John D. Bates Interview 7

216
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
217
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
218
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
219
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
220
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.
221
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.
222
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
223
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.
224
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
225
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 threejudge
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
226
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
227
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
228
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.
229
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
230
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
231
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
232
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,
233
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
234
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 proand
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?
235
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,
236
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
237
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 policymaking
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
238
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,
239
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
240
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
241
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
242
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
243
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
244
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
245
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
246
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
247
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
248
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
249
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
250
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
251
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.
252
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.