necessity for explaining his footnotes. He felt as strongly the need for putting them
in as I felt for keeping them out.
Mr. Pollak: You recounted in the opinion, in connection with the applicant for exemption
who published a newsletter or paper that had articles respecting lesbianism, that the applicant had
established that it was educational, and that the IRS officials apparently had advised the counsel
that the exemption could be approved only if the organization agreed to abstain from advocating
homosexuality, and that this action went beyond what you thought the First Amendment could
permit.
Judge Mikva: It’s one of these troubles that the IRS and others have in trying to
determine – the Federal Election Commission has had its share of problems with this – if an
organization is not-for-profit, even though it engages in some advocacy, does it become an
advocacy group and, therefore, not entitled to not-for-profit status? If it’s the Democratic
National Committee, you can’t deduct your contnbutions to the DNC, but it’s a fine line.
Churches certainly engage in advocacy positions. I don’t think the IRS will propose to take away
their tax exemption.
Mr. Pollak: I noted a question as to whether you would view a decision you made as an
activist decision. There’s so much pressure these days, it has relation to your comments about
Judge Baer, but so much pressure corning from the more conservative side saying that we can’t
have activist judges on the bench How do you see this decision through that lens?
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Judge Mikva: Had I come up for any further confirmation hearings, of any kind either
because of elevation to the_ S\lpreme Court or because I went some place else in government,
that’s the kind of case that some staffer on the Senate would have hauled out and said, “See this is
an example of an activist judge.” I think I could have and would have defended myself and
probably there would be a limit to how far the critics could go on that because most of the
present difficulties are being encountered by organizations on the far right.
Mr. Pollak: Who cannot get tax exemptions?
Judge Mikva: Who can’t get tax exemption or who, because of tax exemption, are being
threatened because of their advocacy. I think that it would temper the criticism on that particular
case. The legitimacy of criticism, though, is that whenever a judge uses the Constitution to strike
down an executive or a legislative action, it is hauling out the maximum blunderbuss. It is the
judge saying, ”I don’t care what the popular branch of government has said; I don’t care what the
duly elected national executive branch has said; this is my rock, my sword, my shield; and I
strike it down.” Judges should not do that too often and should not do that without thinking
about it.
Mr. Pollak: The next decision is Liquor Salesmen Union v. NRLB, decided in March of
1981, another early decision; and it was decision for a court of Judge Tamm, Judge Robb and
yourself. Again, a unanimous decision of the panel. The union had filed a petition for review of
orders of the NRLB. There had been appeals from decisions of the NRLB in two cases, and there
was a race to the courthouse, and the unions had, in each of the cases, pretty well completely
prevailed but sought on minor matters to appeal, so they go to the court that might be better for
them than the court the management chose. The question came down to use of 28 U.S.C.
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§ 2112(a), which permitted the court in which the cases were consolidated to retransfer for, and I
think I’m quoting the language of the statute, “for the convenience of the parties in the interest of
justice” I’m interested in both why you selected that decision and what you think it means, and
also it’s a good platform for any comments you might make on your own view of forum shopping
among lawyers.
Judge Mikva: This is one that I think had a substantial practical effect. It wasn’t the only
opinion of the time that was whacking the forum shoppers, but it was a pretty strong opinion and
it got a lot of citation at the time as indicating – it certainly didn’t establish it or create new power
– but indicating the power that a court had to frustrate the efforts of forum shoppers. First of all
the labor unions don’t bring that many cases before the NI.RB anymore; neither does
management because it takes so long. They usually try to resolve their matters in other ways. In
1981, the view was pretty widely held among unions that some forums were more favorable for
union positions than others. We were considered one of the favorable forums, the D.C. Circuit.
The Seventh Circuit was beginning to get a reputation for being hostile to union matters. There
was just no question even though they couldn’t pick the panel, that they thought by getting it in a
particular court they’d have better chances than if it got into another court. They would go
through all kinds of gyrations to be the first to file, including the ones that the Union engaged in
here where they had a1most completely sustained their position before the Board. What they
were trying to appeal on was really just a technicality that they couldn’t have cared less about.
The only reason they wanted to appeal it was to get it in our court. So we said that was a bad
practice, and the section that you just quoted gave the judges authority to transfer it back or to put
it some place else, so as not to allow forum shoppers their due.
