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ORAL HISTORY OF JAMES J. SANDMAN, ESQ.
Fourth Interview – March 16, 2010
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is James J. Sandman. The interviewer is
Paras N. Shah. The interview is taking place at Mr. Sandman’s office at 1200 First Street N.E,
Washington, D.C., on March 16, 2010, beginning at 8:30 in the morning. This is our fourth
interview session.
MR. SHAH: Jim the last time we spoke, we had just finished up talking about your
days at Penn Law School, and you had accepted a clerkship with Judge
Rosenn on the Third Circuit. Can you talk about—I guess it’s 1976 or so
at this point—when you were picking up to move to Wilkes-Barre,
Pennsylvania?
MR. SANDMAN: I moved to Wilkes-Barre in late July 1976, almost immediately after
taking the Pennsylvania Bar Exam. And I lived there in a furnished studio
apartment on the top floor of an old Victorian house in downtown Wilkes-
Barre directly across the street from the Susquehanna River. Wilkes-Barre
in 1976 was in some ways still recovering from a flood that resulted from
Hurricane Agnes in 1972, and my mailbox on the first floor had a thin
layer of silt at the bottom of it. At least the whole first floor of the house,
and maybe a good part of the second, had been under water in the flood,
which just devastated Wilkes-Barre.
I lived within walking distance from chambers and I’d walk to
work every day. I often got a ride home from the judge because my house
was on the way to his house across the river. I was really looking forward
to the prospect of living in a small city for a year. I thought it would be a
very different experience. Wilkes-Barre is not a very attractive city. It
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had its prime in the early twentieth century when the coal industry was
very big in that part of Pennsylvania, and there were and still are some
grand houses along the Susquehanna. The one that I lived in, it had been
converted into apartments, but at one point it had been a single-family
residence. By the 1970s though, the city was really down on its luck and
it never really found an industry to replace coal. That part of Pennsylvania
though is very pretty, and I thought it would be a nice place to live.
On my first night in town, Saturday night, I was driving through
downtown Wilkes-Barre in my new car—the first car I had ever owned—
and was stopped at a traffic light on Public Square—which is the center of
downtown—thinking about how interesting this would be and how
different from Philadelphia it would be, and what small city life would be
like, when a woman—a girl might be the more appropriate term—wearing
pink hot pants came up to my car and said, “Hi Johnny, want some
action?” This is my welcome to Wilkes-Barre (laughter). It was about
fourteen years before I could tell the judge that story because I thought he
would be worried about how it reflected on the city that he loved, because
it was his home. But I should have concluded long before that that he
would be able to handle it and probably wouldn’t have been shocked.
I loved my clerkship. It was one of those experiences in my life
where I knew that it would be something I would look back on later as one
of the best years of my life. Often experiences that are high points of your
life become so only in retrospect—you don’t appreciate them for what
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they are when you’re living through them—but this experience was
something that I appreciated every day while I was living it.
The judge was very solicitous of his clerks, both me and my coclerk,
Fred Magaziner. Fred had gone to Columbia Law School and came
to work for the judge about two weeks after I did. I became very close,
and am still very close, to Fred and his wife, Phyllis. Their first child,
Daniel, was born during the year that we were clerking at Wilkes-Barre
General Hospital. That’s a bond. And I was his first babysitter. A couple
of weeks after he came home, his parents wanted to go out and asked if I’d
babysit, and I said yes. There were out for about fifty minutes, as I
recall—I don’t think so much because they didn’t trust me, but because
they were just worried about their baby and couldn’t stand to be away.
The judge felt responsible for the lives of his clerks while they
were in Wilkes-Barre. He knew that they were living there, in a place that
didn’t have a lot of social life for young people, only because of him and
wanted to be sure that they had a good experience—a good personal
experience, as well as a good professional experience. And I think the
physical isolation of his location relative to other judges and other
clerkships made him especially diligent in mentoring his clerks and
establishing personal relationships with them. If we had been in
Philadelphia in a courthouse with a lot of other judges, in a big city where
both Fred and I had connections—Fred was from Philadelphia—I don’t
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know if we would have had the same relationship with the judge as we
developed.
He really kind of took us into his life in a way that was welcoming
and not at all off-putting. It wasn’t that he was trying to control our lives.
He just wanted to be helpful to us. He often had lunch appointments—he
was on various boards in Wilkes-Barre and he was very involved in the
community—but at least one day a week, and maybe more, he would join
Fred and me, and Barbara Saell, the judge’s secretary, for lunch and we’d
almost always go across the street to an Italian restaurant called Paragino’s
and listen to the judge’s stories. And it wasn’t just him talking. He would
also talk to us. He would have us over to his home periodically. He had a
ping-pong table in his basement and liked to play ping-pong with his
clerks. During the winter of the year that I clerked for him, he found out
that both Fred and I liked to ice skate and there was a new public rink in
Wilkes-Barre—outdoors but covered—and we would go there, I think on
Wednesday nights, to skate. One night when we were skating, he had a
pretty bad fall and hit his head, and he didn’t skate thereafter. But he was
sixty-seven at the time and this was the type of thing that he did regularly
with his clerks.
He was very disciplined in his work habits. He arrived at the
office at the same time every morning and he had rituals and routines that
helped him be efficient. And I learned a lot from him about how to be
productive. He arrived at work at about 9:00 a.m. His secretary would
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have picked up the mail before then and have it all opened and sorted on
his desk when he got in. And the very first thing he did was to go through
his mail and to dictate responses to the letters he had received on the day
he got them, the morning he got them, so that things wouldn’t sit. Often,
of course, the correspondence was court correspondence. This was before
the days of e-mail circulation. And often what he had to review was
opinion drafts from other judges. The practice of the court at that time
was that every opinion was circulated to every active judge of the court
before it was released, so that the judge could decide whether or not he—
there were no women judges on the Third Circuit at the time—wanted to
vote for en banc rehearing. And the court had a procedure to take a case
en banc before the opinion of the panel had ever been released. The
turnaround time on those had to be pretty fast, so he would review
opinions quickly. If he couldn’t get to them while he was reviewing the
mail on the morning, he would put them aside, but get to them certainly
within a few days. And then, of course, he was responsible for reviewing
the opinion drafts of the other judges on panels he had sat on, which was a
more rigorous review. And he would have whichever of the clerks had
worked on the case review the opinion and make a recommendation to
him.
He had enormous powers of concentration. He could sit for hours
reading and writing without needing a break. He was very effective at
dictation, and he often did his dictation in the chambers’ library, which
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was just outside my office. I was able to listen to him dictate and from
that learned how to do dictation myself. And what I learned was that
dictation doesn’t sound pretty. It doesn’t need to sound pretty. All that
matters is what ultimately ends up on the tape, so you can back up and
erase and start over again, you can pause for a long period of time while
you can collect your thoughts—it doesn’t have to be speaking in perfect
sentences and paragraphs nonstop into a microphone. And it allowed him
to get thoughts on paper very quickly and then he would edit thereafter.
