John D. Bates Complete Oral History

Honorable John Bates
Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
Honorable John Bates
Interviews conducted by: John Cooney, Esq. February 12 and 19, 2020
February 19 and November 12, 2021
January 13, February 11, March 11 and April 14, 2022

ORAL HISTORY OF HONORABLE JOHN BATES
TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
Honorable John Bates… ……………………………………………………………………………….. iii
John Cooney, Esq…………………………………………………………………………………………..v
Oral History Transcripts of Interviews
February 12, 2020 ………………………………………………………………………………………….1
February 19, 2020 ………………………………………………………………………………………..36
February 19, 2021 ………………………………………………………………………………………..70
November 12, 2021 …………………………………………………………………………………….110
January 13, 2022 ………………………………………………………………………………………..142
February 11, 2022 ………………………………………………………………………………………178
March 1, 2022 ……………………………………………………………………………………………216
April 14, 2022 ……………………………………………………………………………………………253
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Honorable John Bates ………………………………………………………………………………C-1
John Cooney, Esq…………………………………………………………………………………… D-1

NOTE
The following pages record interviews conducted on the dates indicated. The interviews were recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the Oral History Agreements included herewith.
© 2024 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are trained by the Society. Before donating the oral history to the Society, both the subject of the history and the interviewer have had an opportunity to review and edit the transcripts.
Indexed transcripts of the oral histories and related documents are available in the Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most interviews, as well as electronic versions of the transcripts, are in the custody of the Society.
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Oral History of Honorable John Bates
First Interview
February 12, 2020
This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee is Honorable John Bates. The interview took place on Wednesday, February 12, 2020. This is the first interview.
MR. COONEY: Would you give us your full name please and date and place of birth, state, county, city, et cetera?
JUDGE BATES: Good morning, John, and thank you for doing this. I am John Bates, and I was born on October 11, 1946, and that took place in Elizabeth, New Jersey, which is Union County, New Jersey
MR. COONEY: I’m going to ask you one more question before we pause briefly. When did your ancestors, your parents or grandparents, first arrive in the United States?
JUDGE BATES: This may take a minute. On my mother’s side, she always described it as they didn’t come on the Mayflower, but it was one of the boats shortly thereafter. They were early arrivals in the country before it was a country.
On my father side, it’s a little less certain, but they certainly were here well before the American Revolution, during the revolution, so they are, on both sides, long-term in this country.
MR. COONEY: Was your family from New Jersey, at the time of the Revolution, in the middle of the battles back and forth between New York and Philadelphia?
JUDGE BATES: They were more Pennsylvania, in the Philadelphia area, and yes. There was some New Jersey family.
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MR. COONEY: Give me the full name of your parents and their dates and places of birth.
JUDGE BATES: My mother, Sarah Deacon Bates, her maiden name being Deacon, was born in December of 1910, and her family was from outside Philadelphia, Bryn Mawr, Pennsylvania, specifically.
My father was born in June of 1910. His family, when I knew them, lived in Cranford, New Jersey. But both my mother and my father, by the time they were more than toddlers had gravitated to the Elizabeth, New Jersey area, which is where I grew up but also where they went to high school.
MR. COONEY: Did they meet in high school?
JUDGE BATES: I’m not sure they actually met in high school. They might have met before. They were sort of in the same social grouping, and so I’m not sure whether it was actually high school meeting. They didn’t go to the same high school. Both my parents went to private local high schools. Not boarding schools, but private high schools, and they were each gender limited if you will, a boy’s school and a girl’s school. Not associated, but not too far from each other.
MR. COONEY: Remind me, did you give me your father’s name?
JUDGE BATES: My father’s name was not provided to you. It was Richard Doane Bates. And my brother was Richard Doane Bates, Junior.
MR. COONEY: And his date of birth?
JUDGE BATES: I did give that, and that was in June of 1910.
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MR. COONEY: What was their college years’ experience like? They would have been classic Depression Era babies.
JUDGE BATES: That is true. My mother went to Bradford College up in Massachusetts, and my father went to Wesleyan University in Connecticut, and they had interesting experiences, but I’m not sure that I can tell you much of what they experienced day-to-day.
MR. COONEY: So what did your parents do when they graduated from college? Were they married shortly after graduation?
JUDGE BATES: Not too long after. My mother, the job market for women was a little different then. My mother worked as a secretary doing accounting and secretarial-type work, but once she was married and had children, she was a stay-at-home mom.
My father spent most of his professional life working for what was then Singer Manufacturing, sewing machines and other things, and he worked for them in a production job. He was supervising, but in the white-collar sense, supervising some of the production in the plant. Their main plant was in Elizabeth, New Jersey, in Elizabethport, and he did that until he retired. It was not his only job but his primary job for his entire life.
MR. COONEY: How many children did your parents have?
MR. BATES: They had four children. The siblings were, and still are, my older sister, Susannah, who is eleven years older and sort of had a separate life growing up because her three siblings, three boys, were all a decade
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younger than she was. My older brother Richard, Junior, two years older than me, and younger brother Jim was two years younger than me. So there are three boys packed together with an older sister. When we were pretty young still, she was riding on the back of motorcycles with boyfriends.
MR. COONEY: Three baby boomers and one from the quietest generation.
JUDGE BATES: I guess you could say that.
MR. COONEY: Where did your siblings go to college?
JUDGE BATES: Suzannah went to Wheaton College up in Massachusetts, and her boyfriend went to Cornell, and so she spent a lot of time at Cornell. They married when Suzannah was still pretty young. They had five children in quick succession quite frankly. I think by the time she was thirty, she had five children. Wonderful kids. She and her husband, David Loeser, had a great life until it sort of fell apart and they got divorced. But she spent most of her time, I would say, raising those kids.
My older brother Dick, who lives here in Washington, or actually, Chevy Chase, was a chemist, a chemistry major. As I said, he went to Cornell and went to Graduate School at Columbia in New York and ultimately became the head of the Chemistry Department at Georgetown University. He has been a professor for his personal life, retired a few years ago, and he lives here in Chevy Chase, he and his wife Ruth Ann.
My younger brother, Jim, who went off to Lafayette College originally, didn’t finish there. He eventually got his degree from Miami
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University in Ohio. That was interrupted by military service, and he lives in North Carolina with his wife Pat. I see him less frequently, mainly because of geography.
MR. COONEY: Going back to your father and mother. What was it like growing up with them? Were there activities and interests, things that they introduced you to?
JUDGE BATES: My parents were pretty typical, I think, of that generation. They certainly were focused on providing for their kids and making sure their children had what they needed educationally as well as provisions of life that one needs. And I would say that that was their main focus. Their main focus was on a solid family and making sure we flourished in that environment.
My father was not overly focused on his work. He came home pretty regularly. He took the bus to work and back, and he got home pretty regularly at the same time, and we had dinner together every night, and they instilled in their children an appreciation for education, reading, and, probably less so, for politics, government. I don’t remember a lot of dinner-time conversations about current events of the day in the political or governmental arena. Unlike today, which does consume a lot, I think, of dinner-time conversations of my generation and with my children as well. It was not dominant in my family then.
They instilled good values, morals. We weren’t an overly religious family, but we were a church-attending family. It was a pretty good upper-middle-class, I would probably call it, life.
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MR. COONEY: May I ask which denomination your family belonged to?
JUDGE BATES: Episcopal.
MR. COONEY: I’m Catholic, so I’m not certain about how Episcopalian children are brought up in the church and the way that we were.
JUDGE BATES: Well, not the same way as with the Catholic faith, but certainly Sunday school was part of our normal routine up to a point. There’s not a rigidity to it. We didn’t always attend, but we regularly attended, and certainly by the time each of us were in high school, there was less of a focus on that. My younger brother probably removed himself from religion faster than I did for example, but I was involved in some of the youth activities. I was very active in, and then president of the state youth group. I would say that that was as much a social undertaking on my part as it was a religious undertaking on my part looking back at it.
MR. COONEY: You were hosting parties or gatherings of people?
JUDGE BATES: Gatherings of people. It was to some extent, an organizational structure, that you got involved in doing some good things in the community, but you also got involved in meeting with each other and having those social connections.
MR. COONEY: Good things in the community these days that might mean something like working at food banks. What did that translate to back in that generation?
JUDGE BATES: Similar type of stuff. I would say it was a positive experience for me, and that I did have that experience, but I don’t want to over-emphasize it because it’s not as if my primary focus was in the church.
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MR. COONEY: Let me jump back several years here. What was your father’s experience in World War II?
JUDGE BATES: His experience in World War II was that Singer Manufacturing changed from producing sewing machines to producing engines and other things for military equipment, and he was the production manager, and therefore, he did not go into the service. He basically had a civilian job. He was fit for the service and otherwise would have gone in, but he had a civilian job that was viewed as important enough that he stayed in that job.
He had two brothers and a sister. His two brothers both went into the service and served in the military, although neither of them in World War II kind of combat.
MR. COONEY: You raise an interesting point. Was your family part of a large family with your father having any number of siblings? Were you close to your cousins and your aunts and uncles?
JUDGE BATES: Yes and no to your series of questions. My father’s family was not small, in that he had three siblings. But his two brothers, one of whom never married, the other of whom married but had no children, limited the size of the extended family. His sister did marry and had two children, so the only cousins I had from my father’s side were those two children and an aunt. We were not particularly close to them. We saw them basically at holidays, ending, you know, in teenage years. So a modest extended family on that side and not that much of a relationship with them.
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On my mother side, my mother had one sister. She died, however, in early adulthood, her young 20s, so limited family on both sides.
Both of my grandmothers were alive until I was in my teens, actually not even early teens for one. Younger than that. They both lived into their 80s. Both of their husbands, my grandfathers, died at much earlier ages, and I never had any relationship with them.
MR. COONEY: Where did you attend grammar school?
JUDGE BATES: In the neighborhood. Robert Morris Grammar School was just, it wasn’t a short walk, but I walked to school every day. It was probably half a mile or so. It was a grammar school that was predominantly white middle class.
MR. COONEY: Did your family live in the same house the entire time? Did you ever move, or did you live in the same house all through grammar school?
JUDGE BATES: Almost the same house. I was born on one street, but then by the time I was, I think, three years old, we moved one block over, and that was the house that I was in until I went off to college.
MR. COONEY: What can you remember about grammar school? How do you remember yourself being a student?
JUDGE BATES: As a student, I think grammar school was pretty routine, if I can use that word. I don’t remember much outstanding in terms of the academic end of the educational experience. I remember lots of the kids and activities, both in school and out of school, and I remember it as being basically a pretty good time and lots of good relationships. I started to get involved in
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a couple of activities in grammar school, like cub scouts or like playing the saxophone. But in neither of those instances did I stick with it. I left cub scouts, and there was something probably with the musical instrument, it was failure of talent.
MR. COONEY: You were in school with your cohort of friends from the neighborhood it sounds like?
JUDGE BATES: Yes. Pretty much. Now that didn’t remain true, but for grammar school, yes. Now the way the geography worked, the core of the kids in that school did not live exactly where I lived. I was sort of on the edge of the school district for that elementary school, so more of the kids were located closer to the school than I happened to be. But yes. I was in school with the kids from the neighborhood. It changed after that.
MR. COONEY: Did it change for junior high school?
JUDGE BATES: It did change for junior high school. I went to the public junior high school. But the public junior high school serving a larger area was not a predominantly white school. It was very diverse, racially and economically, and so it was a much different experience, I guess the years that I was in that district. It was a little more difficult school to be in because of the variety of neighborhoods and kids in the school. It was not as homogeneous, and so there were more tensions. This was still prior to the 1960s. Still, there were some events that reflected racial and economic disparities.
MR. COONEY: What were those events?
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JUDGE BATES: What were those events that showed you the disparities? Oh, sometimes there were physical things in terms of fights, or sometimes one group picking on another group, cliques forming, and some kids not interrelating with other kids, and it seemed to be that was happening along racial or neighborhood or economic lines. So it just, you know, looking back at it, you could see that that kind of difficult and sometimes tense situation existed in that educational setting.
Elizabeth, New Jersey, was a little bit unusual because after junior high school, you went off to the public high school, and the public high schools in Elizabeth, New Jersey, at that time were segregated by gender. There was a girls high school and a boys high school, and neither of the schools were particularly top-notch. I would say the whole public education system in Elizabeth, New Jersey, at that time was less than ideal. It extended down from the high schools into the middle schools. I didn’t see it in the elementary schools.
MR. COONEY: So when you say that there were tensions, what form did the tensions take? Was it armed force or disgruntled people?
JUDGE BATES: Oh, give me your lunch money, stuff like that.
MR. COONEY: What group did you hang out with, how that would be defined?
JUDGE BATES: I don’t really remember as much having a group and being able to define it. I think that it was natural to gravitate towards kids more from my neighborhood because I would walk to and from school with them. So
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that was just a natural thing, like it was for everyone else in terms of gravitating towards those that they have reason to be with.
I also probably was a little more, and I stress little, academically inclined and interested, so I was hanging out, if you will, more with that group.
MR. COONEY: Do you remember what courses or what areas seemed to interest you?
JUDGE BATES: I would say at that time in my life, the interest in science and math-related courses were more intriguing and more exciting for me.
MR. COONEY: How about sports? Were you active?
JUDGE BATES: I was pretty active in sports. That was my primary focus as a youth, I would say. I played, it wasn’t the actual Little League as we know the organization, but I played youth baseball, and that meant that I traveled by bicycle to one or two parks, either a park that was more in the suburban areas where there were games, or a park that was more in the urban area where there were games. I would play baseball as much as I could, and we played baseball in the neighborhood. We had regular games in the neighborhood in fields. They weren’t formal baseball fields, but they were fields that we made into a baseball diamond, if you will. We played football and basketball and all of that in my high school years.
And then when I went off to high school, I continued to play. Certainly in terms of my neighborhood and my upbringing, a lot of the focus was on outdoor activities, and most of those outdoor activities.
MR. COONEY: What was your baseball position?
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JUDGE BATES: Well, most of the time, and certainly this was true when I was in high school, my position would be either second base or the outfield. I think that was a reflection of, okay, well, he doesn’t have a good arm, he’s not the fastest guy, so those were the positions that you wound up in.
MR. COONEY: The rest of us can only dream. What did your family do in summers for vacations? Did the family travel?
JUDGE BATES: We didn’t travel a lot, but some of the travel we did was family oriented. We’d go to, certainly in the early years, to the Philadelphia area, to Bryn Mawr where my mother’s family was and some aunts and uncles. So that was one typical trip. During the summers, ultimately we went to New Hampshire quite frequently, in the White Mountains. The lake was where we rented a cabin. We originally went there because one of my mother’s uncles had a summer home in the area. We didn’t wind up staying there. We stayed in a cabin-type area. That was a good family experience. The three boys had a good time doing that. My sister was old enough that she pretty much moved out, so she was not there. That was the primary travel that we did either to my mother’s family or a summer vacation.
MR. COONEY: Were you hikers or boaters?
JUDGE BATES: We were boaters in the sense that we would get on little canoes and the like and go out and throw a fishing line, but the lake was not a big lake for a bigger boat, so we didn’t boat that way. We weren’t really much of a sail boating family. More paddling. Hiking, yes, but an informal walk into the woods. But I don’t remember my parents, certainly not my
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mother. She was not that interested in it. I don’t remember sort of organizing the group and going off on a hike.
MR. COONEY: Very much like my childhood years, only we were at Lake Winnipesaukee. The same general neighborhood.
JUDGE BATES: There you go. But a bigger lake.
MR. COONEY: Yes. Motorboats and more things to watch out for. What was it like when you came back and went away to school?
JUDGE BATES: When you say when away to school, what do you mean?
MR. COONEY: I thought you said you had gone off when you started high school.
JUDGE BATES: My father had gone to, my uncle had gone to, and my older brother had gone to a private school. It was sort of a neighborhood private school, if you will, at that time. The name of the school is the Pingry School, and it’s a little larger now and is not in the neighborhood anymore, but it was walking distance actually. I walked to school. But I went off to private school for my high school years. I didn’t want to. This was a fight with my parents, but this was what we did, and off I went. Now it probably made it a little easier in that, as I said, the public high school was dreadful in Elizabeth, and not being Catholic, parochial school was not really an option. I had some good friends who did go to parochial school, mainly to Saint Mary’s. They continued to be good friends of mine during high school, from the neighborhood. But I went off to Pingry.
MR. COONEY: What was the discussion like with your parents about not wanting to go off to school?
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JUDGE BATES: I guess a pretty typical discussion. No, I don’t want to do that. Well, we think it’s best, and you’re going to do it. It didn’t turn into a bloodbath by any means and was not that prolonged, but certainly I was initially an unwilling participant.
MR. COONEY: What was the transition like as an entering student?
JUDGE BATES: It was a new setting, a very different setting, perhaps made easier in some respects by the fact that my older brother was there and made harder in some respects by the fact that my older brother was there, because my older brother and I were very different. He was much more academically oriented than I was, so the expectations were pretty high for me. Sometimes I did not live up to those expectations. But in any event, the transition was not a bad one. I settled in pretty quickly. I made friends. I got involved in things, and I would count my high school experience as a good experience overall. It was a high-quality school, very demanding, but still a school that was for me part of the neighborhood. It’s just a broader neighborhood because the kids came from a much wider geographical area. You know, I would have a couple of kids who lived close to me, but not a lot.
MR. COONEY: What was the academic curriculum like?
JUDGE BATES: It was a very good curriculum. I mean the math courses, science courses, English, very very, good teachers. The school at that time, I guess our class size was probably 65. All boys. It was a boys’ school. Out of those
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65 kids, we probably had 20 kids going to Ivy League schools. I mean it was a very rigorous academic environment and challenged you quite a bit.
MR. COONEY: What were your favorite courses?
JUDGE BATES: Initially, I would say I gravitated much more towards math and sciences. That didn’t stay with me throughout high school, but certainly at first that was true. Things still depended in large part on who the teacher was and how interesting the teacher was. Teachers can make courses interesting, whether the subject is history or biology or calculus.
MR. COONEY: Who were your favorite teachers?
JUDGE BATES: I had one favorite teacher who wasn’t actually someone who taught me. He was the biology teacher. He was virtually everyone’s favorite teacher. He is still associated with the school. He doesn’t teach anymore, but he sort of heads up their alumni stuff. He was a fantastic coach. Again, didn’t coach me in his primary sport, which was soccer. He’s probably, I think this is accurate, the winningest soccer coach in high school history in New Jersey and maybe nationally. He was very very successful. Miller Bugliari. Very good with the kids and good as a coach, good as a teacher, good for the school.
Another teacher was a math teacher that I had as a freshman. He also wound up being the varsity basketball coach when I played basketball. He was an inspiration, particularly the long shots that he could make on the basketball court. Yeah, he had a sad life eventually, but during high school, he was respected and looked up to a lot.
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There was an English teacher who was sort of different, Mr. Hanly. He was very old school, sort of a white-haired gentleman, as we are now. He was just sort of a solid, almost grandfather-type teacher figure. He too was very impressive to all the students.
MR. COONEY: Can you remember any paper or project that you worked on that you’re proud of looking back?
JUDGE BATES: Papers and projects. I remember some. Part of typical papers dealing with some of the classics in Dr. Hanly’s course. I remember experiments in chemistry. But I don’t have a vivid memory of any particular project, paper or otherwise. There were lots of challenging things in the curriculum, lots of challenging tasks. It was a rigorous academic environment. To some extent, I was in awe of some of the kids because they were very, very talented. Some of my classmates are physics professors at Harvard for the last 40 years. They had those academic qualities in high school as well.
MR. COONEY: Did you find that intimidating?
JUDGE BATES: At times. Sure. I would not say that I was academically intimidating for anyone else, but I did alright, but certainly not top of the class in that group.
MR. COONEY: You said you were active in sports and active in activities. Why don’t we start with sports. It sounds like you played basketball. Did you also get to play varsity baseball?
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JUDGE BATES: I did play. Basketball and baseball were the two varsity sports. I was playing football in my sophomore year on the JV team, and I tackled a fellow, an opponent, who went on to be a quarterback at the University of Michigan. I say I tackled. We brought him down eventually, but I needed help, and help arrived helmet first into my upper arm and that injury kept me out of most of basketball season as well, and that was pretty much the end of my football career, even though I liked football, I was much too small to be serious about playing it. But I did play basketball and baseball. A lot of my energy was devoted to those endeavors, and I enjoyed it a lot. That’s not to say that I had great success as a high school athlete, but I was on the teams and started on the teams by the time I was a senior. I was a real participant, but not by any means the star.
MR. COONEY: You must have had a very close group of friends between the two sports and a relatively small class size.
JUDGE BATES: I did. I think that that’s one of the good things about a small class size is you get to know a lot of the kids and you get to know them well, and we shared a lot of different experiences, both in the classroom and on the athletic field. It was overall a pretty good life.
MR. COONEY: Did they have class officers in the school?
JUDGE BATES: They did. I was not one.
MR. COONEY: What about other activities besides sports, the extracurriculars, at school or at home?
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JUDGE BATES: I was involved in the church youth organization. That was my primary formal outside of school activity. I still had my neighborhood friends and did a lot of things with them, but there was no other formal activity that I was involved in. It was a little different, at least for me back then, than it was for my kids or my kids’ kids, where so much is structured nowadays and even when my children were growing up with all the activities. That wasn’t really true when I was growing up. It was much more go out and play than it was – you know, find your own way – than it was all these activities were arranged by your parents. And parents sometimes participated in them. I’ll bet that my parents, I can’t remember my parents attending one of my high school basketball games. They may have. I’m not saying they didn’t, but I don’t remember that. And I only remember them once or twice attending any high school baseball game. My father was working, so he just didn’t have the flexibility to get away from work for an afternoon game, and our games were all in the afternoon, and it wasn’t something that my mother tended to do. So it was different than my experience as an adult where I was very active in my children’s activities, both school-related and outside of school.
MR. COONEY: Looking back on it, how would you characterize your intellectual and emotional development at that stage, if it’s possible to even ask that about a 17- or 18-year old boy.
JUDGE BATES: Stunted. I mean both intellectually and emotionally, obviously. But I would say in seriousness, I would say that intellectually I was in an
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environment that enabled intellectual development. This was sort of expected in my home environment, and it was there to take advantage of whether you wanted to or not in my school environment in high school. So I would say my intellectual development, while not something that you can point to particular events, it just was an expectation, and it happened naturally given the environment at home and the environment at school.
Emotionally, that’s not something that I probably am the best person to comment on, but I always felt, and I look back and still feel, that I had a great family environment. That’s not to say it was free from tension or difficulties with my siblings at times. My older brother and I didn’t get along perfectly, by any means, but had a pretty good life.
MR. COONEY: Who could ask for more.
JUDGE BATES: Who could ask for more, John. That’s exactly right.
MR. COONEY: Let’s concentrate now on what it was like to transition from home to college. How did you settle on Wesleyan?
JUDGE BATES: I would say that it was natural for me to gravitate towards small New England schools, although my safety school, if you could call it that, was the University of Virginia, but it was pretty natural to gravitate towards small New England colleges. That’s what my family was used to, and that’s what my school, Pingry, most of the kids went in that direction. So that was pretty natural for me.
Wesleyan was someplace that I became familiar with. My father had gone there, and actually, three of my classmates went there as well,
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one of whom was on the basketball team with me, another of whom was the president of our class, and a third of whom was someone that I was pretty good friends with. So it was, you know, a pretty safe environment as well in terms of going off to college but knowing some people who were going with you.
MR. COONEY: Do you remember which teachers recommended you?
JUDGE BATES: I’m not sure I ever knew. I’m not sure that the recommendation process was something that was as public or perhaps even as important as it eventually became, so I’m not sure what the teacher recommendations were. I didn’t know then, and I don’t know now.
MR. COONEY: Did you have summer jobs? Were you doing anything outside the confines of school and sports?
JUDGE BATES: I had to work during the summers. I had my first summer job I think when I was 15, and certainly by the time I was 16 and 17, I was working in a full-time summer job at a sheet metal factory, a small place that would install air conditioning ducts and things of that sort that used metal fabrication. I started off working in the office when I was younger, but eventually, and I did this pretty much all through college as well, but I eventually was driving a truck. I was never a fabricator. That was a union job, so I never really got involved in that, but I did a lot of the other stuff, including driving a delivery truck to job sites and so forth. That was my primary job all the way until I finished college. I was routinely doing that, and I needed to because I needed the money. My parents didn’t have a lot
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of money, and they spent most of what they had on educating their kids. I give my parents a lot of credit for insisting that each of their children had educational opportunities, both in terms of high school, because those educational opportunities wound up being private school and therefore costing a lot of money and sending their kids to college. Both of my parents’ families had been better off pre-Depression than they were post-Depression. That was especially true of my father’s family, my father’s father and mother lost a lot during the Depression. That was true to a certain extent as well for my mother’s family, although the entire family didn’t suffer as much. But my mother’s mother, my grandmother, after her husband had died, had really limited resources. Not such that she was poor by any means, but such that there wasn’t a lot of family money for my parents. My mother didn’t work. My father had a good job, but it was not a high-income job, and so they, to their credit, they really made sure that their resources were devoted to the educational benefit of their children, and that meant that for, you know, any excess money, I needed to work to get it, and that was true in college too because while I was in college I worked as well. Most of the time I was flipping hamburgers at one of the places on campus.
MR. COONEY: A classic campus greasy spoon?
JUDGE BATES: Yes. There you go.
MR. COONEY: So you must have known everybody [laughter]. If I count right, you matriculated to college in 1964?
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JUDGE BATES: That would be correct.
MR. COONEY: So that was right at the start of the Civil Rights Movement and right after President Kennedy’s assassination. When you were in your high school days, did those have an influence on you and your fellow students?
JUDGE BATES: I think the Civil Rights Movement had a subtle influence, not a dramatic influence. There were changes and developments that we were aware of, we discussed. There was not a large African American community in my high school. There were some, but not a large community. There were one or two foreign students, but again, not a large group. And so, yes, there was an awareness and more of a neighborhood awareness as well, but not anything dramatic. The Kennedy assassination, that’s the first, the President Kennedy assassination, was a dramatic event. I think most people of your and my generation remember something about that, and I certainly do. Not just the events and watching things on television, including Oswald being shot by Ruby, but I remember learning of President Kennedy being shot. For some reason, and I don’t know why, I was out of class and was down at the front office where the headmaster and others had their offices, I was out of chemistry class for some reason for a short period of time, and while I was down there, the news came of President Kennedy being shot, and when I went back up to chemistry class, I think it was a lab, I told the chemistry teacher, Shawcross, who did not know yet, and the students didn’t know yet, so that was pretty indelibly impressed on my mind in terms of learning of the shooting and
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the aftermath took place over hours that day. It was a hugely dramatic event at school that day and in the succeeding days. I’m not sure that I can point to any single event that vivid in my recollection with an impact like the President Kennedy assassination.
MR. COONEY: Life changing, for me, anyway.
JUDGE BATES: Yes it was.
MR. COONEY: An introduction of the harsh realities of life.
JUDGE BATES: That is definitely true, John. It was something that we talked about in the family setting, in the school setting. It was a pretty traumatic experience.
MR. COONEY: Looking back, did you take anything away from that experience that influences your approach to things or your understanding of things?
JUDGE BATES: I’m sure, as you just said, that day was an introduction to some of the realities of the world that might not be as evident until you get that glimpse through events as they transpire. So yes. I think that that was the start of an enlightenment, and not in a political sense, but in a world affairs and a current events sense.
MR. COONEY: You were about to go to college, and as I remember, especially civil rights was in the background and then in the foreground increasingly.
JUDGE BATES: Absolutely.
MR. COONEY: It seems it would be a natural flow to the extent it was prevalent in one’s mind.
JUDGE BATES: You have to understand that there were two flows that were taking place, and they overlapped to some extent. One was civil rights, and one was
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anti-war. So both of those things were evolving while I was in college, and they each were very dramatic, emotional, and important trends, events, what have you. But they were a little different and had different ways of manifesting and impacting people.
The Civil Rights Movement was different at different schools. I don’t know how it was for you at Brown, but it was important at Wesleyan, but it wasn’t quite as dramatic as, I think of Cornell, for example, where my brother went to school and my wife went to school, where buildings were taken over. Wesleyan had a little bit of that but not a lot of that, and I remember a little bit more about the anti-war atmosphere because, quite frankly, that had more of an immediate impact on me because graduating from college in 1968, one was facing the question of what are you doing next, because if you don’t have something pretty firm lined up that would give you an exemption, you’re going into the service. So it was much more evident in terms of its impact on my next steps in life. That’s not to say it was more important than the Civil Rights Movement, or the Civil Rights Movement didn’t cause a lot of reflection and thinking and communicating with others, but the anti-war and reality of the Vietnam War had more of an immediate impact on me personally.
MR. COONEY: Let’s approach them in the order you rate them out, whatever level of activity there was at your college, the Civil Rights Movement?
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JUDGE BATES: Only on the fringes. I was not an active participant in anything. I don’t remember a lot of, I went to some things, if you call that a participant. I went to some, you know, both lectures or rallies and so forth, but I wasn’t an active participant. And, of course, most of, not all, but most of the participation was by the African American, black community at school as opposed to the others. So yes. Appreciative of, knowledgeable, but not an active participant.
MR. COONEY: How about on the anti-war movement?
JUDGE BATES: There it was a more difficult choice for me. I was of the view that I would not refuse military service, that I felt that I was not willing to avoid my commitment to the country, and I put that in quotation marks, and so I wasn’t going to Canada. I wasn’t leaving in any way, so once you understood that, your feelings about the war could still be, well I don’t think this is a good idea. I don’t understand what we’re doing, and I don’t think there is anything worthwhile that is worth the cost, both in terms of the human cost and less so, the economic cost. But I wasn’t marching in opposition to the war. I was probably a little more cognizant and involved in discussions and so forth, but I, there too, would not call myself an active participant because I had made up my mind that I was not going to take some step that was demonstrably against the war by refusing service or whatever. And it looked like, even though I had in the back of my mind that I might want to go to law school at some point, it looked like I would
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not be doing that right away, and therefore, there was a pretty good chance that I would be drafted and wind up in the service.
MR. COONEY: I jumped ahead a little bit there. Let’s come back to sort of the real business of college, the academic experience.
JUDGE BATES: I thought you were going to say the social experiences. What kinds of parties were there.
MR. COONEY: That I’m certain will come up naturally. I’ll start with a basic question. Did you join a fraternity?
JUDGE BATES: I did not join a fraternity. Some of my friends did, but some of my friends didn’t. Two fraternities that most of my friends were joining, DK and Psi U, were both good time fraternities with a lot of parties. DK was more a football fraternity probably than anything else, and I just didn’t gravitate there, even though I knew a lot of people there and did go to parties there, that was not what I wanted to do. I was in with a different group for the most part. We were spread around different places and interests, so I pretty easily decided that I didn’t want to join a fraternity. As I said, some of my good friends did not either. My roommate did not either.
MR. COONEY: You mentioned that you were thinking about going to law school at the time you were contemplating what to do after college. How had your thinking developed. What was the education like and what were the courses that caught your attention?
JUDGE BATES: I think that’s an overstatement of my interest. It was an abstract interest, and it was, as it ultimately turned out, more of the alright, what are you
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going to do next and what are the alternatives. And back then, law school from my perspective and the perspective of many others, was a door-opening experience as opposed to a narrowing experience, and so going to law school was almost a continuation of, in a professional sense, of almost a liberal educational track that you could wind up then practicing law in many different possible environments, and if you didn’t have something else that you were clearly intent on doing, being a doctor working in a natural world, being a teacher, then law school was a pretty obvious thing to do. And that’s the way it appeared to me at that time and pretty much the way it appeared to me later on when I did go to law school, that this was a logical good step in furthering both my education and my professional opportunities but it was less something that I was academically focused on.
MR. COONEY: What were your favorite courses in college?
JUDGE BATES: I was a history major, American History, and certainly that was the area that I enjoyed the most, although I think back, and I can think of some courses. There was a literature course that I really liked and it was primarily because I thought the teacher was very engaging. The professor was one who made some of the readings come to life, and I really enjoyed that course. I started out with a little interest in math because I had retained that from high school, but I lost that in, you know, differential calculus and all these abstract math concepts taught by teaching assistants, who weren’t very good at communicating I didn’t think. So, like many, I
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was interested in math to a point and then it evaporated. But certainly history courses and some government were what interested me most.
Now I will say in terms of my educational and academic experience at Wesleyan, I was not all that academically successful in my first couple of years at Wesleyan. I spent too much time enjoying myself and less time really flourishing in the intellectual and academic pursuits. The latter part of my years in college, that had reversed. I was much more academically inclined, much more academically interested, and taking history courses in my major and some other courses was very stimulating, and I looked back at that second half of my college experience much more fondly, quite frankly, even though I was less engaged in social endeavors, I look back at it much more fondly because I was more engaged academically and intellectually.
MR. COONEY: What do you attribute the change in focus?
JUDGE BATES: Oh, I probably attribute the poor focus early on to a lack of maturity and not much more than that.
MR. COONEY: Is there one professor or group of professors that you found particularly stimulating and who taught you how to think?
JUDGE BATES: There were two history professors that I would focus on. Now that’s not to say that some other courses weren’t enjoyable. I already mentioned one literature course that I thought was very good. I had an economics course that I thought the economics professor was very good at. He was pretty young when he taught me, and economics, I think, can be a difficult
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subject. It’s a demanding subject, but he was very good. But the two history professors I remember most fondly, not that I was close to them, but I was really impressed with them, Buell on American History and Green, World History. Green had a very broad reputation. He was a very acknowledged scholar in the area, and so was Buell, and I thought both of them taught their courses in ways that brought them to life but were very informative in terms of not just events but trends and really did with history what made it a meaningful academic pursuit, and I thought that I benefited from that and that probably has stuck with me some in seeing the place of history and how important history can be as an academic pursuit, and that a body of knowledge can be very helpful in helping inform current decisions, and that certainly is true in this day and age as you look and think how much we can learn and benefit from thinking about historical events. They were both pretty hard professors, pretty demanding, but very well-respected, and their courses well-attended and appreciated, and I think that I would be in a long line of students thinking that they were very good and meaningful professors who had a significant impression on the students. Those are ones that I would probably think of foremost.
MR. COONEY: The opinions you sent me made an impression. Where did you learn to write?
JUDGE BATES: Where did I learn to write? I think that’s a slow process, John, for me. I think that I had good training in many settings. In high school, I was
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required to write both in English, primarily in English, but in other courses as well, and so I learned some basics, important basics, there in terms of being able to communicate clearly. Some of the technical aspects of writing were very much ingrained in me, and that stayed true in college at Wesleyan. The writing was a pretty significant demand starting with the first courses freshman year, and I remember doing a lot of papers at various times. I had one friend who was married, and his wife, who had finished only two years at Connecticut College – it was then called Connecticut College for Women – she made some extra money typing papers, and she typed a lot of my papers. Heavy demand in terms of writing in college. So I learned a lot there. That’s not to say that I didn’t continue to learn a lot. I learned a lot in law school, I’ve learned a lot as a judge. I would say my writing has evolved in all those platforms and environments, and I hope I’m still learning today in terms of improving my writing. A lot of the learning I do today is from my law clerks. Sort of a reverse situation. But I have exceptional law clerks, both in terms of their smarts and their abilities and what they do every day and learn from it.
MR. COONEY: It’s good to have somebody in the office who’s computer savvy.
JUDGE BATES: That too. Absolutely.
MR. COONEY: Did you ever find yourself thinking back to your American History when you see events that have been the subject of cases you’ve worked on, habeas corpus, Guantanamo.
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JUDGE BATES: Yes. I think back to my education, my time in college. I think back to my time in law school and certain courses and various experiences I’ve had, but the thing above all that probably keeps that current in my mind and meaningful in my mind is my wife. She is an exceptional person, and after being a lawyer for many years, she stopped being a lawyer and began teaching American History in high school, and she shares with me views on subjects that keep that American History base firmly in mind, so it’s not just my education in the formal sense, but it’s my continuing education within my familial environments.
MR. COONEY: The older I am, the more I realize how much you learn from your friends and your spouse in particular.
JUDGE BATES: Absolutely.
MR. COONEY: I wonder if you had a group of friends in college that you were able to learn from and teach yourself.
JUDGE BATES: Well, certainly I did, although, as I said, my college was almost divided in two, and the first half of it was not as formative in terms of the intellectual and related developments. The second half was, but quite frankly, I was more isolated in the second half. I wasn’t in a fraternity. I lived off campus, so I wasn’t hanging around in a dorm with friends as much, so I don’t think that I’m someone that you would say, wow, he has a lot of friends from college that he’s hung onto and continues to see and relate to. Quite the opposite is true. I don’t see that many people from college. Occasionally. I’m also not, truth be told, I’m not that much of a joiner, so
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I don’t go back to alumni events. I haven’t been back to an alumni event at Wesleyan, and that limits somewhat your continuing relationships.
MR. COONEY: Were there extracurricular activities in college following through on what you had done?
JUDGE BATES: A little bit early on. I was on the freshman basketball team. Freshmen did not play varsity sports at that time. And I started to play baseball. I had a bad experience, some of it directed to me, more of it directed to another teammate with the basketball coach, and the basketball coach wound up being the baseball coach as well, and after the first week, I just decided to quit. So that was the end of my formal athletic career, and I did not continue to play basketball. Part of the bad experience was I was not first string, and then we had our Christmas break, and I got very sick and came back. At the first practice, the coach decided that I should be first string. I was still very sick and that just turned out to be a terrible day, and that soured things with the coach, and I never really recovered from that. That’s not to say that I would have been a basketball star by any means, but it sort of was the beginning of the end of my formal athletic career.
MR. COONEY: So did you take the energy and enthusiasm and put it in other activities? Debating? Acting? Any kind of extracurricular activity?
JUDGE BATES: No. I was involved in no real formal activities along those lines. I did a little bit of club stuff, but most of my non-academic endeavors thereafter were informal. I was just with friends. As I said, I wasn’t in a fraternity. So, no. My college life was not a fulsome participatory life in terms of
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things like debating and so forth. In terms of debating, I don’t even know if there was a debating society at Wesleyan.
MR. COONEY: During your college career, really culminating at the end, there were a lot of civil rights, the assassination of Martin Luther King and the assassination of Bobby Kennedy. Some classmates made a huge name for him about the uprising in Columbia in the graduating class of 1968 when things hit a peak.
JUDGE BATES: True enough. The assassination of Martin Luther King, which was in April I think of 1968, so before I graduated, while I was still on campus, was sort of, almost all civil rights-oriented, although there were some anti-war aspects to it a little bit, but that was a meaningful event in my college life, but it was right at the end of my college life, and it focused, obviously the assassination and the aftermath, focused the civil rights issues and difficulties in the country, and that was something that certainly stuck with me afterwards. I was only in college for a month after that.
I would say when you combine that event with the subsequent assassination of Robert Kennedy in June of 1968, I was gone from school, and I know where I was. Those two, building on the earlier assassination of John Kennedy that you couldn’t escape, did say something about the country in terms of where we were and where we were going, both in terms of some political issues, civil rights issues, and even war, and I would say that those two events combined to make a huge impression on me.
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I was drafted, and I knew I was going into the military. By volunteering to go to officer candidate school, I could delay the date that I had to start, and so it was delayed until the beginning of September. So I had the chance to do other things, and I didn’t feel that I had to work all during the summer. So I didn’t work all during the summer. I did some traveling, go see friends and so forth. But the first part of the summer, right at the beginning, I went to a beach in New Jersey by myself and was there when Robert Kennedy was assassinated, so I was sort of experiencing it on my own with the remembrance of the Martin Luther King and the John Kennedy assassinations in mind. I do think they in combination formed part of my development as a young man. But immediately after that, in September, or actually maybe the end of August, I went into the military. So all those things contributed to my thinking, my anxieties, my development, but they all were funneled pretty soon thereafter into this new experience of being in the military. I would certainly say, however, that I was really upset by not just those assassinations but the civil rights events that were taking place.
That was an interesting transformation for me into a new world with new experiences and new challenges and was a pretty important step in my life developmentally I think.
MR. COONEY: I think this is a good place to end our first interview. I hate to break the chain here for the transcriber, but that person will have to start listening
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again at the beginning of interview two to find out about your military experience.
JUDGE BATES: I’m sure with bated breath.
MR. COONEY: Thank you, and this is the end of the first interview in the oral history of Judge John Bates.
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Oral History of Honorable John Bates
Second Interview
February 19, 2020
This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee is Honorable John Bates. The interview took place on Wednesday, February 19, 2020. This is the second interview.
MR. COONEY: Good morning, Your Honor.
JUDGE BATES: Good morning, John. Good to see you again.
MR. COONEY: When we left the first interview, you had just graduated from college, and you were going to be reporting for basic training in the military in September. What did you do in the summer between your graduation and the start of military service?
JUDGE BATES: Nothing special, John. I did a little bit of traveling to see some friends. Maybe I thought it would be the last time I would see them. But I went out to Wisconsin to see one friend. I went down to North Carolina and South Carolina to see a couple of friends. These were high school and college friends. So I just spent a pretty leisurely two months or a little over two months between graduating from Wesleyan and going off into the military.
MR. COONEY: What was your mindset as you contemplated reporting for duty in the days getting closer and closer?
JUDGE BATES: I don’t remember having any particular memorable mindset. I’m sure there was some apprehension, as I think anyone going into the military at that time would have, and that time was pretty immediately following the
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Tet offensive in Vietnam. I had some apprehension about what the next stage would be like for them, but I don’t remember being particularly looking forward to it or anything memorable.
MR. COONEY: Where did you report for duty?
JUDGE BATES: I went briefly to Fort Dix, but then I had basic training at Fort Sill in Missouri. No. Fort Leonard Wood in Missouri, and it was a very cold experience because even though this was during the November timeframe, so you wouldn’t think it would be that cold, it’s in the open out on the plains, if you will, in Missouri, and it can get quite windy and cold, and I remember it being so.
MR. COONEY: What was basic training like? What did they train you in?
JUDGE BATES: They trained you in getting used to being in the Army, but they also trained you in the basic skill sets. You had weapons training and physical training. You had a bit of hand-to-hand combat. Those kinds of things. But you also had just the indoctrination of being in the military, the military structure.
Now, I was tracked to go to officer candidate school. The reason that I had the summer off before going in the military was basically because, even though I had been drafted, I was assigned to go to OCS, and that enabled me to postpone for two months my entry into the military.
MR. COONEY: When did you graduate from basic training or whatever one does?
JUDGE BATES: It would have been in the November period. I don’t remember the exact date.
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MR. COONEY: You were just another one of the people who reported for duty, with the rank of private?
JUDGE BATES: The rank of nothing, basically. I just finished my basic training and then was off to what they called advanced individual training, AIT, which was more in a particular, I’ll call it specialty. You may go for advanced individual training in the Army in infantry or in artillery or some other discipline. Just a couple. I was slated to go to advanced individual training, AIT, they called it, for artillery, and that was at Fort Sill in Oklahoma, which was one of the artillery bases, but that didn’t really didn’t have a basic training or advanced individual training. This was still pretty rudimentary training in some ways, but a little more specialized in a particular sense.
MR. COONEY: What was artillery training like? Exciting to a degree to be shooting off large weapons.
JUDGE BATES: It was a little bit exciting, I suppose, although it was also deafening, and it was the same basic structural composition in terms of large group of men who had no rank but were just there for training, but they were getting specialized training. We spent time, some of it in classroom, but most of it field training on basics of firing large weapons, and it was not training that was focused on science, although a little of that, or focused on the leadership necessities in terms of running an artillery outfit. You were there as a basic grunt, someone to just do the work and getting trained in the niceties of firing high-caliber weapons, ammunition that you have to
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heft and load into weapons. So it was interesting, and I don’t remember it badly. I don’t think it was an unpleasant experience, other than the fact that I was in Oklahoma in the middle of winter and doing something that I didn’t think would be my life’s avocation, but it wasn’t a bad experience, and we did learn a little bit of the science, physics, I will call it, of carrying those kinds of weapons and having them targeted correctly and so forth.
MR. COONEY: Picking up in helicopters?
JUDGE BATES: I do not remember much in the way of being transported by helicopter during basic training. That’s a pretty expensive proposition, so I’m not sure that it was a built-in part of the training at that time. I’m not saying that we didn’t go in a helicopter once or twice, but I don’t remember it as being frequent, whereas at later times in the Army, I do remember helicopter flights generally favorably but sometimes with fright.
MR. COONEY: What was the transition like from AIT to Officer Candidate School?
JUDGE BATES: It was a little bit of an interesting story there. In the artillery AIT, there were, unlike basic training, a lot of the people in the artillery AIT class that I was in were actually slated to go on to OCS, to Officer Candidate School, and they were slated to go on to Officer Candidate School in artillery at Fort Sill. Near the conclusion of the training, and again, this was a little over two months of training, near the conclusion of that training, they announced that the entire class, and this would have been less than a hundred people, but more than fifty I think. I think it was in
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the sixty or seventy range, the entire class would go to OCS in infantry. I will say that many, including myself, were not looking forward particularly, to being artillery officers, and then being stationed in Vietnam because the job basically of a young artillery officer, a second Lieutenant or even first Lieutenant in Vietnam, was basically as a forward observer. So you would be going out in advance of the artillery unit and the weaponry in order to position yourself to spot targets, and that would put you in pretty dangerous circumstances. That was one of the officer positions, young officer positions, in Vietnam that certainly was more dangerous than some others.
