John D. Bates Interview 8

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Oral History of Honorable John Bates
Eighth Interview
April 14, 2022
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee
is Honorable John Bates. The interview took place on Thursday, April 14, 2022. This is the
eighth interview.
MR. COONEY: Judge Bates, we have three decisions of yours from 2017 to 2019 to
discuss, as well as the work you did on two major committees of the
Judicial Conference, the committees on Civil Rules and the Rules of
Practice and Procedure, both by appointment of Chief Justice Roberts. Do
you have a preference on the order in which we should launch into these
topics?
JUDGE BATES: I think we should do the cases first and the rules last, but before we do
those three cases, I have one other thing to talk about.
MR. COONEY: Fine.
JUDGE BATES: Alright. So I’ll launch into that. It’s also in the same time period, it was
in 2017 and went a little bit past that, not in terms of my work, but the
cases. And that is, I did sit in 2017 on the Ninth Circuit. I’m asked from
time to time to sit on circuits, principally the Ninth Circuit, and I’ve rarely
had time. I’ve declined or something else has prevented me from doing
so, but I did sit on the Ninth Circuit in 2017. There are only two circuits
now that have visiting judges, the Ninth Circuit and the Eleventh Circuit.
This one occasion on the Ninth Circuit, I thought I’d give a little bit of a
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review of since it is part of what I’ve done as a judge, and an interesting
part.
I sat for two days. We did twelve to fifteen cases, although many
of those did not receive argument. I’d say about half. We probably did
about eight arguments during those two days. Fortunately in the Ninth
Circuit, the judges on a panel share bench memos, so that cuts down the
work a little bit. It’s a different experience, obviously, working on a court
of appeals and on a panel because you have to convince others. You’re
not deciding things by yourself. It’s an enjoyable experience, more of a
collaborative experience among judges, but one that I’ve enjoyed doing on
the few occasions that I’ve done it.
On this occasion, the judges agreed on most of the cases, as is
usually the case. I made one compromise on a case that I sort of was
leaning the other way, but I decided to go along with the flow and uphold
the district judge because it was such a close call in my mind. But I did
dissent twice from decisions. One was in a criminal case dealing with a
sentencing guidelines question, but it was a small, relatively unimportant
issue in the big picture of things, and so it’s just a dissent that has gone
into the wastebasket of time.
There was another case on which I concurred. This was a fairly
significant, not huge, but fairly significant immigration case. There was
an issue that we all agreed on that was in my view the only issue that we
needed to reach. It resolved the case, and we needed to go no further. The
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other two members of the panel, however, wanted to address this issue,
perhaps within the Ninth Circuit. They wanted to lay down a marker or
get their views out, but I did not, and I didn’t quite agree with them, and
so I wrote a concurring opinion that simply said we shouldn’t be reaching
the second issue.
And then on one case, the name of the case was Ross versus
Williams, and the other members of the panel were Judge Sandra Ikuta and
Milan Smith. They’re both fairly conservative judges, so I was probably
the least conservative member of the panel. This case dealt with the
application of Federal Civil Rule 15 and Habeas Rule 2 regarding a
relation back issue, the relation back of an amended habeas petition that
was filed after the statute of limitations had run. I gave deference to the
pro se petitioner, as we do in many pro se settings, and dissented from the
panel decision that the amended petition did not relate back and therefore
the panel dismissed the petition. I interpreted Civil Rule 15 a little more
liberally than the other panel members did. It was interesting. At that
time, I was the Chair of the Civil Rules Committee, and Judge Ikuta was
the Chair of the Bankruptcy Rules Committee. We knew each other well,
and there we were, two chairs of rules committees disagreeing on the
interpretation and application of rules.
I got a call from at least one, I think only one, Ninth Circuit judge
shortly after the opinion saying that she agreed with me, but she was
confident that the court would not take the case en banc. Well she was
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wrong. The Ninth Circuit did take the case en banc, and they vacated the
panel decision and agreed with me, and Judge Ikuta and Judge Smith, who
were members of the en banc panel – I’m not obviously – were only able
to get one other Ninth Circuit judge to agree with them, so the vote was 8
to 3 to vacate the panel opinion. I had limited participation. I wrote a
couple of memos because I was asked to in terms of my view on the issues
and sent those to the en banc court, and that was that. It was an interesting
experience sitting on the Ninth Circuit, but also an interesting experience
being part of that en banc process that eventually went the way of my
dissent on the panel decision.
So that’s all I wanted to say about the Ninth Circuit or sitting on
circuits. It’s a nice thing for judges to do. We can’t do that in the D.C.
Circuit because there’s only one district court, and the circuit judges feel a
little bit uncomfortable with having a member of the District Court sitting
on cases reviewing colleagues on the District Court, and I think that is a
good reason to be cautious. It used to be some time ago that district
judges here would sit once or twice on the circuit, but no longer is that the
case. And most circuits now do not have visiting judges. They have
judges from within their own circuit sit, but because there are multiple
districts, they’re able to avoid the problem that I just described. And
that’s a good thing, I think, in terms of developing collegiality and
knowledge of each other, but that can’t happen here in D.C.
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MR. COONEY: Did you get a sense of a difference in approach with the en banc panel in
the Ninth Circuit as opposed to what you’ve seen in the D.C. Circuit?
JUDGE BATES: Well it’s a fundamentally different approach in that they take so many
cases en banc. I don’t think that the panel process, necessarily, was
different than it is in D.C. There are little things about courts of appeals
like when you meet after the argument who speaks first and things of that
sort and do you share bench memos. So there are different process things,
but there is not a great deal of difference in terms of how you approach the
case. In D.C., more cases get argued proportionately. In the Ninth
Circuit, fewer do. It still leads to many more arguments in the Ninth
Circuit because there are so many more cases, but a smaller percentage of
the cases actually get argued. The en banc process is different because so
many cases go en banc in the Ninth Circuit, and when a case goes en banc,
it does not go to the full court. It goes to eleven members of, I think, a 25-
member circuit court, so it’s an en banc decision. It’s not actually a
decision of the full court.