That’s very different from the way I work. When I write, I use the writing
process also to edit. And it slows me down, but, when I’m finished, my
written work is just about done. My editing process after I finally get
something on paper is pretty quick. He was always encouraging me to get
something, anything, on paper first and then edit later. He thought that
that would make me a faster writer, and I’ve been able to implement that
with limited success over the years.
He had a process for dividing the cases among the clerks and
himself. We would have oral argument about every four or five weeks
and the judge would be assigned approximately thirty cases per sitting.
He would get the briefs at least a month in advance of the sitting, and he
would initially read the briefs in every case himself and then sort them
into two piles. One pile was cases where he did not need a bench memo
from the clerks, where he thought that he could decide the case—he could
handle it on his own, and he was familiar with the legal issues, and didn’t
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need any assistance from us. For the other cases he decided, he wanted
bench memos, and those were split between the clerks on the basis of what
day the cases were going to be argued. One of us would be responsible for
the Monday and Tuesday cases and the other for the Thursday and Friday
cases. Wednesday was the day when arguments were not held. So the
allocation of work for any particular sitting could be uneven as between
the clerks, depending on what days the cases for which he had requested
for bench memos fell and how the cases split among those days. And we
would prepare bench memos in approximately seven or eight cases a
sitting. He would take about half the cases himself and not ask for bench
memos in them.
It was intimidating initially because it seemed like more often than
not when I picked up the briefs in the case, it dealt with some subject I had
not taken in law school, and I was starting from scratch. It might be
bankruptcy or a sophisticated issue of labor law, and you have to get on
top of unfamiliar subject matter quickly in a clerkship and crank out a
high-quality memo. But eventually I got the hang of it and there was a
repetitiveness to the process. With each sitting, we went through the same
exercises and after you’ve been through it three or four or five times, you
get more confident and realize that if you have good legal research skills,
you’ll be able to get on top of any subject relatively quickly. If you’ve
studied it previously, you obviously have a head start—you know the
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terminology, you know the secondary sources to consult, so it’s easier and
faster.
The judge would take us to Philadelphia for oral argument and
would allow us to collect the government per diem allowance for the days
that we had cases being heard on. But he’d allow us to stay in
Philadelphia for the week if we wanted to, at our own expense, for the
additional days beyond those where our cases were being heard. And I
always went down for the full week. I think I paid fifty dollars a month
for a bedroom at a townhouse that some law school friends of mine were
renting in Society Hill in Philadelphia, which was within walking distance
of the courthouse. But I had a room whenever I wanted it during the
month, so I would sometimes go down on weekends. It worked out very
well for me and the per diem allowance that I got from the government for
the two days that I was down there each month covered the fifty-dollar
rent, so it was a great deal.
The judge was always very excited about going to Philadelphia.
We would help him pack up his car. He’d pack a separate briefcase for
each of the four days of oral argument and put the case files for each of the
day’s arguments in a separate briefcase. And we’d put the briefcases in
the trunk of the car and he was like a kid going off to a summer camp that
he loved. This was the only opportunity that he really had to relate in
person to the other judges on the court, and I think he just craved the
human contact and the professional contact with the other judges.
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Our life in Wilkes-Barre was a very isolated existence. He was the
only judge in the courthouse. For the first few weeks of my clerkship,
there was another District Judge in the courthouse, but he died in August
of that year. No one ever came into our chambers except, you know,
maybe at lunch because somebody was coming by to meet the judge for
lunch. Or other people who worked in the building might come by just to
say hello. There was only one time during the year that any lawyers came
in. It was because they had an emergency stay motion and the judge
conducted a hearing in the library. But, other than that, it was just the four
of us every day—reading and writing and researching.
And the judge was a very social, outgoing person. So, oral
argument week in Philadelphia was his chance to get together with the
other judges. He would have breakfast in the courthouse cafeteria every
morning with another judge. He’d eat in the judges’ dining room and
sometimes take us there with him. And he would always arrange dinner
with another judge or judges every night that he was in Wilkes-Barre.
Sometimes it would be another judge who was not in Philadelphia or
sometimes it would be one of the judges who lived in Philadelphia. And
he would often invite us along for the dinner, so we got to know other
judges that way too.
But the opportunity to talk to the other judges about his cases and
to get to know them as people was something that he valued and one of
the things he liked most about being a judge. I recall his telling me once
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that, if he had to do over again, he probably would have moved to
Philadelphia when he was appointed to the Third Circuit. This was after
he had been on the court for seven years, in 1976 or 1977. I don’t think he
had any idea that he would live to be ninety-six and be on that Court until
2006 and that it wasn’t too late at that point to reconsider his decision.
But it said a lot to me that for a person who was as connected as he was to
northeastern Pennsylvania the isolation of the professional life that he had
at that point was such that he would have considered moving down to
Philadelphia.
We sat in the courtroom for oral arguments and the judge would
always give his commentary after. He was always respectful of the
lawyers who appeared before him. He never raised his voice. He had
great judicial demeanor. He loved presiding, but, during the year that I
clerked for him, it didn’t happen often because he didn’t have sufficient
seniority to be able to preside much.
He admired his fellow judges, even when he disagreed with them.
And I recall his telling us about the backgrounds of the different judges
and how the diversity of their professional experiences before they were
appointed to the court contributed to the quality of the court’s work. Only
a few of the judges on the court had been District Judges before they’d
been appointed, but he definitely found the perspective of a District Judge
very helpful. He felt himself that having been a trial lawyer was very
beneficial to him in reviewing decisions of District Judges and having an
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appreciation for the reality of what goes on in a courtroom and how a case
moves and how a trial judge has to make quick decisions. One of the
judges had been an academic. He thought that was a very helpful
background. I never heard him speak ill of another judge on the court.
And he was particularly solicitous of District Judges who were sitting by
designation on the Third Circuit.
I recall one time we had a case where he was dissenting from a
majority opinion being written by a District Judge sitting by designation,
and I did an opinion draft. And I had said in the draft that the majority
“ignores” a particular line of cases. And the judge did not want to use the
word “ignores.” He thought it was a harsh word. And he told me that this
District Judge had taken on additional work by accepting appointment to
the Third Circuit for these cases and that we should be appreciative of
what the judge was doing and not do anything to make the judge regret
having taken on the assignment. And that was just a real lesson in
graciousness to me. And I didn’t think a word like “ignored” was
insulting or demeaning. I thought it was accurate, but I got his point—
there was a more delicate way to make the point and that’s the way the
judge wanted to do it.