When the entire unit or group was instead designated for infantry OCS, other apprehensions sunk in with the group, including myself. Obviously, an infantry officer was much more on a daily basis likely to be engaged, if you will, with active combat, so that was what I had to look forward to. But they then decided that the first two people in the alphabet in that class would go to fill another OCS class, not artillery but engineering. So David Baueris and myself, the first two in the alphabet, there were no A’s apparently, were instead designated for engineering OCS, and I caught a ride with him. He had a car. I didn’t have a car. He had a car and we drove back. He was from Delaware. We drove back to the East Coast for the couple of days we had before reporting to Fort Belvoir in Virginia for Officer Candidate School in engineering. It just
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was serendipitous. I was slated for artillery, then instead for infantry, but by a quirk of the alphabet, was assigned to engineering OCS.
MR. COONEY: The rest is history.
JUDGE BATES: The rest is whatever history deems worthy of consideration. It’s not of much importance, but it certainly affected my life.
MR. COONEY: So you report to Fort Belvoir.
JUDGE BATES: I reported to Fort Belvoir for OCS training. OCS, I’m not sure I have the dates exactly right, but OCS is about a six-month maybe a little over six-month training at that time in the Army, and it’s pretty rigorous and demanding. It may be different depending what branch you’re in, whether you’re in infantry or artillery or engineering, which were the three categories for OCS at that time. But training, there was a lot of leadership training and evaluation. There was some physical training, if you will, and evaluation, and then some academic as well. I don’t remember how they were weighted other than to say that the physical was the least heavily weighted of the three. I think it was academic, leadership, physical – I don’t know exactly what the percentages were. You were in the barracks with your group and you had drill sergeants and everything that you imagine in that kind of training which was, as I said, pretty rigorous, pretty demeaning at times, especially during the first couple of weeks. But most of the people, I would say almost all, perhaps it was all, but almost all in officer candidate school at that time there for engineering were college graduates, recent college graduates, so I was in a peer group
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that was pretty much like me and identifiable. Probably the racial composition was maybe one or two Latino, a handful of African American, and the rest white. The geographical dispersion was probably more heavily from the southern United States and the northwest as I remember, but certainly reflected America generally but not precisely.
MR. COONEY: In terms of mathematical abilities, did you have any preparation in high school or college to make it easier to absorb?
JUDGE BATES: None at all. My grandfathers both had engineering skills, disciplines and degrees, but of course I never knew my grandfathers. They had died either before I was born or just after I was born.
MR. COONEY: What was the coursework like? Some work in engineering, or was that once you had your basic introduction field work?
JUDGE BATES: I would say that if you divided the time out, in the first, well, that’s not early. The field work early on was not necessarily strictly engineering-related. It was you were outdoors doing stuff a lot, but it wasn’t really building sophisticated engineering skills. Later on, there was more field work that was identified with engineering. Throughout, there was a lot of field exercise that was leadership-oriented, and that is how I recall it. There were times when we were out in the field for many days at a time, living out in the field. There were exercises near the end of OCS that were taking you to a camp called AP Hill, that was probably a little wilder then than it perhaps is now. That was fifty years ago. You were basically set free and had to find your way back to safety with enemy forces around.
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You were pretty much on your own. You might have started off with another person or two, but before long, you were trying to get back with a compass to where you had to get, and you had all these enemy obstacles in the way in order to get there, and since virtually no one succeeded in getting back, you were then treated as a prisoner of war when you were captured. That was an interesting exercise in preparation for real life possibilities. I would say that was the most demanding of the times in OCS, although some of the academic work was demanding. Some of the physical training was pretty demanding, but I was always in pretty good shape so I was able to handle that alright. And certainly some of the training that was in-your-face discipline was tough, but I remember most clearly those exercises where we were out in the field trying to accomplish things as a team or out in the field alone trying to evade capture.
MR. COONEY: How realistic was the capture exercise once you became a prisoner of war?
JUDGE BATES: John, it’s hard for me to answer how realistic it was because I never actually was later on a prisoner of war, but I would say it was fairly realistic and demanding. It was not put you in cages and so forth. It was basically trying to get information out of you and without subjecting you to torture but certainly subjecting you to hardship, and it was interesting in that way and demanding.
MR. COONEY: That must have been an interesting conversation the first night you got back to the barracks having been through that.
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JUDGE BATES: I’m sure the first night we got back to the barracks everybody was too tired to have much of a conversation at all.
MR. COONEY: When did you make the transition from Officer Candidate School to your first assignment? I guess I should ask you before that, what was leadership training like? People who were going to be of your own rank, but you must be in role playing, you must be designated as the head of an outfit for some period of time?
JUDGE BATES: That would be the primary field exercise leadership training. There was a lot of classroom leadership training, but what I remember best was the field exercises where you were actually put in a position of responsibility and authority and had to accomplish something. It’s moving the unit from one place to another, whether it was in the engineering field, you know, doing something from an engineering perspective. There were exercises which were mock combat exercises, but not a lot of those. Those were not a dominant part. The leadership training was taking place on a daily basis just kinds of problems and kind of demands and then, both through classroom, and more importantly I think, the field exercises of putting you in demonstration of your skills.
MR. COONEY: What were any principal lessons that you learned from the leadership training? Do you remember back discreetly how you felt coming out of Officer Candidate School?
JUDGE BATES: It’s a little hard to differentiate between what I learned at Point A versus Point B versus Point C in the military. Certainly the leadership training in
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Officer Candidate School was important, building in me some concepts that stayed with me, also team building was an important part of it as well because you had to rely on others, and that is something that, whenever you’re trying to accomplish something, doing it alone is hard, and you have to rely on those others who are there in some capacity.
From the leadership perspective, some of the things that I think I learned are respecting others, listening to the views of others, taking those into account. I learned to lead by example, always be candid. Those things were part of the training.
Military leadership is a little bit different than a lot of other settings, but it has some similarities. But there is structure in the military. Pretty defined structure, and it demands strict adherence and following of orders. That’s not the way leadership always is in society, and certainly I have not felt that structure that existed for some of the training. But there’s no question that the military training and particularly the training at OCS was invaluable for instilling ideas, concepts, disciplines.
MR. COONEY: You’ve mentioned concepts a couple of times.
JUDGE BATES: Some of those concepts, yes.
MR. COONEY: That’s very interesting. What is the transition like from Officer Candidate School to your first assignment?
JUDGE BATES: And it is a transition. Because in OCS, you start off as just a grunt in training. You’re demeaned, and it’s very hard. By the time you graduate, you become a little comfortable with that. But you’re still just one of a
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large class of people who are subservient to everyone who’s giving you the training, and then, at the end of the line, you’re commissioned an officer, and you then are going to have the responsibility or some of the responsibilities others have had with you. So there is a transition.
The first thing that happens from OCS at that time was a determination had to be made of whether most of the people from engineering OCS wound up as engineers. A couple of people either at the top of the class, one or two or three people and maybe one or two others would go elsewhere. The one or two others were people who, for instance, would be volunteering or something of that sort. They might still wind up as engineers, but they would have additional training to do that and more likely, they would be winding up in the infantry. And then the people at the top of the class, this was how some of the other branches were filled up in their officer ranks, by part of the class opting to go into other branches. Finishing first in our group, I went into the finance corps. I don’t think there was any admirable reason for that. It seemed like it was my skill set, my basic skill set, and might be a safer venture than some others. So I was given these options, and I took the finance corps.
MR. COONEY: So you’ve just been assigned to finance and given your commission. What happens next?
JUDGE BATES: I go back to artillery because I was assigned to Fort Knox in the finance corps, to the finance unit at Fort Knox. And Fort Knox was then the major, or one of the two majors along with Fort Sill, artillery posts in the
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United States. Of course Fort Knox makes you think finance because it makes you think of the gold at Fort Knox, but I had nothing to do with that. I was just a finance officer serving Fort Knox. I would not say that was a very formative experience. I was at Fort Knox for a year assignment. At that period, I became a Second Lieutenant, the lowest officer. The promotion to First Lieutenant was an automatic promotion that occurred after one year. And I did my job. I lived in officer barracks and had some friends.
I did a few interesting things both in terms of the military career just learning the basics of the finance corps. I had to go away to a finance school for a couple of weeks, to Benjamin Harrison in Indiana, but that was right at the beginning. Basically I just served as an officer in finance at Fort Knox. It was Kentucky. I took advantage, and then in Indianapolis as well, I took advantage of the only opportunities to see the Kentucky Derby and to see the Indianapolis 500, that at that time was the car race. It’s not the car race anymore. But those were outside of my military duties.
MR. COONEY: Rational behavior. Finance training was working well.
JUDGE BATES: Absolutely. Take advantage of what you can. But as I said that year was not a memorable year. There wasn’t that much. I was learning the skill set necessary for finance corps and learning to be a young officer in the Army. I was basically just more or less treading water, waiting on getting orders to go to Vietnam.
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MR. COONEY: Go to Vietnam as an individual?
JUDGE BATES: As an individual. It was an individual assignment – assigned to the 13th finance corps.
MR. COONEY: Where were you based?
JUDGE BATES: Let me give you a little bit of geography. In the central highlands, which is where I was, on the coast, which is the east side of probably the third, fourth, fifth largest city in South Vietnam at that time, Qui Nhon, and that was where the 13th finance corps was. That was my home base, if you will. A highway that runs across the central highlands from Qui Nhon to Pleiku, Vietnam to the Cambodia border. It runs from Qui Nhon to the major towns of An Khe then Pleiku and then the border. I spent most of the first seven months in An Khe in a finance unit that was in An Khe and to some extent Pleiku, as well was the home of the 4th Division.
I was a finance officer who was servicing to some extent the indigenous population that was working for the military and all the units outside of the 4th Division that were stationed with the 4th Division, the 1st Air Cav and some other units that were there. I had a unit. There was one officer in the finance unit, and I had about thirty men, as I said, this was a little over half the time that I was there because eventually in September of 1970, the 4th Division went out of Vietnam back to the States, and so that changed things dramatically and I’ll get to that.
So I was at An Khe, which was a major base. There was a little bit of a mountain right on the side of it called, I can’t remember, which posed
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a little danger for the base. It was vulnerable because with the 1st Air Cav there and some related units, there were a lot of helicopters. A lot of helicopters on that base, and that meant that there were attractive targets for mortars, or what they called sappers, who were Viet Cong individuals who would bring explosives in and plant explosives. So the base was hit a lot. Where my unit was not right next to the helicopters so we weren’t a prime target, but there were many times where the base was being attacked, if you will. Not a major attack but a pinpointed attack to try to wreak havoc or specifically to try to blow up helicopters.
My time at An Khe, I was basically positioned there. My only travel really, I went to Pleiku once or twice. The only travel was back and forth to Qui Nhon on occasion, and often I would do that by helicopter, but other times I would do it by Jeep. We had two vehicles for the unit. We would, not frequently, but occasionally, travel back to Qui Nhon by Jeep. I had a fellow who was the driver who went with me. Occasionally I would drive, particularly if I had someone else going with me. The road between Qui Nhon and An Khe, that was traveling west on Highway 19, went through one mountain pass area. That was an area of danger where there were attacks on convoys or even less than convoys, so you had to be careful traveling through there. The road from An Khe further west to Pleiku was more dangerous because there were more mountain passes to negotiate.
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I think I have a funny story. When I was driving back to Qui Nhon with a friend of mine, another young officer, just to show you not everybody is totally used to everything in a combat arena, I was driving. We were going downhill in the mountain area, and as we were going downhill, we started hearing these all explosions pop pop pop-type explosions, and he, more than me, but he, being in the passenger seat, thought we were being attacked in some way, so he immediately grabbed his rifle and was ready for whatever. By that time, I realized that all that was really happening was going downhill, releasing from the accelerator, the Jeep was backfiring, and this had initially startled me and continued to startle him for longer until he realized as well that this was not any enemy attack but rather was a mechanical attack from the Jeep. He was probably my best friend in Vietnam. He became later a lawyer, and I’ve seen him a couple of times since. He also was the source of another funny experience. One of the reliefs that one would have occasionally was to have a few beers. He and I on a monsoon rainy evening went to the officers’ club and had a few beers. It was pouring rain, and as we came out after having a few beers, he got in the Jeep, but as I started to back up, he did not stay in the Jeep. He fell out, and I actually ran over him. I ran over him on his thighs, but the ground was so soft, and the Jeep is so light, that he wasn’t injured. What he did have was beautiful tire tread marks going right across both his thighs, and so he kept those fatigues on for two weeks even so that he could go back to Qui Nhon with those tire tread
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marks across his thighs on his fatigues. Such was the diversion that we occasionally had.
I know I’m rambling on, but I’ll just keep telling you some things. I had a great time working with the men who were in the unit. They were not happy to be there. They were very diverse in terms of their backgrounds and experiences. But they did their jobs, and they did their jobs well, and they were proud of doing their jobs well. No matter what it was, whether they were well-trained in terms of the financial stuff or were the driver of the truck or whatever they happened to do. That was a good experience in terms of human relationships, working with a group to whom you had to give some instruction and leadership but from whom you also learned a great deal about dealing with adversity. No one really wanted to be in, but they worked and contributed. I didn’t see much action, other than the occasional entry of Viet Cong into the base, and this happened in Qui Nhon in a different way. In Qui Nhon, every once in a while when we got a mortar attack, be it Viet Cong or NVA. One time the barracks that I was in was actually hit. I don’t think it actually injured anyone, but we were evacuated to a safer location. But only two times in An Khe that I recall actually were we prepared to be engaged in real combat, and two occasions at night where I was receiving fire. There were no injuries on our part and we incurred no injuries on the other side either. On the third occasion, where my living quarters were slightly elevated over some other areas which had some gullies, and during this
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exercise, I could actually see from a distance some Viet Cong going down a gully to escape. That was about it for the actual combat.
MR. COONEY: You had to muster up your men and get your weapons.
JUDGE BATES: On different occasions. On two of those occasions, I actually went to my men’s quarters. They were in one building, I mean, these were Quonset huts. I don’t give the impression of something more structurally sound and significant, but they were in one place, and then about 300 or 400 yards from there was where some officers were quartered, and that’s where I was. So on two occasions, I went down to where my men were, and there wasn’t much to it. I mean we just had to be prepared in case, but we didn’t have, because of what we were in the finance unit, we didn’t have frontline responsibilities to get into battle. The third occasion, where I saw some Viet Cong in a gully, I didn’t even get down with my men.
MR. COONEY: There must have been incidents where adrenaline coursed through the system, first exposure to fire.
JUDGE BATES: Absolutely. And exposure to fire and actually firing your weapon. I mean either kind of experience, adrenaline-provoking or caused by adrenaline.
MR. COONEY: How long did you stay deployed to An Khe?
JUDGE BATES: As I said, it was about seven months, and then as the 4th Division moved out, my responsibilities changed. There then were limited units at An Khe. The 1st Air Cav was there. The 1st Air Cav was deployed out at various airbases as well. My responsibilities changed because my unit basically dissolved back to Qui Nhon to the States, and I stayed in An Khe
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with a small group. There were four of us actually for the most part. A sergeant and then two men, and we handled some of the issues for folks who were at An Khe and some of the indigenous population. What we really did more was travel by helicopter out to various airbases. I say various.
There were probably five or six air bases that we visited, some more than once. We took care of financial issues and problems that might have popped up with people there. So we were a traveling unit. It was interesting. It was a different experience, an overall experience. You were in helicopters a lot going out to these locations. Once or twice we got held up and had to stay overnight, but for the most part, it was just a day trip. You’d go early in the morning, go back later in the afternoon. The helicopter trip itself was less than an hour. You would just deal with issues that people had. Some of it was just answering questions and helping with financial problems that people had in terms of okay, I need to deal with this. Okay, maybe you need to have an allotment that deals with that. Some of it was financial advice on a very rudimentary scale, and other parts of it were just servicing the financial needs and so forth. I did travel sometimes in ways unexpected. There was one occasion with a colonel who had his own helicopter, a smaller helicopter. I was used to traveling in Hueys. They were not the biggest helicopters, but they were helicopters that would have six or eight people in them. His helicopter was a smaller helicopter, and it really only held four people, a pilot and a
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copilot, and often not a copilot, so it might be three others. On this occasion, I hitched a ride with him, but he wasn’t going, I don’t know that I knew this originally, but he wasn’t going right back to where I was going, either to An Khe or Qui Nhon, but instead he had some men out in an area that were under attack, and so he went there, and we hovered quite a ways up in the air and didn’t stay in one place. We moved around while this engagement was taking place below. It was interesting. I’m not sure what was happening because I couldn’t see all that much happening, but it was an interesting trip.
Being in Vietnam was very educational. It was educational from a growth perspective. It was a time of my life that one would expect a lot of growth in your early 20s, getting an experience in which really there were demands put on you that accelerated your growth. I learned a lot. I developed a lot. I matured a lot as a human being. Not a good experience that, oh boy, I would like to do that again or I’d wish that on everybody, but in terms of making the most of it, there were some definite benefits to it, given what one faced during that portion of one’s early adulthood and period of growth.
MR. COONEY: Are there specific benefits that you can say that continued the growth process?
JUDGE BATES: I think it’s part of that same growth, leadership, team building, all of those different kinds of things. There’s the, you know, realization that each link in a chain of operation is important. It may be the person making the
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decisions who’s most important, but it may be some of the people effectuating those decisions in getting them done, and they have to work together, and you accomplish things better if you work together with mutual respect and support. I think those are the kinds of lessons that were instilled in me during that time. Flexibility. I mean it was an evolving situation on a day-to-day and week-to-week basis, so you had to be flexible and make the most out of and do the best in whatever situation was presented.
MR. COONEY: When did you learn that your deployment to Vietnam would end?
JUDGE BATES: Everyone knew that the deployments to Vietnam, unless you chose to stay in the military, at that time were one year, but they were usually cut off a little bit at the end, and that happened to me too. My deployment was cut off. Everybody knows approximately when they’re going to be leaving, and you not only know it, but you’re aware of it on a daily basis. Some even to the point of saying I’ve got 43 days left or whatever. I’m getting so short that I can tie my shoes through my ears or something like that. So it’s something that you’re aware of, and different people more aware, and for me, no doubt I knew.
I had a sergeant who I had most relied on who left before I did, and the two men who at the last time that I was there and were traveling with me, they both left. Things just took a natural flow. When I left, I went down to Saigon in an area where I stayed for a few days before you caught your transport back to the States. When I was there, it turned out that one
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of the officers who was there in terms of their duty assignment was a college classmate of mine. His name is Wig, Wig Sherman. It gave me some opportunities to spend a couple of good days as I left. I stayed in his officer quarters. I went to the beach once. It was a nice exit from Vietnam. I went out to Washington, Fort Lewis, and from there, mustered out, as they say. If I had stayed in, I would have become a captain because that was the normal progression that you were promoted to captain. But I had no desire to stay in. Not that I hated it. I did my job. I got unit citations, and individual awards and came back.
MR. COONEY: What was your reception like?
JUDGE BATES: Well, it was not the kind of reception that was so problematic in those times, particularly for those who had experienced more intense combat or other traumatic experiences. I wasn’t scorned. I didn’t have problems in that regard. Nobody welcomed me as a hero, nor should they have, but it wasn’t an uncomfortable transition for me, other than the okay what do I do now part of the transition. I went back to work a little bit, at first with the sheet metal company I worked at previously, but that was just short term. I did some traveling. I, with another friend from Vietnam who was a First Lieutenant stationed in Qui Nhon, bought motorcycles. We traveled to Europe on motorcycles, bought them in England, and then drove around Europe for a few months. It was a nice experience, although one of the motorcycles was very problematic, so it created some mechanical difficulties for us, but a good time going to, not all, but a good
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number of the European countries for a few months. I came back. I went back to work. I had to travel to a wedding of one of the men who had worked with me in Vietnam, so I did that. It was a wedding down in Tennessee. I went out West. I’m tying this up in terms of the end of the Vietnam experience. I visited my friend Jim Fitzgerald in Wyoming and my friend Tupper Briggs in Denver, who was the guy I traveled with, and went to the West Coast. So I went on an extensive cross-country trip all the way to California and then back in my Volkswagen. Then, before I was accepted to law school, I sailed with my brother-in-law and sister and their five children. Okay, we’re going to do something else, and so they bought a sailboat. He was the sailor. They bought a sailboat and said we’re going to sail it down in the Caribbean and then South America and then across the Atlantic. So I agreed to go with them for at least part of that time, thinking that maybe I’d go across the Atlantic with them and wound up not doing that. But we sailed around down in the Caribbean, three adults and five children, my nephews and niece. We had some wonderful experiences. They had later, after I left, they had some traumatic experiences along the coast of South America. They did not sail across the Atlantic. But they did go through the Panama Canal. I was with them probably for about the Caribbean arena. We had a good time. I was not a sailor before. Well not that much of a sailor. My wife is more of a sailor than I am, but certainly we had a lot of fun adventures. It was an adventure. And that ended.
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I had applied to law schools. My academic record, which was not stellar, although some law schools I would get into. The only way I could find out whether I had and make decisions if I’m into law school, was those days, again, we’re talking about fifty years ago, was to hop on an island and go to where there was a telephone that could reach the States, and a telephone that could do so was at the top of the biggest hill on the island, and I went there and I called back. I got ahold of my folks who told me what schools I had or had not gotten into and what I was on the waiting list for, and I made a decision at that phone on that island. Okay, let’s accept the University of Maryland. Go there, basically pretty much fully paid.
MR. COONEY: What made law school an attractive option?
JUDGE BATES: I might have said this earlier in our conversations. I think law school was a door-opening experience. It was viewed as such then, maybe it still is, that you can go a number of different directions from the legal training, and I wasn’t sure what I wanted to do, but I thought that law was a viable alternative. Being a lawyer seemed to me the best choice. I didn’t have the requisites for medical school, for example. I thought I wanted to go to a professional school. I didn’t think I just wanted to go and try to get a doctorate to teach, for example, so in the process of elimination, it seemed a viable option.
MR. COONEY: At some point you get on a train and come down to Baltimore?
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JUDGE BATES: First, I had to get back to the States from where I was, and that required getting to an island with an airport and getting on a plane coming back. And then my car was still sitting there, my little Volkswagen, and packing it up and coming down to Baltimore. And I did. Ready to go to a new adventure.
MR. COONEY: What was it like making the transition from first Vietnam and then a sailing trip to a disciplined process.
JUDGE BATES: I was committed to do better in law school than I had in undergrad, both with respect to absorbing more learning and in terms of, oh I was a very committed student, and, of course, I wasn’t coming right out of college like a lot of the class. I had all this other experience post-college, and so I was a little more mature perhaps in my outlook and my approach to things. So I got myself a place, by myself living. It was a long walk to school. The midway access to law school downtown and where Johns Hopkins was, and I committed to a full day’s work whether classroom or studying, and I was pretty good about keeping up. I enjoyed it as well. It was different. Some of the first year required a little less imagination. You learned sort of the process of law, but I still enjoyed that, and I had friends in law school. Many of them were younger than I was, but probably my closest friend was a guy named Cary Adams, who had been in the Navy. My other closest friend Graham Bush is in Washington. He was at Zuckerman Spaeder for many years. As I said, I worked hard, particularly in the first year.
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MR. COONEY: Where did you work?
JUDGE BATES: I worked in the U.S. Attorney’s Office. My first summer I worked in Legal Aid. My second summer I worked at a law firm in Baltimore, but a good law firm. During the school year, in my second internship, at the U.S. Attorney’s Office, I stayed with that. I did it during my second, and then I did it again in my third year, and I actually worked there after graduating from law school. I worked with three gentlemen. I worked more with two of them than with all three, one eventually was the U.S. attorney in Baltimore. Those three were sort of an elite team in the U.S. Attorney’s Office in Baltimore who did a lot of the work on the Spiro Agnew investigation and then on the Governor of Maryland, Marvin Mandel.
MR. COONEY: Two of the big corruption cases of that decade.
JUDGE BATES: Two of the great corruption cases. I didn’t work on the corruption aspects of Spiro Agnew because it pre-dated my starting to work. I worked on some related things. For example, I had FOIA production. Most of my work was devoted to investigation and prosecution of Mandel. I had a very close relationship with Ron Liebman, a pretty good relationship with Barney Skolnick although Barney was an unusual character, and a good relationship with Tim Baker, although I worked less with him. He was sort of the junior member of that three. I remember my first embarrassing moment sitting there was from Liebman as one of them introduced me and I was acknowledged by the judge, and afterwards when I was introduced, I
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sat in my chair, and that was not a scolding but an enlightenment for me in terms of oh what’s the courtroom decorum that you have to follow.
MR. COONEY: Everyone has to start somewhere.
JUDGE BATES: That’s exactly right. But that was a great experience. Working there was a very good experience. That’s what I did, as I said, the summer after law school. In addition to taking the bar, I was working still in the U.S. Attorney’s Office.
MR. COONEY: Were you doing a lot of the discovery work and making a first read through the papers?
JUDGE BATES: Discovery work, some motions response, motions preparation. So it was a combination of some legal work in terms of preparing briefs and memos and some factual work. They weren’t going to rely on me for factual work. That needed to be done both by them, and to the extent necessary, on financial issues by the experts.
MR. COONEY: Most people in law school are happy to have had some clinical work.
JUDGE BATES: It was a great experience, and it instilled in me an appreciation for, and a desire, quite frankly, to work in the U.S. Attorney’s Office.
MR. COONEY: How did you land the position in the first place?
JUDGE BATES: I don’t remember exactly, John. I applied for it. It may have been, and I think it was, I think maybe Mike Milliman or one of the professors knew a little bit of an entree there.
MR. COONEY: That’s an interesting point. You talked about your fellow classmates. You must have had relations with your teachers.
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JUDGE BATES: I did have relationships with some teachers. I would say that professors who are clearly foremost on my mind would be Bill Reynolds, who was a young professor out of Harvard. He was probably only a few years older than I was, because I had this time between college and law school, but he was a very dedicated young professor. He’s just recently retired, I think. He was my professor for contracts, and that was our small section class, so I had a lot of interaction with him, and I developed a certain affinity for him. Another professor wasn’t as much of a personal relationship but was more of an academic relationship taught First Amendment law and evidence and was a very demanding professor. He was a very hard professor, but he really taught subjects and asked quite a bit, and he was pretty much the opposite of Bill Reynolds. Bill Reynolds was very easy to talk to. Peter Quint was a little more difficult, but that’s about it. I didn’t have that much of a life outside of that.
MR. COONEY: Was there a teacher or an experience that sticks out?
JUDGE BATES: I don’t think so. Well, I did take a clinic, a trial practice clinic. I guess that was taught by Mike Milliman, who was a very successful professor and got accolades, but it was co-taught by a gentleman by the name of Steve Sachs, who was a former U.S. Attorney in Maryland, and that was a very good clinical, if you will, experience. It really was more trial practice than it was a clinical course because we didn’t handle real cases. It probably helped along with the work in the U.S. Attorney’s Office, for my
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interest in litigation. I had some subsequent relationship with Steve Sachs. He actually referred me a couple of cases.
MR. COONEY: What did you learn in the summer at Legal Aid that you were there?
JUDGE BATES: That was a pretty good experience. I mean I handled a lot of small matters, paperwork, and I was a little bit in court. That gave me an appreciation for the breadth of the law in that it was not dealing with major matters, headlines in newspapers, prosecution of Marvin Mandel. Or you could be dealing on an equal level of importance in some ways with seemingly minor matters that really were determinative of how one’s life was to be, represent people on behalf of Legal Aid. You’re dealing with real problems for real people who were potentially struggling to make ends meet or facing a certain circumstance, and so it gives you a different perspective. And I value that. I think it’s good that I did that. I love experiences that gave me the glimpse that the practice of law involved circumstances that are difficult for the client but are very meaningful for the client, with real life clients there, whereas at the U.S. Attorney’s Office, I wasn’t dealing with real life clients. I was dealing with lawyers.
MR. COONEY: Were you able to do any meaningful amount of pro bono work?
JUDGE BATES: In law school, I didn’t really do that. But as a lawyer, I did some pro bono work, and we’ll talk about that when we get to that part. There wasn’t anything in law school. I wasn’t involved in the group that was doing that, aside from working, my involvement was really focused more on law
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review and moot court. Again, I was on the law review. I put a fair amount of time into law review and wrote and was editor of the law review. It was a good experience. It gave me the opportunity to probe as well as reviewing the work of others, both from a qualitative perspective, making judgments on whether this was worthy, and also from a technical perspective. Editing, as you know, is really more technical than anything else.
MR. COONEY: What was the topic of your note?
JUDGE BATES: My note was a federalism topic, Younger versus Harris federalism.
MR. COONEY: We must have been in school at the same time. My class was assigned it. I drew professor Posner as my judge.
JUDGE BATES: That was one of the big issues that was good for academic exploration.
MR. COONEY: Who else was on the board of your law review? There must have been some standout lawyers.
JUDGE BATES: Cary Adams, who became a very successful lawyer in California, Sacramento, and he had some cases dealing with healthcare, one or two of them here in this court. He was the editor in chief, a very close friend. Bush was not on the law review. There are a couple of other people. If you don’t stay in the immediate Maryland area, you lose contact with a lot of people. Elijah Cummins, who just passed away, but I knew him. Academics were not his focus, but you could see that this was a special guy.
MR. COONEY: Were there many African Americans in the class?
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JUDGE BATES: I would say that it was fairly well-populated in terms of African Americans. I don’t know what the percentage was, but certainly there were a good number of African Americans. I would say the class was a little over a third women, which was probably on the high side for then, but a good number of women in the class. I think a respectable percentage were African Americans.
MR. COONEY: How did you make the transition from there to your clerkship?
JUDGE BATES: The transition to the clerkship, I clerked with Judge Roszel Thomsen who was an icon in Baltimore. He was very well-respected in the federal court. I clerked for him on the, I won’t call it the tail end, but the latter part of his career. He had already become a senior judge. Graham Bush, who I mentioned before, was my co-clerk, a great experience. I did well in law school. I think I was either second or third in my class. I don’t remember exactly. Working for Judge Thomsen was a good experience. He was a pretty formal guy, so I wouldn’t say it was a warm and fuzzy experience. I think I have a different relationship with my clerks than he had with his clerks. I have a closer relationship. He had a good relationship with his clerks, and I admired him quite a bit. He was very conscientious. He was able to get to the point, and that’s how he liked to write. So he expected our draft opinions to be nice and concise and not cite three cases if one case is sufficient. That kind of approach to writing is a valuable approach.
I did a lot of different things during the year that I was with him in addition to the cases that we were handling. There was a special
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assignment from the Chief Justice. He designated us to handle a case brought here in Washington. I’m not remembering the name. By someone who had been a superior court judge ousted from that position. Judges on the federal court knew him and so were recused. Thomsen was designated to handle it, and I worked on that case. He also was the chair of the Standing Committee on Rules. That brought us to Washington on a couple of occasions when he brought a law clerk. I saw that process through Judge Thomsen.
MR. COONEY: Fast forward forty years.
JUDGE BATES: Fast forward forty years. That’s right. And he also was on a court called the Railroad Reorganization Court. This was the court that dealt with Amtrak, property issues, eminent domain issues, as well as legal issues. Working on that court was pretty fascinating because of the other two judges on that court, Henry Friendly and John Minor Wisdom. These are two icons, again to use that term. Henry Friendly is probably the number one most respected intellectually court of appeals judge of all time. John Minor Wisdom was almost of the same level, although it’s probably not as much of an intellectual respect, although he was an exceptionally bright guy. He fit the role of a judge, and in the South, he, like Frank Johnson, was really instrumental in New Orleans, with John Minor Wisdom, in bringing the South out of the remnants of reconstruction into a more equal world for all. He was a real treat of a man. Judge Friendly was more of an imposing man, but working with them, I mean Judge Thomsen was
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working with them. I was sort of experiencing it from afar, but working with their clerks too who were very very accomplished dealing with complex issues on railroad reorganization. That was interesting.
Thomsen had some interesting assignments in addition. He had fewer criminal cases than I would have preferred because of his status and cutting back on those and some others. So in that regard, I probably missed out on some things because of what he was focused on.
MR. COONEY: And again, you had first-hand exposure at least on one side of the table.
JUDGE BATES: Absolutely. No question about it. And as I said, it was a pretty formal relationship. I drafted opinions, and the clerks did the first drafts. Now, back then, as you might know, John, a secretary was essential because basically you might be typing some, but you would be handwriting a lot, and the secretary would be transposing that, transcribing that. The secretary was really the force in the office, as well as Judge Thomsen, because she was a part of the team. It was a good working relationship, a good group. And Cary Adams, who I said was a good friend of mine, was in the chambers next door clerking for Judge Frank Kaufman on the court, so we had a good group there that I knew well in addition to some other people that I met there. Jack Kenny, who was at Hogan for many years and did a lot of pro bono work. He was another clerk that I had a good relationship with.
So that was that experience, and it lasted for about a year, and of course what I wanted to do from there was go into private practice to pay
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off some of my debts and that was the next step after working for Judge Thomsen.
MR. COONEY: That’s a good place to begin for the question, if I could in this one. So looking back after all these years, almost half a century, who do you think the young John Bates was when he makes the transition? If you could talk to him, what would you tell him?
JUDGE BATES: I was a pretty mature transitioning young lawyer. I had the military experience and hadn’t gone straight through the academic route, so I think my maturity was reflected in judgment and discipline, and so I transitioned into the work environment perhaps easier than some might have. Philosophically, I was moderate. Maybe a little more left side than on the right side of moderate, but still pretty moderate in my political, social, and other views. I recall thinking alright this is what I want to be long term. I think I entered into the practice of law thinking I want to hone my skills. I want to become good at what I’m doing and take it from there. But I had in the back of my mind that the “there” I would eventually wind up in, would probably be in a U.S. Attorney’s Office. That was something that I admired and enjoyed from my past experiences, and I sort of viewed the private practice as a waystation along the way.
MR. COONEY: The Justice Department is so good for your standards and your aspirations.
JUDGE BATES: I’ll say one thing on that. Then, and subsequently, when I advised others, although I’m not that sure that it’s true now, but at least then, and for some decades thereafter, I always felt that it wasn’t a bad idea to go into the
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private practice of law first because in public service, particularly in litigation, you’re going to have more work than you can do at the highest quality, so you need to make decisions about not cutting corners but being efficient in getting the most important thing done and giving most of your attention to the more important because you have more responsibility and more matters. In private practice, I always felt that you had more instruction and teaching and more focus on developing good habits without the volume causing you to cut corners or make adjustments. And so I always felt that it wasn’t a bad idea to go first into private practice and instill some of those good habits that you then could take into the demanding, at least in terms of the responsibility level, public sector employment where you have to make decisions on your own and perhaps make decisions and set priorities. And that’s a good point to end with for today.
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Oral History of Honorable John Bates
Third Interview
February 19, 2021
This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee is Honorable John Bates. The interview took place on Friday, February 19, 2021. This is the third interview.
MR. COONEY: Alright, sir. Well let me launch in with the usual introduction and where we are in the process. Good morning, your honor. When we ended the last interview, you had just completed your clerkship with Judge Thomsen in Baltimore and were about to enter in the private practice at Steptoe and Johnson in Washington. May I start by asking what persuaded you to choose Steptoe and Johnson as your first post-clerkship job?
JUDGE BATES: Well, I wanted to go to D.C. rather than stay in Baltimore. I thought the opportunities and challenges would be greater in Washington than in Baltimore. I had summered at a firm in Baltimore, Frank Bernstein, a very good firm. I liked the lawyers a lot and developed some relationships that actually stayed with me in the future, but I still thought it was better to move on from my clerkship to Washington if I could. And when I interviewed at firms, I was struck by Steptoe and Johnson because it seemed like the right size for me. I believe I was the 99th lawyer to join the firm, and that was a substantial size, so it gave all the advantages of that, but it was also a Washington firm, and it was not super-sized, and I was more comfortable with that. It also had a local litigation practice. I expected that that might give me more opportunities than some other
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practices would and so it just seemed like the right place in addition to which when I interviewed there, I liked the people and it seemed like a good fit.
MR. COONEY: In what area did you train in Steptoe? Did it have the normal process in Washington of rotating its associates among different practice areas?
JUDGE BATES: There was some rotation. I didn’t have what I would call a full rotation in that I did mainly litigation-related matters and court litigation as opposed to administrative litigation. The training was not as formal as ultimately in large firms it became, but I did get some litigation training and focused on two or three different areas of litigation. One was employment discrimination. Those happen to be larger cases. I worked on some class actions and some larger matters there. Another was the local litigation. I was able to work with a lawyer who had a very active small case litigation practice, not a practice that would fit well these days in a significant Washington law firm, but it seemed to work at that time. His name was Laidler Mackall. I learned a lot from him, and I was able to handle several cases. I didn’t try any cases while I was there. I wasn’t there for very long, quite frankly, but I did do a number of depositions and some motions, and I did depositions in other cases too. I had some, I’ll call them environmental cases, but they were really river erosion cases in West Virginia, and I traveled there for depositions on many occasions.
MR. COONEY: What was your favorite case that you had the opportunity to work on, and what was your role in it?
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JUDGE BATES: Well I think without a doubt my favorite cases were pro bono cases. I don’t think that that’s unusual in big firm practice then or now, but I had two pro bono opportunities that were very rewarding and significant. In one case, I represented, along with another lawyer at Steptoe of my vintage, Sandy Chamblee, an African-American woman, and I did this case together, and we represented a woman from South Africa seeking asylum in the United States and successfully obtained asylum for her. It was basically getting to know her and her issues here and back home in South Africa and then putting together a very sizable asylum package and working that through the administrative process. And we were able to do that successfully before I left Steptoe and Johnson, so it was something that we probably from start to finish accomplished in less than a year, and I was very happy to be part of that and developed good relationships from it.
The other case I had was a case that I did with two other young associates at Steptoe and Johnson, and we represented a gentleman by the name of Bob Randall, who was one of the first, in some ways, the first, who was seeking medical marijuana to get marijuana from the government for treatment from disease. In his case, it was severe glaucoma, and we handled that case, and we actually filed an action in District Court in Washington, D.C., the court that I currently sit on. We sought a temporary restraining order, and within ten days, the government had agreed, and we effectively won the case. The Assistant U.S. Attorney handling the case I
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thought did a very responsible job, and we got along well and were able to reach an appropriate resolution, and Mr. Randall was able to benefit from the government supply of marijuana for years thereafter.
So those were two probably of the most satisfying cases. That’s not to say that I didn’t enjoy the client-based cases. I had significant work on some class actions in the employment sector and developed some very very good relationships, first with Tom Powers, who was a very excellent lawyer, and then more of my age range, with a young partner by the name of Morgan Hodgson, who I think just retired from Steptoe and Johnson very recently. It was some great experiences.
MR. COONEY: Was she married to Bill?
JUDGE BATES: Yes. Not only was, but she still is.
MR. COONEY: I was looking at Martha’s Vineyard and Bill was trying to bring a huge windfarm to southwestern Massachusetts.
JUDGE BATES: Well he was always a good wind surfer. He got very wrapped up in wind surfing and putting his interest in wind into a wind farm is not surprising. Bill is a lovely guy, a very capable guy. As is Morgan, a wonderful lawyer, and a wonderful person.
MR. COONEY: You must have seen Bill in action on the railroad reorganization case.
JUDGE BATES: A little bit, but not really much at the time I was there.
MR. COONEY: So did you have the opportunity to make oral arguments in any of your cases while at Steptoe?
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JUDGE BATES: Only motions arguments, and only in motions that were not, except for one summary judgment, the other motions were non-dispositive motions, discovery issues, things of that sort. So I appeared in court. I would not say I appeared extensively, but I probably appeared in court and said something half a dozen times, and I probably took or defended fifteen or so depositions, which for my little over two years that I was at Steptoe and Johnson I considered to be a pretty decent litigation exposure. Many of the depositions, as I said, were on that river erosion case in West Virginia and occurred near the end of my tenure.
MR. COONEY: So normally I’d go on to ask how you transferred to the U.S. Attorney’s Office, but my understanding is that you met your future wife at Steptoe, so I thought this might be a good opportunity just to ask when and where you met and have you take it from there.
JUDGE BATES: If we’re going to talk about my family, this will take the rest of the hour and a half. But let me start with Carol. Carol and I did meet at Steptoe and Johnson. We actually started at the same time. She was one year behind me in law school because I had clerked for a year. She went to the University of Virginia, and we were friends for a while and then through the, I guess the start of more than a friendship, was when we were at a firm event in Northern Virginia, a racquetball-focused event, and we were a doubles team against one person from Steptoe and his spouse, and what happened was he took a backswing, and the backswing went into Carol’s head above the eye and really clobbered her. So off we went she and I to
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the emergency room for an interesting experience as they stitched her up, and the emergency room doctors thought it was a nice thing to do around April Fools’ Day to take x-rays of her head with bolts in it and all sorts of funny things that they tried to amuse her with. So anyway we sort of developed a little more than a friendship after that and ultimately decided to get married. We weren’t perfectly comfortable being at Steptoe and Johnson together and having the prospect of married life with both of us working at the same place because it would be a little bit constraining in terms of the breadth of our experiences, but also because it would be a little bit awkward at the firm, it felt certainly eventually it might be. With that in mind, I left Steptoe and Johnson not too long after we decided to get married, and indeed when we revealed the fact that we were going to get married, Carol was stuck with dealing with everyone at the firm over it because I was over in West Virginia taking depositions. We got married, and then after that were still together, still happy and still enjoying each other and all the ins and outs of married life, and I’ll move on at that point to three additions to our family.
We got married in 1980, and in September in 1981, my first daughter Lauren was born, and she is now an Assistant U.S. Attorney in Washington and runs a large section of the U.S. Attorney’s Office and does a lot of training of the assistants in the office as well. She and her husband Nick live in Bethesda, not too far from us, and we have two
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grandchildren there, and it’s a joy to have them around, and it’s one of the best things in life to have grandchildren close by.
Now we have other grandchildren that are not close by, or at least not at the moment. My second child, my son, Brian, was born in December of 1983. He was a pretty wild and crazy little kid, not a wild and crazy bigger kid, but got into lots of little mischief, good funny stories of Brian and the things he used to do. He is a great outdoorsman, loves the outdoors and therefore he and his wife and three daughters live in Vermont, rural Vermont, and have a great life. He is a doctor and is the medical director of a clinic in rural Vermont. It’s very rural Vermont, but they wind up with a lot of patients. I think they have 12,000 patients or something like that. There are five or six doctors in the clinic, and it’s a very highly regarded clinic, and they do a wonderful job for their patients. His wife, Jenny, is a midwife working at a hospital in Middlebury, which is about 45 minutes away from where they live. And their three girls are a joy, and we love visiting there, but not as much during the dead of winter as the rest of the year. It’s probably zero or below zero in Vermont these days, and that’s a little nippy for me.
And then the youngest daughter is Kelly, and she lives in Chicago at the moment, but she’s moving back to this area next month. She was born in July of 1987 and is a real pistol, just a funny, enjoyable kid, and now adult, and she’s married to someone we love dearly, Luke, and he has an MBA and works in affordable housing, and Kelly is a nurse-
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practitioner. She has her doctor’s degree and is working in a clinic in Chicago, but as I said, is moving back to this area next month. Kelly has one child, a boy, who’s going to be one year old in about ten days, and we’re looking forward to having him back here since we haven’t spent much time with him over the past year. His first year of life, because of the COVID-19 pandemic. So those are the family ties, and they are the joy of my life.
MR. COONEY: Very interesting. It must have been extremely busy in your house. As a two-lawyer family, how did you manage to allocate your respective time in helping the children?
JUDGE BATES: The credit is all due to my wife. She, when Lauren was born, she became a part-time lawyer and became one of the first part-time partners in a major Washington firm, at Steptoe and Johnson. She was able to handle that and accomplish that, and the fact that she was part-time, of course we know what part-time means for a lawyer. It probably means a 40- to 50-hour week instead of a 60- to 80-hour week. But she managed it very well, and I was able to contribute, I hope, as much as I could and in a reasonable way, but most of the credit for our family nucleus and the strain of it is due to Carol’s hard work and innovation and passion and excitement. She’s just an upbeat person, always doing things to make family life better, as she does to make the world better. She was a lawyer at Steptoe for a long time, as I said, became a part-time partner, but eventually, she tired of what she was doing, and she went to do what she
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had initially thought she would do, which was teach, and she had been teaching on the side at Georgetown in the law school, but she decided to teach American History in high school, and she became a teacher at the Maret School here in Washington, which she did for over a decade, and indeed, the first year that she taught, she also was still teaching at Georgetown, and she would go from teaching American History to 9th and 10th graders and hustle downtown to teaching tax law to law students, and it was quite a change on a daily basis, but then eventually Carol took up a third career and started a non-profit, which originally was to assist AIDS orphans in Ethiopia. It morphed with the success of the AIDS treatment. It morphed because there were fewer AIDS orphans, it morphed into just supporting children in Ethiopia, and she’s still doing that to this day with an organization that she started.