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Mr. Pollak: Do you think that it had an effect of leading lawyers who prevailed below in
administrative proceedings_ wpere this comparable race could occur, not to run the race?
Judge Mikva: It diminished it some. I don’t think that the races have ended completely,
but it diminished it some, for a lot of reasons. First of all, since we were considered a friendlyto-
labor court, for us to come down with that decision which hit the unions got a lot of attention.
Secondly, for a judge who was perceived to be friendly to labor interests when he had been in
Congress, for me to write in what I thought was pretty strong language at the time, I think sent a
message pretty strongly to the unions. They weren’t always the worst offenders, but they were
one of the worst offenders, because they were frequently national unions, and they knew which
court was likely to be friendly and which wasn’t. Frequently, this would be the only time that
that employer might have been before the Board, for example. Their lawyers would be less likely
to go through all the gyrations that you have to go through I don’t know that I’ve described it in
this opinion or not; I think I did, I know I did in a speech later on. The forum shopper had to
have somebody stationed at the NLRB office so that the moment that the decision comes down
he frantically signal waves somebody at a telephone who calls somebody in the D.C. Circuit to
put the petition on file. It was a complicated maze that they set up to run.
Mr. Pollak: Did you think that the provision of law that you relied on was an appropriate
one to transfer the case out?
Judge Mikva: I thought so. I thought that “promote justice,” or whatever that term is, is
broad enough to cover this. The decisional problem that I had within the case is that the forum
shoppers weren’t always wrong. It is true that our court had had more experience with labor
disputes perhaps than some of the other courts and that the majority of the judges were probably
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friendlier to union interests than on some other courts. I hope that didn’t mean that we would
decide a case in favor of the union when they didn’t deserve the win, but that the state of mind,
the viscera that go into judicial opinions, whether judges care to admit it or not, would be more
favorable to unions in the D.C. Circuit than they would be, say out in the Eighth Circuit, or
wherever. I thought the purpose of that section was to keep that kind of forum shopping from
happening. It isn’t promoting a good system of justice to let the litigants pick the court they want
review in. Better we should do something about these differences within the courts; between the
courts, and that is the Supreme Court’s responsibility. That’s why the Supreme Court is supposed
to resolve conflicts among the circuits.
Mr. Pollak: Did problems of this kind come up in your handling of your responsibilities
as Chief Judge of this Circuit?
Judge Mikva: Not really. By the time a case like this would get on the docket, this kind
of question would be recognized; it would already be sent out to a panel so that the Chief Judge
would have very little administrative responsibility for this kind of question.
Mr. Pollak: Were there ever discussions of this sort of thing in the United States Judicial
Conference?
Judge Mikva: There were discussions, I know, about the assignment of cases and
designating where a multistate case should be filed and so on. For a good part of the time that I
. .
was on the U.S. Judicial Conference. Judge Tom Hogan was head of the panel for the Judicial
Conference. He was very good, and he would occasionally report to us about some of the
pro blerns and the kinds of things that happen.
Mr. Pollak: I see – for multidistrict cases and the system which combines those cases into
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one case?
Judge Mikva: Right. While forum shopping is not directly related to multi-district cases,
it really is, because frequently the multi-district cases are examples of attempted forum shopping
by various lawyers.
Mr. Pollak: Next is Gray v. American Express Company, decided in 1984, a decision
which reviewed a ruling of Judge Harold Greene as to whether the credit card company which
had a right without notice to cancel could make its cancellation effective for transactions that had
fully taken place before the cardholder knew. You were the opinion writer for a court of Judge
Wilkey, yourself and Judge Bork. The cite is 743 F.2d 10. What led you to choose that
decision? How does it represent your jurisprudence? What do you recall of the role of the
judges you sat with? Were there negotiations about this, threat of dissent?
