Fern Smith Oral History Package

David McCarthy2022-05-23T10:39:19-04:00

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Fern Smith
December 26, 2007; January 7, 2008; January 28, 2008
Recommended
Citation
Transcript of Interview with Fern Smith (Dec. 26, 2007; Jan. 7, 2008; Jan.
28, 2008), https://abawtp.law.stanford.edu/exhibits/show/fern-smith.
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Association.
Terms of Use This oral history is part of the American Bar Association Women
Trailblazers in the Law Project, a project initiated by the ABA Commission
on Women in the Profession and sponsored by the ABA Senior Lawyers
Division. This is a collaborative research project between the American
Bar Association and the American Bar Foundation. Reprinted with
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ABA Commission on Women in the Profession
Women Trailblazers in the Law
ORAL HISTORY
of
FERN M. SMITH
Interviewer: Sarah Flanagan
Dates of Interviews:
December 26, 2007
January 7, 2008
January 28, 2008
ABA Commission on Women in the Profession
Women Trailblazers in the Law
ORAL HISTORY
of
FERN M. SMITH
Interviewer: Sarah Flanagan
Dates of Interviews:
December 26, 2007
January 7, 2008
January 28, 2008
ORAL HISTORY OF THE HONORABLE FERN M. SMITH (RET.)
FIRST INTERVIEW
December 26, 2007
This is the first interview of the oral history of the Honorable Fern M. Smith (Ret.), which is
being taken on behalf of Women Trailblazers in the Law, a Project of the American Bar
Association Commission on Women in the Profession. It is being conducted by Sarah Flanagan
on December 26, 2007.
Ms. Flanagan: Judge Smith, could you say your full name, including your middle name?
Judge Smith: Yes, my name is Fern Meyerson Smith.
Ms. Flanagan: And the date and place of your birth?
Judge Smith: November 7, 1933. San Francisco, California.
Ms. Flanagan: Could you just describe a little bit of your family’s background? What
generation came to the United States?
Judge Smith: Sure. My grandparents all came to the United States somewhere, I don’t
have the exact dates, but as best I can tell, somewhere between about 1895
and 1905. Three of my grandparents were from Russia originally and the
fourth was from some place in the Austrian — at that time I guess was part of
Austria. My father’s parents settled in New York originally, which is where
he was born, but they came to San Francisco when he was five, and my
mother’s family, parents, came right to San Francisco, where she was born,
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ORAL HISTORY OF THE HONORABLE FERN M. SMITH (RET.)
FIRST INTERVIEW
December 26, 2007
This is the first interview of the oral history of the Honorable Fern M. Smith (Ret.), which is
being taken on behalf of Women Trailblazers in the Law, a Project of the American Bar
Association Commission on Women in the Profession. It is being conducted by Sarah Flanagan
on December 26, 2007.
Ms. Flanagan: Judge Smith, could you say your full name, including your middle name?
Judge Smith: Yes, my name is Fern Meyerson Smith.
Ms. Flanagan: And the date and place of your birth?
Judge Smith: November 7, 1933. San Francisco, California.
Ms. Flanagan: Could you just describe a little bit of your family’s background? What
generation came to the United States?
Judge Smith: Sure. My grandparents all came to the United States somewhere, I don’t
have the exact dates, but as best I can tell, somewhere between about 1895
and 1905. Three of my grandparents were from Russia originally and the
fourth was from some place in the Austrian — at that time I guess was part of
Austria. My father’s parents settled in New York originally, which is where
he was born, but they came to San Francisco when he was five, and my
mother’s family, parents, came right to San Francisco, where she was born,
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although her father, my grandfather, died just a few years after, when my
mother was about four years old.
Ms. Flanagan: What are your parents’ names?
Judge Smith: My parents’ names are, my mother’s name was Sophie Blank, and my
father’s name was Sam Meyerson.
Ms. Flanagan: So one was born in New York and the other in San Francisco?
Judge Smith: Right.
Ms. Flanagan: What educational level did they get to?
Judge Smith: Well not terribly high. My father, who was very good looking and very
charming, was kind of a “Peck’s bad boy,” and so he was invited to leave
Polytechnic High School in the, I believe, in the 10th grade because
apparently he was spending more time at the pool hall than he was spending
in the classroom. However, he did, when he was 65 years old, go back to
San Jose State and get a GED, which I was very proud of him for. And my
mother went to a school called Commerce High, which was a public high
school here in San Francisco down in the Civic Center, and was a high
school graduate.
Ms. Flanagan: What was your father’s occupation?
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although her father, my grandfather, died just a few years after, when my
mother was about four years old.
Ms. Flanagan: What are your parents’ names?
Judge Smith: My parents’ names are, my mother’s name was Sophie Blank, and my
father’s name was Sam Meyerson.
Ms. Flanagan: So one was born in New York and the other in San Francisco?
Judge Smith: Right.
Ms. Flanagan: What educational level did they get to?
Judge Smith: Well not terribly high. My father, who was very good looking and very
charming, was kind of a “Peck’s bad boy,” and so he was invited to leave
Polytechnic High School in the, I believe, in the 10th grade because
apparently he was spending more time at the pool hall than he was spending
in the classroom. However, he did, when he was 65 years old, go back to
San Jose State and get a GED, which I was very proud of him for. And my
mother went to a school called Commerce High, which was a public high
school here in San Francisco down in the Civic Center, and was a high
school graduate.
Ms. Flanagan: What was your father’s occupation?
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Judge Smith: Well, he was basically a salesman, I think is the best way to put it. In many
different places and for many different products, but that was his primary
occupation.
Ms. Flanagan: Did your mother have an occupation outside the home?
Judge Smith: No, she did not.
Ms. Flanagan: What do you recall of your father’s and your mother’s politics and interests
when you were growing up?
Judge Smith: My parents were not terribly — I don’t recall them being politically involved
to be perfectly honest. So I can’t tell you. If I had to look back, I would
guess that they were Democrats at heart, but that is just a guess. They were
not people who talked a lot as I recall about current events or — they really
weren’t involved in them at all.
Ms. Flanagan: Did they read to you when you were a child?
Judge Smith: They did not.
Ms. Flanagan: Do you recall there being — given where your grandparents came from and
the time period — do you recall there being any kind of impact on your
family, as you perceived it, of World War I?
Judge Smith: I don’t know about World War I because I was born during the Depression,
and I think that was — there were a couple of things. Number one, my
grandparents, like a lot of immigrants from that era, were, basically were
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Judge Smith: Well, he was basically a salesman, I think is the best way to put it. In many
different places and for many different products, but that was his primary
occupation.
Ms. Flanagan: Did your mother have an occupation outside the home?
Judge Smith: No, she did not.
Ms. Flanagan: What do you recall of your father’s and your mother’s politics and interests
when you were growing up?
Judge Smith: My parents were not terribly — I don’t recall them being politically involved
to be perfectly honest. So I can’t tell you. If I had to look back, I would
guess that they were Democrats at heart, but that is just a guess. They were
not people who talked a lot as I recall about current events or — they really
weren’t involved in them at all.
Ms. Flanagan: Did they read to you when you were a child?
Judge Smith: They did not.
Ms. Flanagan: Do you recall there being — given where your grandparents came from and
the time period — do you recall there being any kind of impact on your
family, as you perceived it, of World War I?
Judge Smith: I don’t know about World War I because I was born during the Depression,
and I think that was — there were a couple of things. Number one, my
grandparents, like a lot of immigrants from that era, were, basically were
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driven out of their homes by anti-Semitism and left to escape that and
pogroms, officially or unofficially. And so they wanted no part of
remembering or passing on what they had lived through and were very
anxious in their children being as Americanized as possible. So, the
heritage was not something that was passed on. So that was part of it. They
were all very Orthodox Jews. My parents I think were affected primarily by
the Depression and the strains that brought. I was an only child and most of
my cousins were either only children or there might have been two children
in the family, but we were small families. I think that was a big impact that
was left both by what had brought them to the United States and then, again,
trying to earn a living. My grandparents were all minimally educated and so
my parents came from really very, very modest means. I am not going to
say they were poor because there was a roof over their heads and there was
food on the table, but there wasn’t a lot other than that.
Ms. Flanagan: You were born in San Francisco?
Judge Smith: I was. I was born at Mount Zion Hospital in San Francisco.
Ms. Flanagan: When did you move out of San Francisco?
Judge Smith: I moved out of San Francisco when I was in the 9th grade. At that time I
was, it was, what we call grammar school, junior high school and high
school. I was a 9th grader at Presidio Junior High School here in San
Francisco. My parents moved to San Jose because my father had a job
down there, and so I finished my high school in San Jose.
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driven out of their homes by anti-Semitism and left to escape that and
pogroms, officially or unofficially. And so they wanted no part of
remembering or passing on what they had lived through and were very
anxious in their children being as Americanized as possible. So, the
heritage was not something that was passed on. So that was part of it. They
were all very Orthodox Jews. My parents I think were affected primarily by
the Depression and the strains that brought. I was an only child and most of
my cousins were either only children or there might have been two children
in the family, but we were small families. I think that was a big impact that
was left both by what had brought them to the United States and then, again,
trying to earn a living. My grandparents were all minimally educated and so
my parents came from really very, very modest means. I am not going to
say they were poor because there was a roof over their heads and there was
food on the table, but there wasn’t a lot other than that.
Ms. Flanagan: You were born in San Francisco?
Judge Smith: I was. I was born at Mount Zion Hospital in San Francisco.
Ms. Flanagan: When did you move out of San Francisco?
Judge Smith: I moved out of San Francisco when I was in the 9th grade. At that time I
was, it was, what we call grammar school, junior high school and high
school. I was a 9th grader at Presidio Junior High School here in San
Francisco. My parents moved to San Jose because my father had a job
down there, and so I finished my high school in San Jose.
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Ms. Flanagan: Before you moved, looking at the grammar school years — where did you go
to grammar school?
Judge Smith: Argonne Grammar School, which was in the Richmond District, and I think
no longer exists, at least in the same form. It closed I know many years ago
because it was found not to be earthquake-proof, and I am not quite sure if it
ever re-opened or not. It was on the square block or almost a square block
between 17th and 18th Avenues on one side and Balboa and Cabrillo Streets
on the other.
Ms. Flanagan: Did you remember those as happy years as a student?
Judge Smith: I did.
Ms. Flanagan: You enjoyed being a student?
Judge Smith: Well I loved being — I enjoyed being a kid. Yes, I enjoyed being a student.
I always got good grades. The teachers always liked me. Yes. I was a
happy child, and I had lots of friends. And I remember growing up, that part
of growing up, as being a happy time in my life.
Ms. Flanagan: Did it come easily to you in school or did you have to work hard?
Judge Smith: No, I didn’t. Probably that was part of my early undoing was the fact that I
really didn’t have to work very hard and I didn’t work very hard. I think —
That was — The parents in those days were not what are referred to now as
helicopter parents. They did not hover. I mean my parents were always
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Ms. Flanagan: Before you moved, looking at the grammar school years — where did you go
to grammar school?
Judge Smith: Argonne Grammar School, which was in the Richmond District, and I think
no longer exists, at least in the same form. It closed I know many years ago
because it was found not to be earthquake-proof, and I am not quite sure if it
ever re-opened or not. It was on the square block or almost a square block
between 17th and 18th Avenues on one side and Balboa and Cabrillo Streets
on the other.
Ms. Flanagan: Did you remember those as happy years as a student?
Judge Smith: I did.
Ms. Flanagan: You enjoyed being a student?
Judge Smith: Well I loved being — I enjoyed being a kid. Yes, I enjoyed being a student.
I always got good grades. The teachers always liked me. Yes. I was a
happy child, and I had lots of friends. And I remember growing up, that part
of growing up, as being a happy time in my life.
Ms. Flanagan: Did it come easily to you in school or did you have to work hard?
Judge Smith: No, I didn’t. Probably that was part of my early undoing was the fact that I
really didn’t have to work very hard and I didn’t work very hard. I think —
That was — The parents in those days were not what are referred to now as
helicopter parents. They did not hover. I mean my parents were always
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proud of the fact that I was a good student, but you know, they didn’t — I
think because of their backgrounds and things, they didn’t put a lot of
demands on me, and school was always easy for me.
Ms. Flanagan:
Judge Smith:
Were you a reader?
I was. I loved reading. And again, I think in part because I was an only
child and there wasn’t any television at that time. My parents had a
reasonably active social life. I mean, they had lots of friends having grown
up in San Francisco and so they spent a lot of time — adult time — going to
friends’ homes or playing cards or things of that sort. So I had a lot of time
by myself and so I read a lot.
Ms. Flanagan: What kind of books did you like to read?
Judge Smith: Oh, almost anything I can remember reading when I was young all the
Nancy Drew books and I can remember reading Heidi and the Little
Princess and The Secret Garden and the Lassie series. There was a Public
Library around 9th and Clement, I think it may still be there, so I would go
over there a lot and bring home books. So I loved horse stories and dog
stories and mysteries and things about young people. Almost anything I
could get my hands on.
Ms. Flanagan: So up until the 9th grade did you live in the same neighborhood?
Judge Smith: I did. I always — I lived in several different houses. We never owned a
home. We were always renters. But I always lived in the Richmond
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proud of the fact that I was a good student, but you know, they didn’t — I
think because of their backgrounds and things, they didn’t put a lot of
demands on me, and school was always easy for me.
Ms. Flanagan:
Judge Smith:
Were you a reader?
I was. I loved reading. And again, I think in part because I was an only
child and there wasn’t any television at that time. My parents had a
reasonably active social life. I mean, they had lots of friends having grown
up in San Francisco and so they spent a lot of time — adult time — going to
friends’ homes or playing cards or things of that sort. So I had a lot of time
by myself and so I read a lot.
Ms. Flanagan: What kind of books did you like to read?
Judge Smith: Oh, almost anything I can remember reading when I was young all the
Nancy Drew books and I can remember reading Heidi and the Little
Princess and The Secret Garden and the Lassie series. There was a Public
Library around 9th and Clement, I think it may still be there, so I would go
over there a lot and bring home books. So I loved horse stories and dog
stories and mysteries and things about young people. Almost anything I
could get my hands on.
Ms. Flanagan: So up until the 9th grade did you live in the same neighborhood?
Judge Smith: I did. I always — I lived in several different houses. We never owned a
home. We were always renters. But I always lived in the Richmond
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District, somewhere between 17th Avenue and 21st and somewhere between
Geary Boulevard and Balboa. That was the world as I knew it at that time.
Ms. Flanagan: And it was a welcoming neighborhood for you?
Judge Smith: It was. It was a very welcoming neighborhood. There were — Geary Street
and Clement Street were very different, but there were lots of small shops,
grocery stores, and there was the Alexandria movie theatre and the
Coliseum. I spent a lot of time at the movies. I loved the movies. So yes, it
was a safe and friendly place.
Ms. Flanagan: Did you ever encounter — You mentioned your grandparents coming from
anti-Semitic experiences, did you ever experience anything like that in your
childhood?
Judge Smith: Not my childhood. Growing up in the Richmond in San Francisco there was
a big Jewish population, and so I — there were always a lot of Jewish
children in my classes, both at Argonne and at Presidio, and so no, I was — I
don’t think anti-Semitism was a concept that I was even aware of until later
in life.
Ms. Flanagan: Did you experience any challenges as a student? You know, grammar
school age student, it sounds like you made friends easily, studies came
easily to you. Were there any challenges you had to deal with?
Judge Smith: Well, there were but that’s part of what I don’t want to talk about so — They
had to do with my parents and there were a lot of issues there. But as far as
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District, somewhere between 17th Avenue and 21st and somewhere between
Geary Boulevard and Balboa. That was the world as I knew it at that time.
Ms. Flanagan: And it was a welcoming neighborhood for you?
Judge Smith: It was. It was a very welcoming neighborhood. There were — Geary Street
and Clement Street were very different, but there were lots of small shops,
grocery stores, and there was the Alexandria movie theatre and the
Coliseum. I spent a lot of time at the movies. I loved the movies. So yes, it
was a safe and friendly place.
Ms. Flanagan: Did you ever encounter — You mentioned your grandparents coming from
anti-Semitic experiences, did you ever experience anything like that in your
childhood?
Judge Smith: Not my childhood. Growing up in the Richmond in San Francisco there was
a big Jewish population, and so I — there were always a lot of Jewish
children in my classes, both at Argonne and at Presidio, and so no, I was — I
don’t think anti-Semitism was a concept that I was even aware of until later
in life.
Ms. Flanagan: Did you experience any challenges as a student? You know, grammar
school age student, it sounds like you made friends easily, studies came
easily to you. Were there any challenges you had to deal with?
Judge Smith: Well, there were but that’s part of what I don’t want to talk about so — They
had to do with my parents and there were a lot of issues there. But as far as
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my own world of my friends and school and things, no. I would say I was
blessed from the standpoint that life was pretty easy for me.
Ms. Flanagan: And then in 9th grade your family moved?
Judge Smith: They did. And much to my dismay — You know, the 9th grade, I was sure
my life was coming to an end immediately and abruptly and very unhappily,
and of course within a month I could barely remember that I had ever lived
in San Francisco.
Ms. Flanagan: What school did you go to in San Jose?
Judge Smith: I went to Herbert Hoover Junior High School, which was in the Rose
Garden section of San Jose, and it was fairly far from where I lived. I lived
in the Willow Glen section and so we took a school bus, which was a whole
new thing for me because in San Francisco, although Presidio was a fair
distance from where I lived, I just hopped on the streetcar and got myself
back and forth. But in San Jose that was not the way it was done.
Ms. Flanagan:
Judge Smith:
Was it still the closest school to you or was it the school district?
It was the school district, yes. That was it. And so, everybody from Willow
Glen who went to public school, and that was just about everybody my age,
went to Hoover and then on to Lincoln, which was a couple of blocks from
Hoover.
Ms. Flanagan: Is that where you went for high school?
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my own world of my friends and school and things, no. I would say I was
blessed from the standpoint that life was pretty easy for me.
Ms. Flanagan: And then in 9th grade your family moved?
Judge Smith: They did. And much to my dismay — You know, the 9th grade, I was sure
my life was coming to an end immediately and abruptly and very unhappily,
and of course within a month I could barely remember that I had ever lived
in San Francisco.
Ms. Flanagan: What school did you go to in San Jose?
Judge Smith: I went to Herbert Hoover Junior High School, which was in the Rose
Garden section of San Jose, and it was fairly far from where I lived. I lived
in the Willow Glen section and so we took a school bus, which was a whole
new thing for me because in San Francisco, although Presidio was a fair
distance from where I lived, I just hopped on the streetcar and got myself
back and forth. But in San Jose that was not the way it was done.
Ms. Flanagan:
Judge Smith:
Was it still the closest school to you or was it the school district?
It was the school district, yes. That was it. And so, everybody from Willow
Glen who went to public school, and that was just about everybody my age,
went to Hoover and then on to Lincoln, which was a couple of blocks from
Hoover.
Ms. Flanagan: Is that where you went for high school?
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Judge Smith: I went there for two years and then the start of my senior year Willow Glen
High School opened up in Willow Glen and so those of us who were in
Willow Glen were transferred to Willow Glen for our senior year. We were
the first graduating class. And of course that was a big transition because it
meant basically a lot of my friends, my close friends, were still at Lincoln,
and so that was sort of, you know, a big deal to us, to all of us who had
friends from both sides, not that it was a tragedy or anything It was just
another adjustment, but it was fun being the first class at Willow Glen.
Ms. Flanagan: So, were there any other — There were seniors and there were freshmen —
Did they populate all the classes?
Judge Smith: There was a junior high school which also opened up, I think it was called
Markham Junior High, on the same campus. And so, yes, there was a 10th,
11th and 12th who populated the school. It was a very small, relative —
Lincoln wasn’t terribly big, but I think my graduating class was 175,
something like that. It was populated primarily by kids who would come
from Lincoln, but there were only two high schools in San Jose prior to
Willow Glen opening. There was Lincoln and there was San Jose, which
was in the Eastern part of San Jose. And so when Willow Glen opened
there were the Willow Glen kids who came but there were also a number of
kids who had gone to San Jose High who were, lived kind of in between
Willow Glen and wherever San Jose High was, so they also were at Willow
Glen. And that was interesting because the population at Lincoln was a
very, very white middle-class population. It was basically kids from the
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Judge Smith: I went there for two years and then the start of my senior year Willow Glen
High School opened up in Willow Glen and so those of us who were in
Willow Glen were transferred to Willow Glen for our senior year. We were
the first graduating class. And of course that was a big transition because it
meant basically a lot of my friends, my close friends, were still at Lincoln,
and so that was sort of, you know, a big deal to us, to all of us who had
friends from both sides, not that it was a tragedy or anything It was just
another adjustment, but it was fun being the first class at Willow Glen.
Ms. Flanagan: So, were there any other — There were seniors and there were freshmen —
Did they populate all the classes?
Judge Smith: There was a junior high school which also opened up, I think it was called
Markham Junior High, on the same campus. And so, yes, there was a 10th,
11th and 12th who populated the school. It was a very small, relative —
Lincoln wasn’t terribly big, but I think my graduating class was 175,
something like that. It was populated primarily by kids who would come
from Lincoln, but there were only two high schools in San Jose prior to
Willow Glen opening. There was Lincoln and there was San Jose, which
was in the Eastern part of San Jose. And so when Willow Glen opened
there were the Willow Glen kids who came but there were also a number of
kids who had gone to San Jose High who were, lived kind of in between
Willow Glen and wherever San Jose High was, so they also were at Willow
Glen. And that was interesting because the population at Lincoln was a
very, very white middle-class population. It was basically kids from the
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Rose Garden district, which is relatively affluent, and kids from Willow
Glen. Affluent, not meaning Pacific Heights, but middle-class. Very white.
And then when the San Jose High kids, that group came over to Willow
Glen, there were a number of kids of Mexican descent. So that was an
interesting experience because I think, you know, we just weren’t used to
that. We had kids for whom English was a second language, for example.
Ms. Flanagan: Was there tension between the groups?
Judge Smith: No. No.
Ms. Flanagan: The kids got along?
Judge Smith: Well yes, there wasn’t — I don’t know that there was a lot of mixing socially
and they tended to have their own friendships and groups, but I don’t
remember any hostility. It was a very different world. It was a pretty easy
time when I look back on it now. It was before the Vietnam War and after
World War II, and life was pretty good.
Ms. Flanagan: For you personally, did you continue to be a good student, grades came
easily to you and friendships?
Judge Smith: I was, yeah, all of those things and friendships, and I was very active. I
mean, I got elected to things, and I was in groups, the Honor Society and the
Student Body, and I was a pom-pom — all those, you know…
Ms. Flanagan: You were a pom-pom girl?
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Rose Garden district, which is relatively affluent, and kids from Willow
Glen. Affluent, not meaning Pacific Heights, but middle-class. Very white.
And then when the San Jose High kids, that group came over to Willow
Glen, there were a number of kids of Mexican descent. So that was an
interesting experience because I think, you know, we just weren’t used to
that. We had kids for whom English was a second language, for example.
Ms. Flanagan: Was there tension between the groups?
Judge Smith: No. No.
Ms. Flanagan: The kids got along?
Judge Smith: Well yes, there wasn’t — I don’t know that there was a lot of mixing socially
and they tended to have their own friendships and groups, but I don’t
remember any hostility. It was a very different world. It was a pretty easy
time when I look back on it now. It was before the Vietnam War and after
World War II, and life was pretty good.
Ms. Flanagan: For you personally, did you continue to be a good student, grades came
easily to you and friendships?
Judge Smith: I was, yeah, all of those things and friendships, and I was very active. I
mean, I got elected to things, and I was in groups, the Honor Society and the
Student Body, and I was a pom-pom — all those, you know…
Ms. Flanagan: You were a pom-pom girl?
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Judge Smith: I was a pom-pom girl. It was very unofficial you know, but yeah. I was just
really lucky. I look back and I think about my teenage years and they were
fun. They were fun.
Ms. Flanagan: As you were moving through high school, did you give any thought to what
you were going to do next or what your dreams were for the future?
Judge Smith:
Ms. Flanagan:
Judge Smith:
I assumed that life would go on being, in that way, as easy as it had always
been. I assumed I would go to either Cal or San Jose State, but there were,
again, family problems that occurred that meant I didn’t go to college at all,
which wasn’t part of my plan.
Yes. Did you continue to be a good reader through high school?
I did, although I would have to say that partying took up more of my time
than reading. I had a very busy social life. Yeah, I probably — I mean I was
a good reader, but I didn’t have the hours that I spent alone because I had
friends. And in those days kids drove very early because there wasn’t really
much public transportation and you could get — If you had to drive to school
you could get a driver’s license at fourteen. And of course everybody could
get one at sixteen, and there weren’t these rules about if you were sixteen
you couldn’t drive with other kids, and so, you know, on the day you were
sixteen everybody trotted down to the DMV and got a driver’s license. So
everybody drove. So once you were in high school there was just, you
know, as I say it, I make it sound Like American Graffiti, and in a way it
was. It was just a very happy time.
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Judge Smith: I was a pom-pom girl. It was very unofficial you know, but yeah. I was just
really lucky. I look back and I think about my teenage years and they were
fun. They were fun.
Ms. Flanagan: As you were moving through high school, did you give any thought to what
you were going to do next or what your dreams were for the future?
Judge Smith:
Ms. Flanagan:
Judge Smith:
I assumed that life would go on being, in that way, as easy as it had always
been. I assumed I would go to either Cal or San Jose State, but there were,
again, family problems that occurred that meant I didn’t go to college at all,
which wasn’t part of my plan.
Yes. Did you continue to be a good reader through high school?
I did, although I would have to say that partying took up more of my time
than reading. I had a very busy social life. Yeah, I probably — I mean I was
a good reader, but I didn’t have the hours that I spent alone because I had
friends. And in those days kids drove very early because there wasn’t really
much public transportation and you could get — If you had to drive to school
you could get a driver’s license at fourteen. And of course everybody could
get one at sixteen, and there weren’t these rules about if you were sixteen
you couldn’t drive with other kids, and so, you know, on the day you were
sixteen everybody trotted down to the DMV and got a driver’s license. So
everybody drove. So once you were in high school there was just, you
know, as I say it, I make it sound Like American Graffiti, and in a way it
was. It was just a very happy time.
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Ms. Flanagan: Did the outside world intrude at all, were you conscious of any national
events or anything like that that had an impact?
Judge Smith: No. I think we were incredibly oblivious to almost everything other than
ourselves. Maybe some people weren’t, but again, my parents were not
what I would call inquisitive about the outside world. They were smart, not
well educated, but smart, but incredibly, I think, narrow and self-absorbed
about what their interests were, so we were not a family that spent, you
know, we weren’t like the Kennedys. We didn’t have a dinner table
conversation where I was asked probing questions about anything other than
who was I going out with and why was I going out with that person and
those kinds of things.
Ms. Flanagan: Did you travel at all in your grammar school or high school years?
Judge Smith: Very little. We took a couple of automobile trips, but, again, we didn’t have
a lot of money. We owned our first house in San Jose. We took — I
remember one year we went to Bryce National Park and Zion National Park,
and all I can remember is that it was really, really hot. We didn’t do
anything exotic really.
Ms. Flanagan: Did you have any pets when you were a child?
Judge Smith: Very few. There were a couple of times that we had dogs, and they just
seemed to encounter sad demises of various things, and so, no, animals were
not a big part of our family life.
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Ms. Flanagan: Did the outside world intrude at all, were you conscious of any national
events or anything like that that had an impact?
Judge Smith: No. I think we were incredibly oblivious to almost everything other than
ourselves. Maybe some people weren’t, but again, my parents were not
what I would call inquisitive about the outside world. They were smart, not
well educated, but smart, but incredibly, I think, narrow and self-absorbed
about what their interests were, so we were not a family that spent, you
know, we weren’t like the Kennedys. We didn’t have a dinner table
conversation where I was asked probing questions about anything other than
who was I going out with and why was I going out with that person and
those kinds of things.
Ms. Flanagan: Did you travel at all in your grammar school or high school years?
Judge Smith: Very little. We took a couple of automobile trips, but, again, we didn’t have
a lot of money. We owned our first house in San Jose. We took — I
remember one year we went to Bryce National Park and Zion National Park,
and all I can remember is that it was really, really hot. We didn’t do
anything exotic really.
Ms. Flanagan: Did you have any pets when you were a child?
Judge Smith: Very few. There were a couple of times that we had dogs, and they just
seemed to encounter sad demises of various things, and so, no, animals were
not a big part of our family life.
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Ms. Flanagan: Were you engaged at all in athletic activities?
Judge Smith: Not much. No.
Ms. Flanagan: You were a pom-pom girl, you cheered on the troops?
Judge Smith: I was a great supporter. I’m a great spectator at sports, and so I got a
vicarious thrill, primarily from dating the team quarterback.
Ms. Flanagan: So I think you’ve answered the next question I was going to ask, which is,
I’m sure even in those innocent times, there were cliques in the schools?
Judge Smith: There were cliques.
Ms. Flanagan: And it sounds like you would have been in the “in crowd.” Is that fair?
Judge Smith: That is a fair statement. Yes.
Ms. Flanagan: And then you have already mentioned that when the end of the high school
years came, your plans to go to college abruptly changed due to family
circumstances. What did you do instead?
Judge Smith: My mother and I moved back to San Francisco, and I went — I got a job in
an office, and for the next several years I basically was an office clerk,
either in an accounting department, primarily in accounting departments. I
wasn’t an accountant of any sort, but I was very good with numbers and
things like that.
Telephone interruption
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Ms. Flanagan: Were you engaged at all in athletic activities?
Judge Smith: Not much. No.
Ms. Flanagan: You were a pom-pom girl, you cheered on the troops?
Judge Smith: I was a great supporter. I’m a great spectator at sports, and so I got a
vicarious thrill, primarily from dating the team quarterback.
Ms. Flanagan: So I think you’ve answered the next question I was going to ask, which is,
I’m sure even in those innocent times, there were cliques in the schools?
Judge Smith: There were cliques.
Ms. Flanagan: And it sounds like you would have been in the “in crowd.” Is that fair?
Judge Smith: That is a fair statement. Yes.
Ms. Flanagan: And then you have already mentioned that when the end of the high school
years came, your plans to go to college abruptly changed due to family
circumstances. What did you do instead?
Judge Smith: My mother and I moved back to San Francisco, and I went — I got a job in
an office, and for the next several years I basically was an office clerk,
either in an accounting department, primarily in accounting departments. I
wasn’t an accountant of any sort, but I was very good with numbers and
things like that.
Telephone interruption
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Ms. Flanagan: When we took that break, Fern, you were telling us about the job positions
that you took after high school.
Judge Smith: Right. They were not — They were just office jobs. As I say, they tended, I
guess, all to be in accounting departments or accounting related, an
accounting clerk generally. I always had an easy time with math, and I was
a quick study, and so I could learn quickly, but I didn’t have any training to
do anything of any very high professional level. And, so the years between
I would say graduating high school, I was seventeen when I graduated, and
until I got married, at twenty-one, were a series of jobs like that. They were
respectable and interesting to some degree.
Ms. Flanagan:
Judge Smith:
But it was all on-the-job training?
It was all on-the-job training, yes. And then when I was twenty-one, I got
married and continued to do the last job that I had really until my first
daughter was born, and that was a couple of years later and then I stopped
working at that point.
Ms. Flanagan: Just to put some years on this, what year did you get married?
Judge Smith: 1955.
Ms. Flanagan: What was your husband’s occupation?
Judge Smith: He was a security analyst at the time. He had a graduate degree from, he
had an MBA from Stanford. And we got married shortly after he finished
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Ms. Flanagan: When we took that break, Fern, you were telling us about the job positions
that you took after high school.
Judge Smith: Right. They were not — They were just office jobs. As I say, they tended, I
guess, all to be in accounting departments or accounting related, an
accounting clerk generally. I always had an easy time with math, and I was
a quick study, and so I could learn quickly, but I didn’t have any training to
do anything of any very high professional level. And, so the years between
I would say graduating high school, I was seventeen when I graduated, and
until I got married, at twenty-one, were a series of jobs like that. They were
respectable and interesting to some degree.
Ms. Flanagan:
Judge Smith:
But it was all on-the-job training?
It was all on-the-job training, yes. And then when I was twenty-one, I got
married and continued to do the last job that I had really until my first
daughter was born, and that was a couple of years later and then I stopped
working at that point.
Ms. Flanagan: Just to put some years on this, what year did you get married?
Judge Smith: 1955.
Ms. Flanagan: What was your husband’s occupation?
Judge Smith: He was a security analyst at the time. He had a graduate degree from, he
had an MBA from Stanford. And we got married shortly after he finished
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his MBA, and he had a job with Trans America as a security analyst in the
Financial District. So we lived just a few blocks — I mean we came back —
We were still living in the same neighborhood that I, in a way, had grown up
in. In fact, when Susan was born we lived about a block and a half from
where I live now. When she was two — no, she was about a year and a half I
guess — he got a job with a small electronics firm in Silicon Valley, which
was just starting its kind of boom, and we moved down to the Palo Alto, Los
Altos area at that time, and that is where I lived really until after I finished
law school and until after my daughters were out of the house.
Ms. Flanagan: And so what year did you stop working outside the home?
Judge Smith: 1957.
Ms. Flanagan: And so from 1957 — And when did you go back to school?
Judge Smith: I started Foothill in 1968.
Ms. Flanagan: So from 1957 to 1968 you were a stay-at-home, taking care of your two
daughters?
Judge Smith: I was a stay-at-home, right.
Ms. Flanagan: How did you spend your time then? Did you have interests outside the
home or activities you were involved in?
Judge Smith: Well, I did, but you know they tended to be sort of — They tended to be what
middle-class stay-at-home women did at the time. A lot was involved. I
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his MBA, and he had a job with Trans America as a security analyst in the
Financial District. So we lived just a few blocks — I mean we came back —
We were still living in the same neighborhood that I, in a way, had grown up
in. In fact, when Susan was born we lived about a block and a half from
where I live now. When she was two — no, she was about a year and a half I
guess — he got a job with a small electronics firm in Silicon Valley, which
was just starting its kind of boom, and we moved down to the Palo Alto, Los
Altos area at that time, and that is where I lived really until after I finished
law school and until after my daughters were out of the house.
Ms. Flanagan: And so what year did you stop working outside the home?
Judge Smith: 1957.
Ms. Flanagan: And so from 1957 — And when did you go back to school?
Judge Smith: I started Foothill in 1968.
Ms. Flanagan: So from 1957 to 1968 you were a stay-at-home, taking care of your two
daughters?
Judge Smith: I was a stay-at-home, right.
Ms. Flanagan: How did you spend your time then? Did you have interests outside the
home or activities you were involved in?
Judge Smith: Well, I did, but you know they tended to be sort of — They tended to be what
middle-class stay-at-home women did at the time. A lot was involved. I
15
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was room mother and baking cupcakes and driving the girls places and
going to the park with friends who had children of similar ages, and I played
bridge, and I played a little bit of tennis. What else did we do? My husband
and I had a nice circle of friends, and so it was that kind of thing. There
wasn’t a particular independent type of activity that I was in. Most of it was
family-related or related to our general social life.
Ms. Flanagan: When you had sort of changed your plans coming out of high school, or had
them changed for you really, were you thinking as you were working, as you
were starting your family, that you were going to go back to school, or was
that kind of off the radar screen?
Judge Smith: It wasn’t really off the radar screen. I was always very conscious of the fact
that I hadn’t done this. And when my husband and I got married and he —
As I say, he had an MBA, not only had an MBA but from a very prestigious
school. And most of the friends that we made were friends that I met
through him and his contacts, and so we had a group of friends in which the
husbands all were college educated and many had graduate degrees. The
wives tended to either have graduated college or have gone, started college,
met their future husbands, dropped out before graduating. But everybody
pretty — I think everybody except for me had a college background. And I
was always very conscious of the fact that I didn’t. So yes, it was never off
the radar screen, but it never, I never really sat down and said, thought about
what I could do to change it or if I should change it.
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was room mother and baking cupcakes and driving the girls places and
going to the park with friends who had children of similar ages, and I played
bridge, and I played a little bit of tennis. What else did we do? My husband
and I had a nice circle of friends, and so it was that kind of thing. There
wasn’t a particular independent type of activity that I was in. Most of it was
family-related or related to our general social life.
Ms. Flanagan: When you had sort of changed your plans coming out of high school, or had
them changed for you really, were you thinking as you were working, as you
were starting your family, that you were going to go back to school, or was
that kind of off the radar screen?
Judge Smith: It wasn’t really off the radar screen. I was always very conscious of the fact
that I hadn’t done this. And when my husband and I got married and he —
As I say, he had an MBA, not only had an MBA but from a very prestigious
school. And most of the friends that we made were friends that I met
through him and his contacts, and so we had a group of friends in which the
husbands all were college educated and many had graduate degrees. The
wives tended to either have graduated college or have gone, started college,
met their future husbands, dropped out before graduating. But everybody
pretty — I think everybody except for me had a college background. And I
was always very conscious of the fact that I didn’t. So yes, it was never off
the radar screen, but it never, I never really sat down and said, thought about
what I could do to change it or if I should change it.
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Ms. Flanagan: During those years while you were raising your family, did you get involved
in any kind of legal causes or community causes?
Judge Smith: No. The only thing I did, I remember taking the girls and going with a
friend of mine and her children and we came up here and we marched in a
Vietnam protest when the girls were — I may have already been at Foothill
by then, or even at Stanford, I may well have been, it was either right before
I started or during that time — but that’s the only thing I can remember that
left any mark on me.
Ms. Flanagan: And the — When you — What prompted you, then, to go to Foothill? Where
were you at in your life where all of a sudden you decided to act on it?
Judge Smith: Well, I think part of it was, as I say, I had always had this complex or little
kernel of regret. I wouldn’t call it a complex, but a kernel of regret. I had
met my husband through another couple. She and I had gone to high school
together and had remained good friends, and she had married very young
without any college and had married a close friend of my husband, a close
high school friend, and we had stayed friendly as couples and had gone on
vacations together. A couple of years we went down to a little place in, just
over the border in Mexico, called Rosarita Beach in Mexico. And Carol and
Al had four children, four young children. And Al was not as far along in
business as my husband was. He hadn’t done as well. He didn’t have a
graduate degree. And their, well none of us were rich. Their means were
more limited than our means. And we were on the beach one day, and Carol
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Ms. Flanagan: During those years while you were raising your family, did you get involved
in any kind of legal causes or community causes?
Judge Smith: No. The only thing I did, I remember taking the girls and going with a
friend of mine and her children and we came up here and we marched in a
Vietnam protest when the girls were — I may have already been at Foothill
by then, or even at Stanford, I may well have been, it was either right before
I started or during that time — but that’s the only thing I can remember that
left any mark on me.
Ms. Flanagan: And the — When you — What prompted you, then, to go to Foothill? Where
were you at in your life where all of a sudden you decided to act on it?
Judge Smith: Well, I think part of it was, as I say, I had always had this complex or little
kernel of regret. I wouldn’t call it a complex, but a kernel of regret. I had
met my husband through another couple. She and I had gone to high school
together and had remained good friends, and she had married very young
without any college and had married a close friend of my husband, a close
high school friend, and we had stayed friendly as couples and had gone on
vacations together. A couple of years we went down to a little place in, just
over the border in Mexico, called Rosarita Beach in Mexico. And Carol and
Al had four children, four young children. And Al was not as far along in
business as my husband was. He hadn’t done as well. He didn’t have a
graduate degree. And their, well none of us were rich. Their means were
more limited than our means. And we were on the beach one day, and Carol
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was telling me that she had started going to Fullerton Junior College in
Southern California, and that she was going to become a dental technician.
And we talked about why. And we had similar problems in our families —
We both had come from troubled families, I’ll put it that way. The
problems weren’t exactly the same, but both of us had come from what I
think can best be described as extremely dysfunctional families. And both
of us had, I think, done very well in high school, had felt thwarted by not
going forward, and so we started talking about this. And I just decided that
it was time for me to either stop moping about the fact that I didn’t have a
college education or do something about it. And that if Carol with four
young children, very close in ages together, and less money than I had could
do it, that I could do it. And if I didn’t, then it was just because I was too
lazy or too unmotivated, and I had to stop feeling sorry for myself. So I
came back — We were living in Los Altos. Where were we living? We were
living in Los Altos Hills at the time, and I, we came back, and it was the end
of August. And Foothill College was literally down the road from where we
lived. And so I hiked myself over to Foothill College and announced that I
was there to register for the fall semester.
Ms. Flanagan:
Judge Smith:
And this was 1968?
This was in 1968, and they said “Well, what would you like to take?” And I
said, “Well, how about this?” “Well, no; you don’t — You have to have
some prerequisites from high school” or “Do you have your transcript?” Of
course, I didn’t have a transcript and I didn’t have prerequisites and this was
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was telling me that she had started going to Fullerton Junior College in
Southern California, and that she was going to become a dental technician.
And we talked about why. And we had similar problems in our families —
We both had come from troubled families, I’ll put it that way. The
problems weren’t exactly the same, but both of us had come from what I
think can best be described as extremely dysfunctional families. And both
of us had, I think, done very well in high school, had felt thwarted by not
going forward, and so we started talking about this. And I just decided that
it was time for me to either stop moping about the fact that I didn’t have a
college education or do something about it. And that if Carol with four
young children, very close in ages together, and less money than I had could
do it, that I could do it. And if I didn’t, then it was just because I was too
lazy or too unmotivated, and I had to stop feeling sorry for myself. So I
came back — We were living in Los Altos. Where were we living? We were
living in Los Altos Hills at the time, and I, we came back, and it was the end
of August. And Foothill College was literally down the road from where we
lived. And so I hiked myself over to Foothill College and announced that I
was there to register for the fall semester.
Ms. Flanagan:
Judge Smith:
And this was 1968?
This was in 1968, and they said “Well, what would you like to take?” And I
said, “Well, how about this?” “Well, no; you don’t — You have to have
some prerequisites from high school” or “Do you have your transcript?” Of
course, I didn’t have a transcript and I didn’t have prerequisites and this was
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filled or that was. Well, anyway, I finally said “Okay, what do you have
that you’ll let me into?” And they said, “Well,” or the woman, whoever I
was talking to said, “Well, we have a course called Marriage and Family
Life, and it’s a three-hour class one night a week, and you don’t need any
prerequisites, and you can then send for your transcript, etc.” And I signed
up for it. And that was kind of the start. I just loved it. And I got my
transcript, and the next semester I started going full-time and didn’t quite
know how to stop after that.
Ms. Flanagan: You know, when you were feeling the urge to go, did you have in mind that
you needed an education to do something else?
Judge Smith: No.
Ms. Flanagan: Did you have in mind that you just wanted to learn or you felt there was sort
of a gap in your life that hadn’t…
Judge Smith: I just felt there was sort of a gap in my life, really.
Ms. Flanagan: So you didn’t have kind of a plan as to where this was all going to take you?
Judge Smith: I had no plan, no. Even when I started, I had no plan, and part of it was that
I had this gap, but part of it was that the girls were six and ten by then, so
they were starting to be gone more hours in the day. And I was becoming
bored, frankly, with the life that I had. There was something missing, and I
didn’t really want to fill it up — I mean, I enjoyed the social part of my life,
and I enjoyed my friends, but it simply seemed to me that filling my whole
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filled or that was. Well, anyway, I finally said “Okay, what do you have
that you’ll let me into?” And they said, “Well,” or the woman, whoever I
was talking to said, “Well, we have a course called Marriage and Family
Life, and it’s a three-hour class one night a week, and you don’t need any
prerequisites, and you can then send for your transcript, etc.” And I signed
up for it. And that was kind of the start. I just loved it. And I got my
transcript, and the next semester I started going full-time and didn’t quite
know how to stop after that.