MR. COONEY: That must be a challenging job given all the disruption in that part of the world.
JUDGE BATES: It’s challenging in different ways in different times, but yes. Sometimes because of the disruption over there, and indeed there has recently been more disruption in Ethiopia, and other times just because of the distance and other times because of just the problems that haunt small non-profits in terms of their existence. Government support in Ethiopia sometimes is marginal, and so it’s been an interesting thirteen or fourteen years that she’s been doing that.
MR. COONEY: That’s a commitment of personal time. That’s really extraordinary.
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JUDGE BATES: It is.
MR. COONEY: Well thanks for that discussion of family. I can see that it must be hard during the Coronavirus period to have all those grandchildren you can’t see.
JUDGE BATES: It is. Early on, we managed to do some family get-togethers with everybody strictly quarantining for a period of time and then traveling by car to a centralized location. We picked locations where the travel from Chicago, Vermont and Bethesda was approximately equidistant. We met in Upstate New York once or twice, so we were able to see family a couple of times, but it has been hard more recently. We have not seen those in Vermont or in Chicago to speak of. Because of their medical connection, they’re both pretty strict in terms of what they can do. My daughter has been on the front lines dealing with the pandemic and COVID patients. And my son has been on the front lines, but actually, in Vermont they’ve done a wonderful job and have a very, knock-on-wood, low case rate. But they’re both pretty strict in terms of the requirements and quarantining and social distancing and masking and everything else, so we haven’t seen them all that much.
MR. COONEY: I can see that you really could go on for the remainder of the hour about the family.
JUDGE BATES: Ask me another question about the family, and I’ll take another half hour.
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MR. COONEY: I might ask if this would be a good time to transition to find out what persuaded you to leave private practice and go into the U.S. Attorney’s Office.
JUDGE BATES: Well, it was always my plan. When I was in law school, I had worked in the U.S. Attorney’s Office in Baltimore on the prosecution of Governor Marvin Mandel, and I had developed some good relationships with lawyers there and a real affinity for the work of U.S. Attorneys Offices and the responsibility and experience that one could get by working there. So it was always my plan to do that. I had some acceleration to that plan because of the fact that Carol and I got married, and we thought it was a good idea to not be both at the same place, so I began looking pretty quickly. I was fortunate to have the opportunity to go either to Maryland U.S. Attorney’s Office or D.C. I think I would have liked to have gone to Maryland, but for the fact that the commute would have been pretty brutal living in Bethesda and commuting to Baltimore on a daily basis. Now I know people have done it, including the U.S. Attorney a few years ago, Rod Rosenstein lived in Bethesda and was the U.S. Attorney in Baltimore. But I chose not to do it, and instead decided to go to the U.S. Attorney’s Office in Washington.
Now, the job offer I had was to go to the Civil Division, and I found that attractive and interesting. It was a very well-regarded office that had substantial cases. I was a little concerned about not doing the criminal work, which is what had initially attracted me to the U.S.
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Attorney’s Office, but I decided to go to D.C. to the Civil Division and don’t regret it. So I wasn’t assigned to the Civil Division. I was hired into the Civil Division. They have always had a separate hiring process. Not to the exclusion of the U.S. Attorney, but a separate hiring process than exists for the rest of the Office where there’s a rotation in process. You get hired, most people, almost everyone, gets hired and goes through a lengthy rotation because of the local and federal responsibility that that office has.
MR. COONEY: What was your role when you were first assigned to the Civil Division, or first hired into it?
JUDGE BATES: Well, like everyone else, I basically was an AUSA who had a case load, and the case load consisted of some interesting cases, administrative cases dealing with federal programs of one sort or another or federal decisions. There were also some individual clients in the law enforcement arena, usually Bivens actions, which would be actions against them individually. There were employment discrimination cases, Freedom of Information Act cases, tort cases, and just a full panoply of the kinds of cases that are brought against the United States, and, of course, that is a large part of the docket of the District Court here in Washington because the United States is such a substantial player in this jurisdiction, and, indeed, the largest employer.
MR. COONEY: It must not have been long before you were on your feet in District Court and on your feet quite often.
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JUDGE BATES: I probably tried a case within six months, although I think it was a bench trial, and I was arguing motions right away. The office then, even more than now, but still now, but the office then handled all of its own appeals, so before too long, I started having cases in the Court of Appeals too.
Ultimately, I was there more than ten years, but ultimately, I tried over thirty cases to verdict in the District Court, and I argued over thirty appeals in the D.C. Circuit during my time in the U.S. Attorney’s Office. As I said, it was over a decade that I was there, and it was challenging, interesting. But that’s not to say that there weren’t some junk cases along the way. Virtually, every job has its share of uninteresting work, and certainly being an Assistant in the Civil Division had that. Some of the pro se cases or FOIA cases were not all that interesting, but by-and-large, it was a very interesting case load, and one that enabled me to grow immensely as a lawyer.
MR. COONEY: Did you develop subject matter specialties in the U.S. Attorney’s Office, or does it remain that you get the next case in the rotation?
JUDGE BATES: It largely remains, as you just described, cases are assigned, and I can only speak to when I was there, either as an Assistant or as the Chief of the Division, cases were assigned by the supervisors in the Office, so it wasn’t a random distribution, and that led inevitably to some development of substantive expertise because some of the assignments were we want to give this to Mary because she has or had a similar case. I certainly developed a very recognizable substantive expertise. I think generally you
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could call it First Amendment. It had a couple of different prongs. The primary prong was relating to the demonstration activity in Washington, which has always in different ways and forms has always been very active. I think back to the May Day demonstrations and all the other activities in Washington. And I handled those throughout my time in the U.S. Attorney’s Office. I had some pretty significant cases.
I also did other First Amendment work. For a couple of years, there was quite a bit of work relating to the Combined Federal Campaign and free speech issues regarding that. And then there were other First Amendment issues that came up sometimes in the employment context and similar context and things of that sort, and I had, not all of those cases, but I had a pretty significant part of that responsibility. Now, you have to understand in an office like the U.S. Attorney’s Office, no good deed goes unpunished. If you do well in something, you will get more of it. Indeed, I think of one instance where I was concerned that I had not really developed any experience or expertise with class actions, and so I went to the then-chief of the Division and said, you know, I think I’d like to handle a class action. Most of the class actions that we had in the Office were employment discrimination class actions brought against various government agencies. Well, having raised that issue within three or four days, I had one case transferred to me from another assistant. I think the assistant was leaving, and another new case assigned to me, two substantial class actions that I then handled for years thereafter, including
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doing numerous mini trials, if you will. As you sort out those cases, sometimes they wind up depending sometimes on liability determinations, they’re made on an individualized basis, but usually that’s made on a more class-wide basis, and then there are individual damages cases, but I handled cases dealing with the State Department, cases dealing with the Government Printing Office, which is probably the biggest case that I handled because there was quite a bit of long-term racial discrimination that was challenged in that action.
So, that was another area that obviously I had some experience with. Ultimately, and I’m rambling on, but I’m probably covering a couple of things, ultimately, I decided that it might be time to leave the U.S. Attorney’s Office after I had been there maybe a couple of years, three or four years, and in order to try to keep me, and successfully keep me, a new position was created, a supervisory position. None of the supervisors were leaving. There was a chief, and then two deputy chiefs and an appellate chief, and they created a new supervisory position that would have responsibility for False Claims Act cases. We were trying to develop False Claims Act cases at that time, and I took over that area and worked quite hard on those matters and developed for the office an expertise. First it was focused more on defense, the defense community. Ultimately, it gravitated more to healthcare, but with those two major areas and many other cases, we developed a very, very active False Claims Act docket. And indeed there were a couple of years where much to my
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satisfaction we were able to recover more through our False Claims Act cases than was the entire budget of the U.S. Attorney’s Office, and the U.S. Attorney was very happy. The money didn’t come to us. Money goes to the Treasury. But just symbolically, it’s a nice thing to be able to say about your office that you’re bringing in more money than its costing the taxpayer to run the office.
MR. COONEY: Managing partner’s lawyer of the year.
JUDGE BATES: Yeah. So I did a lot of work in that area as well. And a fair number of Bivens cases. I never had to try a Bivens case. That was one of the areas that was most possible for jury trials early on. There were not that many jury trials for most of the years that I was in the U.S. Attorney’s Office because the Tort Claims Act covers tort actions against the federal government, and those are non-jury, and the Title VII cases were non-jury. There was no jury trial right against the federal government until 1986 or so with the change in Title VII, and jury trials became available against the federal government. So I had very few jury trials during my time in the U.S. Attorney’s Office. I think two or three is all.
So all of my trials were bench trials to speak of, and not much jury experience. But I did have some significant cases, and some of the First Amendment cases that I handled went to the Supreme Court. Two or three First Amendment cases went to the Supreme Court, one of which was a dreadful case dealing with mail advertisements of contraceptives. This was very early in my time in the U.S. Attorney’s Office, and I remember
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we, for the most part, lost the case in District Court, although we sort of won a little part of it, and then we had to decide whether to take an appeal. The Postal Service definitely wanted to take an appeal. I wrote a memo to the Solicitor General recommending appeal, and I had given it to the U.S. Attorney to review, and one night, the way the office was structured, I walked by the U.S. Attorney’s office on my way out of the building. I noticed that Chuck Ruff, the U.S. Attorney, was sitting at his desk with case books piled up around him. I said hello, and he said I’m reading your memo, and he had all this law piled up around him. We recommended appeal. We knew it would be unsuccessful, and indeed it was unsuccessful in the Supreme Court. But there was a theory, and there still is a theory, that unless there’s some strong reason not to, you defend a statute that Congress has passed, and Congress had passed the statute that was at issue, and so we defended it all the way to the Supreme Court.
A more significant case was the case dealing with demonstrations in Lafayette Park brought by CCNV, the Community for Creative Non-Violence, and I litigated that case through the District Court, in virtually a trial proceeding. We were not particularly successful. It went to the D.C. Circuit, and I argued it en banc in the D.C. Circuit, and we lost by one. Six to five, I think. Or maybe at that time it was five to four. I can’t remember how many judges were on the D.C. Circuit at the time. Harry Edwards said somewhat serendipitously, that he was afraid this case was going to make bad law, and indeed we took it to the Supreme Court,
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and from his perspective, it did make bad law because in the Supreme Court, the government won, seven to two. And that was a pretty interesting process to be involved in and to be part of the moot court of the Deputy Solicitor General, Charles Fried, who argued the case. It was a high-visibility case.
Immediately thereafter there was another case dealing with regulations around the White House on the White House sidewalk, if you will. These were security regulations but had great First Amendment impact, and that was very strongly litigated. I tried that case, even though it was an Administrative Procedure Act case. Bill Bryant, on the District Court, wanted a trial, so we had a trial with witnesses, and we did not come out successfully with him, but then did succeed in the Court of Appeals. We were confident, and I handled all of that litigation. I was confident that the D.C. Circuit would take the case en banc, and indeed the vote en banc was, again, six to five, not to take it. Skelly Wright voted against taking the case en banc, which was a shocker to all of us, and that was the only way that that case didn’t first go en banc and then ultimately go to the Supreme court because the Court didn’t take it en banc by a six to five vote.
So those were the kinds of cases that I was fortunate to be part of and to really learn from and enjoy doing. I enjoyed arguing appeals. I think probably more than I enjoyed trying cases, but both things were really a part of my litigation experience in the U.S. Attorney’s Office.
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MR. COONEY: I’m sure the Historical Society would like to hear your thoughts as to what it was like to be arguing that often in front of the D.C. Circuit in those days.
JUDGE BATES: It was a great experience. There were some fantastic judges. It went from the time of Skelly Wright and Bazelon into the time of Abner Mikva and Pat Wald and Ken Starr and others and some very interesting judges. Scalia, Ginsburg, Thomas, all on the Supreme Court, all of whom I argued before, and it was really quite an experience. A great experience arguing en banc and indeed that was probably one of the highlights of my time as a lawyer was arguing en banc to the D.C. Circuit, which I did on two occasions. I had experiences such as, I mean generally I had very good experiences. Some judges are more difficult than others. There are expressions of “the panel from Hell,” and at different times, it’s been made up of different judges. At one time, I was arguing a case and Harry Edwards, who I have a very good relationship with as a lawyer and as a judge, I’ve had a great relationship with and I admire and I like him, but at one time, something came up during an argument, and I posed a rhetorical question in response to it, and Judge Edwards, as he was prone to do, leaned over the bench, as I’m leaning now, and said, “Mr. Bates, we ask the questions. You answer them.” It was those kinds of experiences that one can take away from arguing in the D.C. Circuit, which was always demanding, I mean you had great judges. At the end of my tenure, Merrick Garland, I think I argued only one case before Merrick Garland,
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but he was so knowledgeable about the record, was so well prepared. And Ruth Ginsburg was always so knowledgeable and detail-oriented, and it was really quite an experience arguing before the quality of the bench that we had on the D.C. Circuit over time.
I got to know Ruth Ginsburg fairly well. And when she was the liaison judge to the Rules Committee, it doesn’t go by the name of the Rules Committee, but the D.C. Circuit Rules Committee. I was on the D.C. Circuit Rules Committee, and she was liaison judge, and I got to know her a little bit more than one would when she was on the bench in arguing cases. Ruth Ginsburg was not that easy a person to get close to. She was a little awkward, quite frankly, socially. Her husband made up for that because he was one of the funniest, most gregarious people I’ve ever known. But I always had a very dear spot for Justice Ginsburg. On several occasions, three or four occasions of significant events in my professional life, she would write me a very nice note, and I always thought that was a wonderful gesture. I remember when she was identified as the nominee for the Supreme Court, I reached out to her, and I used the word “congratulations,” and she said to me, “No, John. Don’t congratulate me. Save that for when I’m confirmed. Don’t congratulate me on being nominated.” And I remembered that ever since. She was among the three or four judges in the D.C. Circuit that I developed a pretty close relationship with, as I did with several of the District judges. And the District Court was obviously more important. We did more work in
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the District Court than we did in the Circuit just because, as you know, there are so many more cases in the District Court than in the Circuit.
MR. COONEY: The Circuit was pretty badly divided during your tenure in the U.S. Attorney’s Office.
JUDGE BATES: Yes it was. Abner Mikva had some interesting times, including a punch in the nose episode that I was not part of, so I won’t even pretend to repeat. But yes, there was some real division. Pat Wald and Harry Edwards did great work as chief judges in mending some of those divides and making it a more collegial court. But there always was, and there still is, a little bit of division on the D.C. Circuit that is ideologically based.
MR. COONEY: That is all very interesting. When did you get promoted to being head of the Civil Division at the U.S. Attorney’s Office? We haven’t covered that period.
JUDGE BATES: That would be when Royce Lamberth became a District Judge in 1987. He was appointed to the Court by President Reagan in 1987. I think I’ve got that right. I became the Chief of the Civil Division. It was not expected that I would be Chief of the Civil Division. As I said, I was in a newly created supervisory position that was not a deputy but an assistant chief, and there was an heir apparent who everyone expected would be named Chief when Royce went on the bench. Indeed, Royce supported him. He was a good friend of Royce’s, and I didn’t take that personally because they had done a lot of things together over the years. But I threw my name in the ring anyway, and indeed, I was selected. I think I didn’t
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have some of the baggage that the other candidate had, and there was a third candidate as well, but I didn’t have some of the baggage that that other candidate had, and I think some people reached out on my behalf, including the Assistant Attorney General for the Civil Division in the Department of Justice recommending to the U.S. Attorney that I be selected rather than this other candidate. And I was selected and became Chief and had several great years running that office, which is an office that has always done high-quality work and has had a lot of very capable attorneys working in it, and I enjoyed working with them very much and learned a lot as Chief in terms of management of lawyers, management of a legal office, how to lead an office, a government office nonetheless, how to work with not just attorney staff but other staff and deal with the problems that arise from any group, employment group. I guess we had probably 80 or 90 people because there were 45 attorneys maximum, and when you added in the staff, maybe not quite that many, maybe 75 to 80 people. It also involved working with government agencies across the spectrum and with the Department of Justice, and I did a lot of work with not just the Civil Division of the Department of Justice but with other areas in the Department of Justice. Antitrust I did a little bit with. Consumer, Immigration. And then I worked with the Solicitor General’s Office quite a bit because any government appeal decision is made by the Solicitor General, and so you write memos as to whether to appeal or not appeal an adverse decision. And, of course, if a case goes to the D.C.
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Circuit by an appeal by the adversary, then the Solicitor General sometimes is interested in those cases. And I worked on occasion with the SG’s office on various matters.
MR. COONEY: Were you able to handle cases yourself, or was it primarily a management job?
JUDGE BATES: I retained some cases, and indeed, one of the en banc arguments I did, I did when I was Chief of the Civil Division. And I tried one case, one jury trial, when I was Chief of the Civil Division because jury trials became available, and I wanted to do one. I think I tried one bench trial as well in front of Judge Lamberth because I wanted to try a case before him. So I did do some work on cases myself, and I stayed involved in First Amendment matters, and to some extent, False Claims Act matters, but I did that more from a supervisory perspective than from handling and managing cases.
It did involve, however, a lot of supervision of younger lawyers and not so young lawyers because some of the Assistant U.S. Attorneys were older than I was and more experienced than I was. There was a lot of review of their work, mainly their written work and some training within the office. I did some training at agencies as well, a little bit of teaching, if you will, in that context. But the major thing was the management of the office and the dealing with the client agencies and the Department of Justice. Any time there was a significant case, there was always a question as to whether it would be handled out of the U.S.
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Attorney’s Office, Civil Division, or out of Main Justice, particularly in the Civil Division of the Department of Justice, Federal Programs branch for the most part. And so I had a lot of contact with them working out matters. Indeed, one somewhat interesting story, I handled two cases in the District Court, and both of them were appealed to the D.C. Circuit, and they were scheduled for argument on the same day. One was the CCNV case that I mentioned, and the other was a case called NAACP versus The Combined Federal Campaign. These were both significant appeals, and the Assistant Attorney General called me and said John, I don’t think you should argue both those cases the same day, and I agreed. So I chose the one I thought was more interesting, the CCNV case, and argued it in the D.C. Circuit, and Main Justice handled the Combined Federal Campaign case. Both those cases went to the Supreme Court and were decided ultimately by the Supreme Court.
MR. COONEY: Did the Combined Federal Campaign case involve an Executive Order?
JUDGE BATES: Yes. It did involve executive orders that were made. The biggest problem with the Combined Federal Campaign was the exclusion of certain groups, particularly litigation groups. So the LDF, the NAACP Legal Defense Fund, had been excluded from the campaign as were some other groups, and that led to litigation, and indeed, a lot of those cases went before Judge Joyce Green on the District Court, and I remember going in for one TRO before Judge Green, and she said to me, I think it was on the record, but it may have been off the record, she said, “John, you’re a great lawyer.
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I really enjoy you having cases in front of me, but I just wish you had some better cases.” Because they were very difficult cases to defend, quite frankly.
Joyce Green was one of my favorite judges and one who I developed very good relations with. I would stop and, as an aside say, that other judges that I had a lot of respect for and developed pretty close relationships with, were Judge Hogan, who wasn’t on the bench the entire time that I was in the U.S. Attorney’s Office, but a good portion of the time and was a really excellent judge and is still one of my closest friends on the Court. I said Joyce Green. I had a lot of respect for Gerhard Gesell. I wouldn’t say I had a close friendship with him. It’s not the kind of thing that you developed with him when he was a judge, but I had a lot of respect for him, and I had some cases that I thought played out very well. He was just superb at getting to the heart of a matter. He could identify what really was the crux of the issue and get at it very well. I had a great relationship with Bill Bryant as well. Not extreme success before him. For example, the White House regulations case was before him, but a very good relationship with him and handled many matters before him. And a great relationship actually with a judge that I came not to have the same degree of respect for, and that was Norma Johnson. I think she didn’t handle some things later on as well as she could have, but I had some matters before her that were very significant, national security matters, and they required some real sensitivity, and I enjoyed working on
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those matters before her. I will say that as an AUSA, I also had a case in New York, interestingly. I had forgotten this for a moment, but a case that was brought by General Westmoreland against CBS News dealing with the coverage of his time as the commander in Viet Nam. That case was a very high-visibility, notorious case, but it involved some requests for information from government agencies, including the CIA, and I represented the CIA in that case and had to go up to New York and actually appear in New York before the district judge handling that litigation, along with an assistant from the Southern District of New York. And of course the case was being defended, CBS was represented by David Boies, and so I had some matters with him. Ultimately, indeed, one case went to the Court of Appeals that I argued against David Boies and won. Not in the Second Circuit, but in the D.C. Circuit. It was an information-related case arising out of that Westmoreland proceeding.
So I had some judges that I really had a lot of respect for and developed some good relationships with.
MR. COONEY: When you became a judge yourself, it must have been very interesting to have that panoply of approaches in your mind as to the judges you had these relationships with, handled their cases, and approached these obligations.
JUDGE BATES: I think it was almost unique, not quite unique. Royce Lamberth would have had a similar experience. But I had handled so many different kinds of things before the D.C. District Court and known so many different
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judges that it was an easier transition, quite frankly, because substantively I was very experienced with the docket. But it was a little easier transition because I knew some of the judges, but I also knew the court as an institution pretty well.
MR. COONEY: Speaking of transitions, how did you transition out of the position in the U.S. Attorney’s Office?
JUDGE BATES: Let me mention one other thing because it leads up to the transition. There was another First Amendment case that I handled, and it dealt with leafleting on the sidewalks within and around the Viet Nam Memorial on the Mall. And this case was brought actually by some religious organizations right of center, shall we say, who were by the regulations that existed, the Park Service regulations, were not permitted to do certain kinds of leafleting. I represented the Park Service. We were unsuccessful in defending the regulations, and the question then arose should we take an appeal. I wrote a memo supporting appeal because the agency, the Department of Interior, very much wanted to defend its regulations. So we wrote a memo to take that appeal, and to decide the issue, the Solicitor General asked me to come over to meet with him, and, obviously, I did so. I brought the Solicitor of Interior with me to the meeting, and what happened was that the SG decided that it would be worthwhile for him to basically have a debate. So he had his senior-most deputy who had been working on the case and was obviously recommending against taking the appeal debate the issues with me before him. It was a little bit of a
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surprise to me, and I was just crucified. The Deputy SG was very well-prepared and very knowledgeable and very skillful, and I was just destroyed. Now, we took the appeal nonetheless because the agency very much wanted to, and so the SG decided that that was the thing that should be done, and as expected, we lost three-zip in the D.C. Circuit, and that was the end of it. But the SG was Ken Starr, and the Deputy, who debated it with me, was John Roberts. It was an interesting experience, my first experience with John Roberts. I don’t think he probably remembers that little vignette, but I do. It was part of my getting to know Ken Starr as well, which led, in part, to the next transition that you’re talking about.
Now all of my relationships with the Solicitor General did not turn out perfectly for me, whether it was Ken or someone else. I did get into the only trouble I ever got into in the U.S. Attorney’s Office was with Jay Stephens when he was U.S. Attorney. I was dealing pretty directly with the SG on a case involving the Ku Klux Klan demonstration in Washington. They wanted to hold a demonstration in Washington. The local government, D.C., was not agreeing to it. We, the federal government, felt that we had to. It was sort of a Skokie, Illinois, case, and we felt we had to for First Amendment purposes, which was a real problem because ultimately only three or four Klan members showed up, but 10,000 or 15,000 counterdemonstrators showed up in Washington, and it turned into a real, real problem on the ground and a problem in court with the litigation before Judge Oberdorfer, who was having late-night
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hearings. And I was doing this without, from Jay Stephens’s perspective, in hindsight adequately involving him. That was the only little wrinkle I ever had with the U.S. Attorney during my tenure there.
My leaving the U.S. Attorney’s Office was not to go directly to another job. It was to go to a temporary position, if you will, and that was when the Whitewater investigation was going on.
MR. COONEY: How were you recruited to come over to the Whitewater team?
JUDGE BATES: I was attending the ceremony for the Assistant Attorney General for Environment in the main hall of the Department of Justice, and as I was leaving, the Deputy Independent Counsel in Washington, Mark Tuohey, grabbed me. I knew Mark because we had been on the Board of Governors of the D.C. Bar together. While I was in the U.S. Attorney’s Office, I helped to sort of get government lawyers more involved in the Bar and I was on the Board of Governors of the D.C. Bar. Mark grabbed me and asked me if I would have any interest in joining the office. He had obviously talked about this with Ken beforehand, and I knew Ken because I had argued several cases before him and dealt with him as SG. Indeed, I think I argued a military case before him on his first day on the D.C. Circuit. I went and talked to Ken and agreed to come to the Independent Counsel’s Office.
Now I did so. I had a relationship with him. I had a relationship with Mark Tuohey, so there was a good footing there. I was looking for something that would give me more criminal experience as my experience
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in the U.S. Attorney’s Office was almost exclusively civil. Not 100 percent, but 95 percent. I thought that this would be a good diversion to give me some criminal experience.
So after talking to Ken and Mark, I went to Eric Holder, the U.S. Attorney, and told him that I’d like to do this, and he supported it and agreed. I said that I thought I would only do it for six months. He said, John, you’re going to be there at least a year. I know you’ll be there at least a year, and that’s okay. And then I went to Jamie Gorelick, who was the Deputy AG, and Janet Reno, and they both agreed to it. I think they all thought that it was a good thing to have me in the Independent Counsel’s Office because I was not partisan, and I had a pretty good sense of things in Washington. And indeed that’s why Ken and Mark wanted me to join because I was not viewed as partisan, but I had a real deep experience with matters in Washington. And so off I went to the Independent Counsel’s Office.
MR. COONEY: What was your role in the investigation? Were you assigned a subject matter area or was it more free form than that?
JUDGE BATES: I had a couple subject matter areas. That office was divided into two locations, Washington and Little Rock, Arkansas, and I was in Washington, obviously. Mark was the deputy there. I had several investigations that I was a part of and indeed was the senior attorney on. One of them was the Vince Foster investigation. The junior attorney on that matter was Brett Kavanaugh, and I worked on that during the time I
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was in the Independent Counsel’s Office as well as several other investigations.
But Mark did not last long. Within three or four months, he left and went back into private practice. Changed firms and went back into private practice, and Ken then made me the Deputy Independent Counsel running the Washington office. And again, I checked with Eric, and I don’t think I talked to Janet Reno, but I think I did talk to Jamie, and they both agreed that that would be appropriate, and I became the Deputy Independent Counsel and ran the Washington office and all the investigations in Washington.
Now that morphed over time during my two-plus years there. There were different investigations that started at different times, but it was largely, because we didn’t wind up bringing any criminal case in Washington, it was largely grand jury work and analytical work. I handled a lot of witnesses before the grand jury, people like George Stephanopoulos and others. It was a time that I learned a lot, but I didn’t wind up doing any criminal trials. I didn’t do any trials in Little Rock either. I did some work in Little Rock on some of the matters, but more from a supervisory perspective and from a collaborative perspective.
It was interesting being in a fishbowl, which we were, because of the publicity and the public interest relating to investigating the sitting President and ultimately the First Lady to some extent. It was a growth experience because I had to deal with those sensitive issues and very
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sensitive matters that came up with counsel on the other side, not those in the office, but those outside the office.
I remember one experience. I got along very well with the lawyer who was the legal counsel for the Senate Select Committee that was investigating Whitewater. That was Mike Chertoff, later a Third Circuit Judge and a Secretary of Homeland Security. We got along very well, and to this day I still know and respect Mike. But his boss, the Senior Senator from New York, Al D’Amato, was a little different story, and there was one occasion where he called me, and what gave rise to the call was we requested and they agreed to share information with us that they had accumulated, but we declined to share certain information with them, and D’Amato did not like this. He called me, and I think was probably, it seemed like an hour, but it was probably close to ten minutes, that I had to hold the phone away from my head because he could use the English language in ways that no one else could, and he was very foul-mouthed. I just got screamed at and hardly could get a word in edgewise to explain to him that Rule 6(e) of the Federal Rules of Criminal Procedure did not allow me to share grand jury information with the Senate, and he just had to accept that. There was no alternative. But I just had to listen to him scream at me for ten minutes.
I think that not everything went perfectly in that office. I to this day felt that some investigations were slower than they should be. Sometimes it was because of the desire to be more thorough, to protect
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against criticism from the outside. That was certainly true with the Vince Foster investigation. That was in large part because the right-wing criticism was really significant and fervent, and Ken felt that we really had to protect against that, so we went on and on with it, probably longer than we should have. And some other investigations took a little bit longer than I felt they should have.
I don’t think the office handled its relationships with the media perfectly. I am much more comfortable with what, for example, Bob Mueller did, by simply not communicating with the media than I am with how Ken handled it. It led to some problems on one or two occasions, and indeed, I had to handle some media inquiries. Bob Woodward was very insistent on the telephone with me on several occasions, and on one occasion because I wouldn’t talk to him for his book. He said something that was just totally inaccurate. Not critical of me. I don’t think he really criticized me, but he was inaccurate with respect to something that happened relating to the search for the Rose Law Firm files. When they turned up in the White House, there was a search necessary for other files, and Woodward accepted the description by Mrs. Clinton and President Clinton’s lawyers, because I wouldn’t talk to him about it, and the description was totally inaccurate. That’s not to say that I didn’t have a great relationship with the lawyers from Williams and Connolly for the President. I did, and indeed I think that that was one of the reasons that I
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was asked to come back to the Independent Counsel’s Office when the Lewinsky investigation began.
MR. COONEY: Was there a period of time when you were not there?
JUDGE BATES: Yes. I had already left, and then indeed had gone into private practice, and I was asked to come back because of my relationship with the lawyers from Williams and Connolly and also with Chuck Ruff who was then the White House counsel and, as it turned out, with Monica Lewinsky’s lawyer who I used to share an office with many, many years ago when he was a Special Assistant U.S. Attorney, and I was a brand-new Assistant U.S. Attorney. But I was unable to do that. I say unable. I was unwilling to do that because of the nature of the matter, although I thought I could add something and something of importance. It also would create a conflict with my law firm, Miller and Chevalier, so I just decided that as a new partner at the law firm, I was not going to do that.
But back to the time that I was in the Independent Counsel’s Office. It was a very educational experience, and at one time, I had working for me Brett Kavanaugh, now a Justice on the Supreme Court; Steve Colloton, a judge on the Eighth Circuit and superb judge and someone who has been mentioned for the Supreme Court as well; Rod Rosenstein, the former Deputy Attorney General; and Alex Azar, the former Secretary of Health and Human Services. These were all people who were working with me and, to some extent, under me in the Washington Independent Counsel’s Office, and all very talented. I was
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closer to Brett than to the others because both Rod and Steve were in Little Rock initially, and then we brought them up to Washington when some investigations turned important in Washington, particularly dealing with matters such as the Rose Law Firm files and the grand jury appearance of Mrs. Clinton. I examined Mrs. Clinton in the grand jury.
MR. COONEY: You certainly must have learned a lot. Having jobs with not much criminal experience and standing up in front of a grand jury in extremely significant matters. That must have been quite a rapid growth period for you.
JUDGE BATES: It was. I was a pretty experienced attorney, so it wasn’t growth in my early time as an attorney, but I certainly learned a lot about the grand jury and the criminal process during my time there. And on a case or a matter, a series of cases, it was extremely important, very high visibility, reported in the press every day, phone calls from the press and others wanting to talk to me every day and my not talking to them. I pretty much did not talk to the press. But it was a real growth experience as you indicated. The relationships that I developed there were important relationships. Some continue to this day. I’m not sorry that I did it. I’m glad that I did it. I agreed with the conclusions reached in the Washington office and indeed in Little Rock. Some of those conclusions were difficult to reach, and I didn’t fully agree with the process and some of the detours along the way and voiced my concern, always with respect and always retaining a very good relationship with Ken Starr. Not as good a relationship with the
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Deputy in Little Rock who was much more committed to bringing cases and particularly to bringing matters relating to the President and First Lady, and I had to take the other side of the argument several times. But ultimately, I decided it was time to go back to the U.S. Attorney’s Office. It happened in two steps. I handled a matter dealing with notes that had been taken by the President’s lawyer but not by White House counsel, so it was a lawyer from outside, someone sort of in the middle, quite frankly, and that went to the Circuit. Not the D.C. Circuit, but the Eighth Circuit for Arkansas, and I handled that matter in the Circuit, and it was virtually a foregone conclusion that the Supreme Court was going to take the case because it dealt with the privilege that attached to these lawyer notes in conversations with the First Lady. We won the case in District Court in Arkansas, and then we won the case in the Eighth Circuit.
Ultimately, I sort of came back to the Independent Counsel’s Office briefly in order to participate in the matter as it went up to the Supreme Court, but surprise to us all, the Supreme Court did not take the case, and I went back to the U.S. Attorney’s Office and once again became Chief of the Civil Division. There were two people that shared the job as Chief. One was the person who was the more logical fellow to become Chief when I got the job, and the other was a younger guy. The U.S. Attorney was not comfortable with either of them, so he had them be co-chiefs, and I always used that to my benefit to say it took two people to fill my shoes. And then when I came back, I took over as Chief again. But it
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was clear to me that the time had come to move on. There was no room for advancement within the U.S. Attorney’s Office, and there was no room for advancement in the Department of Justice. Indeed, Eric Holder was at the Department of Justice as Deputy Attorney General by this time, and while Eric and I were pretty close and Eric wanted me to come over to the Department, that was not to be. It just wouldn’t be right for someone who had been investigating the President and First Lady to then be brought over to a significant position in the Department of Justice, and so, even though it might have happened in other circumstances, there really was no room for me to go anywhere within the government, and so I began looking outside of the government to private practice because of that plus, quite frankly, there were family needs that really dictated my going into private practice because my children were starting to reach the age where we needed to be sending them to college. My wife was working part-time, and it was time for me to be more of a financial contributor to the family and particularly to the needs of my children as they were getting ready to go off to college.
MR. COONEY: This would be a logical place to begin the next interview. I wonder if it’s possible if I could ask just two questions about the Whitewater investigation.
JUDGE BATES: Absolutely.
MR. COONEY: The first one is what was your impression of the written report that was ultimately generated by Ken Starr?
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JUDGE BATES: Well, there were several written reports. There were written reports for each of the investigations, and I thought that they were very well done. I thought that they were sometimes too well done, and that was because of the length of time that some of the investigations took, but Ken’s much more of a written lawyer than he is a prosecutor, and so written reports were really done quite thoroughly and quite carefully. So I thought those were good. I don’t have any problem with them. Now the report that was done without me being there for the Lewinsky, what I call the Lewinsky investigation, and that generated the impeachment proceedings, I wasn’t a part of that, so I would be commenting on it just as you would be commenting on it, and obviously there were some problems with it given how blunt and candid it was, but I didn’t have any role in that, so I don’t think I really have anything more to say about it.
MR. COONEY: One last question. What was your impression of the young Brett Kavanaugh? You supervised a lot of very good lawyers in the U.S. Attorney’s Office, and in walks in, who knew it at the time, a future Supreme Court Justice.
JUDGE BATES: Extremely smart. Extremely careful. Very detail-oriented. I remember when we were looking at the filings in the Court of Appeals or in the Supreme Court, he would go over every word. He would read through it and check every word. Just a very, very careful lawyer and I thought that his instincts on legal issues were top-notch. He wasn’t an experienced investigator or prosecutor, so he was learning on the job, but to some
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extent, I was too. I had more experience than he had. He was finding his way, but ultimately, he did a very, very thorough and good job on all the matters that he worked on with me. And he’s a delight to work with. He’s an engaging, funny guy, and I still have a very good relationship with him, notwithstanding the fact that we don’t see eye to eye on all ideological or jurisprudential issues. But that’s alright. It used to be and still is in my book not a problem to have a good friendship and close working relationship with people whom you don’t agree with on all matters.
MR. COONEY: Well you certainly led a team of all-stars.
JUDGE BATES: They were a team of all-stars, and I was along for the ride.
MR. COONEY: They were good people, but your being there, praising them too much and downplaying your own role.
JUDGE BATES: Let me say those weren’t the only all-stars. There were people who didn’t work in the Washington office as much but in Little Rock, someone who was a future head of Fannie Mae. Amy St. Eve, who is now on the Seventh Circuit, a very close friend of mine in the Independent Counsel’s Office and ultimately when she went on the bench first in the District Court and now on the Seventh Circuit. She and I have worked on any number of matters together over the years and other lawyers as well who were very, very talented were in that office.
MR. COONEY: You certainly have an amazing penetration rate in the cohort of terrific lawyers from that generation.
JUDGE BATES: Absolutely.
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Oral History of Honorable John Bates
Fourth Interview
November 12, 2021
This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee is Honorable John Bates. The interview took place on Friday, November 12, 2021. This is the fourth interview.
MR. COONEY: Good afternoon, John. Thank you for sitting for the interview today.
JUDGE BATES: Back at you. Good afternoon, John.
MR. COONEY: As I remember where we were at the end of our last interview, you had returned to the U.S. Attorney’s Office and were looking to find a new position outside the government in private practice. I wonder if you could describe that for me. My understanding basically is that in 1998, you joined Miller and Chevalier. I’d like to get your answers to basic questions about your experience with the firm before you came on the bench.
JUDGE BATES: I’m happy to do that. The initial quest was, as I think I explained last time we were together, because I sort of felt that I was at the end of the line in terms of that particular government service, and there wasn’t really something further for me to do in the U.S. Attorney’s Office, or even at that time at the Department of Justice. So I looked to private practice. I wanted to be at a firm in Washington, preferably one that was based in Washington, not a branch office from another place. Things have changed over the last twenty years, so I might not feel that today. But then, I felt that I’d prefer not to be at a branch office. So I wound up boiling it down
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to three or four places, and then settling on Miller and Chevalier for its size, for its local focus in terms of being in Washington, and because I really liked the quality of the lawyers and the practice potential.
MR. COONEY: Am I right that you became chair of the Government Contracts and Litigation department there, and you also were made a member of the Executive Committee?
JUDGE BATES: Yes. The two go hand-in-hand. I didn’t start that way. I started just as a lawyer joining the firm as a partner, and I was doing some False Claims Act investigations and matters, some criminal work, grand jury work. None of it got to trial during the short time that I was at the firm. Government contracts work was primarily for the Blue Cross Blue Shield Association and some for Lockheed, and a little bit for some other clients. Those were not my clients. I was counsel to an entity that was dealing with the world of automobile repairs. Someone I know quite well, who’s currently the head of the Consumer Products Safety Commission and was a protégé of Ralph Nader and Joan Claybrook, asked me to be counsel to the entity, and I did that work. The biggest subject matter that I was working on was False Claims Act investigatory work, and I had two major matters with the Blue Cross Blue Shield plan in Michigan and a major matter with the Blue Cross Blue Shield plan in Hawaii. Those were my major pieces of work and client efforts.
Now, I spent a lot of time, as any new partner at a Washington firm does, and particularly one who comes from the government. I spent a lot
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of time figuring out how to develop clients and working on business development and had devoted some attention to that.
Along the way I also did a little bit of pro bono work. Two cases for the Washington Lawyers’ Committee for Civil Rights Under the Law, and one of those cases we actually took to trial. The other case settled. Both of them very favorable results for our clients, who were plaintiffs basically in discrimination cases and recovered six figures in each of those cases. That was a good thing for me to be doing along with the other work.
The firm management work didn’t come until the second year I was there. I had been there a year before I became the Chair of what I’ll call the Government Contracts Department. It was really doing a lot of work on False Claims investigations and so forth, and I also became a member of the Executive Committee. I always liked a little bit of the administrative side of things and so enjoyed doing that as well.
I was only at Miller and Chevalier for about three years, so it wasn’t a long run.
MR. COONEY: You must have come very well-prepared for the Management Committee because you had managed such a large group of lawyers at the U.S. Attorney’s Office.
JUDGE BATES: I think that background did help. As you are no doubt familiar with, running a government office is different than a law firm. They’re very different entities, but there is some transportable experience that certainly
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was beneficial to me, and I hope beneficial to the firm ultimately, in terms of my involvement in management issues.
MR. COONEY: The next chapter occurs in 2001 when you were asked if you’d be interested in serving on the D.C. District Court. I’d like to know how the George W. Bush administration handled the appointment and confirmation processes back in those days. Things have changed so much since then, and future readers of this interview may be interested to see how the confirmation processes were handled back in 2001.
JUDGE BATES: It’s a different world. You’re absolutely right. Now, I guess the first part is how did it come about that I was considered for and eventually was asked to be a District Judge. It came about pretty informally. I had not submitted anything to express my interest, but there was a farewell party for someone who was leaving their law firm to go into the Bush administration, into the White House Counsel’s Office. I went to that farewell party at the law firm bidding goodbye to this person, and at that party was the incoming White House Counsel, Alberto Gonzales. I wound up in a conversation with him, and we talked about this, that, and the other thing for a while, and the next day, I got a call asking me if I would be interested in being considered for a district judgeship.
There were two vacancies I think they were filling, and they asked if I would be interested in becoming a judge. I didn’t get the call from my friend who was leaving. I don’t think I got the call from my friend who was leaving Kirkland and Ellis, and that person was Brett Kavanaugh. I
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got it from another person in the White House Counsel’s Office, Brad Berenson, who I knew as well from some litigation. I said let me think about it overnight. I talked to my wife, and I called back and said yeah, I’d be interested. And that’s how the ball got rolling. This would be in the spring of 2001, just a couple months after President Bush had taken office. And then in the summer, my name was actually submitted.
There was not a very involved process. This was early in the administration. The system at the Department of Justice was not fully in place, so it was handled much more out of the White House Counsel’s Office than might be true at some other times and in some other administrations. I had one interview. I went over to the White House Counsel’s Office and interviewed with the White House counsel and one of his deputies, not a friend of mine, but someone else. That was the only interview I had. I had no interview at the Department of Justice. Back in those days, that was unusual because once the Department of Justice system is set up, the two, the Justice Department and White House Counsel, work together on things. But I had that one interview, and that was all.
Then eventually I had a hearing. The hearing was with two other district court nominees and one circuit court nominee. There were four of us at the hearing. I think I was asked one question, and I volunteered one other bit of information. The reason was that much more of the focus was on the circuit nominee and on one of the district nominees who had a little
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bit of baggage to deal with in terms of involvement in certain organizations.
The hearing by the Judiciary Committee of the Senate was not well-attended. There was one senator who was there for the most part to whom the hearing had been delegated and was not the Chair of the Committee. That was John Edwards at that time. The Chair did come briefly, and one or two of the Republican members of the Committee also came briefly. But the only person who was there for the whole time was John Edwards. It was never a full committee. It was always much less, only two or three members at any given time.
So it was a pretty expedited, somewhat less-than-deeply engaged process, and that resulted in I think a unanimous Committee vote, and then ultimately in December, a unanimous approval from the Senate. I did not get any negative votes. It was unanimous. There were I think two senators who weren’t present, one of whom, though, indicated on the Congressional Record that he would have voted for me if he had been present.
I guess the one point of pride that I can take from that is that I did get the affirmative vote of Senator Hillary Clinton, whom I had examined in the grand jury only a couple of years earlier. So to her credit, I do consider it to her credit, and hopefully somewhat to my credit, she voted in favor of my confirmation to the District Court.
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MR. COONEY: That does seem like a process that just could not, or would not, occur again today.
JUDGE BATES: I absolutely agree that things are different, unfortunately.
MR. COONEY: Were you required to submit forms that the committee gave to all nominees?
JUDGE BATES: Yes. I did all of the paperwork that was necessary, listing cases and articles and everything else that you had been involved in. That was pretty fulsome, and indeed, there even were back then follow-up questions I think that occurred just as they do now, and there are built-in delays to enable the senators to do that. So that’s part of what takes some time, but yes, the paperwork process existed, and that certainly was something that I spent some time on.
MR. COONEY: Did the White House Counsel’s Office put you through a murder board to get you ready for the examination?
JUDGE BATES: No. By that time because, and it was a couple of months later, the Department of Justice system was set up, and it was the Department of Justice that did that. But it wasn’t real heavy lifting. I went over there for one session of two or three hours where we just talked about the kinds of issues that might come up, questions and so forth. I think they were trying to explore those questions making sure that there was no problem in terms of any response that I might give. So it was less preparation for me than revelation for them. So it was a murder board, but I would say it was third-degree murder at best.
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MR. COONEY: When did you actually get confirmed?
JUDGE BATES: That was in December of 2001. This process, of course, you have to understand this process was going on in the immediate aftermath of September 11, 2001, so the Executive Branch, particularly the White House, and indeed Congress at times, was otherwise focused. They were dealing with some very consequential issues for the United States, and it slowed things down a little bit, but still went pretty quickly.
MR. COONEY: When were you handed your commission?
JUDGE BATES: December 20th of 2001.
MR. COONEY: When did you report for duty at the Court?
