Fifth Interview
March 7, 2002
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
The interview took place at the offices of Hogan & Hartson L.L.P. on the 7th day of March 2002,
shortly after noon. This is the fifth interview.
Mr. Kapp: John. The last time we were together we began to talk about your approach to
your judicial function and your views with regard to judicial techniques of various
kinds, and I thought we ought to try to continue that part of the discussion and
wrap it up. And I would start by asking you, what do you believe to be the
qualities that are possessed by judges who lead in producing majorities in a
judicial context?
Judge Ferren: Well, I think the first quality is trustworthiness. That is to say, the judge has to be
somebody whose integrity and intelligence his or her colleagues trust, so that
when the judge says that a case stands for something, or makes a suggestion based
on various precedents, you trust what that person is saying. It’s not that you can’t
check it out yourself, but the integrity of what one represents from the facts of
record, or in the law, is central. The second thing is – and it’s akin to the first,
really – is that the judge has to be capable enough to argue coherently and
cogently from the facts and the law to a particular result, and to expose the
weaknesses in a result that someone else might advocate. So I think those two
factors, trust and intelligence, are the primary reasons for putting together a
majority. A third quality may be a certain degree of moderation, or even
conservatism in writing the opinion, that makes a majority of the judges hearing
the case feel comfortable with the result. I’m not thinking here in terms of
conservatism of the right versus liberalism of the left. I’m thinking, rather, in
terms of whether the judges perceive that what they are doing is something
unique, something different, a change in the law, a new step. Most judges, I think,
don’t like doing that, or they feel the judicial function allows for precious little of
it. Most judges believe that change in the law comes mainly from the legislature
and, as a consequence, that the judge should be limited to filling in the gaps the
legislature has left ambiguous or empty. I think that more often than not
somebody who is urging caution against change in the law from the court is likely
to persuade a majority.
I don’t happen to share that skepticism about the judge as lawmaker. I
think historically the judge has always been a lawmaker. In fact, legislatures came
along in England after judges were making the common law (although the judges
used the term “finding” the law in custom). Theoretically, in fact, the legislature,
meaning Parliament, was “finding” the law in custom just as the judges were. The
law was out there to be found, it wasn’t to be made. It was only after people began
to see the law as a positive creation, not something inherent in nature or custom,
that the question “who makes the law?” became relevant. I think that most judges
today do not credit their judicial heritage with the responsibility to initiate change
in the law that realistically is never going to come from the legislature in the first
instance, and yet such change, typically incremental, is vital to a just society. On
occasion a judge does have that responsibility, which, more often than not, means
looking out for the rights and interests of individuals against the large institutions
– whether it’s the government or private entities, such as business corporations. I
elaborated my views on that responsibility in some detail when concurring in a
case called Carl v. Children’s Hospital.
Mr. Kapp: How would you describe the process by which a particular panel or the court
sitting en banc reaches agreement with respect to the disposition of a case?
Judge Ferren: First I’d have to say, Bob, that most cases are decided rather easily. At least at the
first level of appeal. So the question, really, is, how are the difficult cases
decided? I think all appellate judges try to approach cases, whether sitting on a
panel or en banc, on the assumption that the answer is a legal one that can be
discovered by careful examination of statutory language, of legislative history, or,
in the case of the common law, of judicial decisions. But there comes a time
when, despite one’s best efforts to look at all these sources – and no clear answer
is found – the honest judge will admit that his or her own values enter into it, to
the point of saying: what would be the most just result? Where does fairness lie,
given the various interests affected? And I think judges come out differently,
depending on where their values may take them. Sometimes a decision based on
the judge’s values is hidden behind reliance on a court doctrine such as “standing”
or “justiciability” that the judge says does not permit the court to reach the merits
– a conclusion that other judges may question. That’s one way that judges avoid
making substantive decisions. But once you get beyond such bars, there’s no
question that values enter in, and then the question is, if you admit that, can you
still say that the decision on the merits has integrity- that it is principled? Does it
write in a persuasive way? What you end up having in such instances, where there
are honest differences, is a majority and a dissent. Or maybe more than one
dissent, or maybe a special concurrence suggesting an alternate route to decision.
The package of opinions allows people to examine what the various
considerations are. At that point, unless a constitutional question is at issue, the
legislature can change the decision. Or judges coming along later can do so after
experience with the application of a decision, and a refinement or greater change
is required. That’s how the process goes.
Mr. Kapp: Just focusing on your own court, where you are working in the context of a
difficult case, do you feel that the deliberation that goes on between the members
of the court is adequate or how is that process working?
Judge Ferren: For the 25 years I have been either an active member or Senior Judge of the D. C.