Judge Mikva: This is one of my favorite cases. I remember it very well. It involved a
law professor who had had substantial transactions with American Express, including a lot of
travel that he had done overseas. He was a consultant for various places, and American Express
then, probably still has, a plan where if you have a substantial balance, you can pay it down in
installments. They charge you interest while you pay it down. He had been paying down his
balance, and he received a large consulting fee and paid down a larger amount than was due at
that particular time. And, as computers are wont to do, instead of just recognizing that his
balance was smaller than it had to be, it threw him off the time track, and his balance was
perceived to be delinquent. On the occasion of either his 10th or 20th wedding anniversary, he
took his wife out for dinner to what was then a very pricey restaurant on Capitol Hill called
209½; a small intimate dining room, 15 or 20 tables were all that were there. They ordered their
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anniversary dinner and when it was finished he handed his American Express card to the maitre
d’ who came back a couple. minutes later with a pair of scissors and said, “I’ve been instructed to
destroy your card, it is invalid,” and he cut it up in the dining room This was the first that the
law professor knew that American Express had canceled his card. He brought suit, as law
professors sometimes do; and he hired a very good lawyer. I can’t remember who it was.
Mr. Pollak: His lawyer was Hubert Margolies.
Judge Mikva: The lawyering was very important here, and I don’t remember whether the
names that appear on the opinion were the actual lawyers involved. I do remember that he had a
very good lawyer in the Court of Appeals. American Express, as you would imagine, has a lot of
cases like that and they have, I don’t know if it’s house counsel or a young lawyer on retainer or
whatever, that handle these.
Mr. Pollak: Sort of like a collection case.
Judge Mikva: Standard operating procedure was to file a motion to dismiss or a motion
for summary judgment; that’s what I was looking at. I think it was a motion for summary
judgment.
Mr. Pollak: I think it was too.
Judge Mikva: Which Judge Greene granted. That should be the end of it. What they
didn’t realize was that they had a very angry law professor on the other side of this case. He
brought the appeal, and it was extremely well argued by his lawyer in our court. American
Express was still just going through the motions. I don’t remember that they had a bad argument,
but clearly the appellant’s lawyer dominated the argument. He pointed out the emotional distress
and so on. I don’t know whether I found out about this later, but along about that time, American
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Express began to realize that maybe they had goofed somehow and they talked about a settlement
and the law professor was j?t not interested at all. I mean he had blood in bis eye. Obviously, it
wasn’t money. It certainly wasn’t that he wanted his card reinstated, though they offered that
many times; he wanted vindication for the humiliation that they had caused him, and he got it
because the holding said that from there on, they could not cancel a card without notice. These
are contracts of adhesion, and there was a provision in there that said they could cancel. We said
under a contract of adhesion, you can’t apply that section against somebody. In addition, since it
requires notice, any transaction that has been completed before the notice has to be honored.
This really changed their modus operandi. Certainly, by the time my opinion came out,
American Express was very, very nervous about what this was going to do to their business, as
were the other credit card companies. I seem to remember they filed a petition for rehearing en
bane, they diddled around a lot of time debating about whether to take it up to try to get cert
granted. Obviously, there was little likelihood of the Supreme Court granting cert on what was
basically a very modest case even if the point of law that I was making was that important to
American Express. It still wasn’t so consequential that the Supreme Court would likely grant
cert. The dilemma for American Express was whether to add “cert denied” at the end of this
citation by taking it up or hopefully just pass it off as an errant opinion in the D.C. Circuit and
maybe not the law in the other Circuits in the country. They diddled; they asked for extra time
with us; and I think they even asked for extra time from the Supreme Court. Finally they decided
that they weren’t going to proceed any further, that they could adjust their credit card to
accommodate this change in law. But it has had an important effect on the way credit card
companies do business. But, I must say, it also is an example of where lawyering does make a
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difference.
Mr. Pollak: I notictd in looking at it that on page 18 you quoted a point that American
Express’ counsel made in oral argument. In catching up, American Express, I think, sort of
wanted to have it both ways. You quoted in the opinion from a decision in the New York State
court, ”Notice given pursuant to the escape clause in the contract did not terminate liability as to
obligations already accrued, but only as to liabilities thereafter accruing.” Th.en you said,
“Indeed, counsel for American Express made this point for us indirectly at oral argument when
he was asked whether based on his client’s interpretation of the without notice clause, American
Express was empowered to cancel the agreement retroactively and he answered yes; but he was
quick to add that his client would never take such action against a cardholder.” So, I thought it
was an interesting place to ask you how that fits into what the judges do at oral argument.
Technically, how did you retrieve what counsel had conceded in oral argument?