JUDGE BATES: Within a day or two of that. I came right on board. I didn’t delay. I was ready to go. I had wound down my private firm practice and was pretty well-positioned to jump right in, and I did so.
MR. COONEY: Let me start by asking you a very general question about when you joined the Court. What were the steps involved in your transition from becoming a member of the bar to a sitting judge on the Court.
JUDGE BATES: Well, John, I guess I would say, and maybe others would disagree, and maybe it’s better that someone else would say this, but I guess I would say that I was pretty well-positioned to move onto the District Court in Washington. I had practiced in the U.S. Attorney’s Office for many years, mainly on the civil side, but touching on criminal issues here and there as well. And then I had done a little bit of work through the Independent Counsel’s Office and in private practice at Miller and Chevalier in
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criminal matters here in Washington. I really had a lot of experience with a significant slice of the cases that are in this Court. Government contracts cases were much more prevalent then than they are now, but I had been doing some of that work as well in private practice. Employment discrimination, I had a very deep background in that both from private practice and in the U.S. Attorney’s Office, and the list goes on.
So the transition was easier for me than it might have been for many other people. I thought that I was pretty well-positioned to move into this role, and I slid into it fairly easily.
Now there are lots of things you have to deal with when you become a judge, not just ethical and technical and staffing things, but just getting ready to handle the cases, and we can talk a little bit about that. But I think the one thing to bear in mind is that there really isn’t a formal training program at the Court. There are a few informal things that happen, but for the most part, you’re on your own. Now, the judiciary, through the Administrative Office of the U.S. Courts, does have somewhat of a training program. It’s a week or two, but you don’t do that right away necessarily. You do that when there are group of new judges ready to do it, and for me, that did not come right away. But that too is not training that I would call intensive, but it is very helpful because it helps familiarize you with things like Sentencing Guidelines if you don’t have a lot of background in that, managing cases, and those kinds of considerations.
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There’s no formal mentor program that we have here at the District Court, but there’s informality. I’ve served in that informal role on a couple of occasions for new judges by providing them with some forms and some approaches and so forth. And I got the benefit of that from some of the judges that I knew here.
And I did have some friends on the Court. Certainly Royce Lamberth was a good friend of mine. He had been my boss in the U.S. Attorney’s Office. I knew Tom Hogan very well. Not in a personal setting, but in a professional setting, with him as a judge and me as a litigant, but we had a very respectful relationship, and I felt very comfortable with him. Many of the other judges I had passing acquaintances with, and that made it easier to rely on them to answer questions and so forth. But there was no formal training here and not even much informal training, but I didn’t feel that that was a real disadvantage for me given my background. It might have been more difficult for some other judges coming on board, but it did not prove much of a problem for me.
I would say the biggest things to deal with are the staffing considerations and the getting used to managing the caseload. It’s somewhat similar now, but then, a new judge got about 300 civil cases. You didn’t get 300 old civil cases transferred from other judges. Now other judges could not pick out their dogs from their respective kennels and transfer those dogs. It was a little bit more protective a system,
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although there were some dogs that came my way. But around 300 cases came to me the first day that I walked in. So that was an existing caseload, and that was mine to handle. Now, those cases, for the most part, were not real old, and for the most part did not have trials or other significant events scheduled very soon.
You didn’t get a criminal caseload of older cases. You only got put on the wheel so that you started to get new criminal assignments. And for me, of course, the criminal side was the area that I was less familiar with than the civil side. But the assignment of cases and the caseload was a pretty daunting dump of responsibility on a new judge. My attitude towards that was work my tail off to get the cases in order, to not fall way behind, to not get overwhelmed. I felt that, and I might have gotten advice to this effect, but I felt that it was important to avoid drowning early on and really get on top of everything and get ahead of the curve. So I worked very hard to do that in the initial months that I was on board, and that proved pretty effective and pretty successful in the long run because I think it did enable me to be pretty up to date over the years in terms of my workload.
MR. COONEY: I wonder if I could ask a couple questions here and then come back to where you just were.
JUDGE BATES: Sure.
MR. COONEY: I anticipated that you probably would have an unusually good experience coming to the court because in our prior interview, you said that you’d
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developed relationships with judges on this Court because you had argued so many times before them, and they had confidence in you, and you actually had some more relations with some of the judges on the D.C. Circuit because you appeared there so much. So I think what I’m hearing is that this came back to be of great assistance as you joined them in the ranks of the judges.
JUDGE BATES: Absolutely. And I felt comfortable. I was welcomed, and I think that this court is a pretty welcoming court generally. New judges are treated very well, and I think earn the respect of their colleagues and the friendship of their colleagues very easily. But I did feel that that was something that came readily my way, and I welcomed it. As you said, I did have at least acquaintances on the Court of Appeals, judges that I had appeared in front of with some frequency, and so I knew them in a professional sense. I don’t know that that made the transition to a district judge that much easier, but a little bit. If I saw them in the hall, they’d be nice to me and welcoming, and I felt that things were pretty easy in that respect.
MR. COONEY: Has the approach in the court of taking on new judges changed since you came through? Are there standardized training programs?
JUDGE BATES: There’s no greater training that occurs here. The training from the Administrative Office of U.S. Courts is a little more sophisticated and a little broader than it was twenty years ago, that stands to reason. Of course there’s an ease that comes with the further automation as twenty years have passed in terms of IT development. That too I think makes
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some aspects of training and learning and handling your responsibilities easier than it was twenty years ago. So yes, there have been some adjustments and developments, but not fundamentally in terms of now we have a big training program that lasts for three weeks or anything along those lines.
MR. COONEY: Did you spend time with the Clerk of the Court or people on the Clerk’s staff who you would end up working with once you got your caseload assigned to you and had to start figuring out how to manage it?
JUDGE BATES: Absolutely. Now there are essential people at the top of the Clerk’s Office hierarchy that I spent some time with, both the Clerk of the Court and the Deputy Clerk of the Court who have a lot of responsibilities for the case side. I spent a little time with them, but not a lot. The key on that end was staff who were assigned to me. There are two crucial positions for a judge in this Court that are part of your staff. Now they are in the Clerk’s office, so they’re not in your chambers. They’re not your Chambers staff, but the two crucial positions are first, your Deputy Clerk. In other words, the Clerk who’s handling your caseload and who appears with you in court. And then the court reporter, who is transcribing everything that goes on in court or even some things out of court if you have status calls. Nowadays, we have a lot that’s done out of in-person courtroom appearances. So those two positions are key.
I was assigned the day I walked in to work with Tim Bradley as my Deputy Clerk and Brian Wayne as my Court Reporter. It is now
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twenty years later, and my Deputy Clerk is Tim Bradley, and my Court Reporter is Brian Wayne. They have been with me since the day I walked into this courthouse; and they are essential parts of my operations, and whatever success we’ve had in terms of judicial administration and deciding cases and moving cases. They’re both wonderful professionals, and I’ve enjoyed working with them, but that staff is the most important continuing staff and are the most important relationships with the Clerk’s Office.
There are other people in the Clerk’s Office that you work with or deal with and indeed that are assigned to your docket, but they have many other judges as well. Even the Deputy Clerk and Court Reporter have multiple judges, but the two most important are those two positions, and they have been wonderful, wonderful people for me to work with over the last twenty years.
Now, of course, the other end of things is the Chambers staff. We basically as District Judges have three slots. When I came on board twenty years ago, it made sense to me to have two elbow clerks, term law clerks, but have one judicial assistant who fulfilled the secretarial and other administrative responsibilities of that role. So Nelle Russell did that. She came over with me and worked in several areas in the government previously, and I hired two law clerks. Nelle did not stay for many years. She was with me for two or three years, but she was a great help in my getting settled and helping to keep the flow of things going.
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I hired two law clerks and had them ready by the time I came on board. Both were good hires. One was fantastic. One was probably my biggest disappointment in terms of a law clerk hire for the entirety of my years on the bench. That’s just how it turned out. But they both came on board and helped work with me for a little over a year. Because they started in January, they stayed until the next, not that summer, but the next summer. So they were like 18-month law clerks.
MR. COONEY: How did you go forward when you had 300 cases assigned to you?
JUDGE BATES: I just had to start looking at each case with the law clerks and deciding okay, we need to schedule a status in this; or whoops, looks like a trial is on the horizon here, or we need to decide this motion. So it’s just working through them. It basically was just hard labor quite frankly to work on all those cases and get them into a position that I was comfortable with.
Probably the biggest surprise for me, and I think this is generally true, is how important it is to manage the work as a District Judge, and here I’ll give a little bit of an aside. In the Court of Appeals, the management of cases happens out of the Clerk’s Office. That’s where the management of cases occurs. The judges and chambers don’t have to do all that much. In the District Court, it’s different. The management of cases does not really happen out of the Clerk’s Office for the most part. It happens out of chambers, and each judge needs to be aware of that and have their own process, plan, and method of managing the caseload. So I put some effort into that early on in deciding how to do that. Nowadays,
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it’s much more automated than it was then, but even then, it was somewhat automated. And you need to get reports from our systems and to keep up with everything that’s happening in the cases. One of the ways that I did that, which is a time-intensive way of doing it, is that I would look at each new filing as they came in. My law clerks would as well, and either through communication from me to them or them to me, we would say okay, let’s grant this request for enlargement of time, or let’s set this briefing schedule, whatever the step that is necessary in terms of managing the case. But that takes time. It takes a review.
In the first decade, I would do quarterly reviews where every three months or so, I would sit down with the law clerks and go through the entire caseload just in terms of where things were and make sure we weren’t missing anything. And there were things that could be missed. Now, reports helped to guide that. I would get reports that would help me find that something hadn’t been filed that should have been filed, there was a failure to serve, or whatever the issue might be, and we would catch those and take action with respect to those. But it was a pretty time-intensive effort. It’s aided in great measure these days by the more fulsome reports, spreadsheets, et cetera, that one can use, with the assistance of your law clerks, for managing the caseload. But that’s a very important part of a District Judge’s responsibilities; one that those coming onto the bench don’t realize fully, and I didn’t realize fully how important that was. I had a sense of it because some cases, quite frankly, at least one
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side of the vee is happy if it just sits and goes nowhere, and sometimes that’s true of both sides of the vee. And I think as a judge you want to move those cases along. Not uniformly. Sometimes it’s appropriate for a case to sit, but you need to be staying on top of the cases in order to push them along.
MR. COONEY: What happens when the pleadings start to come, the first batch of pleadings, in those 300 cases? Do you have to change the way you manage the cases because now you have a lot of information coming in that you need to read up on?
JUDGE BATES: You need to read up on them, but the method of managing the cases is the same, whether it be a new case or an old case that new filings are coming in on. And you just need to keep up with those filings and take the steps that are necessary, whether it be deciding motions or setting matters in court or pushing the case forward to trial.
I’ve developed a couple of rules, if you will. I always like to have something scheduled in a case. Schedule a status, schedule a hearing, something so that it’s not being ignored by the court, and the parties have a deadline, something that they’re operating under in terms of the scheduling and process of the case. I think that’s a very important thing for judge to do, and it’s something that is not unique to me. That’s something I think Gerhard Gesell said to me early on, or maybe someone said it on his behalf because he wasn’t really here when I started.
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MR. COONEY: That approach means the ball was always on the court, not the litigants, to do something.
JUDGE BATES: The court is propelling, but the work is still having to be done by the litigants. They’re the ones who have to do the filing or get ready for a hearing or whatever it may be, but it’s important to do that.
Another rule that I have is if there are motions that are filed that may seem unimportant, what are what I call case-clogging motions, I try to expedite those and elevate them in priority. That may seem counterintuitive. For instance, you may have a big summary judgment in an important case that you need to get to, but on the other hand, you may have a discovery dispute that comes in. Well that discovery dispute stops the case. It clogs the case in my view, and so it’s important as a judge to pay attention to those kinds of things and get them resolved.
Now, these days, in part because my reputation precedes me, discovery motions don’t clog my cases very much. First of all, I don’t accept written discovery motions. The obligation of the parties, really of counsel, is to check with chambers and to not file a written discovery motion. I will decide how to approach the problem. They call chambers. They tell the law clerk what the issue is, don’t argue it, just explain what it is in a joint call. Everyone has to be on the call. And then the law clerk will come to me, and I’ll decide. Sometimes I’ll get on the phone then, but more often, I’ll set a phone call the next day or two days later and resolve the discovery issue through that process. Sometimes I ask for
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brief written filings, not in the nature of a motion and memorandum, but in the nature of one or two or three pages of a position, just to help expedite the call. And that’s how 90+ percent of discovery issues are resolved in my court. Only if I give permission are written discovery motions filed. Privilege issues, some other significant discovery disputes, may need motions, but for the most part, I try to resolve them just by getting the parties together in front of me, either through a phone call or in court. And that’s been very successful, and most judges these days do something along those lines. There are different approaches in different chambers, but for the most part, that’s an approach. And indeed I’ve even taught that. I ran a series of panels for the ABA around the country a few years ago where we were really emphasizing those kinds of considerations and how to manage the discovery side of a docket before a district judge.
So it’s those kinds of rules and approaches that a judge develops over the years, and certainly that’s been an important one for me.
MR. COONEY: Were there any significant challenges you faced during the period of your transition onto the Court?
JUDGE BATES: I’d say the biggest challenge was the volume of the workload, the number of cases, and the catching up with the old cases. That was the biggest challenge, together with the management side of things. Managing cases was something that you really had to devote a lot of time and attention to.
MR. COONEY: Did there come a transition point where you think you had the initial steps behind you and you could sort of shift gears and start working on the cases
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the way that judges who you had appeared before always seemed to be handling it?
JUDGE BATES: I think it’s a gradual process, John. I think that when you start that administrative, getting-up-to-speed side, is so much more dominant, but as the weeks and months go on, that decreases, and the judging, just handling the cases, increases in importance and in the amount of your time that is being devoted to that. So it’s a gradual process. I would say after six months, you’re pretty much settled in, and certainly after a year, you’re fully settled in. But it takes a long time to really get your caseload where you want it because you start off with 300 cases that have evolved without your involvement, and you’ve got to be involved in those along with all the new cases that you’re getting, and that takes time to get things just where you want them.
MR. COONEY: How many new cases would you estimate were coming across in those days?
JUDGE BATES: I would have to do a little bit of a calculation looking back at things. These days, probably it was about the same then. On the civil side, we had something like 3,500 to 4,000 new cases a year. If you divide that by 15, you’re talking about 300 new cases a year maybe.
And then the criminal docket. The criminal docket is different in terms of how it is managed, and it’s different in terms of numbers. The numbers are actually pretty small because a case goes off of the numerical case load once there is a plea, and so it’s actually a smaller number of
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active cases that you have, even though you have things yet to do in those cases, particularly sentencings. But at any given time, a judge might have 25 to 30 criminal cases. That’s higher now because of the January 6 cases at the Capitol. Our caseload is heavier.
Let’s shift to criminal cases for a moment. I would say that that was another challenge, again, because of my relative lack of experience on the criminal side, much less experience, and certainly that needed time and attention from me. I approached criminal cases as most, but not all, judges do, with pleas and sentencings, which are the primary events in criminal cases. Trial is not as frequent as a plea or a sentencing, and for every plea, of course, there is a sentencing. My approach is that for the most part, unless I think I need a clerk to look at something and help me with something, I handle pleas and sentencings on my own. There’s nothing that the law clerk is routinely doing on those, and so only if I see an issue with respect to a plea, which is rare, or an issue with respect to sentencing, which is more common, would I ask the law clerk to dive deeply into something. Otherwise, I am doing it pretty much on my own. Now once we get to any significant motion or to trial, the law clerks are much more fully engaged. But for the events that are the most frequent in criminal cases, pleas and sentencings, I am more or less on my own unless I feel that I need a clerk to look at something.
The criminal workload was significant, and it is significant now with the Capitol cases especially, and it took sort of an outsized amount of
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time from me because I was being very careful with the criminal cases because I was less sure of my footing in those cases.
MR. COONEY: How did you prepare for your first jury criminal trial?
JUDGE BATES: I don’t really remember the first jury criminal trial, but I’m confident in how I approached it, with some trepidation and concern, worried that there were going to be seventeen evidence issues that were going to pop up during the course of the trial that I would have to rule on immediately, on the spot, and that’s something that judges are always worried about and careful about. I tried to look at the cases pretty thoroughly beforehand and anticipate and hopefully have the parties anticipate any significant issues that would come up. We tried more cases when I first came on the bench than we have more recently, except right now we’re trying more because we’re catching up with the backlog from the pandemic, but we probably tried seven or eight cases a year during my first four or five years on the bench, most of them criminal cases, but a few civil cases thrown in. In the later years, more recently, not as many trials. Even in my last years as an active judge, not as many trials. I think that that’s true throughout this court. The trial workload diminished somewhat, and that’s true nationally to some extent because of pleas and the way the system is set up, and on the civil side because of the pressure to avoid expensive trials and use mediation and get things resolved through other means. But preparation for that first criminal trial was basically hard preparation, working hard, getting ready, anticipating, and devoting all the energy I needed to it.
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Your deputy clerk helps a lot in terms of the logistics and operation of a trial in the courtroom, and your law clerks can help to the extent that you give them tasks and have them looking at either substantive legal issues or just various things that might come up during the course of trial. I like to think that my trials, knock on wood, have gone pretty smoothly and that I haven’t wound up with problems in the court of appeals from the way trials have proceeded down before me.
MR. COONEY: That’s very interesting to see how you had to buckle down and really get prepared for the criminal cases. How about if I try the other side of the coin. You must have had a lot of administrative cases in the U.S. Attorney’s Office. How did the administrative cases look when you suddenly weren’t an advocate and weren’t working with the agency, but were sitting there assessing whether they complied with the law and complied with the process?
JUDGE BATES: Well, it’s not radically different. You’re doing much the same thing as an advocate, looking at the case, looking at the law, developing the facts if the facts have to get developed, or the administrative record. Not developing it because it’s been developed, but reviewing it, understanding it. So the exercise to start with is pretty much the same. But then, of course, the advocate turns to okay, how do I present my strongest case, and the judge turns to okay, how do I weigh these two presentations and figure out what the right resolution is. I came fairly easily to the transition from advocate to judge in administrative law cases and in other cases that
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are resolved in motions and summary judgments and so forth that are a major part of our docket here. We resolve most cases without going to trial, even those that don’t settle, and it’s just figuring out what the right result is in a case.
There are different kinds of cases. There are simple cases that it’s easy to approach those cases and resolve them, and indeed, you can just tell the law clerk to draft a short opinion and talk to the law clerk a little bit about what the resolution should be, and that’s really the initial involvement until you get a draft opinion. Usually I’ve read the briefs before that happens, but not in 100% of the cases. And then there are the bread-and-butter cases which are a little more sophisticated, require a little more attention than discussion with a law clerk and maybe multiple discussions because once further research has been done. The clerk might come back and say well this issue seems to be a difficult one and you may have to approach it one way or the other way, and you have further discussions and give direction to the law clerks on how to go about finding out the right answer and then drafting an opinion containing the right answer.
And then there are the more significant cases in which I am involved actively from the outset, that I’m talking with the law clerk along the way, I’m reading everything as it comes in, we’re having multiple discussions, there may be multiple steps in the case, and it’s just a much
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more engaged process of working with the clerk who is working on the case.
Most cases in my chambers are assigned to only one law clerk. Sometimes I’ll have multiple law clerks on a case if the size of the case warrants it or if the significance of the case and the law clerks wanting to be involved warrants it, but almost always there will be one law clerk assigned. That doesn’t mean that only one law clerk will touch the case. That law clerk will be discussing the case with other clerks along the way. I may invite all the law clerks to a discussion of the case, and then when a draft opinion is done, before it comes to me, it’s reviewed by the other law clerks, and they give input. And then after it comes to me and is refined based on my input, and a final draft, if you will, is developed; then it goes back out to the other law clerks for final review and cite check. So it’s very much a team process with all the law clerks involved and all the law clerks actually touching any significant case, but primarily a case is one law clerk’s responsibility.
So the answer to your question which was what about the administrative cases. You just look at those and start assessing the briefs and decide if you need a hearing. If you do, then you have a hearing. I liked having hearings. I’ve always enjoyed that oral advocacy process, and so I probably was more prone to have those hearings early on. And that’s changed over the past couple of years, particularly the past year-and-a-half with the pandemic. And there are probably fewer hearings, but
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I still like to have hearings on civil motions. And whether there’s a hearing or not, though, I need to craft an opinion, and that first draft is in the hands of the law clerk with direction and guidance from me, and then we work on it together by successive drafts being reviewed by me and returned to the clerk. Sometimes it’s only one draft and a final thereafter. Sometimes it’s four or five or six drafts. It all depends on the case, the clerk, and difficulties that some issues might pose in terms of writing a decision.
MR. COONEY: One of the questions I’m very interested in is what are the relationships like of the judges on a district court as a human matter? You’ve got fifteen people who are under extraordinary pressure and extraordinary demands to be reading material and reaching judgments. Do they reach out to each other, or are they available when somebody has a problem that they’re not certain how to write up? Is it possible for them to consult their colleagues without losing face, and is it possible for the colleagues to, as you described, an answer may have come in through Judge Gesell to you?
JUDGE BATES: I think the answer to your question is yes, it is possible, and indeed it happens. But let me give a little bit fuller explanation of that. I would say every judge has one or two other judges that they tend to go to with questions, and that may change over time. I certainly would go to Judge Hogan and Judge Lamberth more frequently early on, but then as time evolved, Paul Friedman is someone whom I talked about things with. Nowadays, Judge Boasberg is someone that I will bounce things off, and
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he off with me. Randy Moss, and Ellen Huvelle when she was here, was someone who I was very close with. Jim Robertson when he was here. So it evolves over time, but you usually have a couple of judges that you’re more prone to ask questions of. There’s also routinely an email that will go out from Judge X saying has anyone had this issue or does anyone have any advice for how I approach this particular problem. That’ll go, and then there’ll be emails that come back and help that judge just in terms of the experience of other judges. So yes, the judges communicate that way with respect to particular problems.
Now, pre-pandemic, many of the judges would get together for lunch. We have what I’ll call a lunchroom here where a lot of the district judges and some of the circuit judges frequently go to have lunch with their colleagues, a big table around which we sit; and sometimes, not that often, but sometimes a question might be raised in that context for others to help out on. It doesn’t happen that often because I think most everyone sort of respects the lunch time as a time not to deal with being a judge resolving problems but rather talking about events in the world, movies, whatever. But certainly that’s another occasion that certainly at times is used to get input from other judges. So there is that means of acquiring the insight that your colleagues might provide.
In terms of the human relations, that lunch time setting does help a lot because it gives one judge a chance to see other judges, and it’s not always the same judges that are there at lunch, so it’s a different mix on
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different days, and historically, that’s been pretty important from my perspective. I have always tended to go to lunch a couple times a week. Some days I’d eat at my desk, but a couple times a week I try to go to the lunchroom. I always have enjoyed that and have felt that that improved the personal relationships between the judges. I think it helped ensure that there was no partisanship on the court and judges were very comfortable with each other, very respectful of each other, and it wasn’t camps of judges. Now the pandemic has interfered with that somewhat. I don’t know that it’s produced any bad results, but it certainly has limited the access that we have to each other. We don’t have lunch together, for example. But hopefully that will change again as things get better in the world.
MR. COONEY: I think one last question from me, and then I might ask if there’s anything that we’ve left out that you might want to say. One of the questions I’ve always had since the late 1980s when I was working on projects to try to persuade Congress to increase the salaries of judges, is that a common financial problem for judges is that somewhere along the way they seem to have taken the vow of poverty given what Congress is willing to appropriate for them?
JUDGE BATES: Congress’s appropriation doesn’t change from year to year. They have to appropriate the funds to pay the judges, and they do. But I think that pay has been a big issue for the judiciary generally and for individual judges. Let’s not overstate it. I don’t think it’s about poverty. Judges get paid
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pretty well in terms of other people in the country, and even not badly compared to lawyers in some parts of the country. If you compare it to Washington lawyers, it is a vow of poverty. There is no question about that. There are non-financial benefits of being a judge. Financially, judges benefit from the retirement system because an Article III judge, that’s an appointment for life. So when you do take senior status, which is a step towards retirement, if you will, you still get paid your full salary. And when you retire from the judiciary, you have lifetime pay, that is your retirement benefit, and that’s a pretty good retirement benefit. I think the judges, compared to Washington lawyers, the pay is terrible but it’s not quite as bad as it may seem. Now, for some judges who have families and whose spouse isn’t contributing a lot financially to the family, it’s more of an issue than it is for other judges.
We, meaning judges generally, were in pretty bad shape, not me particularly, but we generally were in pretty bad shape during the first seven or eight years I was on the bench, but there was pressure being exerted to have a pay increase. Eventually that came about from litigation that forced that pay increase, and that was spearheaded by some judges in this courthouse. Larry Silberman was probably a primary push on that, but others were involved as well. And that was a great step for the judiciary nationally to accomplish that. It’s a shame that it had to happen through litigation basically, but it certainly was something that was needed. I don’t expect that there’ll be any significant increase in judicial
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pay over the coming years. Maybe at some point there’ll be another push for that, but that doesn’t seem to be on the horizon. You look at that today, judges will get a boost in pay on January 1, a couple percent. It’s along the lines of a government lawyer and the pay increase that a government lawyer gets.
MR. COONEY: Thank you, John. That’s been very interesting to hear. I hadn’t realized that Judge Silberman had taken the lead role on that.
JUDGE BATES: He did. To his credit. When that was happening, the later stages of that, I better bounce ahead to something we’ll be talking about in a later interview. I was the Director of the Administrative Office of U.S. Courts at the end of that process, so I wasn’t involved from that end in helping to move this along towards a positive resolution. And then when it did move along to a positive resolution for Article III judges, I then extended it to bankruptcy judges, to magistrate judges, and that was a decision I made as Director of the U.S. Courts and to great applause from the bankruptcy judges and magistrate judges.
MR. COONEY: Thank you. This has all been very interesting today. I think we’ve reached the end of the questions I have about what the transition was like from private practice to being a judge. From now on, the Oral History will basically be focusing on how you handled individual cases and over time on the bench the philosophy you developed and the standards that you applied in looking at the cases. And also, as you just mentioned, what
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your activity was, what your decisions were in managing various judicial bodies.
JUDGE BATES: Let me give just two observations as we transition to that in the next interview and say handling cases is a real joy of being a judge. It was particularly a wow experience for me, something that was very exciting, challenging, daunting at times, but very satisfying. I mean after all two of the major cases I did during the first year I was on the bench, one was a case involving complex statutory interpretation and the Federal Communications Commission, and that case was argued to me by Don Verrilli on one side, later to be Solicitor General of the United States, and Eric Holder on the other side, later to be Attorney General.
Another case, which we’ll talk about next session I believe, the Walker versus Cheney case, also in the first year, had Carter Phillips on one side representing the Comptroller General, and Paul Clement representing the government. Having cases like that with those high-caliber counsel representing litigants was certainly a wonderful experience for a young new judge on the bench. Now I got advice from two sources early on, two judges from opposite sides of the political spectrum, both appellate judges, who said to me, John, you will know that you are really functioning as a judge the first time that you wind up ruling against the President who appointed you on a significant matter. I think that was a good observation because that happened to me before too long and has happened to most judges, and it’s a good way to think about it, that you’re
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not beholden to anyone. Your job is to look at the facts, look at the law, and make the proper decision based on the facts and the law, free of bias, free of prejudice, and always being mindful of being fair to the parties before you and to the public who has put you in this position. So with that, let’s wait for the next session.
MR. COONEY: That’s a wonderful observation about being a district court judge in Washington. That’s a wonderful place to stop, and I look forward to resuming this with a fifth interview in the near future.
JUDGE BATES: I do as well, and we’ll communicate to set that up.
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Oral History of Honorable John Bates
Fifth Interview
January 13, 2022
This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee is Honorable John Bates. The interview took place on Thursday, January 13, 2022. This is the fifth interview.
MR. COONEY: Thank you very much, John, for being here. In my suggestions for how we should approach the interview, I suggested that it might be appropriate at this point for you to discuss what your judicial philosophy has become as a judge and the principles you have followed in handling your cases. Does that strike you as a good place to begin?
JUDGE BATES: Sure. Let me again say thank you, John, for doing this and for your availability. It is shocking to me that this is already the fifth session. We’re sure moving along, but we haven’t gotten to decisions yet.
MR. COONEY: I think that will happen today.
JUDGE BATES: Yes. So you want me to talk a little bit about judicial philosophy or principles that have helped to guide my approach to judging, and even as they’ve evolved over time, the twenty years. And indeed, I celebrated my twentieth year last month. I didn’t do much celebrating because with COVID nobody knew about it.
This is going to be a short one because I’m not much on assigning labels to my judicial philosophy, if there is one, and to my approach to judging. I mean there are principles. There are guideposts that I certainly pay attention to, but I’m not sure they boil down to a judicial philosophy.
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There are some obvious tenets that have helped to guide me, and they are really obvious. I would say one of the principal ones is work hard at it. It’s not an easy job. It’s a fairly big responsibility to decide matters that come before a judge, whether they be criminal matters that involve potentially someone’s freedom or civil matters having great consequence to the litigants involved or to the government and to the country, in some cases, particularly in this jurisdiction, with the kinds of cases we get.
I follow the rule of law. That’s a principle that I have believed in throughout my adulthood and certainly as a judge. I think the rule of law is an important legal guidepost for judges and is certainly of great importance to me. I do also try to be fair, open-minded. I pride myself on being a pretty responsible listener as a judge to all sides that are being presented, whether in writing or orally, and that I not only listen to them, but I consider them. I think that’s an important thing for a judge to do. Sometimes it’s just a matter of appearance. You have to make sure that an argument that you don’t agree with is being considered and that the party presenting it has a sense that you’re fairly and fully considering it. But most of the time, it’s important because there may be a glimmer of truth to both sides. There may be a convincing argument that you hadn’t thought of as you prepared, and you really do need to listen and take into account exactly what is being presented to you.
As a judge, I hope I’m not afraid to make decisions. I think it’s important for judges to make decisions. I’ve always prided myself on
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keeping the docket moving, and so there’s a timeliness aspect to making decisions, but there’s also a completeness aspect. You need to be prepared to decide what needs to be decided, but I would stress what needs to be decided because while you should not be afraid of making decisions, I do not think that a judge should decide more than the judge needs to. There are legal principles that apply to that, but just put simply, my philosophy would be not to reach out to decide things that are not necessary to the matter being resolved that is before me.
I try to respect everyone in the process, and that’s important not only with regard to the lawyers who are presenting arguments, but also with respect to witnesses, jurors, your staff, everyone involved. Again, it’s an important process resolving and dispensing criminal and civil justice, and there are a lot of people involved in it, not just the judge. You need to be respectful of everyone involved and appreciate their roles. I’ve always felt it was important for me to explain what I’m doing, what I’m deciding, and why I’m deciding it. That’s probably why I historically have written a lot, certainly in my first fifteen years on the bench, issued a lot of written opinions, some of them quite lengthy. Part of that was because of my abiding belief that I owed it to the litigants, sometimes to the public, sometimes to the bar to explain my decisions and how I had reached the result that I ultimately reached. On the other hand, while I’ve written a lot, I think it’s also important to get to the heart of the matter, not to spend a lot of time that is wasted.
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I always admired one judge who I appeared before as a lawyer, and that was Gerhard Gesell. I thought of all the judges that I have known and appeared before, he had the best ability to get to the heart of the matter, to see what really was important, and to focus on it. I think that that’s something that I’ve always tried to keep in mind, sometimes with success, sometimes probably not with success.
I guess I demand a fair amount of the other players in this process, particularly the lawyers and their clients. I demand courtesy and good faith, but I also ask for quality work. I want them to present the arguments fully, fairly, conscientiously, and as I said, I will listen to them. Now I expect even more probably of the government, and this has been true in some contexts in particular. It’s true in the criminal cases where the government has a large responsibility. It was definitely true in spades when I was on the Foreign Intelligence Surveillance Court because the only party before you is the government, and so the expectation is even higher because of that reliance, but it’s also been true in certain contexts over the years. I think back to the height of the Guantanamo cases being litigated in this court and the expectations that I, along with other judges, had of the government, that the government was playing fair, shooting straight, and being fully forthcoming, and I’ve asked that of the government in many other settings as well. I try to bring no presumptions or pre-judging or biases to my decisions. I think all judges should work very hard to do that. It’s an imperfect world. You cannot expect the
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judges haven’t lived a life and that that life hasn’t formed them in some way, including their thinking, and including their thinking on issues that may be before them and certainly on judicial philosophy, for example, and the approach to judging. But I try very hard to be a fair, neutral arbiter and not bring any biases or preconceptions to the job. And I guess I would end along these lines. I would say that it is important I think to have compassion and sympathy, particularly in some settings. You need to be careful because sometimes that can lead you in a direction other than what the law requires, but I would not exclude empathy from the job of judging. I think that that enters into the exercise on occasion in certain contexts. But looking at these doctrines and labels, I don’t think helps that much with respect to what I’ve done over the past twenty years. I mean I could say things like I’m not an originalist. I’m not. But exactly what am I? I’m not so sure that’s easy to quantify or qualify. I do start with the relevant text for one of the principal jobs in this district that we have, which is interpreting statutes and regulations because there’s a lot of administrative law and a lot of statutory interpretation that comes with the job. I do start with the relevant text and sometimes end there. And I’m hesitant to rule inconsistent with a fair reading of that text. And as a District Court judge, as opposed to an Appellate or Supreme Court Justice, my job is to follow the law, and I do try to follow the law, and I think that that requires some faith to the Supreme Court’s decisions and the D.C. Circuit’s decisions, and I think that’s an important part of the job of a
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district judge, to read and interpret them fairly but to follow the law as created by higher courts. John, I’ll stop talking for now.
MR. COONEY: Over this week, I’ve reread seven of the opinions you sent me to read so I could become familiar with your approach, and I must admit that you do an extraordinary piece of work in following the law. I don’t know if I’ve ever seen a judge who could so clearly, carefully mark out what the Court of Appeals or the Supreme Court has established as the law, and the effort you made to follow those and to explain each of them and how you were responding to it, to the people who were involved in the litigation. So that was really a tour de force in a series of opinions.
JUDGE BATES: Well my condolences and apologies for ruining your weekend. I’m sorry that you had to spend your weekend doing that.
MR. COONEY: It was a great pleasure. When you started discussing Judge Gesell, you anticipated one of my questions for you, which is how do you identify the factors that you think are going to be dispositive for you in the case, the things that you’re going to think are at the heart of the matter, and how did you organize those in your own brain?
JUDGE BATES: Well, understand that the judge is at least the third step in that process because you have the lawyers presenting the arguments through briefs and orally as well on occasion, and so they’re doing, one hopes, a good job and a significant job of identifying the issues, what’s important, what needs to be addressed. And then in my chambers, I have my law clerks as well, and they’re undertaking an analysis of the case based on the
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submissions, but also based on independent research. So they’re helping to focus the issues. And then I do the same thing by relying on what the lawyers have done and what my law clerks may have done. My experience, which I think helps me, as it does any judge who’s been around a little while, in seeing what is important, what really will resolve the case, what needs to be addressed, what doesn’t need to be addressed, and I would say applying that experience, along with the excellent labor of others, usually can focus pretty well on what matters. Now not always. I’d say there are occasions that I write more or cover more issues than is really necessary. Sometimes there’s a reason for that, but I think that applying experience and understanding of the law, but also the job of judging and relying on the hard work of the lawyers and the law clerks, usually we can get it pretty well focused.
MR. COONEY: A slight variant on that question, how do you approach writing the opinions once you and your law clerks have had a full discussion of the issues?
JUDGE BATES: It varies, John, to be quite honest. There are different categories of cases, and I don’t mean by subject matter, but I mean the type of case, the complexity of the case. There are a lot of routine cases, and those routine cases, the law clerk and I may have had very minimal conversations about, and the law clerk will be drafting an opinion. It may be pretty short. It could be as much as fifteen pages maybe, but that will be done not totally independently, but with really minimal input from me other than a couple
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of emails or conversations. Then there’s the mine run of cases which are a little more complex, a little more significant, demand a little bit more, and I will have read the papers and maybe read some of the cases during conversations with the law clerk, and we’ll focus the opinion and what we think needs to be covered and how I’m going to resolve the issues during those communications. And then in the opinion writing, the draft will be done by the law clerk. I’ll review it. I’ll send it back. It may go through only two drafts. It may go through four or five or six drafts, depending on lots of things, the complexity of the issues, the quality of the first draft, a whole litany of things could impact it.
And then there’s a category of cases that I would say are fewer, but every year there’s a few, and those are the more complex, significant public cases of greater importance for one reason or another, and on those, it’ll be frequent contact back and forth with the law clerk. In those cases, and in some of the mine run of cases, there’ll be a bench memo done before an oral argument is held, and that’s certainly a way that we really focus even before the opinion is begun in terms of the drafting phase. But with this category of the most complex cases, we may be dealing with part of the case at any given time and talking about it and then with another part of the case or one issue versus another issue. There’ll be lots of communications as we start to develop what the overall resolution is and how an opinion would be crafted. That would usually have some initial writings done by the law clerk to me in the form of a bench memo or an
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assessment of some issue based on some research or an outline of an opinion. Those kinds of tools help us in our craft as we try to come up with a persuasive, well-put-together opinion.
MR. COONEY: Well thank you. I’m tempted to jump into the fray and ask what cases you found to be your most difficult cases in the course of your twenty years on the bench, but I think that would ruin the case for the readers of this. I think it’s appropriate to take people to that conclusion through chronological discussion of the cases that you had.
JUDGE BATES: I tend to agree with you, and certainly maybe later on in our 17th session we can revisit that and maybe touch on some of the cases that we’ve already discussed. It didn’t take long for me to have a pretty varied docket that was sprinkled with interesting and even significant cases. As we’ve already discussed, when I came on, as did every judge at that time, I had about 300 civil cases and then the criminal docket as well, and that, for the most part, those cases came from other judges on the court through a random process not by selecting dogs and transferring dogs, but the process, roughly the same process, was still used. That system just takes some of the newer cases from the existing judges and makes up a docket for a newly arriving judge.
There were lots of new experiences for me to face. On the criminal side, my first plea, my first sentencing, ultimately my first trial. I think we discussed that a little bit already. And then on the civil side, getting engaged with a pretty wide-ranging docket, much of which I had
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some experience with, but not all, and to have motions hearings, which I love, that interface, and interplay with lawyers presenting on behalf of their clients has always been one of my favorite parts of the job. The trial calendar was busy when I first came on the bench. I would say for the first you know five or six years, I would have six or seven criminal trials during the course of a year and one or two civil trials over the first few years. Even for the active judges, the trial calendar has not been as busy lately. Certainly for the last almost three years now because of COVID it hasn’t been that busy. But even before then, the trials had slowed down in this court. But back when I first came on the bench, I was trying half dozen criminal cases and a couple of civil cases on average every year. I did get some important cases that are fairly unique to the D.C. District Court or Circuit Court docket.
MR. COONEY: The first cases that I saw from your earliest days in the court were very interesting. There were two decisions in relatively short order that discussed standing issues. One of them was standing by the head of the Government Accounting Office, and the other was a case involving 32 members of Congress of the House who applied to the court for relief, and those issues about standing for people within the government continue to play an important role in this. It’s very interesting to see how early in your stay you receive those opinions and had to establish ground rules, which I still see in cases that I read that investigate the same issues.
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JUDGE BATES: There’s no doubt that the jurisdictional issues, that threshold group of doctrines for justiciability, standing, mootness, et cetera, are very important in this District with government cases but throughout the federal judiciary, and certainly standing is the paramount one of those issues. I did have a couple of cases, as you said, early on that were interesting exercises in applying standing principles. I would say those two cases, along with one other case were the three most significant cases that I had in that first year-and-a-half on the bench.
The other case was a statutory interpretation in the FTC arena, and that was one of those cases where I had some really significant lawyers appearing before me. In that case, one side was represented by the former Deputy Attorney General, to be the Attorney General later on, Eric Holder, and who was someone that I knew quite well and had worked with at the U.S. Attorney’s Office, and the other side was represented by Don Verilli, later to be the Solicitor General of the United States. I came down on one side on that case, and in retrospect, I would say I did a poor job in that case. Sometimes when you get reversed by the Court of Appeals, which I did in that case, you think well no, I’m right. They’re wrong, and that’s a fair assessment. And it may be that there’s a dissent from the Court of Appeals, so actually the judicial lineup is two to two, or the case may go to the Supreme Court. But in that case, on reflection after reading the D.C. Circuit opinion, I think the D.C. Circuit got it right, and I got it wrong. So I think I did a bad job, and I learned from that. It was one of
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those statutory interpretation cases in a murky area, difficult, complex, and I think I just didn’t hold up my end of the bargain in terms of the work on the case, and the law clerk and I didn’t together do the job we should have done. That’s going to happen, and it’s a learning experience for a judge.
Every judge gets reversed by the Court of Appeals. Every District Judge. There’s no judge who can say I never got reversed unless they only were a judge for six months. It’s just the way things happen, and that case is one where not only was I reversed, but I think the D.C. Circuit got it right, and I learned from that experience.
Now in the other cases, you mentioned the Walker versus Cheney case dealing with Walker, who was the Comptroller General, so the head of GAO, and that case too was another one of those early cases where I had really significant, excellent lawyers handling the case. The two sides were represented in that case by Carter Phillips on the one hand representing the Comptroller General. Carter Phillips at that time was probably the dean of the Supreme Court bar, and Paul Clement on the other side, who has since gone on to be probably among the most well-known Supreme Court litigators. He was the Deputy Solicitor General. He and the Solicitor General worked on that case. It was the first of many cases that I’ve had over the years dealing with the relationship of the branches of government and separation of powers and specifically in the standing context as you noted, John. And here it was the standing of the Comptroller General to seek an order requiring the Vice President and a
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group that the President had formed, and the Vice President was in charge of to produce information related to energy policy. The GAO, of course, is an arm of Congress, so there was that conflict between the branches with an arm of Congress seeking information from the Executive Branch. I don’t know if you want to ask questions about it or want me to say a little bit about it first.
MR. COONEY: I remember that that case was based in some point on an earlier Supreme Court decision in Raines v. Byrd.
JUDGE BATES: It was, but even more, it was based on the Raines decision from the Supreme Court. The standing issue was really focused on Raines, which is a congressional members of Congress standing issue, important for the next case we’re going to talk about, but it also was very important for this case, and that was probably the principal Supreme Court decision dealing with standing that I applied. It was important I thought to appreciate, or I think looking back at it, to appreciate the nuances of standing or any other important doctrine as applied to the unique circumstances that may be before the court, and here it was the fairly unique circumstance of an arm of Congress seeking information from the Executive Branch. That body of standing law is a pretty limited body of standing law, and Raines is the leading case. It’s certainly true that decision, as you’ve already alluded to, John, certainly is an early example of my view of how important it is to carefully craft an opinion and particularly opinions on certain subjects. I knew this was important to both sides. I knew, obviously, that it was
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getting some publicity. It was in the papers. And back then, it was the papers. It wasn’t as much the electronic media as it is now.
So it was important to take the time to work hard, go through the issues with care, to craft an opinion that I thought would stand the test of time. And certainly that was a major task for me and the clerks as we worked on that case, and is, from year to year, a major task on the cases that produce significant opinions as the law clerks and I work together to craft those opinions.
But the issues in the Walker v. Cheney case were interesting, and although pretty narrow, they were important in terms of standing law. I really enjoyed working on the case and working through the case to the issuance of an opinion. It was not appealed, so as important as it was and as much effort was put into it by the two sides and by me, the result was that the parties accepted, if you will, the decision that I reached and an appeal was not taken. My decision was, of course, that there was no standing for the Comptroller General to seek the relief that was being sought. There are separation of powers principles that lie behind that because of the two branches of government being at odds.
MR. COONEY: That seems to be one of the lessons in Kucinich v. Bush. The members of Congress still don’t seem to understand completely that in order for a member of Congress to sue, they have to have a personal injury in order to have standing, and institutional trauma, institutional damage does not count.
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JUDGE BATES: In case anyone ever listens to or reads this oral history, I will let your comment stand without myself saying that Congress never learns, but certainly, you’re right. It’s another case in the same mold, and as you said, it was brought by 32 members of the House of Representatives, and again, major authority, although there were two prongs to this, the major authority was Raines on the standing question, and indeed the case was pretty close to the Raines situation before the Supreme Court. Here you had 32 congressmen challenging President Bush’s unilateral withdrawal from the anti-ballistic missile treaty without seeking any congressional approval. So once again, with these members of Congress suing the President, there was a separation of powers and justiciability issue at the fore. These congressmen were simply unhappy with the result, and indeed, there had been votes that they had been on the losing side of, and that was of some passing importance in the assessment of the case.