MR. COONEY: That’s very interesting.
JUDGE BATES: So we’ll get back to D.C. in this 2017 to 2019 time period. It’s
interesting. Changes in Executive Branch administrations and presidential
administrations do have an impact on the district court docket, sometimes
greater than other times. It’s an impact that is seen most often in policy
changes that affect things like environmental cases or antitrust cases or
consumer cases or criminal cases sometimes. So there’s often a subtle
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impact that is felt maybe a year or two into the new administration. But
with the Trump administration, the impact was more dramatic and quicker,
a much more acute impact with the Trump administration. Things like
FOIA, Freedom of Information Act, cases, ballooned during the Trump
administration, so much so that our court got really overwhelmed with
FOIA cases. There were so many of them. It even led me as a senior
judge to limit the number of FOIA cases I was willing to take. That was
one of the categories that I cut back on. But there are also things like
government programs and other policies, immigration cases, that there
really was a fundamental change in our docket engendered by the change
in the administration in 2017.
The cases I’m going to discuss, all three of those, fall into that
category because they all happened to be cases that dealt with challenges
to policies that were implemented by the new Trump administration, and
they were therefore cases that were greatly influenced or impacted by
President Trump’s policies and approaches. And the first of those, and the
most important of them, started in late 2017, and it went, for me, through
2018, so not a very long run, but a very intense run. I worked on what are
known as the DACA cases, and that stands for Deferred Action for
Childhood Arrivals, a program within the Executive Branch in terms of
immigration policy.
The cases before me were brought by the NAACP, Princeton
University, Microsoft, and a number of other plaintiffs. These were a
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challenge to the Trump administration’s recission of the Deferred Action
for Childhood Arrivals program. There were several cases across the
country, and ultimately, this went to the Supreme Court and was decided
by the Supreme Court in June of 2020.
Along with the Shelby County case dealing with the Voting Rights
Act and one or two others, I would say that this falls into the most
challenging and impactful of the cases that I have had before me. And as I
said, there were parallel cases in the Northern District of California, in
particular, ultimately in the Ninth Circuit, and in the Eastern District of
New York on its way to the Second Circuit. There had been two earlier,
during the course of these cases, two earlier Supreme Court decisions.
One, a decision on the shadow docket, at least that’s the name given to the
recent phenomenon of the Supreme Court deciding many things outside of
the traditional briefs in fully argued cases. Two times the Trump
administration had brought aspects of these cases to the Supreme Court.
One succeeding in getting a stay of discovery, not in my cases, but in other
cases. And two failing to get the Supreme Court to take the issues at a
very early time.
My cases, but they were consolidated, so it was a single case in
effect, was in the APA framework. There was no discovery. No
discovery was sought. And it really had a procedural focus, and ultimately
I concluded that the Department of Homeland Security, the Secretary’s
decision, a memorandum which was aided by a letter from the Attorney
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General, that that failed adequately to explain the conclusion that the
DACA program was unlawful, and it failed because there was a limited
legal analysis and unconvincing assessment of litigation risk. I wrote, I
hope, a thorough decision dealing with complex issues. There’s always
standing in these cases, John. Standing issues and reviewability issues,
and ultimately remedy was a real issue as well. It really did turn on
traditional concepts of administrative law applied in a somewhat unique
and somewhat difficult setting, but they were fairly traditional concepts,
the basic one being that an agency has to give a sufficient explanation for
what it is doing. In this case, rescinding a prior policy of the agency that
had also been created through an Executive Order.
So, remedy, as I said, ultimately was one issue. I did give the
Department of Homeland Security another chance to support its reasoning
in the decision it had rendered. That was a difficult decision to do that,
but I decided that was the right thing to do. So I had vacated the decision
but gave them 90 days to further consider it. One might have expected
that they would have gone in a different direction, but they did not. It was
a new Secretary by that time. The Secretary of Homeland Security issued
a second memorandum along the same lines as the first memorandum,
with a little bit more explanation and some policy reasons thrown in. I
still found, however, after analyzing that, in the second opinion that I
issued, that it was deficient under the Administrative Procedure Act, and I
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vacated the recission of DACA as a final decision by me in that second
opinion that was issued, I believe, in August of 2018.
One of my main concerns, and I discussed it in both opinions, but
one of my main concerns was what is called the reliance interest, the
reliance by these DACA beneficiaries on the program and the benefits of
the program and making decisions along the way with respect to their lives
in the context of that program and the availability of that program. And
that reliance factor, the reliance interest, was important to me. HHS had
ignored it completely, and that was inconsistent with several Supreme
Court cases.
Now, of course, I also found the legal argument unconvincing in
part because they relied on the Fifth Circuit case regarding a similar
program, DAPA, rather than DACA, the DAPA program, that really was
not the same set of issues, and they relied in part on the fact that that case
went to the Supreme Court. But what the Supreme Court did was affirm
the Fifth Circuit by an equally divided court. There were only eight
members on the Supreme Court at the time. I think it was following
Justice Scalia’s death, and they divided 4 to 4. That has no precedential
value, but nonetheless, the Attorney General and the Secretary of HHS
thought that that was important.
But ultimately, as these cases always are, my decision was
appealed, and in the meantime, the Ninth Circuit had decided the case
arising out of the Northern District of California and had followed my
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reasoning on several points, as much as they followed the district judge,
who was a great district judge, by the way, in the Northern District of
California. They also followed me explicitly on several points.