Ms. Flanagan: You know, when you were feeling the urge to go, did you have in mind that
you needed an education to do something else?
Judge Smith: No.
Ms. Flanagan: Did you have in mind that you just wanted to learn or you felt there was sort
of a gap in your life that hadn’t…
Judge Smith: I just felt there was sort of a gap in my life, really.
Ms. Flanagan: So you didn’t have kind of a plan as to where this was all going to take you?
Judge Smith: I had no plan, no. Even when I started, I had no plan, and part of it was that
I had this gap, but part of it was that the girls were six and ten by then, so
they were starting to be gone more hours in the day. And I was becoming
bored, frankly, with the life that I had. There was something missing, and I
didn’t really want to fill it up — I mean, I enjoyed the social part of my life,
and I enjoyed my friends, but it simply seemed to me that filling my whole
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life playing bridge and tennis and baking cupcakes and selling raffle tickets
for school events was not something that I could or wanted to do for the rest
of my life.
Ms. Flanagan: And was your husband supportive of your going back to school?
Judge Smith: He was incredibly supportive. And although we did divorce later, I have
always been incredibly grateful to him for encouraging me to do this and for
supporting me financially during all of these years. And for, you know, I
think putting up with a family life that changed and from my, with my
changing from a full-time stay-at-home wife and mother to someone trying
to squeeze a whole lot of things into the same number of hours.
Ms. Flanagan: How did your daughters react to the change?
Judge Smith: Well, they were mixed at the time. I think their — When I look back, they
were kids themselves, and so I think in part they were a little resentful. I
remember the younger one being quite annoyed, not annoyed, but I think
feeling a little jealous because at one point, I remember, she wanted me to
be the room mother for a particular grade and I just couldn’t. And well, you
know, “You did it for Susan and …” and so I wasn’t always, I wasn’t there
as much. I tried to always be there when they came home from school, and
we always had dinner together. And I tried never to start my homework
then until they were in bed or whatever, but clearly it made a difference.
And so, I think, plus the fact that I was the only mother doing these weird
things, you know. Because by then my husband was doing quite well. I
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life playing bridge and tennis and baking cupcakes and selling raffle tickets
for school events was not something that I could or wanted to do for the rest
of my life.
Ms. Flanagan: And was your husband supportive of your going back to school?
Judge Smith: He was incredibly supportive. And although we did divorce later, I have
always been incredibly grateful to him for encouraging me to do this and for
supporting me financially during all of these years. And for, you know, I
think putting up with a family life that changed and from my, with my
changing from a full-time stay-at-home wife and mother to someone trying
to squeeze a whole lot of things into the same number of hours.
Ms. Flanagan: How did your daughters react to the change?
Judge Smith: Well, they were mixed at the time. I think their — When I look back, they
were kids themselves, and so I think in part they were a little resentful. I
remember the younger one being quite annoyed, not annoyed, but I think
feeling a little jealous because at one point, I remember, she wanted me to
be the room mother for a particular grade and I just couldn’t. And well, you
know, “You did it for Susan and …” and so I wasn’t always, I wasn’t there
as much. I tried to always be there when they came home from school, and
we always had dinner together. And I tried never to start my homework
then until they were in bed or whatever, but clearly it made a difference.
And so, I think, plus the fact that I was the only mother doing these weird
things, you know. Because by then my husband was doing quite well. I
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mean, again, not Bill Gates well, but he was making a good living. And our
friends were, tended to come from similar backgrounds, and so none of the
wives worked. It just wasn’t the way things were done then. And they
were, you know, stay-at-home mothers, and so I was a little weird.
Ms. Flanagan: Were the other mothers supportive of what you were doing and helpful to
you, or think that you were embarking on some, you know, odd frolic?
Judge Smith: I think they were mixed, yeah. I don’t know that I would call them
supportive. I think some of them were a little jealous, and I think some of
them were critical, and I think some of them just puzzled about why I was
doing this. I would occasionally get questions about how did I deal with the
guilt, that kind of thing. So, yeah, it was, it was a mixed bag.
Ms. Flanagan: And what was your focus at Foothill? So you were at Foothill for two
years?
Judge Smith: Yes.
Ms. Flanagan: And what was your academic focus?
Judge Smith: There really was — I mean it was really just a liberal undergraduate, you
know. I got an AA, but it was a broad spectrum. I took some science
classes. I didn’t take any math classes, but I took science classes and I took
history and English.
Ms. Flanagan: And you did quite well at Foothill?
700921475v1
21
mean, again, not Bill Gates well, but he was making a good living. And our
friends were, tended to come from similar backgrounds, and so none of the
wives worked. It just wasn’t the way things were done then. And they
were, you know, stay-at-home mothers, and so I was a little weird.
Ms. Flanagan: Were the other mothers supportive of what you were doing and helpful to
you, or think that you were embarking on some, you know, odd frolic?
Judge Smith: I think they were mixed, yeah. I don’t know that I would call them
supportive. I think some of them were a little jealous, and I think some of
them were critical, and I think some of them just puzzled about why I was
doing this. I would occasionally get questions about how did I deal with the
guilt, that kind of thing. So, yeah, it was, it was a mixed bag.
Ms. Flanagan: And what was your focus at Foothill? So you were at Foothill for two
years?
Judge Smith: Yes.
Ms. Flanagan: And what was your academic focus?
Judge Smith: There really was — I mean it was really just a liberal undergraduate, you
know. I got an AA, but it was a broad spectrum. I took some science
classes. I didn’t take any math classes, but I took science classes and I took
history and English.
Ms. Flanagan: And you did quite well at Foothill?
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Judge Smith: Actually, I did very well at Foothill. I graduated first in my class with a
4.0.
Ms. Flanagan: And from there you went to Stanford?
Judge Smith: And from there I went to Stanford.
Ms. Flanagan: And what was your focus at Stanford?
Judge Smith: I majored in sociology, not because I really want — I wanted to major in
psychology, but I had been told by some unknown source whom I can’t
even remember and who clearly didn’t know what he or she was talking
about, that if I wanted to get into Stanford, I shouldn’t apply to the
Psychology Department because psychology was one of their most popular
majors. And so I should pick something else and then, you know, take
psychology courses. So I looked through the books, and sociology had the
fewest required courses of any major that was at all related or that I thought
I could have any hope of coping with. And so I thought, well, that would be
good because that left lots of electives for me to take. So that’s what I did.
I majored in sociology. Took a lot of psychology electives but, you know,
took a statistics course, took a lot of… again, a lot of English and Englishrelated courses and some history courses.
Ms. Flanagan: Given everything that was on your plate at the time, were you able to take
advantage of extracurricular activities at Stanford?
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Judge Smith: Actually, I did very well at Foothill. I graduated first in my class with a
4.0.
Ms. Flanagan: And from there you went to Stanford?
Judge Smith: And from there I went to Stanford.
Ms. Flanagan: And what was your focus at Stanford?
Judge Smith: I majored in sociology, not because I really want — I wanted to major in
psychology, but I had been told by some unknown source whom I can’t
even remember and who clearly didn’t know what he or she was talking
about, that if I wanted to get into Stanford, I shouldn’t apply to the
Psychology Department because psychology was one of their most popular
majors. And so I should pick something else and then, you know, take
psychology courses. So I looked through the books, and sociology had the
fewest required courses of any major that was at all related or that I thought
I could have any hope of coping with. And so I thought, well, that would be
good because that left lots of electives for me to take. So that’s what I did.
I majored in sociology. Took a lot of psychology electives but, you know,
took a statistics course, took a lot of… again, a lot of English and Englishrelated courses and some history courses.
Ms. Flanagan: Given everything that was on your plate at the time, were you able to take
advantage of extracurricular activities at Stanford?
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Judge Smith: No. It wasn’t so much that I wasn’t able to, I just didn’t. It wasn’t my
world anymore. At the time you had to go to Stanford full-time, so there
were not people like me. Again, I was an odd bird at Stanford.
Ms. Flanagan: And how old were you when you were starting at Stanford?
Judge Smith: Let’s see… It was in 1970, so I was 37, 36 or 37. But, yeah, I mean I
certainly wasn’t going to go to frat parties or keg parties, and I didn’t have
the time even if I had wanted to. So the only thing I did is, somewhere in
there were Stanford’s glory days. Jim Plunkett was the quarterback and
Randy Vataha, and they went to the Rose Bowl a couple of years while I
was there. And I’ve always been a big football fan. I guess it came from
dating the quarterback in high school, but I sort of was emotionally stunted
about football at that time. I’ve always loved football, so that was fun. And
I would go to the football games and occasionally I could talk either my
husband or one of my kids into going with me, but that was really all I did.
Ms. Flanagan:
Judge Smith:
And did you make friends at Stanford?
I did. And, yeah, I made one friend in particular who was actually the
person — Without having had him as a friend, I would never have gone to
law school. But he was young, very young; he was 20, 21. But I did make
some friends. Most of them I didn’t see outside of class because I was a
middle-aged housewife as far as they were concerned, and they didn’t really
fit into my life, but they were friends that I could sit down — and this is still
at the undergraduate level that we’re talking about — and at least have lunch
700921475v1
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Judge Smith: No. It wasn’t so much that I wasn’t able to, I just didn’t. It wasn’t my
world anymore. At the time you had to go to Stanford full-time, so there
were not people like me. Again, I was an odd bird at Stanford.
Ms. Flanagan: And how old were you when you were starting at Stanford?
Judge Smith: Let’s see… It was in 1970, so I was 37, 36 or 37. But, yeah, I mean I
certainly wasn’t going to go to frat parties or keg parties, and I didn’t have
the time even if I had wanted to. So the only thing I did is, somewhere in
there were Stanford’s glory days. Jim Plunkett was the quarterback and
Randy Vataha, and they went to the Rose Bowl a couple of years while I
was there. And I’ve always been a big football fan. I guess it came from
dating the quarterback in high school, but I sort of was emotionally stunted
about football at that time. I’ve always loved football, so that was fun. And
I would go to the football games and occasionally I could talk either my
husband or one of my kids into going with me, but that was really all I did.
Ms. Flanagan:
Judge Smith:
And did you make friends at Stanford?
I did. And, yeah, I made one friend in particular who was actually the
person — Without having had him as a friend, I would never have gone to
law school. But he was young, very young; he was 20, 21. But I did make
some friends. Most of them I didn’t see outside of class because I was a
middle-aged housewife as far as they were concerned, and they didn’t really
fit into my life, but they were friends that I could sit down — and this is still
at the undergraduate level that we’re talking about — and at least have lunch
700921475v1
23
with or get into a discussion with. And, of course, that was still, the
Vietnam war was going on, and there were a couple of classes where people
would come in and take over the class and, you know, certainly given
Stanford it was hardly a revolution, but at least there was some protest going
on. And so discussions would come up about that, and that was fascinating
for me because these young people were so interesting and interested and so
different than my friends that it was really quite exciting. I think I learned
as much if not more from them than I did from the professors, to be quite
honest.
Ms. Flanagan: How did the professors react to your being in the class?
Judge Smith: I think most of them were indifferent, and I would have to say that, with few
exceptions, that was probably the least rewarding part of my education at
Stanford. The instructors at Foothill had been incredibly supportive of me,
several of them, and had been really motivating factors in my going
forward. When I got to Stanford, I expected the professors to be on an even
higher plane. And what I found, to be quite honest, was that they had little
interest that I could see in the students themselves. TA’s occasionally, you
know, were the ones that you had contact with if you had contact with
anybody. And so…
Ms. Flanagan: Was there someone designated as your counselor?
Judge Smith: I don’t remember that happening at all. I don’t remember being counseled
at Stanford or being advised or being supported.
700921475v1
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with or get into a discussion with. And, of course, that was still, the
Vietnam war was going on, and there were a couple of classes where people
would come in and take over the class and, you know, certainly given
Stanford it was hardly a revolution, but at least there was some protest going
on. And so discussions would come up about that, and that was fascinating
for me because these young people were so interesting and interested and so
different than my friends that it was really quite exciting. I think I learned
as much if not more from them than I did from the professors, to be quite
honest.
Ms. Flanagan: How did the professors react to your being in the class?
Judge Smith: I think most of them were indifferent, and I would have to say that, with few
exceptions, that was probably the least rewarding part of my education at
Stanford. The instructors at Foothill had been incredibly supportive of me,
several of them, and had been really motivating factors in my going
forward. When I got to Stanford, I expected the professors to be on an even
higher plane. And what I found, to be quite honest, was that they had little
interest that I could see in the students themselves. TA’s occasionally, you
know, were the ones that you had contact with if you had contact with
anybody. And so…
Ms. Flanagan: Was there someone designated as your counselor?
Judge Smith: I don’t remember that happening at all. I don’t remember being counseled
at Stanford or being advised or being supported.
700921475v1
24
Ms. Flanagan:
Judge Smith:
Ms. Flanagan:
Was there any support network at all for older returning students?
No, I think there were probably three of us. No, there weren’t any, and that
was part of the problem, I think, is that I was, in a sense, a little too early.
And so there were really no efforts made for people like me.
Now amongst the students, I mean, I would think with the Vietnam War,
also feminism, these movements were all on the campuses. Did the women
students embrace you as, you know, a woman coming back to school, doing
an independent thing later in life? Anything like that?
Judge Smith: No. I think again I was a little too early for that and so, no. I had this one
friend, as I said, this young man, and he and I…
Ms. Flanagan: And is this Steve Stublarec?
Judge Smith: It is!
Ms. Flanagan: Steve was a partner of mine
Judge Smith: Yes, of course. And, you know, Steve was as opposite from me as you
could imagine. He had, you know, just gone straight through school, and so
he was probably 20 at the time and I was 37, but we did, we were both in the
Sociology Department, which was a small department, and we did a
research project together on mixed marriages as I recall. And that’s how we
got to be friends.
Ms. Flanagan: And so, did you eventually move into the Psychology Department?
700921475v1
25
Ms. Flanagan:
Judge Smith:
Ms. Flanagan:
Was there any support network at all for older returning students?
No, I think there were probably three of us. No, there weren’t any, and that
was part of the problem, I think, is that I was, in a sense, a little too early.
And so there were really no efforts made for people like me.
Now amongst the students, I mean, I would think with the Vietnam War,
also feminism, these movements were all on the campuses. Did the women
students embrace you as, you know, a woman coming back to school, doing
an independent thing later in life? Anything like that?
Judge Smith: No. I think again I was a little too early for that and so, no. I had this one
friend, as I said, this young man, and he and I…
Ms. Flanagan: And is this Steve Stublarec?
Judge Smith: It is!
Ms. Flanagan: Steve was a partner of mine
Judge Smith: Yes, of course. And, you know, Steve was as opposite from me as you
could imagine. He had, you know, just gone straight through school, and so
he was probably 20 at the time and I was 37, but we did, we were both in the
Sociology Department, which was a small department, and we did a
research project together on mixed marriages as I recall. And that’s how we
got to be friends.
Ms. Flanagan: And so, did you eventually move into the Psychology Department?
700921475v1
25
Judge Smith: No.
Ms. Flanagan: So actually your major was sociology?
Judge Smith: It was.
Ms. Flanagan: Okay. Your interest was psychology but your major was sociology.
Judge Smith: Right. And I did find — I mean there were some things about sociology that
I actually did enjoy. I remember there was a class on the sociology of
organizations, which I found fascinating, and I still, I mean, that’s
something that stayed with me, and I think it’s something that’s made me
more adept at taking managerial roles and, when I was at the Federal
Judicial Center, for example. I mean, I think that I came out of that — I think
the professor’s last name was Scott and I do remember him I thought he
was really pretty special. And I think that my awareness of organizations
and my, I still think of them as organic, and I think it does play a role in how
I’ve always approached my professions and the people I work with.
Ms. Flanagan: And you did very well at Stanford, as well?
Judge Smith: I did.
Ms. Flanagan: And you were Phi Beta Kappa?
Judge Smith: I was.
Ms. Flanagan: And at what point did you start thinking about, “Well, what do I do next?
Do I go back home? Or do I continue on this path?”
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26
Judge Smith: No.
Ms. Flanagan: So actually your major was sociology?
Judge Smith: It was.
Ms. Flanagan: Okay. Your interest was psychology but your major was sociology.
Judge Smith: Right. And I did find — I mean there were some things about sociology that
I actually did enjoy. I remember there was a class on the sociology of
organizations, which I found fascinating, and I still, I mean, that’s
something that stayed with me, and I think it’s something that’s made me
more adept at taking managerial roles and, when I was at the Federal
Judicial Center, for example. I mean, I think that I came out of that — I think
the professor’s last name was Scott and I do remember him I thought he
was really pretty special. And I think that my awareness of organizations
and my, I still think of them as organic, and I think it does play a role in how
I’ve always approached my professions and the people I work with.
Ms. Flanagan: And you did very well at Stanford, as well?
Judge Smith: I did.
Ms. Flanagan: And you were Phi Beta Kappa?
Judge Smith: I was.
Ms. Flanagan: And at what point did you start thinking about, “Well, what do I do next?
Do I go back home? Or do I continue on this path?”
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26
Judge Smith: Yes. Well, it was probably my senior year at Stanford. I mean, that was the
only year I, I only had two years as an undergraduate, and it was in my
senior year. And it was because Steve and I would sit around trying to
figure out, both of us, what we were going to do when we grew up. And the
Sociology Department at Stanford was not well regarded, either within
Stanford or nationally. And so, we both decided that, although we liked the
field, staying on in that department was not, at Stanford, was not really
something that made a lot of sense. Because of my familial situation, I had
fairly limited options. There’s only so far I could go, geographically
speaking. And I did know, what I knew in my mind and in my heart was
that the thought of going back and being a stay-at-home wife and mother
was not something that I felt I could do comfortably. So I knew I needed to
do something. My husband was very, very supportive about my doing
something if I wanted to. But the question was what and where and I
thought about trying to get into the Psych — That was when I thought about
trying to get into the Psychology Department at Stanford because I had done
well academically, and I thought, well, I could apply for graduate school in
psychology and probably have a pretty good chance of making it. But you
know, this was 1972 and this was right in the height of the Gestalt feelgood-about-yourself era, and the Peninsula was up to its proverbial armpits
in psychologists, and I thought, “Oh, is this what Palo Alto really needs is
one more middle-aged woman coming in to cure the ills of the world?” It
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Judge Smith: Yes. Well, it was probably my senior year at Stanford. I mean, that was the
only year I, I only had two years as an undergraduate, and it was in my
senior year. And it was because Steve and I would sit around trying to
figure out, both of us, what we were going to do when we grew up. And the
Sociology Department at Stanford was not well regarded, either within
Stanford or nationally. And so, we both decided that, although we liked the
field, staying on in that department was not, at Stanford, was not really
something that made a lot of sense. Because of my familial situation, I had
fairly limited options. There’s only so far I could go, geographically
speaking. And I did know, what I knew in my mind and in my heart was
that the thought of going back and being a stay-at-home wife and mother
was not something that I felt I could do comfortably. So I knew I needed to
do something. My husband was very, very supportive about my doing
something if I wanted to. But the question was what and where and I
thought about trying to get into the Psych — That was when I thought about
trying to get into the Psychology Department at Stanford because I had done
well academically, and I thought, well, I could apply for graduate school in
psychology and probably have a pretty good chance of making it. But you
know, this was 1972 and this was right in the height of the Gestalt feelgood-about-yourself era, and the Peninsula was up to its proverbial armpits
in psychologists, and I thought, “Oh, is this what Palo Alto really needs is
one more middle-aged woman coming in to cure the ills of the world?” It
700921475v1
27
seemed somewhat silly. And so Steve came in one day — Have you heard
this story before? You probably have.
Ms. Flanagan: No, I’ve just heard the conclusion, but not the story.
Judge Smith: Oh, okay. So Steve came in one day at Stanford, I was sitting in one of the
little offices or something in the Sociology Department, and he said, “Okay,
I know what we’re going to do.” “Okay, Steve, what is it?” “Well, we’re
going to go take the LSAT test in October.” Was it October? No, that
wouldn’t have been right — was it? Maybe it was; maybe this was still in
’74; no, I mean in ’71. So in fall of ’71 is probably when it was. And I said,
“What is the LSAT?” And he said, “Well, it’s what you take to get into law
school.” “Law school? Why on earth would I want to get into law school?”
“Oh, this, that, the other thing.” So I informed him that I had no interest in
becoming a lawyer, that sounded like the dumbest thing I had ever heard in
my life for me. And then he said, “Well, come take the LSAT.” And he
said, “I don’t want to go take it alone. Come take it with me, it’s only $100
to apply.” I went home that night and I said to my husband, “Steve wants
me to go take the LSAT for law school.” And he said, which was the first, I
guess, non-supportive statement he had ever made, he said, “That’s
ridiculous. You’d make a terrible lawyer.” Well, that’s all I had to hear. I
mean, if there was anything in the world he shouldn’t have said if he didn’t
want me to do this was that I would make a terrible lawyer. So I called my
friend Carol, who was the one who inspired me to go to Foothill to begin
with, the one who started out to be a dental technician and by then she had
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seemed somewhat silly. And so Steve came in one day — Have you heard
this story before? You probably have.
Ms. Flanagan: No, I’ve just heard the conclusion, but not the story.
Judge Smith: Oh, okay. So Steve came in one day at Stanford, I was sitting in one of the
little offices or something in the Sociology Department, and he said, “Okay,
I know what we’re going to do.” “Okay, Steve, what is it?” “Well, we’re
going to go take the LSAT test in October.” Was it October? No, that
wouldn’t have been right — was it? Maybe it was; maybe this was still in
’74; no, I mean in ’71. So in fall of ’71 is probably when it was. And I said,
“What is the LSAT?” And he said, “Well, it’s what you take to get into law
school.” “Law school? Why on earth would I want to get into law school?”
“Oh, this, that, the other thing.” So I informed him that I had no interest in
becoming a lawyer, that sounded like the dumbest thing I had ever heard in
my life for me. And then he said, “Well, come take the LSAT.” And he
said, “I don’t want to go take it alone. Come take it with me, it’s only $100
to apply.” I went home that night and I said to my husband, “Steve wants
me to go take the LSAT for law school.” And he said, which was the first, I
guess, non-supportive statement he had ever made, he said, “That’s
ridiculous. You’d make a terrible lawyer.” Well, that’s all I had to hear. I
mean, if there was anything in the world he shouldn’t have said if he didn’t
want me to do this was that I would make a terrible lawyer. So I called my
friend Carol, who was the one who inspired me to go to Foothill to begin
with, the one who started out to be a dental technician and by then she had
700921475v1
28
given that up and was going for a B.A. in psychology. And I called her up,
and I said, “Tell me what you think of this.” And I told her about the law
school thing and she said, “That’s so weird. I was sitting down the other
day making a list of what professions that I thought you would be good at,
and lawyer was at the top of the list, and here are the reasons why.” So the
next day I went in, and I told Steve I’d take the LSAT.
Ms. Flanagan: And what had Carol seen in you that she thought would make a good
lawyer?
Judge Smith: She thought the logic with which I think and the way I approach problem
solving and my ability to see both sides of things.
Ms. Flanagan: Did you agree with her when she kind of went through it with you?
Judge Smith: I did. I did.
Ms. Flanagan: Did it sort of open a window for you?
Judge Smith: But the idea of being a lawyer, still, I wasn’t sure that that’s, that those two
were compatible, that those traits and being a lawyer still connected for me,
but I was willing to. I didn’t have anything better to do, and I figured, for
$100, why not?
Ms. Flanagan: So I take it you did well on the LSAT?
Judge Smith: -I did. I did very well, and in fact one of the-things-that just floored me was I
got a letter from Harvard — Because you could check a box that said “can we
700921475v1
29
given that up and was going for a B.A. in psychology. And I called her up,
and I said, “Tell me what you think of this.” And I told her about the law
school thing and she said, “That’s so weird. I was sitting down the other
day making a list of what professions that I thought you would be good at,
and lawyer was at the top of the list, and here are the reasons why.” So the
next day I went in, and I told Steve I’d take the LSAT.
Ms. Flanagan: And what had Carol seen in you that she thought would make a good
lawyer?
Judge Smith: She thought the logic with which I think and the way I approach problem
solving and my ability to see both sides of things.
Ms. Flanagan: Did you agree with her when she kind of went through it with you?
Judge Smith: I did. I did.
Ms. Flanagan: Did it sort of open a window for you?
Judge Smith: But the idea of being a lawyer, still, I wasn’t sure that that’s, that those two
were compatible, that those traits and being a lawyer still connected for me,
but I was willing to. I didn’t have anything better to do, and I figured, for
$100, why not?
Ms. Flanagan: So I take it you did well on the LSAT?
Judge Smith: -I did. I did very well, and in fact one of the-things-that just floored me was I
got a letter from Harvard — Because you could check a box that said “can we
700921475v1
29
send your scores on?” And I thought, sure, why not, I don’t care, never
thinking that anybody would care about what score, other than me, would
care about what scores I got. So I checked the box, and suddenly this letter
came from Harvard and it said, “Dear Mrs. Smith, we’re trying to get more
qualified women at Harvard, and we’ve seen your scores, and we think you
would fit into Harvard Law School very well, and we’d like you to apply,
and we’ll waive the application costs.” And that probably was the first time
that it dawned on me that maybe I could do okay at this level. And it was a
transforming communication for me, I think.
Ms. Flanagan: That, if Harvard thought you had what it took, then obviously you do?
Judge Smith: Exactly, that there was something, that I had done okay.
Ms. Flanagan: So did you apply to Harvard?
Judge Smith: I didn’t. I didn’t. Because it didn’t make any sense because, obviously,
there’s no way I was going to pick up and move to Massachusetts, and just
the fact that they sent the letter was enough, that was enough reinforcement
for me.
Ms. Flanagan:
Judge Smith:
Did you apply to any law school other than Stanford?
Trying to remember if I did or didn’t. The only possibilities — I sat down
and thought about it, and the only possibilities were Stanford, Santa Clara
and-Boalt. And the thought of— treally was tempted to apply to Boalt
because it had a good reputation. It was so much cheaper, and I was
700921475v1
30
send your scores on?” And I thought, sure, why not, I don’t care, never
thinking that anybody would care about what score, other than me, would
care about what scores I got. So I checked the box, and suddenly this letter
came from Harvard and it said, “Dear Mrs. Smith, we’re trying to get more
qualified women at Harvard, and we’ve seen your scores, and we think you
would fit into Harvard Law School very well, and we’d like you to apply,
and we’ll waive the application costs.” And that probably was the first time
that it dawned on me that maybe I could do okay at this level. And it was a
transforming communication for me, I think.
Ms. Flanagan: That, if Harvard thought you had what it took, then obviously you do?
Judge Smith: Exactly, that there was something, that I had done okay.
Ms. Flanagan: So did you apply to Harvard?
Judge Smith: I didn’t. I didn’t. Because it didn’t make any sense because, obviously,
there’s no way I was going to pick up and move to Massachusetts, and just
the fact that they sent the letter was enough, that was enough reinforcement
for me.
Ms. Flanagan:
Judge Smith:
Did you apply to any law school other than Stanford?
Trying to remember if I did or didn’t. The only possibilities — I sat down
and thought about it, and the only possibilities were Stanford, Santa Clara
and-Boalt. And the thought of— treally was tempted to apply to Boalt
because it had a good reputation. It was so much cheaper, and I was
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30
beginning to feel, even though we could do it, I was beginning to feel guilty
about using as much of the family resources as I was using on this sort of
educational trip I was engaged in without really having any belief in the fact
that I’d ever use it or it would ever pay off or whatever. But the thought of
trying to commute, and the girls were still home….
Ms. Flanagan: So your girls now were ages like 10 and 14, as you were going into law
school?
Judge Smith: Let’s see. As I was going in, yes. I graduated from law school, Susan
graduated from high school and Julie graduated from junior high school the
same week.
Ms. Flanagan: Oh my!
Judge Smith: Yeah, so this was three years earlier, so yeah, Julie was like in the sixth
grade or something and Susan was in the ninth grade, something like that.
Ms. Flanagan: And did your husband come around to the idea of your being a lawyer?
Judge Smith: I don’t think so. I think he always questioned, well I shouldn’t say always —
I don’t know that he came around to it then, but he decided that if that’s
what I wanted to do, that he was perfectly happy to support it, and that I
should go to the best law school there was, and that was Stanford. And so I
went to Stanford and talked to a man named Bill Keogh, who was the Dean
of Admissions at the time. And Bill was a tough Irishman who’d come out
of Hell’s Kitchen in New York and was the first person, I think, at Stanford
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beginning to feel, even though we could do it, I was beginning to feel guilty
about using as much of the family resources as I was using on this sort of
educational trip I was engaged in without really having any belief in the fact
that I’d ever use it or it would ever pay off or whatever. But the thought of
trying to commute, and the girls were still home….
Ms. Flanagan: So your girls now were ages like 10 and 14, as you were going into law
school?
Judge Smith: Let’s see. As I was going in, yes. I graduated from law school, Susan
graduated from high school and Julie graduated from junior high school the
same week.
Ms. Flanagan: Oh my!
Judge Smith: Yeah, so this was three years earlier, so yeah, Julie was like in the sixth
grade or something and Susan was in the ninth grade, something like that.
Ms. Flanagan: And did your husband come around to the idea of your being a lawyer?
Judge Smith: I don’t think so. I think he always questioned, well I shouldn’t say always —
I don’t know that he came around to it then, but he decided that if that’s
what I wanted to do, that he was perfectly happy to support it, and that I
should go to the best law school there was, and that was Stanford. And so I
went to Stanford and talked to a man named Bill Keogh, who was the Dean
of Admissions at the time. And Bill was a tough Irishman who’d come out
of Hell’s Kitchen in New York and was the first person, I think, at Stanford
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who ever looked me in the eye and said, “This is something you ought to do,
and I think you’d be great.” And so, I don’t think I ever applied any place
else. I know I didn’t apply to Berkeley, to Boalt, because I just decided it
was, I just couldn’t do it. And that if I was meant to do this, I’d get into
Stanford, and, if I didn’t get into Stanford, I just wasn’t meant to do it, and
I’d find something else to do.
Ms. Flanagan: And did you — So you got into Stanford?
Judge Smith: I did get in at Stanford.
Ms. Flanagan: And how did you balance the increased academic hours necessary for law
school and the family?
Judge Smith: Well, it was pretty much the same way. You know, I tried to pick classes in
the schedule that would get me home again by the time the girls were home,
and I just studied a little later at night. And it wasn’t that much different.
Ms. Flanagan: Were you able to participate in any of the extracurricular activities in the
law school?
Judge Smith: Well, there really aren’t many activities extracurricular; there weren’t then.
I mean, law school was so threatening and competitive and everybody there
was so anally compulsive. I was in a study group with some other people
from my small section, and we would meet and study and things, but that
was pretty much it.
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who ever looked me in the eye and said, “This is something you ought to do,
and I think you’d be great.” And so, I don’t think I ever applied any place
else. I know I didn’t apply to Berkeley, to Boalt, because I just decided it
was, I just couldn’t do it. And that if I was meant to do this, I’d get into
Stanford, and, if I didn’t get into Stanford, I just wasn’t meant to do it, and
I’d find something else to do.
Ms. Flanagan: And did you — So you got into Stanford?
Judge Smith: I did get in at Stanford.
Ms. Flanagan: And how did you balance the increased academic hours necessary for law
school and the family?
Judge Smith: Well, it was pretty much the same way. You know, I tried to pick classes in
the schedule that would get me home again by the time the girls were home,
and I just studied a little later at night. And it wasn’t that much different.
Ms. Flanagan: Were you able to participate in any of the extracurricular activities in the
law school?
Judge Smith: Well, there really aren’t many activities extracurricular; there weren’t then.
I mean, law school was so threatening and competitive and everybody there
was so anally compulsive. I was in a study group with some other people
from my small section, and we would meet and study and things, but that
was pretty much it.
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Ms. Flanagan: Did you have any colleagues at the law school who were kind of similarly
situated to you, coming back after an absence from school?
Judge Smith: There were a few. There were two or three other men, two or three men in
my class, but none of them were in my small group. And none of them, I
didn’t really become close. Again, Stanford’s a very small law school. I
think 165 of us started out, and about 155 graduated, so it was small, but I
didn’t become close. One was a man from L.A., nice guy who had done
very well in business and was doing this. And another was a teacher.
Teaching was having a tough time at the moment. He had a Ph.D., I think,
in sociology, so he was looking for something different. And I think we
were the only three in the class.
Ms. Flanagan: Were the Stanford Law faculty supportive of you? Did they take notice of
your situation?
Judge Smith: Well, I think they did notice my situation because again it was a small
school and so, yeah, some of them, I would say, were. I don’t know that
anybody was non-supportive. There weren’t any women when I first
started. Barbara Babcock wasn’t there yet, and so the only woman that was
sort of remotely connected was Rose Bird, who was like a TA kind of for
Tony Amsterdam, and she did a clinical program in criminal law that I
wasn’t terribly interested in, I didn’t take, that wasn’t a field that I thought I
had any calling for So, yeah, I think the professors took notice of me, and I
thought some were quizzical and some were supportive. Bob Rabin, who
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Ms. Flanagan: Did you have any colleagues at the law school who were kind of similarly
situated to you, coming back after an absence from school?
Judge Smith: There were a few. There were two or three other men, two or three men in
my class, but none of them were in my small group. And none of them, I
didn’t really become close. Again, Stanford’s a very small law school. I
think 165 of us started out, and about 155 graduated, so it was small, but I
didn’t become close. One was a man from L.A., nice guy who had done
very well in business and was doing this. And another was a teacher.
Teaching was having a tough time at the moment. He had a Ph.D., I think,
in sociology, so he was looking for something different. And I think we
were the only three in the class.
Ms. Flanagan: Were the Stanford Law faculty supportive of you? Did they take notice of
your situation?
Judge Smith: Well, I think they did notice my situation because again it was a small
school and so, yeah, some of them, I would say, were. I don’t know that
anybody was non-supportive. There weren’t any women when I first
started. Barbara Babcock wasn’t there yet, and so the only woman that was
sort of remotely connected was Rose Bird, who was like a TA kind of for
Tony Amsterdam, and she did a clinical program in criminal law that I
wasn’t terribly interested in, I didn’t take, that wasn’t a field that I thought I
had any calling for So, yeah, I think the professors took notice of me, and I
thought some were quizzical and some were supportive. Bob Rabin, who
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was my torts professor, gave me an offer to be his research assistant the
summer after my first year, I guess. Bill Baxter was very nice to me. Mike
Wald was, I think, more bemused by me than anything else.
Ms. Flanagan: Were there any faculty members in your law school years that were
influential in launching you or helping to direct you into a career?
Judge Smith: No, I don’t think so. I mean, again, it’s — The faculty was not what I would,
well, that’s not true. There was one, and interestingly, he was a visitor. His
name was Phil Schuckman, and he was my civil procedure professor the
first year. And, he was from University of Connecticut Law School? And
Phil was amazingly bemused by Stanford. I mean, the thought that people
came to class barefoot and that the students didn’t expect to be called on just
struck him as very bizarre. But I think it kind of tickled him, and he and I
actually got to be friends and he — I hated law school the first year. I just
hated it, and at the end of the first year decided that I wasn’t going back.
Ms. Flanagan:
Judge Smith:
What was it about it that you didn’t like?
I didn’t like the fact that everybody was so paranoid. I didn’t like just
nothing but this case study method. I didn’t like the fact that your entire
grade was geared to an exam at the very end and if you had a cold that day
or whatever. It just was not fun. I was working too hard. I was feeling
stressed. Everybody I knew was stressed. Nobody seemed to be having a
good time. And I had no idea if I ever wanted to be a lawyer anyway. So, I
was going to quit, and Phil Schuckman and Bill Keogh found out about it
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was my torts professor, gave me an offer to be his research assistant the
summer after my first year, I guess. Bill Baxter was very nice to me. Mike
Wald was, I think, more bemused by me than anything else.
Ms. Flanagan: Were there any faculty members in your law school years that were
influential in launching you or helping to direct you into a career?
Judge Smith: No, I don’t think so. I mean, again, it’s — The faculty was not what I would,
well, that’s not true. There was one, and interestingly, he was a visitor. His
name was Phil Schuckman, and he was my civil procedure professor the
first year. And, he was from University of Connecticut Law School? And
Phil was amazingly bemused by Stanford. I mean, the thought that people
came to class barefoot and that the students didn’t expect to be called on just
struck him as very bizarre. But I think it kind of tickled him, and he and I
actually got to be friends and he — I hated law school the first year. I just
hated it, and at the end of the first year decided that I wasn’t going back.
Ms. Flanagan:
Judge Smith:
What was it about it that you didn’t like?
I didn’t like the fact that everybody was so paranoid. I didn’t like just
nothing but this case study method. I didn’t like the fact that your entire
grade was geared to an exam at the very end and if you had a cold that day
or whatever. It just was not fun. I was working too hard. I was feeling
stressed. Everybody I knew was stressed. Nobody seemed to be having a
good time. And I had no idea if I ever wanted to be a lawyer anyway. So, I
was going to quit, and Phil Schuckman and Bill Keogh found out about it
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somehow. I don’t know why, apparently another student or somebody
mentioned it to them. And Phil called me from Connecticut and Bill called
me from some place else, and both of them gave me this pep talk on why I
had to stay and etc., etc. And I remember Bill Keogh said, Phil Schuckman
said I had to stay because there were barely any people there that had any
soul and if I left — and this was blowing smoke, I’m sure — but if I left it
would cut the number or the percentage down significantly. And Bill Keogh
said, “You have to make me a promise. You have to promise me that you’ll
come back for one more semester and if, at the end of that semester, you still
hate it and you want to leave, I’ll never, I won’t put any pressure on you.”
And I said, “Oh, God, Bill, in another six months I’ll be halfway through.”
And he said, “I know, Fern.” So, anyway, I went back, but I never loved
law school.
Ms. Flanagan: So you didn’t enjoy the method of study or the content of the studies?
Judge Smith: I didn’t enjoy the method of study. I didn’t enjoy the process.
Ms. Flanagan: Did you enjoy the content, I mean reading the cases and discussing them in
class?
Judge Smith: Not especially. I didn’t really learn to love the law until after I was out.
Ms. Flanagan: Were there any highlights for you in law school?
Judge Smith: In law school? Not really, no.
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somehow. I don’t know why, apparently another student or somebody
mentioned it to them. And Phil called me from Connecticut and Bill called
me from some place else, and both of them gave me this pep talk on why I
had to stay and etc., etc. And I remember Bill Keogh said, Phil Schuckman
said I had to stay because there were barely any people there that had any
soul and if I left — and this was blowing smoke, I’m sure — but if I left it
would cut the number or the percentage down significantly. And Bill Keogh
said, “You have to make me a promise. You have to promise me that you’ll
come back for one more semester and if, at the end of that semester, you still
hate it and you want to leave, I’ll never, I won’t put any pressure on you.”
And I said, “Oh, God, Bill, in another six months I’ll be halfway through.”
And he said, “I know, Fern.” So, anyway, I went back, but I never loved
law school.
Ms. Flanagan: So you didn’t enjoy the method of study or the content of the studies?
Judge Smith: I didn’t enjoy the method of study. I didn’t enjoy the process.
Ms. Flanagan: Did you enjoy the content, I mean reading the cases and discussing them in
class?
Judge Smith: Not especially. I didn’t really learn to love the law until after I was out.
Ms. Flanagan: Were there any highlights for you in law school?
Judge Smith: In law school? Not really, no.
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Ms. Flanagan:
Judge Smith:
Ms. Flanagan:
Did you work during any of your law school summers?
I did. I did. I worked the summer between, I guess it was the summer
between my second and third year, I worked at a firm called Chickering &
Gregory here in San Francisco, which is no longer in existence. And then,
I’m trying to remember if my second year or my third year, during the
semester I worked at a small Palo Alto firm here, there in town. And I
enjoyed that. I can’t remember the name, but it was just three people, and it
was fun. And that was probably the first time. And I enjoyed the summer at
Chickering & Gregory. If they had offered me a job, I would have taken it,
but they had three, two or three, three, I guess, summer clerks, and they had
one job to offer, and they didn’t offer it to me. And, in retrospect, I was
always very grateful for that because I think it wasn’t the place that I should
have been or the work that I should have been doing.
Now, in the, so when you were a law student, were you thinking about a law
firm practice, to the extent that you were identifying an area of the law that
would be the best fit for you?
Judge Smith: I was. But I really, my first choice was to work for a law firm in the Palo
Alto area so I didn’t have to commute, but nobody in the Palo Alto — They
never even responded. Nobody in the, except the firm, that small firm, they
very much wanted me to come to work for them. But none of the few
bigger firms there showed any interest in me at all.
Ms. Flanagan: And why didn’t you go to the small firm?
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Ms. Flanagan:
Judge Smith:
Ms. Flanagan:
Did you work during any of your law school summers?
I did. I did. I worked the summer between, I guess it was the summer
between my second and third year, I worked at a firm called Chickering &
Gregory here in San Francisco, which is no longer in existence. And then,
I’m trying to remember if my second year or my third year, during the
semester I worked at a small Palo Alto firm here, there in town. And I
enjoyed that. I can’t remember the name, but it was just three people, and it
was fun. And that was probably the first time. And I enjoyed the summer at
Chickering & Gregory. If they had offered me a job, I would have taken it,
but they had three, two or three, three, I guess, summer clerks, and they had
one job to offer, and they didn’t offer it to me. And, in retrospect, I was
always very grateful for that because I think it wasn’t the place that I should
have been or the work that I should have been doing.
Now, in the, so when you were a law student, were you thinking about a law
firm practice, to the extent that you were identifying an area of the law that
would be the best fit for you?
Judge Smith: I was. But I really, my first choice was to work for a law firm in the Palo
Alto area so I didn’t have to commute, but nobody in the Palo Alto — They
never even responded. Nobody in the, except the firm, that small firm, they
very much wanted me to come to work for them. But none of the few
bigger firms there showed any interest in me at all.
Ms. Flanagan: And why didn’t you go to the small firm?
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Judge Smith: I think I felt like I wanted something a little more sophisticated and a little
more opportunity than that.
Ms. Flanagan: Had you worked law review when you were at Stanford?
Judge Smith: No.
Ms. Flanagan: Did you work on any sort of those, they’re not really extracurricular, the
optional, extra moot courts, or things like that?
Judge Smith: No. I did freshman, first-year moot court, which was mandatory, but I was,
my plate was as full as I felt I could keep it.
Ms. Flanagan: What year did you graduate from Stanford?
Judge Smith: 1975.
Ms. Flanagan: 1975. Did you give any thought to clerking for a judge?
Judge Smith: No.
Ms. Flanagan: At this point in time, did you have any sort of aspirations of being anything
other than an attorney in the court system?
Judge Smith: No. And I really didn’t have any. One of the reasons that I didn’t give any
thought to clerking was that by then I had gone to school full-time for seven
years, and I just, to me, clerking — I didn’t really know what clerking was,
and it seemed to me like one more_year of school._ And I thought, “Enough
already.” I was going to be 41 when I graduated, and I thought I’d either get
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Judge Smith: I think I felt like I wanted something a little more sophisticated and a little
more opportunity than that.
Ms. Flanagan: Had you worked law review when you were at Stanford?
Judge Smith: No.
Ms. Flanagan: Did you work on any sort of those, they’re not really extracurricular, the
optional, extra moot courts, or things like that?
Judge Smith: No. I did freshman, first-year moot court, which was mandatory, but I was,
my plate was as full as I felt I could keep it.
