Henry Kennedy, Jr Eighth Interview, June 19, 2008

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ORAL HISTORY OF THE HONORABLE HENRY H. KENNEDY. JR.
Eighth Interview
19 June 2008
This is the eighth interview of the Oral History of Judge Henry H. Kennedy, Jr.as part of the Oral
History Project of The Historical Society of the District of Columbia Circuit. The interviewer
is Gene Granof. The interview took place in the chambers of U.S. District Judge Kennedy in
the Federal Courthouse in the District of Columbia on Thursday, June 19, 2008, at 2:00 p.m.
Mr. Granof: Judge, last time we talked I know we talked about the Boumediene case,
and at that point it was before the Supreme Court. But I guess last week
the Supreme Court created a lot more work for you.
Judge Kennedy: Yes it did. The Supreme Court — Justice Kennedy writing for the majority
— determined that the U.S. Court of Appeals for this circuit erred when it
determined that the detainees at Guantanamo Bay did not have a right to
have their petitions for habeas corpus heard in this court. Most of the
judges on this court had been waiting with bated breath for this decision to
come down. We knew that it would be coming down soon. But you’re
absolutely right. We are bracing for the huge number of cases that we will
now have to adjudicate if things stay as they are. I understand that there is
some consideration being given to establishing — that is, the Congress
establishing — a new court, a National Security Court, which the
Congress, from what I can tell, does have the jurisdiction to do, that will
handle these cases. But, of course, no one can tell whether that actually
will happen or not. But, frankly, I don’t think that there’s much that can
get through the Congress at this point.
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Mr. Granof: Because it’s so close to the election?
Judge Kennedy: So close to the election. Yes, exactly. And, you know, with this issue
there are very ardently held views on both sides. And so for the Congress
to get together and pass some legislation like this I think is probably
asking much. But this court — I’m very proud to say — has handled all
kinds of cases in the past. Obviously, this presents a new challenge and,
frankly, I think that we are up to it, and so I look forward to it.
Mr. Granof: This raises a question. I think last time you said you, personally — I mean
on your docket — you had 14 of these petitions for habeas corpus, which
involved more than 14 individuals.
Judge Kennedy: Exactly.
Mr. Granof: There were 14 petitions, and other judges, likewise, had petitions.
Judge Kennedy: Right.
Mr. Granof: Does the court — as a court — are the judges going to try and get any kind
of uniform approach to it?
Judge Kennedy: Very good question. The answer is, I don’t know. But the new Chief
Judge of the court, who is Judge Royce Lamberth — he just succeeded
Judge Thomas Hogan — just recently met with several of the lawyers for
the detainees and the Department of Justice lawyers. And I wasn’t privy
to what went on, but I’m pretty confident that what was discussed was
how to establish some system of efficiently and fairly doing what we are
supposed to do, of course consistent with governing principles. And there
will be, I am sure, some effort to make it so that there are not 14 different
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people ruling on the myriad of procedural issues that will come up, such
as where do you actually adjudicate these hearings, here in the United
States or in Guantanamo Bay, or by using technology, a video conference?
This is the kind of case that we haven’t been called upon to handle in the
past, and so we will have to just decide that. So, to me, I doubt very
seriously if we want to be in a position where 14 different judges are
ruling on, say, that one legal issue: what is the proper forum for hearing
these things? And I’ve just given you three possibilities. I can’t think of
another one. But, as I said, I have every confidence that something will be
done to address the issue. The last time we had to kind of make these
decisions one of our senior judges handled the initial motion to dismiss. It
was Judge Joyce Green.
Mr. Granof: Which raises a broader question about perhaps how — I hesitate to say all
district courts, but at least in this district — how do you deal with issues
that are common that arise before more than one district judge, and when
do the judges, as a body, basically say we need some commonality,
instead of saying let each judge write his own decision, let it go up to the
court of appeals to straighten it out?
Judge Kennedy: It’s really interesting that you should ask that question. Just this morning
I handled a case where the issue had to do with whether this court had
jurisdiction to entertain an action where the plaintiff alleges that the
government had unreasonably delayed consideration of his application to
be changed from one immigration status — the status in my case of
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someone granted asylum — to permanent resident status. The application
to change the status had been filed in 2003, and here five years later no
decision had been made. And so the question was whether or not the
court had jurisdiction — it was a motion to dismiss — and both parties
pointed out that while there had been many district judges who ruled on
the issue, the issue hadn’t been addressed by the Supreme Court or any
court of appeals. And even in this jurisdiction the courts had come down
on different sides. That’s not unusual. So, in answer to your question, 90
percent of the time, there is no effort made to do anything other than for
each judge to decide the matter as he or she believes it should be decided.
And oftentimes there is just disagreement. And that’s why we have a
court of appeals and a Supreme Court. However, in cases like this — and
this is a very unusual case where we are considering something that we’ve
never considered before, and where, in my view, the circumstances simply
call out for some kind of coordination — then we sometimes will see if
there is a way of having just one of us address the issue to more efficiently
just get on with it.
Mr. Granof: Well, I know that you did this in the Superior Court in the DNA decision.