The case in the Eastern District of New York had been appealed to
the Second Circuit, and the Second Circuit had not yet acted. So the
Supreme Court did jump in at this point and took the cases, therefore, they
took my case without the D.C. Circuit being able to render an opinion. So
my case was reviewed directly by the Supreme Court in this collection of
cases that they dealt with. That was unusual. It was a little different for
me having my case and not having gone through the D.C. Circuit before
the Supreme Court took it for direct review. I think it turned out that my
case was a little bit better vehicle for the Supreme Court to deal with
because first of all, I did not wind up dealing with the Constitutional
claims because partial summary judgment had been sought before me by
the petitioners, the plaintiffs in the case, only on the APA claims. I didn’t
have the complexity of discovery issues, and I was able to deal with
remedy without having to face the question of a nationwide injunction,
which is a very touchy issue and was becoming more touchy with the
Supreme Court. So I think my case wound up being a little bit better
vehicle for the Supreme Court to deal with the case, at least as far as it
came out.
Now for the argument, the plaintiffs decided to get Ted Olson to
represent them in the Supreme Court. You can come up with a number of
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reasons why they chose Ted. He’s obviously a very esteemed Supreme
Court practitioner, although perhaps arguing fewer cases then than he had
previously. I think this is the last case he’s argued. But I think that they
chose Ted because they thought that having someone with conservative
credentials representing DACA beneficiaries would sell well. It’s the
same thing that happened on an earlier occasion when David Boies and
Ted Olson joined up on one of the California provisions. But my view is
that that doesn’t have any impact on the Justices. Choosing someone to
argue because of who they are or what credentials they have has very little
impact on the Justices. Perhaps some Justices are a little more polite to
certain practitioners than to others, a little bit more polite, but I think it has
minimal impact, and in this case, I think it had no impact as far as I could
tell.
Now the argument was interesting in terms of the oral argument. It
did reference, I don’t know that Ted Olson did this, but the other presenter
who was from the NAACP, did do it quite a bit, really stressed certain
things that I had decided and really flagged them, and I think used my
name a couple of times during the argument. That, too, I think has little
impact on the Justices the Supreme Court. Yes, I happen to know several
of them. I know some of them fairly well. I think that has no bearing on
the outcome of the case.
But as I said, this case turned out to be a little cleaner vehicle
because it was APA, not constitutional. It didn’t have the injunction issue,
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and ultimately the Supreme Court decided the case 5 to 4 in an opinion by
Chief Justice Roberts in favor of the DACA beneficiaries and affirmed my
decision in full, relying quite heavily on the reliance interest. That was
one of the key elements of the decision by the Supreme Court. As I said,
they affirmed the judgment in my case in full. In the other cases it was
more mixed because of the way they had come up procedurally and
because the court did not agree on one issue that had been before them but
not before me dealing with constitutional questions.
Before the Trump administration really attempted to cure
deficiencies, since this decision came out in the summer of 2020, there
was the election in 2020, and with that, a change of administration and
change of policy. So that was the end of the line for the DACA policy, at
least for the time being. Congress hasn’t been able to get its act together
to do anything positive, so it remains as it was prior to the attempt to
change the DACA program by the Trump administration.
This is one of those cases, John – there aren’t that many on a bigpicture
level in every case, that I feel that I have an impact and might
make a difference, even if it’s just in deciding how to sentence a criminal
defendant or resolving a discrimination claim. But this is one of those few
cases where I really felt that I made a difference in the case, that I worked
hard on it, in the way I approached it, in the opinions I wrote, and they
were helpful to one higher court. It did not go through the D.C. Circuit,
but to the Supreme Court, and so I look back on this case as I do on the
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Shelby County case as one of the highlights of my judicial career and one
of the things I’m most proud of.
MR. COONEY: If I could make just a couple quick points. Two of my colleagues were
approached by the plaintiffs in the case when it came to the Supreme
Court, and they were asked to brief the reliance aspect of the case, and
they certainly believed that your opinion on the reliance issue hit the ball
out of the park. They used as much of it as they could, and it turned out
very well in the final opinion.
JUDGE BATES: It actually wound up being something that the majority of the Supreme
Court thought was an important aspect of the case.
MR. COONEY: One other point. I had a case in the early 1980s that was taken by the
Supreme Court where the state of Texas had banned undocumented alien
children from having a free public education in the schools. You had a
case that was something like that but at a much higher level. You changed
the lives of 800,000 people, and it must have been a wonderful feeling to
know that if your teachers and parents were still alive, they would have
understood that all the effort they put into training you paid wonderful
dividends for the good of the country.
JUDGE BATES: I think it did make a difference, so I look back fondly and proudly.
MR. COONEY: Well you should.
JUDGE BATES: So should we move on to these other cases?
MR. COONEY: Yes. Let’s keep going.
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JUDGE BATES: They’re not as important, but they posed legal challenges for the Trump
administration and the policies that the Trump administration was
adopting. Now across the country, and in my court in particular, this was
true. There were a lot of cases that were brought. There were challenges
to the Trump administration policies, and my court dealt with lots of them.
For the most part, the challenges were successful. I think there was a
fairly high level of success in the lower courts in these types of cases, not
as successful in the Supreme Court, but still, there were some notable
successes. The census case is a notable case of a successful challenge.
The DACA case is another one. But these two cases that I’m going to
discuss are two more examples, but neither of them has gone anywhere
beyond my decisions. One of them not being appealed, the other one
being appealed but held in abeyance, and I’ll explain that in a minute.