Judge Mikva: At the time there was a recording made of oral arguments that was
accessible to the judges. We have since allowed them to be printed up if either party requests
them They have to pay for it, and they get a copy of the transcript. In those days, you had to
actually listen to the recording. But I remember making notes about that particular piece of
dialogue with the attorney because he had really put his foot way deep down his client’s throat
when he answered, ”yes that they did have that power.” Frankly, it would have been a very
difficult answer to give for even the most experienced appellate lawyer, if the only answer you
can give is “retroactive is a color word and that isn’t what happened here. This was future credit,
this was credit that had not yet been agreed to because American Express hadn’t authorized it,” or
something like that. In any event, he played right into our hands. I’ve always felt that oral
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argument can make a difference and makes a difference in more cases than lawyers think it does
and even in more cases than judges think it does. There’s this notion that lawyers are thinking
that by the time you get up to oral argument, the judges have already made up their minds. Well,
that’s not really true. I think I and a lot of my colleagues try to keep our minds as open as
possible. We read everything, but I would not discuss the case with my other colleagues and
most judges behave that way. So that when we came to oral argument our minds were as open as
they could be, given the fact that the lawyers had each taken their best shot with the brief, but we
were trying to wait to see what they would had to say. The second thing that I think happens at
oral argument is that when it’s really lopsided, one side is really better than the other. Then all of
the points and contentions that the good arguers make get illumined and put in neon lights, and
the points in contradiction that the bad arguer makes sort of get buried. I just think that is what
oral argument is about so that a good oral argument can win a case. Now, can you really claim
that oral argument would have changed Brown v. Board of Education or Baker v. Carr? Not
likely, though as I recall there were some pretty good arguments in those cases. But the notion
that oral argument never makes a difference, I think, is a big mistake some lawyers make and
some judges make. I think oral argument is very important to the appellate process and it’s there
for a reason.
Mr. Pollak: Me too. As you went through this opinion, you noted that there was some
issue that the counsel hadn’t briefed over choice of law and you decided that issue and actually
came out where the parties had assumed that the case would be positioned for choice of law, but
you did identify it and …
Judge Mikva: Something they should have …
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Mr. Pollak: … you felt obliged to deal with.
Judge Mikva: I vagu?ly remember it. Was Judge Bork on that panel?
Mr. Pollak: Yes.
Judge Mikva: I vaguely remember it. There really was never any question about the
result. All three of us were agreed on the result. I think I remember him having a different fix on
the case, and I don’t even remember what it was. I honestly don’t remember why I even said
anything about choice oflaw. Would it have made any difference?
Mr. Pollak: No. The headnote said, “As regards state law issues, federal courts sitting in
the District of Columbia are not obligated to follow the Erie doctrine, but they nevertheless look
to District law for applicable choice of law principles and substantive law of decision to promote
uniformity, ensure proper deference to District laws.” I just had noted that you had made a point
of identifying, in a section called choice of law, that question.
Judge Mikva: I don’t think it was necessary to the holding, but it may have been in
response to one of the other judges who thought it was important.
Mr. Pollak: The ultimate point said, “Because American Express is a New York
corporation, we find sufficient basis for deferring to the parties’ choice oflaw. We, therefore,
look to the New York law to govern.”
The next case is called Andrews v. Wtlkins. We jump all the way up to ’91. It’s a
decision, a particularly sad event of an intoxicated man urinating outside of a public john and
upon being accosted by the Park Police dove into the Washington Channel and drowned. A
citizen in a boat was going to try to save the person, and the police cautioned the citizen not to do
so. There was a lawsuit by the family against the Park Police. It is an interesting outcome
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because of the court lineup. You were, by then, the Chief Judge; and D. H. Ginsburg and
Sentelle were the other judges on the panel. The opinion for the court was written by Judge
Sentelle, and you wrote a dissenting opinion. Among the issues were questions like negligent
interference with an attempt to rescue. I ask you, for openers, what led you to select this dissent
in obviously a tragic event but probably a small matter and whether there was a principle at stake
and also whether in such a matter it wasn’t possible for the court to reach unanimity?
Judge Mikva: First of all I’ll say, I don’t think there was evidence that he was drunk. I
think you just indicated that he was intoxicated.