The judge would have us do opinion drafts for any case where an
opinion was assigned to him after oral argument where we had worked on
the bench memo in the case. If he got a case assignment for a case where
he hadn’t had a bench memo, he would do the opinion himself, although
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often those cases were decided by judgment order—an order without
opinion—and he didn’t need to do any writing about those. When we did
an opinion draft, the judge had a protocol we were to follow. We were to
get the volume of F. Supp. or F.2d or U.S. Reports for every case cited in
the opinion draft and assemble the books on carts in the library by his seat
in the library—he had a seat at the table, it was his seat—and arrange them
in order of citations, so that as he went through the opinion draft, he could
pull the book off the cart and read the case and make his own judgment
about whether or not our description of the case was accurate or not. And
he would typically spend a couple of days going over an opinion draft
before he’d call either of us in to discuss it. When he would call me in, I
would sit opposite him on the table and he would go through the draft
almost line by line. He would never change a word of the draft without
talking about it.
There were things that he expected out of an opinion. He wanted a
good, clear first paragraph that explained to a reader what the case was
about, what the result was, and why—concisely. He had a preference for
first paragraphs that were attention-grabbing—not sensational, but
interesting. He didn’t like flashiness or unending footnotes. His goal was
to decide the case before him in a way that was understandable and helpful
to the litigants and that would give useful guidance to District Judges who
had to implement the opinion. Not only the judge in the particular case,
but other judges who would have to read it and apply it to other cases. He
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was very pragmatic in his approach to judging. He’d also remind us that
every case before us was the most important case on the docket to the
litigants in that case and that we should never be dismissive of arguments
or make light of a case because we did not think it was the most
interesting case in the world or because the lawyer may not have been
very good. His approach was to be respectful to the lawyers and the
litigants and the process. And his character came through in the way he
went about the business of judging and how he explained things to us.
And over the course of a year, I developed a good sense of what his values
were and what his style was and the review sessions for the opinion drafts
got shorter as the year went on as he changed less. But there was never
any question that he was the judge and, if he disagreed with the way you’d
written something, you did it his way. He would sometimes change his
mind during the course of the opinion-drafting process—not often, but he
was open to reconsideration and to giving serious consideration to a
dissenting opinion or a concurring opinion of another judge.
It was just a remarkable personal and professional experience for
me. It was a confidence-builder for me. I was nervous and intimidated
when I started. I wanted to do a good job for him, but I had never done it
before. And I learned so much personally. I remember vividly how I felt
sitting across from him at the library table going over the opinion draft and
how valuable that feedback was to me. I contrasted it with the experience
that I had had as a summer associate when I got no feedback. This was
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very helpful feedback and I learned from it because it was specific, it was
immediate, and it was delivered by someone who clearly seemed to care
about me and had an interest—a personal interest—in my professional
growth. And I took a lesson from it. I thought consciously at the time that
when the point in my career came when I was going to be supervising
other people and giving them feedback on their work, this would be what I
would aspire to. I had it demonstrated to me in a very clear way and
benefitted not only in my own growth, but I think in my relationships with
other people years later when I was a supervisor myself.
The judge’s wife, Tilly, was a real character and an important part
of the clerkship experience. She called the judge “Mac.” I think spelled
M-a-c. Maybe M-a-c-k. I don’t know. We used to joke that was short for
Max, the judge’s name. She was not intimidated by the judge and she
wanted to make sure that the clerks weren’t intimidated either. I recall
once she said to my co-clerk, “Oh Fred, why is it that little men have to
drive such big cars (laughter)?” The judge drove a Chrysler Imperial, a
1974 Imperial—it was a land yacht. Just a huge car. She drove a Ford
Maverick, which was an inexpensive compact, and didn’t have much
patience for his car-buying habits. She was just very friendly and
approachable and you got the impression from her that you had a backer in
her, that she was there for you, and that too was extraordinary. There is
nothing that says the spouse of a judge has to go out of his or her way to
take an interest in the judge’s clerks, but she not only did but she really
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seemed to enjoy it and never gave you the sense that this was a duty for
her.
So I had a wonderful year there. And what I couldn’t appreciate at
the time – I regarded it at the time as a one-year experience. The judge
had not been on the court long enough at that point to have a big collection
of former clerks through whom I could see what the former clerk
experience was like. A couple of his former clerks were on the West
Coast, so they were just far away geographically. The judge did not at that
point have any tradition of reunions among his clerks. So I knew the
clerks before and after me but had only heard of and hadn’t met a lot of
the other clerks. And what happened over time was that a one-year
experience actually turned into a thirty-year relationship, and I never could
have foreseen that.
There did come to be a number of occasions when the clerks would
assemble. In 1980, in celebration of the judge’s tenth anniversary on the
bench, his then-clerks took the initiative to create and fund a lecture series
in the judge’s honor at Wilkes College. It’s now Wilkes University in
Wilkes-Barre. It’s called the Max Rosenn Lecture Series in Law and
Humanities. Their first speaker was Anthony Lewis, the famed New York
Times columnist, who had written, among other things, Gideon’s Trumpet
about Gideon v. Wainwright. And the annual lecture became an occasion
for the clerks to come back to Wilkes-Barre and to have an event around
which they could organize activities. We also had major reunions and
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celebrations of the judge’s significant anniversaries on the bench. And
that helped build relationships among the clerks in a way that hadn’t
happened previously and really strengthened the judge’s relationships with
the clerks. He told me very late in his life – I can’t remember how he let
this slip because it was not the type of thing he would have typically said,
but he said he was spending about $15,000 a year on his former clerks,
you know, between wedding gifts, baby presents, dinners. He would pick
up the bill for dinner for however many dozens of people would come for
reunions, but it was an expense that he bore with pleasure. I think he was
almost proud of it—that he had so many clerks and had such good
relationships with them—that it was one measure of the strength of his
relationships. And especially after Mrs. Rosenn died in 1994, I think his
relationships with his clerks became even stronger. I think his work
relationships became more important to him.
He was very close to Barbara, his secretary. When I clerked for
him, they would sometimes kind of do battle, always good naturedly, but
Barbara was a feminist and she brought the judge along. She was
outspoken in a very good way. She would stand up to him, and he kind of
liked that—he definitely liked that—and they came over time really to
respect each other enormously. They were very different. Barbara had
been a nun, a Catholic nun. She was very involved in the Catholic
Church. The judge was very respectful of her religion, as he was of
anyone’s religion. He always wanted to check and make sure that I found
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a church to go to on Sunday and was very accommodating, more than
accommodating, of other people—helpful to them in finding religious
homes if they wanted to in Wilkes-Barre. And she died in about 1997 or
1998 or so, and the judge was very effected by her death, I think. They
were very good friends by that point. She was only about fifty-eight when
she died, I think. But that too strengthened his relationships with his
clerks in a way. I think it was that we shared a bond with Barbara with
him, and that her death brought us all closer together.
Just an extraordinary man. One of the many lessons I learned from
him is the value of having a mentor—and especially having a mentor at
the beginning of your career, which is a hard time. It is not easy to be a
new lawyer. It’s not easy to be a young associate in a big law firm. And
to have had the benefit of someone who has not only taught you about the
practice of law but has been a role model for you—someone you can
aspire to be (“this is what I’d like my life as a lawyer to look like”)—gives
you direction and focus and a grounding that’s invaluable. And it’s very
uncommon actually. It’s one of the great blessings of my life that I was
able to start my career as a lawyer with Max Rosenn as my mentor. I miss
him.