Judge Kennedy: Right. Yes. So the answer is, it doesn’t often happen, but in this
circumstance it probably will happen. Otherwise, I can tell you it would
just destroy our calendars. Actually, I don’t think we would be able to do
anything other than handle these cases because, again, we are writing on a
clean slate. And if each of us has got to figure that out, I tell you again it
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would just take up all of our time because there will be — I can assure you
— a huge number of procedural issues separate and apart from the
substantive issue of whether these persons should be detained or not,
whether they are being legally detained or not. Now, that’s one thing.
And, frankly, I think each one of us will have to make that decision.
Mr. Granof: Because it’s fact specific to each individual?
Judge Kennedy: Exactly.
Mr. Granof: Which raises another question, not necessarily with respect to this
particular issue, but to what extent do you feel, or what weight do you
give, to decisions by your colleagues on a similar issue?
Judge Kennedy: Well, I consider some holding my colleagues have made with respect to
an issue is deserving of consideration, and I will give it due consideration.
I mean, it just so happens that it’s not binding on me, and that’s that.
Sometimes I agree, sometimes I don’t.
Mr. Granof: Would you give it any more consideration than say a district court opinion
on the same issue from another district?
Judge Kennedy: From another district? I probably would because I know my colleagues.
In all seriousness, if I’m going to be very, very forthcoming, I will tell you
that I have just immense respect for each one of my colleagues. I know
what the judicial culture is here in the District of Columbia, and it’s one,
frankly, where we take just immense pride in what we do. Not that judges
in other judicial districts don’t, but I just don’t know what it is to be a
judge in other jurisdictions. I know what it’s like to be one here. And so I
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suppose, yes, when I see that a judge from this judicial district has
addressed an issue it carries a great deal of weight. If it’s a judge in
another jurisdiction, it carries weight as well. But, again, yes, I have to
say that the ones here carry more.
Mr. Granof: Senator McCain has said that the Boumediene decision is the worst
decision since Dred Scott and Plessy v. Ferguson. You don’t have to
comment on it, but I thought I’d give you the opportunity to indicate
whether you agree with him or not.
Judge Kennedy: Well, the answer to that question is very easy for me, and I will give an
answer. I certainly don’t agree with him. What I am now wrestling with
is whether I should say more. And I’m still wrestling. And since I really
don’t see any reason not to, I don’t think it’s a good thing for a politician
who represents one branch of government to be disrespectful of the work
of another branch of government. And that, it seems to me, is what
happened here when Senator McCain says that this was the worst decision
since Dred Scott. I appreciate that he is running for president of the
United States and so he made that statement in that context, and I suppose
that it’s within his right and he certainly has power to do so. But, again, I
see it as less than respectful to make that kind of statement. And I don’t
think that’s a good thing. When I had my hearing before the Senate
Judiciary Committee I remember one of the senators asking me — I was
going to say it was Senator Ashcroft, but I don’t know if it was Senator
Ashcroft. One of the senators asked me what articulates the highest law of
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the land. And I said, “Well, the Supreme Court.” And the senator made
the point that, no it’s not the Supreme Court, it’s the Constitution of the
United States that sets forth the highest law of the land. My response was,
“Well, that is of course the case, but the question only becomes significant
when there is a disagreement as to what the Constitution provides.” If
there was never a disagreement, I wonder what the point of the question
is. And I said that ever since Marbury versus Madison this country has
operated under the assumption, operated under the proposition, that when
there is a disagreement, it is the Supreme Court that decides what the law
is. The Supreme Court did its job in ruling on this issue in Boumediene.
A 5-4 decision, but the majority was as it is. I think that I was talking
about what happened in my hearing. And then someone said, “Well,
doesn’t the Supreme Court sometimes make a mistake?” And I must say I
was kind of taken aback, and I didn’t have a good answer. Because I
really didn’t have a real good answer I said something like, “Well, I really
don’t think about it that way. I really don’t think about the Supreme Court
making a mistake. It’s just not in my frame of reference. It’s not on my
radar screen.” And so I did not answer the question. And one of the
senators said, “Well, you know, Judge Kennedy, I would like to just point
out that yes, indeed, the Supreme Court does make a mistake from time to
time. I think you would agree, would you not, that Brown versus Board of
Education was a right decision and the Dred Scott decision wasn’t.” And
I wanted to say, “Touché.” So, yes, indeed, the justices of the Supreme
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Court can, I suppose, make a mistake. But at any one point in time, it
seems to me, political leaders really must champion the rule of law as
interpreted by the Supreme Court. And when you say that this is the worst
decision ever made, then that is something less than championing the rule
of law. And I don’t think that’s a very good thing because after all is said
and done, that which separates this great society — and it is a great society,
this is a great country — from many others is the way that we honor the
rule of law. We honor it. And so we should honor also the process and
not take these — what I consider to be — political shots. And I won’t use
any other modifiers. Political shots at the Supreme Court. I think that
answers your question.
Mr. Granof: I assume that you wouldn’t object to someone saying, “I disagree with that
decision.”
Judge Kennedy: No. That’s what the president of the United States said, and that was fine.