Mr. Pollak: Yes, there’s a lot of talk about that.
Judge Mikva: They did a post-mortem and found that he had drugs in him, but they didn’t
know it at the time.
Mr. Pollak: The recounting in your opinion, I thought, indicated that there was .3
alcohol.
Judge Mik:va: They didn’t know that at the time. They did a post-mortem on him, and
they found that he had both intoxicants and drug residue.
Mr. Pollak: Well, the significant thing is, of course, not my reading of it but your own.
Judge Mikva: The reason I selected it and the reason I felt so strongly is by this time, by
’91 I had been on the court for twelve years. I’d learned that there were times when I would even
swallow my doubts to go along with a majority because the case would not be important enough
to warrant my doing something about it, and there were other times when I would just dissent in
a paragraph and sometimes not even that. It had to be something that I really felt was important
for some reason before I would take on the responsibility of writing a dissent and challenging my
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colleagues. I felt that this was that kind of a case for a variety of reasons. First of all, I really
was dismayed at the way I felt the panel rewrote the record.
Mr. Pollak: Yes, I did not put that into my precis of the case, and I thought this was …
wasn’t it a summary judgment grant against the drum.ant? I thought that the material fact in the
dispute aspect of it was worrisome.
Judge Mikva: Yes, because there was no evidence or at best disputed … in this one there
was no evidence that they knew that this young man was … that there was a warrant out for his
arrest. They did not know that.
Mr. Pollak: Yes, that’s clear. They did not.
Judge Mikva: They did not know that he took drugs, though Judge Sentelle indicated that
it turned out later that he was on drugs and intoxicants and, therefore, what difference did it make
if they didn’t know. My concern was that the case sent out such a bad message that I would put
forth a different message. It was that police departments ought to know that they have a
responsibility for people’s lives and that you don’t interfere with an attempt to rescue somebody.
You know, the police were standing on the shore. They had no capability of saving this kid. He
was a kid, he was 19, they had no capability of saving this kid. There’s this person in a rowboat
who’s ready to reach out, the kid is about to drown, he’s gasping in the water and they’re reaching
out to help him, this man and his wife; and the police stand on shore and say, “Stand clear, this is
a dangerous armed criminal,” or something like that. They did not know that he was armed; as
far as I know he wasn’t armed. They did not know that he was dangerous; we’ll never know
whether he was dangerous or not. They didn’t know that he was a criminal. He peed outside a
locked urinal. I don’t think that’s a felony even in the District of Columbia.
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Mr. Pollak: You describe rum as a misdemeanant.
Judge Mil<:va: A ?4emeanant. That’s all the police knew about this kid, and that he ran
away from them, which is also not a felony. I think that the message that I would have wanted
the court to send out is “You have a responsibility for this person’s life and you don’t interlere
with somebody else’s effort to save this life unless you have overwhelming reasons for it.” And,
they had none. So I felt it was a very important case. I brooded about it. I couldn’t believe that
two colleagues on a high court could see it so differently than I saw it. I just thought this was a
horrendous, callous approach to life that the Park Police took and that they should have been …
obviously, there is nothing that could bring the kid back. . I didn’t want to send the Park Police to
jail, but a civil judgment against them would send the right message.
Mr. Pollak: Is it an example, as well, of some argument over tort principles or is it
primarily a review of either appropriate or inappropriate granting of summary judgment?
Judge Mil<:va: As far as I’m concerned it isn’t that judges should never grant summary
judgment; but trial judges, before they grant summary judgment, are supposed to resolve all
doubts in favor of the movee. I didn’t think that Judge Lamberth had done that here. Secondly, I
really did think that there were some tort principles involved. Agam, it is hard to talk about tort
principles when you’re talking about law enforcement. Clearly, law enforcement needs and
concerns have to trump most tort principles.
Mr. Pollak: Your opinion said that you thought the majority had appropriately decided
several of the contentions of the plamtiffs, and then there was this esoteric doctrine of an
interlerence of an individual who had undertaken voluntarily to make a rescue.