MR. SANDMAN: I want to tell two funny stories with my experience with Judge Rosenn—I
don’t want to give the impression that it was all seriousness and idol
worship.
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One day, in October of 1976, the judge came to Fred and me and
said that he needed to take his boat—a small motorboat that he had—out
of the water for the winter at Harvey’s Lake, where he had a summer
home outside of Wilkes-Barre. And he asked if, at lunchtime one day, we
would be willing to help him out. And we said, “of course.” And he said
“Bring old clothes”—not “wear old clothes,” but “bring old clothes.”
Even though almost no one ever came into our chambers, we were
expected to be in professional attire, meaning a suit and tie, every day.
So, on the day that we were going to take the boat out of the water,
the judge came in at about 11:30 and said “Okay, let’s get ready.” Fred
and I changed into our old clothes, which were jeans and sneakers. The
judge went into his office and he came out wearing a suit and a tie. It was
a different suit from the one he was wearing. It was an old suit. And I
think the shock must have shown on our faces (laughter). We were just
amazed, and he said to us “You have your old clothes, and I have my old
clothes.” He was a very proper man and never wanted to be seen,
particularly walking out of the courthouse, in anything other than
professional attire. In fact—I need to digress for a minute—when he came
into the office in the morning, the first thing he did was to take off his suit
jacket, hang it on a hanger in his closet, and pull out another suit jacket—
an old one, a comfortable suit jacket—and put it on. And he would sit and
work in his suit coat all day, but it was an old one. So he had an old suit to
take the boat out of the water.
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We went up to Harvey’s Lake and it was a dreary day and raining,
and the judge had a friend up there who had a car with a trailer on it, who
was going to meet us at the launch. And Fred went with a friend in his car
around to the launch, and I went with the judge in the boat to drive across
the lake to meet them. And the judge at that point really had the boat for
his grandchildren. I don’t think he tooled around the lake very much. It
had probably been a while since he’d been out on the water. As we were
approaching the boat launch, the water was getting very, very shallow, and
I was looking over the edge and we were a good distance from shore, and
the judge said there was a channel. He asked me to keep my eye out for
the channel. That’s what he was looking for. It was supposed to lead
right up to the launch.
He had the motor going very slowly, but we hit ground and the
motor clunked to a halt, and we were stuck about fifty feet offshore. And
we tried rocking the boat a little, but the water was so shallow and it was
wedged into the silt. You couldn’t do anything about it. So I knew what I
had to do. I jumped over the side, and I went around to the back and I
pushed and shoved and dislodged the boat and began to try to maneuver it
toward the shore. And Fred on his end from the shore, came wading out
to see if he could meet us to help pull the boat in. And shortly after I
started pushing, I suddenly discovered the channel that the judge had been
looking for and fell into water up to my chest.
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We never got the engine restarted, but, by pushing and pulling, got
the boat to shore and onto the trailer. The judge was just mortified. I’m
just soaked. Fred was wet up to his waist from having waded out. And it
was a cold day. And you know, the judge thought, “Oh you’re going to
catch cold. You’re going to get sick.” So after the friend takes the boat
off to wherever it’s supposed to be stored, the judge drives us around the
lake back to his lake house and says, “You boys need to change into some
dry clothes.” Well, the judge had vacated the house for the winter. It
didn’t have much in the way of dry clothes. But he insisted that I change
into his pajama bottoms—that’s all he had by way of pants—and he made
Fred wear his old Army boots from World War II. And then he quickly
drove us back to Wilkes-Barre, to his home there, to get us some lunch
and better clothes. We walk into the house and Mrs. Rosenn is sitting in
the kitchen, and I walk in wearing the judge’s pajama bottoms and Fred’s
wearing his Army boots, and she looks at us and she says to him “Oh Mac,
what have you done with them now?” He says, “Tilly, these boys need
some hot sandwiches and coffee. No time to talk” (laughter).
And when we got back to chambers, we walked in still in the same
attire—we later had to go home to change—and Barbara was also just
flabbergasted at our appearance. And it was clear the judge did not want
to talk about it. And he just disappeared into his office and we had to
explain to her what happened. But wearing the judge’s pajama bottoms
was an aspect of the clerkship I hadn’t anticipated.
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There was another experience late in our clerkship. The judge had
us out to the lake house for cocktails and hors d’oeuvres one night before
taking Fred and Phyllis and me out to dinner with Mrs. Rosenn. And Mrs.
Rosenn had made a plate of hors d’oeuvres for us. They were cucumber
slices and deviled eggs—and on every cucumber slice and every deviled
egg there was an anchovy. Fred hates anchovies. Phyllis hates anchovies.
I hate anchovies. This was a chore to be polite and to try to eat them. The
deviled eggs were a little easier to take because they had more mass to
them and flavor to mask the taste of the anchovies. But the cucumbers—
whew, they were tough. I had eaten just about enough, I thought, to be
polite and picked up one last one—a cucumber. I thought I would have
done my duty once I got that down. And, as I was picking it up, the
anchovy fell off. And the judge says to Mrs. Rosenn, “Tilly, he lost the
best part. Run out to the kitchen and get him another” (laughter). By that
point I couldn’t possibly say, “I hate anchovies, please don’t do that to
me.” Fred and Phyllis knew exactly what was going on in that difficult
moment together. We had a lot of fun.
MR. SHAH: Can you describe a typical workday for you, including the exercise of
writing a bench memo and any interaction with the judge that you might
have on a typical workday?
MR. SANDMAN: Yes, I would get to work before 9:00 a.m. I guess around 8:30 a.m. or
quarter of 9:00 a.m. or so. I walked to work. And what my work for any
particular day was dependent on where we were in the cycle of preparing
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for oral arguments. If it was at the beginning of the cycle, it would be
reading briefs and writing a bench memo. The two weeks after that you’d
spend writing an opinion. But I’d always have a stack of briefs on my
desk and cases to read. It was a lot of researching and writing.
Fred and I spent a fair amount of time talking to each other, which
was not only beneficial but really necessary—especially if you’re dealing
with subjects that you’ve never dealt with before and you just need to
bounce ideas off somebody—and it was a good lesson in the importance
of collaboration in the practice of law. I can’t imagine being a solo
practitioner and not having other people to talk to about the matters I’m
working on. I really need to test ideas on people and check my judgment
with other people. I think that’s how you develop good judgment: getting
other people to react to things and steer you right when you’re going
astray.
So reading cases, reading briefs, drafting. The life of an appellate
clerk is very sedentary. But I found the work intellectually engaging and
Fred is very smart and very witty and very enjoyable to talk to about
cases. We also talked to Barbara a lot. Especially when the judge was out
of town (laughter). And we couldn’t have coffee in chambers. The judge
was not a coffee-drinker himself and there was kind of a bright
yellow/gold carpet in the chambers and the judge didn’t want to risk
staining it. So we didn’t have coffee breaks or anything like that, but we
would visit in each other’s offices.