He said, “I disagree with that position.” And I think it’s all well and good
to say the truth. Well, there were four justices on the Supreme Court who
disagreed. It was a very, very close decision. It was 5-4. That’s fine to
state what is true. “I disagree. I do know that there’s another way of
looking at things,” is exactly right. But to say this is the worst decision
since, and then compare it to a decision that is so significant for some of
us —
Mr. Granof: And regarded as historically wrong.
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Judge Kennedy: Yes. Again, it was not respectful. It was not respectful, and I don’t think
that was his finest hour.
Mr. Granof: Judge, let me switch to another topic which we’ve talked about in sort of
broad form. And that is, we’ve talked about management, but let me put it
this way, what’s your day like. What do you do? How do you manage it?
What are the components of your job, and how do you juggle them?
Judge Kennedy: I have to tell you that, contrary to what I think most people think — that a
judge’s day-to-day activity is pretty much the same — it really is not.
Mr. Granof: Is there such a thing as a typical day?
Judge Kennedy: No, there isn’t. There really isn’t. I can tell you, you know, on those days
when I have a trial to conduct — which by the way, that does not happen
most weeks on this court. I wouldn’t say the rare week, but it’s
infrequent that I’m actually in trial. When I’m in trial my day generally
starts in court at 9:45. I try a case. We generally sit until 12:30 with a 10
minute break sometime during the morning hour. We will resume at 1:30,
1:45 and then we proceed until 4:45 or 5:00 with a 10 minute break in
between. That’s what happens when I’m in trial. But, again, I’m not
often in trial. I do other things. Every day, I can tell you — and this is
every day including Saturdays and Sundays — I work. But that’s the way I
do things. I happen to be, I suppose, cursed — I think it’s a curse — with
not being able to sleep very well. So I get up very early in the morning —
4:30, 5:00 — and the first thing that I do is go down, even before I eat
breakfast, is go down, turn on my computer. I do have the ability to
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access from home my files here, the court electronic filing system, my email account, and I start work. I typically, before I get to work, will put in
at least an hour-and-a-half, two hours, sometimes even three hours of
reading e-mails. Every case that is filed, I read the complaint. I generally
get almost a case a day, so I read the complaint just to see what it is like.
Every motion that comes in, I’ll take a look at.
Mr. Granof: Are all motions filed electronically now?
Judge Kennedy: All motions are filed electronically. So I will click on the motions, see
what’s being asked. Determine whether it’s a consent motion or not. If
it’s a consent motion what I’ll do, basically, unless there is something
really unreasonable being asked and that’s very seldom the case, I’ll tell
my judicial assistant, Nicole, to grant it. She knows what to do. She’ll
enter a Minute Order. If there is a motion and it’s not a consent motion,
then I will tell her to bring it to my attention when a briefing has been
concluded.
Mr. Granof: How do you do this physically? Do you e-mail it?
Judge Kennedy: E-mail. I just forward e-mail, “Nicole, grant this.” “Nicole, bring this to
my attention July 5 .” When she brings this to my attention on July 5 I’ll
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make a decision as to how I’m going to handle the matter. Whether I’m
going to handle the case myself, whether I’m going to have my law clerk
work on it, or perhaps I’ll refer it to a magistrate judge to work on. With
respect to criminal cases, I normally handle them myself. A civil case, if
it’s something that I feel completely comfortable with, if I can really
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digest the issues by reading the papers and doing little, if no, research, I’ll
handle that myself. The vast majority of the cases I will ask the law clerks
to handle. Sometimes I make the judgment immediately that this is a
motion that requires a hearing. In that circumstance, I will tell the
courtroom clerk to schedule a hearing when the business of the court
permits, and will instruct the law clerk to provide a bench memo three or
four days before the hearing. Then I get to work. There are things in my
in-box I handle. I try to set aside some time when I can actually have two
hours or more where I can actually think about some issue that presents
itself. Since I’m an early riser, I generally will leave here no later than
6:30, 6:00 p.m. Sometimes, of course, depending upon if there’s
something to do, I’ll stay much later. But as a general matter, because I
get up 4:30, 5:00 in the morning, by the time 5:00 or 6:00 p.m. rolls
around, I’ve had it.
Mr. Granof: Do you take work home at night?
Judge Kennedy: I do. I have dinner. I used to play tennis. I guess you know I don’t play
tennis anymore. But after looking at the news — I love looking at the
news — and during this election season I must tell you I’m glued to CNN
and will listen to the pundits and what they have to say about the
upcoming election. But after looking at that I will go back to my
computer and do some work at night. I find often that actually doing work
settles me. I like that. I like what I do, so I’ll do it and then go to bed and
start over the next day.
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Mr. Granof: So reading is a huge component of the job?
Judge Kennedy: It really is.
Mr. Granof: But the other component is writing?
Judge Kennedy: Yes.
Mr. Granof: And that takes time. How do you find time to do that? Do you need a
block of time?
Judge Kennedy: Well, first of all, you’re right on both scores. Writing does take time, and
let me just say this. There are some people who write quickly and I think
love the process of writing. They love it and they do it well. People
always ask me about what I do, and sometimes they say, “Do you like to
write?” And when I answer forthrightly, because sometimes, frankly, I
don’t feel compelled to answer questions like those, but when I choose to
answer I always answer forthrightly. And I say, “No, I don’t love to write,
but I love to have written.” And that might give you some idea about how
I approach this. I find it to be a challenge to write, particularly on the
subject matters on which we write, which is not history. Not that
historical writing is easy, but this is an analysis, really parsing concept.