Ms. Flanagan: What year did you graduate from Stanford?
Judge Smith: 1975.
Ms. Flanagan: 1975. Did you give any thought to clerking for a judge?
Judge Smith: No.
Ms. Flanagan: At this point in time, did you have any sort of aspirations of being anything
other than an attorney in the court system?
Judge Smith: No. And I really didn’t have any. One of the reasons that I didn’t give any
thought to clerking was that by then I had gone to school full-time for seven
years, and I just, to me, clerking — I didn’t really know what clerking was,
and it seemed to me like one more_year of school._ And I thought, “Enough
already.” I was going to be 41 when I graduated, and I thought I’d either get
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out there and start being a lawyer or give up the whole idea. “I don’t have
any more time to fiddle around with all this stuff.”
Ms. Flanagan: Have you thought about the “what ifs?” What if you had gone to college
straight out of high school, and kind of comparing the path you took with
the path you thought you were going to take?
Judge Smith: Right.
Ms. Flanagan: And whether, in fact, you got more out of college and more out of law
school than you might have going straight out of high school. I mean, have
you looked at that, the pros and the cons of the two paths?
Judge Smith: Oh yes, sure. I’ve spent a lot of time thinking about that, and I think there
are both. I think the cons of the way I did it is that I, to me, college and law
school had virtually no social experience to them. And because of things
that had gone on in my family, I’m sorry that I didn’t have that opportunity,
not just because of it, but I mean, I think that the growing up part of going to
college is very important. And I never had that, living as a young, single
person away from my parents and learning how to be an independent,
starting to learn how to be an adult. You know, I went from living with my
mother to living with my husband, and so I’m sorry that I didn’t have that
social experience and growth. But on the other hand, I think because of the
times, it’s very likely that what would have happened is that I would have
gone to college, I simply would have married somebody at college, and that
probably would have been the end of any education on my part. Whereas
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out there and start being a lawyer or give up the whole idea. “I don’t have
any more time to fiddle around with all this stuff.”
Ms. Flanagan: Have you thought about the “what ifs?” What if you had gone to college
straight out of high school, and kind of comparing the path you took with
the path you thought you were going to take?
Judge Smith: Right.
Ms. Flanagan: And whether, in fact, you got more out of college and more out of law
school than you might have going straight out of high school. I mean, have
you looked at that, the pros and the cons of the two paths?
Judge Smith: Oh yes, sure. I’ve spent a lot of time thinking about that, and I think there
are both. I think the cons of the way I did it is that I, to me, college and law
school had virtually no social experience to them. And because of things
that had gone on in my family, I’m sorry that I didn’t have that opportunity,
not just because of it, but I mean, I think that the growing up part of going to
college is very important. And I never had that, living as a young, single
person away from my parents and learning how to be an independent,
starting to learn how to be an adult. You know, I went from living with my
mother to living with my husband, and so I’m sorry that I didn’t have that
social experience and growth. But on the other hand, I think because of the
times, it’s very likely that what would have happened is that I would have
gone to college, I simply would have married somebody at college, and that
probably would have been the end of any education on my part. Whereas
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doing what I did, I did it for the learning and for that part of it, and so I think
I got much more out of the educational part than I ever would have had I
done it earlier. But it’s hard to know.
Ms. Flanagan: Do you have a recollection of preparing for and taking the bar exam? Is that
a memory that’s still with you?
Judge Smith: Oh yes. Oh yes.
Ms. Flanagan: How did you do that with a family?
Judge Smith: Well, I took a bar course. Did I take a bar course? I don’t, I did take a bar
course, and also I bought these books and I would take tests at home and
that. Yeah, so I did all of that, and it went pretty much the same way I did
everything else. You know, you just kind of squeezed it in. The course
itself, as I recall, I think was just in the mornings. The course is kind of a
blur, but I must have done it because I remember that Stanford, we got out
later than everybody else did, and by the time we started taking the bar
course, everybody else had been taking it for about a week or something.
And so I remember thinking we were behind and worrying about that a
little. And then, when I took the bar exam, we took it at Hastings. I
remember that, and we stayed at that little motel that’s been a dozen things.
It’s right behind the Federal Building now. The Phoenix Motel — It may
have had a different name then, but it’s right in the Tenderloin. Because I
just didn’t think I could cope with being with the family or having any
distractions, so I came up here and stayed for the three days.
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doing what I did, I did it for the learning and for that part of it, and so I think
I got much more out of the educational part than I ever would have had I
done it earlier. But it’s hard to know.
Ms. Flanagan: Do you have a recollection of preparing for and taking the bar exam? Is that
a memory that’s still with you?
Judge Smith: Oh yes. Oh yes.
Ms. Flanagan: How did you do that with a family?
Judge Smith: Well, I took a bar course. Did I take a bar course? I don’t, I did take a bar
course, and also I bought these books and I would take tests at home and
that. Yeah, so I did all of that, and it went pretty much the same way I did
everything else. You know, you just kind of squeezed it in. The course
itself, as I recall, I think was just in the mornings. The course is kind of a
blur, but I must have done it because I remember that Stanford, we got out
later than everybody else did, and by the time we started taking the bar
course, everybody else had been taking it for about a week or something.
And so I remember thinking we were behind and worrying about that a
little. And then, when I took the bar exam, we took it at Hastings. I
remember that, and we stayed at that little motel that’s been a dozen things.
It’s right behind the Federal Building now. The Phoenix Motel — It may
have had a different name then, but it’s right in the Tenderloin. Because I
just didn’t think I could cope with being with the family or having any
distractions, so I came up here and stayed for the three days.
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Ms. Flanagan: Did you already have a job lined up before the bar exam or did you do your
job search after the bar exam?
Judge Smith: No, I had a job. I had a job with Bronson that I had accepted in the fall
before I graduated, the fall of my third year.
Ms. Flanagan: So was this part of on-campus interviewing?
Judge Smith: It was.
Ms. Flanagan: The firms came to the law school?
Judge Smith: Yes.
Ms. Flanagan: And did you find, did you have any problems in the interview process with
either the fact that you were a woman or the fact that you were now in your
late thirties?
Judge Smith: I had lots of problems because of my age. I think the fact that I was a
woman helped because the firms were finally beginning to realize that this
was a problem for them. So that helped, I think, to some degree. But my
age just, I think, freaked people out. I think they just were not, didn’t
understand how I could possibly fit in.
Ms. Flanagan: Did they give voice to their concerns?
Judge Smith: One did, and I will remember him always. And I’ll remember the firm
always. I never say who it is when I tell this story, but he was probably 35 —
you know, a young partner. And they invited me to the firm, and when I
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Ms. Flanagan: Did you already have a job lined up before the bar exam or did you do your
job search after the bar exam?
Judge Smith: No, I had a job. I had a job with Bronson that I had accepted in the fall
before I graduated, the fall of my third year.
Ms. Flanagan: So was this part of on-campus interviewing?
Judge Smith: It was.
Ms. Flanagan: The firms came to the law school?
Judge Smith: Yes.
Ms. Flanagan: And did you find, did you have any problems in the interview process with
either the fact that you were a woman or the fact that you were now in your
late thirties?
Judge Smith: I had lots of problems because of my age. I think the fact that I was a
woman helped because the firms were finally beginning to realize that this
was a problem for them. So that helped, I think, to some degree. But my
age just, I think, freaked people out. I think they just were not, didn’t
understand how I could possibly fit in.
Ms. Flanagan: Did they give voice to their concerns?
Judge Smith: One did, and I will remember him always. And I’ll remember the firm
always. I never say who it is when I tell this story, but he was probably 35 —
you know, a young partner. And they invited me to the firm, and when I
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interviewed with him, he said, “Well, now, you know, Mrs. Smith, you’re
going to be over 40 when you graduate.” I informed him that, “Yes, I was
well aware of that.” So he said, “Well, you know, you’ll be close to 50
when you become eligible to be a partner here.” “Yes, I guess I will.” And
he looked at me, and he said, “Well, don’t you think you’ll be over the hill
by then?” And I always hoped that once I got on the Bench that some day
my courtroom door was going to open and that little twerp was going to
walk in and I was going to say, “I remember you. I don’t know if you
remember me, but I remember you.” But he never did, so, too bad.
Ms. Flanagan: Too bad. What did you do to try and overcome their concerns with respect
to your age?
Judge Smith: Well, I would talk about it. And I would explain to them that, you know, I
understood that I was older but that my record, I thought, spoke for itself as
far as the fact that I’ve not entered into senility yet; and that I did not believe
that my age gave me any special powers; that I realized as far as the law was
concerned I was going to be a neophyte and I wasn’t going to know any
more than any other first-year associate; that I wasn’t going to assume that
my age gave me any priorities; that I was not going to resent taking
direction from someone younger than I because I would measure our roles
in terms of how experienced we were in the law and what we knew; and that
I thought I understood myself well enough to know that that would not be a
problem for me.
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interviewed with him, he said, “Well, now, you know, Mrs. Smith, you’re
going to be over 40 when you graduate.” I informed him that, “Yes, I was
well aware of that.” So he said, “Well, you know, you’ll be close to 50
when you become eligible to be a partner here.” “Yes, I guess I will.” And
he looked at me, and he said, “Well, don’t you think you’ll be over the hill
by then?” And I always hoped that once I got on the Bench that some day
my courtroom door was going to open and that little twerp was going to
walk in and I was going to say, “I remember you. I don’t know if you
remember me, but I remember you.” But he never did, so, too bad.
Ms. Flanagan: Too bad. What did you do to try and overcome their concerns with respect
to your age?
Judge Smith: Well, I would talk about it. And I would explain to them that, you know, I
understood that I was older but that my record, I thought, spoke for itself as
far as the fact that I’ve not entered into senility yet; and that I did not believe
that my age gave me any special powers; that I realized as far as the law was
concerned I was going to be a neophyte and I wasn’t going to know any
more than any other first-year associate; that I wasn’t going to assume that
my age gave me any priorities; that I was not going to resent taking
direction from someone younger than I because I would measure our roles
in terms of how experienced we were in the law and what we knew; and that
I thought I understood myself well enough to know that that would not be a
problem for me.
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Ms. Flanagan: And when you were looking at large firms — You said earlier you were
looking for the larger firms because you wanted a more sophisticated type
practice. Did you have any idea which practice area in the firm you wished
to be in? Did you want to be a litigator or a business lawyer?
Judge Smith: No, I wanted to be a business lawyer, but it was a bad time for business
lawyers. We were just coming out of a recession, and so firms were not
looking to hire business lawyers. They were looking to hire litigators
primarily. And because I was a woman and because I was older, I figured I
didn’t need to put up any more roadblocks. So I just figured I’d tell them I
wanted to be a litigator and then when they hired me, once they figured out
how fabulous I was, a year later I could say, well, you know, I’ve been
thinking about this and actually I’d really like to be a corporate lawyer, and
that would all work out. And it didn’t.
Ms. Flanagan: What made you think that you preferred to be a business lawyer over a
litigator? What were …
Judge Smith: Well, I liked the analysis part. It’s what I had done at Chickering &
Gregory, and I had enjoyed the analysis of the business problems and the
issues and the law. And I couldn’t imagine myself standing up in a
courtroom. Number one, I’ve never been — well, I probably am now — but at
that time I did not think of myself as a person who enjoyed controversy or
arguing with people. I really was more of a persuasive kind of person and
felt that my talents were more in the reading, that my talents were more in
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Ms. Flanagan: And when you were looking at large firms — You said earlier you were
looking for the larger firms because you wanted a more sophisticated type
practice. Did you have any idea which practice area in the firm you wished
to be in? Did you want to be a litigator or a business lawyer?
Judge Smith: No, I wanted to be a business lawyer, but it was a bad time for business
lawyers. We were just coming out of a recession, and so firms were not
looking to hire business lawyers. They were looking to hire litigators
primarily. And because I was a woman and because I was older, I figured I
didn’t need to put up any more roadblocks. So I just figured I’d tell them I
wanted to be a litigator and then when they hired me, once they figured out
how fabulous I was, a year later I could say, well, you know, I’ve been
thinking about this and actually I’d really like to be a corporate lawyer, and
that would all work out. And it didn’t.
Ms. Flanagan: What made you think that you preferred to be a business lawyer over a
litigator? What were …
Judge Smith: Well, I liked the analysis part. It’s what I had done at Chickering &
Gregory, and I had enjoyed the analysis of the business problems and the
issues and the law. And I couldn’t imagine myself standing up in a
courtroom. Number one, I’ve never been — well, I probably am now — but at
that time I did not think of myself as a person who enjoyed controversy or
arguing with people. I really was more of a persuasive kind of person and
felt that my talents were more in the reading, that my talents were more in
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reading about issues and being able to analyze them and logically plot them
out, etc. So that was where I saw myself
Ms. Flanagan: And so once you got into Bronson, did you discover that you liked litigation
or was business not an option?
Judge Smith: It wasn’t so much that it wasn’t an option. It was that I got swept up by and
assigned to a very flamboyant trial lawyer — and I use the word trial lawyer
intentionally because the trial lawyers at Bronson considered “litigator” a
demeaning term and did not consider themselves to be trial lawyers, I mean
litigators. And I was assigned, at his request, to one of the more flamboyant
trial lawyers in the aviation department. And I think he had me assigned to
him as a joke, more or less. I think the thought, number one, that there were
going to be women trial lawyers was almost more than he could cope with,
and the fact that one of them was this 41-year-old housewife from Los Altos
was just something that he was going to have great chuckles with at the bar,
not meaning the law bar. But, for whatever the reason, we hit it off, and he
promptly decided that I was not only going to stay at Bronson but that I was
going to be the first woman partner at Bronson, and he was going to make it
happen. And so while the rest of my classmates were in the library still
drafting interrogatories, he was sending me off to take depositions in
airplane crashes and doing all these absurd things for which I had absolutely
no experience, and most of the time had no idea what I was doing. But there
I was, and I was so busy and so caught up in all of this that it was probably
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reading about issues and being able to analyze them and logically plot them
out, etc. So that was where I saw myself
Ms. Flanagan: And so once you got into Bronson, did you discover that you liked litigation
or was business not an option?
Judge Smith: It wasn’t so much that it wasn’t an option. It was that I got swept up by and
assigned to a very flamboyant trial lawyer — and I use the word trial lawyer
intentionally because the trial lawyers at Bronson considered “litigator” a
demeaning term and did not consider themselves to be trial lawyers, I mean
litigators. And I was assigned, at his request, to one of the more flamboyant
trial lawyers in the aviation department. And I think he had me assigned to
him as a joke, more or less. I think the thought, number one, that there were
going to be women trial lawyers was almost more than he could cope with,
and the fact that one of them was this 41-year-old housewife from Los Altos
was just something that he was going to have great chuckles with at the bar,
not meaning the law bar. But, for whatever the reason, we hit it off, and he
promptly decided that I was not only going to stay at Bronson but that I was
going to be the first woman partner at Bronson, and he was going to make it
happen. And so while the rest of my classmates were in the library still
drafting interrogatories, he was sending me off to take depositions in
airplane crashes and doing all these absurd things for which I had absolutely
no experience, and most of the time had no idea what I was doing. But there
I was, and I was so busy and so caught up in all of this that it was probably
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three years later before I could even catch my breath. And by then, I wasn’t
about to start over.
Ms. Flanagan: And did you enjoy it?
Judge Smith: It depended on the day of the week. I enjoyed the excitement, and it was a,
it was so different than anything I had ever done in life. The people were
different; the behavior modes were different; the tasks were different. And
so I did get caught up in it. And my husband and I separated after I had
been practicing for a year. Also a part was that I think it kept, it was
something that…
Ms. Flanagan: Kept you busy?
Judge Smith: Keep me busy and so yes, it was…
Ms. Flanagan: How did you handle child care and balancing things when you were having
to travel and all of that?
Judge Smith: It was hard. Susan was in college by then, so — But Julie was just starting in
high school and, you know, having the kinds of issues that young girls have
at that age. And so, that was a struggle. Her father and I — He lived very
close, and he was in a position by then where he was pretty flexible. So that
helped because she could stay with him.
Ms. Flanagan: You were both living in San Francisco?
Judge Smith: No, we were both still living in Los Altos.
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three years later before I could even catch my breath. And by then, I wasn’t
about to start over.
Ms. Flanagan: And did you enjoy it?
Judge Smith: It depended on the day of the week. I enjoyed the excitement, and it was a,
it was so different than anything I had ever done in life. The people were
different; the behavior modes were different; the tasks were different. And
so I did get caught up in it. And my husband and I separated after I had
been practicing for a year. Also a part was that I think it kept, it was
something that…
Ms. Flanagan: Kept you busy?
Judge Smith: Keep me busy and so yes, it was…
Ms. Flanagan: How did you handle child care and balancing things when you were having
to travel and all of that?
Judge Smith: It was hard. Susan was in college by then, so — But Julie was just starting in
high school and, you know, having the kinds of issues that young girls have
at that age. And so, that was a struggle. Her father and I — He lived very
close, and he was in a position by then where he was pretty flexible. So that
helped because she could stay with him.
Ms. Flanagan: You were both living in San Francisco?
Judge Smith: No, we were both still living in Los Altos.
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Ms. Flanagan: So you were commuting?
Judge Smith: I was commuting — just to add to the whole mix of things. But it all worked
out.
Ms. Flanagan: Were there any women role models for you at Bronson?
Judge Smith: No, I was the — There had been one woman for a short time; she’d left
before I came. Then there was another woman who was there, but she was
very different and in a completely different field. And then the day I started,
a young woman started, and I use the word “young” intentionally, who was
23 and had graduated from UCLA, and I was 41, and she and I are still very
good friends. But it’s sort of like Steve in a way. We had very little in
common, but we were very fond of each other and, as I say, she’s still a
good friend. But there were certainly no role models, and there were really
no role models in the profession. When I left the practice of law, I had
never once appeared before a woman judge. Never.
Ms. Flanagan: Had you ever had experience with women peers in litigation from other
firms?
Judge Smith: No. There were none in the aviation business and that’s what I did about the
first four years — or at least none I ran into. And then when I started doing
the Dalkon Shield work, there were a couple who were younger than I from
the plaintiffs’ side and a couple of other Robbins’ lawyers from different
parts of the country. But we were never really together enough to be peers.
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Ms. Flanagan: So you were commuting?
Judge Smith: I was commuting — just to add to the whole mix of things. But it all worked
out.
Ms. Flanagan: Were there any women role models for you at Bronson?
Judge Smith: No, I was the — There had been one woman for a short time; she’d left
before I came. Then there was another woman who was there, but she was
very different and in a completely different field. And then the day I started,
a young woman started, and I use the word “young” intentionally, who was
23 and had graduated from UCLA, and I was 41, and she and I are still very
good friends. But it’s sort of like Steve in a way. We had very little in
common, but we were very fond of each other and, as I say, she’s still a
good friend. But there were certainly no role models, and there were really
no role models in the profession. When I left the practice of law, I had
never once appeared before a woman judge. Never.
Ms. Flanagan: Had you ever had experience with women peers in litigation from other
firms?
Judge Smith: No. There were none in the aviation business and that’s what I did about the
first four years — or at least none I ran into. And then when I started doing
the Dalkon Shield work, there were a couple who were younger than I from
the plaintiffs’ side and a couple of other Robbins’ lawyers from different
parts of the country. But we were never really together enough to be peers.
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And everybody else who came after me at Bronson was so much younger
that I was the role model, God help them.
Ms. Flanagan: And in trying to establish as a trial lawyer or a litigator, whichever, your
own style and how to handle situations…
Judge Smith: Yes, it was hard.
Ms. Flanagan: How did you arrive at your style; I mean, how did you develop it?
Judge Smith: I think I really owe it all to this first mentor of mine His name is Ed Green.
He just retired from the law. And he was watching me take a deposition
very early in the game, and when it was over he said to me, “Fern, stop
trying to be what I am.” He said, I don’t want to use his language because
it’s very profane, but he basically said, “I don’t come across as a very nice
person.” And he said, “That works for me but it doesn’t work for you.” He
said, “You are a nice person.” And he said, “You’ve got to find out, just be
who you are because if you’re not, you come across as a phony and people
will know you’re a phony.” But it took a long time. When I started
appearing in Court, I always wore pockets so that I had some place to put
my hands so that people wouldn’t see them shaking. And, you know, my
voice would quiver. It was very, very difficult.
Ms. Flanagan: And was he, it sounds like he was — Was he kind of a “the bark is worse
than the bite”? I mean, he was a gruff, …
Judge Smith: Absolutely…
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And everybody else who came after me at Bronson was so much younger
that I was the role model, God help them.
Ms. Flanagan: And in trying to establish as a trial lawyer or a litigator, whichever, your
own style and how to handle situations…
Judge Smith: Yes, it was hard.
Ms. Flanagan: How did you arrive at your style; I mean, how did you develop it?
Judge Smith: I think I really owe it all to this first mentor of mine His name is Ed Green.
He just retired from the law. And he was watching me take a deposition
very early in the game, and when it was over he said to me, “Fern, stop
trying to be what I am.” He said, I don’t want to use his language because
it’s very profane, but he basically said, “I don’t come across as a very nice
person.” And he said, “That works for me but it doesn’t work for you.” He
said, “You are a nice person.” And he said, “You’ve got to find out, just be
who you are because if you’re not, you come across as a phony and people
will know you’re a phony.” But it took a long time. When I started
appearing in Court, I always wore pockets so that I had some place to put
my hands so that people wouldn’t see them shaking. And, you know, my
voice would quiver. It was very, very difficult.
Ms. Flanagan: And was he, it sounds like he was — Was he kind of a “the bark is worse
than the bite”? I mean, he was a gruff, …
Judge Smith: Absolutely…
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Ms. Flanagan: …hard-talking guy, but actually very supportive of you, it sounds like.
Judge Smith: Very supportive, and very supportive of— After me, he always had at least
one woman working for him, and he mentored all of us and was supportive
of all of us. And I think all of us benefited greatly.
Ms. Flanagan: Did he have daughters?
Judge Smith: No, he had two sons — and four wives!! I think the secret was just be careful
not to be one of his wives and that worked fine.
Ms. Flanagan: So, did you work with him in one way or another through your entire
career?
Judge Smith: No, I worked with him until, from ’75 to ’81, and then, no maybe ’75 until
about ’79, and then I think he knew and I knew — He was very controversial
in the firm, and I think we both realized that I was never going to make
partner if that was the only experience I had. And so I stopped working for
him at that point. But we remained very good friends.
Ms. Flanagan:
Judge Smith:
Was it hard for you to get work with other partners?
No, because — What happened was that Aetna brought in the Dalkon Shield
cases, and they very much, Aetna very much wanted a woman to be part of
the team and to be a constant. And because I needed something else to do
and Aetna wanted something and because I think in that litigation my age
was an advantage because it was, well because of the subject matter and that
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Ms. Flanagan: …hard-talking guy, but actually very supportive of you, it sounds like.
Judge Smith: Very supportive, and very supportive of— After me, he always had at least
one woman working for him, and he mentored all of us and was supportive
of all of us. And I think all of us benefited greatly.
Ms. Flanagan: Did he have daughters?
Judge Smith: No, he had two sons — and four wives!! I think the secret was just be careful
not to be one of his wives and that worked fine.
Ms. Flanagan: So, did you work with him in one way or another through your entire
career?
Judge Smith: No, I worked with him until, from ’75 to ’81, and then, no maybe ’75 until
about ’79, and then I think he knew and I knew — He was very controversial
in the firm, and I think we both realized that I was never going to make
partner if that was the only experience I had. And so I stopped working for
him at that point. But we remained very good friends.
Ms. Flanagan:
Judge Smith:
Was it hard for you to get work with other partners?
No, because — What happened was that Aetna brought in the Dalkon Shield
cases, and they very much, Aetna very much wanted a woman to be part of
the team and to be a constant. And because I needed something else to do
and Aetna wanted something and because I think in that litigation my age
was an advantage because it was, well because of the subject matter and that
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I could take some positions and understand and, I think, cope with some of
the issues in a much better way than a younger, say perhaps a single woman
might not be able to. Because we were dealing with infertility and all sorts
of things that I had an understanding of what they meant and what their loss
meant and all sorts of things. So, it was… But then, when Robbins went
into bankruptcy, of course, that was the next major issue because I went
home one night with 600 cases and came into work the next day and had
none. So that was kind of the next…
Ms. Flanagan: Had you made partner before that happened?
Judge Smith: I had made partner before that happened, thankfully. So, yes.
Ms. Flanagan: And how did you bounce back from that?
Judge Smith: Well, that was, I mean that was another whole phase because I really didn’t
know, you know, what I wanted to do. And the firm was very supportive
and said take your time, look around, there’s all sorts of people that would
be delighted to work with you. But what I discovered is what there were,
were people who wanted me to work for them, and I couldn’t do that
anymore. I had tremendous responsibility for the Dalkon Shield cases, and I
didn’t want to go back to being someone’s support system. And so, one of
the things that happened is several of the partners asked me to run for the
management committee while I was going through this period and, because
I had time, I thought that would be a good thing to do, which I did. And I
was elected.
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I could take some positions and understand and, I think, cope with some of
the issues in a much better way than a younger, say perhaps a single woman
might not be able to. Because we were dealing with infertility and all sorts
of things that I had an understanding of what they meant and what their loss
meant and all sorts of things. So, it was… But then, when Robbins went
into bankruptcy, of course, that was the next major issue because I went
home one night with 600 cases and came into work the next day and had
none. So that was kind of the next…
Ms. Flanagan: Had you made partner before that happened?
Judge Smith: I had made partner before that happened, thankfully. So, yes.
Ms. Flanagan: And how did you bounce back from that?
Judge Smith: Well, that was, I mean that was another whole phase because I really didn’t
know, you know, what I wanted to do. And the firm was very supportive
and said take your time, look around, there’s all sorts of people that would
be delighted to work with you. But what I discovered is what there were,
were people who wanted me to work for them, and I couldn’t do that
anymore. I had tremendous responsibility for the Dalkon Shield cases, and I
didn’t want to go back to being someone’s support system. And so, one of
the things that happened is several of the partners asked me to run for the
management committee while I was going through this period and, because
I had time, I thought that would be a good thing to do, which I did. And I
was elected.
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Ms. Flanagan: And that had to have been really quite a, both a compliment to you and
really a coup since it was basically all men that were voting for you.
Judge Smith: It was. No, it was. And I think my — I mean, I do think my partners, by
then, my partners at Bronson did respect me and they did like me. And so, I
think that their asking me to do that was a genuine tribute, and I was always
very pleased by it. But what I discovered is that I had gone to law school, to
college, in part because I got tired of being a room mother, and suddenly I
was a room mother again.
Ms. Flanagan: But a well-trained one.
Judge Smith: A well-trained one, right. And I didn’t have to bake cupcakes for them.
Ms. Flanagan: How long were you in management at Bronson?
Judge Smith: I was in management until I left for the Bench — from about ’84 till ’86 I
was in management.
Ms. Flanagan: And were you also practicing or were you full-time management?
Judge Smith: I was practicing but I was — I had a varied sort of potpourri of cases. I was
still looking and trying different things, and what I realized is that I never
loved being a lawyer — a trial lawyer, at least. I mean, it was always
stressful for me. It was always — The conflict part of it and being the
aggressor always was difficult for me. It goes against the grain of what I try
to be as a person, frankly. And sometimes, days that I felt I had done the
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Ms. Flanagan: And that had to have been really quite a, both a compliment to you and
really a coup since it was basically all men that were voting for you.
Judge Smith: It was. No, it was. And I think my — I mean, I do think my partners, by
then, my partners at Bronson did respect me and they did like me. And so, I
think that their asking me to do that was a genuine tribute, and I was always
very pleased by it. But what I discovered is that I had gone to law school, to
college, in part because I got tired of being a room mother, and suddenly I
was a room mother again.
Ms. Flanagan: But a well-trained one.
Judge Smith: A well-trained one, right. And I didn’t have to bake cupcakes for them.
Ms. Flanagan: How long were you in management at Bronson?
Judge Smith: I was in management until I left for the Bench — from about ’84 till ’86 I
was in management.
Ms. Flanagan: And were you also practicing or were you full-time management?
Judge Smith: I was practicing but I was — I had a varied sort of potpourri of cases. I was
still looking and trying different things, and what I realized is that I never
loved being a lawyer — a trial lawyer, at least. I mean, it was always
stressful for me. It was always — The conflict part of it and being the
aggressor always was difficult for me. It goes against the grain of what I try
to be as a person, frankly. And sometimes, days that I felt I had done the
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best work for my client, I felt the worst about myself as a person. And I
didn’t like that. And I sat down and I thought about it and I realized…
Telephone Interruption
Anyway, what I realized is that I had no more goals as a lawyer. I had tried
a big case. I’d managed big cases. I’d become the first woman partner at
Bronson. I’d been on the managing committee. There was really nothing
that I — If I sat down and tried to make a list of, “What do I want to
accomplish as a lawyer there?”, there was nothing left. And I wasn’t that
happy, without a goal what there was just wasn’t important enough to me.
Ms. Flanagan: Let me go back to one thing you said earlier, when you said that it didn’t,
the skills and the day-to-day combat that a litigator goes through was not a
good fit with who you are. And you said that some days delivering the best
thing you could for the client was also something that went seriously against
the grain for you as a person. Are you saying that it’s because you didn’t
necessarily think it was a fair result, that you got your client more than they
deserved?
Judge Smith: No…
Ms. Flanagan: Or just it was the combat?
Judge Smith: It was the combat. In order to, and I’m not saying — I always felt that I was
an ethical lawyer. I never felt I did something underhanded or dirty or
dishonest. But I think that a good trial lawyer — an effective trial lawyer — at
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best work for my client, I felt the worst about myself as a person. And I
didn’t like that. And I sat down and I thought about it and I realized…
Telephone Interruption
Anyway, what I realized is that I had no more goals as a lawyer. I had tried
a big case. I’d managed big cases. I’d become the first woman partner at
Bronson. I’d been on the managing committee. There was really nothing
that I — If I sat down and tried to make a list of, “What do I want to
accomplish as a lawyer there?”, there was nothing left. And I wasn’t that
happy, without a goal what there was just wasn’t important enough to me.
Ms. Flanagan: Let me go back to one thing you said earlier, when you said that it didn’t,
the skills and the day-to-day combat that a litigator goes through was not a
good fit with who you are. And you said that some days delivering the best
thing you could for the client was also something that went seriously against
the grain for you as a person. Are you saying that it’s because you didn’t
necessarily think it was a fair result, that you got your client more than they
deserved?
Judge Smith: No…
Ms. Flanagan: Or just it was the combat?
Judge Smith: It was the combat. In order to, and I’m not saying — I always felt that I was
an ethical lawyer. I never felt I did something underhanded or dirty or
dishonest. But I think that a good trial lawyer — an effective trial lawyer — at
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times has to take advantage of the weakness of others. I mean, if it’s there,
you’ve got to acknowledge it and use it. And I just got tired. And maybe it
was because of the Dalkon Shield. Maybe it’s because I saw too many
people who were weak and vulnerable. And so, that’s what I meant.
Ms. Flanagan: Okay. And just kind of looking big picture at your years at Bronson, I
mean, it sounds like you actually had a mentor.
Judge Smith: I did.
Ms. Flanagan: And did you feel like that was the general experience at Bronson? That
mentoring was actually part of the culture or did you just get lucky?
Judge Smith: I think it depended on — I think it was part of the culture. I don’t think it
was a trained part; it wasn’t a corporate policy part. And I don’t think
everybody had a mentor, but I think there were a lot of trial lawyers at
Bronson — and I can only speak to the trial lawyers because those were the
people I really knew the best — who simply mentored people. It was part of
their nature, and if you were lucky enough to be under one of those people,
you got mentored. So I don’t know that I would say that it was part of the
atmosphere at Bronson, but I would say that I thought a lot of mentoring
went on at Bronson.
Ms. Flanagan: Did you find a network in the Bar Association or the Bar community at
large that was supportive of you?
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times has to take advantage of the weakness of others. I mean, if it’s there,
you’ve got to acknowledge it and use it. And I just got tired. And maybe it
was because of the Dalkon Shield. Maybe it’s because I saw too many
people who were weak and vulnerable. And so, that’s what I meant.
Ms. Flanagan: Okay. And just kind of looking big picture at your years at Bronson, I
mean, it sounds like you actually had a mentor.
Judge Smith: I did.
Ms. Flanagan: And did you feel like that was the general experience at Bronson? That
mentoring was actually part of the culture or did you just get lucky?
Judge Smith: I think it depended on — I think it was part of the culture. I don’t think it
was a trained part; it wasn’t a corporate policy part. And I don’t think
everybody had a mentor, but I think there were a lot of trial lawyers at
Bronson — and I can only speak to the trial lawyers because those were the
people I really knew the best — who simply mentored people. It was part of
their nature, and if you were lucky enough to be under one of those people,
you got mentored. So I don’t know that I would say that it was part of the
atmosphere at Bronson, but I would say that I thought a lot of mentoring
went on at Bronson.
Ms. Flanagan: Did you find a network in the Bar Association or the Bar community at
large that was supportive of you?
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Judge Smith: No, but I didn’t look for it, Sarah. Again, I just always had a lot on my
plate. The practice kept me very busy. Through a lot of the years my
daughter was still at home, my younger daughter. I had friends outside and
responsibilities, so I didn’t really get involved in the Bar. I did find that,
and we could talk about that another time, when it came time, when I started
applying for the Bench, I found a remarkable amount of support from people
I had no right to really expect it from because I hadn’t, it wasn’t that I’d
earned my dues with a lot of them.
Ms. Flanagan:
Judge Smith:
Ms. Flanagan:
And did you, yourself, mentor younger associates coming into the firm?
I did. I was on the hiring committee for Bronson for a long time and my
primary focus internally was trying to increase the number of women at
Bronson, and so there were a number of women, including the one I’m
having dinner with tonight, whom I encouraged to come to Bronson and
whom I had a role in hiring. And I tried very hard to see, to help them and
to try to make sure they never regretted it and that I was available for them.
And did you feel that your efforts on the recruitment committee and on the
management committee did help to pave the way for more women to be
successful at Bronson?
Judge Smith: I do. Yes, I did, rather. I mean, by the time I left, there were a number of at
least first-level partners and starting to be more general partners, so I like to
think that I made a difference at Bronson. I hope I did.
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Judge Smith: No, but I didn’t look for it, Sarah. Again, I just always had a lot on my
plate. The practice kept me very busy. Through a lot of the years my
daughter was still at home, my younger daughter. I had friends outside and
responsibilities, so I didn’t really get involved in the Bar. I did find that,
and we could talk about that another time, when it came time, when I started
applying for the Bench, I found a remarkable amount of support from people
I had no right to really expect it from because I hadn’t, it wasn’t that I’d
earned my dues with a lot of them.
Ms. Flanagan:
Judge Smith:
Ms. Flanagan:
And did you, yourself, mentor younger associates coming into the firm?
I did. I was on the hiring committee for Bronson for a long time and my
primary focus internally was trying to increase the number of women at
Bronson, and so there were a number of women, including the one I’m
having dinner with tonight, whom I encouraged to come to Bronson and
whom I had a role in hiring. And I tried very hard to see, to help them and
to try to make sure they never regretted it and that I was available for them.
And did you feel that your efforts on the recruitment committee and on the
management committee did help to pave the way for more women to be
successful at Bronson?
Judge Smith: I do. Yes, I did, rather. I mean, by the time I left, there were a number of at
least first-level partners and starting to be more general partners, so I like to
think that I made a difference at Bronson. I hope I did.
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Ms. Flanagan: And then, when you were at Bronson, were you in State Court more than
Federal Court, or which Court was your battlefield?
Judge Smith:
Ms. Flanagan:
It was pretty mixed because of the Dalkon Shield, because there was an
MDL. Was it MDL or did they have the MDL or was it just a — Spencer
Williams had several hundred Dalkon Shield cases. And even in the
aviation cases it was mixed because there were a couple of, several, the
biggest aviation cases I had tended to be in Federal Court, so it was probably
half and half.
And what was your — In the years that you were a practicing attorney, what
was your general impression of the quality of the Bench in San Francisco,
Federal and State?
Judge Smith: I thought the Superior — I thought the Federal Bench was excellent, of
course, and terrifying. But no, I liked it, and I liked the San Francisco
Superior Court. I had a high regard for — I dealt with, for example, I
remember going to San Jose and having Ed Panelli be one of the Superior
Court judges that I dealt with down there. And, of course, I dealt with Gene
Lynch, and so I thought it was pretty good.
Ms. Flanagan: Okay, well, we’ll end the session here and then when we pick up next time,
we’ll pick up with how you turned your attention to a possible position on
the Bench.
Judge Smith: Okay, sounds good.
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Ms. Flanagan: And then, when you were at Bronson, were you in State Court more than
Federal Court, or which Court was your battlefield?
Judge Smith:
Ms. Flanagan:
It was pretty mixed because of the Dalkon Shield, because there was an
MDL. Was it MDL or did they have the MDL or was it just a — Spencer
Williams had several hundred Dalkon Shield cases. And even in the
aviation cases it was mixed because there were a couple of, several, the
biggest aviation cases I had tended to be in Federal Court, so it was probably
half and half.
And what was your — In the years that you were a practicing attorney, what
was your general impression of the quality of the Bench in San Francisco,
Federal and State?
Judge Smith: I thought the Superior — I thought the Federal Bench was excellent, of
course, and terrifying. But no, I liked it, and I liked the San Francisco
Superior Court. I had a high regard for — I dealt with, for example, I
remember going to San Jose and having Ed Panelli be one of the Superior
Court judges that I dealt with down there. And, of course, I dealt with Gene
Lynch, and so I thought it was pretty good.
Ms. Flanagan: Okay, well, we’ll end the session here and then when we pick up next time,
we’ll pick up with how you turned your attention to a possible position on
the Bench.
Judge Smith: Okay, sounds good.
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Ms. Flanagan: Thank you.
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ORAL HISTORY OF THE HONORABLE FERN M. SMITH (RET.)
SECOND INTERVIEW
January 7, 2008
This is the second interview of the oral history of the Honorable Fern M. Smith (Ret.), which is
being taken on behalf of Women Trailblazers in the Law, a Project of the American Bar
Association Commission on Women in the Profession. It is being conducted by Sarah Flanagan
on January 7, 2008.
Ms. Flanagan: When we left off we had been talking about your time at Bronson, and the
fact that you got on the management committee. And we were just about to
start talking about how you started thinking about leaving law firm practice
and going on the bench.
Judge Smith: Well I think we had talked about the fact that, you know, I had lost my
basically only client about a year and a half earlier and had been searching
for a new practice area. And, the more I searched, and I think I talked about
this last time, there just really wasn’t anything that excited me any longer.
And so I went to talk to Dan Weinstein, before whom I had tried my last big
case. He was on the Superior Court at that time, and after the case was over
we’d become friends. And so I had lunch with him and asked him if he had
any suggestions. And he said he thought I belonged on the Bench rather
than in practice. And we talked about the fact that I had never thought of it
before, in part because I really am a very apolitical person, and I had never
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55
ORAL HISTORY OF THE HONORABLE FERN M. SMITH (RET.)
SECOND INTERVIEW
January 7, 2008
This is the second interview of the oral history of the Honorable Fern M. Smith (Ret.), which is
being taken on behalf of Women Trailblazers in the Law, a Project of the American Bar
Association Commission on Women in the Profession. It is being conducted by Sarah Flanagan
on January 7, 2008.
Ms. Flanagan: When we left off we had been talking about your time at Bronson, and the
fact that you got on the management committee. And we were just about to
start talking about how you started thinking about leaving law firm practice
and going on the bench.
Judge Smith: Well I think we had talked about the fact that, you know, I had lost my
basically only client about a year and a half earlier and had been searching
for a new practice area. And, the more I searched, and I think I talked about
this last time, there just really wasn’t anything that excited me any longer.
And so I went to talk to Dan Weinstein, before whom I had tried my last big
case. He was on the Superior Court at that time, and after the case was over
we’d become friends. And so I had lunch with him and asked him if he had
any suggestions. And he said he thought I belonged on the Bench rather
than in practice. And we talked about the fact that I had never thought of it
before, in part because I really am a very apolitical person, and I had never
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55
been involved in politics. I had always assumed that is what it took to get
on the Bench. I didn’t think I had any connections, etc. So he said that he
would make a few phone calls. And it was interesting because Governor
Deukmejian was the governor at that time, and Marvin Baxter, who is now
on the California Supreme Court, was his appointments secretary. It was a
very conservative administration, to say the least. And Judge Weinstein, or
Danny as I call him quite affectionately, comes from a very liberal
democratic family. His father, who was a very well-known Rabbi in
Chicago, was one of the speechwriters for Adlai Stevenson, so Danny grew
up in a very, as I say, liberal Jewish family and community, which he
acknowledged, but he said that he and Marvin Baxter had always mutually
respected each other. So he called now-Justice Baxter and told him about
me. And at the time Governor Deukmejian had been appointing primarily
prosecutors to the Bench. Of course, he was the former Attorney General
for the State, and a big law and order person. And the downtown lawyers
were getting restless with his appointments because, while prosecutors are
often very bright and very important, they know tiddlywinks about
discovery and other issues having to do with civil trials, etc. The problem
was that judges, Superior Court judges were not making very much money
at the time. I think the salary was $83,000 a year. And the downtown
lawyers weren’t making what they are making now, but still the experienced
partners were making in the six-figures certainly, and for people who had,
especially people who had families and children to support, they were not
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56
been involved in politics. I had always assumed that is what it took to get
on the Bench. I didn’t think I had any connections, etc. So he said that he
would make a few phone calls. And it was interesting because Governor
Deukmejian was the governor at that time, and Marvin Baxter, who is now
on the California Supreme Court, was his appointments secretary. It was a
very conservative administration, to say the least. And Judge Weinstein, or
Danny as I call him quite affectionately, comes from a very liberal
democratic family. His father, who was a very well-known Rabbi in
Chicago, was one of the speechwriters for Adlai Stevenson, so Danny grew
up in a very, as I say, liberal Jewish family and community, which he
acknowledged, but he said that he and Marvin Baxter had always mutually
respected each other. So he called now-Justice Baxter and told him about
me. And at the time Governor Deukmejian had been appointing primarily
prosecutors to the Bench. Of course, he was the former Attorney General
for the State, and a big law and order person. And the downtown lawyers
were getting restless with his appointments because, while prosecutors are
often very bright and very important, they know tiddlywinks about
discovery and other issues having to do with civil trials, etc. The problem
was that judges, Superior Court judges were not making very much money
at the time. I think the salary was $83,000 a year. And the downtown
lawyers weren’t making what they are making now, but still the experienced
partners were making in the six-figures certainly, and for people who had,
especially people who had families and children to support, they were not
700921475v1
56
terribly interested. I was in the fortunate position at that time of not having
to concern myself that much with money in that, while I was certainly not
rich, I was married at the time and my children were grown and were
through college, and so a top income for me was not critical. So Mary said
he would like to see my resume, which I sent, and then I went and
interviewed with him in Sacramento. And he, of course, has a great poker
face, and I had no idea whether he liked me, didn’t like me, what he thought
of me. But we’d had a good conversation. And then he called a couple of
weeks later, and he said that the Governor was very pleased with my resume
and that it was the Governor’s policy to appoint people to the Municipal
Court Bench and then, when there was a vacancy, elevate them. And I had
known this, but figured I’d think about it later. And so I told Mary that I
was flattered by the Governor’s invitation but I was not really willing to go
from being a managing partner of a respected law firm to being a Muni
Court judge, which I concede was a very elitist position but it’s how I felt. I
didn’t want to do DUIs and arraignments, plus the fact that you never knew
when a vacancy would come along. And there was no guarantee that I
would get, you know, the first or the second or the third vacancy. And I was
in my fifties by then and just didn’t feel I had the time or the interest. So I
said thanks very much, please thank the Governor, but no thanks, and hung
up. And about three days later the phone rang and it was Mary Baxter, and
he said, “Okay, you win, and the Governor’s going to appoint you to the
Superior Court.”
