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Addendum #2 to Oral History of John M. Ferren
An Appellate Judge’s Vocation
In 2017, I will reach the 40th year- exactly half my life – since appointment as a
judge on the District of Columbia Court of Appeals (with two years away as the District’s
Corporation Counsel). This has put me in a reflective mood, wondering how aware our
community is of the court’s responsibilities and how it works. I therefore decided to record a few
observations.
Straightaway I would emphasize that our appellate role is no more important than
the work of the trial judges in Superior Court. They interact daily with litigants, lawyers,
witnesses, and jurors, making countless swift decisions in case after case, often followed by
written opinions. This work requires legal judgment, sensitivity, patience, and stamina that put
me in awe. Moreover, countless more disputes reach finality in the trial court than those brought
up on appeal – a recognition that our trial courts routinely get things right.
The appellate court is different. We typically sit on randomly selected panels of
three judges who, upon request of a losing party, review a trial court ruling for legal error that
may have affected the verdict. Thus, we do not hear witnesses or receive other evidence or
second guess juries; we hear only lawyers (or occasionally pro se parties) from both sides who
have filed briefs before argument explaining why the trial judge erred- or did not. The panel then
confers and agrees either unanimously or by a divided vote that spawns a dissent. Sometimes a
party who loses the appeal convinces our full court of nine to rehear the case (although we now
have an unconscionably long, congressionally imposed vacancy that exceeds three years). On
rare occasions, the U.S. Supreme Court will grant a petition to review a decision of ours.
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Professionally, an appellate judge becomes a generalist, reviewing criminal, civil,
and agency cases of all kinds, as well as supervising the organized bar, including lawyer
discipline. But that diverse diet is only the cover sheet to explaining why I have always loved
this job. I love it because, even at the appellate level, we are largely a “people’s court” dealing
with common, though very serious, human problems. This is often a difficult, even elusive
responsibility. We address virtually every imaginable kind of personal hurt.
Half of our docket brings review of criminal convictions, from minor assaults to
sexual abuse and homicides, drunken driving to distribution of controlled substances, stolen
autos to bank robberies and burglaries. These often include constitutional challenges, for
example, to questionable eyewitness identifications; to suspect confessions; to stops, frisks, and
other warrantless seizures by the police, as well as claimed denial of the right to Miranda
warnings, to a speedy trial, or to competent counsel. In all criminal cases, the Public Defender
Service, the private defense lawyers appointed under the federal Criminal Justice Act, and the
U.S. Attorney’s Office are advocates extraordinaire.
The other half of our caseload is an amazing potpourri of civil and administrative
disputes that commonly go to the very core of a party’s well-being: a failure of child support, a
claim for unemployment or workers compensation, a threat of eviction, a medical mishap or
other personal injury, an effort to terminate parental rights, a contested adoption, a petition for
civil commitment, a utility cutoff, a will contest, a statutory “small claim,” a charge of
defamation, a complaint of housing, employment, or gender discrimination, and alleged
invasions of other civil rights. Our caseload, of course, also embraces commercial litigation,
corporate swindles, business valuations, zoning controversies, commercial insurance claims,
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government contracts, union issues, conflicts over schools and universities, and other
institutional disputes. But the bulk of our work centers on the individual.
In assembling examples of the many different situations the court must assess, I
was reminded that judging, whether trial or appellate, requires — above any other professional
aspiration — a steadfast motivation and enduring commitment to serving others, with equal and
fair attention to every party. That essential vocational priority is reinforced by every case, if only
because the administration of “justice” means that when a dispute goes to judgment, one or
another party, in whole or in part, must lose. And this means that a judge’s final ruling is a very
serious responsibility. With each decision, therefore, we implicitly warrant that we not only have
carefully studied the facts and applied the law (with the help of talented law clerks), but that we
also have perceived no conflicts of interest in judging the case and, in further looking inward,
have found no bias that would require recusal.
Indeed, this responsibility reaches a moral dimension. Each of us must always
ask: Have I adhered to all the above strictures in every case? Did I grant every party the dignity
that each deserves? Did I carefully read every brief and thoughtfully listen to every oral
argument? Did I write or join an opinion that is clear and persuasive — without finessing or
ignoring a relevant issue? Did I draft my share of panel opinions, and respond to my colleagues’
drafts, within a reasonable time after argument? These and other bedeviling questions are ever
present, and for an honest judge, a measure of self-doubt is always there. Fortunately, however,
each appellate judge has two colleagues on every panel to provide reassurance– or a challenge. I
am most grateful for the 32 watchful judges with whom I have served over the years.