Judge Mil<:va: That’s correct. Again, this is why I thought it was so important. It is an
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esoteric principle. It doesn’t normally come up in tort cases, but to my mind the overwhelming
social responsibility principle _is that the police should have a concern about people’s lives. For
the same reason .that we don’t condone police shooting perpetrators or alleged perpetrators
callously or negligently, we shouldn’t condone this. I thought that the police exhibited a totally
callous attitude about this kid’s life by interfering with the rescue and that that should have been
sufficient to trump the normal law enforcement concerns that were expressed.
Mr. Pollak: What explains what does appear to be the unwillingness of the majority
judges to apply the standard summary judgment rules which call for denying summary judgment
when a material fact is in dispute?
Judge Mi.?va: I think they have perceived this to be an inconsequential case that
somebody was trying to squeeze some money out of the Park Police and that this would break
down morale among the police. It would just be another one of these courts beating the police
over the head when they’re really trying to do their job, and that that just sort of overwhelmed the
procedural, almost technical, arguments that the appellants were making about the misuse of
summary judgment. Since I didn’t think it was a run-of-the-mill case, I thought that it was an
important message that we needed to send the police. I perceived it as much more than a
technical argument.
Mr. Pollak: Since so many cases in modem federal court practice do travel the summary
judgment route, I, as a lawyer litigating, have pretty strong views on the requirement for denying
summary judgment when real facts that are material are disputed.
Judge Mikva: You just put your finger on the two key words, material facts, are in
dispute in a lot of these cases. Are they real and relevant facts or is it some inconsequential
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dispute on which the case cannot tum? While I don’t know that Judge Sentelle who wrote the
opinion ever reached into bis. own thought processes that deeply to find out, I’m not a bleeding
heart on criminal justice, although this wasn’t a criminal justice case. I do have more sympathy
for the law enforcement arm than might appear from my activities in the civil liberties field. I am
concerned that law enforcement be allowed to do their job. I don’t think the court should unduly
interfere with it. But I trunk on this one, he just didn’t see this as a big case. I was shocked. This
shocked my conscience. That was the other reason I chose it. Justice Brennan used to state this
much more eloquently than I’m going to say it. Judges, and especially intermediate judges, have
to follow the law. We can’t ignore precedent. We can’t ignore the rule of law when it’s
applicable to a case. But neither can we ignore injustice. We shouldn’t be comfortable when we
come up with an unjust result, and I felt that the undisputed facts here indicated that the police
used bad judgment. Again, I thought that even my colleagues would agree that this was a case of
bad judgment. That being so, then we shouldn’t settle for it.
Mr. Pollak: It’s an interesting panel because.Judge Sentelle was a District judge and like
Judge Gesell, who you spoke about earlier, Judge Sentelle had experience addressing these
issues. It’s an interesting almost textbook example of different judges addressing a problem
Judge Mikva: And, again, because Judge Sentelle was a trial judge, and considered a
good one by the bar.
Mr. Pollak: Judge, you were speaking about a trial judge who’s been on the appellate
court, I guess.
Judge Mikva: A judge who’s been on the trial bench for awhile does understand the need
to have some discretion in granting summary judgment motions because there are a lot of
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complaints that shouldn’t go to trial. The mere fact, as I said before, that there’s some
inconsequential fact disput? involved or a fact dispute of dubious relevance, should not be
sufficient to defeat the motion for summary judgment because then all these cases would go on to
needless and expensive trials. Again, putting myself in Judge Sentelle’s shoes, that may have set
his thought processes in action in a different way than mine, since I never was a trial judge. I do
recognize that discretion that trial judges ought to have, but on the other hand, this one, it seemed
to me, was outside that discretion.
Mr. Pollak: I guess it could have been the split was grounded on whether the disputed
fact was a material fact.
Judge Mikva: It was on a material fact, exactly.
Mr. Pollak: The next case is the only case, I believe, in the group relating to the
Sentencing Guidelines and therefore, is quite interesting and is quite a recent decision. United
States v. Jones is an appeal after sentencing from a decision of Judge Thomas Penfield Jackson
and was particularly interesting because it’s an en bane decision, the first one you and I have
talked about of those you selected; and the opinion for the court is written by Judge Steve
Williams; and there are dissents written by yourself for Judges Wald, Edwards and Sentelle and
then separate dissenting opinions by Judge Wald and Judge Sentelle. The crux was whether the
right to a jury trial provision of the Constitution was transgressed when Judge Jackson either
added six months to the sentence under the guidelines or reduced the leniency with which he
sentenced based upon the defendant’s taking responsibility for the crime.