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terribly interested. I was in the fortunate position at that time of not having
to concern myself that much with money in that, while I was certainly not
rich, I was married at the time and my children were grown and were
through college, and so a top income for me was not critical. So Mary said
he would like to see my resume, which I sent, and then I went and
interviewed with him in Sacramento. And he, of course, has a great poker
face, and I had no idea whether he liked me, didn’t like me, what he thought
of me. But we’d had a good conversation. And then he called a couple of
weeks later, and he said that the Governor was very pleased with my resume
and that it was the Governor’s policy to appoint people to the Municipal
Court Bench and then, when there was a vacancy, elevate them. And I had
known this, but figured I’d think about it later. And so I told Mary that I
was flattered by the Governor’s invitation but I was not really willing to go
from being a managing partner of a respected law firm to being a Muni
Court judge, which I concede was a very elitist position but it’s how I felt. I
didn’t want to do DUIs and arraignments, plus the fact that you never knew
when a vacancy would come along. And there was no guarantee that I
would get, you know, the first or the second or the third vacancy. And I was
in my fifties by then and just didn’t feel I had the time or the interest. So I
said thanks very much, please thank the Governor, but no thanks, and hung
up. And about three days later the phone rang and it was Mary Baxter, and
he said, “Okay, you win, and the Governor’s going to appoint you to the
Superior Court.”
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Ms. Flanagan: Now, to stop you there. In this career move did you feel that your age was
an asset as opposed to a road block?
Judge Smith: Well, I think it gave me some validity in my unwillingness to go to the Muni
Court Bench. I mean I think that was, you know, understandable and was
objective. It was an objective reason. And so it certainly wasn’t a
detriment. At that point, you know, I was in my, I guess, early fifties. I
wasn’t teetering on the edge of senility so I thought it was a fine, a fine
move.
Ms. Flanagan:
Judge Smith:
What about your gender? Was that a plus?
I thought it was a plus. And again because the Governor had been
appointing primarily prosecutors. Most of the prosecutors in those days
were men. There were a number of women on the San Francisco Superior
Court because Jerry Brown had appointed a lot, several women, so I wasn’t
going to be a trailblazer, but for that administration there was not any strong
record. So I certainly didn’t think it hurt me.
Ms. Flanagan: And did you talk to any of the women sitting judges about your plans?
Judge Smith: I didn’t. I didn’t really know any of them. When I became a judge, at the
time I became a judge, I had never appeared before a woman judge in my
life. And although there were judges on the Court, they were really, they
had not come out of the civil, what I would call the downtown civil practice.
There were prosecutors. Maxine Chesney was on the Bench at the time.
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Ms. Flanagan: Now, to stop you there. In this career move did you feel that your age was
an asset as opposed to a road block?
Judge Smith: Well, I think it gave me some validity in my unwillingness to go to the Muni
Court Bench. I mean I think that was, you know, understandable and was
objective. It was an objective reason. And so it certainly wasn’t a
detriment. At that point, you know, I was in my, I guess, early fifties. I
wasn’t teetering on the edge of senility so I thought it was a fine, a fine
move.
Ms. Flanagan:
Judge Smith:
What about your gender? Was that a plus?
I thought it was a plus. And again because the Governor had been
appointing primarily prosecutors. Most of the prosecutors in those days
were men. There were a number of women on the San Francisco Superior
Court because Jerry Brown had appointed a lot, several women, so I wasn’t
going to be a trailblazer, but for that administration there was not any strong
record. So I certainly didn’t think it hurt me.
Ms. Flanagan: And did you talk to any of the women sitting judges about your plans?
Judge Smith: I didn’t. I didn’t really know any of them. When I became a judge, at the
time I became a judge, I had never appeared before a woman judge in my
life. And although there were judges on the Court, they were really, they
had not come out of the civil, what I would call the downtown civil practice.
There were prosecutors. Maxine Chesney was on the Bench at the time.
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Lucy Kelly McCabe was on the Bench. They were both in the criminal,
former prosecutors or defense lawyers. Ina Gyemant was — I forget where
Ina was. And Isabella Horton Grant, and I think she was in probate.
Nobody was really, that I remember — There were no women who had come
out of a downtown civil-type practice. They had come out of criminal law,
family law, probate, etc. And I didn’t know any of them. So I didn’t talk to
them.
Ms. Flanagan: And when we were talking about your time at Bronson I had asked if you
were active in the Bar Association or the Bar community, and at that point
you said we’ll talk about this later but that when you had aspirations for the
Bench you actually got support from them…
Judge Smith: I did.
Ms. Flanagan” … despite the fact you hadn’t paid your dues. Could you elaborate on that?
Judge Smith: Right, you know, I didn’t. I mean, after I decided to do this and make this
application, you know, I thought about what did I need to have some
support. It seemed to me a natural that women’s groups would be helpful
and so — I don’t remember who the person was who was the head of the
Queen’s Bench at that time. But I did contact the Queen’s Bench and told
them what I was planning on doing and said that, you know, they didn’t
know me and they certainly didn’t owe me anything, but that I’d be happy to
have their support. And so they invited me to send them my application,
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Lucy Kelly McCabe was on the Bench. They were both in the criminal,
former prosecutors or defense lawyers. Ina Gyemant was — I forget where
Ina was. And Isabella Horton Grant, and I think she was in probate.
Nobody was really, that I remember — There were no women who had come
out of a downtown civil-type practice. They had come out of criminal law,
family law, probate, etc. And I didn’t know any of them. So I didn’t talk to
them.
Ms. Flanagan: And when we were talking about your time at Bronson I had asked if you
were active in the Bar Association or the Bar community, and at that point
you said we’ll talk about this later but that when you had aspirations for the
Bench you actually got support from them…
Judge Smith: I did.
Ms. Flanagan” … despite the fact you hadn’t paid your dues. Could you elaborate on that?
Judge Smith: Right, you know, I didn’t. I mean, after I decided to do this and make this
application, you know, I thought about what did I need to have some
support. It seemed to me a natural that women’s groups would be helpful
and so — I don’t remember who the person was who was the head of the
Queen’s Bench at that time. But I did contact the Queen’s Bench and told
them what I was planning on doing and said that, you know, they didn’t
know me and they certainly didn’t owe me anything, but that I’d be happy to
have their support. And so they invited me to send them my application,
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which I did. And they interviewed me and then did write a very strong letter
of recommendation, which I appreciated very much.
Ms. Flanagan: And have you remained active with the Queen’s Bench?
Judge Smith: I haven’t remained active. I did become a life member. They again came to
my side when I applied for the Federal Bench. And I became a lifetime
member, but I didn’t stay active.
Ms. Flanagan: So —
Judge Smith: And CWL, the California Women Lawyers, they were another group. The
same thing, and we went through the same process. And I haven’t, I mean,
I’m sorry to say I haven’t remained active there, although I do support them
both financially.
Ms. Flanagan: And your firm, your partners at Bronson, were they supportive of this move
to the Bench?
Judge Smith: They weren’t thrilled. I mean, I won’t say they weren’t supportive, but I
think they were surprised, and I think reluctant to see me go. I was the
senior woman in the firm, and so, you know, I think they were sorry. But
they certainly didn’t stand in my way. They gave a lovely reception after
my induction, and a couple of them spoke at my induction, and so it was
nice.
Ms. Flanagan: How did the women in the firm react to seeing the senior woman leave?
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which I did. And they interviewed me and then did write a very strong letter
of recommendation, which I appreciated very much.
Ms. Flanagan: And have you remained active with the Queen’s Bench?
Judge Smith: I haven’t remained active. I did become a life member. They again came to
my side when I applied for the Federal Bench. And I became a lifetime
member, but I didn’t stay active.
Ms. Flanagan: So —
Judge Smith: And CWL, the California Women Lawyers, they were another group. The
same thing, and we went through the same process. And I haven’t, I mean,
I’m sorry to say I haven’t remained active there, although I do support them
both financially.
Ms. Flanagan: And your firm, your partners at Bronson, were they supportive of this move
to the Bench?
Judge Smith: They weren’t thrilled. I mean, I won’t say they weren’t supportive, but I
think they were surprised, and I think reluctant to see me go. I was the
senior woman in the firm, and so, you know, I think they were sorry. But
they certainly didn’t stand in my way. They gave a lovely reception after
my induction, and a couple of them spoke at my induction, and so it was
nice.
Ms. Flanagan: How did the women in the firm react to seeing the senior woman leave?
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Judge Smith: Well, I think the same way. I think there were mixed emotions, you know.
I think I was viewed as a mentor by several of them, and they were sorry to
see me go. But I also think there was a certain pride in what I was doing
and good feelings about that.
Ms. Flanagan: So this was 1986 when you were appointed?
Judge Smith: Yes.
Ms. Flanagan: Let me ask, as you were now moving from practice to being a judge,
different skill set, a different job, did you have any role models you were
looking at, or people you were talking to about, “How do I do this?”
Judge Smith: I didn’t. Well I talked to, you know, I talked to Danny because he was the
one I really knew the most. And I did talk to a couple of other judges. I
talked to — Who did I talk to? I talked to Ed Panelli. No, I didn’t. I didn’t,
that’s not correct. I got to know Justice Panelli after really, although I had
settled cases before him. I think Danny was the main one. I didn’t talk to
any of the women judges, as I recall. And I didn’t have any role models, but
I think by then, you know, I had gone so long in the profession really
without having role models that it was just sort of the same thing all over
again.
Ms. Flanagan: And what was your first appointment on the Bench? What were you doing?
Judge Smith: That was sort of amusing because the reason, one of the reasons I’d gotten a
direct appointment was because I did have fairly sophisticated civil
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Judge Smith: Well, I think the same way. I think there were mixed emotions, you know.
I think I was viewed as a mentor by several of them, and they were sorry to
see me go. But I also think there was a certain pride in what I was doing
and good feelings about that.
Ms. Flanagan: So this was 1986 when you were appointed?
Judge Smith: Yes.
Ms. Flanagan: Let me ask, as you were now moving from practice to being a judge,
different skill set, a different job, did you have any role models you were
looking at, or people you were talking to about, “How do I do this?”
Judge Smith: I didn’t. Well I talked to, you know, I talked to Danny because he was the
one I really knew the most. And I did talk to a couple of other judges. I
talked to — Who did I talk to? I talked to Ed Panelli. No, I didn’t. I didn’t,
that’s not correct. I got to know Justice Panelli after really, although I had
settled cases before him. I think Danny was the main one. I didn’t talk to
any of the women judges, as I recall. And I didn’t have any role models, but
I think by then, you know, I had gone so long in the profession really
without having role models that it was just sort of the same thing all over
again.
Ms. Flanagan: And what was your first appointment on the Bench? What were you doing?
Judge Smith: That was sort of amusing because the reason, one of the reasons I’d gotten a
direct appointment was because I did have fairly sophisticated civil
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experience, which is what the downtown lawyers were complaining about.
And so then when I went to meet Judge Campilongo, Vince Campilongo,
who was, Vic Campilongo, who was the presiding judge at the time. He
was a tough ex-marine and had never heard of me. And wasn’t, I think,
thrilled to begin with at my appointment because he had someone in mind
on the Muni Bench that he wanted to get that slot. And so I went up to see
him, and he gave me my choice of either going to Family Law or Juvenile
Court. And so …
Ms. Flanagan:
Judge Smith:
Good use of your experience.
Right. So I took juvenile court, and in part I took it because Danny was up
there. There were two juvenile judges up at the Laguna Honda Juvenile
Court at the time, and one handled dependency cases and one handled
delinquency cases. And so Danny was handling dependency cases, and I, if
I took this, was going to handle delinquency cases. And I figured he’d be a
great support system, and that it would be, you know, interesting to work for
him. That seemed better than Divorce Court.
Ms. Flanagan: And did you feel prepared for it?
Judge Smith: No! No, I left Bronson on a Friday. Danny came to Bronson and swore me
in at the office. And, you know, there was a little reception and things. And
so I left on a Friday, and Monday I showed up at Laguna Honda at the
Juvenile Court, where I’d never been in my life. And it was this ratty old
building. I mean it really was in terrible shape, and I didn’t have a secretary
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experience, which is what the downtown lawyers were complaining about.
And so then when I went to meet Judge Campilongo, Vince Campilongo,
who was, Vic Campilongo, who was the presiding judge at the time. He
was a tough ex-marine and had never heard of me. And wasn’t, I think,
thrilled to begin with at my appointment because he had someone in mind
on the Muni Bench that he wanted to get that slot. And so I went up to see
him, and he gave me my choice of either going to Family Law or Juvenile
Court. And so …
Ms. Flanagan:
Judge Smith:
Good use of your experience.
Right. So I took juvenile court, and in part I took it because Danny was up
there. There were two juvenile judges up at the Laguna Honda Juvenile
Court at the time, and one handled dependency cases and one handled
delinquency cases. And so Danny was handling dependency cases, and I, if
I took this, was going to handle delinquency cases. And I figured he’d be a
great support system, and that it would be, you know, interesting to work for
him. That seemed better than Divorce Court.
Ms. Flanagan: And did you feel prepared for it?
Judge Smith: No! No, I left Bronson on a Friday. Danny came to Bronson and swore me
in at the office. And, you know, there was a little reception and things. And
so I left on a Friday, and Monday I showed up at Laguna Honda at the
Juvenile Court, where I’d never been in my life. And it was this ratty old
building. I mean it really was in terrible shape, and I didn’t have a secretary
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and I didn’t have a law clerk. They handed me a file and told me I had a
trial that day. It was a rape case. And there were four defendants who
ranged from fourteen to seventeen, and the victim was fifteen. And of
course there is no jury, you know, in juvenile court, and so I was it. I was
my law clerk, and I was the judge, and I was the jury, and I was the
sentencing person. And I had never done a criminal, I mean, and these
aren’t exactly, but they’re quasi-criminal, you know, they’re certainly closer
to a criminal case than they are to a contract case. And so there I was.
Ms. Flanagan: Was it the case that the State Courts did not have any organized training for
judges?
Judge Smith: Well they did but, you know, it just was like once a year, and I was …
Ms. Flanagan: Out of cycle?
Judge Smith: Exactly. And so I think I took the bench in September and judges’ school
was the following June, maybe. So, no, I had no idea what I was doing.
Ms. Flanagan: And how long were you on the Juvenile Bench?
Judge Smith: I was there a year. And then at that time Ed Stern, who is now of course
married to Maxine, was the presiding judge down at the Hall of Justice.
And I had gotten to know Ed and Maxine a little during that year. The
Superior Court has appointments, at that time, every August there was a new
presiding judge and then new appointments. And so Ed had made a request
that I be transferred down to the Hall of Justice, which I was. And that was
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and I didn’t have a law clerk. They handed me a file and told me I had a
trial that day. It was a rape case. And there were four defendants who
ranged from fourteen to seventeen, and the victim was fifteen. And of
course there is no jury, you know, in juvenile court, and so I was it. I was
my law clerk, and I was the judge, and I was the jury, and I was the
sentencing person. And I had never done a criminal, I mean, and these
aren’t exactly, but they’re quasi-criminal, you know, they’re certainly closer
to a criminal case than they are to a contract case. And so there I was.
Ms. Flanagan: Was it the case that the State Courts did not have any organized training for
judges?
Judge Smith: Well they did but, you know, it just was like once a year, and I was …
Ms. Flanagan: Out of cycle?
Judge Smith: Exactly. And so I think I took the bench in September and judges’ school
was the following June, maybe. So, no, I had no idea what I was doing.
Ms. Flanagan: And how long were you on the Juvenile Bench?
Judge Smith: I was there a year. And then at that time Ed Stern, who is now of course
married to Maxine, was the presiding judge down at the Hall of Justice.
And I had gotten to know Ed and Maxine a little during that year. The
Superior Court has appointments, at that time, every August there was a new
presiding judge and then new appointments. And so Ed had made a request
that I be transferred down to the Hall of Justice, which I was. And that was
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very — They were a great goup of judges down there, you know. I mean,
again, it is not the world’s most humorous place or whatever, but it was a
very collegial group of really smart, nice people. Al Chiantelli was there,
and Tim Riordan, and Mike Hanlon was there, and Ed was there, and Bob
Dossee, and Claude Perasso. It was just great fun.
Ms. Flanagan: And by this time had you had some actual training for criminal?
Judge Smith: Well, yes, in June. I mean, barely. I had gone to just a week over at, CJER
put on a week’s training at Berkeley.
Ms. Flanagan: Did that focus on criminal or just very general?
Judge Smith: Just everything. Yeah, but again, I mean, there was more than one occasion
when, in the middle of something, I would just say to the lawyers, even if
there were a jury in the room: “Excuse me, I have to leave the bench for a
minute. I’ll be right back.” And I would run down the hall, and I would see
if Ed was on, you know. Sometimes they were on the bench and I’d open
the door and go “psst.” Usually, I could find somebody in chambers to ask.
It was much more free form than Federal Court was later.
Ms. Flanagan: And going back just to focus on Juvenile Court, what were your takeaways
from that experience?
Judge Smith: Well, I’ve always, since I left there, did that, I have always been very
grateful that I had that year. I never would have picked it It was probably
one of the toughest judging years I have ever had, but it made me a much
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very — They were a great goup of judges down there, you know. I mean,
again, it is not the world’s most humorous place or whatever, but it was a
very collegial group of really smart, nice people. Al Chiantelli was there,
and Tim Riordan, and Mike Hanlon was there, and Ed was there, and Bob
Dossee, and Claude Perasso. It was just great fun.
Ms. Flanagan: And by this time had you had some actual training for criminal?
Judge Smith: Well, yes, in June. I mean, barely. I had gone to just a week over at, CJER
put on a week’s training at Berkeley.
Ms. Flanagan: Did that focus on criminal or just very general?
Judge Smith: Just everything. Yeah, but again, I mean, there was more than one occasion
when, in the middle of something, I would just say to the lawyers, even if
there were a jury in the room: “Excuse me, I have to leave the bench for a
minute. I’ll be right back.” And I would run down the hall, and I would see
if Ed was on, you know. Sometimes they were on the bench and I’d open
the door and go “psst.” Usually, I could find somebody in chambers to ask.
It was much more free form than Federal Court was later.
Ms. Flanagan: And going back just to focus on Juvenile Court, what were your takeaways
from that experience?
Judge Smith: Well, I’ve always, since I left there, did that, I have always been very
grateful that I had that year. I never would have picked it It was probably
one of the toughest judging years I have ever had, but it made me a much
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different judge than I would have been otherwise. And I think, I hope, a
better judge than I would have been.
Ms. Flanagan: Can you elaborate on why that is?
Judge Smith: Well, because, I mean, as we’ve talked about, I came from, you know,
certainly I don’t want to say very humble beginnings. I didn’t walk to
school barefoot in the snow. But I came from a middle class family, and
thought I was pretty tolerant and sophisticated. It never — I had no idea that
young people, and older people, and, you know, people lived the way so
many, most of those kids lived, and so many of their parents and
grandparents, and what it was like for a big segment of our population. And
seeing these kids who would come before me. And the probation officers
up at Juvenile Court were great, and a lot of them had been there a long
time. And they just stand there in the court room and roll their eyes at me,
but they were really helpful and supportive and wonderful. But you know,
they’d tell me after there’d be a young person in front of me and I’d be
wringing my hands, and later one of them would say, “Judge, you know, I
had his father, I had his brother, you know. You’re not going to change the
world.” And I didn’t change the world, but what was so sad — Well, there
were a lot of sad things. One of them was that you would see these kids,
fourteen and fifteen years old, and after a while there were a lot of them
where you just knew that all they were going to do was recycle their lives
through one institution after another until either they killed someone and
stayed permanently or someone killed them. There was one set of brothers,
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different judge than I would have been otherwise. And I think, I hope, a
better judge than I would have been.
Ms. Flanagan: Can you elaborate on why that is?
Judge Smith: Well, because, I mean, as we’ve talked about, I came from, you know,
certainly I don’t want to say very humble beginnings. I didn’t walk to
school barefoot in the snow. But I came from a middle class family, and
thought I was pretty tolerant and sophisticated. It never — I had no idea that
young people, and older people, and, you know, people lived the way so
many, most of those kids lived, and so many of their parents and
grandparents, and what it was like for a big segment of our population. And
seeing these kids who would come before me. And the probation officers
up at Juvenile Court were great, and a lot of them had been there a long
time. And they just stand there in the court room and roll their eyes at me,
but they were really helpful and supportive and wonderful. But you know,
they’d tell me after there’d be a young person in front of me and I’d be
wringing my hands, and later one of them would say, “Judge, you know, I
had his father, I had his brother, you know. You’re not going to change the
world.” And I didn’t change the world, but what was so sad — Well, there
were a lot of sad things. One of them was that you would see these kids,
fourteen and fifteen years old, and after a while there were a lot of them
where you just knew that all they were going to do was recycle their lives
through one institution after another until either they killed someone and
stayed permanently or someone killed them. There was one set of brothers,
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four brothers, all had different fathers, all had different last names Their
mother was a drug addict. I didn’t have the older two. The older one was
already in CYA, which is the most strict of the maximum youth facilities.
The second one I guess was in Log Cabin. I forget the formal name for that,
which is the next one. And then I got the two younger ones. And
eventually the third one, I forget, I think I put him in Log Cabin. The
younger one, who was only either 12 or 13, was just barely over the age
where I even would have jurisdiction. And he viewed himself as the
protector of his mother, and he would steal to get food, you know, for her
and for him. And I tried everything I knew, and finally had to, I felt, take
him out of the home. And when I told him that, I mean it was just one of the
worst things I’ve been through, just screaming and yelling. And I thought I
was so compassionate and wise, and I looked at him and I said, “You know,
I really understand how you feel.” And he looked up at me, and he said:
“You don’t understand nothing, you honky bitch.” And I thought, “You’re
absolutely right, I don’t. There’s no way I can put myself in your shoes.”
And my guess is, wherever I put him, it was either in a foster home or a
halfway house, I have no doubt that he ran away as soon as he possibly
could, and that, you know, his — There was probably no way that he was
ever going to get out of that cycle.
Ms. Flanagan: And how did that change your view of what you could do as a judge?
Judge Smith: Well, it’s not so much that it changed my view of what I could do, but it
changed my view of how people got to where they were. And what it was
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four brothers, all had different fathers, all had different last names Their
mother was a drug addict. I didn’t have the older two. The older one was
already in CYA, which is the most strict of the maximum youth facilities.
The second one I guess was in Log Cabin. I forget the formal name for that,
which is the next one. And then I got the two younger ones. And
eventually the third one, I forget, I think I put him in Log Cabin. The
younger one, who was only either 12 or 13, was just barely over the age
where I even would have jurisdiction. And he viewed himself as the
protector of his mother, and he would steal to get food, you know, for her
and for him. And I tried everything I knew, and finally had to, I felt, take
him out of the home. And when I told him that, I mean it was just one of the
worst things I’ve been through, just screaming and yelling. And I thought I
was so compassionate and wise, and I looked at him and I said, “You know,
I really understand how you feel.” And he looked up at me, and he said:
“You don’t understand nothing, you honky bitch.” And I thought, “You’re
absolutely right, I don’t. There’s no way I can put myself in your shoes.”
And my guess is, wherever I put him, it was either in a foster home or a
halfway house, I have no doubt that he ran away as soon as he possibly
could, and that, you know, his — There was probably no way that he was
ever going to get out of that cycle.
Ms. Flanagan: And how did that change your view of what you could do as a judge?
Judge Smith: Well, it’s not so much that it changed my view of what I could do, but it
changed my view of how people got to where they were. And what it was
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for a lot of people that drove them or led to their behaving the way they did.
That was more so at the Hall of Justice probably, you know, than at the
Federal Court. But even at the Federal Court, especially a lot of these
people who were in the country illegally, the drug dealers and whatever. I
mean, it didn’t excuse their behavior or make it okay, but it gave me some
understanding at least of what people do when they are desperate.
Ms. Flanagan: And does that, in your experience — Did that translate to perhaps leniency,
having in mind where they came from, or more the opposite, the sense of
fatalism about whether really rehab can work with these kids or not?
Judge Smith: No, I think, I think it gave me a stronger desire to look for places of hope,
you know, at least to try to see if maybe this was one or one of the ones that
could be saved. And there were a couple that, you know, I think maybe,
maybe I did. Maybe I didn’t, but maybe I did. And it took two or three
times, and, you know, it took them violating probation. And, oh God, the
prosecutors would get so irritated with me, and the probation officers would
get irritated, and, you know. But these were people I really believed weren’t
a danger to the outside world. They were more a danger to themselves. So,
it just, I think it made me a better listener, even in non-criminal things as —
Just what it is that drives people and the fact that, you know, we’re not all
the same. And, so, you have to make an effort to look behind what people
say. And to figure out sometimes what, who they really are.
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for a lot of people that drove them or led to their behaving the way they did.
That was more so at the Hall of Justice probably, you know, than at the
Federal Court. But even at the Federal Court, especially a lot of these
people who were in the country illegally, the drug dealers and whatever. I
mean, it didn’t excuse their behavior or make it okay, but it gave me some
understanding at least of what people do when they are desperate.
Ms. Flanagan: And does that, in your experience — Did that translate to perhaps leniency,
having in mind where they came from, or more the opposite, the sense of
fatalism about whether really rehab can work with these kids or not?
Judge Smith: No, I think, I think it gave me a stronger desire to look for places of hope,
you know, at least to try to see if maybe this was one or one of the ones that
could be saved. And there were a couple that, you know, I think maybe,
maybe I did. Maybe I didn’t, but maybe I did. And it took two or three
times, and, you know, it took them violating probation. And, oh God, the
prosecutors would get so irritated with me, and the probation officers would
get irritated, and, you know. But these were people I really believed weren’t
a danger to the outside world. They were more a danger to themselves. So,
it just, I think it made me a better listener, even in non-criminal things as —
Just what it is that drives people and the fact that, you know, we’re not all
the same. And, so, you have to make an effort to look behind what people
say. And to figure out sometimes what, who they really are.
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Ms. Flanagan: And, from your vantage point, on the Juvenile Bench and then down at the
Hall, in terms of how the institutions in San Francisco operated, did you see
racism in terms of the selection of the defendants that would be brought
before you or assumptions that were being made about the defendants who
were in front of you.
Judge Smith: Well, at the Juvenile Hall, I mean, there is no doubt that the vast, vast
majority of the juveniles that I saw were either black or Latino. I could
probably count on one hand the number of white kids, non-Latino white kids
that were in front of me. You know, was it selective on the part of the
police or was it just the way the City was, I don’t know. But, it was, yeah.
Ms. Flanagan: Was the same true at the Hall?
Judge Smith: To a lesser extent, but again, yes. The majority of people at the Hall again
were, especially in the drug cases, were either black or Latino of some type,
but I will say some of the uglier cases I had at the Hall involved Caucasians.
There was one case, just a brutal case of a man who basically held a young
woman hostage for several days, and taped her up and tortured her and
whatever. And he was just your ordinary white puffy boy. So, I certainly
didn’t come away with any feeling that violence was genetic or racially
connected. But, again, going back to the, you know, the whole experience
at the Hall, I think it gave me a very different view of why statistics are
skewed in the way they are, you know, without jumping to the conclusion
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Ms. Flanagan: And, from your vantage point, on the Juvenile Bench and then down at the
Hall, in terms of how the institutions in San Francisco operated, did you see
racism in terms of the selection of the defendants that would be brought
before you or assumptions that were being made about the defendants who
were in front of you.
Judge Smith: Well, at the Juvenile Hall, I mean, there is no doubt that the vast, vast
majority of the juveniles that I saw were either black or Latino. I could
probably count on one hand the number of white kids, non-Latino white kids
that were in front of me. You know, was it selective on the part of the
police or was it just the way the City was, I don’t know. But, it was, yeah.
Ms. Flanagan: Was the same true at the Hall?
Judge Smith: To a lesser extent, but again, yes. The majority of people at the Hall again
were, especially in the drug cases, were either black or Latino of some type,
but I will say some of the uglier cases I had at the Hall involved Caucasians.
There was one case, just a brutal case of a man who basically held a young
woman hostage for several days, and taped her up and tortured her and
whatever. And he was just your ordinary white puffy boy. So, I certainly
didn’t come away with any feeling that violence was genetic or racially
connected. But, again, going back to the, you know, the whole experience
at the Hall, I think it gave me a very different view of why statistics are
skewed in the way they are, you know, without jumping to the conclusion
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that there are certain people just more prone to be criminals or to break the
law, to do whatever.
Ms. Flanagan: And then at some point you thought about moving to the Federal Bench or
did someone approach you?
Judge Smith: Someone approached me. And it was funny because it was at the first
training I ever got as a State Court judge. So, I went on the Bench in
September of ’86, and then in June of ’87 I was over at Berkeley at this
CJER training and …
Ms. Flanagan: When you say — What’s that CJER?
Judge Smith: It stands for California Judicial Education and Research. It was basically
the State Court version of the Federal Judicial Center. It was the California
training and research arm of the State Courts. And, I can’t remember, I
think it was Judy Chirlin, who now is a State Court judge in LA and who
had contacted me right when I was appointed to congratulate me. She was a
good friend of Mary Baxter’s and was a big mover in trying to get more
women on the Bench. And so she was there at that CJER workshop as an
instructor or something And I can’t remember if she approached me and
said that Judy McConnell, who was a San Diego judge, had called her or if
Judy called me. One of them called me and said that Pete Wilson, who was
the Senator, the Junior Senator at the time, was looking for names of women
as possibilities for the Federal Bench and would I be interested. Of course I
still had no idea what I was doing as a State Court judge, really, and I said,
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that there are certain people just more prone to be criminals or to break the
law, to do whatever.
Ms. Flanagan: And then at some point you thought about moving to the Federal Bench or
did someone approach you?
Judge Smith: Someone approached me. And it was funny because it was at the first
training I ever got as a State Court judge. So, I went on the Bench in
September of ’86, and then in June of ’87 I was over at Berkeley at this
CJER training and …
Ms. Flanagan: When you say — What’s that CJER?
Judge Smith: It stands for California Judicial Education and Research. It was basically
the State Court version of the Federal Judicial Center. It was the California
training and research arm of the State Courts. And, I can’t remember, I
think it was Judy Chirlin, who now is a State Court judge in LA and who
had contacted me right when I was appointed to congratulate me. She was a
good friend of Mary Baxter’s and was a big mover in trying to get more
women on the Bench. And so she was there at that CJER workshop as an
instructor or something And I can’t remember if she approached me and
said that Judy McConnell, who was a San Diego judge, had called her or if
Judy called me. One of them called me and said that Pete Wilson, who was
the Senator, the Junior Senator at the time, was looking for names of women
as possibilities for the Federal Bench and would I be interested. Of course I
still had no idea what I was doing as a State Court judge, really, and I said,
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well I just started this. “Well, you know, we’ve heard really good things
about you, and blah, blah, blah.” So, I was very concerned that Mary Baxter
and the Governor not feel that I had simply taken the State Court judge’s job
as a stepping stone. So I said I would call Mary and talk to him about it,
which I did. And I told him that I’d had this approach and how I was
concerned about it. He sort of chuckled, and he said, “Well, number one,
we, the Governor and I, this administration always feels that it’s a
compliment if one of our State Court judges is invited to join the Federal
Bench.” But he said, “Number two, you should know that you’re being
talked about as a possibility for the California Court of Appeal. Which
would you rather have?” At that point I just wondered if I had been
smoking something, I mean the whole thing just seemed so incredible to me.
Ms. Flanagan: Did you have any idea, other than the obvious that in fact you are good, did
you have any idea why you were a fast-track candidate?
Judge Smith: No. Well, I did later. I think that again, I’m not sure why, but I think Ed
Panelli took an interest in my career, and of course he was on the Supreme
Court, State Supreme Court by then. But I don’t know if that’s exactly what
it was. But it was clear at that point or it became clear at that point that I
was on a fast track, and I’m still not quite sure why, whether it was timing
or luck or the stars or what, but it was an embarrassment of riches to be
perfectly honest.
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well I just started this. “Well, you know, we’ve heard really good things
about you, and blah, blah, blah.” So, I was very concerned that Mary Baxter
and the Governor not feel that I had simply taken the State Court judge’s job
as a stepping stone. So I said I would call Mary and talk to him about it,
which I did. And I told him that I’d had this approach and how I was
concerned about it. He sort of chuckled, and he said, “Well, number one,
we, the Governor and I, this administration always feels that it’s a
compliment if one of our State Court judges is invited to join the Federal
Bench.” But he said, “Number two, you should know that you’re being
talked about as a possibility for the California Court of Appeal. Which
would you rather have?” At that point I just wondered if I had been
smoking something, I mean the whole thing just seemed so incredible to me.
Ms. Flanagan: Did you have any idea, other than the obvious that in fact you are good, did
you have any idea why you were a fast-track candidate?
Judge Smith: No. Well, I did later. I think that again, I’m not sure why, but I think Ed
Panelli took an interest in my career, and of course he was on the Supreme
Court, State Supreme Court by then. But I don’t know if that’s exactly what
it was. But it was clear at that point or it became clear at that point that I
was on a fast track, and I’m still not quite sure why, whether it was timing
or luck or the stars or what, but it was an embarrassment of riches to be
perfectly honest.
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Ms. Flanagan: And I assume at this point you still were not active in political groups or Bar
associations?
Judge Smith: No, I mean, I couldn’t have been at that time because judges couldn’t
contribute or do anything, and I was very careful, always, my years on the
Bench to stay clear of anything that smacked of political partisanship. So,
anyway, Mary asked me which I’d rather have, and I told him that, I mean,
basically what I just told you, that it was, the whole thing was just an
embarrassment of riches and that I couldn’t believe it, that either Bench was
interested, but either would be such an honor that I would take whichever
one came first. And to be honest, I was hoping the Federal Bench would
come first because I just never saw myself as an appellate kind of person.
Ms. Flanagan: And how did you, in considering it, see the difference in the roles in terms
of the factors that would be significant to you in terms of preference?
Judge Smith: Well, I liked the give and take of the lawyers and the Court and I liked
dealing with juries and I liked looking the parties in the eye and I loved
sitting in the court room and watching all of this. I love the theatre and I
love movies. And the court room to me frankly has always seemed like a
magnificent human drama most of the time, not always in a patent case, but
you know, especially in the two court rooms I was in, in the Juvenile Court
and the Hall of Justice. I mean, it was like watching “Law and Order” eight
hours a day.
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Ms. Flanagan: And I assume at this point you still were not active in political groups or Bar
associations?
Judge Smith: No, I mean, I couldn’t have been at that time because judges couldn’t
contribute or do anything, and I was very careful, always, my years on the
Bench to stay clear of anything that smacked of political partisanship. So,
anyway, Mary asked me which I’d rather have, and I told him that, I mean,
basically what I just told you, that it was, the whole thing was just an
embarrassment of riches and that I couldn’t believe it, that either Bench was
interested, but either would be such an honor that I would take whichever
one came first. And to be honest, I was hoping the Federal Bench would
come first because I just never saw myself as an appellate kind of person.
Ms. Flanagan: And how did you, in considering it, see the difference in the roles in terms
of the factors that would be significant to you in terms of preference?
Judge Smith: Well, I liked the give and take of the lawyers and the Court and I liked
dealing with juries and I liked looking the parties in the eye and I loved
sitting in the court room and watching all of this. I love the theatre and I
love movies. And the court room to me frankly has always seemed like a
magnificent human drama most of the time, not always in a patent case, but
you know, especially in the two court rooms I was in, in the Juvenile Court
and the Hall of Justice. I mean, it was like watching “Law and Order” eight
hours a day.
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Ms. Flanagan: Coming from Stanford Law School and then a challenging practice at
Bronson, your two years on the Superior Court Bench, did you really have
time or occasion to think about legal issues or were you just trying to keep
up with the people drama that was coming in front of you?
Judge Smith: Well, I mean, I had — My year on the Juvenile Bench I had to think about
legal issues because I never had a law clerk. And so, you know, when it
came to learning what my jurisdiction was and what these crimes were, I
mean, the only way I knew was to get the books out and read up on that and
the issues and things. And then pretty much the same at the Hall of Justice.
Ms. Flanagan: Did you feel like in either of those roles you were making law or having to
think about cutting-edge issues.
Judge Smith: Not really, I was just trying to learn enough that I didn’t commit reversible
errors. You know, I mean, I am sure there were a couple of times when I
thought about whether the law as it was, whether I had the leeway to
massage it a little, etc. But there wasn’t really time to think huge, big
thoughts.
Ms. Flanagan: So what was the process like, being considered for the Federal Bench? I
take it that that offer came first.
Judge Smith: That offer came first.
M-sFlanagan: So-what-was-the-process that got to the offer?
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Ms. Flanagan: Coming from Stanford Law School and then a challenging practice at
Bronson, your two years on the Superior Court Bench, did you really have
time or occasion to think about legal issues or were you just trying to keep
up with the people drama that was coming in front of you?
Judge Smith: Well, I mean, I had — My year on the Juvenile Bench I had to think about
legal issues because I never had a law clerk. And so, you know, when it
came to learning what my jurisdiction was and what these crimes were, I
mean, the only way I knew was to get the books out and read up on that and
the issues and things. And then pretty much the same at the Hall of Justice.
Ms. Flanagan: Did you feel like in either of those roles you were making law or having to
think about cutting-edge issues.
Judge Smith: Not really, I was just trying to learn enough that I didn’t commit reversible
errors. You know, I mean, I am sure there were a couple of times when I
thought about whether the law as it was, whether I had the leeway to
massage it a little, etc. But there wasn’t really time to think huge, big
thoughts.
Ms. Flanagan: So what was the process like, being considered for the Federal Bench? I
take it that that offer came first.
Judge Smith: That offer came first.
M-sFlanagan: So-what-was-the-process that got to the offer?
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Judge Smith: Well, let’s see. I was asked to send in an application. Those applications
are just killers. The time — I think now they have them coordinated so if you
do one on a computer it will adapt to the others, but you couldn’t do that
then. So, it was fill out the application….
Ms. Flanagan: And just going back for a second, this was the contact you told us about
from the judge in Southern California who said Pete Wilson is looking for
women, and then it was Pete Wilson’s office that contacted you to submit
the application?
Judge Smith: Yes, yes. And so I did, and then the application just wanted all this
information, what cases had I tried and who were the lawyers and what
judges had I appeared before, and just sort of getting all that information
together, and then references. And I decided I really did want this
appointment, and so I contacted people, including former opponents, and
basically said, “I’m being considered for the Federal Court and I know we
didn’t always get along, you may be contacted, your name is down as
someone. If you feel that with good conscience you can comment favorably
I’d appreciate it, but if you don’t feel that way then I understand that too.” I
wrote letters to several of the judges before whom I’d appeared as a lawyer
and basically said the same thing. Contacted Queen’s Bench again and
California Women Lawyers. Did get some calls from some other people.
There’s a group, BAILIF, I guess, a gay, lesbian group. They contacted me
and asked me if I would talk to them and answer some questions, and I said
sure, I’d be glad to. So that was kind of it.
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Judge Smith: Well, let’s see. I was asked to send in an application. Those applications
are just killers. The time — I think now they have them coordinated so if you
do one on a computer it will adapt to the others, but you couldn’t do that
then. So, it was fill out the application….
Ms. Flanagan: And just going back for a second, this was the contact you told us about
from the judge in Southern California who said Pete Wilson is looking for
women, and then it was Pete Wilson’s office that contacted you to submit
the application?
Judge Smith: Yes, yes. And so I did, and then the application just wanted all this
information, what cases had I tried and who were the lawyers and what
judges had I appeared before, and just sort of getting all that information
together, and then references. And I decided I really did want this
appointment, and so I contacted people, including former opponents, and
basically said, “I’m being considered for the Federal Court and I know we
didn’t always get along, you may be contacted, your name is down as
someone. If you feel that with good conscience you can comment favorably
I’d appreciate it, but if you don’t feel that way then I understand that too.” I
wrote letters to several of the judges before whom I’d appeared as a lawyer
and basically said the same thing. Contacted Queen’s Bench again and
California Women Lawyers. Did get some calls from some other people.
There’s a group, BAILIF, I guess, a gay, lesbian group. They contacted me
and asked me if I would talk to them and answer some questions, and I said
sure, I’d be glad to. So that was kind of it.
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Ms. Flanagan: Was there any controversy that you were aware of on your positions on
anything as you were going through the process?
Judge Smith: No, there really weren’t, and in fact timing is so important. There had just
been a bruising fight about Vaughn Walker. He was nominated, as you
probably know, twice. This was the first nomination, which had not gone
well. And there had been so much controversy about poor Vaughn that,
when I came along, I think they were so glad to have someone who was
really pretty neutral. I was fortunate in that, not only that, but also I had a
lot of good friends who were Democrats. And Alan Cranston was the
Senior Senator at the time, and he had been what they call “blue slipping”
all of the Republican names, and several of my friends….
Ms. Flanagan: Just so that the reader might know, do you want to explain what “blue
slipping” is?
Judge Smith: It’s a way for a senator who objects to a recommendation to basically hold
up the appointment process. And this was getting towards the end of
President Reagan’s term, and so everybody was saying, “Oh well, nobody’s
going to get through now, Congress is just going to shut down.” I guess
before I got to that part, first I had to be recommended by Pete Wilson, and
so I went down and talked to his appointments secretary in San Diego. And
again I had no idea how it went. It was a man named John Davies, who at
the time was with Bockius & Lewis….
Ms. Flanagan: Oh, Morgan, Lewis & Bockius?
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Ms. Flanagan: Was there any controversy that you were aware of on your positions on
anything as you were going through the process?
Judge Smith: No, there really weren’t, and in fact timing is so important. There had just
been a bruising fight about Vaughn Walker. He was nominated, as you
probably know, twice. This was the first nomination, which had not gone
well. And there had been so much controversy about poor Vaughn that,
when I came along, I think they were so glad to have someone who was
really pretty neutral. I was fortunate in that, not only that, but also I had a
lot of good friends who were Democrats. And Alan Cranston was the
Senior Senator at the time, and he had been what they call “blue slipping”
all of the Republican names, and several of my friends….
Ms. Flanagan: Just so that the reader might know, do you want to explain what “blue
slipping” is?
Judge Smith: It’s a way for a senator who objects to a recommendation to basically hold
up the appointment process. And this was getting towards the end of
President Reagan’s term, and so everybody was saying, “Oh well, nobody’s
going to get through now, Congress is just going to shut down.” I guess
before I got to that part, first I had to be recommended by Pete Wilson, and
so I went down and talked to his appointments secretary in San Diego. And
again I had no idea how it went. It was a man named John Davies, who at
the time was with Bockius & Lewis….
Ms. Flanagan: Oh, Morgan, Lewis & Bockius?
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Judge Smith: Yes, at that time in San Diego. But anyway, then I got a call in February
that Senator Wilson was putting my name forward. And there was also — He
had a kitchen cabinet that interviewed, reviewed my application. I don’t
think I actually appeared before them. And there was a lawyers’ group I
remember Sue Illston was on, one of the lawyers, which we chuckled about
later. Anyway he did recommend me to the President, and the President
nominated me and then that’s when — Well I’ve actually, now maybe I’ve
lost track a little of exactly how all this works.
Ms. Flanagan:
Judge Smith:
Well then, that might have been when it was first public that you were in the
process. That might have brought out some other groups to ask questions of
you.
