John D. Bates Interview 4

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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 timeintensive
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 yearand-
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 highcaliber
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.