Judge Mikva: I think this is a very important point of criminal law, which, as I recall the
Supreme Court did not grant cert. on, though I really thought they might have considered it; they
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didn’t. A careful judge, Judge Jackson, operating in a very deliberate way–tbis was not the judge
who got angry and said, ‘Tm_going to teach you a lesson,” this was a judge who said, “I want to
find out whether I have this authority or not. As I read the guidelines, if you exercise this
demand for a jury trial and I find that you had no basis for any defense, I’m going to … give you
the maximum” I viewed it as ”tack-on” something, the majority viewed it as withdrawing the
leniency that otherwise might have been due.
Mr. Pollak: Right. I might say that the interesting thing, I’m reading the opinions both
your own and the majority opinion and the quotations from Jackson, I’m reading the cold record
that gets written in the appellate court opinions; but it was, as you’re going to say, Judge Jackson
actually put his thmking processes on the record at the sentencing; and he said, and you quoted
him at the outset of your dissenting opinion, the Judge said, “Because the case did go to trial, I
am going to add an additional six months to the guidelines.” That was determinative, as you
wrote your opinion; and the majority opinion by Williams put it in a larger context saying that
what he was really doing was reducing the amount leniency …
Judge Mik:va: … that he could have otherwise applied. My concern about that is, even
stating it the way Judge Williams stated it, which is not what Judge Jackson said he was doing,
he said, ”I’m going to add on.” And, if a judge says he’s going to add on, I think you ought to do
a legislative interpretation of what he meant. In either event, Judge Jackson clearly, deliberately,
acknowledged in his opinion that he was doing it to test whether he had that power or not – to put
the demand for a jury trial in play as a quid pro quo against the amount of time this man would
get in a sentence. I find that flatly violative of the right to a jury trial, as did Judge Wald, Judge
Sentelle and Judge Edwards; and we lost.
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Mr. Pollak: About 7 to 4?
Judge Milcva: Yes, Again, there were two or three cases where I lost an en bane court
that I felt I should have won. They really pained me, especially when we got Judge Sentelle here,
so it wasn’t an ideological dispute. It really wasn’t. I couldn’t believe that I couldn’t get Judge
Buckley and Judge Ray Randolph
Mr. Pollak: You didn’t get Judge Ruth Bader Ginsburg?
Judge Mikva: Nope, that’s right, I did not.
Mr. Pollak: Was it the significance of the decision. Is it the en bane split? What led you
to select this decision?
Judge Mikva: This really is an important point of criminal law, and probably one of the
most important ones I sat on during the 15 years I was there. That is, can a trial judge, in his
sentencing discretion – whatever it is, whether it’s guidelines or the old discretion – trade off
constitutionally protected rights in the exercise of wise discretion? I think, clearly, he cannot. If
it’s a constitutional right, the judge has nothing to say about that right. If a person says I want a
jury trial …
Mr. Pollak: Can’t weigh and balance.
Judge Mikva: That’s it.
Mr. Pollak: At the conclusion of your opinion, you’ll see that you said, ‘We should
answer a question with a vigorous no rather than with the fudge the majority provides.” I am led
to ask you whether in refusing to give effect to Jackson’s own words of adding the six months,
the majority was being activist in reaching the conclusion they reached or was it within the realm
of addressing the larger issue of when the leniency provisions of the guidelines permitted.
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Judge Mil<:va: Well, I thought that they were acting in an activist manner because the
Judge was seeking an answer. You know we don’t normally give, we don’t answer questions for
District judges when they ask them of us, but he did this in a right way. As far as he was
concerned, this was a question of how much authority he had under the guidelines to take the jury
trial demand into account. He asked it in a perfectly square way, and this is a recurring problem
that they have, especially since there’s no more plea bargaining going on. The District judges are
constantly faced with these cases that shouldn’t be going to trial; there should have been a plea,
somewhere along the line, and there isn’t. They end up doing a fruitless trial, the defendant has
no defense, and then at that point then he seeks to cooperate and get some benefit. So the judge
was asking a legitimate question. If he asks the question, then we should answer the question he
asks. As far as he was concerned, he was adding on. What the majority did was to take the
legitimate question he asked and tum it into a case that wasn’t before us; so it was activist
judging. What they turned it into was a case where maybe a judge, in the exercise of his
discretion, does take into account, into the back of his head, but doesn’t say anything on the
record about it. Now, I think there is a limit to how far the appellate court should go in looking
to see what was the trialjudge’s state of mind. Was he agitated, was he angry, and therefore,
exercised his discretion improperly? There are limits to how much we ought to do that because
there are a lot of fruitless jury demands and fruitless jury trials going on because of the
guidelines. But that isn’t this case. That isn’t what the Judge asked. So, the court twisted the
question that the Judge asked to a case that we didn’t have, that the Judge wasn’t doing here.