Right, that’s probably what it was. Anyway, there were lots of interviews. I
remember being interviewed by a lot of groups and a lot of applications and
a lot of phone calls. And the FBI appeared in my chambers at the Hall of
Justice and wandered up and down my block where I live and knocked on
neighbors’ doors and called various friends, including my former husband.
And I was always glad that he and I had stayed on good terms. And so
because of the Senator Cranston thing, really nobody held out great hope
that I would actually get through before Congress just shut down. But
Senator Cranston finally agreed, after a couple of friends had called him,
that, while he wouldn’t support me, he wouldn’t stand in my way and he
wouldn’t “blue slip” me. He would just stand silent, as they say.
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Judge Smith: Yes, at that time in San Diego. But anyway, then I got a call in February
that Senator Wilson was putting my name forward. And there was also — He
had a kitchen cabinet that interviewed, reviewed my application. I don’t
think I actually appeared before them. And there was a lawyers’ group I
remember Sue Illston was on, one of the lawyers, which we chuckled about
later. Anyway he did recommend me to the President, and the President
nominated me and then that’s when — Well I’ve actually, now maybe I’ve
lost track a little of exactly how all this works.
Ms. Flanagan:
Judge Smith:
Well then, that might have been when it was first public that you were in the
process. That might have brought out some other groups to ask questions of
you.
Right, that’s probably what it was. Anyway, there were lots of interviews. I
remember being interviewed by a lot of groups and a lot of applications and
a lot of phone calls. And the FBI appeared in my chambers at the Hall of
Justice and wandered up and down my block where I live and knocked on
neighbors’ doors and called various friends, including my former husband.
And I was always glad that he and I had stayed on good terms. And so
because of the Senator Cranston thing, really nobody held out great hope
that I would actually get through before Congress just shut down. But
Senator Cranston finally agreed, after a couple of friends had called him,
that, while he wouldn’t support me, he wouldn’t stand in my way and he
wouldn’t “blue slip” me. He would just stand silent, as they say.
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Ms. Flanagan:
Judge Smith:
So, who — Were these some of his insiders that you were able to talk to?
They were actually judges on the Superior Court who were Democrats, or at
least those are the two I know about. Whether there were more or not, I
don’t know. And so then I was on the bench at the Hall of Justice one day
in June, July, and I was up on the bench, and I had an African American
courtroom deputy, and she was sitting below me. I was picking a jury for a
criminal case. And the phone rang in the court room and, of course, when
that happens in State Court the courtroom deputies answer and they always
whisper, hold their hand over the phone, “court room 23, court room blah,
blah, blah,” whatever it was. And I wasn’t paying much attention, and all of
a sudden she turned around and looked at me, and she had turned just white.
I said, “What’s the matter?” And she pointed to the phone and mouthed,
“It’s the White House.” And so I told the jury that I had a phone call I had
to take and for them to just take a 7 th inning stretch and I’d be back in a few
minutes. It was President Reagan, and so we had a very awkward
conversation. But I thought it was very sweet that he called personally and
really quite touching and very thrilling. And then I went back into the court
room. And I didn’t realize, of course, that Martha would say anything, but
she had told the lawyers that the White House was calling me. And there
had been some rumors by that time that I was being considered. So I came
back and just walked up and sat down on the bench and looked up, and
everybody at the counsel table was just staring at me as though I was going
to pack my bag and just leave in the middle of the trial or something, I’m
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Ms. Flanagan:
Judge Smith:
So, who — Were these some of his insiders that you were able to talk to?
They were actually judges on the Superior Court who were Democrats, or at
least those are the two I know about. Whether there were more or not, I
don’t know. And so then I was on the bench at the Hall of Justice one day
in June, July, and I was up on the bench, and I had an African American
courtroom deputy, and she was sitting below me. I was picking a jury for a
criminal case. And the phone rang in the court room and, of course, when
that happens in State Court the courtroom deputies answer and they always
whisper, hold their hand over the phone, “court room 23, court room blah,
blah, blah,” whatever it was. And I wasn’t paying much attention, and all of
a sudden she turned around and looked at me, and she had turned just white.
I said, “What’s the matter?” And she pointed to the phone and mouthed,
“It’s the White House.” And so I told the jury that I had a phone call I had
to take and for them to just take a 7 th inning stretch and I’d be back in a few
minutes. It was President Reagan, and so we had a very awkward
conversation. But I thought it was very sweet that he called personally and
really quite touching and very thrilling. And then I went back into the court
room. And I didn’t realize, of course, that Martha would say anything, but
she had told the lawyers that the White House was calling me. And there
had been some rumors by that time that I was being considered. So I came
back and just walked up and sat down on the bench and looked up, and
everybody at the counsel table was just staring at me as though I was going
to pack my bag and just leave in the middle of the trial or something, I’m
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not sure. But I didn’t say a word. I just said okay, let’s proceed, and that
was it.
Ms. Flanagan: And did you actually have to go through a hearing?
Judge Smith: Oh, I did.
Ms. Flanagan: What was that experience like?
Judge Smith: It was awful. It was really terrible. I went back there twice. First I went
back by myself and just, you know, sat around for long periods of time with
people who then didn’t have time to talk to me. And finally about 2:00 in
the afternoon, when I had a 5:00 flight or whatever, I was interviewed by
some rather young, insipid young man from the Justice Depai ment who
looked younger than either of my kids and asked me a bunch of silly
questions. I did get interviewed however at that time by, oh, what was his
name? He was Strom Thurmond’s assistant, basically pretty much ran that
office for Strom, probably Senator Thurmond’s last ten years. Everybody
knows him. He had a nickname, not Shorty, but Whitey or, I don’t know,
something like that. He did ask me, you know, a few things, what Justices
did I approve of and things like that, that I had never given a moment’s
thought to. And then, after I was nominated, then I went back for the formal
hearing and I was so — Well, number one, it was the first time I had ever met
Pete Wilson was when he introduced me. I thought it was going to be really
terrible, and I was apparently so boring and non-controversial that the only
people there were Paul Simon, who was the Chair of the Committee, and
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not sure. But I didn’t say a word. I just said okay, let’s proceed, and that
was it.
Ms. Flanagan: And did you actually have to go through a hearing?
Judge Smith: Oh, I did.
Ms. Flanagan: What was that experience like?
Judge Smith: It was awful. It was really terrible. I went back there twice. First I went
back by myself and just, you know, sat around for long periods of time with
people who then didn’t have time to talk to me. And finally about 2:00 in
the afternoon, when I had a 5:00 flight or whatever, I was interviewed by
some rather young, insipid young man from the Justice Depai ment who
looked younger than either of my kids and asked me a bunch of silly
questions. I did get interviewed however at that time by, oh, what was his
name? He was Strom Thurmond’s assistant, basically pretty much ran that
office for Strom, probably Senator Thurmond’s last ten years. Everybody
knows him. He had a nickname, not Shorty, but Whitey or, I don’t know,
something like that. He did ask me, you know, a few things, what Justices
did I approve of and things like that, that I had never given a moment’s
thought to. And then, after I was nominated, then I went back for the formal
hearing and I was so — Well, number one, it was the first time I had ever met
Pete Wilson was when he introduced me. I thought it was going to be really
terrible, and I was apparently so boring and non-controversial that the only
people there were Paul Simon, who was the Chair of the Committee, and
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Strom Thurmond, who asked me one question, which I will tell you about,
and then Pete Wilson. And Arlen Specter was there because he was the
sponsor for Bud DuBois, who was nominated the same time I was and who
sits in Pennsylvania, I guess. But anyway, Paul Simon asked me some
really quite irrelevant questions. Obviously he hadn’t paid much attention
because he asked me if I thought my lack of criminal experience would be a
problem. And so I told him that I had spent a year in a felony criminal
department, which seemed to come as a big surprise to him. And then he
wanted to know about pro bono work, which apparently was one of his
standard questions. And then Strom Thurmond said, “Now Judge Smith, I
just have one question to ask you. If you get appointed, do you think you
could be fair?” And I thought, what is he talking about, and then I realized
that he wanted to know if I could be fair. And so I told him that I certainly
thought I could, and would work my hardest everyday to be so. That
seemed to satisfy him, so then he got up and left.
Ms. Flanagan:
Judge Smith:
Not the grilling that poor Vaughn Walker had to go through.
No, and when I said it was awful it was more the anticipation of it. And
then one of Senator Wilson’s staff, when I finished then — Oh, and Bud and I
got called up together, that was it, we got called up to the table together, and
I was sitting, we were sitting right next to each other. He was on my right,
and all the questions that, there weren’t that many, but Senator Simon, all
his questions were directed to me, and then Bud would basically go, “yeah,
me too.” I always teased him later that the next time if we ever, that ever
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Strom Thurmond, who asked me one question, which I will tell you about,
and then Pete Wilson. And Arlen Specter was there because he was the
sponsor for Bud DuBois, who was nominated the same time I was and who
sits in Pennsylvania, I guess. But anyway, Paul Simon asked me some
really quite irrelevant questions. Obviously he hadn’t paid much attention
because he asked me if I thought my lack of criminal experience would be a
problem. And so I told him that I had spent a year in a felony criminal
department, which seemed to come as a big surprise to him. And then he
wanted to know about pro bono work, which apparently was one of his
standard questions. And then Strom Thurmond said, “Now Judge Smith, I
just have one question to ask you. If you get appointed, do you think you
could be fair?” And I thought, what is he talking about, and then I realized
that he wanted to know if I could be fair. And so I told him that I certainly
thought I could, and would work my hardest everyday to be so. That
seemed to satisfy him, so then he got up and left.
Ms. Flanagan:
Judge Smith:
Not the grilling that poor Vaughn Walker had to go through.
No, and when I said it was awful it was more the anticipation of it. And
then one of Senator Wilson’s staff, when I finished then — Oh, and Bud and I
got called up together, that was it, we got called up to the table together, and
I was sitting, we were sitting right next to each other. He was on my right,
and all the questions that, there weren’t that many, but Senator Simon, all
his questions were directed to me, and then Bud would basically go, “yeah,
me too.” I always teased him later that the next time if we ever, that ever
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happened, I wanted the “me too” chair, I did not want to go first. But
anyway, when it was over there was going to be a very, an anticipated
controversial discussion over a nominee for the Court of Appeals, which I
wanted to hear. I had gone all the way back there, and so I went and parked
myself in one of the rows. And one of Senator Wilson’s legislative aides
came up to me, and he said, “You should leave now.” And I said, “No, I
don’t want to leave. I want to hear what’s happening.” He said, “Leave
now.” And so I did, and he came out. And I said, “Why couldn’t I stay and
listen?” He said, “Well, because you never know when somebody’s going
to get an idea to ask you something else and suddenly it all goes downhill.”
He said, “Just leave.” So I did.
Ms. Flanagan: Good advice since you then got the nod.
Judge Smith: I was confirmed unanimously with no discussion whatsoever. Probably won
the award for the most boring nomination of the year.
Ms. Flanagan: So when did you make the move to the Federal Bench?
Judge Smith: ’88, September, almost two years to the day that I’d gone to the State Court
Bench. Both were in September.
Ms. Flanagan: Did you get any break between Courts or did you just close up shop one day
and start the next?
Judge Smith: I didn’t get much of a break. I think I got a couple of-weeks or took a
couple of weeks is all.
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happened, I wanted the “me too” chair, I did not want to go first. But
anyway, when it was over there was going to be a very, an anticipated
controversial discussion over a nominee for the Court of Appeals, which I
wanted to hear. I had gone all the way back there, and so I went and parked
myself in one of the rows. And one of Senator Wilson’s legislative aides
came up to me, and he said, “You should leave now.” And I said, “No, I
don’t want to leave. I want to hear what’s happening.” He said, “Leave
now.” And so I did, and he came out. And I said, “Why couldn’t I stay and
listen?” He said, “Well, because you never know when somebody’s going
to get an idea to ask you something else and suddenly it all goes downhill.”
He said, “Just leave.” So I did.
Ms. Flanagan: Good advice since you then got the nod.
Judge Smith: I was confirmed unanimously with no discussion whatsoever. Probably won
the award for the most boring nomination of the year.
Ms. Flanagan: So when did you make the move to the Federal Bench?
Judge Smith: ’88, September, almost two years to the day that I’d gone to the State Court
Bench. Both were in September.
Ms. Flanagan: Did you get any break between Courts or did you just close up shop one day
and start the next?
Judge Smith: I didn’t get much of a break. I think I got a couple of-weeks or took a
couple of weeks is all.
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Ms. Flanagan: And what was your early experience on the Federal Bench? First of all, did
you have — Was Judge Patel the only woman on the Bench at that time?
Judge Smith: She was, she was.
Ms. Flanagan: Did you reach out to her as a mentor?
Judge Smith: She actually reached out to me, for which I have been very, very grateful.
I’d met her a couple of times very briefly at California Women Lawyers or
Queen’s Bench events or things of that sort, but we had not really gotten to
know each other. And we certainly have very different opinions about a lot
of things, but she couldn’t have been more gracious or more helpful, and she
was a real support. And I, as I said, I have always been very grateful to her
for that.
Ms. Flanagan: And did the Federal Bench have sort of a more organized and timely
training program or…
Judge Smith: Well it was more organized. I don’t know that it was that much more
timely. I can’t remember exactly how it works, the timing on it. I went on
the Bench in September. And then I think it would depend on how many
new judges there were. And they would split it up into two weeks, and you
would go one week some place and have a week of video lectures and things
and then you would go a second week back to D.C. and have a week of live
training by the Federal Judicial Center. So I did that, but again, it wasn’t
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Ms. Flanagan: And what was your early experience on the Federal Bench? First of all, did
you have — Was Judge Patel the only woman on the Bench at that time?
Judge Smith: She was, she was.
Ms. Flanagan: Did you reach out to her as a mentor?
Judge Smith: She actually reached out to me, for which I have been very, very grateful.
I’d met her a couple of times very briefly at California Women Lawyers or
Queen’s Bench events or things of that sort, but we had not really gotten to
know each other. And we certainly have very different opinions about a lot
of things, but she couldn’t have been more gracious or more helpful, and she
was a real support. And I, as I said, I have always been very grateful to her
for that.
Ms. Flanagan: And did the Federal Bench have sort of a more organized and timely
training program or…
Judge Smith: Well it was more organized. I don’t know that it was that much more
timely. I can’t remember exactly how it works, the timing on it. I went on
the Bench in September. And then I think it would depend on how many
new judges there were. And they would split it up into two weeks, and you
would go one week some place and have a week of video lectures and things
and then you would go a second week back to D.C. and have a week of live
training by the Federal Judicial Center. So I did that, but again, it wasn’t
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immediate, and so there was a period of time, much like on the State Court,
where you had to sort of fend for yourself.
Ms. Flanagan: Did you have shock to your system in the difference in resources?
Judge Smith: I had a shock to my system in the difference in resources, but I also had a
shock to my system in the diversity of the work and the amount of work.
Basically at both the Hall of Justice and the Juvenile Court you really had
one case at a time, and it came in and you did it and then you did something
else. And, as you know, on the Federal Bench suddenly I had a docket of
whatever, 300 cases or something, on all sort of substantive areas of law that
I had no experience in whatsoever. And the summary judgment motions
would come in, and I had the criminal calendar on top of that. So my first
two years on the Federal Bench I loved it, but I always felt like I was about
to go under for the third time. It was really hard work and very stressful and
I — After that I always made it a point to talk to new colleagues, because I
knew after about three or four months how you felt and how discouraging it
could get, and so I always tried to let them know that that was just, that it
would get better.
Ms. Flanagan: How did you manage that, because it is the case that Federal judges have a
lot of sophisticated cases and a wide variety and as the judge you don’t have
the time to go deep in each of the subject areas? How did you handle that,
feeling comfortable that you are doing the right thing without having a lot of
time to learn the subject area?
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immediate, and so there was a period of time, much like on the State Court,
where you had to sort of fend for yourself.
Ms. Flanagan: Did you have shock to your system in the difference in resources?
Judge Smith: I had a shock to my system in the difference in resources, but I also had a
shock to my system in the diversity of the work and the amount of work.
Basically at both the Hall of Justice and the Juvenile Court you really had
one case at a time, and it came in and you did it and then you did something
else. And, as you know, on the Federal Bench suddenly I had a docket of
whatever, 300 cases or something, on all sort of substantive areas of law that
I had no experience in whatsoever. And the summary judgment motions
would come in, and I had the criminal calendar on top of that. So my first
two years on the Federal Bench I loved it, but I always felt like I was about
to go under for the third time. It was really hard work and very stressful and
I — After that I always made it a point to talk to new colleagues, because I
knew after about three or four months how you felt and how discouraging it
could get, and so I always tried to let them know that that was just, that it
would get better.
Ms. Flanagan: How did you manage that, because it is the case that Federal judges have a
lot of sophisticated cases and a wide variety and as the judge you don’t have
the time to go deep in each of the subject areas? How did you handle that,
feeling comfortable that you are doing the right thing without having a lot of
time to learn the subject area?
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Judge Smith: I don’t know that I ever felt comfortable. I had two law clerks. I would talk
to other judges a little bit, although everybody was so busy I did not like to
bother them a lot. And I think in about six months, maybe, I just finally
decided that all I could do was the best that I could do and that if I didn’t
accept that I would have a nervous breakdown or go off the bridge some
night. So I did. I just said, “Read everything, think about it, make the best
decision you can make, and don’t look back.”
Ms. Flanagan: And how did you leverage yourself with your clerks? What was your
philosophy towards the use of clerks in arriving at your decisions?
Judge Smith: Well I almost never used my clerks, or I should say I rarely used my clerks
for criminal cases the whole time I was on the Bench.
Ms. Flanagan: And why was that?
Judge Smith: Because I think that criminal law is not that difficult intellectually. There
are very few issues that you really, once you figure out the difference
between the fourth, fifth and sixth amendments, you know it’s pretty
straightforward. It’s a judgment call in almost every case. And I was not
about to either let someone out on the street or send someone to prison
based on the judgment of a law clerk or anybody else. I mean, if my name
was going to go on that, then it was going to be my judgment for better or
for worse. And if I was right, I was right, and if I wasn’t, I was the one that
ought to be held- a-ccountable for-it. And I-still-feel- thatway. -Orr the civil
cases we divided it up the way I think most judges do. Odd numbers would
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Judge Smith: I don’t know that I ever felt comfortable. I had two law clerks. I would talk
to other judges a little bit, although everybody was so busy I did not like to
bother them a lot. And I think in about six months, maybe, I just finally
decided that all I could do was the best that I could do and that if I didn’t
accept that I would have a nervous breakdown or go off the bridge some
night. So I did. I just said, “Read everything, think about it, make the best
decision you can make, and don’t look back.”
Ms. Flanagan: And how did you leverage yourself with your clerks? What was your
philosophy towards the use of clerks in arriving at your decisions?
Judge Smith: Well I almost never used my clerks, or I should say I rarely used my clerks
for criminal cases the whole time I was on the Bench.
Ms. Flanagan: And why was that?
Judge Smith: Because I think that criminal law is not that difficult intellectually. There
are very few issues that you really, once you figure out the difference
between the fourth, fifth and sixth amendments, you know it’s pretty
straightforward. It’s a judgment call in almost every case. And I was not
about to either let someone out on the street or send someone to prison
based on the judgment of a law clerk or anybody else. I mean, if my name
was going to go on that, then it was going to be my judgment for better or
for worse. And if I was right, I was right, and if I wasn’t, I was the one that
ought to be held- a-ccountable for-it. And I-still-feel- thatway. -Orr the civil
cases we divided it up the way I think most judges do. Odd numbers would
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go to one and even to another, and I would just say if it got out of whack for
them to sort it out or to come see me. And it always seemed to work pretty
well. And things would come in and they would read them first and then
we’d have a meeting early in the week and they would tell me what had
come in and summarize it for me. And I would tell them what I thought the
basic issues that I would be concerned about were, and then they would trot
off and read the cases and write a bench memo. And then they’d come back
and we’d have another meeting after I had time to read the bench memo and
the cases that I thought were at the center, and then I’d listen to argument or
whatever.
Ms. Flanagan: Would you have clerks draft decisions or orders for you?
Judge Smith: I would, but I would always tell them what to draft. I mean, I didn’t have
my, usually I did not have my clerks sit in on trials, so they didn’t really
know that much about what the evidence was. And so I would basically
say, this is my view of what it is, you know, I think the plaintiff wins or the
defendant wins for basically the following reasons, this, this, this and this. I
think the main issues are such and such. And then I’d send them off and ask
them to do a first draft.
Ms. Flanagan: And did you not have them in the trials just from a standpoint of efficiency?
Judge Smith: Efficiency. I mean I tried not to overwork my law clerks. I didn’t think that
the idea of-them being there seven days a week and until 11:00 and 12:00
was appropriate unless I was going to do that too, and I didn’t want to do
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go to one and even to another, and I would just say if it got out of whack for
them to sort it out or to come see me. And it always seemed to work pretty
well. And things would come in and they would read them first and then
we’d have a meeting early in the week and they would tell me what had
come in and summarize it for me. And I would tell them what I thought the
basic issues that I would be concerned about were, and then they would trot
off and read the cases and write a bench memo. And then they’d come back
and we’d have another meeting after I had time to read the bench memo and
the cases that I thought were at the center, and then I’d listen to argument or
whatever.
Ms. Flanagan: Would you have clerks draft decisions or orders for you?
Judge Smith: I would, but I would always tell them what to draft. I mean, I didn’t have
my, usually I did not have my clerks sit in on trials, so they didn’t really
know that much about what the evidence was. And so I would basically
say, this is my view of what it is, you know, I think the plaintiff wins or the
defendant wins for basically the following reasons, this, this, this and this. I
think the main issues are such and such. And then I’d send them off and ask
them to do a first draft.
Ms. Flanagan: And did you not have them in the trials just from a standpoint of efficiency?
Judge Smith: Efficiency. I mean I tried not to overwork my law clerks. I didn’t think that
the idea of-them being there seven days a week and until 11:00 and 12:00
was appropriate unless I was going to do that too, and I didn’t want to do
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quite that much. And we did — We had big cases, so I didn’t see how they
could really keep up with, as I say, the summary judgment motions and all
those kinds of things and sit in the court room too. They would like to, and
so I would tell them that it was up to them, that their assigned work was the
most important thing and if there were times when they felt they were
caught up enough that they wanted to do that, they could. Or I would tell
them if there was going to be a witness that I thought was especially
interesting or if there was a lawyer that, when Tony Serra, for example,
would come into the court room. I always thought every clerk ought to hear
Tony Serra at least once. Once was sometimes enough, but once was good.
Ms. Flanagan: Did your approach to — Let me back up. What were you looking for in a
clerk when you were interviewing and making your selections? What was
important to you?
Judge Smith: Judgment. I wanted someone that I’d be happy to have lunch with, that
wasn’t going to cause problems in the chambers family. I mean obviously I
wanted someone who was smart and I wanted someone who could write
well. But more than smart, I did, I wanted judgment. I wanted a clerk who
knew when it was time to stop.
Ms. Flanagan: The same thing you want in an associate.
Judge Smith: Exactly, and not all of them do.
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quite that much. And we did — We had big cases, so I didn’t see how they
could really keep up with, as I say, the summary judgment motions and all
those kinds of things and sit in the court room too. They would like to, and
so I would tell them that it was up to them, that their assigned work was the
most important thing and if there were times when they felt they were
caught up enough that they wanted to do that, they could. Or I would tell
them if there was going to be a witness that I thought was especially
interesting or if there was a lawyer that, when Tony Serra, for example,
would come into the court room. I always thought every clerk ought to hear
Tony Serra at least once. Once was sometimes enough, but once was good.
Ms. Flanagan: Did your approach to — Let me back up. What were you looking for in a
clerk when you were interviewing and making your selections? What was
important to you?
Judge Smith: Judgment. I wanted someone that I’d be happy to have lunch with, that
wasn’t going to cause problems in the chambers family. I mean obviously I
wanted someone who was smart and I wanted someone who could write
well. But more than smart, I did, I wanted judgment. I wanted a clerk who
knew when it was time to stop.
Ms. Flanagan: The same thing you want in an associate.
Judge Smith: Exactly, and not all of them do.
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Ms. Flanagan: And did your view of the characteristics of the successful clerk, at least
successful working with you, did that change while you were on the Bench?
Judge Smith: No.
Ms. Flanagan: And did your working relationship with the clerks change in any significant
way as time went on?
Judge Smith: No. I mean obviously there were clerks that I was closer to than others and
— I never fired a clerk. I made a couple of mistakes, you know, looking
back, if I’d known then. But what I wanted — The clerks that were my stars
and the ones that are still the closest to me exhibited the things I just talked
to you about.
Ms. Flanagan: And you talk about the chambers family, so that would be your . . .
Judge Smith: My secretaries, my courtroom deputy and my clerks.
Ms. Flanagan: And how did you kind of allocate authority amongst your own chambers
family? I mean what were the areas of responsibility?
Judge Smith: I was responsible for the clerks, and I always — My first courtroom deputy
thought she should be responsible for the clerks, and she and I disagreed
about that, but I won. My secretary, and I had a wonderful secretary who
was with me until, she went back to Washington with me and then retired
when we were back there. So her job mainly was to make my life easier, to
do correspondence and my travel and scheduling and all that. And then the
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Ms. Flanagan: And did your view of the characteristics of the successful clerk, at least
successful working with you, did that change while you were on the Bench?
Judge Smith: No.
Ms. Flanagan: And did your working relationship with the clerks change in any significant
way as time went on?
Judge Smith: No. I mean obviously there were clerks that I was closer to than others and
— I never fired a clerk. I made a couple of mistakes, you know, looking
back, if I’d known then. But what I wanted — The clerks that were my stars
and the ones that are still the closest to me exhibited the things I just talked
to you about.
Ms. Flanagan: And you talk about the chambers family, so that would be your . . .
Judge Smith: My secretaries, my courtroom deputy and my clerks.
Ms. Flanagan: And how did you kind of allocate authority amongst your own chambers
family? I mean what were the areas of responsibility?
Judge Smith: I was responsible for the clerks, and I always — My first courtroom deputy
thought she should be responsible for the clerks, and she and I disagreed
about that, but I won. My secretary, and I had a wonderful secretary who
was with me until, she went back to Washington with me and then retired
when we were back there. So her job mainly was to make my life easier, to
do correspondence and my travel and scheduling and all that. And then the
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courtroom deputy’s job was to do the calendaring for the court room. And I
tried to make it very clear that neither of them had authority in the other’s
domain and that neither of them had authority over the clerks.
Ms. Flanagan: And the courtroom deputy sitting there through the trials, I mean — Did you
ever as part of your evaluation of how the cases come in, etc. discuss that
with your courtroom deputy?
Judge Smith: My second, I had several courtroom deputies, and some I did, I would ask
an opinion of, and some I didn’t. I’d be more inclined if I was curious, you
know, if the clerk had been in the room for any reason, a law clerk. I had a
couple of, one, my last courtroom deputy — Was she the last? The last
before I went to Washington. And she’d been around a lot, and she had
good people skills, and I would ask her.
Ms. Flanagan: And you know there are some judges who, and it’s probably actually most,
who attorneys know they shouldn’t cross the judge’s staff because
disrespecting the judge’s staff or crossing swords with the judge’s staff was
probably the fastest way to get on the bad list. And is that how you
observed it from your side of the Bench, that the judges were very protective
of their staff vis-a-vis the attorneys?
Judge Smith: Yes. Absolutely. I certainly was, and I was pretty fortunate in not having
any, or many instances that I can recall of anything But if I had known
about it or seen it I would have called the attorney on it immediately. And
that was when I talked about something I cared about in my clerks. I always
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courtroom deputy’s job was to do the calendaring for the court room. And I
tried to make it very clear that neither of them had authority in the other’s
domain and that neither of them had authority over the clerks.
Ms. Flanagan: And the courtroom deputy sitting there through the trials, I mean — Did you
ever as part of your evaluation of how the cases come in, etc. discuss that
with your courtroom deputy?
Judge Smith: My second, I had several courtroom deputies, and some I did, I would ask
an opinion of, and some I didn’t. I’d be more inclined if I was curious, you
know, if the clerk had been in the room for any reason, a law clerk. I had a
couple of, one, my last courtroom deputy — Was she the last? The last
before I went to Washington. And she’d been around a lot, and she had
good people skills, and I would ask her.
Ms. Flanagan: And you know there are some judges who, and it’s probably actually most,
who attorneys know they shouldn’t cross the judge’s staff because
disrespecting the judge’s staff or crossing swords with the judge’s staff was
probably the fastest way to get on the bad list. And is that how you
observed it from your side of the Bench, that the judges were very protective
of their staff vis-a-vis the attorneys?
Judge Smith: Yes. Absolutely. I certainly was, and I was pretty fortunate in not having
any, or many instances that I can recall of anything But if I had known
about it or seen it I would have called the attorney on it immediately. And
that was when I talked about something I cared about in my clerks. I always
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had my secretary interview the clerks or at least meet them, not interview
them so much, but I always asked her opinion because the courtroom deputy
didn’t have her desk in the chambers but the secretary did, and I didn’t want
anybody in chambers that was going to be rude to her or take advantage of
her or cause problems. And you know, we had a couple, not so much with
her, but a couple of law clerks where they didn’t mesh quite as well as I
would have hoped, but it was minimal, it was minimal.
Ms. Flanagan:
Judge Smith:
And what about relations between the chambers? You mentioned earlier
when we were talking about your move to the Hall, you brought up yourself
what a great group of judges it was and it had been a great experience, and
from it I got the impression it was sort of collegial, you consulted, you
socialized. Was that true on the Federal Bench? Was there that same sense
of collegiality and enjoyment of each other’s company?
Well it was different. It was certainly a collegial Bench but when I first
went on, you know, it was a very different Bench than it is today. And so
you had Judges Schnake and Wiegel and Orrick and Conte, and, you know,
I love them dearly, but they were kind of old white guys and there wasn’t a
lot — The only time — Number one, you are so busy on the Federal Bench,
and so you don’t really wander the halls the way you did at the Hall of
Justice. But there was the judges’ dining room. But the luncheon then, at
that time, it was a little stilted. As the Bench got younger and there were
more women, it got to be a very collegial place, and I think everybody
loosened up, even the old white guys became more fun.
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had my secretary interview the clerks or at least meet them, not interview
them so much, but I always asked her opinion because the courtroom deputy
didn’t have her desk in the chambers but the secretary did, and I didn’t want
anybody in chambers that was going to be rude to her or take advantage of
her or cause problems. And you know, we had a couple, not so much with
her, but a couple of law clerks where they didn’t mesh quite as well as I
would have hoped, but it was minimal, it was minimal.
Ms. Flanagan:
Judge Smith:
And what about relations between the chambers? You mentioned earlier
when we were talking about your move to the Hall, you brought up yourself
what a great group of judges it was and it had been a great experience, and
from it I got the impression it was sort of collegial, you consulted, you
socialized. Was that true on the Federal Bench? Was there that same sense
of collegiality and enjoyment of each other’s company?
Well it was different. It was certainly a collegial Bench but when I first
went on, you know, it was a very different Bench than it is today. And so
you had Judges Schnake and Wiegel and Orrick and Conte, and, you know,
I love them dearly, but they were kind of old white guys and there wasn’t a
lot — The only time — Number one, you are so busy on the Federal Bench,
and so you don’t really wander the halls the way you did at the Hall of
Justice. But there was the judges’ dining room. But the luncheon then, at
that time, it was a little stilted. As the Bench got younger and there were
more women, it got to be a very collegial place, and I think everybody
loosened up, even the old white guys became more fun.
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Ms. Flanagan: And did you ever, would it be the case that you could in such a setting, say
the lunch setting of judges only, actually discuss a case or some issue that
was bothering you where you wanted input, sort of sounding board
conversations?
Judge Smith: Again, I think most of us, because we knew how busy everybody was, you
didn’t really want to burden anybody. But sometimes, towards the end of
the lunch hour there’d just be maybe one or two of you, and especially if it
was someone you were close to, you might ask an opinion. More often than
not, though, if there was anything of that sort it tended to be comments
about the lawyers you had.
Ms. Flanagan: “Has so and so ever been in your court room?”
Judge Smith: Exactly. And you know, lawyers ought to figure that out. Judges do talk
about them.
Ms. Flanagan: If you mess up in front of one judge…
Judge Smith: Yeah, or if you are rude and whatever, that word gets out.
Ms. Flanagan: Having been on the other side of the Bench for a while, I mean, what are the
things you wish you had known as a practicing attorney, in terms of how to
interact with the judge or the judge’s staff
Judge Smith: I don’t think that I have a lot of “if only I’d known then.” I was always
very, very polite and friendly to the staff, as I was at the law firm. I mean
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Ms. Flanagan: And did you ever, would it be the case that you could in such a setting, say
the lunch setting of judges only, actually discuss a case or some issue that
was bothering you where you wanted input, sort of sounding board
conversations?
Judge Smith: Again, I think most of us, because we knew how busy everybody was, you
didn’t really want to burden anybody. But sometimes, towards the end of
the lunch hour there’d just be maybe one or two of you, and especially if it
was someone you were close to, you might ask an opinion. More often than
not, though, if there was anything of that sort it tended to be comments
about the lawyers you had.
Ms. Flanagan: “Has so and so ever been in your court room?”
Judge Smith: Exactly. And you know, lawyers ought to figure that out. Judges do talk
about them.
Ms. Flanagan: If you mess up in front of one judge…
Judge Smith: Yeah, or if you are rude and whatever, that word gets out.
Ms. Flanagan: Having been on the other side of the Bench for a while, I mean, what are the
things you wish you had known as a practicing attorney, in terms of how to
interact with the judge or the judge’s staff
Judge Smith: I don’t think that I have a lot of “if only I’d known then.” I was always
very, very polite and friendly to the staff, as I was at the law firm. I mean
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that was just something intuitively I knew was the right thing to do. And I
got along pretty well with the judges when I was a practicing lawyer, so I
don’t know that there’s again, looking back, that there was anything I
learned about being a judge that I didn’t know when I was a lawyer and
maybe that comes from being older as much as from anything else.
Ms. Flanagan: And did you feel that any of the attorneys in front of you had issues with
your being a woman since you were just the second woman on the Federal
Bench?
Judge Smith: Yes, I think at first especially. Yes I do, and there were instances, you know
specific instances, and sometimes they were young lawyers who were so
impressed with themselves and sometimes they weren’t. Sometimes they
were older lawyers who should have known better.
Ms. Flanagan: And what was your technique for handling such a situation?
Judge Smith: If they were outright rude, I would try to, without being, sounding petty or
whatever, just remind them that I was the judge and that at such time as he
or she, well it was never a she, he got on the Bench then he could do things
differently but in the meantime…
Ms. Flanagan: You were calling the shots.
Judge Smith: I was calling the shots. If it wasn’t outright, if it was supposedly-disguised
contempt, most of the time I would ignore it. –
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that was just something intuitively I knew was the right thing to do. And I
got along pretty well with the judges when I was a practicing lawyer, so I
don’t know that there’s again, looking back, that there was anything I
learned about being a judge that I didn’t know when I was a lawyer and
maybe that comes from being older as much as from anything else.
Ms. Flanagan: And did you feel that any of the attorneys in front of you had issues with
your being a woman since you were just the second woman on the Federal
Bench?
Judge Smith: Yes, I think at first especially. Yes I do, and there were instances, you know
specific instances, and sometimes they were young lawyers who were so
impressed with themselves and sometimes they weren’t. Sometimes they
were older lawyers who should have known better.
Ms. Flanagan: And what was your technique for handling such a situation?
Judge Smith: If they were outright rude, I would try to, without being, sounding petty or
whatever, just remind them that I was the judge and that at such time as he
or she, well it was never a she, he got on the Bench then he could do things
differently but in the meantime…
Ms. Flanagan: You were calling the shots.
Judge Smith: I was calling the shots. If it wasn’t outright, if it was supposedly-disguised
contempt, most of the time I would ignore it. –
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Ms. Flanagan: Were there any issues — Without naming names, was there any tension
between chambers, where some of the judges longed for the old days and
weren’t so welcoming of women judges?
Judge Smith: Of women? I don’t think so. I think that some of them were puzzled and
sort of curious. But I don’t think there was any — I never felt unwelcome, the
older judges were very good to me. Some in particular who might surprise
people, but Bill Orrick for example, Judge Zirpoli, Bob Schnake, they were
great. And as I said I think a little puzzled about this whole new approach
or whatever you would want to call it, but never unwelcoming or unkind.
Ms. Flanagan: And did you ever observe or hear questions, or maybe they wouldn’t even
come to you with questions, about some of the male judges having issues
with women attorneys or how to deal with women attorneys, or having
different expectations for style, etc.?
Judge Smith: Well, I love this story, and I tell it all the time because I just think it’s so — It
makes me smile and because I am so fond of him. I adore Judge Orrick. I
just thought he was one of the most principled people I have ever known
and when I came on the Bench he did not allow his female, his women
clerks to wear pants ever, even if they weren’t going to be in the court room.
I guess I had been there about a year or so, and he had his long-time
secretary Sylvia, who really ran his chambers — and I learned this story
because Sylvia told my secretary who told me — that Judge Orrick came up
to her one day and said, “Sylvia, I’ve heard a rumor.” And she said, “What
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Ms. Flanagan: Were there any issues — Without naming names, was there any tension
between chambers, where some of the judges longed for the old days and
weren’t so welcoming of women judges?
Judge Smith: Of women? I don’t think so. I think that some of them were puzzled and
sort of curious. But I don’t think there was any — I never felt unwelcome, the
older judges were very good to me. Some in particular who might surprise
people, but Bill Orrick for example, Judge Zirpoli, Bob Schnake, they were
great. And as I said I think a little puzzled about this whole new approach
or whatever you would want to call it, but never unwelcoming or unkind.
Ms. Flanagan: And did you ever observe or hear questions, or maybe they wouldn’t even
come to you with questions, about some of the male judges having issues
with women attorneys or how to deal with women attorneys, or having
different expectations for style, etc.?
Judge Smith: Well, I love this story, and I tell it all the time because I just think it’s so — It
makes me smile and because I am so fond of him. I adore Judge Orrick. I
just thought he was one of the most principled people I have ever known
and when I came on the Bench he did not allow his female, his women
clerks to wear pants ever, even if they weren’t going to be in the court room.
I guess I had been there about a year or so, and he had his long-time
secretary Sylvia, who really ran his chambers — and I learned this story
because Sylvia told my secretary who told me — that Judge Orrick came up
to her one day and said, “Sylvia, I’ve heard a rumor.” And she said, “What
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is it Judge?” And he said, “I’ve heard that Judge Smith lets her female
clerks cross dress. Is that true?” And Sylvia said “Well if you mean does
she allow them to wear pants, appropriate pant suits, yes she does.” And she
said he stood there and he thought for a minute and then he said “Well, I
guess if Judge Smith allows it, it must be the right thing to do.”
Ms. Flanagan: Well, that’s quite a compliment.
Judge Smith: It was. It was.
Ms. Flanagan: Well lucky for his clerks that he heard the rumor. That’s actually a good
story.
Judge Smith: Yeah, it’s one of those great stories.
Ms. Flanagan: Did you ever — with being on the Bench, did you feel in some way isolated
from attorneys in the sense of— I was about to say, did you ever reach out to
the women attorneys and try to mentor them, but I stopped myself because
of the distance.
Judge Smith: Right, I did feel somewhat isolated, and I think I transferred all of that to my
clerks instead because I didn’t feel it was really appropriate. I mean, I kept
friendships with women lawyers I’d had at Bronson and people I’d been
friendly with before and still saw them on occasion, but time and
everything, it does, it puts a barrier.
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is it Judge?” And he said, “I’ve heard that Judge Smith lets her female
clerks cross dress. Is that true?” And Sylvia said “Well if you mean does
she allow them to wear pants, appropriate pant suits, yes she does.” And she
said he stood there and he thought for a minute and then he said “Well, I
guess if Judge Smith allows it, it must be the right thing to do.”
Ms. Flanagan: Well, that’s quite a compliment.
Judge Smith: It was. It was.
Ms. Flanagan: Well lucky for his clerks that he heard the rumor. That’s actually a good
story.
Judge Smith: Yeah, it’s one of those great stories.
Ms. Flanagan: Did you ever — with being on the Bench, did you feel in some way isolated
from attorneys in the sense of— I was about to say, did you ever reach out to
the women attorneys and try to mentor them, but I stopped myself because
of the distance.
Judge Smith: Right, I did feel somewhat isolated, and I think I transferred all of that to my
clerks instead because I didn’t feel it was really appropriate. I mean, I kept
friendships with women lawyers I’d had at Bronson and people I’d been
friendly with before and still saw them on occasion, but time and
everything, it does, it puts a barrier.
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Ms. Flanagan: Did you find that, did you find yourself feeling somewhat lonely as a judge
on the Bench, having kind of these barriers that you had to preserve?
Judge Smith: No, not really. You know I had a lot of friends that I still saw socially, and
frankly I was so busy I didn’t have a lot of time to be lonely.
Ms. Flanagan: What were your work habits as a judge? I mean, what was your approach to
managing your caseload and your work day?
Judge Smith: Well, I would get in fairly early. I would try to be in chambers by about
8:00, and I was usually there until 6:00 or 6:30 and would typically bring
some kind of reading home. By then, putting in a long day like that, I often
wasn’t quite up to reading something really challenging like a summary
judgment motion at night, but I would bring home things like the Recorder
and the Journal and correspondence and committee stuff, you know
miscellaneous stuff, and just that was kind of it. And I would leave, in a
way it would depend, I mean because I had the clerks, we all had to kind of
gear our work day to each other, except when I was on the bench of course.
And I was one of the first judges to start the practice, which I think is now
very, very common in the Northern District, of having trials from 8:30 to
1:30. I may have been, if not the first, I was one of the first.
Ms. Flanagan: And what brought you to that, the point of view that that was the way to go?
What prompted it?
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Ms. Flanagan: Did you find that, did you find yourself feeling somewhat lonely as a judge
on the Bench, having kind of these barriers that you had to preserve?
Judge Smith: No, not really. You know I had a lot of friends that I still saw socially, and
frankly I was so busy I didn’t have a lot of time to be lonely.
Ms. Flanagan: What were your work habits as a judge? I mean, what was your approach to
managing your caseload and your work day?
Judge Smith: Well, I would get in fairly early. I would try to be in chambers by about
8:00, and I was usually there until 6:00 or 6:30 and would typically bring
some kind of reading home. By then, putting in a long day like that, I often
wasn’t quite up to reading something really challenging like a summary
judgment motion at night, but I would bring home things like the Recorder
and the Journal and correspondence and committee stuff, you know
miscellaneous stuff, and just that was kind of it. And I would leave, in a
way it would depend, I mean because I had the clerks, we all had to kind of
gear our work day to each other, except when I was on the bench of course.
And I was one of the first judges to start the practice, which I think is now
very, very common in the Northern District, of having trials from 8:30 to
1:30. I may have been, if not the first, I was one of the first.
Ms. Flanagan: And what brought you to that, the point of view that that was the way to go?
What prompted it?
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Judge Smith: I think I had heard about it, maybe in a conference or judicial training or
something, and it just seemed to me that there was a lot of wasted time for a
jury and everybody in a traditional trial day, and that you couldn’t really get
anything done in the breaks. But there were all these breaks and things, so
that was part of it. And then part of it was just thinking about the lawyers,
you know, they’d be in court from 9:00 or 9:30 to 5:00 and then they’d have
to go prepare witnesses, and the whole thing just seemed really kind of silly.