I’ll tell you a little vignette. The oral argument in this case, I commenced the oral argument, and about a few minutes into it, into the courtroom walked Congressman Kucinich making a dramatic entry and walking down the middle of the aisle in the courtroom to counsel table on his side, and it was just clear to me that he almost intentionally had waited until a moment that he thought he could make the most impact in terms of his entry into the courtroom. That always struck me as a little bit amusing. Sometimes significant parties think that the significance that is true for
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them makes a difference to me, and I have to say that I don’t think it does. Hopefully it doesn’t, and I hope that that doesn’t disappoint anyone.
But relying on Raines, I concluded that there was no standing. There was no injury here that was personal to these congressmen. It was just an institutional injury, and that is not enough in this standing assessment, and it was only those institutional interests that were really impacted. It was not anything of a personal injury to the congressmen. They had political remedies, and the political remedies are not perfect, but there are political remedies when a President is doing something that Congress doesn’t like. You can deal with appropriations. You can deal with holding up nominations. You can do all sorts of things. You see that today occurring, as it does at all points in the relationship, particularly of a congress or senators that are not of the same party as the President or congressmen that are not the same party.
So there are those political remedies available, and there was no authority here given by the House itself or a committee of the House to file this suit. The suit was just filed by this collection of 32 members of Congress, and that was not enough to survive under the standing law.
I also decided the case on a second basis as well. I would call it a secondary basis, and that was another justiciability question, the political question doctrine, and I decided following another Supreme Court case, the Goldwater versus Carter case, another treaty case, I decided that following the reasoning of the plurality in that case since there wasn’t
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really a majority decision, that this was a political question that the court should not get involved in. And often there are multiple jurisdictional or justiciability routes to deciding the case, and the court has to determine which one or ones to employ and address. In this instance because that Goldwater versus Carter case was so close in terms of what was happening, I thought that it was worthwhile to go further than just address standing and to also address the political question aspect of it. And in other cases, I’ve decided not to do that and only to focus on one issue in resolving it and not deal with other routes to the same result, and that’s really just an assessment of the particular case and how important I think it is to address multiple issues. And sometimes, and this is a little bit of judicial philosophy, sometimes I will decide that a second issue should be addressed because the first issue is a close one and the case is likely to be appealed, and I want the Court of Appeals to have the benefit of my assessment of the other issue in case they disagree with me on the first issue. They would then not be writing on a clean slate and have the benefit of what my decision was on the second issue if they needed to reach it. But that’s sort of a case-by-case assessment of how much to address in an opinion, and I did do that in this case and decided in the particular case that it was worth addressing both of these issues.
MR. COONEY: Thank you. I think that’s a very good explanation of the case. To stay in chronological order here, I wonder if I could depart from discussion of cases briefly and then come back to that because we’re starting to get to an
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extraordinary series of separation of powers cases that you’ve had over the course of your twenty years and the next big cases will also be separation of powers cases. But my understanding is that you were appointed by Chief Justice Rehnquist to serve on U.S. Judicial Conference Committee on Court Administration and Case Management. I wonder if you could provide a description of what you did in that capacity and how you were appointed and what your responsibilities were.
JUDGE BATES: The first thing I’ll say is that the Judicial Conference Committee on Court Administration and Case Management has the worst acronym in Washington. It’s CACM, and I knew nothing about that committee, really the work of that committee, when the Chief Justice appointed me. Appointments to judicial conference committees are done by the Chief Justice a little differently with Chief Justice Rehnquist than with Chief Justice Roberts, but basically the same. They receive recommendations to fill vacancies on the 26, I believe it is, judicial conference committees that exist that deal with all variety of subjects for the federal judiciary. There are the rules committees, there’s a budget committee, judicial security, criminal law, bankruptcy, all down the line, and one of them is this Court Administration and Case Management Committee that deals with issues for the most part on the civil side but criminally as well. It deals with how cases are administered and managed and what things need to be decided. It is sort of a catch-all committee in that if something doesn’t neatly fit under the jurisdiction of one of the other committees, it almost always
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goes to CACM. So CACM has a pretty broad area of responsibility touching on things that you wouldn’t even imagine. Some of them are interesting, some of them are not, but it’s a very active committee, and I was happy to receive the appointment, although, as I said, I didn’t really seek it, and I wasn’t really familiar with the committee. But it was my introduction to the administration and management of the federal judiciary, and the importance of their work is clear. They resolve a lot of very important issues. Cameras in the courtroom is something that comes before them, questions dealing with case management issues, caseloads and equalizing caseloads, whether new judges need to be appointed, lots of different issues. The work of the committee is both important, and, as I said, sometimes interesting, but sometimes boring.
I’ll tell you one vignette. I had a meeting, I think it was in Santa Fe, New Mexico, and back in those days, a lot of the Judicial Conference Committees met in interesting places, and that was another attractive aspect of being on a Judicial Conference Committee. That’s no longer the case. First of all, we don’t have that many in-person meetings right now because over the last two-plus years we’ve been dealing with the COVID—19 pandemic, but even before that, and part of this was put in place during my regime as the Director of the Administrative Office of U.S. Courts, we cut back on the freedom of committees to have meetings wherever they wanted, particularly if it took two or three flights and a full days’ worth of travel to get to the place of the meeting. I remember some
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great meetings at places that really took a long time to get to and were quite expensive to get to, so we tried to focus on what I’ll call hub cities where the air travel was much easier to connect with the city. But in any event, we had a meeting in Santa Fe, and my wife went with me to the meeting because we took a couple of days after the meeting to do a little vacation in New Mexico, and she had family in New Mexico. She was having trouble sleeping that first night that we were there before the meeting the next day, and so she picked up the agenda materials, which are usually a very fat binder with hundreds of pages of material in it and read it as she was trying to go to sleep in the middle of the night, and she said it was great. It put her right to sleep. That committee deals with some issues that just don’t seem that interesting to outsiders because they are very administratively detailed, and for those on the committee, sometimes you see the same issues year after year after year because they are really intractable and difficult to resolve and come up in different forms at different times.
One of the best things about committee work from my long experience with it is the relationships and exposure. You get exposed to judges from around the country from different courts, different kinds of courts, quite frankly, and from different experiences in their lives, not just the little bubble where you are with judges from your court, and I think that’s always a really really nice aspect to committee work. You form some good relationships. I formed some relationships with judges on that
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committee with me that last to this day, with the chair of that committee, with Sonia Sotomayor, who was on that committee with me when she was a Second Circuit judge, and she and I have stayed in shouting distance close since then and had some great dinners together. Those relationships I think are important as a judge. It gives you a perspective and a breadth of experience that I think is a nice thing to have as you see different courts and different judges on those courts working on similar problems or get a glimpse for how they judge and the kinds of cases they face.
So I did that for six or seven years. Usually Judicial Conference appointments are for three years, and then they can be renewed for a second three years, and then sometimes the Chief Justice will extend you for a year. I don’t think I actually was extended for a year because by the time the six years ran, I was engaged in other things that we’ll wind up talking about in a little while. But that was the CACM Committee appointment and the introduction to Judicial Conference Committees and specifically to the administration of the federal judiciary.
MR. COONEY: Thank you. I’ll return now to the discussion of the cases, and the next case that I read over this week is a fascinating case, your opinion and eloquent discussion of the constitutional writ of habeas corpus. The case is Omar Abu Ali versus Ashcroft. The writ of habeas corpus typically is invoked by U.S. citizens who have been incarcerated but don’t think that they’ve had appropriate process or other defects in the way that the Executive Branch handled the case, and they ask a court to issue the writ
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so they can be discharged from their confinement. As you explained beautifully in the opinion, the habeas corpus case here presented a separation of powers issue, as all habeas corpus cases do, which involves the respective powers of the Executive Branch, which did the incarceration, and the Judicial Branch, which is the only power in U.S. government that has the ability to release somebody, finding that they have been incarcerated not in keeping with the law. What’s unusual about this case is that the writ of habeas corpus was brought by four aliens who had been incarcerated for the government’s finding that they were foreign terrorists and they had sought a writ of habeas corpus for their discharge, which raised new cutting-edge questions that had to be resolved.
JUDGE BATES: I’m going to deviate a little bit from our strict chronological development because I want to make sure that we get a sense for what was really taking up the time of judges on my court, including myself.
The Ali versus Ashcroft case is neither a case dealing with a Guantanamo detainee, nor a case brought under the Foreign Sovereign Immunities Act. Instead, it was a case brought, and as you said, it took a lot of trees to discuss habeas corpus, but it was a case brought by an individual who had been detained in Saudi Arabia.
I want to digress for a minute and say that from about late 2002 onward, for a good number of years, this court and I were absorbed very much in the habeas corpus world through the Guantanamo cases, the cases brought by Guantanamo detainees, to seek their freedom, having been held
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for one year or having been held for many years. I still have Guantanamo cases. There aren’t that many anymore. I think the number of people at Guantanamo is down under 40 now, but it was much higher in the early 2000s. These were a huge demand on our court, and it lasted for many years. I say late 2002. That was not the height of it. A few years after that was really the height of it. But they evolved over years as cases, went up to the Supreme Court and to the D.C. Circuit, and the District Court was dealing with statutory changes as well as those decisions from the Supreme Court and the D.C. Circuit that changed the law that we were applying. But there were dozens of habeas corpus actions by Guantanamo detainees. The judges of our court, including myself, took this responsibility very seriously and worked very hard on those cases which were, an overused word, but they were unique. These cases were not like anything else in the federal judiciary or that we had ever seen before. I issued many decisions on Guantanamo cases, both preliminary decisions and final decisions, as the court was coming up with the legal rules but also the procedural rules for how to deal with these Guantanamo cases and the effort by the detainees to get their freedom once the Supreme Court had opened the door at least, to that effort continuing in the federal judiciary. The Supreme Court left it to our court to devise the rules and the process to be applied to these cases, and we spent a lot of time and effort dealing with those cases. I want to especially commend retired Judge Joyce Hens Green, who took on a significant centralized set of
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issues, and then Senior Judge Tom Hogan, who also later took on a similar type of responsibility. They greatly aided the court and all the judges of the court in dealing with these cases. There was just an inordinate amount of time and attention devoted to this unique aspect of the docket in the District Court for the District of Columbia. It’s especially true with the Guantanamo cases, but it’s also true with these Foreign Sovereign Immunities Act cases. Those cases, which deal with the terrorist world for the most part in our court but also some other issues, have been very very important. I don’t think we’ll wind up discussing much in the way of those cases, but I do want to stress that I issued many many opinions dealing with those terrorists’ actions against the United States, the bombing of the United States embassies in Lebanon back in 1983 and 1984, the bombing of the embassies in East Africa in 1998. I’ve issued hundreds of pages of decisions dealing with those cases and entered awards of billions of dollars against, for the most part, Iran for its support of terrorism, Hezbollah, and occasionally others. Sudan for its sheltering of Osama bin Laden and al Qaeda during a period of time before and leading to the bombings in East Africa. And those cases have been a major part of my work on the District Court, and I don’t want us to lose sight of how important they’ve been, both to me and to the development of law in those areas, and to some extent, public policy because the Guantanamo issues and the Foreign Sovereign Immunities Act issues with the actions against terrorists have been an important aspect of the United
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States’s efforts and activities. I still have lots of cases that deal with those issues. I have quite a few Foreign Sovereign Immunities Act cases, although it’s changed. Now I’m dealing with cases currently on my docket, and I’m currently writing a big decision on, that deal with the responsibility of those who supported the activities in Afghanistan and Iraq that led to the use of improvised explosive devices, IEDs, and similar weaponry against the United States military presence and killed and maimed scores of U.S. soldiers. I have cases dealing with those issues now that are brought against, for the most part, Iran.
One aside on those kinds of cases, with respect to the East African embassy bombings – it’s public, but it hasn’t been totally completed – ultimately Sudan, which did not participate for a while, did come back on appeal to try to challenge my decisions without success, the Court of Appeals issued one big opinion on that, and ultimately to try to regain entry into the international community, Sudan has agreed to settle for its role in supporting terrorism, material support of the terrorist activities of the East African bombings, I think to the tune of between $400 and $500 million, so they are significant cases. But the legal aspects of the War on Terror and the terrorist attacks on the United States and U.S. citizens have played out in this court, in many instances before me, and the same is true of the Guantanamo detainees.
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But back to the case that you mentioned, and I’m sorry for that long diversion, but I think it’s worthwhile because that was such an important part of the work of this court over a lengthy period of time.
So back to the Ali versus Ashcroft case, which, as I said, was neither a Guantanamo case nor a Foreign Sovereign Immunities Act case, but it’s an important application of habeas corpus, and it taught me a lot. I would not say that I’m known for challenging or rejecting the government’s position in terrorist cases, but I have done so on occasion. I would say that I am known for testing and probing of the government’s position because often in those cases, it’s only the government that is appearing. That’s not true in the Guantanamo cases, but it is true in many of the Foreign Sovereign Immunities Act cases because Iran does not appear. But at least preliminarily in the Ali versus Ashcroft case, I did reject the government’s position. There was a preliminary decision. I went through at great length the history, evolution, and development of habeas corpus and the meaning of it. You have to understand that sometimes those things are propelled by the work that you do in tandem with your law clerk, and I had a law clerk at that time who was really engaged in the subject and was tremendously talented and productive. He had clerked on the Second Circuit for a very distinguished judge on the Second Circuit, and interestingly, again a little vignette, I’ll say that I always had a warm spot in my heart for him because after he had committed to clerk for me, he got an invitation to interview with a
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Supreme Court Justice, and he turned it down because he felt that it would not be the right thing to do since he had committed to clerk for me. I always thought that was an honorable, perhaps stupid, but honorable position. Anyway, that case, he deserves credit for really pushing along and propelling the scope and depth of that decision. It was a U.S. citizen, a young man who was studying in Saudi Arabia, and he was seized by the Saudis, allegedly at the direction of the United States. He was held without charges. After some months, a habeas corpus petition was filed on his behalf, and the government moved to dismiss it, and that was the context of the case before me. I concluded that because he was a United States citizen, he had not forfeited his fundamental constitutional right to be free from indefinite detention by the U.S. government without due process. The key was that in the context of the motion to dismiss filed by the government, I accepted the allegations, the well-supported allegations, by the petitioner, that the United States was directing his confinement, that it was a confinement by Saudi authorities at the direction of the United States. The government did not really deny that, but they didn’t admit it either. They did not factually contest it, so the facts before me were solely the facts that were sufficient to support the preliminary conclusion that his detention was at the direction of the United States, and because of that, I denied the motion to dismiss saying that habeas corpus was available to this U.S. citizen who was being detained in this circumstance as established, if you will, by the allegations which had to be assumed true
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for purposes of the motion to dismiss that the government filed. So what I did was not grant habeas relief to the petitioner by releasing him, but I ordered that jurisdictional discovery would take place to determine what the facts were, was it true that he was being held at the direction of the United States. And the FBI had been involved. They had been in Saudi Arabia, so there were some people to depose and then some activity to look at, and I ordered jurisdictional discovery to explore those facts. I’m confident that that was the right thing to do even though the government had resisted it very very strongly in this situation where behind the curtain they were saying this is a significant terrorist that we need to be detaining. So what happened? I ordered jurisdictional discovery, and the jurisdictional discovery started. It hadn’t really begun in full, but it had started. At that point, Ali was released from Saudi Arabian detention, and he was returned to the United States. He was indicted, a federal indictment in the Eastern District of Virginia, on charges of providing material support to al Qaeda, conspiracy to assassinate the President, and to commit, I think there was aircraft piracy involved as well in what the plot was. He was charged and tried and convicted in the Eastern District of Virginia, and on that basis, I subsequently decided the case was moot before me, the habeas position was moot because he wasn’t being held any longer in the circumstances that gave rise to the habeas petition. Instead, he was being held in a criminal case here in the United States, so I dismissed the case as moot. I don’t know what would have happened if I
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hadn’t granted jurisdictional discovery and denied the motion to dismiss, but I to this day am confident that that was the right thing to do even though the government was resisting it quite strongly.
MR. COONEY: Alright. If that’s the completion of your discussion of the case, I’ll move on.
JUDGE BATES: Unless you have some questions you’d like to explore, I think that’s what I wanted to say or recall about it.
MR. COONEY: That’s a very good description of the issues in the case and how it ends up. So the next question for you is that now we’re going to start going back to another appointment you had an appointment by Chief Justice Roberts to serve on the Foreign Intelligence Act Court.
JUDGE BATES: Foreign Intelligence Surveillance Act Court. We call it the FISC for short.
MR. COONEY: I wonder if it makes sense to start the discussion of the Act because there are several steps in that, and it may make sense to take advantage of your time while we have you to have you start with the basic description of your appointment to the Court and then what the Court does.
JUDGE BATES: Yes. Let’s do that. I think that makes a lot of sense. I’ll just close out on the Guantanamo cases by saying that, as I said, I spent a lot of time on them. I issued a lot of decisions. Generally I would say my decisions were accepted by other judges at the Court and by the D.C. Circuit for the most part. There’s an exception, and we’ll talk about one exception to that where the D.C. Circuit did not see the case in the same way that I saw it,
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but those cases did take a lot of my time. So I was appointed to the Foreign Intelligence Surveillance Court.
MR. COONEY: Excuse me for interrupting here. I see that I jumped over. I wondered if that was what you were thinking about, that the Ali case has another short opinion in Ali versus Gonzalez, which deals with the resolution of the case.
JUDGE BATES: I think I’ve already discussed that. In terms of the FISC appointment, that’s something that again, appointments to that court, as well as to Judicial Conference Committees, are made by the Chief Justice, and the Chief Justice takes it very seriously, and now it’s Chief Justice Roberts. In conversations with me, I think I can share this, he has said that he considers that to be a truly national court because it does have judges from all over the country on the court, and it’s a court that he can have a large role in crafting and making sure that experienced, dedicated judges are on the court. When I was appointed, I think I knew that from work I had been doing and from judges who knew me there was a good chance that I would be appointed. Three of the judges on that eleven-judge court have to be from the D.C. area. They don’t have to be on the D.C. District Court. They could live close by, Eastern District Virginia or even Greenbelt, from Baltimore, but they have to be from this geographical area. And usually it’s three judges from this court. Not always, and indeed, today there are not three judges from this court on the Foreign Intelligence Surveillance Court. So the appointments to that court are
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skewed so that there are more judges from our court that get on it than from the rest of the country, but the requirement is these days and when I was appointed that seven of the circuits have to be represented on that court. So there is a statutory requirement that ensures a geographical disbursement around the country. The court deals with the Foreign Intelligence Surveillance Act, and that is the statute that came about from a number of sources. I would say the Church Committee activities back in the 1970s exposing some problems with our intelligence and domestic intelligence efforts and the passage of the Foreign Intelligence Surveillance Act and some Supreme Court decisions dealing with issues of domestic terrorism all gave rise to the statue, and then as part of the statute, the creation of the court to deal with the government’s applications to conduct surveillance in certain settings, foreign intelligence settings. It’s changed a little bit over the years in terms of the statutory basis. There have been modifications to the Act, but essentially what the court does is deal with applications that the government brings to conduct surveillance related to foreign intelligence or terrorism, things of that sort. There used to be, I would say maybe as many as 2,500 or so applications a year. I think that was the height of things post-September 11, 2001, and it’s not as high now. There are fewer applications. There are a lot of reasons for that. It was a very busy court when I was there. Basically what happens, you’ve got eleven judges, and a judge sits for a week, and it rotates, which means that each judge has about five weeks a year that they are sitting as
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the judge on the Foreign Intelligence Surveillance Court. Now there are other obligations. Sometimes there are cases that extend beyond that. Sometimes there are other responsibilities, but the primary responsibility is that sitting that occurs every eleven weeks or so, so about five times a year. The work has to be done here in Washington in a secure facility, a SCIF, if you will, and we have the court here in the courthouse in Washington. One floor of the old courthouse building is where the FISC is located, and it’s all secure. You can’t get into it. The only way you get into it is through kind of hand and eye recognition that you see in the movies. It’s the only way that you can get through the doors. The judge sits and does the work there, doesn’t take any work home with him at night because it’s all classified. You deal with these applications for surveillance, and of course when you have applications for surveillance, the other side can’t know that the surveillance is being requested and then conducted if it’s approved because if they knew, then that would defeat the purpose of the surveillance. So for the most part, historically these have been applications with only one side, the government, appearing before the court. More recently, there’s been more of a move to have some amicus participation and a little more expansion but essentially and fundamentally, it’s not an adversarial process but a one-side process where the application is brought before the court. There may be some routine matters. There may be some very significant matters. Some of the matters that you have seen in headlines over the last fifteen years of my
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experience with the court would be matters that at one point or another were the subject of applications before the Foreign Intelligence Surveillance Court. We dealt with a lot of the fallout from the program initiated by President Bush, second President Bush, called the President’s program, that really was an end-run around the Foreign Intelligence Surveillance Act and led to the confrontation in a hospital room where an effort was made to get Attorney General John Ashcroft, who was very ill, to agree to something that was resisted, that led to a major retraction and change of what was being done. We dealt with over the years many significant surveillance requests and some very routine surveillance requests. Don’t get me wrong. Among those 2,500 a year, there are some that are very routine and don’t require much thought, quite frankly. But for the most part, the judges and the staff of the Foreign Intelligence Surveillance Court, which consists of very experienced lawyers who work on these applications along with the judge, they take these and deal with them very seriously and have to take on the responsibility of probing what the government is saying because there is no other side to do so. I had many hearings, and not all matters require a hearing, but I had many hearings where I really was probing the factual or legal representations and presentations by the government.
Historically, and I’m sort of stepping out of my experience to just talk generally now, historically there always had been a view that the Foreign Intelligence Surveillance Court was a rubber stamp for the
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government. I think that’s less the view these days than it used to be. Statistics have now been revealed that would support factually that about 25% of the applications are not accepted in full when brought by the government. It may be that surveillance on three phones is sought and only two are approved, or it may be that there are two legal theories presented and one is rejected, and one is approved. But there’s substantial modification, including some outright rejections or declinations of the applications in about 25% of applications. That doesn’t include little typographical changes but significant changes to the authorities, the scope of the surveillance or something else significant.
So the court really is doing some hard work on some very significant matters. Sometimes you have packages that are many inches thick of historical materials. Sometimes you have an application that is only a couple of pages, and there’s a good reason for that. But in any event, the process is a very exacting process, and the judges are very diligent doing that. I’m not saying that it’s perfect. I’m not saying that there aren’t things to always be thinking about in terms of legislative improvements or this tension between security and privacy because it exists. There’s fundamental tension there, but the matters, the types of cases, are interesting and demanding for the judges. It used to be very high-volume.
I developed some expertise in this area and even wound up teaching national security law focused on the Foreign Intelligence
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Surveillance Act at Georgetown for five or six years and at the University of Arizona for an equivalent length of time. I have stopped that now and haven’t taught for the last two years because of COVID. I did teach remotely for one year but didn’t find it to be as personally rewarding, and I was very busy on other things, so I haven’t taught for the last two years. I don’t know if I’ll go back to teaching. We had lots of interesting matters on the FISC. Twice a year there are conferences of the Court to discuss issues that are of interest to all the judges, and there’s a lunch that is held at the Supreme Court with the Chief Justice and with all the leading members of the, I’ll call it the intelligence community, the heads of the significant agencies, the CIA, the DIA, the NSA, the Attorney General on down the line, the Director of National Intelligence, et cetera. They all attend this luncheon, and it’s a great opportunity in a little less formal setting to have some time together when for the most part you’re reviewing as a judge the applications made. I remember dealing with some very significant issues, some of which have become public as more and more has been released dealing with the work of the Court. It’s pretty interesting work.
I think what the best thing to do now, John, is maybe to stop because as I told you I have a rescheduled court matter in a few minutes, and when we pick up again, I can talk a little bit about the Foreign Intelligence Surveillance Court when I became Chief Judge of the Court, the presiding judge of the court, because there are some interesting aspects
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to that as well before we go back to talking about the rest of my work, the casework. When you’re appointed to the Foreign Intelligence Surveillance Court, it doesn’t substitute for any of your other work. It’s an additional responsibility that judges have willingly and often eagerly taken on. Now the Chief Justice doesn’t like to see people be too eager to take on the positions because that raises a little bit of suspicion about whether someone will be fair and thorough in their examination of the issues, but certainly judges have been very willing and occasionally anxious to take on the responsibility as a judge of this court, and it is an additional responsibility beyond their normal duties.
MR. COONEY: You picked an excellent place to come to a halt in today’s interview. The future readers and future people listening to this tape will all be wondering what’s coming after the break when we start on the sixth interview.
JUDGE BATES: We’re building the suspense, when actually it’s just the time that has dictated that I stop because I have a plea hearing in a couple minutes.
MR. COONEY: So this is a good place to stop.
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Oral History of Honorable John Bates
Sixth Interview
February 11, 2022
This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee is Honorable John Bates. The interview took place on Friday, February 11, 2022. This is the sixth interview.
MR. COONEY: As we discussed at the end of the last interview, we talked about the first part of your time on the Foreign Intelligence Surveillance Court, and I thought we’d start, if it’s okay with you, with discussing what the experience was like when you were promoted to being the presiding judge of that court, and then when we’ve had that discussion, at that point we could transition to the major cases that you’ve had. This would be for the years 2008 to 2012 where you had a bevy of important cases.
JUDGE BATES: I did have quite a few meaningful cases. You also had suggested that you might want to ask me a question or two about judicial philosophy or principles, and I welcome those as well. But let’s start with the FISC. As you said, I did ultimately become the presiding judge. I’ll call it chief judge, which is what it was and is, even though the statutory term is presiding judge. Those responsibilities are comparable to the responsibilities that a chief judge of a district court has. They’re a little bit different, and it certainly is a smaller scale than being chief judge of our court because you don’t have many of the administrative duties to deal with and the space, staff, et cetera, it’s a much smaller universe.
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MR. COONEY: I need to interrupt you for one second to get this on the record. Thank you, John. If you can keep going now, I’d appreciate it.
JUDGE BATES: The interruption is welcome and thank you for that introduction, and no thanks for the reminder that this is the sixth interview, but they’ve all been enjoyable, and I’m sure this one will be as well, and we’ll reach the end of the road someday.
In the meantime, speaking of the Foreign Intelligence Surveillance Court and the role of the presiding, or chief, judge, I sort of had been told that this appointment would be forthcoming. Nothing for sure, and the Chief Justice makes the appointment and can decide to do whatever he decides to do at the moment. But it had been indicated that this would be coming after a couple of years. There’s a limited pool of people to choose from because the chief judge is almost always a judge from my court. There have been exceptions, one exception I can think of, with a judge from Maryland, but it has to be a judge close by because some of the duties today, and when I was chief judge, the duties do require a presence frequently in the courthouse with the court.
In any event, there are some other things that happen with being a chief judge of that court. You do take on responsibility for some of the longer-term assignments, some of the bigger cases, and occasionally, some of the matters needing more immediate attention. There are some provisions in the statute that actually direct things to the local judges, and
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for that reason, often to the chief judge because of the urgency of those matters for the most part.
There are some other administrative responsibilities. There are generally two conferences of the entire court each year. The chief judge helps to put those together with the staff of the court.
As I think I have mentioned earlier, there are some wonderful attorneys who work for the court, maybe 4 or 5 or 6, depending on the time, and they are very experienced, knowledgeable people. There’s a clerk of the court and some other staff who work for the court, all of whom are of immense help to the court, but in particular to the chief judge.
The chief judge has some additional interaction-type responsibilities with the Department of Justice and with others as necessary. This may vary from chief judge to chief judge and from time to time depending upon the matters that are extant and needing attention and needing some coordination with the Department of Justice or other agencies. I had a lot of interface with the Department of Justice on several matters when I was Chief Judge and occasionally with other agencies, particularly the National Security Agency, not as much the CIA or the Department of Defense.
There was also a possibility, it varies from year to year, but the possibility of some interface and interaction with Congress. It’s not unusual for Congress to be seeking information from the court or from the
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judges of the court, although that happens more at particular times in the history of the country when particular events occur. I certainly faced some of that and had some requests from Congress to come and testify or to meet with them. I remember one such request from the chair of the Senate Select Committee on Intelligence. She was very anxious to have me come and talk to them about a footnote, which has since become public. It wasn’t public at that time, but it has since become public, in a decision where I ruled against the government on statutory interpretation and on Fourth Amendment grounds, and a footnote indicated that this was not the first problem we had had with government compliance. She wanted to explore that, but I declined, as I did on all occasions where we received such requests when I was Chief Judge. We did not go and appear before Congress. I will get to another matter in that arena in a moment.
The Chief Judge is a resource for the other judges. Some of the judges have much less experience with the issues. Some of the judges don’t have as many matters or haven’t been on the court for as long, so they have less experience, and they are seeking assistance and guidance, often from the Chief Judge. A I said, many big decisions wind up with the Chief Judge, and that certainly was true when I was there.
Now there’s another aspect of this that again varies depending upon who is the chief judge, so I can only talk about my experience. And this is not necessarily a typical experience for every chief judge. You can’t discuss with anyone outside the court the decisions of the court, the
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matters before the court, anything that would be sensitive. All of it is highly classified, and you just can’t talk about it. I always tried to give sort of at the end of the year a sense to the Chief Justice of how things were going on the court and whether there were any problems that I thought he needed to be or should be aware of. And in that context, I also made recommendations to the Chief Justice with respect to filling vacancies on the court. We usually had two vacancies every year, sometimes more. Maybe on some occasions only one, but there are always vacancies and the need to get new judges on the court. Because there’s a statutory requirement to have at least seven circuits represented on the court, you were always looking in particular circuits to bring a judge on board. The Chief Justice doesn’t know all the judges out there, nor does anyone, but I had access to some information that helped me to make recommendations to the Chief Justice in that context, and I would do so. I had a little bit more of a relationship with the Chief Justice and his counsel than probably most presiding judges and other judges generally would have because I would meet with him once a year and have a lengthy discussion on these matters, including making recommendations. And for one of the conferences every year, there was a luncheon at the Supreme Court that he hosted and was present for, so there was that connection as well. At that luncheon we had all the heads of the intelligence community present in addition to the attorney general.
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MR. COONEY: Were there decisions from the court when you were there that proved to be particularly problematic? What does the Chief Judge do if there is something like that that comes along, and what would the response be?
JUDGE BATES: Well, no the Chief Judge has no independent responsibility to correct an error by another judge. It may be that that arises in conversation, and it may be that there are competing decisions by judges on an issue, but just like on the District Court, if I issue a decision, my chief judge has no responsibility if she thinks that’s wrong. That’s up to the appellate courts, and there’s appellate review for decisions by the Foreign Intelligence Surveillance Court as well. It’s harder to get those cases up on appeal just because of the fact that there often isn’t an adversary, but there’s no responsibility of the chief judge to correct it. Now that’s a formal answer to your question. An informal answer to your question is just communication, and there may be instances where the chief judge will talk to a judge about a decision that that judge, he or she is about to enter if the chief judge perceives some problem with it. And it may be that the legal advisers would have a disagreement on things. So if there are such issues, then the chief judge can get involved.
Now I do remember one occasion before I was chief judge but while I was on the court where we had a very sensitive issue in dealing with very sensitive problems that became widely known ultimately but weren’t at the time, and there was some real disagreement among the judges on the court about how to deal with it. What matters, specific cases
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if you will, were going to particular judges, and so those were the responsibility of that particular judge to decide even though among the court there was on the more general level some disagreement on how to approach or handle the problem. That led incidentally, that very incident, or series of incidents, led to a change in the practice of the Foreign Intelligence Surveillance Court. There was a time when the Department of Justice could discern who the judge the next week was going to be and therefore would know or could make a decision on whether to file a matter or not that week. Along with the departing chief judge and myself, we agreed that we needed to change that so that the Department of Justice could no longer ascertain who the judge on duty the next week would be to cut down on what I’ll call forum shopping, so to speak, and we made that change. But yes, sometimes informally there are those discussions on particularly sensitive matters or matters on which there might be some disagreement, but there’s no formal responsibility of the chief judge.
MR. COONEY: It sounds as if the formal pathway would be for the matter to get to the FISC court of review if possible.
JUDGE BATES: That’s right. That’s the appellate court of review, and that’s the formal means for review. But understand, it’s not quite as true today as it was a decade ago because of some changes to the legislation, but it still is pretty difficult to get a case up on appeal because if the decision is in favor of the government, there’s often no other party involved in the matter in order to take an appeal. Now we have amicus and other possible participants, so
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it’s more likely that there could be appellate review, but it still is an imperfect process because it’s not an adversarial system.
MR. COONEY: I did see some references to amici curiae and also something to special advocate, and I wondered if those are separate functions.
JUDGE BATES: They are separate functions. It’s more the amici that exists, and they didn’t exist when I was chief judge. That’s a subsequent legislative change that I resisted to some extent but supported to some extent. I resisted it in its initial form, which was a broad-based participation by an amicus in virtually every case because I thought that couldn’t happen efficiently because you can’t really get access to the facts, you can’t go and talk to the person who’s going to be surveilled because they can’t be informed that they’re going to be surveilled. If they were, then it would defeat the purpose of the surveillance. So I thought an amicus that was involved all the time in all the cases wouldn’t make sense and would also delay matters considerably. But a more limited amicus participation now exists for the more sensitive and the more novel cases.
So there’s also for the chief judge, at least for me, there was a lot of interaction with the Department of Justice. I set up a monthly meeting with the Assistant Attorney General for National Security because I thought that was a good way to air issues that either they had with the court or the court had with them, and it proved to be very successful. I had great relationships with the two Assistant Attorney Generals for National Security who had the duty most of the time that I was there,
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David Kris, who’s now out on the West Coast, and Lisa Monaco, who’s now the Deputy Attorney General. We had continuing close relationships built on our cooperative efforts when I was in that role. Now it’s a cooperative effort, but it’s an arm’s length effort because it’s the court, and the Department of Justice is one of the parties before the court, but there are bigger issues sometimes in terms of how things are being handled or compliance problems and things of that sort that need to be addressed and are better addressed in a less-formal setting to begin with than by the court filing orders all the time.
So that’s basically life as the chief judge or presiding judge of the Foreign Intelligence Surveillance Court. It was an interesting responsibility and very active, busy responsibility. It’s on top of one’s duties as a district judge, so I was stretched pretty thin during those years working, I would say, pretty hard with that additional responsibility. Two things that arose out of that that I think are worthy of mentioning in terms of my life as a judge. One was, I said that we resisted meeting with or even testifying before Congress. Absolutely true. But after I left the court, but shortly after I left the court, just a few months, in the post-Snowden context, pressure was put, I can’t divulge too much about this, but pressure was put on the Chief Justice to agree to have someone come and testify, have the Chief Judge of the Foreign Intelligence Surveillance Court come and testify. The pressure was from the Senate, and the Chief Justice contacted me even though I had left the position and there was
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someone else in as chief judge and said that he thought that he probably needed to do that because of the sensitivity of the issues that were percolating at the time in the post-Snowden world. It was a very sensitive, difficult time in the intelligence community and for Congress. So it was agreed that I would go and testify, to appear before the Senate, and I did so. Now it wasn’t what you think of as a typical appearance before the Senate, and this much is public, and I’m only going to say what is public. It was a classified proceeding, but it has been made known that I did do it. I went and appeared in the classified room in the basement of the Senate that is very, very large, and all senators were invited to this proceeding. Now there was a part of the proceeding that was also others who did frequently testify before Congress, the Attorney General, the Director of National Intelligence, the Director of the National Security Agency, but I was there as something new. I think during my “testimony,” which was much more being asked questions than it was giving testimony. I guess that’s what testimony often is in the Senate. You’re making a statement, but it’s mostly questions. I think I was told that just over half of the Senate, over 50 senators, were present for that, which was a pretty amazing turnout of senators for a proceeding, and it was an interesting couple of hours. I don’t regret doing it. I think it was the right thing for us to do. I got to explain some of the processes and some of the issues that senators just don’t understand except for the few who were on the Intelligence Committee, and so it was very worthwhile in that context. I
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didn’t get to satisfactorily answer some of the questions that some of the senators had about changing things or about the court’s interpretation of certain statutory provisions because I didn’t think it was appropriate for me to give interpretations. That was one of the reasons that we resisted testimony before the Senate in all contexts, because no matter what, you’re always going to be asked for your view of something that the Senate, or the House if it’s the House, will then move forward with, and you’ve already committed to something. So as judges, we’re very reluctant to do that, and that was true for the FISC as well.
I then went to the House, and it’s not possible to do the same kind of thing with the House, but we had to do something with the House, and so instead, I just went to the House Select Intelligence Committee and appeared before them. It was then a Republican chair, but they were all very polite, and I answered their questions as best I could. I think of those who were present, which was most of the Committee, I don’t think it was all, but most the Committee. It was a large Committee. I think the one who seemed to be most up on the issues and most focused and understanding and had intelligent questions was Representative Schiff, who’s still very involved in these kinds of intelligence-related matters.
MR. COONEY: An unforgettable day.
JUDGE BATES: It was. There were two different days. The second thing that I wanted to mention that arose out of my life on the FISC was that I have done a lot of teaching over the years, not the last two years, but over the decade
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preceding that, teaching at both Georgetown and the University of Arizona Schools of Law in the national security arena, principally on national security surveillance. I have taught a course at both institutions and enjoyed it very much but have not done it the last two years during the COVID pandemic because the first time I did it remotely, it was fun, but not as much fun, and I haven’t done it since. I don’t know if I’ll go back to doing it in the future. With that, I’m going to make a suggestion. I don’t know if you wanted to ask any questions on judicial philosophy.
MR. COONEY: No. That is a wonderful explanation of the function of the Court insofar as you can describe it to an outside source.
JUDGE BATES: If you want to ask me anything on judicial philosophy, feel free to do so.
MR. COONEY: I’d like to do that, and then we can go to the major cases.
JUDGE BATES: Yes. And I’m going to make a suggestion on how we address those cases a little bit in terms of the order.
In terms of judicial philosophy, that’s not a topic I’m altogether comfortable with. I’m not much on assigning labels to my judicial philosophy or my approach to judging. I do think labels can be dangerous. They can pigeonhole you and corral you into a narrow view on things and have the public or the bar think you have a narrow or predictable approach. So I don’t really have identifiable judicial philosophies. There are some obvious tenets that I think that have guided me as a judge, but they are obvious. They are things like work hard at it, follow the rule of law. The rule of law is very important in my thinking. Be fair and open-
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minded. Search for justice. Listen to all sides, and don’t just listen, but consider all sides of an argument. I think that’s very, very important for a judge to do, and it certainly has been a guiding principle for me. Don’t be afraid to make decisions, to decide something that’s before you. On the other hand, don’t decide more than you need to. I think I have followed that pretty closely throughout my judicial career. I’m willing to decide matters. I try to do so timely, and on the other hand, I try not to decide more than is necessary for the case that is before me.
I think it’s a principle of judging, that I believe is important, and that is to respect everyone who’s involved. Treat everyone with dignity. There’s a wide swath of the community that comes before you, either as lawyers, as litigants, as criminal defendants. All of them deserve respect in the criminal and civil justice process, and I’ve tried to insist on that from myself and from those who work with me, and I hope that I’ve been successful in doing so.
I think it’s important for judges to explain their decisions and their conclusions and to do so often in writing. I think that is something that I have tried to do. It’s also important for judges to get to the heart of the matter efficiently and in a way that readers can understand. And the reading audience is the parties, the lawyers, the bar, and the public. And they all have to be able to, from different levels, but they all have to be able to understand why a decision has been reached and to appreciate it
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and hopefully to respect it. I’ve always borne that in mind with writing especially.
I guess I demand a lot of myself. I think I demand a fair amount of those working around me, but always in a comfortable, collegial, respectful fashion, and I’ve been really blessed with staff and law clerks who have just been a joy to work with. I will say that I am still working today with the two court staff who are most important to a district judge. My courtroom deputy was the person assigned to me when I walked in the door of the courthouse, and he still is, and we work on a daily basis together. My court reporter is the court reporter who handled the first matter that I dealt with and who is still the principal court reporter for me in court. They are both wonderful people and court employees, and I’ve been very fortunate to work with them throughout my career as a judge.
I guess another thing, and this reminds me of a question I was asked during my one interview for this position, but I hope that I follow the facts wherever they may lead, and I’m prepared to turn over whatever stones are necessary along the way to getting at the truth in order to apply those facts or apply the law to those facts to reach a decision. I’m reminded of a question I was asked about what judges I admired on my court, and I said Judge Lamberth because I thought he did turn over the stones, even government stones, to find out what worms or snakes might be beneath those stones, although his career was mainly with the government. And Judge Gesell because I always felt that Judge Gesell,
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better than any other judge that I’ve appeared before, was able to get at the heart of the matter and really focus on that one or two most crucial issues in the case.
Obviously, as a judge you try to bring no presumptions, preconditions, biases to the job, and I hope that that’s been a guiding tenet for me. And obviously, for me, at least, I think you need to have compassion and sympathy, translated into empathy, I guess, in the right places at the right times. All of that is important. But looking at doctrines or labels I don’t think is of a lot of help, at least not with me. I would say I’m not an originalist. That’s an easy one. But I do start with the relevant text on statutory interpretation or constitutional interpretation and application, and I’m hesitant to rule inconsistent with a fair reading of a statute or regulation. As a district judge, of course, your responsibility is a little different. You’re responsible for following the law, not making it. Much more the job of the court of appeals and ultimately of the Supreme Court to make the law. The district court is more charged with the faithful application of the law. But that’s not to say that occasionally we’re not, especially in my court, doing much the same job as an appellate judge because we have a lot of administrative law cases that start in the district court.
As I said before, I think being timely is a crucial quality for a successful district judge. Now, while I say I’m not an originalist, I probably would not be labeled by others as an activist judge either. Not
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that those are two opposites, but they’re two different things. I don’t think that people in the bar would say Judge Bates is an activist judge. I think I’m a little more cautious, reserved and step-by-step. I tend to respect and remember the limited role of the Judicial Branch and to place this branch, and therefore me, at the right location in our tripartite system of government, and that’s why often separation of powers issues and so forth are things that I consider to be right up my alley, and I do see the role of the judiciary as being a constrained role. But that doesn’t mean that we don’t have lots to do and lots of interesting things to deal with, so let’s get back to those interesting things unless you have any other questions about that vague topic of judicial philosophy.
MR. COONEY: I have no questions. I’d say that you’ve given a very elegant explanation of how you go about treating the people who are going to come before you and are before you. Your explanation of how you treat your fellow humans in an extremely tense situation is far more important than a discussion of an abstract philosophy.
JUDGE BATES: I tend to agree with that, John, and I do think that the district judge on the federal court, not as much as a local judge in the state system or the D.C. system, but the district judge is the part of the judiciary that’s in contact much more with the public, with the bar, and there’s a responsibility there to be open, to hear what needs to be heard, but also to be respectful in doing so because there’s a lot more interaction with the public through jury trials, other proceedings in court, et cetera.
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MR. COONEY: I’ve read seven of your opinions this week, and I’d say step-by-step is a very accurate short expression about your writing. You do an extraordinary job of breaking down the arguments presented before you, and then you work your way through each one of those things very carefully, very considerately. And you do the same in dealing with precedent, the way you go through the Supreme Court precedence and the D.C. Circuit precedence, and then get to other jurisdictions. It’s quite extraordinary the level of detail that you go into and how you’re able to reach conclusions and wrap that up.
JUDGE BATES: I appreciate that, John. It seems to me that it might make sense at this point to talk a little bit on the criminal law side, which is a big part of what a district judge does but is not a big part of the opinions that you’ve been reading. Most of them are going to be civil opinions, and that’s where most of the lengthy opinion-writing occurs. But I don’t want to disregard or give short shrift to the criminal law side of this job because from time to time, it’s much more demanding than the civil side. And over the course of time, it’s a large part of what we do. The criminal cases are very, very significant, not only to those involved, but they are a significant part of the job that a district judge does, and most of the events, particularly pleas and sentencing, which in most criminal cases, it ends with a plea and a sentence. Not a trial, but most of that is done by me alone with minimal assistance from the law clerks. Whereas on the civil side, the law clerks are much more fully engaged, particularly as we’re
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crafting long opinions. Pleas are generally taken by me without needing any assistance from the law clerk. There are exceptions. When there’s an exception, I ask a law clerk to look at something or to do something that will help me with an issue that has popped up with respect to a plea. Sentencings are the same way. It might be a little more likely that I would turn to a law clerk to research some issue with respect to a sentencing matter, but for the most part, largely those are done by me. There are far fewer opinions written on the criminal cases than on the civil cases. I’ve written some, obviously. You’ve read one or two, but there’s not a lot of long opinion writing. Some of it is just suppression motions. Every once in a while, there’s a legal issue, and then on occasion, there’s a troublesome issue that arises in a criminal case.
Now, I had less experience on the criminal side than the civil side when I came on the bench, so I had a lot of learning to do. It was a steeper learning curve, if you will, to be comfortable with making decisions, with entering rulings, with deciding whether evidence came in in cases, to sentence someone. It was an area that I, and it’s true for a lot of judges, not all, but a lot of judges, and very few judges have a lot of experience sentencing people before they come on the bench. But it’s a pretty broad range of cases in this court on the criminal side. You’ve got smaller gun cases, some drug cases, although a lot of the drug cases we have turn out to be fairly large, some of them international as opposed to local. We’ve got political corruption cases. We’ve got fraud cases, other white collar
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crime. We’ve got terrorism cases. Cases of betrayal of the United States. So lots of different things. It’s a sophisticated criminal docket, although it’s not year in and year out an overwhelming criminal docket. We don’t have the volume of cases that some jurisdictions have.