So it does take time.
Mr. Granof: Is the writing process where you do your analysis and thought, and so
when you finally have a written product, you’ve sort of resolved the
problem?
Judge Kennedy: There are some people, I suspect, for whom the actual crafting of the
memorandum is an aid to their analysis of the issue and an aid to their
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arriving at the right answer. That happens with me sometimes, but far
more often I know what the answer is. The challenge is to explain the
analysis using the proper words, the proper structure, that makes the
reading of the memorandum as easy as can be done. So, that is what the
challenge is. And I’ve been doing this for a while now. I don’t know that
I’m being clear here, but I’m thinking about my brother, who’s a writer,
and our feelings about the process. He loves to write. I mean he actually
loves the process of writing. It’s very much the way I love to play tennis.
Regardless of the outcome, really, regardless of the outcome, I just love
the process of hitting. Writing is not the same with me. The actual
figuring out the word to use to express the concept, the words that I have
up here somewhere in my noggin, but to find that word — to find the exact
word, the exact symbol, and to get it on paper with the structure that’s just
right — it doesn’t come easy to me like it does to him. My brother Randy
told me — I’ll never forget — he was on his honeymoon in the Caribbean,
and after five days he said he was just going stir crazy. He wanted to get
back to his office so badly. I looked at him like he was out of his mind.
And he says, “Henry, I just miss the writing so much.” As I just said, I
thought he was out of his mind. To me, you know, again, I like the
product and I love to have done it well, and I must say, I work hard at
doing it well, but I wouldn’t be just dying to get back to my office to do
the process of writing because it gives me such pleasure.
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Mr. Granof: Have you every had the experience of starting out with a particular
outcome, saying it’s going to come out this way, and then in the process of
writing deciding maybe either the result is wrong or perhaps there should
be different arguments?
Judge Kennedy: Not often, but yes it does happen. From time to time. Again, not often,
but from time to time that happens, which is one of the great things about
writing. As I said, I really respect the art of writing for that reason.
Because when you have to put on paper word after word, express
concepts, and it doesn’t go anywhere. See, when you’re talking, when
we’re talking, it’s ephemeral. The words get lost in the air. You might
hear it, but nobody knows what you heard other than you, except when
you have a tape recorder like you have before you now. Writing is there,
and you start a sentence. And all of a sudden you read that sentence over,
“Umm.” At the end of the sentence that concept doesn’t flow precisely
from what it was that went before it. And you say, “Well, if that’s not
right, and I’m trying to say it another way and that’s not right, maybe the
premise is not right then.” And that does happen from time to time.
Mr. Granof: So writing does at least provide you with a check?
Judge Kennedy: Oh, absolutely. It’s an ample check. You asked me if I give any more
weight to the judicial opinions written by judges of this district as
compared to the weight that I give to judges who write in other
jurisdictions, and I said that, frankly, yes I do. I think that the record will
reflect that the judges of this district write more opinions than judges in
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any other district. I don’t know that to be sure, but I bet that there’s a way
of checking that out and I’d be willing to bet that I’m right that we do a lot
of writing here. And I think that writing acts as a check. It acts as a
check.
Mr. Granof: And so when do you find the time to do it? How do you do it?
Judge Kennedy: You know, I raised my hand to do this job. I think that at the very
beginning I told you how privileged I was and continue to feel at being
asked to do this. And so it’s not a matter of finding the time, it’s what I
do.
Mr. Granof: But just mechanically, how do you do it? Do you isolate yourself? Can
you do that? Do you do it late at night? Do you do it early in the
morning? Can you do it during the day?
Judge Kennedy: Actually, I do more of it early in the morning. I find that when I first
awaken — 4:30, 5:00 — between 5:00 and 8:30 are probably my most
productive times of the day. Though I can tell you, you know, I work out.
I’ll be on the elliptical machine. I happen to think about my work — I
can’t say all the time — but I think about it a lot. I’ll be on my elliptical
machine and the right analysis, the words to use will pop into my head. I
can tell, I’ll take a shower real quick and I’d go home, and jump on that
computer and get it down. I used to keep with me at all times a tape
recording machine. At all times. And I would be out and actually dictate.
For whatever reason, I stopped doing that. And so, when do I find time to
write? Well, I find time in the morning. Some time in the evening,
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although not as much in the evening. And sometimes in the middle of the
day. And that’s it. This might sound like I have a terrible existence
because I’m working all the time. Well, I’m not working all the time.
Mr. Granof: It’s not a 40-hour job.
Judge Kennedy: Yes. It’s not a 40-hour job. That’s right.
Mr. Granof: I mean it’s not a 9-to-5, 40 hours.
Judge Kennedy: No. I must say that I love what I do, and so I do it all the time.
Mr. Granof: In that sense, you’re typical of district judges — at least in this district —
who put in a lot of time because the workload is heavy?
Judge Kennedy: Yes. Yes. The workload is very, very heavy. Frankly, maybe there
would be somebody else who could do this more efficiently and do it and
take less time. But it takes me as much time as I give it in order to stay as
current as I can.