And I think part of it too was I started getting lawyers from out of town and
they would want to catch a plane or go home or whatever. I’m not sure
exactly what it was but it just seemed to me that for everybody’s sake and
the jury’s too, that — So often I’d have potential jurors and they’d say, you
know, I have school kids and I have to be home by 3:30 or whatever. It
seemed to me everybody was better off. The only grumbling I got at first
was from lawyers because they had to be in the court room — I think I tried
8:00 for a while and then moved it to 8:30, but once they tried it they really
liked it.
Ms. Flanagan: And looking back, are there other innovations that you experimented with in
terms of either managing your workload or managing the trial schedule?
Judge Smith: One of the things I did, and it was because of the way I managed the trials,
was instead of, I never took a day for, a whole day for law and motion. So
for example, I would have them in the afternoon after my trial, so I would
have, my criminal calendar would start at 2:00 on Wednesday, and I’d have
status conferences, I think, on Friday, and I’d have law and motion on
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Judge Smith: I think I had heard about it, maybe in a conference or judicial training or
something, and it just seemed to me that there was a lot of wasted time for a
jury and everybody in a traditional trial day, and that you couldn’t really get
anything done in the breaks. But there were all these breaks and things, so
that was part of it. And then part of it was just thinking about the lawyers,
you know, they’d be in court from 9:00 or 9:30 to 5:00 and then they’d have
to go prepare witnesses, and the whole thing just seemed really kind of silly.
And I think part of it too was I started getting lawyers from out of town and
they would want to catch a plane or go home or whatever. I’m not sure
exactly what it was but it just seemed to me that for everybody’s sake and
the jury’s too, that — So often I’d have potential jurors and they’d say, you
know, I have school kids and I have to be home by 3:30 or whatever. It
seemed to me everybody was better off. The only grumbling I got at first
was from lawyers because they had to be in the court room — I think I tried
8:00 for a while and then moved it to 8:30, but once they tried it they really
liked it.
Ms. Flanagan: And looking back, are there other innovations that you experimented with in
terms of either managing your workload or managing the trial schedule?
Judge Smith: One of the things I did, and it was because of the way I managed the trials,
was instead of, I never took a day for, a whole day for law and motion. So
for example, I would have them in the afternoon after my trial, so I would
have, my criminal calendar would start at 2:00 on Wednesday, and I’d have
status conferences, I think, on Friday, and I’d have law and motion on
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Monday. So I would break it up in segments, which meant for me I had less
reading to do in big chunks. And it just seemed to work better for me to do
it in segments.
Ms. Flanagan: And did you have some self-disciplining rule about issuing decisions after a
matter had been submitted so as not to have too many things on your back
burner?
Judge Smith: Well again, I would encourage my secretary and my law clerks to encourage
me. And part of it was, I just knew if I got behind it was, I was never going
to catch up. The only time I ran, I really ran into trouble was on the Galoob
trial. Nintendo vs. Galoob, or was it Galoob vs. Nintendo? Maybe it was
Galoob vs. Nintendo, I forget. Anyway, they were the two parties, and it
was a Bench trial. And it was really important to me, and I wanted to do it
myself And so I read Nimmer on Copyright and all this stuff, and I kept rereading. And there was a lot of money at stake, a lot of money in those
days. It doesn’t seem that big now, but it was a $15 million dollar judgment
eventually. And Christmas was coming, and of course this was a toy
company. And Jerry Falk called one day, or maybe it was Marty Ginsberg
who called, and said “Judge, you know, we know, we’re sure you are
working hard but is there any chance?” And I did, I promised them I would
get it out, and I did. But that was probably the longest I ever went, and it
wasn’t because I wasn’t working. It was because I cared so much about the
case and really wanted to do it well.
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Monday. So I would break it up in segments, which meant for me I had less
reading to do in big chunks. And it just seemed to work better for me to do
it in segments.
Ms. Flanagan: And did you have some self-disciplining rule about issuing decisions after a
matter had been submitted so as not to have too many things on your back
burner?
Judge Smith: Well again, I would encourage my secretary and my law clerks to encourage
me. And part of it was, I just knew if I got behind it was, I was never going
to catch up. The only time I ran, I really ran into trouble was on the Galoob
trial. Nintendo vs. Galoob, or was it Galoob vs. Nintendo? Maybe it was
Galoob vs. Nintendo, I forget. Anyway, they were the two parties, and it
was a Bench trial. And it was really important to me, and I wanted to do it
myself And so I read Nimmer on Copyright and all this stuff, and I kept rereading. And there was a lot of money at stake, a lot of money in those
days. It doesn’t seem that big now, but it was a $15 million dollar judgment
eventually. And Christmas was coming, and of course this was a toy
company. And Jerry Falk called one day, or maybe it was Marty Ginsberg
who called, and said “Judge, you know, we know, we’re sure you are
working hard but is there any chance?” And I did, I promised them I would
get it out, and I did. But that was probably the longest I ever went, and it
wasn’t because I wasn’t working. It was because I cared so much about the
case and really wanted to do it well.
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Ms. Flanagan: In general, did you have your clerks do the first draft of things or did you
allocate it between them and yourself?
Judge Smith: No, I would usually, as I say I would tell them how I wanted it to come out
and the points I wanted stressed, and then they would do the first draft. And
then we would start “back and forthing” and sometimes it took many, many
drafts. But then one of the things we would do, and I learned it from one of
my clerks, is that we would at some point put in the “no fiddle” rule, and we
would say, “As of Friday noon, there is a no fiddle on this order,” and that
meant it had to be done.
Ms. Flanagan: What’s your take on the efficacy of oral argument, going to law and motion,
the amount of time that’s spent on oral argument? Did you find that
helpful? Do you think it’s a waste of time?
Judge Smith: Well that was something else that I may have been one of the first judges to
do on the Federal Court here. I don’t know, I certainly wasn’t the first. But
what I would do or try to do in big matters was issue a tentative opinion and
then ask the lawyers to limit oral argument to certain, either — Sometimes
I’d issue a tentative opinion and say please limit your oral argument to either
errors of law or fact that you believe are in this opinion, or sometimes,
instead of a narrative written opinion, I would simply issue a request for
certain, for oral argument to be limited to certain issues. And I’ve thought
that that was helpful for the lawyers and certainly for me. Because I did
read the papers, and I would really try to understand. And I didn’t want to
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Ms. Flanagan: In general, did you have your clerks do the first draft of things or did you
allocate it between them and yourself?
Judge Smith: No, I would usually, as I say I would tell them how I wanted it to come out
and the points I wanted stressed, and then they would do the first draft. And
then we would start “back and forthing” and sometimes it took many, many
drafts. But then one of the things we would do, and I learned it from one of
my clerks, is that we would at some point put in the “no fiddle” rule, and we
would say, “As of Friday noon, there is a no fiddle on this order,” and that
meant it had to be done.
Ms. Flanagan: What’s your take on the efficacy of oral argument, going to law and motion,
the amount of time that’s spent on oral argument? Did you find that
helpful? Do you think it’s a waste of time?
Judge Smith: Well that was something else that I may have been one of the first judges to
do on the Federal Court here. I don’t know, I certainly wasn’t the first. But
what I would do or try to do in big matters was issue a tentative opinion and
then ask the lawyers to limit oral argument to certain, either — Sometimes
I’d issue a tentative opinion and say please limit your oral argument to either
errors of law or fact that you believe are in this opinion, or sometimes,
instead of a narrative written opinion, I would simply issue a request for
certain, for oral argument to be limited to certain issues. And I’ve thought
that that was helpful for the lawyers and certainly for me. Because I did
read the papers, and I would really try to understand. And I didn’t want to
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sit and have a lawyer simply tell me what he or she had written that I had
already read.
Ms. Flanagan: Did you often find that your view of the case or your tentative decision was
changed by oral argument?
Judge Smith: Not often, but sometimes.
Ms. Flanagan: Do you think more matters should be taken under submission? I mean some
of the judges, just on their own motion, do dispense with oral argument.
Judge Smith: I think easy straightforward things, yes. I think when it is a dispositive
motion that, sometimes even if it’s only for appearances sake, you know,
rather than simply doing away with oral argument, to simply say, “I’d like
oral argument limited to X, X and X,” whether it saves the attorney, the
losing attorney’s face in front of his or her client, or whatever. On the other
hand, I see no reason to have attorneys flying out from God knows where
when you know perfectly well what you are going to do and it’s going to
cost the client an extra $5,000 or $10,000.
Ms. Flanagan: Now looking back, what were the biggest surprises to you of the judge job?
Judge Smith: How hard it was. It’s hard work to be, I think to try to be a good judge. I
was surprised really at how much power a judge has. I mean, you know it
theoretically, but when you are the one that’s got it, it’s a surprise. I was
surprised at how much, at least the appearance of respect you get from the
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sit and have a lawyer simply tell me what he or she had written that I had
already read.
Ms. Flanagan: Did you often find that your view of the case or your tentative decision was
changed by oral argument?
Judge Smith: Not often, but sometimes.
Ms. Flanagan: Do you think more matters should be taken under submission? I mean some
of the judges, just on their own motion, do dispense with oral argument.
Judge Smith: I think easy straightforward things, yes. I think when it is a dispositive
motion that, sometimes even if it’s only for appearances sake, you know,
rather than simply doing away with oral argument, to simply say, “I’d like
oral argument limited to X, X and X,” whether it saves the attorney, the
losing attorney’s face in front of his or her client, or whatever. On the other
hand, I see no reason to have attorneys flying out from God knows where
when you know perfectly well what you are going to do and it’s going to
cost the client an extra $5,000 or $10,000.
Ms. Flanagan: Now looking back, what were the biggest surprises to you of the judge job?
Judge Smith: How hard it was. It’s hard work to be, I think to try to be a good judge. I
was surprised really at how much power a judge has. I mean, you know it
theoretically, but when you are the one that’s got it, it’s a surprise. I was
surprised at how much, at least the appearance of respect you get from the
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lawyers is. Whether they really mean it or not is of course a whole other
story. I was surprised at how terrible some lawyers really are.
Ms. Flanagan: And as a judge, do you feel a duty to try and step in and counterbalance
that?
Judge Smith: Well, you can only go so far. You know, you can’t become advisory
counsel, especially on a civil case I think. I would try to some degree. For
example, you get a complaint and there’d be a motion to dismiss, and I
would give the person a chance to amend. And I’d try to give them a little
direction about where perhaps there might be room, but often you knew it
wasn’t, they weren’t going to do it.
Ms. Flanagan: Let me ask you this, because there is a difference between civil and criminal
in this respect, but ineffective assistance of counsel can be grounds for
reversal. To what extent do you think as a trial judge you can, or perhaps
are even required to, step in to try and correct the error of the counsel when
it crosses the line to ineffective assistance?
Judge Smith: Well, that’s a good question. I have to say that, in Federal Court, I think
you rarely get ineffective assistance of counsel in criminal cases.
Ms. Flanagan: So it’s more you see a range of talent and skill, but not so bad at the low
end?
Judge Smith: Yes, exactly. And quite often at the low end it’s in a case where there’s
several defendants, and so even if one is pretty weak there are others to pick
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lawyers is. Whether they really mean it or not is of course a whole other
story. I was surprised at how terrible some lawyers really are.
Ms. Flanagan: And as a judge, do you feel a duty to try and step in and counterbalance
that?
Judge Smith: Well, you can only go so far. You know, you can’t become advisory
counsel, especially on a civil case I think. I would try to some degree. For
example, you get a complaint and there’d be a motion to dismiss, and I
would give the person a chance to amend. And I’d try to give them a little
direction about where perhaps there might be room, but often you knew it
wasn’t, they weren’t going to do it.
Ms. Flanagan: Let me ask you this, because there is a difference between civil and criminal
in this respect, but ineffective assistance of counsel can be grounds for
reversal. To what extent do you think as a trial judge you can, or perhaps
are even required to, step in to try and correct the error of the counsel when
it crosses the line to ineffective assistance?
Judge Smith: Well, that’s a good question. I have to say that, in Federal Court, I think
you rarely get ineffective assistance of counsel in criminal cases.
Ms. Flanagan: So it’s more you see a range of talent and skill, but not so bad at the low
end?
Judge Smith: Yes, exactly. And quite often at the low end it’s in a case where there’s
several defendants, and so even if one is pretty weak there are others to pick
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up the slack. I don’t remember a case in Federal Court where I thought that
was happening. There was one case I remember I had where one of the
lawyers was really doing a terrible, terrible job, but he had a co-counsel, and
fortunately she would rescue things from disaster.
Ms. Flanagan: Do you think if — and sometimes ineffective assistance results from things
the judge would not know, but putting that to the side — Do you think if
there is a reversal based on ineffective assistance of counsel, it is not just a
failure of the counsel but also of the judge? I don’t know why that odd
question just flashed through my mind, but…
Judge Smith: Well I guess in part it depends on whether it is something the judge could
have known. I mean if the counsel is asleep at the table, then, yes, I think it
is a failure of the judge.
Ms. Flanagan: And do you think then the thing to do is just to declare a mistrial and not
allow that judge, excuse me, that attorney to proceed in your court room?
Judge Smith: Well, or to have the attorney and the client come in and somehow or other
talk about it and see. It’s a delicate area.
Ms. Flanagan: It is very delicate because you have the client’s preferences.
Judge Smith: You bring the client in and see if maybe there is, they’re ill or there is
something going on that you don’t know about.
Ms. Flanagan: Any other significant surprises for you in terms of being a judge?
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up the slack. I don’t remember a case in Federal Court where I thought that
was happening. There was one case I remember I had where one of the
lawyers was really doing a terrible, terrible job, but he had a co-counsel, and
fortunately she would rescue things from disaster.
Ms. Flanagan: Do you think if — and sometimes ineffective assistance results from things
the judge would not know, but putting that to the side — Do you think if
there is a reversal based on ineffective assistance of counsel, it is not just a
failure of the counsel but also of the judge? I don’t know why that odd
question just flashed through my mind, but…
Judge Smith: Well I guess in part it depends on whether it is something the judge could
have known. I mean if the counsel is asleep at the table, then, yes, I think it
is a failure of the judge.
Ms. Flanagan: And do you think then the thing to do is just to declare a mistrial and not
allow that judge, excuse me, that attorney to proceed in your court room?
Judge Smith: Well, or to have the attorney and the client come in and somehow or other
talk about it and see. It’s a delicate area.
Ms. Flanagan: It is very delicate because you have the client’s preferences.
Judge Smith: You bring the client in and see if maybe there is, they’re ill or there is
something going on that you don’t know about.
Ms. Flanagan: Any other significant surprises for you in terms of being a judge?
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Judge Smith: I’m always surprised when I come across a bad judge. I’m more surprised
and dismayed by that than I am coming across a bad lawyer. And it rarely
happens on the Federal Bench because the vetting is so strict. I mean, there
are a lot of judges I may not agree with, but rarely a bad judge or a dumb
judge. But they certainly exist.
Ms. Flanagan: And you think that’s because of the vetting process?
Judge Smith: Uh huh.
Ms. Flanagan: What do you think is the core job description for a judge, and then, as part
of that, what are the things that have to be missing or present to be a bad
judge?
Judge Smith: I think the core responsibility is to listen and see as much and as carefully as
you can and to make decisions based on the law as it is but with a sense of
equity and fairness always present, not enough that you change the law or
disregard the law but that you view it in a way that leaves room for some
molding as it were.
Ms. Flanagan: And then in terms of a judge that would come across your radar screen and
be a judge who you would think is so disappointing because they are a bad
judge. I mean, there’s not smart and there’s lazy.
Judge Smith: Right.
Ms. Flanagan: But what would be the other factors that just, without them…
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Judge Smith: I’m always surprised when I come across a bad judge. I’m more surprised
and dismayed by that than I am coming across a bad lawyer. And it rarely
happens on the Federal Bench because the vetting is so strict. I mean, there
are a lot of judges I may not agree with, but rarely a bad judge or a dumb
judge. But they certainly exist.
Ms. Flanagan: And you think that’s because of the vetting process?
Judge Smith: Uh huh.
Ms. Flanagan: What do you think is the core job description for a judge, and then, as part
of that, what are the things that have to be missing or present to be a bad
judge?
Judge Smith: I think the core responsibility is to listen and see as much and as carefully as
you can and to make decisions based on the law as it is but with a sense of
equity and fairness always present, not enough that you change the law or
disregard the law but that you view it in a way that leaves room for some
molding as it were.
Ms. Flanagan: And then in terms of a judge that would come across your radar screen and
be a judge who you would think is so disappointing because they are a bad
judge. I mean, there’s not smart and there’s lazy.
Judge Smith: Right.
Ms. Flanagan: But what would be the other factors that just, without them…
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Judge Smith: I think the main thing is judges who are driven by their own personal agenda
rather than by a respect and acknowledgment of what the law is. And that is
on either side.
Ms. Flanagan: Is that something where a Bench — I mean how does a Bench deal with that
if one of their members is a bad judge for any of the reasons we’ve
described? I mean, obviously, if you’re not smart there’s not a lot of
corrective action that can be taken. There can be if you’re lazy, there can be
if you have your own agenda. I mean it…
Judge Smith: That’s what appellate courts are for really. I mean, I think it’s very hard for
trial judges to monitor or to discipline or to chastise a bad judge. You know,
I mean, if you’re the presiding judge and you see something that is a
reportable kind of thing — is the judge drinking or using drugs or whatever —
but I think when it comes to the merits of judging, that’s why we have
appellate courts.
Ms. Flanagan: Now, at some point you went to the Federal Judicial Center. But before you
did that, in the Northern District were you ever involved in the management
of the Court system as a whole, as opposed to your own workload in your
own chambers?
Judge Smith: Yeah, I was on committees to appoint magistrate judges. I was the liaison
judge for the magistrates for a while, which is a committee assignment. I
was on the space committee, the chair of that for a while, so you know I was
on …
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Judge Smith: I think the main thing is judges who are driven by their own personal agenda
rather than by a respect and acknowledgment of what the law is. And that is
on either side.
Ms. Flanagan: Is that something where a Bench — I mean how does a Bench deal with that
if one of their members is a bad judge for any of the reasons we’ve
described? I mean, obviously, if you’re not smart there’s not a lot of
corrective action that can be taken. There can be if you’re lazy, there can be
if you have your own agenda. I mean it…
Judge Smith: That’s what appellate courts are for really. I mean, I think it’s very hard for
trial judges to monitor or to discipline or to chastise a bad judge. You know,
I mean, if you’re the presiding judge and you see something that is a
reportable kind of thing — is the judge drinking or using drugs or whatever —
but I think when it comes to the merits of judging, that’s why we have
appellate courts.
Ms. Flanagan: Now, at some point you went to the Federal Judicial Center. But before you
did that, in the Northern District were you ever involved in the management
of the Court system as a whole, as opposed to your own workload in your
own chambers?
Judge Smith: Yeah, I was on committees to appoint magistrate judges. I was the liaison
judge for the magistrates for a while, which is a committee assignment. I
was on the space committee, the chair of that for a while, so you know I was
on …
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Ms. Flanagan: One of the more controversial ones I would think
Judge Smith: …on various committees.
Ms. Flanagan: What is your perception of the jury system in this sense — Having seen all
the trials that the jury sees, did you think more often than not, in fact
significantly more often than not, they got it right?
Judge Smith: Yes.
Ms. Flanagan: And if you were a criminal defendant, which of course will never happen,
but if you could go there in your fantasy, and you were innocent, would you
rather be in front of a judge or a jury?
Judge Smith: That’s a good question. Probably depends what Court I was in and where it
was located to be honest. More times than not probably in front of a jury,
but it depends on the type of crime too, I think. And whether or not the
average criminal defendant has enough knowledge to know, understand
those differences and make a wise decision, I think is doubtful.
Ms. Flanagan: How did you react to being reversed by the appeals court? I’m sure it didn’t
happen very often. I guess I should ask did it happen before I make the
assumption.
Judge Smith: Oh sure, of course. Frankly, I think a judge who never gets reversed isn’t
doing his or her job because it’s a judge who’s not willing to look at areas
that — Judges do make a lot of law, and it’s ridiculous to say you don’t. And
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Ms. Flanagan: One of the more controversial ones I would think
Judge Smith: …on various committees.
Ms. Flanagan: What is your perception of the jury system in this sense — Having seen all
the trials that the jury sees, did you think more often than not, in fact
significantly more often than not, they got it right?
Judge Smith: Yes.
Ms. Flanagan: And if you were a criminal defendant, which of course will never happen,
but if you could go there in your fantasy, and you were innocent, would you
rather be in front of a judge or a jury?
Judge Smith: That’s a good question. Probably depends what Court I was in and where it
was located to be honest. More times than not probably in front of a jury,
but it depends on the type of crime too, I think. And whether or not the
average criminal defendant has enough knowledge to know, understand
those differences and make a wise decision, I think is doubtful.
Ms. Flanagan: How did you react to being reversed by the appeals court? I’m sure it didn’t
happen very often. I guess I should ask did it happen before I make the
assumption.
Judge Smith: Oh sure, of course. Frankly, I think a judge who never gets reversed isn’t
doing his or her job because it’s a judge who’s not willing to look at areas
that — Judges do make a lot of law, and it’s ridiculous to say you don’t. And
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we do it because there isn’t any answer, and you cannot find everything in a
hornbook. It’s just not there. And especially in a sophisticated jurisdiction
like the Northern District, you get questions all the time for which there’s no
answer, and so you’ve got to make some leap.
Ms. Flanagan: To fill in the blanks?
Judge Smith: To fill it in. And I think if you’re not, if you’re never reversed, it’s because
you don’t have the guts to make a leap that might matter. So, how did I
feel? It would depend. Sometimes I knew it was a leap and that maybe I
was pushing the envelope and reasonable minds could disagree and that was
okay. Sometimes I just thought they were flat-out wrong, to be honest.
Literally there was one case that I had where, when I got the reversal, I
looked and I thought, “I do not believe it.” But I will say this, the Court
took it en banc, and they reversed the panel and affirmed me.
Ms. Flanagan: So you were right?
Judge Smith: So I was right. Which I knew. I mean it was just, you just knew that it
could not be the right answer, the one they had come up with.
Ms. Flanagan: And what was for you the hardest part of the job as a judge?
Judge Smith: Sentencing people.
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we do it because there isn’t any answer, and you cannot find everything in a
hornbook. It’s just not there. And especially in a sophisticated jurisdiction
like the Northern District, you get questions all the time for which there’s no
answer, and so you’ve got to make some leap.
Ms. Flanagan: To fill in the blanks?
Judge Smith: To fill it in. And I think if you’re not, if you’re never reversed, it’s because
you don’t have the guts to make a leap that might matter. So, how did I
feel? It would depend. Sometimes I knew it was a leap and that maybe I
was pushing the envelope and reasonable minds could disagree and that was
okay. Sometimes I just thought they were flat-out wrong, to be honest.
Literally there was one case that I had where, when I got the reversal, I
looked and I thought, “I do not believe it.” But I will say this, the Court
took it en banc, and they reversed the panel and affirmed me.
Ms. Flanagan: So you were right?
Judge Smith: So I was right. Which I knew. I mean it was just, you just knew that it
could not be the right answer, the one they had come up with.
Ms. Flanagan: And what was for you the hardest part of the job as a judge?
Judge Smith: Sentencing people.
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Ms. Flanagan: And in some of the materials I’ve read the criminal defense bar viewed you
as being a tough sentencer. Do you think that’s a fair characterization? And
of course I’m generalizing from what I read.
Judge Smith: Yeah, that’s okay. I don’t think so. I thought I was moderate and maybe
slightly on, if on either side, on the lenient side, although again it probably
depended in part on the crime and the defendant. Yeah, I don’t think of
myself as a tough sentencer, but that’s okay if they did. I mean, I can take, I
can accept that.
Ms. Flanagan:
Judge Smith:
When you read articles about you, you talk to practitioners, you are a judge
who has great respect and affection, really, which you don’t always get
together for judges. And, what do you think, well — I assume you agree with
me on the premise, and so then my question is, to what do you attribute that?
I mean, how have you conducted yourself so that you could have
practitioners both respect you and like you?
Well I think they respected me because I think they know that I worked
really hard and that I was prepared, certainly more often than not, and that I
am intelligent, and so I do understand most issues. I think they knew that I
respected what they were doing, most of the time I respected them and gave
them an opportunity to be advocates without simply, “That’s alright, I’ve
heard enough, goodbye.” That I listened to them and took what they were
saying seriously. So I think that’s where the respect came. And I think the
affection, and I think it was there, and I’ve always been proud of that and
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Ms. Flanagan: And in some of the materials I’ve read the criminal defense bar viewed you
as being a tough sentencer. Do you think that’s a fair characterization? And
of course I’m generalizing from what I read.
Judge Smith: Yeah, that’s okay. I don’t think so. I thought I was moderate and maybe
slightly on, if on either side, on the lenient side, although again it probably
depended in part on the crime and the defendant. Yeah, I don’t think of
myself as a tough sentencer, but that’s okay if they did. I mean, I can take, I
can accept that.
Ms. Flanagan:
Judge Smith:
When you read articles about you, you talk to practitioners, you are a judge
who has great respect and affection, really, which you don’t always get
together for judges. And, what do you think, well — I assume you agree with
me on the premise, and so then my question is, to what do you attribute that?
I mean, how have you conducted yourself so that you could have
practitioners both respect you and like you?
Well I think they respected me because I think they know that I worked
really hard and that I was prepared, certainly more often than not, and that I
am intelligent, and so I do understand most issues. I think they knew that I
respected what they were doing, most of the time I respected them and gave
them an opportunity to be advocates without simply, “That’s alright, I’ve
heard enough, goodbye.” That I listened to them and took what they were
saying seriously. So I think that’s where the respect came. And I think the
affection, and I think it was there, and I’ve always been proud of that and
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pleased by it. And I think it comes more often than not from the fact that
they knew, while I took my work very seriously, I didn’t take myself that
seriously, and that I could laugh with them and that we could share a joke
occasionally And that even if I was a tough sentencer, if that’s how they
saw me, that I did have some compassion for the people I would sentence,
for their clients, and that I didn’t take easily destroying families, no matter
how dastardly the defendant may have been. I mean, I would sit there and
there would be these little kids all dressed up. Part of the show, I
understood that, but still, that’s what they were was little kids, you know,
whose father was going off to prison and whatever money he was bringing
in, maybe it was through drug dealing, but it was what was putting food on
the table, and that was going to disappear. And it’s, it’s not easy, and I
knew that. And that’s, I think, the part of the Juvenile Court year that stuck
with me, and I tried when I could to say something to the families about the
fact that I was sorry for what this had done to them and acknowledge them
as people. And I think they, that meant something.
Ms. Flanagan: And when you finish with that answer, I was going to ask a follow-on
question based on something you just said.
Judge Smith: Yeah.
Ms. Flanagan: When you were sentencing people, would you actually think about prison
conditions? I mean, did that influence you at all when you were thinking
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pleased by it. And I think it comes more often than not from the fact that
they knew, while I took my work very seriously, I didn’t take myself that
seriously, and that I could laugh with them and that we could share a joke
occasionally And that even if I was a tough sentencer, if that’s how they
saw me, that I did have some compassion for the people I would sentence,
for their clients, and that I didn’t take easily destroying families, no matter
how dastardly the defendant may have been. I mean, I would sit there and
there would be these little kids all dressed up. Part of the show, I
understood that, but still, that’s what they were was little kids, you know,
whose father was going off to prison and whatever money he was bringing
in, maybe it was through drug dealing, but it was what was putting food on
the table, and that was going to disappear. And it’s, it’s not easy, and I
knew that. And that’s, I think, the part of the Juvenile Court year that stuck
with me, and I tried when I could to say something to the families about the
fact that I was sorry for what this had done to them and acknowledge them
as people. And I think they, that meant something.
Ms. Flanagan: And when you finish with that answer, I was going to ask a follow-on
question based on something you just said.
Judge Smith: Yeah.
Ms. Flanagan: When you were sentencing people, would you actually think about prison
conditions? I mean, did that influence you at all when you were thinking
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about — Not just three years or five years or ten years in confinement, but
kind of the conditions of the confinement? Did that influence you at all?
Judge Smith: Not a whole lot because I think I felt, maybe wrongly, but I felt that most of
the Federal prisons, while they may have been crowded, they weren’t, this
wasn’t like sending them to a chain gang in Georgia. But I did think about
and try to take into account, when I could, how far the prison was going to
be from the family. And I wrote a lot of letters to a lot of wardens trying to
get prisoners close to their kids and parents or spouses or whatever, and I
didn’t really do it as much for the defendants as I did for the families.
Ms. Flanagan: Did you ever after the fact hear from a criminal defendant or a criminal
defendant’s family, you know, saying something nice …
Judge Smith: I did.
Ms. Flanagan: …about the interaction?
Judge Smith: Yeah, I did. I got letters from a couple of the kids at Juvenile Court, with
everything misspelled of course, but still very touching letters. And I got
letters, a few, not a lot, but I got a few letters from defendants, adult
defendants in Federal Court. One in particular I remember. I used to call
them the beautiful people. It was a group, it was a series of marijuana cases
that I had, and I had everybody from the people that bought it in East Asia to
the people, Southeast Asia, the people who sailed it on the mother ships to
the kids, the beautiful people who came out on their yachts and off-loaded it
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about — Not just three years or five years or ten years in confinement, but
kind of the conditions of the confinement? Did that influence you at all?
Judge Smith: Not a whole lot because I think I felt, maybe wrongly, but I felt that most of
the Federal prisons, while they may have been crowded, they weren’t, this
wasn’t like sending them to a chain gang in Georgia. But I did think about
and try to take into account, when I could, how far the prison was going to
be from the family. And I wrote a lot of letters to a lot of wardens trying to
get prisoners close to their kids and parents or spouses or whatever, and I
didn’t really do it as much for the defendants as I did for the families.
Ms. Flanagan: Did you ever after the fact hear from a criminal defendant or a criminal
defendant’s family, you know, saying something nice …
Judge Smith: I did.
Ms. Flanagan: …about the interaction?
Judge Smith: Yeah, I did. I got letters from a couple of the kids at Juvenile Court, with
everything misspelled of course, but still very touching letters. And I got
letters, a few, not a lot, but I got a few letters from defendants, adult
defendants in Federal Court. One in particular I remember. I used to call
them the beautiful people. It was a group, it was a series of marijuana cases
that I had, and I had everybody from the people that bought it in East Asia to
the people, Southeast Asia, the people who sailed it on the mother ships to
the kids, the beautiful people who came out on their yachts and off-loaded it
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then to the whatever. Anyway, he was one of the beautiful people. And
they were, there were four or five of these guys that came from relatively
well-to-do families, college educated. Had this boat. I think they sailed out
of the St. Francis Yacht Club or something And they were off-loading this
stuff, and they got caught, and they all went to prison. And I got a letter
from one of them after he got out basically thanking me, saying it hadn’t
been easy but I treated him fairly and respectfully and it had really changed
his life around and he just wanted me to know his wife had waited for him,
etc., etc. So, yeah. And the funniest one though was when I was in, not
funny but it was humorous, when I was at the Hall of Justice and there were
these two brothers who held up a store at gun point and got caught and got
long sentences. One of them, in particular, I think got fifteen years. He was
the one holding the gun. And then when, after he’d been found guilty, his
probation officer came in one day, and he said, “Judge you’re not going to
believe this,” he said, “whatever his name was, Joe or something. He would
like to marry his girlfriend before he goes off because then they could have
conjugal visits.” And I said, “Well, okay I wish him luck.” “Oh no,” he
said, “you haven’t heard. He wants you to do the wedding!”
Ms. Flanagan:
Judge Smith:
One stop shopping here?
Right. I said, “I just sentenced him to fifteen years in prison.” “Well,” he
said, “I know, but he likes you and, you know, and his fiancé, or his
girlfriend,” he called her his girlfriend, “his girlfriend likes you.” So I said,
“Alright.” So they brought him into chambers, and he was in his orange
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then to the whatever. Anyway, he was one of the beautiful people. And
they were, there were four or five of these guys that came from relatively
well-to-do families, college educated. Had this boat. I think they sailed out
of the St. Francis Yacht Club or something And they were off-loading this
stuff, and they got caught, and they all went to prison. And I got a letter
from one of them after he got out basically thanking me, saying it hadn’t
been easy but I treated him fairly and respectfully and it had really changed
his life around and he just wanted me to know his wife had waited for him,
etc., etc. So, yeah. And the funniest one though was when I was in, not
funny but it was humorous, when I was at the Hall of Justice and there were
these two brothers who held up a store at gun point and got caught and got
long sentences. One of them, in particular, I think got fifteen years. He was
the one holding the gun. And then when, after he’d been found guilty, his
probation officer came in one day, and he said, “Judge you’re not going to
believe this,” he said, “whatever his name was, Joe or something. He would
like to marry his girlfriend before he goes off because then they could have
conjugal visits.” And I said, “Well, okay I wish him luck.” “Oh no,” he
said, “you haven’t heard. He wants you to do the wedding!”
Ms. Flanagan:
Judge Smith:
One stop shopping here?
Right. I said, “I just sentenced him to fifteen years in prison.” “Well,” he
said, “I know, but he likes you and, you know, and his fiancé, or his
girlfriend,” he called her his girlfriend, “his girlfriend likes you.” So I said,
“Alright.” So they brought him into chambers, and he was in his orange
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jumpsuit and she was in a white dress, not a long one but you know. I did
the wedding ceremony.
Ms. Flanagan: So you did the wedding, and you handled the honeymoon?
Judge Smith: Yeah, right.
Ms. Flanagan: And when you look back at the cases you handled on the Bench do you
think some of your decisions will have long lives and lasting impacts?
Which are the cases that you think of in that vein?
Judge Smith: Well, I think Silicon Graphics, certainly, you know, it’s taken on new names
now, and so now when you see the principles being cited they’re no longer
Silicon Graphics, but they’re certainly the progeny of Silicon Graphics,
whether for better or for worse, I don’t know. I’m not necessarily saying,
you know, they’re great decisions, but I think that one will have a longlasting effect. I think my marijuana decision on free speech, I hope will
have, protecting the doctors’ licenses, I think will have, I hope, some longstanding effects, and has chastened the government enough that, you know,
they’re a little calmer about some of the threats they make. I don’t know. I
can’t really think of anything in particular.
IvIs. Flanagan: Well those two are very significant, obviously.
Judge Smith: I think the Galoob case from the standpoint of fair use in that limited sphere
of influence, fair use of copyrights, may have had some long-term benefits,
not as socially significant.
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jumpsuit and she was in a white dress, not a long one but you know. I did
the wedding ceremony.
Ms. Flanagan: So you did the wedding, and you handled the honeymoon?
Judge Smith: Yeah, right.
Ms. Flanagan: And when you look back at the cases you handled on the Bench do you
think some of your decisions will have long lives and lasting impacts?
Which are the cases that you think of in that vein?
Judge Smith: Well, I think Silicon Graphics, certainly, you know, it’s taken on new names
now, and so now when you see the principles being cited they’re no longer
Silicon Graphics, but they’re certainly the progeny of Silicon Graphics,
whether for better or for worse, I don’t know. I’m not necessarily saying,
you know, they’re great decisions, but I think that one will have a longlasting effect. I think my marijuana decision on free speech, I hope will
have, protecting the doctors’ licenses, I think will have, I hope, some longstanding effects, and has chastened the government enough that, you know,
they’re a little calmer about some of the threats they make. I don’t know. I
can’t really think of anything in particular.
IvIs. Flanagan: Well those two are very significant, obviously.
Judge Smith: I think the Galoob case from the standpoint of fair use in that limited sphere
of influence, fair use of copyrights, may have had some long-term benefits,
not as socially significant.
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Ms. Flanagan: Well I’m about to take us to the Federal Judicial Center. We’ve been going
almost two hours. Would you like to leave this for next time?
Judge Smith: Maybe that’s a good idea if that’s okay. My voice is strained, I’ve got my
Barack Obama voice.
Ms. Flanagan: Okay, let me just ask one follow-up question from having looked at the last
part of the interview. I had asked you in your early days, childhood days,
whether you ever experienced any anti-Semitism, and you said no, not
growing up in the Richmond because actually there were a lot of Jewish
children in your classes. Have you ever experienced, I didn’t ask the
follow-up question as to whether you’ve ever experienced anti-Semitism?
Judge Smith: Well it tends to, with me it tends to be more unintended or covert in that, in
great part I think because of my last name, people who don’t know me well
don’t assume that I’m Jewish. I don’t look particularly Semitic, whatever
that might be, and so I have certainly been in situations where anti-Semitic
remarks were made in my presence by people not knowing that I was
Jewish. The only other thing I’m aware of is that I know that when I was
first in practice there was a firm, a small boutique firm, I’m not going to
name them, here in San Francisco who planned to offer me a job. I wasn’t
looking tor a job, but I had had a case in opposition to one of their lawyers,
and I think they were looking for a woman lawyer and planned to offer me
the job. But their senior partner apparently was extremely anti-Semitic, and
when he found out that I was Jewish he said no, there was no way, having a
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Ms. Flanagan: Well I’m about to take us to the Federal Judicial Center. We’ve been going
almost two hours. Would you like to leave this for next time?
Judge Smith: Maybe that’s a good idea if that’s okay. My voice is strained, I’ve got my
Barack Obama voice.
Ms. Flanagan: Okay, let me just ask one follow-up question from having looked at the last
part of the interview. I had asked you in your early days, childhood days,
whether you ever experienced any anti-Semitism, and you said no, not
growing up in the Richmond because actually there were a lot of Jewish
children in your classes. Have you ever experienced, I didn’t ask the
follow-up question as to whether you’ve ever experienced anti-Semitism?
Judge Smith: Well it tends to, with me it tends to be more unintended or covert in that, in
great part I think because of my last name, people who don’t know me well
don’t assume that I’m Jewish. I don’t look particularly Semitic, whatever
that might be, and so I have certainly been in situations where anti-Semitic
remarks were made in my presence by people not knowing that I was
Jewish. The only other thing I’m aware of is that I know that when I was
first in practice there was a firm, a small boutique firm, I’m not going to
name them, here in San Francisco who planned to offer me a job. I wasn’t
looking tor a job, but I had had a case in opposition to one of their lawyers,
and I think they were looking for a woman lawyer and planned to offer me
the job. But their senior partner apparently was extremely anti-Semitic, and
when he found out that I was Jewish he said no, there was no way, having a
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woman would be bad enough but he wasn’t going to have a Jewish woman.
So I’m aware of that.
Ms. Flanagan: And are these, the instances of people saying something as a joke because
they don’t think you are Jewish, is that also…
Judge Smith: Well not always as a joke, I mean sometimes just as a mean …
Ms. Flanagan: Mean spirited?
Judge Smith: Mean spirited, anti-Semitic comment.
Ms. Flanagan: And is that of recent vintage also? I mean is it …
Judge Smith: Recent. More recent than I care to — I mean, anti-Semitism, it’s had a long
life and, unfortunately, it may not be as strong as it was, but I think it would
be naive to think that it did not exist.
Ms. Flanagan: Okay, well, on that somber note, we will break for the day. And I thank you
again for your time, and we’ll pick up at the Federal Judicial Center.
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woman would be bad enough but he wasn’t going to have a Jewish woman.
So I’m aware of that.
Ms. Flanagan: And are these, the instances of people saying something as a joke because
they don’t think you are Jewish, is that also…
Judge Smith: Well not always as a joke, I mean sometimes just as a mean …
Ms. Flanagan: Mean spirited?
Judge Smith: Mean spirited, anti-Semitic comment.
Ms. Flanagan: And is that of recent vintage also? I mean is it …
Judge Smith: Recent. More recent than I care to — I mean, anti-Semitism, it’s had a long
life and, unfortunately, it may not be as strong as it was, but I think it would
be naive to think that it did not exist.
Ms. Flanagan: Okay, well, on that somber note, we will break for the day. And I thank you
again for your time, and we’ll pick up at the Federal Judicial Center.
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ORAL HISTORY OF THE HONORABLE FERN M. SMITH (RET.)
THIRD INTERVIEW
January 28, 2008
This is the third interview of the oral history of the Honorable Fern M. Smith (Ret.), which is
being taken on behalf of Women Trailblazers in the Law, a Project of the American Bar
Association Commission on Women in the Profession. It is being conducted by Sarah Flanagan
on January 28, 2008.
Ms. Flanagan: Judge, having read the last session, I noticed a question I should have asked
but didn’t. You had explained that what set you on your path to the Bench
was consulting with Judge Weinstein when you were thinking about doing
something different, when your biggest client had sort of disappeared over
night, and you said that Judge Weinstein said to you that you should be
looking towards the Bench rather than practice.
Judge Smith: Right.
Ms. Flanagan: And my question is, did Judge Weinstein tell you what he saw in you that he
thought would make you a good judge?
Judge Smith: He probably did, but I’m not sure I can really remember it. I think it was
just generally my temperament and demeanor and — no, I can’t give you any
specifics.
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ORAL HISTORY OF THE HONORABLE FERN M. SMITH (RET.)
THIRD INTERVIEW
January 28, 2008
This is the third interview of the oral history of the Honorable Fern M. Smith (Ret.), which is
being taken on behalf of Women Trailblazers in the Law, a Project of the American Bar
Association Commission on Women in the Profession. It is being conducted by Sarah Flanagan
on January 28, 2008.
Ms. Flanagan: Judge, having read the last session, I noticed a question I should have asked
but didn’t. You had explained that what set you on your path to the Bench
was consulting with Judge Weinstein when you were thinking about doing
something different, when your biggest client had sort of disappeared over
night, and you said that Judge Weinstein said to you that you should be
looking towards the Bench rather than practice.
Judge Smith: Right.
Ms. Flanagan: And my question is, did Judge Weinstein tell you what he saw in you that he
thought would make you a good judge?
Judge Smith: He probably did, but I’m not sure I can really remember it. I think it was
just generally my temperament and demeanor and — no, I can’t give you any
specifics.
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Ms. Flanagan: Okay. So now, when we left off, we were just about to follow you on your
career path to the Federal Judicial Center. We had spoken about your career
on the Northern District Bench. How did you come to be designated for the
Federal Judicial Center assignment?
Judge Smith: It was really kind of a funny process. Basically, there was a nominating
committee appointed by the Chief Justice — or search committee, I should
say, not a nominating committee. And they sent out a letter to every Federal
judge, basically saying, “We’re looking for a new director for the FJC, and
it requires a commitment of no less than four years. You must move to
Washington. These are the traits that we are looking for, etc.” And it went
into a fair amount of detail. And I read the letter and I thought — I must have
had a high ego that day or a lot more self esteem — and I thought, I could do
that. And I put the letter aside. And then, I think it was the next day, Judge
Walker came into my chambers and asked me if I had gotten the letter. And
I said, “Oh, yes I did. Why, Vaughn, are you thinking of applying?” And
he said, “No, I think you should apply.” And he listed all the reasons that he
thought I’d be good for it. Later, I josh him about this, so I’m not telling
secrets, because I think there is a fair amount of truth in it, that he had his
eye on my chambers. And part of his enthusiasm about my moving to
Washington was …
Ms. Flanagan: A win-win…
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Ms. Flanagan: Okay. So now, when we left off, we were just about to follow you on your
career path to the Federal Judicial Center. We had spoken about your career
on the Northern District Bench. How did you come to be designated for the
Federal Judicial Center assignment?