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His offices were physically very attractive. Each clerk had his own
office and I had a corner office that was lined with bookshelves. It had
dark paneling. When the judge showed me my office he said, “This is the
nicest office you’re going to have until you’re a partner in a law firm.”
And he was right. It was a suite that consisted of two offices for the
clerks—Circuit Judges had only two clerks at that point—a library with a
big conference table, a reception area with Barbara, the secretary, and the
judge’s office with a private bathroom. It was quite spacious and nicer
than the chambers in Philadelphia. The judge also had a full suite in
Philadelphia, the same as the judges stationed there. In later years, judges
based outside of Philadelphia would share chambers in the main
courthouse there.
We’d break for lunch about noon, as I recall. One hour precisely
for lunch. No more than an hour. And there were a number of places in
downtown Wilkes-Barre we’d go to eat. There were probably five of
them that we frequented. Almost always when we were eating with the
judge, we went to Paragino’s, but there was a cafeteria called Percy
Brown’s, an old Wilkes-Barre institution, that we’d go to sometimes. But
we generally didn’t walk more than three blocks or so for lunch. And the
day ended at about 6:00 p.m., as I recall. Might have been a quarter of
6:00 p.m. or 6:00 p.m. I almost always brought work home. Briefs
typically. I didn’t bring case books home.
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We did not have Lexis or Westlaw, as I recall. The courthouse
library in Philadelphia did, but it was very difficult to use that remotely.
There was a satellite library of the Circuit in our courthouse, which was
really meant for us and the court librarians. A couple of them came up
once from Philadelphia and, of course, the judge took them out to dinner
and made a big deal of it. Fred and I established a great relationship with
the court librarians and they were very helpful to us in making the
resources at the central library available to us, but it was challenging to do
research. We had a complete set of the federal reporters in chambers and
we had Atlantic Second, which reported Pennsylvania cases. But it was
secondary sources—the treatises, the law reviews, things like that—that
were hard for us to access. And, you know, we would have had some
different citations if we’d been at the main courthouse in Philadelphia.
We could use the county law library there. Wilkes-Barre is the seat of
Luzerne County. But research was a challenge in that location.
And weeknights in Wilkes-Barre were kind of slow. Often on
weekends I went elsewhere. My first six weekends in Wilkes-Barre, I
stayed there deliberately. I decided I was just going to force myself to
spend weekends there and find out what there was to do. After giving it a
try, I decided there isn’t much to do there on weekends and I would go to
Philadelphia or New York or visit friends somewhere.
MR. SHAH: Were there any particularly interesting opinions you worked on during that
year?
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MR. SANDMAN: The most interesting case of the year wasn’t mine; it was Fred’s. But it
was one we talked about a lot. It was a case called Mahone v. Waddle. It
was a police brutality case. It was brought by a young African American
in Pittsburgh against the Pittsburgh Police. He had been stopped for a
traffic violation on a Saturday night and pulled from his car and was
beaten, and the police who beat him were shouting racial epithets while
they beat him. He wanted to sue the city of Pittsburgh. But, at the time,
there was a Supreme Court case, Monroe v. Pape—which I think had been
decided in 1960—which said that a city is not a “person” for purposes of
42 U.S.C. § 1983 and that, therefore, you could not sue a city. At the
time, there were a lot of cases going on in courts around the United States
trying to figure out how to get around Monroe v. Pape to make the
treasuries of municipalities available in civil rights cases.
One of the most popular ways at the time was to try to bring a
Bivens-type action directly under the Fourteenth Amendment to argue that
there was an applied right of action under the Fourteenth Amendment.
This case did that, but it also brought another claim. He sued under §
1981, which people traditionally think of as dealing with the right to
contract. And when you first tell people about the case they say, “What
does § 1981 have to do with police brutality?” But the statute says
something about people not being subject to different pains and penalties
by virtue of their race. And the argument in the case was that the
allegations in the complaint fell within the literal language of § 1981—that
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this was all a case all about a situation where a person had been subjected
to different pains and penalties under law because of his race. And there
was almost no authority on the issue.
The case was argued before a panel that included Judge Harry
Kalodner, who had been appointed by Harry Truman. And initially the
case was before Judge Garth, Judge Rosenn, and Judge Kalodner. Judge
Garth at that point was probably the most conservative judge on the court.
He was a good judge, just conservative relative to some of the other
judges. The initial decision was two-to-one in favor of Mahone on the §
1981 claim, and not reaching the constitutional issue because of the
statutory disposition. Before the decision was released, Judge Kalodner
died. So the panel was left with a one-to-one split. And the panel needed
to be reconstituted and Judge Gibbons was appointed to hear the case.
Judge Gibbons was the most liberal judge on the court. The case was reargued
before Judge Gibbons.
I should mention something about the first oral argument with
Judge Kalodner. The case was handled for the plaintiff by Reed Smith,
which wasn’t the international firm then that it is now. It was a big
Pittsburgh firm. And the case was argued by a lawyer named Gilbert
Helwig, who was chair of the litigation department of Reed Smith. He
was out of central casting. The guy was silver-haired and distinguishedlooking,
beautifully tailored, and he gave a wonderful oral argument. And
after he did his rebuttal argument, Judge Kalodner said to him, “Mr.
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Helwig, I have a question that is a little unusual. You don’t have to
answer it. I’m just curious. How did your firm come to handle this case?”
And Helwig said, “Your Honor, our firm has a long tradition of doing pro
bono work and particularly in the civil rights area and we took this case on
pro bono as a part of that program. But, in addition, there is a special
reason why we took on this case: the plaintiff, Mr. Mahone, is an associate
in our law firm.” And sitting at counsel table was a young, very
distinguished-looking African American guy who was very clearly the
plaintiff in the case. They had never introduced him or said that he was
the plaintiff. And when you read the briefs about a young African
American being pulled out of his car on a street in downtown Pittsburgh
on Saturday night, I don’t think the judges were thinking about an
associate with a big Pittsburgh law firm. And all three of them turned
their heads to look at him and, I don’t want to say their jaws dropped, but
it was amazing. It was a moment of drama in an appellate courtroom that
you almost never see. And I thought it was so classy of Helwig never to
have made anything of that and not having tried to play against stereotype
by introducing him. But Judge Kalodner gave him the opening and he
took it, and it was terrific.
Mahone went on to become the chair of the corporate department
of Reed Smith. And I sat next to a partner of his at a dinner in
Washington about four years ago and he said, “Oh, I’m from Reed Smith”
and I said, “You know, I’ve only dealt with that firm once in my life and it
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was years ago and it was a case about this . . . .” And he said, “are you
talking about Glen Mahone’s case?” And he told me about what Mahone
had gone on to do and it was amazing.