Mr. Granof: Of course, although efficiency is a goal, you want to get it right?
Judge Kennedy: I want to get it right.
Mr. Granof: You’re selected for judgment here?
Judge Kennedy: Yes, that’s right. But it’s necessary for judges to make a decision. It just
doesn’t do to have these terrible backlogs.
Mr. Granof: Do you find that you have much of your day taken up with, say, pretrial
conferences or phone conferences?
Judge Kennedy: Not me. I don’t. I think that there are some judges who really prefer to
handle, for example, discovery disputes over the phone. I do not.
Mr. Granof: But you would hold pretrial conferences in cases with the attorneys?
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Judge Kennedy: Oh, yes. Before every trial I have a pretrial conference and I participate in
it.
Mr. Granof: Do you have a pretrial conference after you get the complaint in to set a
discovery schedule, the pace of the case, and a trial date and that sort of
thing?
Judge Kennedy: Yes. I have a standard practice. A complaint is filed and then there has
been a responsive pleading filed, an answer. Every case is one where the
decision is going to be made on the basis other than an administrative
record because there are special provisions for those types of cases. But in
the kind of cases that you were talking about I’ll have an initial scheduling
conference. We have a rule that requires the lawyers to meet — it’s Rule
16.3 of our local rules — before an initial scheduling conference and to
prepare a report that addresses all kinds of things, such as whether or not
the case should be referred for mediation, and whether or not the parties
will consent to have the entire case handled by a magistrate judge. And
there are various things that the lawyers are supposed to address in their
report. And when they come to court, we’ll discuss it. After the “initial
scheduling conference” — which is what we call it — with the lawyers, I
would issue a scheduling order that also sets forth the deadlines for the
completion of discovery, for the filing of expert reports, for doing those
things which are customarily done in processing a case. And my pretrial
order also gives some directives regarding what is expected of a lawyer
during depositions, because I have come to appreciate that in a litigation
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process it is what happens at the deposition that can just make
everybody’s life miserable. And I try to nip in the bud any bad conduct.
And so I send out to the lawyers in every one of my cases — “Listen, this
is what is expected at a deposition” — so that hopefully there will be less
bad conduct than there otherwise might be.
Mr. Granof: And without going through all the detail, it might be useful to know what
you instruct lawyers to try and ensure better conduct.
Judge Kennedy: Okay, just some background. It’s been my experience, as I mentioned,
that of all the things that — for lawyers — that just makes for day-to-day
practice that is not as it should be and that can be just very aggravating,
it’s the taking of depositions during litigation. And so I, again, try to just
remind lawyers of what is expected to avoid conduct that is not in keeping
with the rules. There’s an appendix to my standard scheduling order — it’s
Appendix B — that’s labeled Deposition Guidelines, and they read, first:
“Counsel for the deponent shall refrain from gratuitous
comments and directing the deponent in regards to times,
dates, documents, testimony, and the like.”
I would hear complaints about a question being asked and the lawyer for
the other side chiming in and assisting the witness in answering the
question. That’s not right. It’s not the way things are supposed to be. So,
I indicate that that should not be done.
Second:
“Counsel shall refrain from cueing the deponent by
objecting in any manner other than stating objection for the
record, followed by a word or two describing the legal
basis for the objection.”
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That is, a lawyer is representing a client who is being deposed, a question
is asked, and the lawyer doesn’t like the question that’s asked and is going
to basically inform the witness what the answer should be. “I object
because that asks an irrelevant question. That question is not relevant
because — ” And then, cues the witness.
Third:
“Counsel shall refrain from directing the deponent not to
answer any questions submitted unless the question calls
for privileged information.”
And that is what the Federal Rules of Civil Procedure call for. Now
obviously if a question called for privileged information, then a lawyer has
the right — responsibility — to instruct the witness not to answer that
question. But short of that, the lawyer just doesn’t have the right to tell a
witness, “Well, you don’t have to answer that question.”
Fourth:
“Counsel shall refrain from dialogue on the record during
the course of the deposition.”
That is, lawyers carrying on a conversation between themselves while
they’re supposed to be involved in a deposition which involves a witness
being asked a question and the witness answering the question.
Fifth:
“If counsel for any party or person given notice of the
deposition believes that these conditions are not being
adhered to, that counsel may call for the suspension of the
deposition and then immediately apply to the court for an
immediate ruling and remedy. Where appropriate,
sanctions will be imposed.”
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Which is to say I authorize the lawyers, during the deposition, to call me.
Mr. Granof: Do they do that?
Judge Kennedy: Not often, but from time to time. I think this really has a good effect
because it doesn’t happen often. But sometimes they do. And then, sixth,
and this is the final directive:
“All counsel will conduct themselves in a civil, polite, and
professional manner. The court will not countenance
incivility or other behavior during the deposition
demonstrating that the examination had been conducted in
bad faith or just simply to annoy, embarrass or oppress the
deponent.”
Mr. Granof: All sounds pretty common sense.
Judge Kennedy: All pretty common sense.
Mr. Granof: And consistent with the Federal Rules?