Cases, by the way, and I don’t think the public knows this, and indeed, I doubt that most individuals coming onto the bench think of this before they come on, but cases don’t end once you sentence someone. It ends in the sense that you pack up your file – it’s all electronic these days anyway – and you close the case. But there are a lot of post-sentencing matters, either 2255 motions or violations of supervised release that occur. So you’re seeing those cases in the future, in the habeas context or in the violation of supervised release context, and those can be quite demanding at times. So that is another part of the job on the criminal side.
Occasionally, a judge on this court gets a big case. It may be an individual case. It’s more likely to be a multi-defendant case, a case dealing with a RICO conspiracy or a large drug conspiracy, something of those sorts that will demand a lot of time from the judge over a long period of time. I’ve had a couple of those. I thought I’d talk a little bit about one just as an example. This was a case with, there was one defendant initially, and then I think fourteen defendants ultimately. It was a case involving the activities of primarily former military in Trinidad and Tobago who were conducting kidnapping rings in Trinidad and Tobago, and unfortunately for them and for the victim, they kidnapped a U.S.
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citizen who was living in Trinidad and Tobago, and that victim died during the kidnapping. They did not intentionally kill him, but they killed him by ignoring his needs. This was a case brought by the United States to stop that kidnapping and prosecute those engaged in this particular kidnap. One case came to me initially, and that case happened to be of the least culpable member, if you will, of this kidnapping ring, and he insisted on going to trial right away, as was his right, and the government agreed. We went to trial quickly, and he was acquitted. Meanwhile, the government brought through extradition, I think it was fourteen other individuals, here to the country. Now because the individual had died, the individual victim had died, under the relevant statute that creates venue and jurisdiction over this matter, you might think there wasn’t otherwise, but there’s a federal statute. Under that statute, the sentence, if someone dies during the kidnapping, is a mandatory life sentence. So this was a serious matter for these fourteen defendants involved in this case.
There were tons of issues in the case. As you might expect, a lot of legal issues because of the unique statutory setting and the kind of case. There were lots of issues with respect to the conduct of the investigation between those in Trinidad and Tobago, the law enforcement, and those in U.S. law enforcement, and the coordination. There were ultimately Brady issues of some consequence in the case and a multitude of other issues that I had to deal with along the way. Ultimately, half of those defendants pled guilty. Most of those pleading guilty did so on cooperation agreements, so
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there was a great sensitivity and a need to keep people separated, which is something that we face in lots of cases where there are multiple defendants. Those cooperators ultimately received, as I remember, sentences in the range of ten to twelve years. Most of these people were in their mid-20s to early 30s, and I think they got sentences in the ten- to twelve-year range based on their cooperation, notwithstanding the statutory mandatory life sentence for the charged offense. The others went to trial, and the trial was a big management project for the court as these trials always are for the judges who happen to have the multi-defendant cases that go to trial. And with seven defendants in the courtroom and seven attorneys at a minimum, it was something we couldn’t do today with the pandemic, but when this happened a decade ago, we had some logistical management issues as well as legal management issues and wound up conducting the trial, dealing with all the issues either in limine or as they popped up during trial, evidentiary and otherwise. All of the defendants were ultimately found guilty by the jury and were, as the statute required, sentenced to mandatory life sentences. The case was appealed, and it went to the D.C. Circuit, and in an opinion that I think was over 100 pages long, the D.C. Circuit affirmed me on every issue in the case, which I was quite pleased about because usually on these big criminal cases, there’s some problem somewhere with respect to some defendant either in the charging, in the decision of guilt, the conduct of the
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trial, or the sentencing disparity, something, but I was affirmed 100% in that case, and took that appellate decision with some pride.
Now, I mentioned to you earlier that cases don’t end upon sentencing or even upon appeal. There were some habeas petitions filed, but ultimately what happened in this case was there was some alleged misconduct by one of the prosecutors, and it was more than a frivolous allegation. It might not, and I think may not, have been a successful challenge ultimately, but it was more than frivolous. As the government was defending the habeas 2255 petitions, they ascertained some things beyond what the defense knew with respect to some issues regarding this prosecutor, mainly outside of this case, but it made it difficult for them to rely on the prosecutor on some issues that I had required a proceeding on that would probably necessitate testimony. So the government ultimately agreed to provide relief to these individuals in the form of reducing their sentences and convinced me that I should go along with that, and I did go along with that. I demanded a lot from the government in order to go along with it, but I was satisfied that ultimately it was the right decision, and their sentences were all reduced down to the roughly 18-year arena, and they are all now I believe out of prison because they had a lot of time from the date of their arrest until the trial went forward, and they were detained that entire period of time, and with some good time credit for some of them at least, they all have now been released from prison. Not a 100% unsatisfactory result because even though this was an atrocious case
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deserving of a very, very serious penalty, it was a case where the victim died not through intentional conduct by most of the defendants, and so something less than a life sentence was not totally unwarranted. They all received lengthy prison sentences, but mainly because of the problem with the prosecutorial activity, primarily outside the context of this case, they ultimately got some relief.
With that, perhaps the best case to start with would be the one criminal case that I gave you on the list, which was the Quinn case, I think?
MR. COONEY: The Quinn case, which is criminal case that involved suppression of material evidence by the prosecutors in violation of the Brady doctrine.
JUDGE BATES: In the case that I just described to you, there were Brady issues, and I found against the defendants on those Brady issues for the government, and that was affirmed by the D.C. Circuit, although there were one or two issues that were close and difficult, and the D.C. Circuit acknowledged that as well, but I found for the government.
The Quinn case is that unusual case for me, at least, and for most judges I am confident, where relief was warranted because of Brady violations. This was an example of the type of problems and issues that may arise in difficult criminal cases. The case dealt with violations of the Iranian trade embargo, so in some ways, it had commercial overtones, but in other ways, it had national security overtones. Quinn was convicted by a jury and sentenced to a couple of years of imprisonment. Not a long
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sentence, but a meaningful sentence of imprisonment was received as a result of this. I allowed him to challenge the case on appeal post-sentencing without being detained. He had not been detained pre-trial or post-trial awaiting sentencing, and that allowed him not to be detained while a challenge was raised in the court of appeals. But ultimately, that challenge in the court of appeals was not really important because this case dealt with indirect shipments through another country, and so it was a little more complicated than otherwise might have been the case, and a key to the government’s case was the testimony of Quinn’s supervisor. That was a very important link in the government’s evidence both in terms of deciding to indict, getting an indictment returned, and in terms of the pre-trial proceedings and the anticipated trial proceedings. So the defense was consistently arguing that the supervisor was lying, was not telling the truth about what had happened, and mainly with respect to whether Quinn was told to go ahead with these indirect shipments through another country.
Ultimately, the government came to doubt the supervisor and whether the supervisor was telling the truth, primarily because of reviewing more closely, as they started to put together the case for trial, some emails. When they came to doubt the veracity of this key witness, a witness who was really supposed to be a primary element of their case and for the defense, was a primary vulnerability of the government’s case, the government did not inform the defendant of its doubts as to the veracity of
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this supervisor witness. What they did instead was they just didn’t call him as a witness, even though they had listed him as a witness, had intended to call him in the pre-trial proceedings, and had given the defense every reason to believe that he would be called, and indeed, the defense had built its defense in expectation of cross-examining this supervisor. There even was testimony from an agent with respect to what the supervisor had said, some of which came in during the trial.
Then Quinn was convicted, and he went forward to sentencing, and the government still did not inform the defendant or the court of its doubts about the supervisor witness. At the end of the day, post the sentencing of Quinn, the government accepted a plea from the witness, post-sentencing of Quinn, to making a false statement and actually convicted him by a plea of that offense. When that came to light during the course of the appeal, the defense said to the court of appeals, wait a minute. This is something probably that Judge Bates needs to address in the first instance, and the court of appeals agreed, and so it was basically one of these situations where it was remanded to me to give my view on that specific issue, and I gave my view.
It was a serious Brady problem, and ultimately, I concluded a very serious Brady violation. These were experienced prosecutors. That meant that this was a very big deal for them. As a prosecutor, you don’t want to be found to have violated Brady. Particularly you don’t want a conviction thrown out because of your Brady violations. So this was a big deal, and I
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treated it as such and issued a lengthy opinion, which you’ve seen, that concluded that Brady had been violated both at the trial setting and in the sentencing setting. In other words, the Brady violation had occurred not just with respect to trial and his conviction, but also then a second time, if you will, with respect to sentencing because the government did not divulge this problem in sentencing either, and that non-disclosure was ultimately the problem because the government knew enough, it had sufficient doubts, if you will, to raise its Brady obligations, and the defendant, in my judgment, had been prejudiced, particularly because the government agent, who was a witness in the case, could not be cross-examined based on the doubts as to the veracity of what the supervisor was telling them.
I also found a due process violation, but the thrust of the opinion is really a Brady violation. I think there have been only two occasions where I found Brady violations, and the other one was a much more minor thing, and probably of five or six meaningful Brady issues being raised in cases. It doesn’t get raised in every case, and sometimes it’s frivolous when it is raised. I recently had one where there was a Brady issue raised during the case, but it sort of evaporated, but I felt that I had to correct it at the end of the case, at the sentencing, by saying that I did not think it was a violation even when it occurred. But here, I clearly felt there was a Brady violation and issued a decision to that effect. It was not challenged on appeal, and the conviction was thrown out based on this violation, and the government
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did not proceed again against Quinn. Who knows, I think probably with the supervisor truthfully testifying at trial, probably Quinn would not have been convicted. It was a close case for the jury anyway I thought, so justice was done only at the end of the day because, of course, Mr. Quinn had to suffer through the consequences of being indicted and ultimately tried and sentenced for the offense. This was a significant criminal case in terms of dealing with these kinds of problems that arise in criminal cases.
Now, criminal cases are always here. Sometimes they’re busier than other times. The last year has been an extraordinarily busy time on the criminal docket of our court because of the January 6 Capitol cases, but most of the cases over the course of time are routine criminal cases, gun cases, smaller drug cases. But I think it’s always important for a judge to make sure that she or he takes that step back and remembers that every criminal case is exceptionally important to at least one person, and more likely to more than one, to the defendant, to any victims, and to family. These are very, very important events in people’s lives, and they need to be taken seriously by the criminal justice system of which we are a part.
So that’s what I sort of wanted to divert on with respect to criminal cases, and I know it’s taken some time, and I apologize for that, but I thought that was necessary to round out the work that is done as a federal judge and that I’ve done over the two-plus decades that I’ve been here, because if you just look at opinions, it looks like all we do is civil cases.
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MR. COONEY: Quite extraordinary. You seem to have memorized what you wrote in 2008.
JUDGE BATES: Well I’ve gone back and looked at these cases. I’m not remembering them off the top of my head. Like you, but it’s probably a quicker read for me. I’ve gone back and glanced at these cases, otherwise I would undoubtedly confuse issues in one case with another. Where do you want to go next?
MR. COONEY: The next issue on the list is the Committee on the Judiciary of the U.S. House of Representatives versus Myers. It’s a very interesting opinion. It must have been mandatory reading for all the lawyers who are working for the January 6th Committee, and it must have a long lifespan for the lawyers who are handling the litigations that have come out from the January 6th Committee where people were subpoenaed to testify before the Committee and they refused to when they invoked absolute executive privilege for their reason for not doing that. You had anticipated all the work that they were going to have to do and have done their research for them. At least going back deep, there has been Supreme Court decisions since then, that going back and really getting to the heart of the matter about the claiming executive privilege, you knocked the ball out of the park.
JUDGE BATES: I would say that even more than the January 6th Committee during President Biden’s presidency, it was an important case during the Trump presidency with the investigations that went on and the decisions by the Trump administration, officials in the Trump administration, not to
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cooperate with Congressional subpoenas. This was a decision that, as you said, had some lasting impact until this year, not 2022, but stretching back to the end of 2020 to now. Until that, it was really viewed as the leading authority on the obligation of high government officials to respond to congressional subpoenas. In other words, not just to ignore them and refuse to appear. It’s an executive privilege context, but it’s not an executive privilege decision because it doesn’t decide the assertion of executive privilege. It just deals with the process and what is or is not appropriate in the process. It was a major separation of powers test and contest between the Committee on the Judiciary of the House of Representatives and the White House because the person being summoned was Harriet Miers, then the White House counsel. It was only more recently with the McGahn litigation, again dealing with a congressional subpoena to the White House and specifically to the White House counsel that another decision was rendered, and that was Judge ’s decision a year-and-a-half ago in the McGahn case which followed to a T my decision in the Miers case and really relied predominantly on the Miers decision. So this is a real conflict in Washington between, in this instance the White House and the House of Representatives, and the question is whether a former White House senior official, the White House counsel in this instance, has to respond to a congressional subpoena by appearing and selectively claiming executive privilege as to specific questions or areas of questions, or may she instead simply refuse to respond, which was the
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position of the administration, at that time, the Bush administration. The context was the investigation of the mass firing of U.S. attorneys that had occurred, and for months there was bickering and negotiation between the House Committee and the White House, and eventually they reached an impasse, and that’s fundamental to this matter. It’s a fundamental part of the Judiciary actually becoming engaged and rendering a decision on the matter, because until that impasse is reached, it really isn’t appropriate for the Judiciary to enter the fray or step in to resolve the dispute. It’s only when that impasse is really insurmountable that the Judiciary should get involved. Otherwise, separation of powers or whatever doctrine, whether it be political question or some other doctrine, says Judiciary, stay out of it. This is a question between the two elected branches for them to work out. Once there’s an impasse, then the Judiciary can and should get involved because deciding subpoenas is something that’s not foreign to the Judiciary. It’s not like some other questions that might be really stretching the Judiciary’s expertise or involvement. The way this ultimately was addressed was primarily through that oh-so-typical doctrine of standing. Once again dealing with legislative standing, if you will, for the Committee on the Judiciary to bring a case to court challenging the resistance of the White House to even appearing in response to a congressional subpoena.
The case was unlike some of the cases we’ve discussed already, the Raines case from the Supreme Court, the Walker versus Cheney case
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that I issued, because here you have the full House approving the subpoena issued by the full Committee, a contempt citation, and a suit, all of which had been approved by the House of Representatives. So you weren’t dealing with a personal injury. That wasn’t really the question. Instead, you had an institutional injury to the House of Representatives itself. The Committee had been designated by the House of Representatives to vindicate that institutional interest of the House of Representatives in basically being stiffed by the Executive Branch in the face of a congressional subpoena. This type of dispute between the branches traditionally would be resolved by the Judiciary. There’s some, there’s not a lot of authority, but there are some lines of authority in terms of D.C. Circuit decisions that really supports that. In addition to cases, there also were OLC opinions to draw on, and I did that as well. There wasn’t really a question as to the legitimacy of the congressional investigation. Sometimes there might be such questions. Those were more typically pressed during the Trump years in response to some of the congressional subpoenas. There really wasn’t a question as to legitimacy of this congressional investigation.
I also had to deal with the question of a cause of action, and I did find that there was a cause of action derived from the Constitution, and that that could then proceed under the Declaratory Judgment Act. That too is a complex issue. The Article I authority of Congress to investigate sort of as an adjunct to its authority to legislate, I found did provide a right
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that was injured and therefore could be vindicated through a suit in federal court under the Declaratory Judgment Act.
All I decided, however, was that Ms. Miers was required to appear and respond to the subpoena, so she would have to respond to the questions asked. Now, she might raise executive privilege to some of those questions, but she had to go through that process in order to wind up with a more narrow dispute on particular subjects or questions as to whether an executive privilege assertion was appropriate. But this case is about how you get there and the process that’s necessary, and that it is required under our legal authorities that Executive Branch officials respond to the legitimate congressional subpoena and appear and assert privilege where appropriate, not simply decline to appear, saying some or all of this is executive privilege.
So I think it’s a narrow decision. I didn’t decide more than was necessary to decide, and as I said, other cases followed it in years afterwards, and until the McGahn decision, it really was the leading decision in this area, an important area, but not an area that’s frequently the subject of litigation. The case was appealed. There were further negotiations between the two branches that continued during this period. And then, of course, there was a change of administration, and with the change of administration, this was worked out, if you will. But as part of the resolution of the matter between Congress and the White House, it was agreed that my decision in the case would not be vacated, that it would
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remain on the books. Otherwise, one might have argued it’s moot, and therefore should be vacated. But there was an agreement between the two sides that it should not be vacated.
Now as I said, the McGahn case stepped in as another authority, and maybe now the leading authority. Who knows. It hasn’t been applied since. That case, of course, went to the D.C. Circuit after Judge Jackson agreed with my approach, and the D.C. Circuit, initially the panel, said no standing, in a similar context with a congressional subpoena authorized by the full House and by the committee of the full House. But then the court took it en banc, and in a pretty overwhelming vote, not all the judges on the court, I think there were only nine judges who participated, so it would have been a 7-2 opinion, they decided there was standing. The case went back down to the D.C. Circuit, which found no cause of action, but I think that too was vacated. I don’t have the exact history at hand, but I believe that ultimately happened. Miers was one of the most enjoyable cases I had, some interesting issues that required a lot of deep digging and careful thought and I think has stood the test of time fairly well.
MR. COONEY: It covered a lot of history. Very interesting. Having looked through the Nixon investigations to now see the full judicial explanation of how those issues were treated.
JUDGE BATES: We’ve been at this for almost an hour-and-a-half. Maybe we should do one more case in the interest of getting a little more done and try to be a little more abbreviated, and this will be before we get to the year, I guess it
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would be September 2010 to September 2011, which was a ridiculously demanding year for me because of two cases that I dealt with during that time period. We’ll talk about those next time. First, maybe it makes sense to talk briefly about Al Magaleh versus Gates, which is sort of a continuance of the Guantanamo series of cases that the court and I dealt with. Does that make sense?
MR. COONEY: Yes. That makes perfect sense. It’s a perfect case to draw the connections back to the Guantanamo decisions.
JUDGE BATES: This was a case dealing with the application of Supreme Court authority, the seminal Supreme Court decision in Boumediene dealing with or confirming actually, the habeas corpus rights of detainees held at Guantanamo. The case dealt with the application of that decision to detainees held at Bagram Air Base in Afghanistan after their arrest elsewhere. So basically what you have factually was individuals arrested in the, let’s call it the “war on terrorism,” although that’s an overused term, outside of Afghanistan, individuals arrested and then instead of being brought to Guantanamo where the Supreme Court has decided there are habeas corpus rights of those detainees, they were brought to Bagram Air Base and detained and questioned and so forth there. Close case. No question it was a close case. Difficult case, interesting case. I concluded that the suspension clause did extend to, and therefore habeas corpus must be available for, three of the four petitioners in this case. There was one petitioner who was an Afghan citizen and being held at Bagram Air Base
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in Afghanistan, and I had a different analysis for that individual. But for the other three petitioners, I decided that they did have habeas corpus rights based on Boumediene. And essentially it was applying the multi-factor test from Boumediene to these individuals at this location. Ultimately, the D.C. Circuit reversed and disagreed with my analysis with the application of those factors that I had engaged in. It really turned on applying a three-factor test in Boumediene that I divided out into six factors, but whatever, it was a novel case, a novel application. So some of the factors were exactly the same. Citizenship of the individuals, they weren’t U.S. citizens. The status of the individuals. They had been determined to be enemy combatants. The site of apprehension. Somewhere other than the place of the incarceration. All of those considerations were the same, except for that one individual that I mentioned because his citizenship did coincide with the place of detention. But for the others, those factors were the same. The adequacy of the process to determine the status of the individuals, that was pretty close to that that pertained for Guantanamo detainees. It was a little different. It was a little less actually, but it was pretty close, so that wasn’t a determinative factor. It was the other two factors that really determined the outcome here. The two keys were the site of the detention, what were the characteristics of the site of the detention, and were there any practical obstacles involved in extending habeas corpus to Bagram as opposed to Guantanamo. In the end, it was less control by the United States at
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Bagram than at Guantanamo. Even though it was on the military base, there were constraints in terms of how free the United States was to do what it wanted and what limitations applied. So there was less control of the site of the detention in this case at Bagram than there was for the United States at Guantanamo where there were treaty considerations that gave the United States much more longer-term control. And on the practical obstacle side, there were somewhat greater practical obstacles in the battlefield setting of Bagram than at Guantanamo, which was off of and far away from the battlefield. The D.C. Circuit saw these differences as being bigger than I did, and hence that swung the analysis for them, so that the Suspension Clause and habeas corpus did not apply to detainees taken to Bagram rather than to Guantanamo. It was a close case. There was no question about it, and I just saw it a little bit differently, except for that Afghan detainee for whom it was a much greater potential of friction with the Afghan government, and that was determinative for me in terms of the practical obstacles. So, an interesting case, a hard case. I’m not prepared to say that I was wrong. Other judges saw it a little bit differently than I saw it. I have a world of respect for the decision of the D.C. Circuit in this case. It was a careful analysis by judges I respect and their conclusions certainly are worthy of consideration and approval. But that doesn’t necessarily mean that I think I was wrong in my assessment. It was a difficult assessment, and until this day, I think there’s something a little bit uncomfortable or distasteful about the prospect of the United
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States being able to seize two individuals in, let’s say Indonesia. Everything else about them in terms of the seriousness of their conduct and everything else is the same except the United States decides okay, we’re going to take Individual A to Guantanamo, and we’re going to take Individual B to Bagram Air Base then. We don’t have a Bagram Air Base now because we don’t have a presence in Afghanistan, but then, to take the other individual to Bagram Air Base and have there be different results.
MR. COONEY: You’ve made that point several times in the opinion. The government could control the outcome of the matter by deciding in which jurisdiction to incarcerate the person.
JUDGE BATES: Which plane to put them on and take them somewhere. So again, these are the kinds of issues that came up in the Guantanamo arena occasionally. Difficult, novel issues because the most important thing to remember about the Guantanamo cases is that the judges were generally writing on a clean slate because there wasn’t a lot of precedent. There wasn’t a lot of history, and even as they got to the Supreme Court, these cases really were novel cases, and the Supreme Court had to deal with them in a novel context. And the Supreme Court by and large in terms of the process for litigation said that’s going to be up to the District Court. We’re sending that back down to the district court. Let the district court figure that out, and the district court did with the help from the D.C. Circuit at various points along the way. So maybe that’s a good point to end on for the day.
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MR. COONEY: Three big cases, I think this may be a good time to call it a day.
JUDGE BATES: And we’ll have to figure out when the next day will be. Let’s not try to figure that out now with our calendars, but I’ll get in touch. I’ve got some travel coming up and some busy times, but we’ll find a day.
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Oral History of Honorable John Bates
Seventh Interview
March 11, 2022
This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee is Honorable John Bates. The interview took place on Friday, March 11, 2022. This is the seventh interview.
MR. COONEY: John, how would you like to proceed here. We can discuss your tenure as Director of the Administrative Office of U.S. Courts or discuss some of your major decisions that you handed down between 2010 and 2012.
JUDGE BATES: I think it might make sense to continue with some of the decisions because that actually predates the AO, and I had already talked about one case, the Al-Aulaqi case in the 2010-2011 timeframe, and that was a very busy year, particularly with that case and another case that we can start with, and that’s the Shelby County case.
MR. COONEY: Very good. So we did the Al-Aulaqi case, and now we launch into the Shelby County case?
JUDGE BATES: Right. And it’s pretty significant. I would say Shelby County is an even more significant case in that time period for those law clerks, quite frankly, and Shelby County versus Holder took an enormous amount of time and effort within chambers from me and from the law clerks. There was a 15,000-page roughly congressional record that we wound up digging into quite deeply, and it eventually resulted in one of the most important decisions by the Roberts Supreme Court in that case a couple of years after my decision. And of course that decision by the Roberts
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Supreme Court, a 5-4 decision, reversed what I had concluded, and that stands as one of the most monumental, I think, decisions of the Roberts Court. And indeed Ruth Bader Ginsburg’s dissent in that case is a dissent that she’s very well-known for. My opinion therefore is really in the trash bin of history because when the Supreme Court acts what the lower courts have done becomes pretty incidental and technically is really largely vacated.
MR. COONEY: You were dealing with Section 5 of the Voting Rights Act, the section that changed history of the United States.
JUDGE BATES: Absolutely. A fundamental change to the history of the United States. I would have to say that the ultimate result in the Shelby County case is probably the biggest disappointment of my judicial career. I felt quite strongly about the issues before me and what the proper resolution was, and I would have to say that I remain to this day pretty disappointed in the ultimate result of that challenge, as you say, to the Voting Rights Act, specifically to Section 5 of the Voting Rights Act and the correlating coverage formula in Section 4B of the Voting Rights Act, which had been reauthorized by Congress in 2006, and that was the subject that was the challenge in court. And it had been reauthorized in the House of Representatives by a 390 to 33 vote and in the Senate by a 98 to 0 vote. There were a lot of legal issues in the case, a lot of factual development that was necessary in the case based on the congressional record. But it ultimately boiled down to a question of how much to respect the
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congressional judgment regarding these issues of reauthorization of Section 5 of the Voting Rights Act where Congress was really acting at what I thought was, and others agree, the zenith of its constitutional enforcement authority under the 14th and 15th Amendments because this involved both the quintessential question of race as a suspect classification – it is the quintessential suspect classification – and the question of the franchise, the right to vote, which is our, in many people’s minds, a quintessential civil right, because without that, we don’t have a voice. What had to be decided was whether the current conditions warranted the coverage formula in particular for inclusion in the preclearance requirements of Section 5. Section 5, of course, was the pre-clearance section of the Voting Rights Act, under which certain covered jurisdictions, initially the Southern states but then a couple of other states or parts of states, they would have to seek preclearance either from the Attorney General or through a court for any meaningful change to their voting requirements. And dealing with this, I issued another one of my long opinions, quite lengthy, and found that the record that was created before Congress, it wasn’t a record created before me, it was a record created before Congress, that there were current needs reflected in that record. We pored through the record. We found numerous examples in many different areas of what I felt were examples of racial discrimination in voting within the covered jurisdictions, and that was the factual basis
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upon which I upheld Section 5 and Section 4B based on the congressional conclusions reflected in that record and in the vote of Congress.
Now, this wasn’t an opinion on a clean slate. There were lots of preceding opinions dealing with the Voting Rights Act, upholding the Voting Rights Act with prior reauthorizations, and then there was an opinion of the Supreme Court a couple of years before this case in a case called Northwest Austin, in which the Supreme Court, I’m going to give a little bit of criticism of the Supreme Court here, in which the Supreme Court, through what essentially was dictum, cast some shadows over Section 5 of the Voting Rights Act. They didn’t decide the case based on the Constitutional challenge. They decided the case based on the bailout provisions, statutory provisions, but nonetheless, the Court, and it wound up getting eight Justices to agree to the opinion, said several things that really were questioning the continued viability of Section 5 and particularly of Section 4B, the coverage formula.
I think that the ultimate dissenting Justices in Shelby County probably regretted that they had joined into the dictum in the opinion in Northwest Austin because in the Supreme Court, that decision was really highlighted in the Chief Justice’s opinion for the majority.
So I can keep talking. If you have a specific question, please interrupt and ask it, John, but there were lots of legal issues relating to the congressional enforcement power under the 14th and 15th Amendments, and I dealt with those at length. Section 5, as I’ve said, of course seeks to
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protect the right to vote, that fundamental political right, against racial discrimination, which is, under our law, the most suspect classification, and the question was whether Congress in the reauthorization of Section 5 in 2006 had identified sufficiently a history and pattern of unconstitutional state-sponsored voting discrimination, and I concluded that Congress did, as was reflected in that voluminous record. There was both direct and circumstantial evidence, and it included what were called second generation barriers, things that weren’t as clear and overt as the original attacks on voting rights. But ultimately in the Supreme Court, more than before me, the case boiled down to the coverage formula. Now the coverage formula in Section 4B was not changed by Congress in the 2006 reauthorization, and it was, in fact, based on, let’s say old data. It wasn’t updated. And this posed somewhat of a quandary. It posed a quandary for me. It did in the Circuit as well and ultimately in the Supreme Court, and Northwest Austin had highlighted that concern. But in looking at the record, I concluded that there was sufficient evidence that the problems of racial discrimination in voting continued to be worse in the covered jurisdictions that had an established history of racial discrimination in voting, and I declined to second guess Congress’s judgment to preserve the coverage formula that targeted those jurisdictions that had a proven history of racial discrimination in voting and strong evidence of continued problems. It wasn’t that they were without evidence of ongoing problems. There was strong evidence of that.
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MR. COONEY: What really struck me about your opinion is the extraordinary depth you went into with the 15,000-page congressional record and how carefully you’d reviewed that. You also brought up the hundreds of prior objections that had been raised under voting rights where preclearance had been brought forward, and you had a lot of that material to explain situations in the past where Section 5 had been invoked. It’s been a while since I read that, but my feeling at the time was that the Supreme Court knew going into the case that they were going to rely upon the thought that the coverage had expired or at least had become old and stale. It’s like decisions I’ve seen in antitrust cases where injunctions were first issued and then many years later withdrawn because the world had changed so much in the interim. I thought that the courts, knowing that it was going to be relying on the coverage issue, may have explained why its coverage of the congressional records didn’t seem anywhere near as substantial as your coverage.
JUDGE BATES: And it wasn’t. That’s certainly true in the majority opinion. Now I think the dissent did cover the record quite thoroughly and was much more inclined, obviously, as I was to give some deference to Congress in an area where congressional authority was actually pretty high. Now the D.C. Circuit had affirmed by a 2-1 vote, but Judge Williams had really focused on 4B and that coverage formula, and the Supreme Court, as you say, probably took the case knowing that that might be where the main focus was.
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As Justice Ginsburg noted in her dissent, if you strike down 4B, you’ve effectively stricken Section 5 as well because Section 5 has no means of implementation without the coverage formula, and if you strike down the coverage formula, then Section 5 sort of stands there flapping in the wind. The Supreme Court did use some of its observations in Northwest Austin as a jumping off point and observed that the Voting Rights Act imposes current burdens and has to be justified by current needs, and I don’t think there’s disagreement with that from me, and it doesn’t matter if I disagree anyway. The Supreme Court has the last word.
The Supreme Court concluded that there was not enough evidence that things were now worse in the covered jurisdictions than they were in the non-covered jurisdictions and therefore the coverage formula was basically outdated, as you say, and had to fall. To some extent, and I think the Chief Justice said this at the end of his opinion, to some extent, it is a problem for Congress and was a problem for Congress. Congress had ducked this difficult issue of whether to, and if so how to, update the coverage formula. It would have been better perhaps if they had grappled with it and changed it or, if after the Supreme Court’s decision, Congress had come up with a new coverage formula. But as we know with the way Congress is these days, that wasn’t going to happen, and it was pretty clear that that would not happen, that a decision striking down Section 4B and effectively Section 5 would not lead to a new coverage formula from
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Congress. Congress is just too divided and wouldn’t be able to do it. That’s unrealistic, and I felt that that was unrealistic all along.
The Supreme Court decided to give a lot less deference to Congress and to Congress’s authority in this area, which is significant. They have a significant responsibility under the 14th and 15th Amendments and the Voting Rights Act, and to some extent, the Supreme Court relied on the doctrine of equal sovereignty of the states, a doctrine that hadn’t been applied in this kind of context before. It had only been applied in the creation of states. But they gave some passing credence to that equal sovereignty concept and to the state power to regulate elections as opposed to the congressional authority and responsibility with respect to elections.
Now, I thought that Justice Ginsburg wrote a very fine dissent joined by three other justices that basically said that the congressional judgment and the record established in Congress should be respected in this area, again where there’s a combination of race discrimination and voting rights, and she reviewed the record as I had and found substantial evidence of continuing discrimination in the covered jurisdictions that would warrant continued use and application of the coverage formula. It might not be ideal, but it’s what Congress had decided, and there was sufficient support for that. I’m not in the business of being critical of the Supreme Court or disagreeing with the Supreme Court, although obviously my decision and their decision were different.
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MR. COONEY: Well your decision was quite extraordinary. In my 45 years in Washington, I’ve never seen another case argued about among friends or at a Saturday night dinner than this case. The argument in one part was that there was plenty of justification in what the Congress had said to justify the conclusion that Section 5 needed to be continued in place because it had changed the United States when it was first instituted. But the other argument took Chief Justice Roberts’s argument, as I remember, the data that was in the coverage formula was data from the year that Nixon and McGovern had their Presidential election, 1972, so there was a strong case to be made that it was now totally out of date because the immigrant population of the United States, among other things, had changed so much in those years.
JUDGE BATES: You can’t avoid that. There is some validity and truth to that, and indeed, I just returned to the obvious observation that Congress just decided it was too difficult to grapple with the coverage formula and come up with a refined, more up-to-date coverage formula and sort of left it to the courts, and it didn’t survive in the courts. I think that this is one of those cases, and there are a handful of them from the past fifteen years or so of the Supreme Court, this is one of those cases that you have to look at the aftermath of the decision and what does the historical aftermath reflect. And it does seem to me that the decision in Shelby County really helped to open the door to a lot of state-sponsored or local voter changes that had discriminatory impact, and that continues today, with the absence of the
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preclearance requirement. It really gave much more freedom to impose these kinds of restricted voting requirements, and without Section 5, you’re left with Section 2, and Section 2 has not been very easy to apply, to deal with all those kinds of voting restrictions that have an impact on particular groups, racial or language-type, or ethnic impact, and I do think that the elimination of Section 5 has had a real consequence for our country, and it’s not altogether a good consequence.
MR. COONEY: That’s an extraordinary case to have been part of and to be able to lay out your thinking so well for the nine justices who had the responsibility to decide how to solve the conflict.
JUDGE BATES: It is, and this might be a good time to note another Section 5 case, which is the South Carolina versus United States three-judge court case that I was a part of. That decision came down about midway between my decision in Shelby County and the Supreme Court’s decision in Shelby County, and that was a three-judge court case that was a Section 5 challenge to a South Carolina change in the law. It was a new South Carolina voter ID law requiring a photo and, as I said, it came down before the Supreme Court struck Section 4B. Most of these kinds of cases wind up before three-judge courts, redistricting cases or Section 5 cases. The Shelby County case did not, and I had to issue an opinion, and I think the D.C. Circuit passed on that question as well, not in the same opinion that I’ve been referring to, but in a different Shelby County opinion affirming my taking jurisdiction over the case because of the unique features of the case. They
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crafted it carefully after, this is the Shelby County case, they crafted it carefully after Northwest Austin to avoid the courts being able to duck the constitutional issue. They made it a facial challenge with no room for bailout consideration or any other consideration, and because of that, it also meant that it didn’t go to a three-judge court. It went to me.
The South Carolina case went to a three-judge court. That was a challenge to the voter ID law in South Carolina and the three-judge court dealt with that. It originally, I can’t remember if it was filed with me or with Judge Kollar-Kotelly, and then a three-judge court was constituted consisting of Judge Kollar-Kotelly, myself, and Judge now-Justice Kavanaugh. We had a lengthy hearing in the case. The three judges took their assignment very seriously. We delved into the issues, factually and legally. The South Carolina law in that case, as originally promulgated and passed, was quite restrictive in its impact on minorities, and arguably, I think pretty much without any doubt, would have significantly burdened the African-American populace in South Carolina. But during the course of the litigation for the most part over the South Carolina provision, there were authoritative interpretations from the Attorney General in South Carolina and the senior election officials in South Carolina, all of which ameliorated the burdens that the African-American populace would face from this law basically by allowing people to vote anyway even if they didn’t have the photo ID if they could file a statement saying that they hadn’t had a chance to get it or whatever. But there were good state
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interpretations that lessened those burdens, and therefore, what the court did, all three judges agreeing, was to preclear that law. It was R54, the number of the law, I think.
On the other hand, what the court did was to not allow it to go into effect for the 2012 election because we were pretty close to that election. I think the opinion came out in October of 2012, so the election was only a month away. So in some ways it was a split decision. I think the process of reaching that decision was an interesting one. I don’t want to talk too much about the inside chambers discussions, but I will say that there was not unanimity originally. One of the members of the panel was inclined to uphold the law and allow it to go in effect for the 2012 election. Another was inclined to not uphold the law at all and therefore it wouldn’t go into effect in 2012 or thereafter. I was able to get everyone together on it because I thought that the authoritative interpretations that had been rendered were sufficient to sustain the law given some past Supreme Court decisions with respect to photo voter IDs. I thought that the authoritative interpretations by state officials were sufficient to allow preclearance of R54 but not to allow it to go into effect because it would have been chaotic to put it into effect for the 2012 election, and I got the other judges to agree to that course. And indeed I issued a short concurrence to that decision, and it actually found its way into the Shelby County decision because Justice Ginsburg cited and quoted my concurrence from the South Carolina case in her dissent and particularly the language that the South
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Carolina case demonstrated, now quoting from my concurrence, “the continuing utility of Section 5 of the Voting Rights Act in deterring problematic and hence encouraging nondiscriminatory changes in state and local voting laws.” I felt quite strongly that I needed to express that view in the South Carolina case, that this was an example of how the Voting Rights Act worked and worked well. There was a lot of testimony in the South Carolina case indicating that the members of the legislature had the Voting Rights Act in mind all along and were trying to do things, and the same with the state officials, trying to do things to comport with the Voting Rights Act, and it was that preclearance requirement and threat that really led them to moderate what some might otherwise have been inclined to do. And I felt that that was a strong endorsement for the Voting Rights Act.
MR. COONEY: So this is another very important voting rights case you’ve been on. The issue of is there time to put something new in effect before the elections is becoming a very standard problem for the Supreme Court. With the 2020 census, is there enough time to allow the change in the rule to go into effect or not. That was really the major issue in an Alabama Supreme Court case about racial discrimination in the setting of the areas in which candidates for the House of Representatives.
JUDGE BATES: You’re absolutely right. That continues to be an issue that the courts and even the Supreme Court face from time to time.
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So that was the end of that term, Shelby County and Al-Aulaqi, and it was a busy term focused on two cases in particular. But that’s not what is always true for a judge like me. We have a lot of more routine cases and a lot of routine parts to our job here on the District Court. Maybe I’ll take a moment just to discuss one aspect of the job, which is something called discovery. I think I gave you to look at a decision in a case called Parsi, a defamation case but that had some discovery issues. Discovery can be a very large part of litigation, as you know, and except for administrative law, where there isn’t really much discovery, we have cases on the civil side that have discovery and often have big discovery problems.
MR. COONEY: I’m delighted that you added the discovery case to your list of opinions to discuss because you have an extraordinary case this afternoon, and you’ve got two more enormous opinions coming up. Again, it’s just extraordinary to think how one person and a small number of clerks could have handled that much detail and come out with clear answers.
JUDGE BATES: On the other hand, we handle every day a multitude of cases, and some of them have discovery issues that arise. Now I will say that it has rarely been a significant burden for me or for my chambers to deal with discovery issues, but there are times that they do demand a lot of attention, and one of those cases was the Parsi case.
But let me explain my approach to discovery and how it came about. When I first became a judge, I was getting discovery motions in
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cases, maybe not a tremendous number, but enough that they took a fair amount of time from me and from the clerks to deal with, and I felt that often there was a simpler answer than requiring a motion of fifteen pages and an opposition and a reply and then hearing from the parties. Sometimes it seemed to me that there was a much simpler approach, and many judges on the federal courts came to that same conclusion as we increased the case management that judges asserted over the matters on their dockets. At one point, I was asked to help with an ABA panel that went around the country. I take that back. It wasn’t a panel that went around the country. I was asked to moderate panels in various cities that I put together dealing with case management issues and particularly dealing with how best to handle discovery issues, and there are different ways to do it. In some courts, magistrate judges handle all discovery matters. In other courts, the judges tend to do it themselves, and in some courts, it’s a hybrid, and it is a hybrid in our court. Some judges send some discovery matters to magistrate judges. But I thought that something short of formal motions practice was what was needed, and others reached that same conclusion. At these panels that I moderated around the country, I really helped to get out the word on a different approach to discovery, an approach which for me is the following. It’s different. The same approach has some tweaks that different judges do, but for me what it is is I don’t allow discovery motions. Instead, I ask a lot of the parties, and I ask a lot of their counsel. But if there’s a discovery issue that they can’t
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resolve, notwithstanding their good faith efforts, they are to get in touch with chambers. They’ll speak to the responsible law clerk and explain what the problem is. Not argue it. Just explain what the problem is. I will then decide how to handle it. It may be that the law clerk comes to me and says I’ve got these lawyers on the phone and they have this issue, and I’ll say well let me get on the phone with them right now, and I’ll resolve it that way. More often, I’ll schedule a phone call a day or two later at everyone’s convenience and deal with it, still through the phone conversation, but at a later date. Sometimes I’ll ask for a brief written submission, not on the docket, just submitted to chambers from each side of something like two pages, just to outline their view of the issue. If it’s a repetitive problem, something that has occurred repeatedly with these lawyers in this case that they’ve had discovery issues, I may bring them into the courtroom just so I can get my arms around the bigger problem and so I can talk a little more sternly to counsel in person than over the phone. But essentially in, I would say more than 90% of the cases, probably 95% of the cases where there is a discovery issue, I resolve it in this less formal way. It saves the clients money, and it saves the lawyers time. It saves me time, and it gets to just results just as frequently as a formal motions practice would.
Now there are some issues that require a motions practice. A good example is a privilege issue. A lot of privilege issues really do need to be litigated in a more formal way because there are both legal and factual
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elements to it and the court needs to see the fullness of each side’s argument. But that’s a very small minority of discovery disputes, and most of them can be resolved through this easier process. I’ve used that successfully, and I would say most judges on this court now use something like that to the extent that they’re not referring issues to magistrate judges. And the magistrate judges themselves use something like that as well to minimize the formal motions practice for discovery issues and thereby save money, time, and delay. You really keep a case moving that way. I’ve always felt that it’s good for the judge to be involved in the discovery issues rather than to refer them routinely to magistrate judges because it keeps you in touch with the case and it makes it so the parties know what to expect in terms of that issue and any future issues.
I will say that early on I did refer one electronically-stored information discovery issue, and those are sometimes potentially big discovery problems. I did refer that to a magistrate judge thinking the magistrate judge had some expertise in the area and could resolve it more easily. It took several years for those discovery issues to be resolved, and that was one of the reasons that I really decided that I’m not going to farm these out anymore. I’m going to do them myself. I can do it quicker. I’ll keep the case moving, and it keeps me in touch with the case.
Now in the Parsi case, there were repeated discovery problems and they related to experts, they related to electronically-stored information,
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computers, all sorts of things that I was handling on what seemed like a daily basis. It’s been rare that I’ve had a case that was mired down in such discovery issues. But when I do have those cases, you have to take them seriously. You have to deal with the discovery issues. You have to decide things. Sometimes the issues, when they boil down to sanctions, as happened in Parsi, can become pretty subtle, pretty close calls, pretty difficult, and I wound up issuing a fairly substantial opinion in Parsi dealing with all those different kinds of discovery problems that had arisen and imposing sanctions with respect to some of them. Not all by any means, but with respect to some of them. And it requires that close examination when you’re ultimately dealing with sanctions. That case was appealed, the discovery issues, and was affirmed in full, every aspect of it, by the D.C. Circuit in a lengthy opinion.
So, in my view, the district judge benefits from being engaged and therefore handling the discovery issues her or himself and also in being able to control abuses where they might occur. But on the other hand, as a routine matter, dissuading the parties from filing motions is a real benefit to the litigation because it avoids delays and reduces costs for clients on both sides, not just for the plaintiff or not just for the defendant, but both sides. So I have done that, and I really minimize, and I’m going to knock on wood when I say that, it really minimizes the discovery problems that I’ve had to deal with as a judge, and I certainly advocate that as an approach and have done so in various fora with respect to case
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management, and case management has become a much bigger aspect of being a district judge than it used to be. It’s highlighted more in the rules, and it’s certainly highlighted more in the teaching and training that new judges get.
MR. COONEY: You gave the plaintiff every chance to admit that he repeatedly tried to avoid his discovery obligations. I’d never seen something quite dramatic before.
JUDGE BATES: The case was a problematic, difficult defamation case dealing with pro- and anti-Iranian government viewpoints, so it was a case of great tension to begin with in terms of the subject matter, but it certainly gave rise to unnecessary and ultimately sanctionable discovery problems caused mainly by the plaintiff.
Alright. Maybe now is a good time to change hats and move into the brief sojourn in my judicial responsibilities to the Administrative Office.
MR. COONEY: So we’ll save United States v. Aetna and the NAACP v. Trump for the next interview?
JUDGE BATES: We may get to them, but maybe not. I think we’ll have time to get to Aetna at least.
MR. COONEY: So you were Director of the Administrative Office of the U.S. Courts for a couple of years and were appointed by Chief Justice Roberts to that position?