Anyway, the case was re-argued with Judge Gibbons and Judge
Rosenn wrote the opinion and Judge Garth dissented. The city petitioned
for certiorari and the Supreme Court sat on the certiorari petition for a
very long time. Very odd. Not clear at all what was going on. And then
the subsequent year, in 1977, the Supreme Court decided a case called
Monell v. Department of Social Services of the City of New York and
overruled Monroe v. Pape, and said that a city could be sued under §
1983, which eliminated the need to decide our case on § 1981. And then
the week after they decided Monell, they denied certiorari in our case, so
the precedential value of the case was really completely eliminated.
Nobody needed to use § 1981 to do what Mahone was trying to do.
One of the most interesting things about the case was that one of
Judge Garth’s clerks at the time was a guy named Sam Alito, and years
later—I think it was 2002 or 2003—I had contact with Alito for the first
time since we had clerked. The occasion was the unveiling of Judge
Rosenn’s official Third Circuit portrait before a session of the court back
in Philadelphia. And the judge asked if I would speak at the portrait
unveiling, which was a wonderful honor. I actually spoke at two portrait
unveilings. One in Wilkes-Barre in the courthouse that now bears his
name there and then at the Third Circuit. I hadn’t been in the courtroom in
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the Third Circuit since I’d clerked. And I appreciated his asking me to
speak so much. But the most important reason to me was that to have the
opportunity for the judge to hear what I had to say about him while he was
alive—much better than speaking at a memorial service. And I thought,
“Here’s my chance to say publicly and to him everything I’ve ever wanted
him to know.” Anyway, there were about fifteen judges on the bench and
Judge Alito was seated off to the left. And I noticed while speakers before
I got up were talking that Judge Alito seemed very distracted—he was
kind of turning in his chair and looking at the ceiling and not paying
attention, and I thought it was rude, actually. I thought that he was
conveying by his body language that he really didn’t want to be there and
had better things to do. And I found it very distressing because this was
an occasion to honor a man that I loved. And I recall while I was
speaking, being aware of him out of the corner of my eye, continuing to do
this and it upset me. There was a reception for Judge Rosenn after the
ceremony and I had to stop by the judge’s chambers before I went down to
it, and by the time I got there Judge Alito had left. But I asked his current
clerks for that year, “Did you notice what Judge Alito was doing?” They
told me that they thought that there might be bad blood between Judge
Rosenn and Judge Alito. They weren’t sure. I contrasted that with my
experience with the judge and his relationships with his colleagues and
thought that was curious.
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Anyway, I go back to Washington and about a week later I get a
letter, and it’s from Judge Alito: “Dear Jim, I don’t know if you remember
me, but I clerked for Judge Garth the year that you clerked for Judge
Rosenn.” Well, of course I remembered him. He rejoined the court as a
judge only thirteen years after clerking there. All of us who clerked for
the Third Circuit that year were incredibly envious of him. And he went
on to say some very, very nice things about what I had said about Judge
Rosenn and how he thought that I had captured his character and how
much he appreciated and enjoyed what I had to say. He didn’t need to
write me that letter and, you know, he put himself out get in contact with
me and write, and all was forgiven. I think he’s not the most outgoing
person and the most socially comfortable, and I think he just may be one
of those people who isn’t aware of his demeanor even when he’s sitting up
on a bench and was not aware of the impression he was creating. But in
the letter, he said, “ I don’t know if you were the clerk who worked on
Mahone v. Waddell . . .” and he went on to discuss the case because I think
he regarded it as the most interesting case of the term and remembered it
vividly. So that was the most interesting case.
There was another case that I worked on and it was a case
involving a lawyer named Abraham Freedman, who was a distinguished
Philadelphia trial lawyer, and he had an on-going case before Judge Leon
Higginbotham, who was then a district judge in Philadelphia, alleging race
discrimination against the union in Philadelphia. And Freedman was
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defending the union. And it was a long trial and very heated and
Freedman was disregarding orders of Judge Higginbotham during the trial.
And, at one point, Freedman was objecting to the admission of evidence
and Judge Higginbotham was overruling him and Freedman not only
persisted in objecting but insisted on explaining the reason for his
objection every time. And Judge Higginbotham finally ordered him just to
stop—“Stop, you’ve preserved the record, you’ve made it clear that you
objected, you don’t need to keep explaining.” And Freedman wouldn’t
stop and Judge Higginbotham held him in summary criminal contempt.
And Freedman brought an interrogatory appeal—it was a collateral order
that could be appealed—and Judge Rosenn felt very strongly that Judge
Higginbotham needed to be upheld on that. He was appalled at the
behavior of a man he described as a seasoned trial lawyer, and he thought
that it was just very important to preserving the decorum of the court and
to Judge Higginbotham’s authority in the court to affirm and to get the
opinion out quickly. This was an occasion where the difference in our
writing styles was an issue between us and I was a little slower in getting
the opinion draft to the judge than he would have wanted. I don’t know
that the case was terribly important precedentially. You still see it cited,
but situations like this fortunately don’t come up very often. But the
judge’s experience as a trial lawyer, his notions of the authority of a
district judge and of the role in appellate court in reinforcing the authority
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of a district judge under circumstances like that made it a very interesting
case. It was the case I personally took the most interest in that year.
MR. SHAH: You’ve talked about meeting some other Third Circuit Judges while in
Philadelphia and also meeting some of your co-clerks, as well as others
who have clerked for Judge Rosenn. Can you just talk about your
extended Third Circuit family—these other judges, these other clerks, and
any interactions that still continue today?
MR. SANDMAN: The clerk I kept in touch with longest thereafter was a guy named Jim Liss
who clerked for Judge Adams—Arlin Adams—and Jim was a real
character. He was from New York City and had never learned to drive—
you didn’t need to learn to drive if you lived in New York City. But he
took driving lessons the year we were clerking because he was going to
work at Davis Polk after that and he was worried that they might send him
off on a business trip to a place like North Dakota where they don’t have
taxis, and that it would be embarrassing for him to explain that he couldn’t
go because he wouldn’t be able to rent a car. And he took driving lessons
from AAA, and I remember he was kind of a clutzy guy, and I asked him,
“Jim, how are the driving lessons going?” and he said, “Well, it’s going
pretty well—I have the gas and the brake down, but I’m still working on
keeping the car in a straight line when I’m steering.” And I thought, you
know, I’ve never heard anybody break the elements of driving down into
gas, brake, and steering wheel, and it was sort of indicative of a problem
in Jim’s approach to driving, but he got his driver’s license. And we
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exchanged holiday cards for years thereafter. I’ve fallen out of touch with
him, but I’d feel completely comfortable calling him up. Then there’s a
guy named Glenn Reiter, who also clerked for Judge Adams. You got to
know the clerks of the other judges that your judge sat with more than
once the best, and Judge Rosenn sat twice with Judge Garth and twice
with Judge Adams, at least, so those were the clerks that we had the most
dealings with.