Judge Kennedy: And consistent with the Federal Rules. And I think that some people
would say, “Well, you know, there’s no need for a judge to set forth that
directive. We all know it.” But I came to the conclusion and judgment
that while you might know it, there’s certainly no harm, nothing bad about
reading it in black and white, so that when you have to make judgment
calls, you go ahead and err on the side of making sure you don’t do that
which is prohibited. I can tell you it is the rare, rare case that I have
complaints about lawyers not behaving as they are expected to do at a
deposition. Now, I just don’t get those types of problems. And I must tell
you that there was a time in Superior Court where I got a fair amount. So,
maybe this has had the desired effect.
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Mr. Granof: Let me ask you about mediation. I may have asked you about this in
connection with the Superior Court. But now that you’ve had 10 years of
experience as a federal judge, how do you regard the mediation program?
Do you regard it as useful?
Judge Kennedy: Yes.
Mr. Granof: And why?
Judge Kennedy: Well, I think it’s very useful even though I don’t know what the exact
success rate is of our mediation program. The judges on the United States
District Court do mediation in one of three ways. Sometimes the judge
will conduct the mediation. I never do, but I suppose that there are some
judges who conduct mediation themselves. I know I don’t, but I just
assume that there’s somebody who does. We have a program that is
operated out of the Office of the Circuit Executive. It was run by a
woman by the name of Nancy Stanley. She retired about two years ago.
Michael Terry is, I think, the acting head of the program now. This is a
program where the mediation session is actually conducted by lawyers
who volunteer their time to provide this pro bono service to the court. Or
the mediation is done by the magistrate judges. As you know, I used to be
a magistrate judge and that’s one of the things that I did a lot of. And the
magistrate judges now — Judge Kay, Judge Facciola, and Judge Robinson
— do quite a bit of mediation. I can speak with some certainty regarding
the success rate of the mediations done by the magistrate judges, and I can
tell you that they have a pretty good record. I don’t know exactly what it
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is. I’m just saying that there are a lot of cases that have been referred to
them for mediation where the parties eventually settled. I don’t know
what the rate of success of the mediators that do their work under the
auspices of the Circuit Executive, but I would be surprised if they didn’t
have some success. I don’t know how much, but some success. So, I
think that the mediation programs are good.
Although I previously said I never do mediation, now that I think
more about it, the fact of the matter is I do some mediation. Just last week
I had a case on my calendar that was going to go to trial next week. I had
a pretrial conference, and I had a motions hearing. And in that case I
decided to give one last shot at mediation — this was last Friday. And, in
fact, I was successful. The parties reached a settlement right here in
chambers. I mean, right here. Because I just had the feeling that if
perhaps I said something to the parties, the principals, that they would
come to agreement. This was a case, by the way, that had been tried twice
before. I had tried it twice before. The first time the jury wasn’t able to
reach a verdict. The second time the jury reached a verdict, the case went
up on appeal, and because of an inconsistency between an answer to a
special interrogatory and the overall verdict, the court of appeals reversed
it. And it came back before me for a third go-round. I was intimately
familiar with the case, and so I decided to try to talk with the parties and
the case settled. I think that’s a very good thing. I tell lawyers and parties
all the time that if there is an opportunity to settle a case, one should really
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seize upon it. Obviously, all cases can’t settle. But once a case gets
before a jury there’s one thing we do know, and that is it’s out of your
hands. It’s out of each party’s hands. And with a settlement there is at
least the opportunity to control some part of the case, which often is better
than being completely out of control. I mean I’ve been faced with
litigants who say, “Well, I’d rather lose than do such and such.” That can
be said, but it’s very seldom correct; in the end, it’s simply not true. It’s
just not true. And so I think it’s a good thing when the parties reach a
settlement. And I think the record will reflect that probably most cases
settle, and that’s not a bad thing.
Mr. Granof: What would you say is the hardest part of your job?
Judge Kennedy: I must say that it’s still arriving at an appropriate sentence when a person
has broken the law. Determining the punishment — the extent of the
punishment — is the most difficult thing to do. One, because of what is at
stake. It was the Declaration of Independence that talked about the reason
for the founding of the country. There comes a point in time when one
has to recognize that all people have the inalienable right to life, liberty,
and the pursuit of happiness. While all life — that very first thing — is the
opportunity to spend one’s time at certain pursuits. And what does a
judge do when a judge takes away a part of a person’s life. When you
take away the opportunity to engage in the pursuits that one would want to
engage in: to show affection to family members; to eat what you want; to
play tennis if you want to. It’s a very, very weighty thing, and to decide
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the amount of punishment when a person has done something bad–
broken the law, and when you break the law you do do something bad — I
find that to be a real challenging thing to do. I take it very, very seriously,
as I’m sure all judges do. So I find that to be a very challenging thing to
do. I find myself, often, explaining why it is that I have arrived at a
certain decision when in truth any reasonable person, and certainly any
lawyer or judge, could see that there are arguments for coming out a
different way. And, frankly, that’s often what we do. You know the easy
cases take care of themselves, generally. What we do is decide the hard
cases. Today I had a motions hearing. I think I may have mentioned it.
The plaintiff was a person born in Iraq who came to this country in 1997,
and was given asylum here. He’s legally here in the country. He has a
right under the law to apply for permanent residence status. He did that.