Court of Appeals, I have been impressed with the integrity of every judge’s effort
to decide the case properly. I am not aware of a single instance where I think a
colleague consciously has used his or her raw authority as a judge to seek out a
result and then find a way to rationalize it. Everybody has quite genuinely tried to
do the right thing. Second, in that process — because the court has always had
judges coming at issues from different perspectives, with different concerns –
there can be an internal discussion of a case that doesn’t bring an easy consensus.
Legal memoranda go back and forth; and shorter memoranda raising questions,
making points, have gone around. I have been impressed by the deliberations that
have taken place first in conference, then in writing. All the judges usually have
been well prepared going into argument. They have used argument to refine and
shape the issues and reach the result. I think that the citizens of the District of
Columbia, during the period I’m aware of, can be proud of the way the judges
have addressed the issues before them.
Mr. Kapp: Is the practice in your court to have conferences among the judges immediately
after oral argument, or might they occur at other times as well?
Judge Ferren: Normally, as soon as we’ve heard argument- say, three regular calendar cases
argued from 9:30-12:30 in the morning – we confer immediately to decide the
cases. We discuss the cases for maybe an hour, or an hour and a half, except for
those that are fairly easy to decide. Occasionally, we can’t decide a case at
conference, or even if we have decided it, an opinion will not write with the kind
of persuasive citation and discussion we’d anticipated; in trying to put the opinion
together, the authoring judge may discover an issue or a thought that hadn’t
occurred before. And so the judge will circulate a draft and recommend a change.
Or even sometimes a different result. But the effort always is to decide the case as
soon as possible and while the memory is still sharp. I think the unfortunate
aspect of any appellate court is when you have one or more judges who, after the
decision is made – or there is an understanding what the decision will be –
somehow will not get the work out on time, and the case gets cold and that judge
builds up a backlog of unwritten opinions. The clerks who help the judges at time
of argument then leave the court, new clerks come in, don’t know anything about
the case, and the situation is a mess. The one unfortunate part of my experience on
the court has been the few judges who simply cannot keep up. As a consequence,
the litigants- including often the public- are not well served because the decisions
come much too late.
Mr. Kapp: Would you say the judge to whom the case is assigned for purposes of writing the
opinion has any special responsibility or influence in achieving agreement among
the participants?
Judge Ferren: I think so, in the sense that, whenever you take the initiative as authoring judge,
you are going to have an additional increment of authority based on the fact that,
as I mentioned earlier, a colleague tends to trust the author for much that is said in
a draft opinion. Even when a colleague finds fault and recommends changes, there
will still be a residue that one simply has to trust that the author has gotten it right.
Nonetheless, there are various devices I use, and many of my colleagues do as
well, to try to help assure the other judges on the panel that the draft is sound. For
example, for every sentence I write in a draft opinion where I am stating the facts
of the case, or referring to the record, I put in a transcript or record reference so
that a colleague or a law clerk can check me out. And when somebody sends me
an opinion with all those transcript references in, I know that both the law clerk
and the judge have taken the care to make sure it’s right. There’s a credibility
inherent in that document that isn’t there if somebody just sends a draft around
without such annotation. Similarly, if the author puts parentheticals in explaining
a citation, the parentheticals may be taken out later to achieve a shorter, less
cluttered presentation, but at the draft stage, they help to give one confidence that
the judge who represents that a case stands for a certain proposition, has read it,
and stands behind the interpretation proffered. So yes, there is that additional
power in the author by virtue of initiating the result. But I can assure you that all
of us – I certainly do – read the draft opinion very carefully and make sure we
understand the decisions that are being relied on.
Mr. Kapp: There are, of course, cases where one of the judges in a larger panel, maybe more
than one, elects to write a dissenting opinion. And what do you see as the purpose
and function of a dissenting opinion?
Judge Ferren: Well, I think there are several purposes. First, it shows that certain results are not
foreordained or easily arrived at; that this is a close case. As a result, the public,
including the legislature, may take a close look at the area where the court is
making a decision and initiate a change the dissent is calling for. Second, apropos
of a comment I made earlier, I think that dissents tend to be the law of the future
more often than not. Sometimes they are looking backward when a creative
majority advances a change in the law. But usually it is the dissent that is asking
the court to move the law a little further along than the majority has been willing
to go. I think this is very important as a way of generating dialogue about where
the law ought to be. There is third result of, if not reason for, dissent: without it,
the majority opinion might be written a little less carefully, a little less precisely,
perhaps with fewer explanations, fewer citations. Sometimes a majority opinion
and a dissent, therefore, in effect become a dialogue that turns out to be a valuable
exercise. Back in the thirties, and even into the forties or later, the code of judicial
ethics discouraged dissent on the assumption that the public would feel less
confident in the result if it showed that judges were disagreeing. Thus, the idea
was for the dissenters to keep their mouths shut so that the legitimacy of the
opinion ostensibly coming from all the judges who heard the case would be
greater than if the vote were split. I think that’s ridiculous. I’m glad to say that
most judges these days feel free to dissent.