Both of these cases are statutory interpretation cases. They have
statutory interpretation issues. One is brought under the APA, as many of
these cases are, but the second of the cases that I’ll discuss was brought
under what’s known as FACA, which is the Federal Advisory Committee
Act. But let’s talk about the other case first, State of New York versus
Department of Labor. This was an attempt, I’ll describe it in the way I
found it, an attempt to end-run the requirements of the Affordable Care
Act for what’s called Association Health Care plans by changing the
definition of employer in ERISA, and that’s because the definition from
ERISA applies in the Affordable Care Act as well. It’s a pretty
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complicated setting, although the rule change itself was not that
complicated, but the assessment necessary of the rules change under
provisions of ERISA was fairly complicated. I found that the rule that had
been promulgated was an unreasonable interpretation of ERISA, and I
think this was decided in the spring of 2019.
This came about because of an explicit direction through an
executive order by President Trump for the Department of Labor to
expand access to these Association Health Plans, to that status, in order to
avoid the requirements of the Affordable Care Act for smaller business
entities. So the Department of Labor followed that direction that they
were given and came up with this route to do so. But I found that the
route they took, this definitional change to who was an employer, was
inconsistent with the governing provisions of ERISA that the rule was
purporting to interpret and apply. Again, there were preliminary standing
issues in the case. In this instance, they were issues relating to the
standing of a state – it was more than the State of New York; there were a
couple of other states that joined in – to challenge this governmental
decision under the APA. But I found that there was standing. A little bit
of a close question, but ultimately not really a close question, and once I
got beyond that standing issue and got to the merits of the question, I
found pretty clearly against the Department of Labor. I gave very little, if
any, deference to the Department of Labor’s interpretation of ERISA.
Normally you would give some deference, but I gave little to none
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because this was in my view plainly an unreasonable interpretation of the
ERISA provisions at issue. Indeed, it was really an effort that was at odds
not only with the text of those provisions, those governing provisions on
how you assess whether one is an employer, but also at odds with the
purpose of ERISA by dramatically expanding who would be an employer
within ERISA. The simplest way to describe the expansion was that it
would expand through the use of this association health care plan, it would
expand the definition of employer to include basically sole employer
entities. It would make an individual who was in business for herself both
an employer and an employee under these provisions and therefore make
them come within this association, the Association Health Plan rubric, and
that seemed to me to be at odds with what ERISA was all about as well as
failing the statutory tests under ERISA. So I vacated the provisions of this
rule from the Department of Labor. There was a severability clause in the
provisions and that meant that the rest of it survived even while I vacated
these particular provisions dealing with the employer definition.
There was an appeal filed, but this was another one of those
situations where the appeal was late in the game in terms of an
administration, and ultimately that appeal was filed, but it was promptly
post-2020 election stayed, and it remains stayed. The technical term is
held in abeyance. The appeal has been held in abeyance. The
representation from the Department of Labor has been that there’s a new
administration and they are reassessing the situation and what should be
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done. That’s been going on for quite some time now. But the appeal has
not moved forward, and I don’t see any prospect in the near future of it
moving forward as an actual challenge to the decisions.
There are two sides to this issue from a policy perspective, and I’m
sure there was some, I know there was some, push post-Trump
administration, some push by some to allow greater access through some
method, whether it be a redefinition of employer or something else, but to
allow greater access to Association Health Plans or some means to avoid
some of the most stringent requirements of the Affordable Care Act that
fall on the small business entities.
A significant decision I felt. An important decision. It got some
publicity when it was going on, but it’s been pretty much below the radar
since the time I issued the decision and with the appeal held in abeyance.
But again, an Administrative Procedure Act question, statutory
interpretation question, some complexity to it, some threshold
jurisdictional or justiciability issues, particularly standing, and a
demanding but fascinating case that is the kind of case that we get here in
D.C. more than anywhere else, and that I in particular enjoy dealing with,
these statutory interpretation questions, sometimes with constitutional
issues, sometimes without, and often in the framework of the
Administrative Procedure Act and the requirements of the Administrative
Procedure Act. So that’s that case.
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MR. COONEY: I noticed that the Biden administration has been pretty aggressive in
keeping abeyance cases from going forward.
JUDGE BATES: Yes. They have been on, it’s a handful of cases, but a collection of cases
that have been in that posture now for some time.
Now the last case that we’re going to discuss, I think the last
specific case that we’re going to discuss, which leads me to say this. You
know I’m not done being a judge, so if someone wants to come back and
talk to me again five years from now, I may have some other cases to talk
about or other experiences to talk about. But the last case we’re going to
talk about in this interview process is a case that I issued in October of
2020. A little bit higher visibility case. Again, came about because of the
direction from President Trump through an Executive Order. Actually,
this wasn’t through an Executive Order. This was through a memorandum
directing the attorney general to establish a commission to study issues
regarding law enforcement and the criminal justice system. Now this
occurred during 2020, which was really a year at the height of racial
concerns in the context of the criminal justice system and the application
of policing methodology and policies to African-Americans in particular,
the Floyd case and other situations. This was really at the height of those
racial concerns. Ultimately this commission was to make
recommendations to the President for actions to be taken to address crime,
increase respect for law, and assist victims. So the subjects of the
recommendations were skewed somewhat towards the pro-law
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enforcement ends by describing it as addressing crime, increasing respect
for law, and assisting victims. But it really dealt with more than that in
terms of law enforcement and the criminal justice system, and a challenge
was brought to the creation of this commission by the NAACP Legal
Defense Fund under, as I said, the Federal Advisory Committee Act.
There were several issues that were raised, issues dealing with
transparency, technical issues in terms of appointment of people, but the
primary challenge was to the composition of the commission.