He filed his application in 2003. The application hasn’t been ruled upon
in 2008. The governing statute says that the court does not have
jurisdiction to consider the decision to grant the application or not; we
don’t have the jurisdiction to review that. But what happens when there’s
no decision on the application at all in five years? Does the court have the
jurisdiction to consider the complaint that they’re not doing anything?
Mr. Granof: What’s the government’s argument on that?
Judge Kennedy: Their argument — made in a motion to dismiss — is that the court does not
have jurisdiction to consider the pace of the consideration of the
application.
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Mr. Granof: Five years on its face seems unreasonable. Do they advance any kind of
explanation?
Judge Kennedy: They do give an explanation, but does that explanation go to the issue of
the court’s jurisdiction to even look into the explanation? And, frankly,
there are good arguments on both sides. I can tell you that. As a matter of
fact, judges in courts all around the country have looked at this issue and
have come out on both sides.
Mr. Granof: On the jurisdictional issue?
Judge Kennedy: On the jurisdictional issue. And, so, that’s what I’m going to have to
make a decision on.
Mr. Granof: Independent of the jurisdictional issue, is this an instance where the
government comes in and says, “Well, there are real reasons for the
delay”?
Judge Kennedy: Yes. And they have. I can tell you it’s a very sophisticated argument, and
it’s not, in my view, a frivolous argument. But, of course, the plaintiff has
a different argument to make, and I’m going to have to think about this
and explain why it is that I decided one way or the other. And I just told
you that there are judges who have looked at this issue and have come out
on, you know, come out different ways. I can tell you that that’s not such
an easy thing to do to arrive at that decision. And equally challenging as
coming to a decision is then to explain, to posit, you know, all the
principles of law that govern because there are all kinds of principles of
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law that do come into play here. From a layperson’s point of view, it
might not seem so complicated, but I can assure you that it is.
Mr. Granof: Let me turn to memorable and difficult cases you’ve faced as a federal
district judge. I know we talked about one case involving a major drug
conspiracy with five defendants. That was a difficult case. The trial, I
think you said, took five or six months to complete.
Judge Kennedy: Yes.
Mr. Granof: Are there any other memorable or difficult ones that you’ve faced. I’m
sure you’ve faced a lot of difficult cases.
Judge Kennedy: Oh, yes. The case that I just mentioned. I still have it under advisement.
I haven’t made a decision yet.
Mr. Granof: And you’ve got these FOIA cases that we talked about and the terrorist
cases.
Judge Kennedy: The FOIA cases are ones in which the American Civil Liberties Union and
the Electronic Privacy Information Center have asked for information
regarding what has been characterized as the president’s Domestic Spying
Program that was done without court approval. The issue presented is
whether certain exemptions to the Freedom of Information Act apply to
permit the government from withholding those documents. In that case,
there have been certain declarations that have been filed which are
themselves classified, and classified at a level that even my law clerks
can’t look at them. That is a very, very difficult case
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I’ll never forget the case where the Environmental Protection
Agency had brought a lawsuit against, basically, the trucking industry —
well, not the entire trucking industry, but certainly the six or seven largest
manufacturers of trucks in the world, for example Ford and Renault. The
issue had to do with the use by these companies of a device that at least
the government said violated the law which requires that trucks not use
such devices when they were being tested to determine the amount of
carbon dioxide emitted from the truck’s exhaust system during operation.
The trucking industry and the government came to an agreement as to
what would be done. Then during the course of the consent decree the
trucking industry tried to have me vacate the consent decree on the
grounds that it was going to cause them to go out of business, and that
international commerce was going to come to a standstill were I not to
relieve them of the requirement of this consent decree. I remember
dealing with that issue over the course of a summer, and it was very, very
difficult because there were all kinds of principles of law. The
government was saying, “No, you shouldn’t modify the consent decree,”
the Congress was having hearings about this issue, the trucking industry
was well represented, and here I had to make the decision. Very, very
difficult decision. Very interesting issues of law that came into play, and
certainly the ultimate outcome was very momentous. I can tell you that I
ended up not allowing the consent decree to be changed, and the trucking
industry didn’t just die.
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One of the most interesting decisions I had to make had to do with
an environmental case. I remember it very well. I was in chambers when
my law clerk came in and says, “Judge, we just received an application for
a temporary restraining order.” And I said, “Well, first of all, could you
please ask the lawyer who’s bringing this whether we really have to
handle this application for a temporary restraining order. It’s now 4:30.”
I’ve already told you that I’m not at my best at that time of the day.
Mr. Granof: Now, why did they bring it to you? Or you just were assigned it?
Judge Kennedy: It just came to me on the wheel. My law clerk made the inquiry of the
lawyer, and reported back, “Judge, this lawyer says it has to be done
today.” Well, the lawyer represented a scientist. This particular scientist
was a woman who actually had discovered — or if she hadn’t discovered,
she had done a lot of research into — an organism that was called a onecell bryozoan. The problem that she saw, and that her suit addressed, was
this. This one-cell bryozoan was known to exist in only one place in the
world, and there was evidence that she could present that this was so. And
that one place was a particular area off the East Coast of Florida — not the
entire East Coast — but it was an area off the coast of St. Lucie County.