Judge Smith: It was really kind of a funny process. Basically, there was a nominating
committee appointed by the Chief Justice — or search committee, I should
say, not a nominating committee. And they sent out a letter to every Federal
judge, basically saying, “We’re looking for a new director for the FJC, and
it requires a commitment of no less than four years. You must move to
Washington. These are the traits that we are looking for, etc.” And it went
into a fair amount of detail. And I read the letter and I thought — I must have
had a high ego that day or a lot more self esteem — and I thought, I could do
that. And I put the letter aside. And then, I think it was the next day, Judge
Walker came into my chambers and asked me if I had gotten the letter. And
I said, “Oh, yes I did. Why, Vaughn, are you thinking of applying?” And
he said, “No, I think you should apply.” And he listed all the reasons that he
thought I’d be good for it. Later, I josh him about this, so I’m not telling
secrets, because I think there is a fair amount of truth in it, that he had his
eye on my chambers. And part of his enthusiasm about my moving to
Washington was …
Ms. Flanagan: A win-win…
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Judge Smith: Yes, it would be a win-win. But anyway, at that point, I went down and I
talked to Judge Schwarzer, who, of course, had been the director of the
Federal Judicial Center shortly before that time, and got a great deal of
encouragement from him And he said, “Oh, Fern, you’d be great for it. It
never dawned on me that you’d be willing to leave San Francisco, but I
think that would be wonderful.” So, then I called Mary Aspen, who is a
District Court judge in Chicago, and he was a member of the search
committee. And I had gotten to know Marv, I forget how, but anyway, I did
know him and had a great deal of respect for him. And so I called and just
left a message to have him call me. And when he called back, he said,
“Please tell me you’re calling to apply for the FJC position.” And so then I
had to really start thinking about whether I wanted to do this or not. And
part of the draw for me was that – I don’t have a lot of regrets in my life, but
at that time one of the regrets I had was that I had never, ever lived outside
of the Bay Area, not for a single day in my life. And that seemed like a,
while I adore it here, a rather parochial existence. And so I thought, “Well,
that might be kind of fun to go back there.” It was a finite period of time,
you know, I could apply for four years. And I was beginning to get a little,
not jaded with the Bench, but some of the initial excitement had worn off by
then. I had been on the Bench eleven years, and I had been a judge for
thirteen years and there were a lot of cases, or certainly a number of cases
that were beginning to look somewhat similar to others that I’d had, and so
it just, I wasn’t married, and it just seemed like it might be interesting. And
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Judge Smith: Yes, it would be a win-win. But anyway, at that point, I went down and I
talked to Judge Schwarzer, who, of course, had been the director of the
Federal Judicial Center shortly before that time, and got a great deal of
encouragement from him And he said, “Oh, Fern, you’d be great for it. It
never dawned on me that you’d be willing to leave San Francisco, but I
think that would be wonderful.” So, then I called Mary Aspen, who is a
District Court judge in Chicago, and he was a member of the search
committee. And I had gotten to know Marv, I forget how, but anyway, I did
know him and had a great deal of respect for him. And so I called and just
left a message to have him call me. And when he called back, he said,
“Please tell me you’re calling to apply for the FJC position.” And so then I
had to really start thinking about whether I wanted to do this or not. And
part of the draw for me was that – I don’t have a lot of regrets in my life, but
at that time one of the regrets I had was that I had never, ever lived outside
of the Bay Area, not for a single day in my life. And that seemed like a,
while I adore it here, a rather parochial existence. And so I thought, “Well,
that might be kind of fun to go back there.” It was a finite period of time,
you know, I could apply for four years. And I was beginning to get a little,
not jaded with the Bench, but some of the initial excitement had worn off by
then. I had been on the Bench eleven years, and I had been a judge for
thirteen years and there were a lot of cases, or certainly a number of cases
that were beginning to look somewhat similar to others that I’d had, and so
it just, I wasn’t married, and it just seemed like it might be interesting. And
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I also had a daughter and two granddaughters who lived in Massachusetts
who have always lived across country, and I thought, “Well, maybe that
would give me a chance to be closer to them for awhile.”
Ms. Flanagan: And is the director always a sitting judge?
Judge Smith: It always has been except for one, Arthur Levin, who, I think it was Arthur
Levin, who was a professor at Yale, was the director early on for many,
many years. But other than that, they’ve all been sitting judges — either
Court of Appeals judges or District Court judges.
Ms. Flanagan: And you mentioned Judge Schwarzer earlier. What does it mean that
they’ve tapped the Northern District for two of their directors?
Judge Smith: Oh, I don’t know. We got a lot of teasing about that, and I think it just
underscores my belief that it’s an incredibly good Bench.
Ms. Flanagan: And what is the mission of the Federal Judicial Center?
Judge Smith: The Federal Judicial Center is an independent agency, well quasiindependent, a separate agency within the judicial branch. It has its own
line item budget and a board of directors, and its mission is as the primary
teaching and research ann of the Federal Courts. We do the training, the
orientation for new Federal judges and continuing education for sitting
judges, both District and Court of Appeals. We train some of the adjunct
staff. We provide some training for Federal public defenders and Court
administrators. We publish manuals and monographs. The Manual on
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I also had a daughter and two granddaughters who lived in Massachusetts
who have always lived across country, and I thought, “Well, maybe that
would give me a chance to be closer to them for awhile.”
Ms. Flanagan: And is the director always a sitting judge?
Judge Smith: It always has been except for one, Arthur Levin, who, I think it was Arthur
Levin, who was a professor at Yale, was the director early on for many,
many years. But other than that, they’ve all been sitting judges — either
Court of Appeals judges or District Court judges.
Ms. Flanagan: And you mentioned Judge Schwarzer earlier. What does it mean that
they’ve tapped the Northern District for two of their directors?
Judge Smith: Oh, I don’t know. We got a lot of teasing about that, and I think it just
underscores my belief that it’s an incredibly good Bench.
Ms. Flanagan: And what is the mission of the Federal Judicial Center?
Judge Smith: The Federal Judicial Center is an independent agency, well quasiindependent, a separate agency within the judicial branch. It has its own
line item budget and a board of directors, and its mission is as the primary
teaching and research ann of the Federal Courts. We do the training, the
orientation for new Federal judges and continuing education for sitting
judges, both District and Court of Appeals. We train some of the adjunct
staff. We provide some training for Federal public defenders and Court
administrators. We publish manuals and monographs. The Manual on
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Complex Litigation is a Federal Judicial Center publication. The Reference
Manual on Scientific Evidence is a Federal Judicial Center publication.
There’s a large research staff that does empirical research for various
committees of the Judicial Conference. And so that’s basically what it is.
Ms. Flanagan:
Judge Smith:
Who does the agency report to? What’s the line structure?
Well, there is, as I say, a board of directors, which is chaired by the Chief
Justice, and then statutorily the rest of the board is made up by, I think it’s
three Court of Appeals, maybe it’s two Court of Appeals judges, three
District Court judges and a magistrate judge. The director of the
Administrative Office of the Courts is a permanent, whatever you call it
when somebody is a member from the office.
Ms. Flanagan: Oh, ex officio.
Judge Smith: Ex officio, right, member, and that may be it. I think there is more. I
thought there were eleven people on the board.
Ms. Flanagan: And then you get the budget separately from Congress?
Judge Smith: From Congress, yes. But once we get the budget, then it’s simply a lump
sum, and they do not, we hope they don’t, meddle in how we spend it. And
it has, at the time that I was there, full-time employees of about 140 and a
budget of somewhere between $20-22 million.
Ms. Flanagan: And you started there in 1999, is that correct?
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Complex Litigation is a Federal Judicial Center publication. The Reference
Manual on Scientific Evidence is a Federal Judicial Center publication.
There’s a large research staff that does empirical research for various
committees of the Judicial Conference. And so that’s basically what it is.
Ms. Flanagan:
Judge Smith:
Who does the agency report to? What’s the line structure?
Well, there is, as I say, a board of directors, which is chaired by the Chief
Justice, and then statutorily the rest of the board is made up by, I think it’s
three Court of Appeals, maybe it’s two Court of Appeals judges, three
District Court judges and a magistrate judge. The director of the
Administrative Office of the Courts is a permanent, whatever you call it
when somebody is a member from the office.
Ms. Flanagan: Oh, ex officio.
Judge Smith: Ex officio, right, member, and that may be it. I think there is more. I
thought there were eleven people on the board.
Ms. Flanagan: And then you get the budget separately from Congress?
Judge Smith: From Congress, yes. But once we get the budget, then it’s simply a lump
sum, and they do not, we hope they don’t, meddle in how we spend it. And
it has, at the time that I was there, full-time employees of about 140 and a
budget of somewhere between $20-22 million.
Ms. Flanagan: And you started there in 1999, is that correct?
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Judge Smith: Yes.
Ms. Flanagan: And you stayed there through 2003?
Judge Smith: I started in July of 1999, and I left, I don’t remember if it was the end of
May or the end of June 2003. So I did stay for the four years. They were
very kind and asked me to stay and extend my service, but…
Ms. Flanagan: Well, that’s the best evaluation of your work that you can get.
Judge Smith: I thought so.
Ms. Flanagan: And how did you spend your time during those four years?
Judge Smith: I traveled a great deal. I probably traveled 50% of the time. I attended all
of, or as many as I could fit in my schedule, the Circuit conferences. You
know, there are eleven circuits plus the Federal Circuit, no, eleven plus the
District of Columbia and the Federal Circuit, and most of them have, at that
time, had judicial conferences every year. Now a lot of them have them
every other year, but I would go to as many of those as I could. I attended
various seminars that the FJC sponsored to keep, just sort of monitor how I
thought they were going and talk to people and get feedback. I did a fair
amount of international traveling while I was there, rule of law work…
Ms. Flanagan: And how does your board of directors allocate money to that function? You
know, traveling abroad to…
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Judge Smith: Yes.
Ms. Flanagan: And you stayed there through 2003?
Judge Smith: I started in July of 1999, and I left, I don’t remember if it was the end of
May or the end of June 2003. So I did stay for the four years. They were
very kind and asked me to stay and extend my service, but…
Ms. Flanagan: Well, that’s the best evaluation of your work that you can get.
Judge Smith: I thought so.
Ms. Flanagan: And how did you spend your time during those four years?
Judge Smith: I traveled a great deal. I probably traveled 50% of the time. I attended all
of, or as many as I could fit in my schedule, the Circuit conferences. You
know, there are eleven circuits plus the Federal Circuit, no, eleven plus the
District of Columbia and the Federal Circuit, and most of them have, at that
time, had judicial conferences every year. Now a lot of them have them
every other year, but I would go to as many of those as I could. I attended
various seminars that the FJC sponsored to keep, just sort of monitor how I
thought they were going and talk to people and get feedback. I did a fair
amount of international traveling while I was there, rule of law work…
Ms. Flanagan: And how does your board of directors allocate money to that function? You
know, traveling abroad to…
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Judge Smith: They really don’t. They leave it pretty much in the FJC hands And, well,
the traveling abroad I basically was always, I think, always paid for by
whomever invited me or some outside group. We did not pay for, I mean, I
tried to be very careful of FJC funds.
Ms. Flanagan: And you’d be there to consult on rule of law issues…
Judge Smith: Right, right. I took several trips with members of the Supreme Court. I
went to, actually Justice O’Connor and I were on a plane on our way to
India on 9/11. And I went to China with Justice O’Connor. I went to
Mexico with the Chief Justice and Justice Breyer. I went to Bahrain and
Jordan with Justice O’Connor. So I had some wonderful experiences.
Ms. Flanagan: So, each of these trips that you’ve mentioned, you were with one of the
Justices. Was that…
Judge Smith: The international trips, although I did other international trips that did not
involve them, both through — I did some under the auspices of the State
Department, and I did some under NGOs, some of whom I had worked for,
mostly, I guess primarily those I had worked for before. And then, in
addition to the traveling and things, we put out a new edition of the MCL,
the Manual on Complex Litigation, while I was there. I had, I tried to stay
involved with that, with getting what I thought were the best people or
hoping to get the people I thought were the best to review the chapters and
contribute chapters and then doing some of the editing and the organizing.
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Judge Smith: They really don’t. They leave it pretty much in the FJC hands And, well,
the traveling abroad I basically was always, I think, always paid for by
whomever invited me or some outside group. We did not pay for, I mean, I
tried to be very careful of FJC funds.
Ms. Flanagan: And you’d be there to consult on rule of law issues…
Judge Smith: Right, right. I took several trips with members of the Supreme Court. I
went to, actually Justice O’Connor and I were on a plane on our way to
India on 9/11. And I went to China with Justice O’Connor. I went to
Mexico with the Chief Justice and Justice Breyer. I went to Bahrain and
Jordan with Justice O’Connor. So I had some wonderful experiences.
Ms. Flanagan: So, each of these trips that you’ve mentioned, you were with one of the
Justices. Was that…
Judge Smith: The international trips, although I did other international trips that did not
involve them, both through — I did some under the auspices of the State
Department, and I did some under NGOs, some of whom I had worked for,
mostly, I guess primarily those I had worked for before. And then, in
addition to the traveling and things, we put out a new edition of the MCL,
the Manual on Complex Litigation, while I was there. I had, I tried to stay
involved with that, with getting what I thought were the best people or
hoping to get the people I thought were the best to review the chapters and
contribute chapters and then doing some of the editing and the organizing.
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Ms. Flanagan: Does the Federal Judicial Center have any authority…
Judge Smith: No.
Ms. Flanagan: … over the judges in any way?
Judge Smith: No, they have no autority over anybody.
Ms. Flanagan: So it’s a resource for training, persuasion…
Judge Smith: It’s a resource, yes.
Ms. Flanagan: … of how to do things better?
Judge Smith: Yes, exactly.
Ms. Flanagan: But no authority?
Judge Smith: No authority over anybody or anything
Ms. Flanagan: And you mentioned the travel with some of the Justices. What was your
relationship with the Justices of the Court? I mean, how did you — being
back there as the Director of the Federal Judicial Center — did you get to
meet them all one on one?
Judge Smith: I got to meet some of them. Some of them I knew slightly but got to know
much better. Justice O’Connor called shortly after I got there and informed
me that she had an exercise class at the Supreme Court three times a week
and that she wanted me there and that it was an important part of staying
healthy was to exercise. And the Federal Judicial Center was very close to
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Ms. Flanagan: Does the Federal Judicial Center have any authority…
Judge Smith: No.
Ms. Flanagan: … over the judges in any way?
Judge Smith: No, they have no autority over anybody.
Ms. Flanagan: So it’s a resource for training, persuasion…
Judge Smith: It’s a resource, yes.
Ms. Flanagan: … of how to do things better?
Judge Smith: Yes, exactly.
Ms. Flanagan: But no authority?
Judge Smith: No authority over anybody or anything
Ms. Flanagan: And you mentioned the travel with some of the Justices. What was your
relationship with the Justices of the Court? I mean, how did you — being
back there as the Director of the Federal Judicial Center — did you get to
meet them all one on one?
Judge Smith: I got to meet some of them. Some of them I knew slightly but got to know
much better. Justice O’Connor called shortly after I got there and informed
me that she had an exercise class at the Supreme Court three times a week
and that she wanted me there and that it was an important part of staying
healthy was to exercise. And the Federal Judicial Center was very close to
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the Supreme Court. It’s in the Thurgood Marshall Building, which is just
about five or six blocks from the Supreme Court, so I had very little excuse.
So I got to know her more personally that way, and then these trips, of
course, were a big help. And I knew, I had met Justice Breyer very casually
because, of course, his brother was a colleague of mine. But then he was on
the India trip, and then we had the Mexico trip, so I got to know him a little
better. I got to know Justice Ginsberg because — Well, I had met her a
couple of times at Ninth Circuit conferences, but it turned out that I bought a
co-op in the same building that she lived in, and she was very gracious in
making me feel welcome. And so I got to know her. Then there were
various dinners of sorts, official dinners. And I got to know Justice Souter a
little bit. I had the great pleasure of sitting next to him at a couple of dinners
and found him to be a most engaging and thoughtful person, and that was a
treat.
Ms. Flanagan: Any surprises, you know, from working closely with Justices of the
Supreme Court, which most of us ordinary folk don’t get to do?
Judge Smith: I don’t know about surprises. I mean, I felt incredibly lucky, you know, to
have this opportunity. They’re all, or the ones that I’ve mentioned, they’re
just incredibly bright. They work very, very hard. One of the fringe
benefits that I got by being back there and by getting to know a couple of
them was that I could almost always get a seat in the Supreme Court for
argument, and both Justice O’Connor and Justice Ginsberg were very
generous with their family box. And so I got to hear a lot of very major
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the Supreme Court. It’s in the Thurgood Marshall Building, which is just
about five or six blocks from the Supreme Court, so I had very little excuse.
So I got to know her more personally that way, and then these trips, of
course, were a big help. And I knew, I had met Justice Breyer very casually
because, of course, his brother was a colleague of mine. But then he was on
the India trip, and then we had the Mexico trip, so I got to know him a little
better. I got to know Justice Ginsberg because — Well, I had met her a
couple of times at Ninth Circuit conferences, but it turned out that I bought a
co-op in the same building that she lived in, and she was very gracious in
making me feel welcome. And so I got to know her. Then there were
various dinners of sorts, official dinners. And I got to know Justice Souter a
little bit. I had the great pleasure of sitting next to him at a couple of dinners
and found him to be a most engaging and thoughtful person, and that was a
treat.
Ms. Flanagan: Any surprises, you know, from working closely with Justices of the
Supreme Court, which most of us ordinary folk don’t get to do?
Judge Smith: I don’t know about surprises. I mean, I felt incredibly lucky, you know, to
have this opportunity. They’re all, or the ones that I’ve mentioned, they’re
just incredibly bright. They work very, very hard. One of the fringe
benefits that I got by being back there and by getting to know a couple of
them was that I could almost always get a seat in the Supreme Court for
argument, and both Justice O’Connor and Justice Ginsberg were very
generous with their family box. And so I got to hear a lot of very major
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cases. I was there for both of the Bush v. Gore arguments. I was there for
the Three Strikes argument, the California Three Strikes argument. And I
was there for the argument on punitive damages, the State Farm, with Sheila
Birnbaum on one side and Larry Tribe on the other. I was there the first
time Clarence Thomas spoke out loud from the Bench, which had to do with
a burning cross argument. So that was very exciting. I had never been to
the Supreme Court before I moved back there. And it’s, it makes one proud,
I think, whether one is happy with a particular result or not. I think it’s, I
found it an incredibly inspiring place to be and felt very fortunate. The
whole four years was almost worth it for that alone.
Ms. Flanagan: Well, it’s great that you took advantage of being there to see it in action and
hear the great advocates.
Judge Smith: Yes, I did.
Ms. Flanagan: Were you surprised at the quality of the advocacy in any way?
Judge Smith: I think I wasn’t surprised so much that there were really, really good
advocates. I was occasionally surprised at a really poor advocate. So, you
know, it was mixed, but every once in a while you heard something that was
really just, you thought, “Oh, that’s what a real lawyer sounds like.”
Ms. Flanagan: Now you mentioned being on a trip to India when 9/11 struck the country.
Judge Smith: Yes. –
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cases. I was there for both of the Bush v. Gore arguments. I was there for
the Three Strikes argument, the California Three Strikes argument. And I
was there for the argument on punitive damages, the State Farm, with Sheila
Birnbaum on one side and Larry Tribe on the other. I was there the first
time Clarence Thomas spoke out loud from the Bench, which had to do with
a burning cross argument. So that was very exciting. I had never been to
the Supreme Court before I moved back there. And it’s, it makes one proud,
I think, whether one is happy with a particular result or not. I think it’s, I
found it an incredibly inspiring place to be and felt very fortunate. The
whole four years was almost worth it for that alone.
Ms. Flanagan: Well, it’s great that you took advantage of being there to see it in action and
hear the great advocates.
Judge Smith: Yes, I did.
Ms. Flanagan: Were you surprised at the quality of the advocacy in any way?
Judge Smith: I think I wasn’t surprised so much that there were really, really good
advocates. I was occasionally surprised at a really poor advocate. So, you
know, it was mixed, but every once in a while you heard something that was
really just, you thought, “Oh, that’s what a real lawyer sounds like.”
Ms. Flanagan: Now you mentioned being on a trip to India when 9/11 struck the country.
Judge Smith: Yes. –
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Ms. Flanagan: What was the immediate impact of that on your trip? I mean, when you
folks arrived in India, what was the…
Judge Smith: Well, as you can imagine, it was quite dramatic. Justice O’Connor and I
were flying from Washington. And Justice Breyer and his wife were
coming, I believe, from London. They were coming from some place out of
the United States. I think it was London. The other people who were
coming were Cliff Wallace, former Chief Judge of the Ninth Circuit, and his
wife. And they were coming from Pakistan. And so, when Justice
O’Connor and I landed, it was about midnight of September 11 in India, and
we didn’t know anything about it. We had flown over on United, but
nobody had said anything It was a non-stop flight from Frankfurt. So we
left before it happened. And they, there was somebody at the Embassy,
there would have been someone at the Embassy anyway to meet Justice
O’Connor. The original plan was that Justice O’Connor and the Breyers
were going to stay with the Ambassador, who was new Ambassador
Blackwell, because the Breyers knew his wife, or there was some
connection. And I was going to stay in the same hotel with the Wallaces,
but when we landed, the Embassy person said that, first, we were all going
straight to the Ambassador’s house, which we did. And then Justice
O’Connor, who, as you know, I’m incredibly fond of her, but she did not
want me to be alone in a hotel room that night, and so she prevailed on the
Ambassador and his wife to have me stay there, as well, which was very
nice. So, we all, the Wallaces weren’t there but the Breyers were there and
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Ms. Flanagan: What was the immediate impact of that on your trip? I mean, when you
folks arrived in India, what was the…
Judge Smith: Well, as you can imagine, it was quite dramatic. Justice O’Connor and I
were flying from Washington. And Justice Breyer and his wife were
coming, I believe, from London. They were coming from some place out of
the United States. I think it was London. The other people who were
coming were Cliff Wallace, former Chief Judge of the Ninth Circuit, and his
wife. And they were coming from Pakistan. And so, when Justice
O’Connor and I landed, it was about midnight of September 11 in India, and
we didn’t know anything about it. We had flown over on United, but
nobody had said anything It was a non-stop flight from Frankfurt. So we
left before it happened. And they, there was somebody at the Embassy,
there would have been someone at the Embassy anyway to meet Justice
O’Connor. The original plan was that Justice O’Connor and the Breyers
were going to stay with the Ambassador, who was new Ambassador
Blackwell, because the Breyers knew his wife, or there was some
connection. And I was going to stay in the same hotel with the Wallaces,
but when we landed, the Embassy person said that, first, we were all going
straight to the Ambassador’s house, which we did. And then Justice
O’Connor, who, as you know, I’m incredibly fond of her, but she did not
want me to be alone in a hotel room that night, and so she prevailed on the
Ambassador and his wife to have me stay there, as well, which was very
nice. So, we all, the Wallaces weren’t there but the Breyers were there and
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Justice O’Connor and I and, you know, just a lot of conversation. And I
remember sitting up almost all night in one of the small studies upstairs, we
could get CNN, and just watching those film clips over and over and over
again. One of the issues, of course, was did we stay or did we go. And this
was, I believe, the third time that this trip had been planned. The first time it
had been planned, Justice Scalia was going, rather than Justice O’Connor. I
wasn’t involved. And he, for reasons of his own, canceled the trip. I think
the Supreme Court of India tends to be, they change their minds a lot about
things, and they kept changing their plans, and finally he lost patience and
just canceled the trip. And then there was another trip scheduled involving
Justice O’Connor and Justice Breyer and me. And I went over, I was
invited by the State Department to go over a week earlier and do some case
management training or conversations with some of the lower courts. So I
got over there and then, I guess it was the first Bush v. Gore case came up
and the Justices couldn’t leave. So I was over there already. But anyway,
they wired and said that we just can’t make it so that got canceled again. So
this was the third time, and Justice O’Connor said, “We’re staying. We’ll
cut it short a little, and we’d like to cut out the receptions and the social
activities, but we’ll go forward with the purpose of the meeting,” which was
primarily to meet with the Indian Supreme Court but also to go out to a town
called Ahmedabad, I think it was, to see a community mediation program
that had been set up that Justice O’Connor and Justice Breyer had helped
encourage and things And, of course, we couldn’t have gone home anyway
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Justice O’Connor and I and, you know, just a lot of conversation. And I
remember sitting up almost all night in one of the small studies upstairs, we
could get CNN, and just watching those film clips over and over and over
again. One of the issues, of course, was did we stay or did we go. And this
was, I believe, the third time that this trip had been planned. The first time it
had been planned, Justice Scalia was going, rather than Justice O’Connor. I
wasn’t involved. And he, for reasons of his own, canceled the trip. I think
the Supreme Court of India tends to be, they change their minds a lot about
things, and they kept changing their plans, and finally he lost patience and
just canceled the trip. And then there was another trip scheduled involving
Justice O’Connor and Justice Breyer and me. And I went over, I was
invited by the State Department to go over a week earlier and do some case
management training or conversations with some of the lower courts. So I
got over there and then, I guess it was the first Bush v. Gore case came up
and the Justices couldn’t leave. So I was over there already. But anyway,
they wired and said that we just can’t make it so that got canceled again. So
this was the third time, and Justice O’Connor said, “We’re staying. We’ll
cut it short a little, and we’d like to cut out the receptions and the social
activities, but we’ll go forward with the purpose of the meeting,” which was
primarily to meet with the Indian Supreme Court but also to go out to a town
called Ahmedabad, I think it was, to see a community mediation program
that had been set up that Justice O’Connor and Justice Breyer had helped
encourage and things And, of course, we couldn’t have gone home anyway
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because there weren’t any flights. So, unless the government had sent a
military plane or something, there was actually no way we could get home.
So, we did stay, and the Indian Supreme Court was incredibly gracious
about the whole thing, and helped us rearrange the trip and shorten it so that
– In fact, they met with us on a Saturday. I think 9/11 was on a Tuesday,
and they wound up meeting with us on a Saturday to help us get everything
done. And then the Prime Minister of India loaned us his private plane to
fly to Ahmedabad because it’s rural and there was no way we could have
gotten – Going by car would have meant we’d have to stay overnight, and
we didn’t have time and things. So, he loaned us the plane, which was very
gracious. So, we squeezed all this stuff in, and there were lots of briefings
and things going on at the Ambassador’s house, most of which I was not
included in, which I understood, you know, very well. The Justices had top
secret clearance. But other than that…
Ms. Flanagan: What did it feel like to be out of the country at the time watching?
Judge Smith: It was very disconcerting, very disconcerting. I mean, I didn’t know, in
particular, of anybody that was close to me that had been involved. But,
still, it’s just, you want to be home when something like that happens.
Ms. Flanagan: How did the Indians react?
Judge Smith: They were very sympathetic and very, very gracious. I think, you know, in
-those early days-after 9/11, that was while we stilt had some friends
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because there weren’t any flights. So, unless the government had sent a
military plane or something, there was actually no way we could get home.
So, we did stay, and the Indian Supreme Court was incredibly gracious
about the whole thing, and helped us rearrange the trip and shorten it so that
– In fact, they met with us on a Saturday. I think 9/11 was on a Tuesday,
and they wound up meeting with us on a Saturday to help us get everything
done. And then the Prime Minister of India loaned us his private plane to
fly to Ahmedabad because it’s rural and there was no way we could have
gotten – Going by car would have meant we’d have to stay overnight, and
we didn’t have time and things. So, he loaned us the plane, which was very
gracious. So, we squeezed all this stuff in, and there were lots of briefings
and things going on at the Ambassador’s house, most of which I was not
included in, which I understood, you know, very well. The Justices had top
secret clearance. But other than that…
Ms. Flanagan: What did it feel like to be out of the country at the time watching?
Judge Smith: It was very disconcerting, very disconcerting. I mean, I didn’t know, in
particular, of anybody that was close to me that had been involved. But,
still, it’s just, you want to be home when something like that happens.
Ms. Flanagan: How did the Indians react?
Judge Smith: They were very sympathetic and very, very gracious. I think, you know, in
-those early days-after 9/11, that was while we stilt had some friends
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overseas, and so people were, as I say, really very, very gracious and
helpful.
[Telephone interruption]
Ms. Flanagan: So we were just talking about 9/11.
Judge Smith: Oh right.
Ms. Flanagan: And your being in India and how the Indians reacted to that.
Judge Smith: They were great, and fortunately it was nice being at the Ambassador’s
house, number one, you know, there were lots of people to take care of us,
but also because he had a fax and because he’d get all these briefings, we
really knew exactly what was going on. Whereas if I had been in a hotel or
some other place without that information it would have been even worse.
Ms. Flanagan:
Judge Smith:
And how did you get home?
We got home actually on the following — The Sunday I think it was after
9/11 on the first, I think it was the first flights out. Justice O’Connor had
been inquiring you know as to whether there in fact would be some
government planes or army or military aircraft flying. At one point, I guess
somebody calls and says there was a C-130 that might be available, and I
knew enough about aircrafts, not much, but enough about aircrafts to know
that if there was one thing we did not want to do it was fly home from India
in a C-130. And so I told her I didn’t think she wanted to encourage that
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overseas, and so people were, as I say, really very, very gracious and
helpful.
[Telephone interruption]
Ms. Flanagan: So we were just talking about 9/11.
Judge Smith: Oh right.
Ms. Flanagan: And your being in India and how the Indians reacted to that.
Judge Smith: They were great, and fortunately it was nice being at the Ambassador’s
house, number one, you know, there were lots of people to take care of us,
but also because he had a fax and because he’d get all these briefings, we
really knew exactly what was going on. Whereas if I had been in a hotel or
some other place without that information it would have been even worse.
Ms. Flanagan:
Judge Smith:
And how did you get home?
We got home actually on the following — The Sunday I think it was after
9/11 on the first, I think it was the first flights out. Justice O’Connor had
been inquiring you know as to whether there in fact would be some
government planes or army or military aircraft flying. At one point, I guess
somebody calls and says there was a C-130 that might be available, and I
knew enough about aircrafts, not much, but enough about aircrafts to know
that if there was one thing we did not want to do it was fly home from India
in a C-130. And so I told her I didn’t think she wanted to encourage that
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whole possibility. So anyway we came back, as I say, the following, I think
it was the following Sunday.
Ms. Flanagan: And have you in your role at the Federal Judicial Center and then back on
the Bench, have you seen a change in the legal system as a result of 9/11?
Judge Smith: Well not, not in the legal system. Certainly we’ve seen some new laws and
rules that have been tested and have gotten mixed reactions, but I don’t
think, I think that’s a response from the legal system. I don’t know that it’s
a change in the legal system.
Ms. Flanagan: Have you seen any, what you would think of as a difference in how juries
might react to certain types of cases or the government might react to certain
types of cases?
Judge Smith: I think the government, depending in particular about where you are,
certainly has taken a more hard-line approach to a lot of cases. I, of course,
wasn’t on the Bench from 2001 until late, until late in 2003, and San
Francisco, I think, I don’t remember the cases being much affected. We
didn’t really have any of the 9/11 related cases. We didn’t have Hamdi or
Padilla or in particular anything like that.
Ms. Flanagan: Do you think an event like 9/11, just as an example, would make judges
more inclined toward search warrants and what not, having so in your face
the consequences of an act like that?
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whole possibility. So anyway we came back, as I say, the following, I think
it was the following Sunday.
Ms. Flanagan: And have you in your role at the Federal Judicial Center and then back on
the Bench, have you seen a change in the legal system as a result of 9/11?
Judge Smith: Well not, not in the legal system. Certainly we’ve seen some new laws and
rules that have been tested and have gotten mixed reactions, but I don’t
think, I think that’s a response from the legal system. I don’t know that it’s
a change in the legal system.
Ms. Flanagan: Have you seen any, what you would think of as a difference in how juries
might react to certain types of cases or the government might react to certain
types of cases?
Judge Smith: I think the government, depending in particular about where you are,
certainly has taken a more hard-line approach to a lot of cases. I, of course,
wasn’t on the Bench from 2001 until late, until late in 2003, and San
Francisco, I think, I don’t remember the cases being much affected. We
didn’t really have any of the 9/11 related cases. We didn’t have Hamdi or
Padilla or in particular anything like that.
Ms. Flanagan: Do you think an event like 9/11, just as an example, would make judges
more inclined toward search warrants and what not, having so in your face
the consequences of an act like that?
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Judge Smith: I think there’s probably some effect, in part because I think there’s probably
on the part of a lot of judges a willingness to attribute good cause to
whatever it is the government’s doing more than they might have. On the
other hand, I think if one looks at the way the cases have come down, it’s
also true that, as in, you know, whether its World War II or whatever, the
Courts are often the people who stop it from going too far, which I think is
really important. And I think judges generally take that very seriously so
that, while they may be willing to let the government push the envelope a
little further than they might, or understand that there are some, some
circumstances that need to be looked at and stretched, that at some point you
just go, sorry that just doesn’t work here.
Ms. Flanagan: And then generally when you were traveling abroad you were meeting with
representatives of the court systems?
Judge Smith: Yes
Ms. Flanagan: And discussing kind of case management issues …
Judge Smith: Right, yes.
Ms. Flanagan: . . . and systems?
Judge Smith: Or lawyers, members of the bar associations, but almost always with people
associated in some way with the legal judicial systems.
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Judge Smith: I think there’s probably some effect, in part because I think there’s probably
on the part of a lot of judges a willingness to attribute good cause to
whatever it is the government’s doing more than they might have. On the
other hand, I think if one looks at the way the cases have come down, it’s
also true that, as in, you know, whether its World War II or whatever, the
Courts are often the people who stop it from going too far, which I think is
really important. And I think judges generally take that very seriously so
that, while they may be willing to let the government push the envelope a
little further than they might, or understand that there are some, some
circumstances that need to be looked at and stretched, that at some point you
just go, sorry that just doesn’t work here.
Ms. Flanagan: And then generally when you were traveling abroad you were meeting with
representatives of the court systems?
Judge Smith: Yes
Ms. Flanagan: And discussing kind of case management issues …
Judge Smith: Right, yes.
Ms. Flanagan: . . . and systems?
Judge Smith: Or lawyers, members of the bar associations, but almost always with people
associated in some way with the legal judicial systems.
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Ms. Flanagan: And then, did the Federal Judicial Center devote time and resources to
exploring new technologies for the court rooms in the United States?
Judge Smith: Yes, they did a lot of research and wrote various articles and worked with,
there were judicial conference committees and the AO of course did a lot of
that work as well. While we had the primary responsibility for educating
judges, the AO really has the primary responsibility for building court
rooms and space and facilities, so there was always a certain amount of
tension, but I think one of the things that I was proud of, that I think I was
able to do, was mitigate a lot of the tension and help the two agencies work
together on a lot of these issues.
Ms. Flanagan: And what was the rationale for having two separate agencies with such
significant overlap?
Judge Smith:
many years and thought it should have been a division of the AO, and so
Well of course the AO you know had been there forever basically, and there
really wasn’t a lot of overlap because the FJC’s jurisdiction is so much
narrower than the AO’s. But I think there was a feeling on the part of some
people that judicial education and these more esoteric issues were just not
being taken care of in that the AO, because they had so many nuts and bolts
to worry about, tended to put this stuff as “that’s ruffles and frills” kind of
approach. And I will say that as I understand it, and I think it’s pretty true,
he’s never denied it, it’s that Ralph Meecham, who was the head of the AO
for many, many, many years, had strong objections to the FJC for many,
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Ms. Flanagan: And then, did the Federal Judicial Center devote time and resources to
exploring new technologies for the court rooms in the United States?
Judge Smith: Yes, they did a lot of research and wrote various articles and worked with,
there were judicial conference committees and the AO of course did a lot of
that work as well. While we had the primary responsibility for educating
judges, the AO really has the primary responsibility for building court
rooms and space and facilities, so there was always a certain amount of
tension, but I think one of the things that I was proud of, that I think I was
able to do, was mitigate a lot of the tension and help the two agencies work
together on a lot of these issues.
Ms. Flanagan: And what was the rationale for having two separate agencies with such
significant overlap?
Judge Smith:
many years and thought it should have been a division of the AO, and so
Well of course the AO you know had been there forever basically, and there
really wasn’t a lot of overlap because the FJC’s jurisdiction is so much
narrower than the AO’s. But I think there was a feeling on the part of some
people that judicial education and these more esoteric issues were just not
being taken care of in that the AO, because they had so many nuts and bolts
to worry about, tended to put this stuff as “that’s ruffles and frills” kind of
approach. And I will say that as I understand it, and I think it’s pretty true,
he’s never denied it, it’s that Ralph Meecham, who was the head of the AO
for many, many, many years, had strong objections to the FJC for many,
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there was a lot of tension. I don’t think it’s any secret that he and Bill
Schwarzer when Judge Schwarzer was the director went at it hammer and
tongs and things got pretty strained between the two groups. But of course,
I mean, we were dwarfed in size and power. But I think it’s much better
now.
Ms. Flanagan: And when was the Federal Judicial Center set up?
Judge Smith: 1967.
Ms. Flanagan: When you would attend the Circuit conferences that you mentioned, were
you there to take information in? Were you there to make presentations?
What was your role?
Judge Smith: Both. I mean essentially I would be invited to come give the state of the
Federal Judicial Center address, which was always pretty short. But I was,
my view was that, more important for the Center was for me to take in
information. And so I would try to talk to the judges about what they felt
about their needs, their educational needs, were we meeting them? What
did they think, you know, what would they like to know more about? What
did they think were the cases coming down the pipeline that maybe we
weren’t addressing properly? That kind of thing.
Ms. Flanagan: And how do you, you know — Lawyers are always trying to identify the next
wave of cases for business development purposes.
Judge Smith: Right.
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there was a lot of tension. I don’t think it’s any secret that he and Bill
Schwarzer when Judge Schwarzer was the director went at it hammer and
tongs and things got pretty strained between the two groups. But of course,
I mean, we were dwarfed in size and power. But I think it’s much better
now.
Ms. Flanagan: And when was the Federal Judicial Center set up?
Judge Smith: 1967.
Ms. Flanagan: When you would attend the Circuit conferences that you mentioned, were
you there to take information in? Were you there to make presentations?
What was your role?
Judge Smith: Both. I mean essentially I would be invited to come give the state of the
Federal Judicial Center address, which was always pretty short. But I was,
my view was that, more important for the Center was for me to take in
information. And so I would try to talk to the judges about what they felt
about their needs, their educational needs, were we meeting them? What
did they think, you know, what would they like to know more about? What
did they think were the cases coming down the pipeline that maybe we
weren’t addressing properly? That kind of thing.
Ms. Flanagan: And how do you, you know — Lawyers are always trying to identify the next
wave of cases for business development purposes.
Judge Smith: Right.
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Ms. Flanagan: How does the Federal Judicial Center prepare the judges to handle the next
wave of cases in terms of expertise?
Judge Smith: Well, I think usually we give CLE programs and would invite not only
judges who at least had some experience but also outside people. It was, I
think, considered by a lot of people to be a pretty good gig to basically be
able to address a room full of Federal judges. And so, we would use
academics, a lot of law professors, a lot of practicing attorneys. We didn’t
pay people. We didn’t have the money to do that, but they seemed to be
quite willing to come. We’d get them to write articles often, monographs or
something, and we had a growing, we had a closed-circuit television
channel, and so we would put on video programs and sometimes live
programs.
Ms. Flanagan: Now, from the vantage point of the Federal Judicial Center you were able to
look at all the different Circuits and Districts.
Judge Smith: Right.
Ms. Flanagan: How does the Northern District, with which you are most intimately
connected, compare to the others?
Judge Smith: Well I think it’s right at the top of the heap. And I mean, I understand that
I’m biased, but I also, just in listening to people, I think the Northern
District had a very good reputation, as did the Southern District of New
York. In part, it’s because, it’s a reflection in great part of the judges, but
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Ms. Flanagan: How does the Federal Judicial Center prepare the judges to handle the next
wave of cases in terms of expertise?
Judge Smith: Well, I think usually we give CLE programs and would invite not only
judges who at least had some experience but also outside people. It was, I
think, considered by a lot of people to be a pretty good gig to basically be
able to address a room full of Federal judges. And so, we would use
academics, a lot of law professors, a lot of practicing attorneys. We didn’t
pay people. We didn’t have the money to do that, but they seemed to be
quite willing to come. We’d get them to write articles often, monographs or
something, and we had a growing, we had a closed-circuit television
channel, and so we would put on video programs and sometimes live
programs.
Ms. Flanagan: Now, from the vantage point of the Federal Judicial Center you were able to
look at all the different Circuits and Districts.
Judge Smith: Right.
Ms. Flanagan: How does the Northern District, with which you are most intimately
connected, compare to the others?
Judge Smith: Well I think it’s right at the top of the heap. And I mean, I understand that
I’m biased, but I also, just in listening to people, I think the Northern
District had a very good reputation, as did the Southern District of New
York. In part, it’s because, it’s a reflection in great part of the judges, but
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also of the caseload that’s out here because in a sense we were a microcosm
of what was coming down the pike. And, so I think the Northern District
was very well regarded, and that was the impression that I got. The Ninth
Circuit however was a different story.
Ms. Flanagan: And do you think that the, do you think that the Ninth Circuit has actually
earned its reputation, or, kind of, once you have a reputation it’s hard to
shake it no matter what you do?
Judge Smith: Well I think they did earn it, frankly. Whether it’s still hanging on
justifiably or not, you know, is sort of like the reverse of a halo effect.
Because it has gotten, I think, less liberal. There are more moderate, I think
certainly since Bush has been President, more conservative judges and a lot
of the really, really liberal judges have taken senior status and things. But I
do think it was earned, and I think they’re proud of it. The judges who
earned it are proud of the fact that they earned it but, and when I say, you
know, when I talk about their reputation, without saying good, bad or
indifferent, what it was I think primarily was of a Court that was really out
of step with the rest of the country generally speaking.
Ms. Flanagan: And did that impact, I mean in the Federal Judicial Center and your being in
DC, did that impact the credibility that would be given to a Ninth Circuit
opinion, for example?
.h.Age Smith: Oh yeah, absolutOy. I mean people just would make jokes out of it, you
know it always got a laugh to say, “Well, you know, the Ninth Circuit ruled
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also of the caseload that’s out here because in a sense we were a microcosm
of what was coming down the pike. And, so I think the Northern District
was very well regarded, and that was the impression that I got. The Ninth
Circuit however was a different story.
Ms. Flanagan: And do you think that the, do you think that the Ninth Circuit has actually
earned its reputation, or, kind of, once you have a reputation it’s hard to
shake it no matter what you do?
Judge Smith: Well I think they did earn it, frankly. Whether it’s still hanging on
justifiably or not, you know, is sort of like the reverse of a halo effect.
Because it has gotten, I think, less liberal. There are more moderate, I think
certainly since Bush has been President, more conservative judges and a lot
of the really, really liberal judges have taken senior status and things. But I
do think it was earned, and I think they’re proud of it. The judges who
earned it are proud of the fact that they earned it but, and when I say, you
know, when I talk about their reputation, without saying good, bad or
indifferent, what it was I think primarily was of a Court that was really out
of step with the rest of the country generally speaking.
Ms. Flanagan: And did that impact, I mean in the Federal Judicial Center and your being in
DC, did that impact the credibility that would be given to a Ninth Circuit
opinion, for example?
.h.Age Smith: Oh yeah, absolutOy. I mean people just would make jokes out of it, you
know it always got a laugh to say, “Well, you know, the Ninth Circuit ruled
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so and so, but we still think it’s right.” You know, that kind of thing. So I
think across the board opinions by the Ninth Circuit are often given short
shrift.
Ms. Flanagan: And then going back to the Ninth Circuit, excuse me, the Northern District,
were there innovative case management or courtroom programs in the
Northern District that you didn’t see elsewhere?