FACA, the Federal Advisory Committee Act, requires a fair
balance in viewpoints that are represented on a committee that is subject to
FACA. But here the commission members all came from a law
enforcement background. Some of them were current law enforcement
officials, others were past law enforcement officials, but they all came
from a law enforcement background. There were no civil rights
representatives, no criminal defense representatives, no community
organizations or any other perspectives other than the law enforcement
perspective that were represented on the commission. So this case was
pretty strongly litigated, aggressively litigated. I don’t mean that in a
derogatory sense. Aggressively litigated by both sides. It was another
administrative law case, although not under the Administrative Procedure
Act but instead under FACA, and a case where the relevant language, the
language of the relevant statutory provisions, was important.
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Now I will note that it’s not hard to identify a policy problem with
having a commission, particularly during these sensitive times, to look at
law enforcement and its relation to the rest of the players in the criminal
justice system when that commission is made up only of law enforcement
representatives. There’s a policy question there. A policy problem,
perhaps. I noted that in my opinion but quickly went on to say that’s not
my responsibility. It’s not my job as a judge to assess and decide whether
that’s good or bad policy. My job is to assess whether laws are being
violated, procedural or otherwise, in the creation of this commission in
this instance.
Now what were the first issues? No surprise. Standing issues, and
they had to be decided. The fair balance challenge, that claim to the fair
balance of the commission, posed an interesting standing question, but I
found that there was a sufficiently concrete harm that arose from the
denial of representation for the NAACP. Not that they were entitled to be
on the commission, but that their viewpoint and the viewpoint of non-law
enforcement perspectives should have been represented, therefore there
was a concrete harm from the denial of that representation.
Beyond standing, there were other justiciability challenges based
on the absence of what I would call judicially manageable standards.
These issues were not easy issues either. They were fairly close issues,
but I agreed with most courts that the provisions were justiciable. It was
interesting. There was a D.C. Circuit opinion where, the way it played
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out, it was a concurring opinion, took a fairly strong contrary view, and
you had to parse the other two judges’ opinions fairly closely to
understand where they were coming out on this question. But I decided
that these provisions were justiciable.
That brought me to the biggest issue in the case, a statutory
interpretation issue, and that was whether this commission was exempt
from FACA under a separate statutory provision that had created an
exemption from the Federal Advisory Committee Act. I found that the
commission’s meetings, both as to their purpose and as to their
participants, did not satisfy the statutory test for the application of this
exemption, so that this commission was not exempted from FACA. That
was a fairly novel question as it was presented, and an interesting parsing
of the statute was necessary. But ultimately, that was the conclusion that I
reached and that’s pretty much the end of the game because the
government had not offered any defense on the merits. In other words, if
FACA applied and these plaintiffs were appropriate to bring the challenge,
in other words, they had standing, then the government was basically
conceding that FACA had been violated, that they had not complied with
FACA in several regards, even with respect to the fair balance issue
because they made no real defense of the selection of the commission
members in the face of that challenge under the FACA fair balance
provision.
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But again, sometimes remedy can be a problem, and remedy was
an issue here, and it was a fairly interesting issue. In these kinds of
settings, one thing that a court can do is impose what I will call a use
injunction. In other words, what comes out of this commission cannot be
used. I decided that that was relief of the last resort and should not be
employed here, I guess really for two reasons. I may not have stated this
completely, but one of the reasons was that in effect I would be enjoining
the President from using information that this commission brought to his
attention, and I thought it was a little bit uncomfortable to, in effect, enjoin
the President from using the information. The other reason was that there
were First Amendment implications here in entering the use injunction
that prevented the use of this information. So with those concerns in
mind, I decided not to impose a use injunction but instead said that
whatever came out of this commission had to have a very clear and
express disclaimer or caveat, and I crafted the language for it and required
that that be on any copy of any report that came out of the commission,
that it would have to include this very clear disclaimer and caveat saying
that a federal judge had found that this was in violation of the Federal
Advisory Committee Act. And that disclaimer was put on all of the copies
of the report that came out. And I think that report has pretty much
withered on the vine, if you will. I don’t think it has been utilized very
much. Now one could say that there hasn’t been all that much done by the
current administration with respect to these questions of law enforcement
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policy, criminal justice policy, but I’ll leave that for someone else to
discuss in some other context. For my purposes, it was an interesting case,
one that had some pretty interesting issues that I felt could have an impact.
I didn’t know what the commission would come out with. I suspected, but
I felt that the failure to have a balanced commission really was an
important consideration, and under FACA, was a determinant
consideration. I’m happy that I didn’t enter a use injunction because I
think that would have been a bad precedent. Maybe it wouldn’t have
gotten appealed. This case did not get appealed, in part because of the
election and the change of administrations. After all, the report was due to
come out October 28th of 2020. I issued my opinion October 1, 2020. It
was important to me to get the opinion out before the report came out, and
the election occurred a week after that October 28th date.
Anyway, so what came out of the commission has been, as far as I
can tell, of very little impact in considering these important issues of racial
justice and our criminal justice system.
So that’s the last case I’m going to talk to you about. Do you have
any questions on it?
MR. COONEY: It’s been fascinating to hear about your approach to all these different
decisions from your early days on the bench through modern times.
JUDGE BATES: I don’t want to harp on the Trump administration, but I do think it’s fair to
say that there’s one other major impact from the Trump administration.
Don’t get me wrong. I’m not making some determination of President
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Trump’s role. That’s up to others to assess, both in Congress and perhaps
in the criminal justice system. All I’m saying is that the January 6 cases
that we have as a court, hundreds of them now, are another major fallout
from the Trump administration and have a substantial impact on the
functioning of my court. They’ve impacted the criminal docket
immensely in unprecedented ways. The first way is just the volume. The
number of cases, it’s increased our criminal caseload severalfold and made
the last two years very, very busy for the judges of our court. And the
scope of the cases, they have such a broad range, from fairly minor
trespassing-type incidents to major conspiracy or assault on police officer
allegations, the criminal offenses and the volume and scope of those cases
is really, really tremendous. There have been lots of issues, some of them
because of the media and public focus on these cases. There are articles,
sometimes several daily, in The Washington Post.