Mr. Kapp: To what extent do you feel that your decisions have been influenced by your own
past experience?
Judge Ferren: I think my decisions, of course, are influenced by my experience and that includes
who I am as a person as I have grown over time. That answer goes back to my
earlier acknowledgment that the personal values are part of a judge’s decision
whenever the decision becomes difficult and could go in any number of directions
and one is forced to choose among a number of plausible alternatives. I can’t tell
you a particular decision that I have arrived at where I am aware that a particular
value of mine has dictated a result in a close case. But I do know that as a person I
am concerned about overreaching by government; I am concerned about
overreaching by the business world against consumers and employees. As a
consequence of those concerns, based on perceptions from whatever experiences I
have had, I am sure that I am hyper-vigilant to guard against judicial decisions
that would really hurt people as individuals. I think that concern is the same when
it comes to constitutional rights, particularly the Bill of Rights, freedom of
expression and religion under the First Amendment, freedom from unreasonable
search and seizures under the Fourth. These values are very dear to me, and they
must have come from some kind of experience or worldview as I developed as a
person. I freely admit they are part of how I decide cases.
Mr. Kapp: Do you think your law school experience has had any role in that regard?
Judge Ferren: It has to, simply because you learn the law at law school. But the law school
experience may have had a negative impact that caused me to react against its
teachings. I went to a law school where I certainly sensed a most conservative or
moderate view of the law, a very cautious one. I don’t remember being energized
by law school toward any of my passions. In fact, if anything, I felt the law school
reflected the opposite of the kind of vision of the law that I instinctively had until
I got there! That negative reaction was one of the reasons why I was so excited
about being invited to come back to the law school to start a legal services
program, where students could be involved with helping low-income citizens
advocate their rights. I wanted to help students see that the law had much to do
with how people lived and how they were hurt and to add some realism to what
seemed to me, in law school, to be a very normative, very theoretical approach
often divorced from any real sense of justice.
Mr. Kapp: What about your private practice experience in terms of influence, if any, on your
decision making?
Judge Ferren: Well, my private practice experience before I got to Hogan & Hartson was limited
to Kirkland & Ellis in Chicago, where all I did was work for banks and
corporations- except for whatever legal aid work I could do on the side. I must say
I developed there a fairly cynical view of how the law was manipulated on behalf
of well-to-do corporate institutions. I can’t say, and I would not say, that I
witnessed or participated in situations that screwed individuals over. But I decided
that big firm practice was not the kind of private, the kind of legal experience I
wanted to make a lifetime career of. I am sure I reacted against that when I got
involved in developing voluntary legal aid programs. It seemed that all the decks
were stacked on behalf of the well-to-do and corporate institutions, and at that
time there did not seem to have been many good lawyers for people who had to
confront them. I guess it was all part of who I was anyway, but my Chicago
experience turned me off private practice.
Mr. Kapp: And what about your legal services experience would you say that played a role in
how you approach cases as a judge?
Judge Ferren: I certainly think it has in this sense, Bob. One of the wonderful things about being
on the D.C. Court of Appeals, or I should say as part of any state court systemand
we are a state court system – is that it deals with every kind of human
problem. Whether it’s a welfare cutoff, or an eviction, or a consumer credit issue,
or even a public utility rate challenge, or a medical malpractice case, or some
other kind of personal In Jury, or a contract dispute, or a problem with a dishonest
lawyer, or a criminal prosecution, this is where the whole world lives from day to
day. I think the diet of cases a judge in the state court system gets- and that I have
gotten – is so much richer, so much more interesting to deal with, than you find in
the federal courts generally speaking. And I say that by way of background,
because as a legal services person before I went to the court, or as one who got
involved in public interest practice, I had become personally acquainted with a lot
of the issues that I then became charged with disposing of as a judge. So I think I
brought to the job many insights into how the world works that I learned from my
legal services experience far better than I had learned in law school or certainly in
private practice with a large law firm. I do remember the pain in signing my first
orders sustaining evictions of persons who simply could not afford to stay in the
apartment. They didn’t have a defense in the world. That hurt, but one has to apply
the law.
Mr. Kapp: Just turning to your colleagues on the bench over the years that you served. Are
there any Superior Court judges whom you particularly admire would you say?
Judge Ferren: Yes, there certainly are. And you have to take different decades. I mean you have
to remember I came on the court when I was 40 and now I’m just a couple of
months shy of 65, so we’re covering a lot of judges over a long period of time.