As far as the other judges, I remember Judge Kalodner. I met
Justice Tom Clark. I had breakfast with him and Judge Rosenn one
morning. Justice Clark had resigned from the Supreme Court in 1967
when his son, Ramsey Clark, was appointed Attorney General, and went
on for at least ten years thereafter with an active second career as a Justice
sitting by designation, and he came to the Third Circuit the year I was
clerking and sat on a panel with Judge Rosenn. I remember during
breakfast his describing being with Harry Truman on the night of the 1948
election while returns were coming in. He was, I think, Attorney General
at that point. Judge Adams was a very serious judge, a very good judge,
very scholarly. He was a serious candidate for appointment to the
Supreme Court in 1975, for the seat that Justice Stevens got, and I think he
wrote his opinions as a prospective Supreme Court candidate—not that he
was political about them, but he was very, very careful about all his
opinions. I remember some of the senior judges of the court. I remember
Judge Biggs, Judge Maris—these were judges who were giants of the
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Third Circuit who lived into their nineties. Oh, and Judge Seitz, Collins
Seitz, was the Chief Judge of the Third Circuit. Very interesting career.
He was really kind of a professional judge. He became a judge at a very
young age—he was Chancellor of Delaware and was Chancellor of
Delaware at the time that a desegregation case was brought against, I
believe, the Wilmington schools. And this was pre-Brown v. Board of
Education. And applying Plessy v. Ferguson, as he was required to, he
found that the schools were separate but not equal and required integration
for that reason. His decision was appealed to the Supreme Court as a part
of the group of cases that went up with Brown and his was the only case
that was affirmed, but for a different reason. And he was subsequently
appointed to the Third Circuit and was long-time judge. He and Judge
Rosenn became very close over time. I remember he came up to Wilkes-
Barre for Mrs. Rosenn’s funeral in 1994. A very kind of a courtly man—
no pun intended—kindly, very gentle in his administration of the Circuit,
very respected by the other judges. I didn’t have a lot of exposure to him
except for the few cases where the court was en banc. I don’t recall that
Judge Rosenn and Judge Seitz sat together on a panel of three the year that
I was clerking.
MR. SHAH: Did you ever talk to Judge, now-Justice Alito again, after that initial letter?
MR. SANDMAN: I didn’t. He was in Washington for some time during the Reagan
administration, but that’s when I was working at the Denver office of
Arnold & Porter, and then he went back to New Jersey and became U.S.
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Attorney there before he was appointed to the Third Circuit in, I think, it
was 1989.
MR. SHAH: Could you describe Judge Rosenn’s judicial philosophy and his
jurisprudence generally?
MR. SANDMAN: Yeah, he really didn’t have an agenda. He did decide each case that came
before him separately. He was, though, very much aware of the big
picture and of the importance of fairness. I know that people today would
describe that as too subjective and say, “Who says what is fair—that’s a
personal matter and you’ve got to stick to the law,” but so many cases are
not clear-cut. Having an appreciation for the practical consequences of the
outcome is significant and he did have a sense of right and wrong, fair and
unfair, and that affected his thinking. But he was not somebody that I
would describe as being result-driven or liberal or conservative. Over
time though he did, he became a liberal judge. And I think he became
more liberal the longer he lived and the longer he judged. I don’t know
why that is. He was appointed by President Nixon. Now Nixon—for all
his faults and aside from his approach to Supreme Court nominees—I
don’t think was terribly political when it came to appointments to the
Courts of Appeals. And Judge Rosenn was well-qualified. He was
politically connected, but I don’t think anybody would say, “Oh, this is a
conservative appointment to the Third Circuit.” Judge Rosenn wrote a
number of opinions on abortion rights. He took senior status in 1981, at
the earliest opportunity he could, I think, although I never talked to him
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about it, because he wanted to open another seat on the court—that he
thought it would be the most helpful thing he could do for his colleagues
to bring another judge aboard to share the workload. And he continued for
many years after he took senior status to carry pretty much a full load. He
did for many years sit by designation in other circuits and I think he sat in
every circuit except the Tenth, which I was always disappointed in
because in the 1980s, when he was doing this a lot, I was working in
Arnold & Porter’s Denver office and he never came to see me out there.
But he wrote an opinion for the Eighth Circuit in an abortion rights case
that was the subject of an editorial in the New York Times, a favorable
editorial. He wrote an opinion in his later years, sometime in the 2000s
that, I think, might have had to do with the Pennsylvania social welfare
system. I can’t remember what it was. But if you looked at his opinions
in his last twenty years on the bench and you didn’t know who was writing
them and you were asked “was this a liberal judge or a conservative
judge,” I think by and large you’d say it was a liberal judge.
But his guiding principles were taken seriously every case before
you; be respectful of the litigants; be mindful of the practical
consequences of your rulings—considering fairness has a role in the
judging process; and be diligent in your work. There was nothing ever
slipshod about the way he approached his work right up until the end. His
last opinion as a judge was filed two days after he died. He had completed
work on it and it just hadn’t made its way to the clerk’s office to be filed
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officially. In his last year or two, I remember his telling me about an
opinion that had come up during the changeover in clerks from one term
to the next, and he wrote the entirety of the opinion himself, when he
would have been ninety-four or ninety-five.
MR. SHAH: You’ve touched upon some of your interactions with the judge after your
clerkship with the lecture series and reunions, and you’ve briefly
mentioned the portrait unveilings. Can you give us some more detail on
those interactions including any advice you sought from him and any
advice he offered to you as you were beginning your career?
MR. SANDMAN: Yeah, I definitely became closer to him over time. One of his sons—he
has two sons: Keith, who’s a law professor at the University of Miami,
and Daniel, who’s a pediatric psychiatrist in Boston—Daniel, who’s the
more of the people-person of the two, told me a few years ago that I got
his dad, that I understood his dad. And the judge followed what I did in
my career and the things that he seemed to appreciate most, the things that
he spoke to me about, were things where I did something to try to promote
diversity or improve the quality of life for young lawyers, or pro bono
activities, and he seemed to approve and that meant a lot to me.
He asked me if I would be interested in joining the board at Wilkes
University in about 2002 or 2003, and he asked another one of his former
clerks Linda Fisher at about the same time to join the board. And it was
interesting. He’d been on the board at Wilkes forever and here he was in
his nineties and he’s still playing role recruiting board members, which is
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one of the most important things that any member of any board can do—to
bring new blood into the organization. And I think he thought that the
board would benefit from our perspectives. And he knew that we weren’t
from Wilkes-Barre; most of the board members are local or they’re alumni
of Wilkes even if they don’t live in Wilkes-Barre currently. And that
turned out be a terrific experience because it gave me yet more
opportunities to get back to Wilkes-Barre and to be on a board with the
judge. I’d sit next to him and Linda—I didn’t always do that because I
didn’t want people to think that we were clones and that we had the same
views on everything—but I talked to him about issues that were coming
up before the board or if there was something I had a concern about before
I voiced it at a board meeting, I might give him a call and talk it over with
him and check my judgment against his.