At first we had to deal with the detention questions. Normally
these are decided by our magistrate judges, but because of the volume of
them, many wound up going to the district judges, and these posed some
challenging, close questions at times, as to whether to detain individuals
for their conduct on January 6th. I’ve gone both ways on detention
questions. Those have been difficult and demanding questions.
The biggest issue and delay in the cases, I guess there are two big
delay issues. The first biggest delay is because of the volume of
discovery. This is the largest criminal case effort that the Justice
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Department has ever undertaken, and it’s the largest discovery problem
and issue and undertaking that the Department of Justice has ever faced.
The number of videos, number of reports, the witness statements, just such
a tremendous volume of material, and collecting, organizing, being able to
search that material, producing it to the defense, both the case-specific
material that obviously dealt with the individual defendant, and the global
discovery, which may be of importance in some cases and is important for
the government to fulfill its obligations by making it available to the
defense. Those have posed numerous and very complicated discovery
issues. I will commend the Department of Justice, the U.S. Attorney’s
Office in particular, and the Federal Public Defender for the collective
efforts in marshaling the forces to deal with those discovery issues.
They’ve done a good job under very difficult circumstances, but it has
been a slow process. There’s no question about it.
The other delaying factor has certainly been COVID. It has made
it difficult over the course of the last two years to deal with these cases
and certain aspects of the cases and certainly difficult to get cases to trial.
So that has been a big issue. There are lots of legal issues regarding the
application of some of the statutory provisions to the defendants, whether
those are really appropriate statutory offences. And then there have been
the issues regarding getting the cases to trial and sentencing people, either
post-trial or post-plea. Lots of issues have come up.
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Some of these cases involve what I’ll call cause attorneys,
attorneys who are really defending the cause that lies behind the
January 6th events. The work on these cases is continuing, both by me
and by other members of my court, and I have to say that I am extremely
proud of my colleagues on the district court and the magistrate judges for
the tremendous efforts that they have made on these cases and the work
they have done on these cases. It’s really much like the Guantanamo
detainee cases. It’s really a situation where unique circumstances made
very heavy demands on the judicial officers, district judges, and magistrate
judges involved. From my perspective, the judges have conducted
themselves extremely well in handling these cases and ensuring that the
criminal justice system works from both ends, both with respect to the
interests of the government, but also with respect to the protections that
need to be afforded to the defendants.
MR. COONEY: What percentage would you say of the cases go to jury trial and how many
are tried by a judge?
JUDGE BATES: Well that’s an interesting question, and the book is still open on that.
There have only been less than a handful of cases that have actually been
tried so far. It’s just three or four, and one of those opted for a bench trial
and was tried by a judge. But that’s a small sample of the overall volume
of cases. So I don’t know how that will eventually play out. Statistically,
nationally, 98% of cases get resolved short of trial. Some get dismissed,
most get resolved by pleas, but a very small percentage, around 2%, go to
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trial of criminal cases. I think it’ll be a little higher percentage for these
cases. Certainly some issues need to be tested, issues that are both tested
before juries and that are tested in the courts, so I expect there will be a
little higher percentage of cases that go to trial, but it’s not going to be, at
the end of the day, a very high percentage. I’m confident we’re not going
to see 20% of these cases go to trial because once you get a feel for what
the juries are doing with the cases, that will educate both sides, and maybe
some different compromises will be presented and reached. But whether
more cases will go to a bench trial remains to be seen. The one bench
trial, as you no doubt know, did result in an acquittal. That happened last
week, I guess, and that may lead to more defendants asking for bench
trials. Each judge is different, but I do know of one occasion where in the
last couple of days that a defendant has asked for a bench trial before a
different judge, not before me. But you would expect that there might be a
few of those happening, and I don’t know whether there will be a
wholesale move to bench trials as opposed to jury trials.
MR. COONEY: This does sound like the Guantanamo cases taken to the nth power.
JUDGE BATES: It really is. The uniqueness particularly. There were unique and difficult
issues in those cases in terms of the process, in the discovery, and there are
similar issues, different but similar issues, with these cases. Although
these cases, the volume is an additional problem to overcome. We’re
dealing with several hundred cases, and that’s far more than the
Guantanamo setting had. But as I say, this is continuing, and it will be a
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part of my life for the next few years at least, as it is for all the judges on
this court.
Should we gallop right along and move to rules?
MR. COONEY: Yes. That will be very interesting. It’s also very interesting to see how at
the start of your career the criminal docket was a large percentage of your
work, and now it’s off the charts.
JUDGE BATES: There’s no question about that. I’ve said to my law clerks several times
over the past year that we’ve spent more time on criminal cases, some of it
just status calls and the routine stuff that happens in criminal cases and
sort of pushing on discovery, but more time on criminal cases than
percentage-wise has been true in most years. I did observe, I think with
you, in an earlier time that, from my experience, we used to try more
criminal cases than we have in the recent years, not just because of
COVID, but because the criminal docket has gone down, and we’ve tried
fewer criminal cases. But this influx of January 6 cases is changing that.
There are more trials occurring and that will occur. I would expect that I
will have two or three January 6 cases go to trial this year, and the book’s
still open on what will happen thereafter. But, on to Rules.
MR. COONEY: On to Rules.
JUDGE BATES: So, after I finished my term as Director of the Administrative Office, the
question was raised how would I like to contribute to the Judiciary,
because people in power knew that I liked to be a contributor to the overall
federal Judiciary and wanted me to continue to be a contributor. And so
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the resolution of that was that I would take over as, and by take over, I
mean assume the reins in the normal course of things, as another judge
finished their term, as Chair of the Civil Rules Committee. It’s technically
called the Advisory Committee on Civil Rules.