About two years before this suit was filed there had been a hurricane that
had destroyed the beaches of St. Lucie County. And St. Lucie County
had entered into some agreement with the Army Corps of Engineers to
replenish the beaches. The Army Corps of Engineers was getting the sand
to replenish the beaches from guess where? The one place in the world
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where this one-cell bryozoan was known to exist. So, the question
becomes, “So what?” I mean, give me a break. The plaintiff says,
however, “Judge, one might understand how someone says that this is not
such a big thing, but guess what. This one-cell bryozoan is known in
scientific circles to be the first cousin of some other organism that
produced some protein that we know has provided the cure for certain
types of cancers. And Judge, if the habitat for this one-cell bryozoan is
destroyed we’ll wipe out this species and, perhaps, this will be the one
species that provides the cure for cancer.” And believe me, sometimes
real life is stranger than fiction. These things were being said, and there
was support for them. The government says, “Judge, you don’t
understand. First of all, we had scientists who studied these things and
this scientist, although she is a well-respected scientist — everyone knows
her — but she’s just wrong. There’s reason to believe that this one-cell
bryozoan might exist some place off of the coast of Australia. And,
Judge, there can’t be any delay in this. Why? Because, see, the sea turtles
are an endangered species, and we have timed this project to coincide with
when the sea turtles won’t be blocked from going out to sea spawning and
coming back to their nesting place on the shores off of Saint Luce
County.” “Oh, and by the way, Judge, for every day that there is delay —
just in case you’re thinking about delaying this,” I think it was about
$50,000 a day.
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Mr. Granof: All I can say is I’m glad I didn’t have to make the decision. What did you
do?
Judge Kennedy: I issued the temporary restraining order. I said that I appreciated that this
is a very important decision. I understood everything, but applying the
principle of law that I have to apply having to do with irreparable injury
and balancing and all of this, that I should at least issue a temporary
restraining order until such time as I can have a full hearing. You want to
know the outcome?
Mr. Granof: Yes.
Judge Kennedy: This was on a Thursday. I scheduled a hearing for the next Monday. I’ll
never forget how glad I was on Saturday night about 11:00 in the evening
when I get a call that the parties wanted to talk with me. They had
reached an agreement. They settled the case. It just so happened that the
Army Corps of Engineers found another place not so far from the place
they had planned to get the sand to replenish the beaches and left the
scientist’s one-call bryozoan habitat alone. And, so, by the next Monday,
the case is settled.
Mr. Granof: I think that’s just a wonderful example of the kinds of cases that federal
judges get, particularly in this district.
Judge Kennedy: Yes. So that’s another one. But I can just tell you that there’s not a year
or even six months that go by where you don’t get these cases that are just
mind-boggling in their complexity. Now I have just summarized the
dispute, but within that summary I can assure you there were principles of
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law — considerations, procedural and substantive — that I haven’t even
touched upon, but that I had to address and consider when coming to a
decision.
Mr. Granof: So it’s not exactly a judge simply being an umpire calling balls and
strikes?
Judge Kennedy: No, it really isn’t. It really isn’t, even though I think that’s how many
people see it — all you do is say “yea” or “nay.”
Mr. Granof: Look at the law, look at the facts. It’s “easy.”
Judge Kennedy: That’s right. Well, I think anyone reading the Boumediene opinion — I
haven’t read all of it myself yet. I have it right here. I have gotten
through 46 pages, but I’ve got to go to page 65.
Mr. Granof: And that’s just the majority?
Judge Kennedy: No, this is the entire opinion. But because its 5-4, I want to see what
everybody says. I mean, I’m bound, of course — we’re all bound — by the
majority decision, but for my own information I want to know what’s said,
what all the justices said. It’s not easy. You have nine justices of the
Supreme Court. I think we can all agree upon a couple of things. One,
are these people intelligent people? I think we can all agree that they’re
intelligent people. Two, are these people who want to do the right thing
from their perspective? Do they want to do their jobs; do that which they
swore under oath? They put a hand on the Bible, but did they want to do
it? Yes, they wanted to do it. Do they all have a fealty to the Constitution
of the United States? Yes. But they don’t agree. It couldn’t be easy then,
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could it? I mean, it seems to me if it was easy, and you have nine people
with intelligence wanting to do the right thing, come on, it wouldn’t take
64 pages. But it’s not easy. It’s just not. It requires examining the law —
the governing principles — being absolutely conscientious in determining
what the facts are from a trial judge’s point of view, and then doing your
job and coming out with an answer. And, again, not only coming out with
the decision. It would be great if I said, “Oh, you win, you lose.”
Explaining. You bring a lawsuit. You’re defending a lawsuit. Don’t you
have a right to know the rationale that led the decision-maker to make the
decision that he or she made? Now, frankly, when you have a jury
making that decision, I like that. And I can tell you that conducting a jury
trial is not as difficult as what I spend most of my time doing. Getting a
jury in the box. Putting them in the box. Calling the balls and strikes with
respect to evidentiary matters at trial. But as I’m sure I’ve said during the
course of this interview, at least in this judicial district, we don’t have that
many jury trials, and I’m the decision-maker. And it’s not as easy as one
would think.
[This concludes Interview No. 8]