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JUDGE BATES: Yes. With the approval of the Judicial Conference. You have to get the approval of the Judicial Conference. The long-term director of the AO, it was very long-term, Ralph Mecham, and then Jim Duff was the Director of the AO, excellent director, and he left to run the parent organization of the Newseum, and he had the best office in town, on the top floor of the Newseum, which of course now is no longer the Newseum, just down the street from the courthouse. He left the AO to do that, and first the Chief Justice asked Tom Hogan from my court to be the director, and Tom did it for two years. There were some reasons for Tom to leave, not negative with respect to Tom, but some health reasons, so the Chief needed to find someone else to do it, and he decided to again ask a judge to do it, and I was still an active judge, and he eventually settled on me. I don’t know that I was the first choice, but he settled on me and asked me to take on that responsibility.
Judges are not trained as managers and running the Administrative Office of U.S. Courts is certainly something that requires administrative and management skills. Incidentally, two things. I kept a caseload as a district judge. Not a full caseload. My colleagues graciously took many of my cases, but I kept about a third of a caseload. I told the Chief that I wanted to do that because I didn’t expect this would be long-term, and he didn’t either. He only expected that it would be for about two years. That wasn’t made public, but he and I sort of had that understanding. So I kept a caseload, and what I did was I had Friday morning as my in-court time,
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so everything that I was doing with those cases, I would do on Friday mornings. I would come into the courthouse and do them, do any hearings that were necessary on Friday mornings. I didn’t try any cases while I was the Director of the Administrative Office.
Another interesting little tidbit, before I talk a little bit about the substance of the job, is that the Chief Justice asked me to take on this responsibility at just about the same time that he reversed my decision in Shelby County, so he was not looking for someone who would agree with him on all issues or he would agree with on all issues, and he was comfortable, notwithstanding the fact that he had ruled the other way on that very significant case than I had ruled, to nonetheless ask me to take over as the Director of the Administrative Office, a very important position for the Judicial branch.
MR. COONEY: In the Chief Justice’s press release to the world, he announced “he was a skilled administrator with broad managerial experience.” That must have been some consolation.
JUDGE BATES: I had some managerial and administrative experience, certainly in running the Civil Division of the U.S. Attorney’s Office, which is the equivalent of a then- medium-sized law firm of 45 or 50 lawyers, but it might be a slight overstatement to say that I had significant managerial and administrative experience. But I also had been the Chief Judge of the Foreign Intelligence Surveillance Court, and I knew the Chief Justice pretty well from that experience because I had to deal with him on some issues, not
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on issues related to cases, but on issues related to administrative matters and appointments and so forth.
So, the job. Director of the Administrative Office of U.S. Courts is much like running a small government agency. There are about 1,000, or a little more than 1,000, employees, most of them located in Washington, in the Thurgood Marshall building, which is that glass-fronted building next to Union Station, but some located at some other places where some of our IT facilities are and so forth. And then, of course, because the Judiciary is a decentralized system for governance with much of the governance being in the hands of the circuits and the chief judges of the circuits, there are overlapping personnel and responsibilities within the circuits and the AO, but it’s like a small agency that is supporting the courts. That’s really what it’s doing. It’s supporting the courts. And as I said, there are a lot of statutory requirements for the director and responsibilities for the director. The director is running the administrative side of the courts, or at least the centralized portion of the administrative side of the courts, with pretty broad responsibilities. Budget responsibility, for example, is in the director, and that’s a significant responsibility. Congressional relations and dealing with Congress. The Judicial Conference is, of course, something that is the primary policy-making body of the Judiciary, so the director is working closely and is part of that Judicial Conference process. Indeed, there are two officers of the Judicial Conference. The Chief Justice is the presiding official, and the
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Director of the AO is the secretary of the Judicial Conference of the United States. The director also has significant responsibility with respect to technology and security and these days cyber security and space and facilities. All of those issues really are focused in the Administrative Office, and therefore ultimately in the director who runs the Administrative Office. The director has a responsibility to make recommendations to the Chief Justice for all the appointments to the Judicial Conference committees. There are 26 Judicial Conference committees, and while I was the Director, I was giving recommendations to the Chief Justice, usually two or three people for any vacancy on those 26 committees. So it was a continuing and fairly time-consuming part of the job, not like it was the primary part of the job, but something that I took very seriously in passing on to the Chief Justice what I felt were good recommendations for appointments to the committees. I will say that, without talking out of school, I think I can just say that the Chief Justice did largely follow the recommendations that I presented to him.
Now, the job started out at a time when there was a reorganization of the Administrative Office. I didn’t design the reorganization. I was consulted slightly near the end, but that was basically something that happened under my predecessor as director of the AO. There was left to me however to implement the reorganization, and part of that of course was a reduction in force and it involved many personnel moves, some of which were not altogether easy or even pleasant. It was difficult at times,
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quite frankly, and it was particularly difficult because what joined with the reorganization was the budget issues that the government in general and the Judiciary, not being spared, as well faced, and that combination of the reorganization and the constraints on the budget that led to some reduction in the workforce were difficult, and, as I said, not always pleasant aspects of the job as Director during my tenure.
MR. COONEY: That’s very interesting. The Chief Justice’s memo for information refers to a budget of almost $7 billion. Obviously, it was going down during the reorganization, but that was quite a process that you had to jump into the middle of.
JUDGE BATES: There are excellent people at the AO, and this is something that’s very important for me to reiterate and confirm. There are really excellent people at the AO, in leadership and in staff, and that includes on the budget side. We just have had great people, and through their hard work and the leadership of the AO, the Judiciary has always had an exceptional relationship with Congress on budget matters. They have trusted the Judiciary. We haven’t overstated our needs. We’ve always been very transparent and very forthcoming with respect to issues and needs and prompt in submissions, and I think that relationship with Congress on the budget issues was very, very important. It was helpful to me. I hope that I sustained and reinforced it, but I didn’t originate it by any means. Others deserve substantial credit for how good that relationship has always been, and therefore, for how successful the Judiciary, generally speaking, has
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been in getting the money it has needed to conduct its business. I’ll say that at one point, the way the budget process works in Congress is, as you know, it often winds up with an omnibus bill, but there are separate bills, more than ten of them, covering different parts of the government, and one of those includes the Judiciary along with some other agencies. It did turn out at some points that the Judiciary was benefited from being pooled with some agencies that were in disfavor, shall we say, with Congress and therefore Congress was not inclined to give them all they requested or increase their request. But out of the pool for that particular bill sometimes we would benefit by being able to get more of what we requested because of the good relationships we had.
But that does take me to something that I think I would like to comment on, and that is what was my management and leadership style in this temporary position as Director of the Administrative Office. I knew all along I would not be there long-term, and so I wasn’t going to be making or initiating dramatic changes. I already had some changes to implement through the reorganization, and there were natural changes that had to be made from time to time, but I was not out to establish myself in any big way. That led me to really want to have people in the key positions who I thought highly of and who I could trust. I tried to make sure that the leadership of the Administrative Office was really filled with exceptional people, and I think we were successful in that, both by virtue of some of the people who were there already and some people we
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brought in. My management approach was to have people that I really trusted, to give them a lot of responsibility, to support them in the matters that they had to deal with, and to make decisions promptly, carefully, and considered, but promptly, to help things run smoothly. I tried to connect with the people, not only in the leadership, but in staff positions as well, and to be engaged in the issues. I was not a hands-off person because I tried to understand and be engaged, but I did defer wherever I could and show trust in the senior leadership of the Administrative Office and support them in their decisions and protect them from sniping from others. But that turned on there being really good people in those positions, and we were fortunate that we did have good people.
For appointments to Judicial Conference committees, I took that very seriously. I worked very hard to try to find the right people for the various committees and make recommendations to the Chief Justice, taking all sorts of factors into account, including diversity factors, experience factors, geographical diversity, et cetera.
One of the things that I did, because all directors do this, is I would meet new judges as they came onboard. Most new judges come to Washington for a training session, and part of that training session, they would stop by to meet me as the Director of the AO. And that was fun to see new people coming into the Judiciary and to have a chance to, in some instances, begin a relationship with them. I worked with many judges while I was Director of the Administrative Office, as well as all parts of
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the Judiciary, and that includes the committee chairs on the various committees, the chief circuit judges, and the chief judges of the district courts. Those three positions add up to probably about 130 judges, and I didn’t know all those judges well, but I did have some contact with most of them at some point.
I testified on the Hill a couple of times. I attended many functions as Director. I attended Judicial Conferences of the various circuits while we were having those. Now, in the last two years, we haven’t been having those because of the pandemic, but while I was Director, we were still having them.
MR. COONEY: That’s when the circuits can raise their problems with the leader of the organization?
JUDGE BATES: They can raise problems. I’d also give a report frequently at those Judicial Conferences, and it was always good to be there and to interface with the judges and to get to know them, but more importantly, to be able to talk about issues and problems. As I said, I knew that this was a temporary position, so I didn’t have any great aspirations in terms of impacts or innovation, but on the other hand, I took my responsibilities seriously, and the biggest issue, as it turned out, was running the courts in the time of severe budget cutbacks, and even the closure of the government. I needed to get judges marshaled, to have an impact with Congress on some issues, and as it started out, there were some chief judges of district courts and a couple of other judges that were starting to do something that I thought
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was too narrow in its perspective and ultimately might be harmful, and so I went to them and ultimately got all of them, I think it was more than 90 of the chief district judges, to sign onto a letter to Congress that was used in many meetings with members of Congress to address certain issues relating to the budget shortfall and particularly urging continued support and funding of the Federal Public Defenders, which are part of the Judiciary. Federal Public Defenders are actually under the umbrella of the Judiciary, and I dealt quite extensively with the Federal Public Defenders, the committee dealing with that, the staff that deals with them, and many leaders of the Federal Public Defenders across the country, on many other issues. That coordinated effort to get all of these chief district judges to sign onto a letter I thought was a great success, and I’m actually pretty proud of that. I thought it worked well for the Judiciary, and I compliment the judges who were involved in that and ultimately signed on to the letter. We took their initial letter and redrafted it and made it something that was broader in perspective and dealt with a number of issues that I thought interrelated.
I also worked quite extensively with the thirteen circuit chief judges, who are the real decentralized leaders of the Judiciary, and brought them together on one or two issues. I remember having I think two conference calls where I had to have all thirteen of those circuit chiefs on to keep a coordinated response to the funding lapse and the potential
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shutdown of courts and what we were going to do in the face of that shutdown.
MR. COONEY: You were there when the shutdown did occur for political reasons. One house of Congress decided to stymie the effort to continue the short-term extension of funds?
JUDGE BATES: That is correct. The Judiciary is in a good position when that happens because unlike most federal agencies, we have an independent source of financial support, and that is, I’ll just call it, the filing fees. So we are getting on a continuing basis money coming in through filing fees, and that is able to sustain us for a short period of time, even when there’s a government shutdown and no money is available through the budget process, and it’s usually about a two-week period. So that’s a protective backstop that we have in the Judiciary to rely on those filing fee funds to sustain us for a short period of time when there is a government shutdown.
MR. COONEY: The technology was important for a couple of reasons then.
JUDGE BATES: Absolutely. And I do think that I built strong relationships with the courts and individual judges and at the AO that have continued to date, and I also built a relationship with the Chief Justice because I would meet with him weekly on the issues of the day and on appointments as well. So we interfaced quite a bit, and that was a real good experience because Chief Justice Roberts takes his responsibilities as the leader of the Judicial branch very seriously. He is a good administrator and cares about the administration of the federal courts, and for that reason, it was a really
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good experience working with him as Director of the Administrative Office. I look back fondly at that time.
I look back fondly at the time as the Director of the AO. I learned a lot. I enjoyed aspects of it, but I never wanted to do it on a long-term basis. I always wanted to go back to being a judge. It worked out that Jim Duff was ready to leave his position as the head of the parent organization of the Newseum, and he came back in. So my predecessor and my successor at the AO as Director was the same person. Jim Duff came back into the position, and that was comforting as well because I knew the institution was in good hands.
MR. COONEY: Did issues arise during your tenure that you had to hand off to him, or could you give him a clean slate?
JUDGE BATES: There are always issues, but I think I handed things off to him in pretty good shape. There are always issues. There are some issues within the Judiciary that just continue from year to year to year. For instance, Congress looking at whether they want to create an inspector general within the Judiciary, questions of cameras in the courtroom, funding, budget questions repeat. So it’s never a clean slate, as you said, without issues. But I think I handed it off to Jim in pretty good shape with a minimal number of continuing problems. And indeed I took care of some issues that were very difficult. I remember one decision I had to make. There had been substantial investment in something including having consultants working on it. I looked at it, and I got people to look at it
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further. I decided this was never going to work. It was going to be a dead end, and I just put an end to it, notwithstanding that substantial investment, and there wasn’t a soul in the long run who thought that was a bad decision. Everybody wound up being very happy with it. There were other things like that that had to be dealt with, some of which were difficult, some of which had a little bit of sting in them for individuals or particular courts, but I think I wound up having good relationships, both internally within the AO and within the court system generally.
MR. COONEY: Can I ask you one question, and this follows naturally from your description of how you got to meet a lot of the new judges who were reporting for duty in Washington. What are your thoughts about the results of the process by which federal judges are appointed these days as opposed to the way it was done when you were first taking your seat?
JUDGE BATES: I think the process has gone downhill certainly substantially. It’s much more politically problematic, there’s such diverse viewpoints in the two political parties, and it carries over to the appointment of judges so that qualified judges, people who are very qualified to be judges, wind up getting 53 to 47 votes, which just don’t make sense because in terms of their qualifications, it should be 95 to 5, but the way the system has been transformed, it’s really difficult for anyone. I went through unanimously, notwithstanding the fact that I had been in the Whitewater Independent Counsel’s Office and had examined Hillary Clinton in the grand jury. She voted for me anyway. Today that wouldn’t happen. Everything is so
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politically charged. It’s worse on the appellate level, it’s even worse on the Supreme Court level, but it’s bad on the district court level as well. It’s really unfortunate, and I don’t see an easy way out of it.
MR. COONEY: You’d be one of the few people who’s in a position to make that judgment.
JUDGE BATES: Well, no. I think a lot of people are in the position to make that judgment, John. You included.
I can actually probably deal with the Aetna case now, and it might be a good idea to do it to get us far enough along so we only have at most two more interview sessions, and maybe less than two sessions, to go. So let me talk about that case.
Every once in a while, a judge on this Court gets a significant antitrust case. There are some going on now, the Google case, the Facebook case. There were some in the past. I had one merger case that was significant, but it wasn’t newsworthy, many years ago, I think way back in 2003 or 2004. But then along came these two cases, and I would get other antitrust cases along the way too, but usually they would be resolved fairly simply. They might be consent decrees, they might be real small matters, but in terms of significant antitrust cases, the Aetna case really was the most significant one that I’ve had, and it came along, along with another case. There were two mergers in the healthcare industry involving ultimately four, two for each merger, of the five largest healthcare companies. The one that I wound up handling was the merger
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of Aetna and Humana, but there was also an Anthem, and I can’t even remember who the other healthcare company was, Cigna maybe, merger at the same time. Both cases were assigned to me, so I had both cases, but I determined immediately that one judge could not handle both cases. These cases proceed on a fairly quick and very exhaustive basis, and it would not make sense for one judge to have both cases, so I told the parties that, and one of the cases went back and was reassigned, and Judge Amy Berman Jackson got it. So I kept the Aetna case, and it was a challenge, but an enjoyable challenge.
The case involved the merger of Aetna and Humana, and the Department of Justice brought a challenge to that merger of two of the largest healthcare insurance companies. It was a time-consuming case to handle and was the first big antitrust case I had since the Arch Coal case many years ago that I had mentioned. By the way, that Arch Coal case, I handled that over the course of four or five months, and that made me, in the view of the Antitrust Bar, an instant expert on antitrust, and I started getting invitations to all sorts of events. It continued on for years and years and years, all the way up to the Aetna case, that I would get invited to speak at the ABA meeting of the Antitrust Bar. I went up to the New York City bar and its antitrust meetings and actually published a little article as part of that presentation. So people think that judges become experts by virtue of handling one case, and I was still far from an expert
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on antitrust. But Aetna made me more of an expert because it was a big case.
Discovery is always a big issue in these merger cases, and what I did, and what judges have done in some of these cases, was I got a special master to help manage the discovery process, and it was an experienced special master who had done this in some other settings who I knew, who used to be a judge, and he did just a bang-up job, and it was a pleasure working with him. It enabled me to free myself from the day-to-day responsibility in terms of discovery, which was a substantial responsibility, and to only become involved on, quite frankly, rare occasions when it was necessary. That was very important in terms of managing the case, and I’m to this day grateful that I did that. I did stay connected and engaged in the case, and that too is important to me, but I was not overwhelmed by it in the pre-trial process. Getting the right special master is very important, and I did have the right one.
When we came to trial, of course I was managing that, and I did manage the trial. It was a bench trial. This was not an antitrust case which can be brought but that actually result in jury trials, but that’s where one competitor is suing another. This was a government-initiated case by the Department of Justice. Some cases are initiated by the FTC. This was a Department of Justice case, and I did manage the trial. It was a lengthy trial, but I did not let it become too lengthy. So I put limits on the amount of time each side would have with respect to their witnesses, and that
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worked very well. I think both sides were happy with that. We worked it out collectively. I didn’t just pick it out of the air. They had enough time for the trial to put their witnesses on. We used some written testimony so that it would speed things along a little bit, but not on the key witnesses. I thought it was important for me to hear the key witnesses from the get-go. Some of the expert testimony, the direct testimony, came in in writing, and then they would be cross examined and then redirected.
I did let the lawyers try their case, and in this context, that’s pretty easy to do because you have excellent lawyers in the Antitrust Bar generally speaking, and I had excellent lawyers, both from the government and from the private bar, handling the Aetna case. They really did a great job, and it was a complex factual case and complex legal issues as well. Complex economics, mainly through the experts. The discovery and trial testimony wound up being crucial to some parts of the case, in disclosing some issues that wound up being adverse, quite frankly, to the companies in terms of, one in particular, why they had left some markets, and it turned out that email exchanges revealed that they were doing so only to try to avoid the antitrust scrutiny that they otherwise would face. And for that reason, you couldn’t just exclude those markets. I ultimately enjoined the merger, a 155-page opinion to do so. The parties helped out a little bit on that. They submitted proposed findings and conclusions, so I was able to work from what the two sides had submitted, but it still was a fairly extensive effort involving all of my law clerks. I concluded that the
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merger should be enjoined because it would lessen competition, both in a broad geographic market for Medicare Advantage plans and also on a more limited basis, in three of the challenged, I think seventeen, markets on the public exchanges under the Affordable Care Act. That was a big effort but an interesting effort, and the law clerks loved it, and I enjoy those kinds of cases as well. They are intellectually stimulating, legally challenging. There was no appeal taken from my decision in that case.
MR. COONEY: That was an extraordinary job. Never having worked in the Medicare area before, how you managed to sort out such a complicated statute and then apply the record as it was developed in, especially the economics experts.
JUDGE BATES: I think that I understand Medicare and healthcare now, but it still is pretty much a foreign substance. But ultimately, Aetna, within a year I think of that decision, they didn’t appeal, nor did Humana, obviously, but within a year, Aetna was acquired by CVS, so there was a change made, but it just wasn’t the change they were trying to undertake with Humana. Humana, I think, has continued to thrive as a healthcare company and is still one of the larger healthcare insurance providers.
These cases, as I said, are intellectually challenging and satisfying, and the lawyers do great work. It’s a sophisticated Antitrust Bar, and it’s fun to have cases like that to deal with the lawyers on them. That should probably bring us to the close of this session.
MR. COONEY: I think that’s a wonderful place to end on such a high note.
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JUDGE BATES: I am going to start off our next session with a little bit of a detour that you and I haven’t talked about. I just want to detour for just a couple minutes on sitting on appellate courts, since I have sat on the Ninth Circuit, and I thought that would be worth just having a couple minutes of discussion on, and then we can get to those other cases, and then ultimately to my life in the Rules world, then close things out.
MR. COONEY: We can close this proceeding now.
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Oral History of Honorable John Bates
Eighth Interview
April 14, 2022
This interview is being conducted on behalf of the Oral History Project of The Historical Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee is Honorable John Bates. The interview took place on Thursday, April 14, 2022. This is the eighth interview.
MR. COONEY: Judge Bates, we have three decisions of yours from 2017 to 2019 to discuss, as well as the work you did on two major committees of the Judicial Conference, the committees on Civil Rules and the Rules of Practice and Procedure, both by appointment of Chief Justice Roberts. Do you have a preference on the order in which we should launch into these topics?
JUDGE BATES: I think we should do the cases first and the rules last, but before we do those three cases, I have one other thing to talk about.
MR. COONEY: Fine.
JUDGE BATES: Alright. So I’ll launch into that. It’s also in the same time period, it was in 2017 and went a little bit past that, not in terms of my work, but the cases. And that is, I did sit in 2017 on the Ninth Circuit. I’m asked from time to time to sit on circuits, principally the Ninth Circuit, and I’ve rarely had time. I’ve declined or something else has prevented me from doing so, but I did sit on the Ninth Circuit in 2017. There are only two circuits now that have visiting judges, the Ninth Circuit and the Eleventh Circuit. This one occasion on the Ninth Circuit, I thought I’d give a little bit of a
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review of since it is part of what I’ve done as a judge, and an interesting part.
I sat for two days. We did twelve to fifteen cases, although many of those did not receive argument. I’d say about half. We probably did about eight arguments during those two days. Fortunately in the Ninth Circuit, the judges on a panel share bench memos, so that cuts down the work a little bit. It’s a different experience, obviously, working on a court of appeals and on a panel because you have to convince others. You’re not deciding things by yourself. It’s an enjoyable experience, more of a collaborative experience among judges, but one that I’ve enjoyed doing on the few occasions that I’ve done it.
On this occasion, the judges agreed on most of the cases, as is usually the case. I made one compromise on a case that I sort of was leaning the other way, but I decided to go along with the flow and uphold the district judge because it was such a close call in my mind. But I did dissent twice from decisions. One was in a criminal case dealing with a sentencing guidelines question, but it was a small, relatively unimportant issue in the big picture of things, and so it’s just a dissent that has gone into the wastebasket of time.
There was another case on which I concurred. This was a fairly significant, not huge, but fairly significant immigration case. There was an issue that we all agreed on that was in my view the only issue that we needed to reach. It resolved the case, and we needed to go no further. The
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other two members of the panel, however, wanted to address this issue, perhaps within the Ninth Circuit. They wanted to lay down a marker or get their views out, but I did not, and I didn’t quite agree with them, and so I wrote a concurring opinion that simply said we shouldn’t be reaching the second issue.
And then on one case, the name of the case was Ross versus Williams, and the other members of the panel were Judge Sandra Ikuta and Milan Smith. They’re both fairly conservative judges, so I was probably the least conservative member of the panel. This case dealt with the application of Federal Civil Rule 15 and Habeas Rule 2 regarding a relation back issue, the relation back of an amended habeas petition that was filed after the statute of limitations had run. I gave deference to the pro se petitioner, as we do in many pro se settings, and dissented from the panel decision that the amended petition did not relate back and therefore the panel dismissed the petition. I interpreted Civil Rule 15 a little more liberally than the other panel members did. It was interesting. At that time, I was the Chair of the Civil Rules Committee, and Judge Ikuta was the Chair of the Bankruptcy Rules Committee. We knew each other well, and there we were, two chairs of rules committees disagreeing on the interpretation and application of rules.
I got a call from at least one, I think only one, Ninth Circuit judge shortly after the opinion saying that she agreed with me, but she was confident that the court would not take the case en banc. Well she was
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wrong. The Ninth Circuit did take the case en banc, and they vacated the panel decision and agreed with me, and Judge Ikuta and Judge Smith, who were members of the en banc panel – I’m not obviously – were only able to get one other Ninth Circuit judge to agree with them, so the vote was 8 to 3 to vacate the panel opinion. I had limited participation. I wrote a couple of memos because I was asked to in terms of my view on the issues and sent those to the en banc court, and that was that. It was an interesting experience sitting on the Ninth Circuit, but also an interesting experience being part of that en banc process that eventually went the way of my dissent on the panel decision.
So that’s all I wanted to say about the Ninth Circuit or sitting on circuits. It’s a nice thing for judges to do. We can’t do that in the D.C. Circuit because there’s only one district court, and the circuit judges feel a little bit uncomfortable with having a member of the District Court sitting on cases reviewing colleagues on the District Court, and I think that is a good reason to be cautious. It used to be some time ago that district judges here would sit once or twice on the circuit, but no longer is that the case. And most circuits now do not have visiting judges. They have judges from within their own circuit sit, but because there are multiple districts, they’re able to avoid the problem that I just described. And that’s a good thing, I think, in terms of developing collegiality and knowledge of each other, but that can’t happen here in D.C.
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MR. COONEY: Did you get a sense of a difference in approach with the en banc panel in the Ninth Circuit as opposed to what you’ve seen in the D.C. Circuit?
JUDGE BATES: Well it’s a fundamentally different approach in that they take so many cases en banc. I don’t think that the panel process, necessarily, was different than it is in D.C. There are little things about courts of appeals like when you meet after the argument who speaks first and things of that sort and do you share bench memos. So there are different process things, but there is not a great deal of difference in terms of how you approach the case. In D.C., more cases get argued proportionately. In the Ninth Circuit, fewer do. It still leads to many more arguments in the Ninth Circuit because there are so many more cases, but a smaller percentage of the cases actually get argued. The en banc process is different because so many cases go en banc in the Ninth Circuit, and when a case goes en banc, it does not go to the full court. It goes to eleven members of, I think, a 25-member circuit court, so it’s an en banc decision. It’s not actually a decision of the full court.
MR. COONEY: That’s very interesting.
JUDGE BATES: So we’ll get back to D.C. in this 2017 to 2019 time period. It’s interesting. Changes in Executive Branch administrations and presidential administrations do have an impact on the district court docket, sometimes greater than other times. It’s an impact that is seen most often in policy changes that affect things like environmental cases or antitrust cases or consumer cases or criminal cases sometimes. So there’s often a subtle
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impact that is felt maybe a year or two into the new administration. But with the Trump administration, the impact was more dramatic and quicker, a much more acute impact with the Trump administration. Things like FOIA, Freedom of Information Act, cases, ballooned during the Trump administration, so much so that our court got really overwhelmed with FOIA cases. There were so many of them. It even led me as a senior judge to limit the number of FOIA cases I was willing to take. That was one of the categories that I cut back on. But there are also things like government programs and other policies, immigration cases, that there really was a fundamental change in our docket engendered by the change in the administration in 2017.
The cases I’m going to discuss, all three of those, fall into that category because they all happened to be cases that dealt with challenges to policies that were implemented by the new Trump administration, and they were therefore cases that were greatly influenced or impacted by President Trump’s policies and approaches. And the first of those, and the most important of them, started in late 2017, and it went, for me, through 2018, so not a very long run, but a very intense run. I worked on what are known as the DACA cases, and that stands for Deferred Action for Childhood Arrivals, a program within the Executive Branch in terms of immigration policy.
The cases before me were brought by the NAACP, Princeton University, Microsoft, and a number of other plaintiffs. These were a
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challenge to the Trump administration’s recission of the Deferred Action for Childhood Arrivals program. There were several cases across the country, and ultimately, this went to the Supreme Court and was decided by the Supreme Court in June of 2020.
Along with the Shelby County case dealing with the Voting Rights Act and one or two others, I would say that this falls into the most challenging and impactful of the cases that I have had before me. And as I said, there were parallel cases in the Northern District of California, in particular, ultimately in the Ninth Circuit, and in the Eastern District of New York on its way to the Second Circuit. There had been two earlier, during the course of these cases, two earlier Supreme Court decisions. One, a decision on the shadow docket, at least that’s the name given to the recent phenomenon of the Supreme Court deciding many things outside of the traditional briefs in fully argued cases. Two times the Trump administration had brought aspects of these cases to the Supreme Court. One succeeding in getting a stay of discovery, not in my cases, but in other cases. And two failing to get the Supreme Court to take the issues at a very early time.
My cases, but they were consolidated, so it was a single case in effect, was in the APA framework. There was no discovery. No discovery was sought. And it really had a procedural focus, and ultimately I concluded that the Department of Homeland Security, the Secretary’s decision, a memorandum which was aided by a letter from the Attorney
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General, that that failed adequately to explain the conclusion that the DACA program was unlawful, and it failed because there was a limited legal analysis and unconvincing assessment of litigation risk. I wrote, I hope, a thorough decision dealing with complex issues. There’s always standing in these cases, John. Standing issues and reviewability issues, and ultimately remedy was a real issue as well. It really did turn on traditional concepts of administrative law applied in a somewhat unique and somewhat difficult setting, but they were fairly traditional concepts, the basic one being that an agency has to give a sufficient explanation for what it is doing. In this case, rescinding a prior policy of the agency that had also been created through an Executive Order.
So, remedy, as I said, ultimately was one issue. I did give the Department of Homeland Security another chance to support its reasoning in the decision it had rendered. That was a difficult decision to do that, but I decided that was the right thing to do. So I had vacated the decision but gave them 90 days to further consider it. One might have expected that they would have gone in a different direction, but they did not. It was a new Secretary by that time. The Secretary of Homeland Security issued a second memorandum along the same lines as the first memorandum, with a little bit more explanation and some policy reasons thrown in. I still found, however, after analyzing that, in the second opinion that I issued, that it was deficient under the Administrative Procedure Act, and I
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vacated the recission of DACA as a final decision by me in that second opinion that was issued, I believe, in August of 2018.
One of my main concerns, and I discussed it in both opinions, but one of my main concerns was what is called the reliance interest, the reliance by these DACA beneficiaries on the program and the benefits of the program and making decisions along the way with respect to their lives in the context of that program and the availability of that program. And that reliance factor, the reliance interest, was important to me. HHS had ignored it completely, and that was inconsistent with several Supreme Court cases.
Now, of course, I also found the legal argument unconvincing in part because they relied on the Fifth Circuit case regarding a similar program, DAPA, rather than DACA, the DAPA program, that really was not the same set of issues, and they relied in part on the fact that that case went to the Supreme Court. But what the Supreme Court did was affirm the Fifth Circuit by an equally divided court. There were only eight members on the Supreme Court at the time. I think it was following Justice Scalia’s death, and they divided 4 to 4. That has no precedential value, but nonetheless, the Attorney General and the Secretary of HHS thought that that was important.
But ultimately, as these cases always are, my decision was appealed, and in the meantime, the Ninth Circuit had decided the case arising out of the Northern District of California and had followed my
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reasoning on several points, as much as they followed the district judge, who was a great district judge, by the way, in the Northern District of California. They also followed me explicitly on several points.
The case in the Eastern District of New York had been appealed to the Second Circuit, and the Second Circuit had not yet acted. So the Supreme Court did jump in at this point and took the cases, therefore, they took my case without the D.C. Circuit being able to render an opinion. So my case was reviewed directly by the Supreme Court in this collection of cases that they dealt with. That was unusual. It was a little different for me having my case and not having gone through the D.C. Circuit before the Supreme Court took it for direct review. I think it turned out that my case was a little bit better vehicle for the Supreme Court to deal with because first of all, I did not wind up dealing with the Constitutional claims because partial summary judgment had been sought before me by the petitioners, the plaintiffs in the case, only on the APA claims. I didn’t have the complexity of discovery issues, and I was able to deal with remedy without having to face the question of a nationwide injunction, which is a very touchy issue and was becoming more touchy with the Supreme Court. So I think my case wound up being a little bit better vehicle for the Supreme Court to deal with the case, at least as far as it came out.
Now for the argument, the plaintiffs decided to get Ted Olson to represent them in the Supreme Court. You can come up with a number of
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reasons why they chose Ted. He’s obviously a very esteemed Supreme Court practitioner, although perhaps arguing fewer cases then than he had previously. I think this is the last case he’s argued. But I think that they chose Ted because they thought that having someone with conservative credentials representing DACA beneficiaries would sell well. It’s the same thing that happened on an earlier occasion when David Boies and Ted Olson joined up on one of the California provisions. But my view is that that doesn’t have any impact on the Justices. Choosing someone to argue because of who they are or what credentials they have has very little impact on the Justices. Perhaps some Justices are a little more polite to certain practitioners than to others, a little bit more polite, but I think it has minimal impact, and in this case, I think it had no impact as far as I could tell.
Now the argument was interesting in terms of the oral argument. It did reference, I don’t know that Ted Olson did this, but the other presenter who was from the NAACP, did do it quite a bit, really stressed certain things that I had decided and really flagged them, and I think used my name a couple of times during the argument. That, too, I think has little impact on the Justices the Supreme Court. Yes, I happen to know several of them. I know some of them fairly well. I think that has no bearing on the outcome of the case.
But as I said, this case turned out to be a little cleaner vehicle because it was APA, not constitutional. It didn’t have the injunction issue,
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and ultimately the Supreme Court decided the case 5 to 4 in an opinion by Chief Justice Roberts in favor of the DACA beneficiaries and affirmed my decision in full, relying quite heavily on the reliance interest. That was one of the key elements of the decision by the Supreme Court. As I said, they affirmed the judgment in my case in full. In the other cases it was more mixed because of the way they had come up procedurally and because the court did not agree on one issue that had been before them but not before me dealing with constitutional questions.
Before the Trump administration really attempted to cure deficiencies, since this decision came out in the summer of 2020, there was the election in 2020, and with that, a change of administration and change of policy. So that was the end of the line for the DACA policy, at least for the time being. Congress hasn’t been able to get its act together to do anything positive, so it remains as it was prior to the attempt to change the DACA program by the Trump administration.
This is one of those cases, John – there aren’t that many on a big-picture level in every case, that I feel that I have an impact and might make a difference, even if it’s just in deciding how to sentence a criminal defendant or resolving a discrimination claim. But this is one of those few cases where I really felt that I made a difference in the case, that I worked hard on it, in the way I approached it, in the opinions I wrote, and they were helpful to one higher court. It did not go through the D.C. Circuit, but to the Supreme Court, and so I look back on this case as I do on the
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Shelby County case as one of the highlights of my judicial career and one of the things I’m most proud of.
MR. COONEY: If I could make just a couple quick points. Two of my colleagues were approached by the plaintiffs in the case when it came to the Supreme Court, and they were asked to brief the reliance aspect of the case, and they certainly believed that your opinion on the reliance issue hit the ball out of the park. They used as much of it as they could, and it turned out very well in the final opinion.
JUDGE BATES: It actually wound up being something that the majority of the Supreme Court thought was an important aspect of the case.
MR. COONEY: One other point. I had a case in the early 1980s that was taken by the Supreme Court where the state of Texas had banned undocumented alien children from having a free public education in the schools. You had a case that was something like that but at a much higher level. You changed the lives of 800,000 people, and it must have been a wonderful feeling to know that if your teachers and parents were still alive, they would have understood that all the effort they put into training you paid wonderful dividends for the good of the country.
JUDGE BATES: I think it did make a difference, so I look back fondly and proudly.
MR. COONEY: Well you should.
JUDGE BATES: So should we move on to these other cases?
MR. COONEY: Yes. Let’s keep going.
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JUDGE BATES: They’re not as important, but they posed legal challenges for the Trump administration and the policies that the Trump administration was adopting. Now across the country, and in my court in particular, this was true. There were a lot of cases that were brought. There were challenges to the Trump administration policies, and my court dealt with lots of them. For the most part, the challenges were successful. I think there was a fairly high level of success in the lower courts in these types of cases, not as successful in the Supreme Court, but still, there were some notable successes. The census case is a notable case of a successful challenge. The DACA case is another one. But these two cases that I’m going to discuss are two more examples, but neither of them has gone anywhere beyond my decisions. One of them not being appealed, the other one being appealed but held in abeyance, and I’ll explain that in a minute.
Both of these cases are statutory interpretation cases. They have statutory interpretation issues. One is brought under the APA, as many of these cases are, but the second of the cases that I’ll discuss was brought under what’s known as FACA, which is the Federal Advisory Committee Act. But let’s talk about the other case first, State of New York versus Department of Labor. This was an attempt, I’ll describe it in the way I found it, an attempt to end-run the requirements of the Affordable Care Act for what’s called Association Health Care plans by changing the definition of employer in ERISA, and that’s because the definition from ERISA applies in the Affordable Care Act as well. It’s a pretty
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complicated setting, although the rule change itself was not that complicated, but the assessment necessary of the rules change under provisions of ERISA was fairly complicated. I found that the rule that had been promulgated was an unreasonable interpretation of ERISA, and I think this was decided in the spring of 2019.
This came about because of an explicit direction through an executive order by President Trump for the Department of Labor to expand access to these Association Health Plans, to that status, in order to avoid the requirements of the Affordable Care Act for smaller business entities. So the Department of Labor followed that direction that they were given and came up with this route to do so. But I found that the route they took, this definitional change to who was an employer, was inconsistent with the governing provisions of ERISA that the rule was purporting to interpret and apply. Again, there were preliminary standing issues in the case. In this instance, they were issues relating to the standing of a state – it was more than the State of New York; there were a couple of other states that joined in – to challenge this governmental decision under the APA. But I found that there was standing. A little bit of a close question, but ultimately not really a close question, and once I got beyond that standing issue and got to the merits of the question, I found pretty clearly against the Department of Labor. I gave very little, if any, deference to the Department of Labor’s interpretation of ERISA. Normally you would give some deference, but I gave little to none
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because this was in my view plainly an unreasonable interpretation of the ERISA provisions at issue. Indeed, it was really an effort that was at odds not only with the text of those provisions, those governing provisions on how you assess whether one is an employer, but also at odds with the purpose of ERISA by dramatically expanding who would be an employer within ERISA. The simplest way to describe the expansion was that it would expand through the use of this association health care plan, it would expand the definition of employer to include basically sole employer entities. It would make an individual who was in business for herself both an employer and an employee under these provisions and therefore make them come within this association, the Association Health Plan rubric, and that seemed to me to be at odds with what ERISA was all about as well as failing the statutory tests under ERISA. So I vacated the provisions of this rule from the Department of Labor. There was a severability clause in the provisions and that meant that the rest of it survived even while I vacated these particular provisions dealing with the employer definition.
There was an appeal filed, but this was another one of those situations where the appeal was late in the game in terms of an administration, and ultimately that appeal was filed, but it was promptly post-2020 election stayed, and it remains stayed. The technical term is held in abeyance. The appeal has been held in abeyance. The representation from the Department of Labor has been that there’s a new administration and they are reassessing the situation and what should be
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done. That’s been going on for quite some time now. But the appeal has not moved forward, and I don’t see any prospect in the near future of it moving forward as an actual challenge to the decisions.
There are two sides to this issue from a policy perspective, and I’m sure there was some, I know there was some, push post-Trump administration, some push by some to allow greater access through some method, whether it be a redefinition of employer or something else, but to allow greater access to Association Health Plans or some means to avoid some of the most stringent requirements of the Affordable Care Act that fall on the small business entities.
A significant decision I felt. An important decision. It got some publicity when it was going on, but it’s been pretty much below the radar since the time I issued the decision and with the appeal held in abeyance. But again, an Administrative Procedure Act question, statutory interpretation question, some complexity to it, some threshold jurisdictional or justiciability issues, particularly standing, and a demanding but fascinating case that is the kind of case that we get here in D.C. more than anywhere else, and that I in particular enjoy dealing with, these statutory interpretation questions, sometimes with constitutional issues, sometimes without, and often in the framework of the Administrative Procedure Act and the requirements of the Administrative Procedure Act. So that’s that case.
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MR. COONEY: I noticed that the Biden administration has been pretty aggressive in keeping abeyance cases from going forward.
JUDGE BATES: Yes. They have been on, it’s a handful of cases, but a collection of cases that have been in that posture now for some time.
Now the last case that we’re going to discuss, I think the last specific case that we’re going to discuss, which leads me to say this. You know I’m not done being a judge, so if someone wants to come back and talk to me again five years from now, I may have some other cases to talk about or other experiences to talk about. But the last case we’re going to talk about in this interview process is a case that I issued in October of 2020. A little bit higher visibility case. Again, came about because of the direction from President Trump through an Executive Order. Actually, this wasn’t through an Executive Order. This was through a memorandum directing the attorney general to establish a commission to study issues regarding law enforcement and the criminal justice system. Now this occurred during 2020, which was really a year at the height of racial concerns in the context of the criminal justice system and the application of policing methodology and policies to African-Americans in particular, the Floyd case and other situations. This was really at the height of those racial concerns. Ultimately this commission was to make recommendations to the President for actions to be taken to address crime, increase respect for law, and assist victims. So the subjects of the recommendations were skewed somewhat towards the pro-law
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enforcement ends by describing it as addressing crime, increasing respect for law, and assisting victims. But it really dealt with more than that in terms of law enforcement and the criminal justice system, and a challenge was brought to the creation of this commission by the NAACP Legal Defense Fund under, as I said, the Federal Advisory Committee Act. There were several issues that were raised, issues dealing with transparency, technical issues in terms of appointment of people, but the primary challenge was to the composition of the commission.
FACA, the Federal Advisory Committee Act, requires a fair balance in viewpoints that are represented on a committee that is subject to FACA. But here the commission members all came from a law enforcement background. Some of them were current law enforcement officials, others were past law enforcement officials, but they all came from a law enforcement background. There were no civil rights representatives, no criminal defense representatives, no community organizations or any other perspectives other than the law enforcement perspective that were represented on the commission. So this case was pretty strongly litigated, aggressively litigated. I don’t mean that in a derogatory sense. Aggressively litigated by both sides. It was another administrative law case, although not under the Administrative Procedure Act but instead under FACA, and a case where the relevant language, the language of the relevant statutory provisions, was important.
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Now I will note that it’s not hard to identify a policy problem with having a commission, particularly during these sensitive times, to look at law enforcement and its relation to the rest of the players in the criminal justice system when that commission is made up only of law enforcement representatives. There’s a policy question there. A policy problem, perhaps. I noted that in my opinion but quickly went on to say that’s not my responsibility. It’s not my job as a judge to assess and decide whether that’s good or bad policy. My job is to assess whether laws are being violated, procedural or otherwise, in the creation of this commission in this instance.
Now what were the first issues? No surprise. Standing issues, and they had to be decided. The fair balance challenge, that claim to the fair balance of the commission, posed an interesting standing question, but I found that there was a sufficiently concrete harm that arose from the denial of representation for the NAACP. Not that they were entitled to be on the commission, but that their viewpoint and the viewpoint of non-law enforcement perspectives should have been represented, therefore there was a concrete harm from the denial of that representation.
Beyond standing, there were other justiciability challenges based on the absence of what I would call judicially manageable standards. These issues were not easy issues either. They were fairly close issues, but I agreed with most courts that the provisions were justiciable. It was interesting. There was a D.C. Circuit opinion where, the way it played
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out, it was a concurring opinion, took a fairly strong contrary view, and you had to parse the other two judges’ opinions fairly closely to understand where they were coming out on this question. But I decided that these provisions were justiciable.
That brought me to the biggest issue in the case, a statutory interpretation issue, and that was whether this commission was exempt from FACA under a separate statutory provision that had created an exemption from the Federal Advisory Committee Act. I found that the commission’s meetings, both as to their purpose and as to their participants, did not satisfy the statutory test for the application of this exemption, so that this commission was not exempted from FACA. That was a fairly novel question as it was presented, and an interesting parsing of the statute was necessary. But ultimately, that was the conclusion that I reached and that’s pretty much the end of the game because the government had not offered any defense on the merits. In other words, if FACA applied and these plaintiffs were appropriate to bring the challenge, in other words, they had standing, then the government was basically conceding that FACA had been violated, that they had not complied with FACA in several regards, even with respect to the fair balance issue because they made no real defense of the selection of the commission members in the face of that challenge under the FACA fair balance provision.
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But again, sometimes remedy can be a problem, and remedy was an issue here, and it was a fairly interesting issue. In these kinds of settings, one thing that a court can do is impose what I will call a use injunction. In other words, what comes out of this commission cannot be used. I decided that that was relief of the last resort and should not be employed here, I guess really for two reasons. I may not have stated this completely, but one of the reasons was that in effect I would be enjoining the President from using information that this commission brought to his attention, and I thought it was a little bit uncomfortable to, in effect, enjoin the President from using the information. The other reason was that there were First Amendment implications here in entering the use injunction that prevented the use of this information. So with those concerns in mind, I decided not to impose a use injunction but instead said that whatever came out of this commission had to have a very clear and express disclaimer or caveat, and I crafted the language for it and required that that be on any copy of any report that came out of the commission, that it would have to include this very clear disclaimer and caveat saying that a federal judge had found that this was in violation of the Federal Advisory Committee Act. And that disclaimer was put on all of the copies of the report that came out. And I think that report has pretty much withered on the vine, if you will. I don’t think it has been utilized very much. Now one could say that there hasn’t been all that much done by the current administration with respect to these questions of law enforcement
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policy, criminal justice policy, but I’ll leave that for someone else to discuss in some other context. For my purposes, it was an interesting case, one that had some pretty interesting issues that I felt could have an impact. I didn’t know what the commission would come out with. I suspected, but I felt that the failure to have a balanced commission really was an important consideration, and under FACA, was a determinant consideration. I’m happy that I didn’t enter a use injunction because I think that would have been a bad precedent. Maybe it wouldn’t have gotten appealed. This case did not get appealed, in part because of the election and the change of administrations. After all, the report was due to come out October 28th of 2020. I issued my opinion October 1, 2020. It was important to me to get the opinion out before the report came out, and the election occurred a week after that October 28th date.