So it was fairly unusual for someone who had not been on that
committee to take over as chair of the committee, but I had a lot of
knowledge of the committee work. I had worked a little bit with the
committee as Director of the Administrative Office. I had worked with
the Chair of the Standing Committee on some issues, and so I was a
known commodity, so it wasn’t totally out of left field. I did attend one or
two meetings of the Civil Advisory Committee before I took over as
Chair, just sort of as an observer, so I eased into the role as Chair.
Now, these Rules committees are also a unique animal. They’re a
little bit different than most Judicial Conference committees, and as I may
have said before, there are 26, I believe, Judicial Conference committees.
These rules committees have a legislative approach. There’s no other way
to describe it than as a legislative role. They promulgate the Rules of
Procedure in five substantive areas, civil, criminal, appellate, bankruptcy,
and evidence. In evidence, it’s the actual Evidence Rules. In the other
four settings, it’s the Rules of Procedure for those types of cases. It’s a
process that is very much legislative in its nature. It’s very intellectual
because you’re dealing with complicated legal and procedural issues and
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even sometimes beyond that into historical questions and other fascinating
areas.
It’s not the administration of the courts, which was an area where I
had a lot of experience. Not only had I been on the Committee for Court
Administration and Case Management, but I had been the Director of the
Administrative Office, which is at its core an administrative function. But
this was different.
The Rules Committees have a special place in the Judicial
Conference committee structure. They have a statutory basis, unlike the
other committees, and there’s a particular set of statutes. The Rules
Enabling Acts, which is the vehicle by which rules are promulgated and
that creates or dictates that there will be at least a standing committee on
rules, and the way the structure exists with congressional approval is a
standing committee with five advisory committees reporting to that
standing committee.
The process, I’m going to give you the process in a nutshell just
because it’s good to bear it in mind. With a rule amendment that has any
complexity to it, the likely process is that this is raised with the relevant
advisory committee. It may come from a member of the bar. It may come
from a member of the committee. It may come from another judge. It
may come from an academic. There are any number of sources of
proposals for rule amendments. It comes to the advisory committee which
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grapples with it. They may grapple with it through the appointment of a
subcommittee or otherwise.
From the advisory committee, there are reports for each standing
committee meeting, but ultimately, there is a recommendation from the
Advisory Committee for a rule amendment that goes to the Standing
Committee. If there’s any complexity to it, it’s not unusual for the
Standing Committee to have some questions, have some concerns, and to
send it back to the Advisory Committee. The Advisory Committee will
grapple with it further and bring a recommendation, perhaps the same, but
perhaps a modified recommendation, back to the Standing Committee.
Ultimately, the Standing Committee will approve, sometimes disapprove,
but more often approve the recommendation of the Advisory Committee,
and that will enable the proposed rule amendment to go out for notice and
comment. Publication and the solicitation of comments from members of
the public turns out usually to be some academics, some judges, some
organizations, and you get that public comment, and based on that public
comment, the Advisory Committee considers the matter again, may make
adjustments, and sends it forward to the Standing Committee for final
approval of a proposed rule amendment. If the Standing Committee gives
that final approval, and, again, it may be sent back for further tweaking,
but once the Standing Committee gives that final approval, the proposed
rule amendment goes to the Judicial Conference for its approval and to the
Supreme Court for its approval and then to Congress. Basically if
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Congress doesn’t act on the rule amendment that is proposed, then it goes
into effect in December of that year, absent any action by Congress.
That’s what we hope for. We basically send it over to Congress, and we
hope that the fall leads to no activity by Congress with respect to the
particular rule amendment that has been proposed.
So Civil, which is where I landed, is very active. It’s probably the
most active of the Rules advisory committees, although that varies from
time to time, but very active on some broad issues as well as more focused
and sometimes even technical issues. Some of the big issues concerned
discovery at the outset of my tenure, class actions, which changed
Rule 23, the discovery issues dealt with some expansions of some of the
rules and have been very well-received by the bar, and the same has been
true of the class action provisions that have gone into effect and have been
in effect now for a couple of years, those have been very well received and
applauded by the bar.
There have been some other big issues. One that’s currently being
grappled with is whether to have rules for multi-district litigation cases,
and that’s been an on-going project now for the last three or four years.
Sometimes the process does take many years. I think the normal
cycle is pretty much a three-year cycle from submission of the proposal,
wherever it comes from, through the December 1st date of whatever year
that the rule would go into effect is, for a normal matter, a three-year
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process. The more complicated matters, sensitive matters, it can be much
longer, and it has been.
The membership of committees is a little bit unique. The Rules
committees are unique in that sense too because they’re made up not just
of judges, but also of representatives of the Department of Justice,
academics, and private practitioners. The representatives of the
Department of Justice are the senior Justice Department officials, the
deputy attorney general is a representative with respect to the Standing
Committee, and the heads – various assistant attorneys general – are
representatives for the other committees. They can be very active
participants and important participants. But this is unique among the
Judicial Conference committees because there’s a much higher nonjudicial
representation on these committees. This work has enabled me to
work closely with not just the members of the committees but also with
the bar, with other judges, and it has been a very rewarding experience.
It’s important for the Judiciary to get it right because these rules govern
the justice system, whether it be the criminal justice system, the civil
justice system, our bankruptcy system, our appellate process, we really
need rules that work and that are sensitive to all the issues, and I have
found that the committee members are extremely sensitive to getting the
right rules in place and doing so through a fair and open process.