There was nothing to indicate that Pen Jackson was agitated or angry at this defendant for doing
what he did. As far as Judge Jackson was concerned, he was asking a legitimate question, “Can
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the defendant use up resources unnecessarily this way by demanding a jury trial?” And, to my
mind, the Sixth Amendme:Q.t ??ys, Yes.
Mr. Pollak: The majority opinion did not answer that question?
Judge Mikva: That is correct. They said, “Can you look at the way the Judge exercised
his discretion in light of his attitude about the fact that the defendant didn’t really cooperate
because he sought a jury trial,” which is altogether a different question.
Mr. Pollak: Do you want to say something on this record about the Sentencing
Guidelines?
Judge Mikva: Well, I’ve said it on the record and off the record. I think the Sentencing
Guidelines were a terrible consequence of Congress’ failure to do something about indeterminate
sentencing in the right way; and that is, change the statutes. If we didn’t like the range that the
judges had been using under the original statutes, which allowed the judge to give anywhere from
probation to 20 years, then change the statute. Congress was unwilling to do that. We punted it
and, I confess, I was part of the punt effort, to the Sentencing Guidelines Commission; and that
was a big mistake. If you’re going to make policy, then make it. It might have come out just as
bad because Congress has been passing these minimum mandatories, which are most of the
problem; and those are statutory. Those aren’t the problem of the guidelines, those are the
problems of Congress itself. But, at least then the policy is being made by the policymakers. If
Congress wants to say, “We’re going to give 25 years to some 17-year-old courier from New
York who comes in with a package when he or she doesn’t even know what’s in it because of the
quantity of crack that’s in it,” fine. That’s their decision unless you can turn it into a cruel and
unusual punishment question. That’s what Congress has the authority to do, and judges are
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supposed to carry it out. But the guidelines created by the Sentencing Commission, the
guidelines which turn every trial judge into a nerd with that little grid plotter that shows they are
here and blah, blah, blah, and it comes out to 84 months. It’s as if, the sentencing process, the
sentencing procedure is some kind of a mechanical operation. Outrageous. It’s a matter of policy
and if there is to be no indeterminate sentencing and then Congress wants to do that which
they’ve done with minimum mandatories, that is their prerogative. I object to them, but at least
Congress is doing it.
Mr. Pollak: Is the foundation, Judge, of the Sentencing Guidelines a statute of the
Congress?
Judge Mikva: Frankly there was nothing in the statute that Congress passed that required
the Sentencing Commission to make every sentence a mathematical computation. They could
have still allowed the judges some discretion. The Sentencing Commission decided, as a matter
of administrative desirability on their own, that they were going to turn it into this precise
gridlike operation; and it embarrasses judges, as it should; and it embarrasses the judicial system
Mr. Pollak: The time is at the point you said you needed to go.
Judge Mikva: Yes.
Mr. Pollak: If you could come here one more time.
Judge Mikva: Okay.
Mr. Pollak: I would like to read these other cases. I think that the subjects that I would
like to ask you that, one at least comes; and there may be little left, but I have a series of
questions at pages 17 and 18 of our outline that deal with your judicial philosophy; and they
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might be interesting, at least, to pose generally after we’ve talked about these cases. Finally, I
wanted to ask you these qtJ.estions that I alluded to and we discussed briefly when you came in
off the record, whether your service in the White House changed your view of what judges do
and, maybe, without going into it ·all, your service in the White House, there might be something
you say about the process of selecting judges. That would be interesting to have on this record.
Judge Mikva: Sure. Now, that I would like to do. Let me find a time when we can meet.