Anyway, so what came out of the commission has been, as far as I can tell, of very little impact in considering these important issues of racial justice and our criminal justice system.
So that’s the last case I’m going to talk to you about. Do you have any questions on it?
MR. COONEY: It’s been fascinating to hear about your approach to all these different decisions from your early days on the bench through modern times.
JUDGE BATES: I don’t want to harp on the Trump administration, but I do think it’s fair to say that there’s one other major impact from the Trump administration. Don’t get me wrong. I’m not making some determination of President
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Trump’s role. That’s up to others to assess, both in Congress and perhaps in the criminal justice system. All I’m saying is that the January 6 cases that we have as a court, hundreds of them now, are another major fallout from the Trump administration and have a substantial impact on the functioning of my court. They’ve impacted the criminal docket immensely in unprecedented ways. The first way is just the volume. The number of cases, it’s increased our criminal caseload severalfold and made the last two years very, very busy for the judges of our court. And the scope of the cases, they have such a broad range, from fairly minor trespassing-type incidents to major conspiracy or assault on police officer allegations, the criminal offenses and the volume and scope of those cases is really, really tremendous. There have been lots of issues, some of them because of the media and public focus on these cases. There are articles, sometimes several daily, in The Washington Post.
At first we had to deal with the detention questions. Normally these are decided by our magistrate judges, but because of the volume of them, many wound up going to the district judges, and these posed some challenging, close questions at times, as to whether to detain individuals for their conduct on January 6th. I’ve gone both ways on detention questions. Those have been difficult and demanding questions.
The biggest issue and delay in the cases, I guess there are two big delay issues. The first biggest delay is because of the volume of discovery. This is the largest criminal case effort that the Justice
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Department has ever undertaken, and it’s the largest discovery problem and issue and undertaking that the Department of Justice has ever faced. The number of videos, number of reports, the witness statements, just such a tremendous volume of material, and collecting, organizing, being able to search that material, producing it to the defense, both the case-specific material that obviously dealt with the individual defendant, and the global discovery, which may be of importance in some cases and is important for the government to fulfill its obligations by making it available to the defense. Those have posed numerous and very complicated discovery issues. I will commend the Department of Justice, the U.S. Attorney’s Office in particular, and the Federal Public Defender for the collective efforts in marshaling the forces to deal with those discovery issues. They’ve done a good job under very difficult circumstances, but it has been a slow process. There’s no question about it.
The other delaying factor has certainly been COVID. It has made it difficult over the course of the last two years to deal with these cases and certain aspects of the cases and certainly difficult to get cases to trial. So that has been a big issue. There are lots of legal issues regarding the application of some of the statutory provisions to the defendants, whether those are really appropriate statutory offences. And then there have been the issues regarding getting the cases to trial and sentencing people, either post-trial or post-plea. Lots of issues have come up.
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Some of these cases involve what I’ll call cause attorneys, attorneys who are really defending the cause that lies behind the January 6th events. The work on these cases is continuing, both by me and by other members of my court, and I have to say that I am extremely proud of my colleagues on the district court and the magistrate judges for the tremendous efforts that they have made on these cases and the work they have done on these cases. It’s really much like the Guantanamo detainee cases. It’s really a situation where unique circumstances made very heavy demands on the judicial officers, district judges, and magistrate judges involved. From my perspective, the judges have conducted themselves extremely well in handling these cases and ensuring that the criminal justice system works from both ends, both with respect to the interests of the government, but also with respect to the protections that need to be afforded to the defendants.
MR. COONEY: What percentage would you say of the cases go to jury trial and how many are tried by a judge?
JUDGE BATES: Well that’s an interesting question, and the book is still open on that. There have only been less than a handful of cases that have actually been tried so far. It’s just three or four, and one of those opted for a bench trial and was tried by a judge. But that’s a small sample of the overall volume of cases. So I don’t know how that will eventually play out. Statistically, nationally, 98% of cases get resolved short of trial. Some get dismissed, most get resolved by pleas, but a very small percentage, around 2%, go to
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trial of criminal cases. I think it’ll be a little higher percentage for these cases. Certainly some issues need to be tested, issues that are both tested before juries and that are tested in the courts, so I expect there will be a little higher percentage of cases that go to trial, but it’s not going to be, at the end of the day, a very high percentage. I’m confident we’re not going to see 20% of these cases go to trial because once you get a feel for what the juries are doing with the cases, that will educate both sides, and maybe some different compromises will be presented and reached. But whether more cases will go to a bench trial remains to be seen. The one bench trial, as you no doubt know, did result in an acquittal. That happened last week, I guess, and that may lead to more defendants asking for bench trials. Each judge is different, but I do know of one occasion where in the last couple of days that a defendant has asked for a bench trial before a different judge, not before me. But you would expect that there might be a few of those happening, and I don’t know whether there will be a wholesale move to bench trials as opposed to jury trials.
MR. COONEY: This does sound like the Guantanamo cases taken to the nth power.
JUDGE BATES: It really is. The uniqueness particularly. There were unique and difficult issues in those cases in terms of the process, in the discovery, and there are similar issues, different but similar issues, with these cases. Although these cases, the volume is an additional problem to overcome. We’re dealing with several hundred cases, and that’s far more than the Guantanamo setting had. But as I say, this is continuing, and it will be a
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part of my life for the next few years at least, as it is for all the judges on this court.
Should we gallop right along and move to rules?
MR. COONEY: Yes. That will be very interesting. It’s also very interesting to see how at the start of your career the criminal docket was a large percentage of your work, and now it’s off the charts.
JUDGE BATES: There’s no question about that. I’ve said to my law clerks several times over the past year that we’ve spent more time on criminal cases, some of it just status calls and the routine stuff that happens in criminal cases and sort of pushing on discovery, but more time on criminal cases than percentage-wise has been true in most years. I did observe, I think with you, in an earlier time that, from my experience, we used to try more criminal cases than we have in the recent years, not just because of COVID, but because the criminal docket has gone down, and we’ve tried fewer criminal cases. But this influx of January 6 cases is changing that. There are more trials occurring and that will occur. I would expect that I will have two or three January 6 cases go to trial this year, and the book’s still open on what will happen thereafter. But, on to Rules.
MR. COONEY: On to Rules.
JUDGE BATES: So, after I finished my term as Director of the Administrative Office, the question was raised how would I like to contribute to the Judiciary, because people in power knew that I liked to be a contributor to the overall federal Judiciary and wanted me to continue to be a contributor. And so
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the resolution of that was that I would take over as, and by take over, I mean assume the reins in the normal course of things, as another judge finished their term, as Chair of the Civil Rules Committee. It’s technically called the Advisory Committee on Civil Rules.
So it was fairly unusual for someone who had not been on that committee to take over as chair of the committee, but I had a lot of knowledge of the committee work. I had worked a little bit with the committee as Director of the Administrative Office. I had worked with the Chair of the Standing Committee on some issues, and so I was a known commodity, so it wasn’t totally out of left field. I did attend one or two meetings of the Civil Advisory Committee before I took over as Chair, just sort of as an observer, so I eased into the role as Chair.
Now, these Rules committees are also a unique animal. They’re a little bit different than most Judicial Conference committees, and as I may have said before, there are 26, I believe, Judicial Conference committees. These rules committees have a legislative approach. There’s no other way to describe it than as a legislative role. They promulgate the Rules of Procedure in five substantive areas, civil, criminal, appellate, bankruptcy, and evidence. In evidence, it’s the actual Evidence Rules. In the other four settings, it’s the Rules of Procedure for those types of cases. It’s a process that is very much legislative in its nature. It’s very intellectual because you’re dealing with complicated legal and procedural issues and
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even sometimes beyond that into historical questions and other fascinating areas.
It’s not the administration of the courts, which was an area where I had a lot of experience. Not only had I been on the Committee for Court Administration and Case Management, but I had been the Director of the Administrative Office, which is at its core an administrative function. But this was different.
The Rules Committees have a special place in the Judicial Conference committee structure. They have a statutory basis, unlike the other committees, and there’s a particular set of statutes. The Rules Enabling Acts, which is the vehicle by which rules are promulgated and that creates or dictates that there will be at least a standing committee on rules, and the way the structure exists with congressional approval is a standing committee with five advisory committees reporting to that standing committee.
The process, I’m going to give you the process in a nutshell just because it’s good to bear it in mind. With a rule amendment that has any complexity to it, the likely process is that this is raised with the relevant advisory committee. It may come from a member of the bar. It may come from a member of the committee. It may come from another judge. It may come from an academic. There are any number of sources of proposals for rule amendments. It comes to the advisory committee which
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grapples with it. They may grapple with it through the appointment of a subcommittee or otherwise.
From the advisory committee, there are reports for each standing committee meeting, but ultimately, there is a recommendation from the Advisory Committee for a rule amendment that goes to the Standing Committee. If there’s any complexity to it, it’s not unusual for the Standing Committee to have some questions, have some concerns, and to send it back to the Advisory Committee. The Advisory Committee will grapple with it further and bring a recommendation, perhaps the same, but perhaps a modified recommendation, back to the Standing Committee. Ultimately, the Standing Committee will approve, sometimes disapprove, but more often approve the recommendation of the Advisory Committee, and that will enable the proposed rule amendment to go out for notice and comment. Publication and the solicitation of comments from members of the public turns out usually to be some academics, some judges, some organizations, and you get that public comment, and based on that public comment, the Advisory Committee considers the matter again, may make adjustments, and sends it forward to the Standing Committee for final approval of a proposed rule amendment. If the Standing Committee gives that final approval, and, again, it may be sent back for further tweaking, but once the Standing Committee gives that final approval, the proposed rule amendment goes to the Judicial Conference for its approval and to the Supreme Court for its approval and then to Congress. Basically if
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Congress doesn’t act on the rule amendment that is proposed, then it goes into effect in December of that year, absent any action by Congress. That’s what we hope for. We basically send it over to Congress, and we hope that the fall leads to no activity by Congress with respect to the particular rule amendment that has been proposed.
So Civil, which is where I landed, is very active. It’s probably the most active of the Rules advisory committees, although that varies from time to time, but very active on some broad issues as well as more focused and sometimes even technical issues. Some of the big issues concerned discovery at the outset of my tenure, class actions, which changed Rule 23, the discovery issues dealt with some expansions of some of the rules and have been very well-received by the bar, and the same has been true of the class action provisions that have gone into effect and have been in effect now for a couple of years, those have been very well received and applauded by the bar.
There have been some other big issues. One that’s currently being grappled with is whether to have rules for multi-district litigation cases, and that’s been an on-going project now for the last three or four years.
Sometimes the process does take many years. I think the normal cycle is pretty much a three-year cycle from submission of the proposal, wherever it comes from, through the December 1st date of whatever year that the rule would go into effect is, for a normal matter, a three-year
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process. The more complicated matters, sensitive matters, it can be much longer, and it has been.
The membership of committees is a little bit unique. The Rules committees are unique in that sense too because they’re made up not just of judges, but also of representatives of the Department of Justice, academics, and private practitioners. The representatives of the Department of Justice are the senior Justice Department officials, the deputy attorney general is a representative with respect to the Standing Committee, and the heads – various assistant attorneys general – are representatives for the other committees. They can be very active participants and important participants. But this is unique among the Judicial Conference committees because there’s a much higher non-judicial representation on these committees. This work has enabled me to work closely with not just the members of the committees but also with the bar, with other judges, and it has been a very rewarding experience. It’s important for the Judiciary to get it right because these rules govern the justice system, whether it be the criminal justice system, the civil justice system, our bankruptcy system, our appellate process, we really need rules that work and that are sensitive to all the issues, and I have found that the committee members are extremely sensitive to getting the right rules in place and doing so through a fair and open process.
So, I did the civil rules for four years, and then I was asked, and the Chief Justice appointed me, to take over as Chair of the Standing
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Committee, which is the umbrella committee that all the rules advisory committees report to and through. It’s got a much broader purpose and responsibility because of the breadth of the rules that it deals with. It deals with all the sets of rules, whereas each advisory committee is dealing with only one set of rules. Sometimes there’s some overlap and coordination is necessary, but for the most part, each advisory committee is given only the one set of rules. The Standing Committee has reports from all the advisory committees and deals with all the sets of rules, so the breadth is much greater.
A lot of the work on rule amendments is done by the advisory committees, but final tuning does take place with the Standing Committee. Let me give two examples that the Standing Committee has been working with. One is the emergency rules that are currently under consideration. These are rules to deal with future emergencies like COVID-19 or different from COVID-19 that limit the ability of the courts to handle its responsibilities. We decided, and the Standing Committee was crucial in this, not to try to have rules that would change things in a non-emergency setting, but instead only to develop rules to deal with future emergency settings, and to give the responsibility for declaring that emergency to the Judicial Conference rather than having it remain with the Presidential declaration or having it be at a lower point in the pecking order with a court in particular.
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That’s been a coordination process that has been very interesting. Great work has been done by some of the reporters in that process, and they are an important part of this rules-making process as it goes along. They are academics who are very knowledgeable in their particular arenas and are of invaluable assistance to the committees as they do their work.
Another example of the sensitivity of things is something that the Appellate Rules Committee is currently dealing with, and those are rules with respect to amicus disclosures. This is something that came to us from the Supreme Court because congressional proposals were made as to the Supreme Court, and the Supreme Court doesn’t really have a process for this kind of thorough examination with respect to the rules, so they asked the Standing Committee, and then the Standing Committee referred it to the Appellate Rules Advisory Committee, to look at these questions of greater disclosures regarding amicus briefs in the appellate courts primarily, but presumably to serve as a model perhaps for the Supreme Court. There are already some disclosures that are required, but this would be enhancing those disclosures in a very meaningful way.
So that’s a little bit of an explanation of what I’ve been doing on the Rules. I have some time left as Chair of the Standing Committee, but it’s been a good run for the last seven years or so working on rules issues and it is something that I’ve enjoyed and particularly enjoyed working with all the players in that process, both at the Rules office, which is staffed out of the Administrative Office of U.S. Courts, and then with the
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committee members, other judges, academics, and members of the bar, and the reporters especially, who are crucial in the process, and we have really top-notch people who are in the academic arena who are reporters on the advisory committees and on the Standing Committee.
So, with that, questions?
MR. COONEY: Are there functions that are unique to the chair on the committees?
JUDGE BATES: Absolutely.
MR. COONEY: These do go to Congress, so is the Chair the liaison to Congress on these issues?
JUDGE BATES: A little bit. There’s a process that works because this is so frequent and routine that there’s a process that works that doesn’t wind up with the chair having to do that much other than review things. But there are occasions where the Rules community has an interest in proposed legislation and then the chair of the Standing Committee gets involved and perhaps sending communications to Congress. I’ve done that, and my predecessor has done that. Sometimes I do that in conjunction with the chair of the particular advisory committee that is impacted. There are policy issues that come up in terms of how the committees function and concerns over issues that have to be resolved. Sometimes they’re pretty complicated, and sometimes they’re pretty sensitive. Something that the chair is intimately involved in, or at least I have been intimately involved in as Chair, and perhaps this is in part because of my past role as Director of the Administrative Office, it is in making recommendations for
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membership on the committees. The committees’ membership is determined by appointment by the Chief Justice, but he needs to receive recommendations, and I generate those recommendations through the Director of the Administrative Office and present the Chief Justice, shall we say, with a slate of possibilities for any particular vacancy. And sometimes it’s difficult to find the right people for those positions. I think I’m not talking out of school when I say that the Chief Justice takes his responsibilities for appointment to all the Judicial Conference committees quite, quite seriously, but perhaps even most seriously with the Rules Committees, that he views are particularly sensitive in terms of the functioning of the federal judiciary. And indeed, he was on the Appellate Rules Committee. Justice Gorsuch was on the Appellate Rules Committee and was briefly Chair of the Appellate Rules Committee. Justice Kavanaugh was on the Appellate Rules Committee. The Justices of the Supreme Court, when they were circuit judges, frequently have been members of rules committees, and they have a sense of the importance of those committees and the work of those committees.
MR. COONEY: By the time they get to the Supreme Court, they’re very well informed about how the judicial function operates.
JUDGE BATES: Absolutely. By the time they go into effect, these rule amendments, they are very thoroughly vetted, in part by the Supreme Court, which, as you said, has members who are very familiar with the rules process.
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MR. COONEY: Well thank you very much. I don’t have any more questions today, and I think we’ve now been through eight 2-hour sessions.
JUDGE BATES: We’ve only been at it for an hour-and-a-half. Let’s not give us more credit than we deserve. But yes, it has been most enjoyable, John, in large part because of you. I appreciate the effort you’ve put into it and how gracious and comfortable you are and how enjoyable it has been just to chat with you about my career. I’m not all that comfortable with this concept of talking about myself, but you’ve made it easier and more comfortable, and I appreciate very much all the effort that you’ve put in.
MR. COONEY: Thank you. And as I’ve said several times, there are two audiences. One will be an immediate audience, and the other is history, so this is going to be very valuable on both fronts.
JUDGE BATES: Let’s hope it’s of some value. It certainly has been of value to me. It’s been nice to relive it, and maybe now when my family members ask me about something, I can say go read these transcripts.
A-1
Oral History of Honorable John Bates Index
Adams, Cary, 59, 64, 67
Administrative Office of the U.S. Courts, 118, 121, 235, 287
Administrative Procedure Act, 87, 260, 269, 271
Aetna (case )See United States v. Aetna
Affordable Care Act, 251, 266-67, 269
Agnew, Spiro, 60 Al-Aulaqi v. Obama (case), 216, 229
Al Magaleh v. Gates (case), 211
Ali v. Ashcroft (case) See Omar Abu Ali v. Ashcroft
Ali v. Gonzalez (case), 162-63, 167, 171
APA. See Administrative Procedure Act
Appellate Rules Committee
amicus disclosures, 287
Arch Coal (case) See Federal Trade Commission v. Arch Coal, Inc.
special master, 248
Ashcroft, John, 174
Association Health Care, 266, 268
Azar, Alex, 103
Baker, Tim, 60
Bates, Brian (son), 76
Bates, Carol Ann Rhees (wife), 4-5, 24, 30-31, 74-76, 80, 106, 114, 161
non-profit assisting AIDS orphans in Ethiopia, 78
sailor, 57
teaching, 77
Bates, Jenny (daughter-in-law), 76
Bates, Jim (brother), 4
Bates, John – Personal
anti-war movement, 25
assassination of Martin Luther King, 33
assassination of Robert Kennedy, 33
birth Elizabeth, New Jersey, 1
Civil Rights Movement influence, 22
high school
basketball, 15
gravitated towards math and sciences, 15
sports, 17
junior high school
racially and economically diverse, 9
military, 34, 36
13th finance corps, 4
Advanced Individual Training (AIT), 38-39
Air Cav (Cavalry), 48-49, 52
AIT See Advanced Individual Training
A-2
An Khe, 48-49, 51-54
AP Hill (now Fort Walker), 42
Bagram Air Base, 211-14
habeas corpus, 212
basic training, 37
field exercises, 44
finance school at Benjamin Harrison Indiana, 47
finance corps, 46-48
Fort Dix New Jersey, 37
Fort Knox Kentucky, 46-47
Fort Leonard Wood Missouri, 37
Fort Sill Oklahoma, 38
Fort Belvoir Virginia, 41
engineering, 40
infantry, 40
leadership training, 41, 44
Officer Candidate School, 34, 37, 41-42, 45-46
engineering, 40
Qui Nhon, 48-52, 54, 56
Viet Cong, 49, 51-52
volunteering, 34
New Hampshire family vacations, 12
philosophically moderate, 68
Pingry School (private high school), 13
President Kennedy assassination impact, 22
public high schools in Elizabeth, New Jersey
segregated by gender, 10
religion
church youth organization, 18
church-attending family, 5
Robert Morris Grammar School, 8
summer jobs, 20
transitions
from Officer Candidate School to first assignment, 44-45
from Vietnam, 59
transition to clerkship, 65
University of Maryland Law School, 25, 29-30, 58-59, 65
applying, 58
law review, 63-64
editor, 64
Milliman, Mike, 62
Reynolds, Bill, 62
upper-middle-class family, 5
Vietnam War impact, 24
Wesleyan University, 3, 19, 24, 28, 30, 32-33
freshman basketball team, 32
A-3
graduation, 36
youth baseball, 11
Bates, John – Professional
administrative cases, 134
Administrative Office of the U.S. Courts
Director, 139, 160, 216, 234, 236-37, 240-41, 245, 280-282, 288-89
al Qaeda, 165, 169
Arch Coal discovery, 250
Blue Cross Blue Shield Association, 111
bombings
embassies in East Africa, 165-66
embassies in Lebanon, 165
case management, 125
caseload, 119-20, 122, 124-25, 129-30, 235, 276
challenges during transition onto the Court, 128
change in docket engendered by change in administration, 258
CIA, 95, 180
complex cases, 149
confirmation hearings, 114-16
court reporter, 122, 191
courtroom deputy, 191
criminal cases
discovery, 280
docket, 129
sentencing, 196
criminal law, 159, 194
D.C. Bar Board of Governors, 98
D.C. Circuit Rules Committee, 89
Deferred Action for Childhood Arrivals (DACA), 258
decisions, 143
discovery, 61, 74, 127-28, 169-70, 259, 262, 279
issues, 74, 128, 229, 230-34, 277, 284
East African embassy bombings, 165-666
empathy, 146
executive privilege, 205, 206, 209
False Claims Act, 111
investigatory work, 111
First Amendment expertise, 83
Foreign Intelligence Surveillance Court (FISC), 145, 188
Chief Judge (Presiding Judge), 176, 178, 186, 236
administrative responsibilities, 180
Frank Bernstein (law firm), 70
Guantanamo
cases, 145, 163-64, 167, 170, 214, 279
issues, 165
Hezbollah, 165
A-4
important cases that are fairly unique, 151
injunctions, 221, 239, 262-63, 274-75
Iran, 166-67, 234
support of terrorism, 165
trade embargo, 200
January 6 cases (January 6 Capitol cases), 130, 204
detention questions, 276
discovery, 276
judicial philosophy, 142, 146, 158, 178, 189
separation of powers issues, 193
law clerks, 30, 123-25, 155, 191, 216, 250-51, 280
assignments, 134
role, 130, 132-34, 147-48, 194-95
Lebanon embassy bombing, 165
Legal Aid, 60, 63
leave private practice and go into the U.S. Attorney’s Office, 80
Miller and Chevalier, 103, 110-12, 117
Chair Executive Committee, 111
Chair Government Contracts and Litigation, 111-12
NAACP v. The Combined Federal Campaign (case), 93
Ninth Circuit sitting, 253
Office of the Independent Counsel, 98-100, 103, 105, 106-08, 111-12, 114, 117, 127, 246
Deputy, 100
interaction with the Department of Justice, 185
interface CIA, 180
relationships with the media, 102
opinions
approach to writing, 148
drafting, 133
writing process, 149
pandemic, 134, 137
backlog of cases, 131
pleas and sentencings, 130
privilege issues, 231
pro bono work, 63, 72, 112
railroad reorganization case, 73
reliance interest, 261, 264
river erosion case West Virginia, 74
rule of law, 143, 189
salaries of judges, 137
separation of powers, 153, 155-56, 163, 193, 206-07
cases, 159
special master, 249
Steptoe and Johnson, 70, 72-75, 77
employment discrimination cases, 71, 81
Sudan and Osama bin Laden, 165
A-5
teaching
Georgetown, 176, 189
University of Arizona Schools of Law, 189
thoughts on federal judge appointment process, 246
thoughts on private practice, 69
transition from becoming a member of the bar to a sitting judge on the Court, 117
transition out of the position in the U.S. Attorney’s Office, 96
U.S. Attorney’s Office, 60-62, 68, 74, 81-84, 87, 93-94, 96-99, 105- 07, 110, 112, 117-19 152, 236, 277
administrative cases, 132
Civil Division Chief, 80, 82
class action cases, 83
employment discrimination class actions, 89
Division Head, 90
False Claims Act cases, 84
First Amendment work, 83
jury trials, 85
U. S. District Court for the District of Columbia
lack of formal training coming onto Court, 119
personal relationships between judges, 135, 137
U.S. Judicial Conference
Advisory Committee on Civil Rules Chair, 255, 281
Committee on Court Administration and Case Management, 159-60, 162
cameras in the courtroom, 160
Standing Committee Chair, 285-86
Washington Lawyers’ Committee for Civil Rights Under the Law, 112
West Virginia depositions, 75
Bates, Kelly (daughter)), 76
Bates, Lauren (daughter), 75, 77
Bates, Pat (sister-in-law), 5
Bates, Richard Doane Junior (brother), 2-4
Cornell, Columbia, Professor at Georgetown, 4
Bates, Richard Doane Senior (father), 2-4
Singer Manufacturing, 3
World War II, 7
Bates, Ruth Ann (sister in law), 4
Bates, Sarah Deacon (mother), 2
Bradford College, 3
Bryn Mawr Pennsylvania, 2
Bates, Susannah (sister), 3
Wheaton College in Massachusetts, 4
Baueris, David, 40
Bazelon, David, 88
Berenson, Brad, 114
Biden, Joe, 205
administration, 270
A-6
Bivens (case), 81, 85
Boasberg, James, 135
Boies, David, 95, 263
Boumediene v. Bush, (case), 211-12
Bradley, Tim, 122-23
Brady Handgun Violence Prevention Act, 197, 200, 202-03
Briggs, Tupper, 57
Bryant, Bill, 87, 94
Buell, Richard, 29
Bugliari, Miller, 15
Bush, George W., 174
Bush, Graham, 59, 65
Zuckerman Spaeder, 59
CACM See Judicial Conference Committee on Court Administration and Case Management
CCNV See Community for Creative Non-Violence
Chamblee, Sandy, 72
Chertoff,, Mike, 101
Christian Knights of KKK, Inc. v. District of Columbia (case), 97
Church Committee activities, 172
CIA, 95, 176
Clark v. Community for Nonviolence (case), 86
Claybrook, Joan, 111
Clement, Paul, 140, 153
Clinton, Hillary, 104, 115, 246
Colloton, Steve, 103
Committee on the Judiciary of the United States House of Representatives v. McGahn (case), 206, 209-10
Committee on the Judiciary of the United States House of Representatives v. Miers, 206, 209-10
Community for Creative Non-Violence, 86, 93
Consideration of Deferred Action for Childhood Arrivals (DACA) 260-61, 263-64, 266
COVID, 77, 79, 142, 151, 160, 176, 189, 277, 280, 286
January 6 cases, 277
Cummins, Elijah, 64
D’Amato, Al, 101
DACA See Consideration of Deferred Action for Childhood Arrivals
Declaratory Judgment Act, 208
Department of Homeland Security, 259-60
domestic terrorism, 172
Duff, Jim, 235, 245
Edwards, Harry, 86, 88, 90
Edwards, John, 115
emergency rules, 286
Employee Retirement Income Security Act, 266-68
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ERISA. See Employee Retirement Income Security Act
FACA See Federal Advisory Commttee Act
fair balance challenge, 272
False Claims Act, 84, 92
FBI, 169
Federal Advisory Committee Act (FACA), 266, 271, 273-75
Federal Communications Commission, 140
Federal Public Defenders, 243, 277
Federal Trade Commission v. Arch Coal, Inc. (case), 248
special master, 248
Fifteenth Amendment, 218-19, 223
First Amendment, 62, 83, 85, 87, 92, 96-97, 274
FISC See Foreign Intelligence Surveillance Act Court
Fitzgerald, Jim, 57
Floyd case See State of Minnesota v. Derek Michael Chauvin
FOIA, Freedom of Information Act, 258
Foreign Intelligence Surveillance Act, 170, 172, 174, 176
Foreign Intelligence Surveillance Act Court, 170-71, 174, 176-77, 179, 183-84, 188
forum shopping, 184
limited amicus participation, 185
Foreign Sovereign Immunities Act, 163, 165, 167
Foster, Vince, 102
See also Whitewater
Fourteenth Amendment, 218-19, 223
Fourth Amendment, 181
Fried, Charles, 87
Friedman, Paul, 135
Friendly, Henry, 66
GAO. See Government Accountability Office
Garland, Merrick, 88
George W. Bush administration, 113
Gesell, Gerhard, 94, 126, 135, 145, 147, 191
Ginsburg, Ruth Bader, 88-89, 217, 222-23, 227
Goldwater v. Carter (case), 157-58
Gonzales, Alberto, 113
Gorelick, Jamie, 99
Gorsuch, Neil, 289
Green, Joyce Hens, 93-94, 164
Green, Nathanael, 29
Guantanamo, 30, 145, 166, 170, 212, 214, 278-79
habeas corpus, 30, 162-63, 167, 211
Hanly, John, 16
Henderson v. Lujan (case), 96-97
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Hodgson, Bill, 62, 73
Hodgson, Morgan, 73
Hogan Lovells, 67
Hogan, Tom, 94, 119, 135, 165, 235
Holder, Eric, 99, 106, 140, 152
Huvelle, Ellen, 136
Ikuta, Sandra, 255
Jackson, Amy Berman, 248
Jackson, Ketanji Brown, 206, 210
January 6 cases, 130, 204, 276, 278, 280
January 6 committee, 205
Johnson, Frank, 66
Johnson, Norma, 94
Judicial Conference of the United States, 159-60, 162, 171, 235-38, 241, 253, 281-83, 285-89
justiciability, 152, 156-57, 269, 272
Kaufman, Frank, 67
Kavanaugh, Brett, 99, 103, 107, 113, 226, 289
Kennedy, Robert (Bobby), 33
assassination, 34
Kenny, Jack, 67
King, Martin Luther
assassination, 33-34
Ku Klux Klan, 97
Kollar-Kotelly, Colleen, 226
Kris, David, 186
Kucinich v. Bush (case), 155-56
Kucinich, Dennis, 156
Lamberth, Royce, 90, 92, 95, 119, 135, 191
LDF See NAACP Legal Defense Fund
Lewinsky, Monica, 103, 107
Liebman, Ron, 60
Loeser, David (brother in law), 4
Mackall, Laidler, 71
Mandel, Marvin, 60, 63, 80
McGahn (case) See Committee on the Judiciary of the United States House of Representatives v. McGahn
McGovern, George, 224
Mecham, Ralph, 235
Miers, Harriet, 206
Miers (case) See Committee on the Judiciary of the U.S. House of Representatives v. Miers
Mikva, Abner, 88, 90
Milliman, Mike, 61-62
Monaco, Lisa, 186
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Moss, Randy, 136
Mueller, Bob, 102
NAACP Legal Defense Fund, 93, 271
NAACP Legal Defense & Educational Fund v. Devine, 93
NAACP Legal Defense & Educational Fund, Inc. v. Trump, 271
Nader, Ralph, 111
Nixon, Richard, 224
Northwest Austin Municipal Util. v. Holder (case), 219-20, 222, 226
Oberdorfer, Louis, 97
OCS See Bates, John – Personal Officer Candidate School
Olson, Ted, 262
Omar Abu Ali v. Ashcroft (case), 162-63, 167
Parsi et al v. Hassan (case), 229, 232-33
Phillips, Carter, 140, 153
Powers, Tom, 73
Presidential Commission on Law Enforcement and the Administration of Justice, 270
Quinn See United States v. Quinn
Quint, Peter, 62
racial discrimination, 84, 218, 220, 228
Raines v. Byrd (case), 154, 156-57, 207
Randall, Bob, 72
Reagan, Ronald, 90
Rehnquist, William, 159
reliance, 265
Reno, Janet, 99-100
Reynolds, Bill, 62
Roberts, John, 97, 159, 170-71, 216-17, 224, 234, 244, 253, 264
Robertson, Jim, 136
Rose Law Firm, 102, 104
Rosenstein, Rod, 80, 103
Ross v. Williams (case), 255
Ruff, Chuck, 86, 103
Rules Enabling Acts, 282
Rules of Procedure, 281
Russell, Nelle, 123
Sachs, Steve, 62-63
Scalia, Antonin, 88, 261
Schiff, Adam, 188
SCIF (Sensitive Compartmented Information Facility). 173
Shelby Count v. Holder (case), 216-19, 224-29, 236, 259, 265
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Sherman, Wig, 56
Silberman, Laurence (Larry), 138
Skolnick, Barney, 60
Smith, Milan, 255
Snowden, Edward, 186-87
Sotomayor, Sonia, 162
South Carolina v. United States (case), 225-28
St. Eve, Amy, 108
Standing Committee, 66, 281, 283, 285-88
standing
issues, 151, 260, 272
law, 104, 151-58, 207, 210, 260, 267, 269, 272-73, 282
personal injury v. institutional trauma, 155
Starr, Ken, 88, 97-100, 102, 104, 106-07
State of Minnesota v. Derek Michael Chauvin (case), 91, 93, 98, 106, 270, 277, 285
State of New York v. Department of Labor (case), 266-68
standing law issues, 267
Stephanopoulos, George, 100
Stephens, Jay, 97-98
Supreme Court, 103, 105, 146-47, 152-54, 156-57, 164, 168, 172, 176, 182, 192, 194, 205, 207, 214, 216, 224-25, 247, 259, 261-66, 283, 287
Combined Federal Campaign (case), 93
Community for Creative Non-Violence (case), 86-87
DACA, 264
doctrine of equal sovereignty of the states, 223
First Amendment cases, 85-86
habeas corpus rights of Guantanamo detainees, 211
justices, 88-89, 263, 289
Kavanaugh, Brett, 107
Shelby County (case), 227-28, 265
Voting Rights Act, 217-22
Suspension Clause, 213
Temporary Restraining Order, 93
terrorism, 165, 166-67, 169
Thomas, Clarence, 88
Thomsen, Roszel, 65-68, 70
approach to opinion writing, 65
assignments, 67
chair of the Standing Committee on Rules, 66
Railroad Reorganization Court, 66
Tort Claims Act, 85
TRO. See Temporarary Restraining Order
Trump administration, 205, 208, 258-59, 264, 266, 269, 275
memorandum, 270
Trustees of Princeton University et al v. United States of America al (case), 258
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Tuohey, Mark, 98-100
United States Court Appeals for the D.C. Circuit, 82, 92-93, 95, 97-98, 105, 121, 146-47, 152-53, 164, 170, 194, 198, 208, 212, 214, 221, 225, 233, 256-57, 262, 264, 272
Brady issues, 200
Community for Creative Non-Violence, 86-87
ideological divisions, 90
judges, 88-90, 121, 210
Rules Committee, 89
United States Court Appeals for the Eighth Circuit, 103, 105
United States Court Appeals for the Eleventh Circuit, 253
United States Court of Appeals for the Fifth Circuit, 261
United States Court of Appeals for the Ninth Circuit, 252-57, 259, 261
United States Court of Appeals for the Second Circuit, 95, 162, 167, 259, 262
United States Court of Appeals for the Seventh Circuit, 108
United States Department of Justice, 91, 93, 98, 106, 277, 285
United States District Court for the Eastern District of New York, 259, 262
United States District Court for the Eastern District of Virginia, 169
United States District Court for the Northern District of California, 259, 261
United States v. Aetna (case), 247-48, 250-51
United States v. Quinn, 200, 202, 204
United States v. Randall (case), 72-73
Verrilli, Don, 140, 152
Vietnam, 24, 37, 40, 47-48, 50, 54-56
Voting Rights Act, 217-23, 228, 259
coverage formula, 217-24
Wald, Pat, 88, 90
Walker v. Cheney (case), 140, 153, 155, 207
War on Terror, 166
Washington Post. 276
Wayne, Brian, 122-23\
Westmoreland v. CBS Inc. (case), 95
Westmoreland, William, 95
Whitewater, 101, 106, 246
investigation, 98
Williams and Connolly, 102-03
Williams, Stephen, 221
Wisdom, John Minor, 66
Woodward, Bob, 102
Wright, Skelly, 87-88
Younger v. Harris (case), 64

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Oral History of Honorable John Bates
Cases and Statutes
Cases
Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010), 216, 229
Al Magaleh v. Gates, 899 F. Supp. 2d 10 (D.D.C. 2012), 211 Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), 211 Ali v. Gonzalez, 448 F.3d 515 (2d Cir. 2006), 162-63, 167, 171
Arch Coal See See Federal Trade Commission v. Arch Coal, Inc.
Boumediene v. Bush (case), 553 U.S. 723 (2008), 211-12
Christian Knights of KKK, Inc. v. District of Columbia, 751 F. Supp. 218 (D.D.C. 1990), 97
Clark v. Community. for Nonviolence, 468 U.S. 288 (1984), 86
Committee on the Judiciary of the United States House of Representatives v. McGahn, No. 19-5331 (D.C. Cir. 2020), 206, 209-10
Committee on the Judiciary of the U.S. House of Representatives v. Miers, No. 08-5357 (D.C. Cir. 2008), 206, 209-10
Federal Trade Commission v. Arch Coal, Inc. (case), 329 F. Supp. 2d 109 (D.D.C. 2004), 248 Floyd (case) See State of Minnesota v. Chauvin
Goldwater v. Carter, 444 U.S. 996 (1979), 157-58
Henderson v. Lujan, 768 F. Supp. 1 (D.D.C. 1991), 96-97
Kucinich v. Bush, 236 F. Supp. 2d 1, 11 (D.D.C. 2002), 155-56
NAACP Legal Defense & Educational Fund v. Devine, 567 F. Supp. 401 (D.D.C. 1983), 93
NAACP Legal Defense & Educational Fund, Inc. v. Trump, No. 1:17-cv-05427-ALC (S.D.N.Y. 2017), 271
Northwest Austin Municipal Util. v. Holder, 557 U.S. 193 (2009), 219-20, 222, 226
Omar Abu Ali v. Ashcroft, 350 F. Supp. 2d 28 (D.D.C. 2004), 162-63, 167
Parsi et al v. Hassan, No. 1:2008cv00705 – Document 13 (D.D.C. 2009), 229, 232-33
Quinn See United States v. Quinn
Raines v. Byrd, 521 U.S. 811 (1997), 154, 156-57, 207
Ross v. Williams, No. 16-16533 (9th Cir. 2018), 255
Shelby County v. Holder, 570 U.S. 529 (2013), 216-19, 224-29, 236, 259, 265
South Carolina v. United States, 898 F. Supp. 2d 30 (D.D.C. 2012), 225-28
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State of Minnesota v. Chauvin, 955 N.W.2d 684 (Minn. Ct. App. 2021), 270
State of New York v. Department of Labor, No. 1:2018cv01747 – Document 79 (D.D.C. 2019), 266-68
Trustees of Princeton University et al v. United States et al, No. 1:2017cv02325 – Document 86 (D.D.C. 2018), 258
United States of American et al v. Aetna Inc. et al, No. 1:2016cv01494 – Document 306 (D.D.C. 2017), 247-48, 250-51
United States v. Quinn, 401 F. Supp. 2d 80 (D.D.C. 2005), 200, 202, 204
United States v. Randall, 171 F.3d 195, 72-73
Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002), 140, 153, 155, 207
Westmoreland v. CBS Inc., 596 F. Supp. 1170 (S.D.N.Y. 1984), 95
Younger v. Harris, 401 U.S. 37 (1971), 64
Statutes
Administrative Procedure Act (APA), Pub. L. 79–404, 60 Stat. 237, 87, 260, 269, 271
Affordable Care Act, Pub. L. 111-148, 124 Stat. 119, 124 Stat. 1025, 251, 266-67, 269
Brady Handgun Violence Prevention Act, (Pub.L. 103–159, 107 Stat. 1536, 1993), 197, 200, 202-03
Declaratory Judgment Act, 28 U.S.C. § 2201, 208-09
False Claims Act (FCA), 31 U.S.C. §§ 3729 – 3733, 84-85, 92, 111
Federal Advisory Committee Act (FACA), (Pub. L. 92–463, 86 Stat. 770), 226, 271, 273-74
Foreign Sovereign Immunities Act, Title 28, §§ 1330, 1332, 1391 (f), 1441 (d), and 1602–1611, 163, 165-67
Freedom of Information Act (FOIA), 5 U.S.C. § 552, 81, 258
Rules Enabling Act, (ch. 651, Pub. L. 73–415, 48 Stat. 1064, enacted June 19, 1934, 28 U.S.C. § 2072), 282
Tort Claims Act, (August 2, 1946, ch. 646, Title IV, 60 Stat. 812, 28 U.S.C. Part VI, Chapter 171 and 28 U.S.C. § 1346), 85
Voting Rights Act, 42 U.S.C. §§ 1973 to 1973aa-6, 217-23, 228, 259
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Judge John D. Bates
Judge John D. Bates was appointed United States District Judge in December 2001. He graduated from Wesleyan University in 1968 and received a J.D. from the University of Maryland School of Law in 1976. From 1968 to 1971, he served in the United States Army, including a tour in Vietnam as a First Lieutenant.
Judge Bates clerked for Judge Roszel C. Thomsen of the United States District Court for the District of Maryland from 1976 to 1977 and was an associate at Steptoe & Johnson from 1977 to 1980. He served as an Assistant United States Attorney for the District of Columbia from 1980 to 1997, and was Chief of the Civil Division of the U.S. Attorney’s Office from 1987 to 1997. Judge Bates was on detail as Deputy Independent Counsel for the Whitewater investigation from 1995 to mid-1997. In 1998, he joined the Washington law firm of Miller & Chevalier, where he was Chair of the Government Contracts/Litigation Department and a member of the Executive Committee.
Judge Bates has served on the Advisory Committee for Procedures of the D.C. Circuit and on the Civil Justice Reform Committee for the District Court. He served as Treasurer of the D.C. Bar, and as Chairman of the Publications Committee of the D.C. Bar. Judge Bates also served as the Chairman of the Litigation Section of the Federal Bar Association and was a member of the Board of Directors of the Washington Lawyers Committee for Civil Rights and Urban Affairs.
In 2005, Judge Bates was appointed by Chief Justice Rehnquist to serve on the U.S. Judicial Conference Committee on Court Administration and Case Management. In 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court, and he served as Presiding Judge from 2009 until 2013, when he completed his term of service on that court.
Judge Bates was then appointed by Chief Justice Roberts, with the concurrence of the Judicial Conference, to serve as the Director of the Administrative Office of the U.S. Courts and served in that capacity until January 1, 2015. He served as Chair of the Advisory Committee on Civil Rules of the Judicial Conference from 2015 to 2020, and as Chair of the Committee on Rules of Practice and Procedure (the Standing Committee) since 2020.

D-1
Biography of John Cooney
Interviewer of Oral History of Judge John Bates (2020-2022)
I graduated Magna Cum Laude and Phi Beta Kappa from Brown University in 1970, with a major and a year of graduate study in microeconomics and macroeconomics. I graduated from the University of Chicago Law School in 1973, where I served on the board of the Law Review and was elected to the Order of the Coif.
I received extensive training in constitutional law as an Assistant to the Solicitor General in the Department of Justice in 1975 and 1976. From 1977 to1982, I served as an Associate at Wilmer, Cutler, and Pickering. In that capacity, I helped litigate a Supreme Court case, Plyer v. Doe, 457 U.S. 202 (1982), in which the Court declared unconstitutional, as a violation of the Equal Protection Clause of the 14th Amendment, a statute enacted by Texas in 1975 which denied undocumented alien children the right to obtain a free education in its public schools, and thereby denied these uneducated children the opportunity to achieve.
From 1982 to 1987, I served as Deputy General Counsel of the Office of Management and Budget in the Executive Office of the President. In that capacity I helped defend President Reagan’s regulatory review program from Congressional challenges. I also assisted several Directors of the OMB Office of Information and Regulatory Affairs in resolving policy disagreements with major regulatory agencies about the content of their rules. In addition, I ran the program within OMB that was responsible for drafting the Executive Orders, Proclamations, and Presidential Memoranda that President Reagan issued.
After leaving OMB, I spent the next 30 years litigating administrative law cases before federal trial and appellate courts, where I specialized in financial, securities, and environmental cases. In my 26 years as a partner at Venable LLP, I served as the senior adviser to my colleagues about the litigation of federal trial, appellate, and Supreme Court cases.
Starting in 2015, I served as a senior official of the Section on Administrative Law and Regulatory Affairs of the American Bar Association. My colleagues then elected me to serve as Chair of the Section from 2017-2018.
After the Administrative Conference of the United States was reestablished by Congress in 2010, I was chosen by its Chairman to serve for five years as the Chair of ACUS’s Standing Committee on Administration and Management. In that
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capacity, I led its experts on administrative law in achieving consensus approval of the Committee’s proposed recommendations to Congress, the White House and federal agencies to promote efficiency and fairness in the administration of government programs.
I retired from Venable on December 31, 2018, the evening before I reached my 70th birthday and could celebrate a complete career.