So, I did the civil rules for four years, and then I was asked, and
the Chief Justice appointed me, to take over as Chair of the Standing
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Committee, which is the umbrella committee that all the rules advisory
committees report to and through. It’s got a much broader purpose and
responsibility because of the breadth of the rules that it deals with. It deals
with all the sets of rules, whereas each advisory committee is dealing with
only one set of rules. Sometimes there’s some overlap and coordination is
necessary, but for the most part, each advisory committee is given only the
one set of rules. The Standing Committee has reports from all the
advisory committees and deals with all the sets of rules, so the breadth is
much greater.
A lot of the work on rule amendments is done by the advisory
committees, but final tuning does take place with the Standing Committee.
Let me give two examples that the Standing Committee has been working
with. One is the emergency rules that are currently under consideration.
These are rules to deal with future emergencies like COVID-19 or
different from COVID-19 that limit the ability of the courts to handle its
responsibilities. We decided, and the Standing Committee was crucial in
this, not to try to have rules that would change things in a non-emergency
setting, but instead only to develop rules to deal with future emergency
settings, and to give the responsibility for declaring that emergency to the
Judicial Conference rather than having it remain with the Presidential
declaration or having it be at a lower point in the pecking order with a
court in particular.
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That’s been a coordination process that has been very interesting.
Great work has been done by some of the reporters in that process, and
they are an important part of this rules-making process as it goes along.
They are academics who are very knowledgeable in their particular arenas
and are of invaluable assistance to the committees as they do their work.
Another example of the sensitivity of things is something that the
Appellate Rules Committee is currently dealing with, and those are rules
with respect to amicus disclosures. This is something that came to us from
the Supreme Court because congressional proposals were made as to the
Supreme Court, and the Supreme Court doesn’t really have a process for
this kind of thorough examination with respect to the rules, so they asked
the Standing Committee, and then the Standing Committee referred it to
the Appellate Rules Advisory Committee, to look at these questions of
greater disclosures regarding amicus briefs in the appellate courts
primarily, but presumably to serve as a model perhaps for the Supreme
Court. There are already some disclosures that are required, but this
would be enhancing those disclosures in a very meaningful way.
So that’s a little bit of an explanation of what I’ve been doing on
the Rules. I have some time left as Chair of the Standing Committee, but
it’s been a good run for the last seven years or so working on rules issues
and it is something that I’ve enjoyed and particularly enjoyed working
with all the players in that process, both at the Rules office, which is
staffed out of the Administrative Office of U.S. Courts, and then with the
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committee members, other judges, academics, and members of the bar,
and the reporters especially, who are crucial in the process, and we have
really top-notch people who are in the academic arena who are reporters
on the advisory committees and on the Standing Committee.
So, with that, questions?
MR. COONEY: Are there functions that are unique to the chair on the committees?
JUDGE BATES: Absolutely.
MR. COONEY: These do go to Congress, so is the Chair the liaison to Congress on these
issues?
JUDGE BATES: A little bit. There’s a process that works because this is so frequent and
routine that there’s a process that works that doesn’t wind up with the
chair having to do that much other than review things. But there are
occasions where the Rules community has an interest in proposed
legislation and then the chair of the Standing Committee gets involved and
perhaps sending communications to Congress. I’ve done that, and my
predecessor has done that. Sometimes I do that in conjunction with the
chair of the particular advisory committee that is impacted. There are
policy issues that come up in terms of how the committees function and
concerns over issues that have to be resolved. Sometimes they’re pretty
complicated, and sometimes they’re pretty sensitive. Something that the
chair is intimately involved in, or at least I have been intimately involved
in as Chair, and perhaps this is in part because of my past role as Director
of the Administrative Office, it is in making recommendations for
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membership on the committees. The committees’ membership is
determined by appointment by the Chief Justice, but he needs to receive
recommendations, and I generate those recommendations through the
Director of the Administrative Office and present the Chief Justice, shall
we say, with a slate of possibilities for any particular vacancy. And
sometimes it’s difficult to find the right people for those positions. I think
I’m not talking out of school when I say that the Chief Justice takes his
responsibilities for appointment to all the Judicial Conference committees
quite, quite seriously, but perhaps even most seriously with the Rules
Committees, that he views are particularly sensitive in terms of the
functioning of the federal judiciary. And indeed, he was on the Appellate
Rules Committee. Justice Gorsuch was on the Appellate Rules Committee
and was briefly Chair of the Appellate Rules Committee. Justice
Kavanaugh was on the Appellate Rules Committee. The Justices of the
Supreme Court, when they were circuit judges, frequently have been
members of rules committees, and they have a sense of the importance of
those committees and the work of those committees.
MR. COONEY: By the time they get to the Supreme Court, they’re very well informed
about how the judicial function operates.
JUDGE BATES: Absolutely. By the time they go into effect, these rule amendments, they
are very thoroughly vetted, in part by the Supreme Court, which, as you
said, has members who are very familiar with the rules process.
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MR. COONEY: Well thank you very much. I don’t have any more questions today, and I
think we’ve now been through eight 2-hour sessions.
JUDGE BATES: We’ve only been at it for an hour-and-a-half. Let’s not give us more
credit than we deserve. But yes, it has been most enjoyable, John, in large
part because of you. I appreciate the effort you’ve put into it and how
gracious and comfortable you are and how enjoyable it has been just to
chat with you about my career. I’m not all that comfortable with this
concept of talking about myself, but you’ve made it easier and more
comfortable, and I appreciate very much all the effort that you’ve put in.
MR. COONEY: Thank you. And as I’ve said several times, there are two audiences. One
will be an immediate audience, and the other is history, so this is going to
be very valuable on both fronts.
JUDGE BATES: Let’s hope it’s of some value. It certainly has been of value to me. It’s
been nice to relive it, and maybe now when my family members ask me
about something, I can say go read these transcripts.