I talked to him about significant career moves or career moves that
I was considering. I talked to him about something in 2005, the year
before he died. I was thinking of making a career move at the time and I
was surprised by how direct he was in saying he didn’t think it was a great
idea. But I asked him for a reason and I took his advice. But for those last
years from 2002 or 2003 until 2006, the three times a year that the Wilkes
board got together that was just a wonderful thing in his last years to have
that frequency of contact. I since have had to resign from the board when
I took my job here. I just wasn’t able to continue making the trips up to
Wilkes-Barre. I have to use vacation time to do it and when I first came to
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work here I found that when you go to work for the government, when it
comes to vacation time, there’s no difference between being fifty-six and
being twenty-two or having been in a profession for thirty years or not at
all. I had thirteen days of vacation time and I couldn’t use them to go up
to Wilkes-Barre for board meetings.
But often I didn’t have a lot of one-on-one time with him because
often the occasions on which we got together were with other clerks—it
was a reunion; it was a dinner before the lecture series. I always had a
standing invitation to stay with him at his house. I didn’t want to impose,
particularly after Mrs. Rosenn died. I did make sure that my kids met him.
There was an event in 2004 or 2005 where the northeastern Pennsylvania
PBS affiliate did a biography of him and had an event at Wilkes where
they premiered the video biography of him, and we went up for that. And
I was interviewed for that at my office at Arnold & Porter here. Our kids
came up to that and I think that sort of seeing that video of Judge Rosenn’s
life gave them a picture of the man as a whole beyond anything that I’ve
been able to communicate to them myself. And particularly my daughter
was very struck by his life story and she was also struck by the interview
with me, and I didn’t realize this until—I remember it vividly—it was
election night 2008. I took my daughter out to dinner while my wife was
doing poll-watching in northern Virginia that day. And—I don’t know
how it came up—she said she wanted to ask me three questions about
Judge Rosenn. She was sixteen at the time. She asked “What was it about
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him that made him so significant to you?”; “Do you try to be like him?”;
and “Do you know people today who remind you of him?” Those were
three really great questions, but the most important thing to me was what
triggered them. She had detected something about the importance of this
person in the grand scheme of my life and was interested in it and wanted
to know more. But the last question in particular was really something; I
never thought of that—you know, in whom else do I see the qualities that I
so admired in him. And it really got me thinking and I could come up
with a pretty good list, a very diverse list, in the broadest sense of that
term—people younger than I am, people who aren’t lawyers. But,
anyway, she obviously picked up something. She had the intelligence to
ask me those questions about him.
MR. SHAH: Who were the people on that list?
MR. SANDMAN: People here in Washington like David Stern, who’s the Executive Director
of Equal Justice Works, which does public-interest internships. He’s just
a terrific guy. He loves what he does. He’s very enthusiastic about it.
He’s just devoted his life to public service. Esther Lardent, who’s the
president of the Pro Bono Institute. Stuart Land at Arnold & Porter. Kaya
Henderson, who is deputy chancellor here. I see in her a lot of those
personal qualities and, you know, Kaya’s forty—she’s eighteen years
younger than I am. It was a very interesting exercise and made me think
broadly the more I contemplated the question.
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MR. SHAH: And you mentioned talking to the judge in 2005 about a career move.
Could you describe that talk and what it was about?
MR. SANDMAN: Yeah, it was to be executive director of the American Inns of Court, the
national organization that oversees all the Inns of Court. They’re devoted
to increasing professionalism and ethics in the practice of law and in
promoting mentoring relationships. I like their mission very much. And
there are a couple of Inns of Court here in Washington that I am not a
member of, but I know people who are members of them and find them
very useful. I just thought that in terms of a platform to possibly have an
impact on a profession that I think needs some help these days, that it
might be an interesting opportunity. There isn’t an Inn of Court in
northeastern Pennsylvania, so I don’t think the judge was personally
familiar with them, but I explained it and the judge just said he was
“dubitante”—that’s the way he put it. And that, for the judge, was a “no.”
And I didn’t press him on it, but I think he was probably right.
Particularly for an organization like that that really functions at the local
level through its individual chapters, I don’t know that the executive
director of the organization can, in light of the structure of the
organization, have that much of an impact on what goes on.
All sorts of different opportunities came up for me from time to
time. He asked me about law schools. The Vermont Law School is one
that I briefly had an interest in and that Dean Fitz at the University of
Pennsylvania was encouraging me to apply for. My family and I had
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vacationed in Vermont since 1997. But I got into the process when they
were on the verge of picking somebody at the end of a search process that
was about to conclude. Academia is something that’s always interested
me.
And I don’t think I talked to him about this one, but in 2001 or
2002 I was considered to be general counsel of Harvard when Larry
Summers was president there. I met with Larry Summers for about an
hour-and-a-half sometime within his first year as president. We met in
what used to be the president’s residence on the campus there, a historical
house. And he ultimately decided to stick with the person who had been
deputy general counsel. I think he fired the person who had been general
counsel when he came in or they parted ways. And the deputy general
counsel became the acting general counsel and he decided after a very
long period of time to keep him on. But it was interesting. If he had
offered me the job, I don’t think I would have taken it. I didn’t like him
personally. I wasn’t surprised when he had problems later at Harvard.
And I interviewed with the dean of the business school and the dean of the
law school and one of them—I think it might have been the dean of the
business school—said, “He’s controversial, but he has the potential to be
Harvard’s greatest president.” And I think his personal qualities brought
him down. I think he’s obviously a brilliant, very, very smart man but in
terms of personal relationships and tact and diplomacy—some of the
things that you just need to deal with other people in a complex sort of
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organization—it didn’t work out for him and I wasn’t surprised. It was
interesting. I hadn’t known much about Harvard and the way Harvard is
governed. It has a very unusual governing structure, which I think would
have complicated being general counsel, but the job by itself is a very
interesting job. Harvard is a huge business in addition to being the
world’s leading academic institution and everything from intellectual
property rights to land development makes up a very interesting range of
issues, the variety of which was something that intrigued me.
MR. SHAH: What was the meeting like? What did you guys talk about?
MR. SANDMAN: He wanted to know why in the world I would want to give up being
managing partner of Arnold & Porter and the income of a big firm partner
to take that job. He talked to me about some of the problems he had had
with the prior general counsel. He talked to me about how Harvard was
governed and what he was trying to do. He did most of the talking, as I
recall (laughter).
MR. SHAH: And just to finish up with your clerkship and Judge Rosenn, are there any
former Judge Rosenn clerks here in DC?
MR. SANDMAN: Yes, there are a number of us and usually our point of connection is
sharing rides together up to Wilkes-Barre when we go up to the Rosenn
Lecture Series. Blake Lee and Mike Selter are here, and Rick Shifter, a
good friend of mine who worked for Judge Rosenn two years after I did.
Rick also went to University of Pennsylvania law school and worked for
Arnold & Porter for a number of years. He is now managing partner of
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TPG, Texas Pacific Group, a private equity company. I guess there are
probably ten or maybe a dozen former clerks here.