Judge Smith: Absolutely, I mean we started to see them but, and this goes back to Judge
Peckham and Magistrate Judge Brazil. You know they were really one of
the first courts in the country to start an ADR program, early neutral
evaluation, nonbinding arbitration, major judicial settlements. And they’re
given great credit for that around the country. I think that’s one of the
reasons they are considered a leader among the District Courts, is that
they’re known for that, and I think respected for it.
Ms. Flanagan: And looking at the other Circuits and District Courts, did you see while you
were there programs that you then wanted to introduce at the Northern
District?
Judge Smith: I’m sure I did but I’m trying to remember specifically what they were. One
of the things, and we did introduce it, or it was introduced at the Northern
District eventually, but we didn’t start it, was the idea of having the
magistrate judges on the wheel. That did not start with us, and I thought
that, you know, having them on the wheel at least part of the time or-for part
of the load was important not just to spread the work around but to make
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so and so, but we still think it’s right.” You know, that kind of thing. So I
think across the board opinions by the Ninth Circuit are often given short
shrift.
Ms. Flanagan: And then going back to the Ninth Circuit, excuse me, the Northern District,
were there innovative case management or courtroom programs in the
Northern District that you didn’t see elsewhere?
Judge Smith: Absolutely, I mean we started to see them but, and this goes back to Judge
Peckham and Magistrate Judge Brazil. You know they were really one of
the first courts in the country to start an ADR program, early neutral
evaluation, nonbinding arbitration, major judicial settlements. And they’re
given great credit for that around the country. I think that’s one of the
reasons they are considered a leader among the District Courts, is that
they’re known for that, and I think respected for it.
Ms. Flanagan: And looking at the other Circuits and District Courts, did you see while you
were there programs that you then wanted to introduce at the Northern
District?
Judge Smith: I’m sure I did but I’m trying to remember specifically what they were. One
of the things, and we did introduce it, or it was introduced at the Northern
District eventually, but we didn’t start it, was the idea of having the
magistrate judges on the wheel. That did not start with us, and I thought
that, you know, having them on the wheel at least part of the time or-for part
of the load was important not just to spread the work around but to make
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that job more interesting. It was important I thought for their enjoyment and
excitement. And they — We have a lot of very good magistrate judges, and
we were also seeing or, it seemed to me there was beginning to be more of
a, a little more common place for magistrate judges to be bumped up to the
District Court. And so it seemed to me if that was going to be a trend of any
sort, that the more experience they had in actually trying cases and
managing a whole case, the better off everybody would be. And, of course,
they can’t try felony cases without waivers, which they’ll almost never get,
but other than that.
Ms. Flanagan: On the civil side has it, in the Northern District, been considered a success,
and do the majority of folks who get a magistrate off the wheel consent?
Judge Smith: I don’t know what the data, the empirical data is. I think it depends a lot on
who the magistrate judge is. You know there are some, like in everything
else, all judges are equal but some are more equal than others.
Ms. Flanagan: As in every other walk of life.
Judge Smith: Right, exactly.
Ms. Flanagan: And, you mentioned a couple of times the Judicial Conference and that you
worked on some of their committees. What was the relationship just
structurally between the Federal Judicial Center and the Judicial
Conference?
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that job more interesting. It was important I thought for their enjoyment and
excitement. And they — We have a lot of very good magistrate judges, and
we were also seeing or, it seemed to me there was beginning to be more of
a, a little more common place for magistrate judges to be bumped up to the
District Court. And so it seemed to me if that was going to be a trend of any
sort, that the more experience they had in actually trying cases and
managing a whole case, the better off everybody would be. And, of course,
they can’t try felony cases without waivers, which they’ll almost never get,
but other than that.
Ms. Flanagan: On the civil side has it, in the Northern District, been considered a success,
and do the majority of folks who get a magistrate off the wheel consent?
Judge Smith: I don’t know what the data, the empirical data is. I think it depends a lot on
who the magistrate judge is. You know there are some, like in everything
else, all judges are equal but some are more equal than others.
Ms. Flanagan: As in every other walk of life.
Judge Smith: Right, exactly.
Ms. Flanagan: And, you mentioned a couple of times the Judicial Conference and that you
worked on some of their committees. What was the relationship just
structurally between the Federal Judicial Center and the Judicial
Conference?
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Judge Smith: The relationship was pretty minimal in that the Chief Justice chaired both of
them. And as the Director I was invited to attend the semi-annual Judicial
Conference meetings, and I would give a state of the FJC report to them.
There was very little real interaction. They didn’t tend to vote on, they
didn’t vote on things that we did or didn’t do, and we really had no say in
particular. Our connection was that we would often do work, be asked to do
work on behalf of the Judicial Conference standing committees, but that was
separate and apart. So it was a very indirect relationship.
Ms. Flanagan: And then in mid-2003 they asked you to stay on but you said no. Why did
you say no?
Judge Smith: First of all, while I thought the work was interesting, I am not an
administrator or a manager in my core, you know that’s just not, I didn’t
love it passionately, there were too many meetings. I really disliked
Washington intensely. I disliked living there, and if it weren’t for the fact
that I traveled so much, it would have been a very difficult four years. It
was still difficult. And the other reason was that I had promised my
daughter, the one who lives here on the West Coast, in the Bay Area, that I
would only stay for four years and that I would come home again. And I
missed San Francisco, I missed my friends, I wanted to come home.
Ms. Flanagan: Okay. And what was it about DC that you did not like?
Judge Smith: Everything. Well, we’ll start with the things that nobody can-help. fhated
the weather.
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Judge Smith: The relationship was pretty minimal in that the Chief Justice chaired both of
them. And as the Director I was invited to attend the semi-annual Judicial
Conference meetings, and I would give a state of the FJC report to them.
There was very little real interaction. They didn’t tend to vote on, they
didn’t vote on things that we did or didn’t do, and we really had no say in
particular. Our connection was that we would often do work, be asked to do
work on behalf of the Judicial Conference standing committees, but that was
separate and apart. So it was a very indirect relationship.
Ms. Flanagan: And then in mid-2003 they asked you to stay on but you said no. Why did
you say no?
Judge Smith: First of all, while I thought the work was interesting, I am not an
administrator or a manager in my core, you know that’s just not, I didn’t
love it passionately, there were too many meetings. I really disliked
Washington intensely. I disliked living there, and if it weren’t for the fact
that I traveled so much, it would have been a very difficult four years. It
was still difficult. And the other reason was that I had promised my
daughter, the one who lives here on the West Coast, in the Bay Area, that I
would only stay for four years and that I would come home again. And I
missed San Francisco, I missed my friends, I wanted to come home.
Ms. Flanagan: Okay. And what was it about DC that you did not like?
Judge Smith: Everything. Well, we’ll start with the things that nobody can-help. fhated
the weather.
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Ms. Flanagan: You’re talking about the summer weather?
Judge Smith: The summer weather. Yeah. The winters didn’t bother me, I mean we had
a few snow storms but they were manageable. It’s a company town, and the
company is the Federal government. And if you take the company out of it,
it’s a Southern town, and I don’t, the South and I just don’t see eye-to-eye
on a lot of things. It’s very segregated, and I wasn’t used to that. I think in
many ways it’s very provincial. It has the view that it is the center of the
universe, and they’re wrong.
Ms. Flanagan: Did it confirm you in your apparent life-long commitment to not be
political?
Judge Smith: It did, it did, although I probably, I mean — I pay more attention to politics
now, but it certainly didn’t increase my respect for the political process, I
will say that.
Ms. Flanagan: So familiarity bred contempt?
Judge Smith: Well, it confirmed or solidified contempt perhaps.
Ms. Flanagan: So, returning to the Bench, I mean how was that? How was the transition
back to the Bench for you?
Judge Smith: Well it was, maybe anticlimactic. Yes, maybe I built it up too much in my
mind about, I mean it was lovely to be a member of the Northern District
again, and I still do miss that part of it. It’s a wonderful community, and I
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Ms. Flanagan: You’re talking about the summer weather?
Judge Smith: The summer weather. Yeah. The winters didn’t bother me, I mean we had
a few snow storms but they were manageable. It’s a company town, and the
company is the Federal government. And if you take the company out of it,
it’s a Southern town, and I don’t, the South and I just don’t see eye-to-eye
on a lot of things. It’s very segregated, and I wasn’t used to that. I think in
many ways it’s very provincial. It has the view that it is the center of the
universe, and they’re wrong.
Ms. Flanagan: Did it confirm you in your apparent life-long commitment to not be
political?
Judge Smith: It did, it did, although I probably, I mean — I pay more attention to politics
now, but it certainly didn’t increase my respect for the political process, I
will say that.
Ms. Flanagan: So familiarity bred contempt?
Judge Smith: Well, it confirmed or solidified contempt perhaps.
Ms. Flanagan: So, returning to the Bench, I mean how was that? How was the transition
back to the Bench for you?
Judge Smith: Well it was, maybe anticlimactic. Yes, maybe I built it up too much in my
mind about, I mean it was lovely to be a member of the Northern District
again, and I still do miss that part of it. It’s a wonderful community, and I
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have so much respect and affection for my colleagues. So that part was very
nice. But I found that I just didn’t, I didn’t have the – I was out of the habit
of being at the same office five days a week from 8:30 to 6:00 or whatever.
You know at the Center I traveled a lot, and it was a much more free-form
kind of a job. And I didn’t like that part. And again, for some of the same
reasons that I’d gone to Washington in the first place, the cases, there wasn’t
really anything terribly new, and I just wanted more flexibility primarily.
Ms. Flanagan: And you took, when did you take senior status?
Judge Smith: As soon as I came back. I was actually eligible while I was still in
Washington but there wasn’t any point to it, so I just didn’t bother.
Ms. Flanagan: So when you came back to the Northern District, you came back as senior
status?
Judge Smith: As a senior judge, right.
Ms. Flanagan: And in that status, did that impact at all your caseload?
Judge Smith: Oh it impacted my caseload because it gave me the freedom to just take a
portion of a caseload. And so I did take both some civil cases and some
criminal cases—I think I took, I can’t remember if I took two-thirds of a
caseload or what. I also refused to take any more pro se cases. I decided I
earned that right. But, there’s various things, ways you can do it as a senior
judge, and that was what-I chose to do. –
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have so much respect and affection for my colleagues. So that part was very
nice. But I found that I just didn’t, I didn’t have the – I was out of the habit
of being at the same office five days a week from 8:30 to 6:00 or whatever.
You know at the Center I traveled a lot, and it was a much more free-form
kind of a job. And I didn’t like that part. And again, for some of the same
reasons that I’d gone to Washington in the first place, the cases, there wasn’t
really anything terribly new, and I just wanted more flexibility primarily.
Ms. Flanagan: And you took, when did you take senior status?
Judge Smith: As soon as I came back. I was actually eligible while I was still in
Washington but there wasn’t any point to it, so I just didn’t bother.
Ms. Flanagan: So when you came back to the Northern District, you came back as senior
status?
Judge Smith: As a senior judge, right.
Ms. Flanagan: And in that status, did that impact at all your caseload?
Judge Smith: Oh it impacted my caseload because it gave me the freedom to just take a
portion of a caseload. And so I did take both some civil cases and some
criminal cases—I think I took, I can’t remember if I took two-thirds of a
caseload or what. I also refused to take any more pro se cases. I decided I
earned that right. But, there’s various things, ways you can do it as a senior
judge, and that was what-I chose to do. –
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Ms. Flanagan: But that still didn’t give you the flexibility you were after?
Judge Smith: No, because you still, at least I felt I still needed to be there. You can’t say,
I couldn’t say to criminal defendants for example or their counsel, you
know, I’m gonna be gone the month of July, but the holding cell isn’t all
that bad.
Ms. Flanagan: So at some — Well, let me back up and ask one more question. Did you ever
kind of compare notes with Judge Schwarzer?
Judge Smith: No I didn’t, because, you know, Judge Schwarzer was always so good to
me, and was kind of a mentor in many ways, but he’s a very different person
than I am. He adored his time in Washington and had, I mean I think it’s —
Most people believe that had he not promised his wife that they could come
back after five years or whatever it was, that he would have stayed. But he’s
a very academic person, and he loved the research part of the job. And, as I
say, he had a very difficult relationship with Ralph Meacham, but I didn’t,
and so there really wasn’t a whole lot to …
Ms. Flanagan: So it would have been a very different experience?
Judge Smith: Very different experience.
Ms. Flanagan: So, you’re back on the Northern District Bench but looking for more
flexibility — So where do you go from there?
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Ms. Flanagan: But that still didn’t give you the flexibility you were after?
Judge Smith: No, because you still, at least I felt I still needed to be there. You can’t say,
I couldn’t say to criminal defendants for example or their counsel, you
know, I’m gonna be gone the month of July, but the holding cell isn’t all
that bad.
Ms. Flanagan: So at some — Well, let me back up and ask one more question. Did you ever
kind of compare notes with Judge Schwarzer?
Judge Smith: No I didn’t, because, you know, Judge Schwarzer was always so good to
me, and was kind of a mentor in many ways, but he’s a very different person
than I am. He adored his time in Washington and had, I mean I think it’s —
Most people believe that had he not promised his wife that they could come
back after five years or whatever it was, that he would have stayed. But he’s
a very academic person, and he loved the research part of the job. And, as I
say, he had a very difficult relationship with Ralph Meacham, but I didn’t,
and so there really wasn’t a whole lot to …
Ms. Flanagan: So it would have been a very different experience?
Judge Smith: Very different experience.
Ms. Flanagan: So, you’re back on the Northern District Bench but looking for more
flexibility — So where do you go from there?
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Judge Smith: Well, I didn’t know where I was going to go from there, and JAMS
contacted me and said they’d be interested in my coming there. They
actually contacted me right after I got back, and I said well, you know, I
don’t really want to talk to you about it until, as long as I’m on the Bench
and, if and when I leave the Bench, then I’ll get in touch with you. So that’s
what I did.
Ms. Flanagan:
Judge Smith:
And what attracted you to, not so much JAMS per se, but ADR?
Well, I didn’t really know, you know, I’d been involved in the legal judicial
process for so long. I certainly didn’t want to ever go back and practice law
again. I knew that. And so I had a lot of friends at JAMS, and they seemed
to be having a good time at it. I thought well this would be something it
would be fun to try. And it didn’t involve a lot of, I mean I didn’t have to
rent an office, I didn’t have to have capital expenditures, I didn’t have to
sign any long term contract. And I thought, “I’ll try it, and if I don’t like it
I’ll say, you know, thanks but good bye.”
Ms. Flanagan: And when did you start with JAMS?
Judge Smith: Well I officially started I think in October of ’05 — Is that right? Yes,
October of ’05, yes, but things didn’t really start, then the Christmas
holidays came up and things, and so I didn’t really start until kind of the
beginning of ’06.
Ms. Flanagan: What is your philosophy of ADR? What’s your approach?
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Judge Smith: Well, I didn’t know where I was going to go from there, and JAMS
contacted me and said they’d be interested in my coming there. They
actually contacted me right after I got back, and I said well, you know, I
don’t really want to talk to you about it until, as long as I’m on the Bench
and, if and when I leave the Bench, then I’ll get in touch with you. So that’s
what I did.
Ms. Flanagan:
Judge Smith:
And what attracted you to, not so much JAMS per se, but ADR?
Well, I didn’t really know, you know, I’d been involved in the legal judicial
process for so long. I certainly didn’t want to ever go back and practice law
again. I knew that. And so I had a lot of friends at JAMS, and they seemed
to be having a good time at it. I thought well this would be something it
would be fun to try. And it didn’t involve a lot of, I mean I didn’t have to
rent an office, I didn’t have to have capital expenditures, I didn’t have to
sign any long term contract. And I thought, “I’ll try it, and if I don’t like it
I’ll say, you know, thanks but good bye.”
Ms. Flanagan: And when did you start with JAMS?
Judge Smith: Well I officially started I think in October of ’05 — Is that right? Yes,
October of ’05, yes, but things didn’t really start, then the Christmas
holidays came up and things, and so I didn’t really start until kind of the
beginning of ’06.
Ms. Flanagan: What is your philosophy of ADR? What’s your approach?
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Judge Smith: Well, those are two different questions, kind of philosophy and approach?
My philosophy is that our legal system, which I think is the best in the
world, is still, it’s too expensive, it’s too time consuming, it’s too
unpredictable, so I’ve always been a big believer in alternative dispute
resolution, even when I was on the Bench. And so I do believe it does some
good. I don’t, I’m not one of the people that thinks it sets up a two-tier
justice system. I think for those people who can afford things, whether it’s
JAMS or somebody else, it gets those cases out of the Court system, which
leaves the Courts and the judges more available for people who don’t have
those resources, and I don’t see anything wrong with that. I understand the
argument that sometimes it keeps precedent from being developed, but
there’s enough precedent floating around I think to keep everybody happy. I
don’t see any dearth of appellate cases or advancement in legal theory, etc.
caused by ADR. And, as I say, I think it provides an alternative avenue for
parties that have the money and simply choose, or who just want to keep a
dispute quiet, which I think people have a right to do.
Ms. Flanagan: Does it — You know I think some folks who do see the two-tiered system
would respond to that statement by saying, “But apparently the people who
don’t have a lot of money, they don’t have the right to keep their disputes
private.”
Judge Smith: Well, they can try and settle them on their own. They can go to Legal Aid
or some place. They can go other places, so yeah, there are all sorts of
levels of mediators and arbitrators and obviously not all charge the same
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Judge Smith: Well, those are two different questions, kind of philosophy and approach?
My philosophy is that our legal system, which I think is the best in the
world, is still, it’s too expensive, it’s too time consuming, it’s too
unpredictable, so I’ve always been a big believer in alternative dispute
resolution, even when I was on the Bench. And so I do believe it does some
good. I don’t, I’m not one of the people that thinks it sets up a two-tier
justice system. I think for those people who can afford things, whether it’s
JAMS or somebody else, it gets those cases out of the Court system, which
leaves the Courts and the judges more available for people who don’t have
those resources, and I don’t see anything wrong with that. I understand the
argument that sometimes it keeps precedent from being developed, but
there’s enough precedent floating around I think to keep everybody happy. I
don’t see any dearth of appellate cases or advancement in legal theory, etc.
caused by ADR. And, as I say, I think it provides an alternative avenue for
parties that have the money and simply choose, or who just want to keep a
dispute quiet, which I think people have a right to do.
Ms. Flanagan: Does it — You know I think some folks who do see the two-tiered system
would respond to that statement by saying, “But apparently the people who
don’t have a lot of money, they don’t have the right to keep their disputes
private.”
Judge Smith: Well, they can try and settle them on their own. They can go to Legal Aid
or some place. They can go other places, so yeah, there are all sorts of
levels of mediators and arbitrators and obviously not all charge the same
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prices. I gave a short talk the other day about this and being special masters,
and I’m a special master for example now in three cases. And in one I have
very broad discretion, and in one I do only discovery, and in one I’m not
quite sure what I’m doing. But you know, I think too you don’t need to be
all things, and I’ll be more careful in signing up for these or agreeing to do
these in the future. You don’t need a retired Federal judge if all you’re
going to do is discovery disputes. Then you don’t need to pay the prices
that a retired, most retired Federal judges charge. So there’s a lot of
alternatives I think.
Ms. Flanagan: And of course you were, you know, on senior status when you made the
move.
Judge Smith: Right.
Ms. Flanagan: And so this argument that you also hear, sort of the “brain drain,” you know,
someone like a Judge Weinstein, who comes over to JAMS right at the peak
of his judicial powers, so to speak.
Judge Smith: That is a problem, right, yeah, well that’s an issue, and I can understand that.
And I think you know, again, I tend to look at it more from the Federal side
because that’s where I’m from, and I think you don’t have a lot of judges
doing that. I mean, there are a few, but there have always been a few. I met
a judge at this talk I gave the other day who was a Federal judge for twelve
years and just didn’t want to do it. He just didn’t like it. He was just like 35
when he was appointed or something, and so those things happen, but it’s
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prices. I gave a short talk the other day about this and being special masters,
and I’m a special master for example now in three cases. And in one I have
very broad discretion, and in one I do only discovery, and in one I’m not
quite sure what I’m doing. But you know, I think too you don’t need to be
all things, and I’ll be more careful in signing up for these or agreeing to do
these in the future. You don’t need a retired Federal judge if all you’re
going to do is discovery disputes. Then you don’t need to pay the prices
that a retired, most retired Federal judges charge. So there’s a lot of
alternatives I think.
Ms. Flanagan: And of course you were, you know, on senior status when you made the
move.
Judge Smith: Right.
Ms. Flanagan: And so this argument that you also hear, sort of the “brain drain,” you know,
someone like a Judge Weinstein, who comes over to JAMS right at the peak
of his judicial powers, so to speak.
Judge Smith: That is a problem, right, yeah, well that’s an issue, and I can understand that.
And I think you know, again, I tend to look at it more from the Federal side
because that’s where I’m from, and I think you don’t have a lot of judges
doing that. I mean, there are a few, but there have always been a few. I met
a judge at this talk I gave the other day who was a Federal judge for twelve
years and just didn’t want to do it. He just didn’t like it. He was just like 35
when he was appointed or something, and so those things happen, but it’s
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not very common. It’s certainly I think a better argument on the State side,
that there are judges perhaps who are using the Courts as a stepping stone.
And I think that’s unfortunate, but I also think there’s a lot of good people
waiting in the wings.
Ms. Flanagan: And when you were on the Bench, were you, did you spend much time
settling cases?
Judge Smith: No, I really didn’t, and that was one of the issues or questions I had about
going to JAMS, you know. I was not a Judge Lynch or a Danny Weinstein,
and I’m still not. I mean I really consider myself more of a judge than a
mediator at heart. I do mediate, and sometimes I think I do a pretty good
job of it. And other times I get very frustrated. Whereas arbitrating for me
is a much easier role. I mean you still have to make hard decisions and you
work hard because you’ve got to read cases and do all that stuff, but I find it
an easier, just psychologically it’s an easier role for me.
Ms. Flanagan: So, do you spend more of your JAMS time in the arbitrations or special
master category versus mediation?
Judge Smith: No, certainly not in special mastering, I mean that’s a fairly small part of my
practice, and, as I say, I think I’m not sure how much more of that I’ll do,
unless it’s a special case. But I probably on my caseload have more
mediations because they are short and they turn over. Time spent, maybe
50-50, I’m not sure.
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not very common. It’s certainly I think a better argument on the State side,
that there are judges perhaps who are using the Courts as a stepping stone.
And I think that’s unfortunate, but I also think there’s a lot of good people
waiting in the wings.
Ms. Flanagan: And when you were on the Bench, were you, did you spend much time
settling cases?
Judge Smith: No, I really didn’t, and that was one of the issues or questions I had about
going to JAMS, you know. I was not a Judge Lynch or a Danny Weinstein,
and I’m still not. I mean I really consider myself more of a judge than a
mediator at heart. I do mediate, and sometimes I think I do a pretty good
job of it. And other times I get very frustrated. Whereas arbitrating for me
is a much easier role. I mean you still have to make hard decisions and you
work hard because you’ve got to read cases and do all that stuff, but I find it
an easier, just psychologically it’s an easier role for me.
Ms. Flanagan: So, do you spend more of your JAMS time in the arbitrations or special
master category versus mediation?
Judge Smith: No, certainly not in special mastering, I mean that’s a fairly small part of my
practice, and, as I say, I think I’m not sure how much more of that I’ll do,
unless it’s a special case. But I probably on my caseload have more
mediations because they are short and they turn over. Time spent, maybe
50-50, I’m not sure.
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Ms. Flanagan: My experience has been that a lot mediators don’t want to do arbitration.
Judge Smith: No, that’s true. They don’t.
Ms. Flanagan: They like having something different every day.
Judge Smith: That’s true. And they don’t want to write decisions, and that’s fine with me.
It just leaves more for me.
Ms. Flanagan: Right. More for you.
Judge Smith: More for me. I mean I like doing both. I wouldn’t want to do just one of
any. But I’m happy to be the decisionmaker as well as the mediator.
Ms. Flanagan: And have you gotten what you were looking for, in terms of more free time,
more flexibility?
Judge Smith: I have got, I do have more free time and more flexibility, more free time
certainly. It’s not quite as flexible as I thought, although I mean it is if I
want it to be. I shouldn’t say that. You know, there is no reason I can’t say
at any given time block out a week here, a month here, whatever. It’s really
up to me as to how much I want to work, so yes. Is everyday where I want
it to be, are there days when I would love to just stay home in my jammies
all day and I can’t? Yes, sure. But yes, I do have more flexibility.
Ms. Flanagan: And do you see yourself trying something new in the future?
Judge. Smith: I was thinking I’d be a ballet dancer.
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Ms. Flanagan: My experience has been that a lot mediators don’t want to do arbitration.
Judge Smith: No, that’s true. They don’t.
Ms. Flanagan: They like having something different every day.
Judge Smith: That’s true. And they don’t want to write decisions, and that’s fine with me.
It just leaves more for me.
Ms. Flanagan: Right. More for you.
Judge Smith: More for me. I mean I like doing both. I wouldn’t want to do just one of
any. But I’m happy to be the decisionmaker as well as the mediator.
Ms. Flanagan: And have you gotten what you were looking for, in terms of more free time,
more flexibility?
Judge Smith: I have got, I do have more free time and more flexibility, more free time
certainly. It’s not quite as flexible as I thought, although I mean it is if I
want it to be. I shouldn’t say that. You know, there is no reason I can’t say
at any given time block out a week here, a month here, whatever. It’s really
up to me as to how much I want to work, so yes. Is everyday where I want
it to be, are there days when I would love to just stay home in my jammies
all day and I can’t? Yes, sure. But yes, I do have more flexibility.
Ms. Flanagan: And do you see yourself trying something new in the future?
Judge. Smith: I was thinking I’d be a ballet dancer.
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Ms. Flanagan: Well there you are, it’s never too late.
Judge Smith: You know I kind of doubt it, Sarah, I mean I’m 74 and I’ll be 75 this year,
and at some point you go, what am I doing? And I don’t, so I don’t think
I’ll try something new. I think from here, you know, I’ll do this as long as
it’s fun, and then I’ll probably just stop and take up knitting or crochet.
Ms. Flanagan: What about writing your memoirs?
Judge Smith: No, a lot of people have suggested that to me. I don’t know that I’ve got
the, number one, the patience, or think that — My ego isn’t that big to think
that anybody really cares about my memoirs other than me and maybe my
kids and my grandkids. I’m going to work on my bridge game. That’s my
next big goal.
Ms. Flanagan: That could take some time.
Judge Smith: It could, given the way I played last week.
Ms. Flanagan: Did being a judge — We sort of touched on this a little bit in the sense of, the
sense of the barrier that you have to have between you and the people
appearing before you.
Judge Smith: Right.
Ms. Flanagan: Did your career as a judge create any other types of problems for you in
your personal life?
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Ms. Flanagan: Well there you are, it’s never too late.
Judge Smith: You know I kind of doubt it, Sarah, I mean I’m 74 and I’ll be 75 this year,
and at some point you go, what am I doing? And I don’t, so I don’t think
I’ll try something new. I think from here, you know, I’ll do this as long as
it’s fun, and then I’ll probably just stop and take up knitting or crochet.
Ms. Flanagan: What about writing your memoirs?
Judge Smith: No, a lot of people have suggested that to me. I don’t know that I’ve got
the, number one, the patience, or think that — My ego isn’t that big to think
that anybody really cares about my memoirs other than me and maybe my
kids and my grandkids. I’m going to work on my bridge game. That’s my
next big goal.
Ms. Flanagan: That could take some time.
Judge Smith: It could, given the way I played last week.
Ms. Flanagan: Did being a judge — We sort of touched on this a little bit in the sense of, the
sense of the barrier that you have to have between you and the people
appearing before you.
Judge Smith: Right.
Ms. Flanagan: Did your career as a judge create any other types of problems for you in
your personal life?
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Judge Smith: It probably depends whether you ask my ex-husbands or somebody else.
Well I think one of the problems, I don’t know if it’s a problem, but an
issue, I was always very careful about what I said if I was out at a dinner
party or whatever about any opinions I had politically or whatever. And I
really did try to remember that I was a member of the Bench and not to do
or say anything that would be inappropriate. When you asked if I’d become
more political, I think the answer is no, but I’m much more willing to talk
about my views now at least on an informal basis or with friends. So that
was a problem, I think, you know, there was an issue of, there was always
this, again this issue of being aware of where you went and who you went
with and who your friends were. I mean, being careful not to appear to do,
you know, the impropriety issue and whether you should be having lunch
with this person. So I think there is a certain infringement of your personal
space and freedom to be on the Bench frankly. It’s a reasonable trade-off,
but it’s nice not to have it anymore.
Ms. Flanagan: While on the Bench, what were some of your activities and affiliations
outside of the law and your professional life?
Judge Smith: I really didn’t have many. I had, as I said, I have two daughters, grown
daughters. I have three grandchildren. And that was pretty much it for me.
Ms. Flanagan: That took all of your available time?
Judge Smith: It took whatever time I was willing to spend in any kind of organized
activity. I am a person who needs a fair amount of time alone, and I think
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Judge Smith: It probably depends whether you ask my ex-husbands or somebody else.
Well I think one of the problems, I don’t know if it’s a problem, but an
issue, I was always very careful about what I said if I was out at a dinner
party or whatever about any opinions I had politically or whatever. And I
really did try to remember that I was a member of the Bench and not to do
or say anything that would be inappropriate. When you asked if I’d become
more political, I think the answer is no, but I’m much more willing to talk
about my views now at least on an informal basis or with friends. So that
was a problem, I think, you know, there was an issue of, there was always
this, again this issue of being aware of where you went and who you went
with and who your friends were. I mean, being careful not to appear to do,
you know, the impropriety issue and whether you should be having lunch
with this person. So I think there is a certain infringement of your personal
space and freedom to be on the Bench frankly. It’s a reasonable trade-off,
but it’s nice not to have it anymore.
Ms. Flanagan: While on the Bench, what were some of your activities and affiliations
outside of the law and your professional life?
Judge Smith: I really didn’t have many. I had, as I said, I have two daughters, grown
daughters. I have three grandchildren. And that was pretty much it for me.
Ms. Flanagan: That took all of your available time?
Judge Smith: It took whatever time I was willing to spend in any kind of organized
activity. I am a person who needs a fair amount of time alone, and I think
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part of it is having been an only child. I grew up spending a lot of time by
myself, and I still need to do that or I start getting very nervous. And so that
was important too, to have time in my life just for me, to sit home and read
or whatever.
Ms. Flanagan: And you’re a reader?
Judge Smith: I am a reader, although again I did find that my time on the Court and even
now my time at JAMS infringes on my ability to read because my eyes get
tired, and so I don’t read as much as I used to. But I love movies, and I love
the theater. And I am one who — I’m not one who says, “Oh I never watch
television,” cause I do. I watch a fair amount of television. So I find lots of
ways to be solitary and be quite happy.
Ms. Flanagan: And when you look back at your career and how you took the LSAT almost
on a lark and got into law school, in some ways for want of something else
you wanted to do, do you look back at it and say, oh gosh, you know, I wish
I had gone to med school or I wish I had been a psychologist or I wish I had
done something else? Or are you comfortable that that was the right path
for you?
Judge Smith: It was the right path in this regard. If I had stayed a lawyer all those years, I
might have said that. But my years on the Bench, I just wouldn’t have
missed it for the world.
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part of it is having been an only child. I grew up spending a lot of time by
myself, and I still need to do that or I start getting very nervous. And so that
was important too, to have time in my life just for me, to sit home and read
or whatever.
Ms. Flanagan: And you’re a reader?
Judge Smith: I am a reader, although again I did find that my time on the Court and even
now my time at JAMS infringes on my ability to read because my eyes get
tired, and so I don’t read as much as I used to. But I love movies, and I love
the theater. And I am one who — I’m not one who says, “Oh I never watch
television,” cause I do. I watch a fair amount of television. So I find lots of
ways to be solitary and be quite happy.
Ms. Flanagan: And when you look back at your career and how you took the LSAT almost
on a lark and got into law school, in some ways for want of something else
you wanted to do, do you look back at it and say, oh gosh, you know, I wish
I had gone to med school or I wish I had been a psychologist or I wish I had
done something else? Or are you comfortable that that was the right path
for you?
Judge Smith: It was the right path in this regard. If I had stayed a lawyer all those years, I
might have said that. But my years on the Bench, I just wouldn’t have
missed it for the world.
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Ms. Flanagan: From your perspective as a lawyer, a judge, the Federal Judicial Center,
which gives you kind of a unique perspective in seeing a lot of different
judges, what do you think, I mean how do you define a good judge? What
are the qualities of someone that you say is a really good judge?
Judge Smith: Well I do think you need to be smart because there are some tough issues
and I think you need to have enough intellectual ability to understand them,
to read the laws and the cases and to try and figure out what they mean
because they are not always clear. So I think you need to be bright. And I
think you need to be willing to listen and to hear, not just to hear but to
listen carefully to both sides and to listen and hear what the cases say. I
think you need a lot of patience. I think you need to care about fairness.
And I think you need to understand what your role is. And while I don’t
think judges, I mean, I think judges need to have a certain amount of
courage about taking a leap when there is nothing out there. But I also think
that judges, good judges need to remember that a judge is not a legislator, is
not an executive, but is a judge, and serves a valuable, valuable role in that
capacity without trying to take over somebody else’s role.
Ms. Flanagan: And, from your same vantage point, what do you think are the qualities of a
good lawyer?
Judge Smith: Again, I think you’ve got to be smart. I think you’ve got to understand what
the law is. I think you’ve got to have, and I’ll add this for both lawyers and
judges, integrity. I think that somewhere you have to be able to hear the
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Ms. Flanagan: From your perspective as a lawyer, a judge, the Federal Judicial Center,
which gives you kind of a unique perspective in seeing a lot of different
judges, what do you think, I mean how do you define a good judge? What
are the qualities of someone that you say is a really good judge?
Judge Smith: Well I do think you need to be smart because there are some tough issues
and I think you need to have enough intellectual ability to understand them,
to read the laws and the cases and to try and figure out what they mean
because they are not always clear. So I think you need to be bright. And I
think you need to be willing to listen and to hear, not just to hear but to
listen carefully to both sides and to listen and hear what the cases say. I
think you need a lot of patience. I think you need to care about fairness.
And I think you need to understand what your role is. And while I don’t
think judges, I mean, I think judges need to have a certain amount of
courage about taking a leap when there is nothing out there. But I also think
that judges, good judges need to remember that a judge is not a legislator, is
not an executive, but is a judge, and serves a valuable, valuable role in that
capacity without trying to take over somebody else’s role.
Ms. Flanagan: And, from your same vantage point, what do you think are the qualities of a
good lawyer?
Judge Smith: Again, I think you’ve got to be smart. I think you’ve got to understand what
the law is. I think you’ve got to have, and I’ll add this for both lawyers and
judges, integrity. I think that somewhere you have to be able to hear the
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flutter of angels’ wings in your client’s case but understand that there are
limits to what you say and what you do and that, first of all, you are an
officer of the court. I think you’ve got to be able to think on your feet if you
want to be a trial lawyer. Again, I think you’ve got to, you’ve got to listen
to your client, you’ve got to listen to the judges, you’ve got to listen to the
law and, again, I think you’ve got to care about doing the right thing
Ms. Flanagan: Looking at the Northern District, how have the demands facing your Court
changed since you were on the Bench?
Judge Smith: Well I think the caseload has gotten much more complicated. The
intellectual property cases are just killers from the standpoint of how much
time and energy they take. They’re very sophisticated. The lawyers are
sophisticated. There is huge amounts of money involved. They’re very, the
lawyers are incredibly contentious. The Class Action Fairness Act has
increased I’m sure the number of class actions that are coming into the
Federal Courts. Those are very time consuming. And so I think, while the
numbers may not, I don’t know what the numbers are right now, whether
they have or haven’t gone up significantly, the complexity, the weight of the
cases I think has changed dramatically. I think Congress has opened up a
whole lot of new areas of Federal jurisdiction without giving any thought to
the resources that are required and what that does. And I think frankly that
Congress’ complete unwillingness to have any concern for the monetary
reward or, you know, reimbursement of judges is just outrageous. So I think
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flutter of angels’ wings in your client’s case but understand that there are
limits to what you say and what you do and that, first of all, you are an
officer of the court. I think you’ve got to be able to think on your feet if you
want to be a trial lawyer. Again, I think you’ve got to, you’ve got to listen
to your client, you’ve got to listen to the judges, you’ve got to listen to the
law and, again, I think you’ve got to care about doing the right thing
Ms. Flanagan: Looking at the Northern District, how have the demands facing your Court
changed since you were on the Bench?
Judge Smith: Well I think the caseload has gotten much more complicated. The
intellectual property cases are just killers from the standpoint of how much
time and energy they take. They’re very sophisticated. The lawyers are
sophisticated. There is huge amounts of money involved. They’re very, the
lawyers are incredibly contentious. The Class Action Fairness Act has
increased I’m sure the number of class actions that are coming into the
Federal Courts. Those are very time consuming. And so I think, while the
numbers may not, I don’t know what the numbers are right now, whether
they have or haven’t gone up significantly, the complexity, the weight of the
cases I think has changed dramatically. I think Congress has opened up a
whole lot of new areas of Federal jurisdiction without giving any thought to
the resources that are required and what that does. And I think frankly that
Congress’ complete unwillingness to have any concern for the monetary
reward or, you know, reimbursement of judges is just outrageous. So I think
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the judges are under a lot of pressure right now, and, as I said, I think the
issues before the Court are just, they seem to be continually increasing.
Ms. Flanagan: What do you think right now is the primary challenge facing the Northern
District, if you have to identify one challenge?
Judge Smith: I don’t know. I haven’t talked to any of my colleagues about that particular
issue. My guess would be the workload. But I don’t know the answer to
that.
Ms. Flanagan: Then again, from your unique vantage point, how important are — You
know, you spoke of somewhat the isolation, the barriers for a judge, having
to be a little more cautious with friends, etc. How important are the
organized informal contacts, judicial councils, bar meetings, for judges to
get out and mingle in that setting? Did you find that helpful, necessary or
annoying?
Judge Smith: I didn’t find it any of those. I found it necessary, or I shouldn’t say
necessary. I think judges, part of being a judge I think, part of being a good
judge I think is a willingness to get out there in the community and to
represent the Courts and to, if asked, explain, you know, what it is the
Courts do, why we do it, who we are, to listen, to get feedback, to hear what
the lawyers are saying about the Courts. And are there things we should be
doing differently? What’s coming down the pipeline? So I didn’t find it
annoying. Sometimes I found it tiring, but I thought it was important to do.
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the judges are under a lot of pressure right now, and, as I said, I think the
issues before the Court are just, they seem to be continually increasing.
Ms. Flanagan: What do you think right now is the primary challenge facing the Northern
District, if you have to identify one challenge?
Judge Smith: I don’t know. I haven’t talked to any of my colleagues about that particular
issue. My guess would be the workload. But I don’t know the answer to
that.
Ms. Flanagan: Then again, from your unique vantage point, how important are — You
know, you spoke of somewhat the isolation, the barriers for a judge, having
to be a little more cautious with friends, etc. How important are the
organized informal contacts, judicial councils, bar meetings, for judges to
get out and mingle in that setting? Did you find that helpful, necessary or
annoying?
Judge Smith: I didn’t find it any of those. I found it necessary, or I shouldn’t say
necessary. I think judges, part of being a judge I think, part of being a good
judge I think is a willingness to get out there in the community and to
represent the Courts and to, if asked, explain, you know, what it is the
Courts do, why we do it, who we are, to listen, to get feedback, to hear what
the lawyers are saying about the Courts. And are there things we should be
doing differently? What’s coming down the pipeline? So I didn’t find it
annoying. Sometimes I found it tiring, but I thought it was important to do.
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Ms. Flanagan: I mean, how do judges — You alluded earlier that the Ninth Circuit was kind
of out of step with the rest of the country. How do judges, given the
limitations on them, keep in touch with where the individuals in the country
are at?
Judge Smith: Oh I think it’s hard to do unless you’ve got time to read cases from —
Although I mean you can do it at judicial conferences. You know I think,
for example, when you are a new federal judge, you do get initial training,
and you’re usually in a class, a baby judges class. And quite often those
friendships that you make in baby judges class you’ll keep through your
years on the Bench. And these are judges from all over the country, and so
you might hear from them what’s going on. The Federal Judicial Center,
their conferences and CLE seminars and things are a way, and I found those
very helpful. I mean, I think there’s a difference between say community
things, going to bar activities, dinners, whatever, and going to judicial
seminars on particular issues. I think that’s the best way. And I think the
Federal Judicial Center does serve a very important function in that regard,
not simply for the substance of the programs but to get judges together to
exchange ideas and sort of hear what is going on in the rest of the judiciary.
Ms. Flanagan: And where do you think a judgeship should fall in a lawyer’s career? I
mean what do you think is the right amount of legal experience to have had
before taking the Bench and still be energized and a judge who’s at the peak
of his or her…
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Ms. Flanagan: I mean, how do judges — You alluded earlier that the Ninth Circuit was kind
of out of step with the rest of the country. How do judges, given the
limitations on them, keep in touch with where the individuals in the country
are at?
Judge Smith: Oh I think it’s hard to do unless you’ve got time to read cases from —
Although I mean you can do it at judicial conferences. You know I think,
for example, when you are a new federal judge, you do get initial training,
and you’re usually in a class, a baby judges class. And quite often those
friendships that you make in baby judges class you’ll keep through your
years on the Bench. And these are judges from all over the country, and so
you might hear from them what’s going on. The Federal Judicial Center,
their conferences and CLE seminars and things are a way, and I found those
very helpful. I mean, I think there’s a difference between say community
things, going to bar activities, dinners, whatever, and going to judicial
seminars on particular issues. I think that’s the best way. And I think the
Federal Judicial Center does serve a very important function in that regard,
not simply for the substance of the programs but to get judges together to
exchange ideas and sort of hear what is going on in the rest of the judiciary.
Ms. Flanagan: And where do you think a judgeship should fall in a lawyer’s career? I
mean what do you think is the right amount of legal experience to have had
before taking the Bench and still be energized and a judge who’s at the peak
of his or her…
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Judge Smith: Again, I’m going to talk about a Federal judgeship because that’s what I
know. I think you know it can be very different if you start at a, say a State
Court, or somewhat different, but I think to be on the Federal Bench you
ought to have at least fifteen years of practice under your belt. And
probably somewhere in the age range of mid 40s to early 50s is probably
prime time. I think that at that stage you’ve been seasoned and yet you’ve
still got a lot of energy and creativity and enough time to put in to being,
doing a good tenure of service. I was a little, I was sort of on the edge of
that. I was in my 50s. Let’s see — ’88, I was 55. And, I mean, I thought I
had a lot of energy and things. Most of the judges now that are coming on
the Court come on at an earlier, somewhat earlier age. But I think below 45,
not that you’re too young certainly, I mean we have some judges who have
gone on and been very good judges, but I would say 45 to 52 is probably
the, you know, prime cut.
Ms. Flanagan: And just in this week’s press, we’re seeing an unusual movement. Usually
we see the judges go from the State Court system into the Federal system.
Judge Smith: Judge Jenkins?
Ms. Flanagan: Yes, and the newspapers are reporting that Judge Jenkins is making the
unusual move of going from Federal Court to State Court.
Judge Smith: Right. He is.
Ms. Flanagan: What do you make of that?
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Judge Smith: Again, I’m going to talk about a Federal judgeship because that’s what I
know. I think you know it can be very different if you start at a, say a State
Court, or somewhat different, but I think to be on the Federal Bench you
ought to have at least fifteen years of practice under your belt. And
probably somewhere in the age range of mid 40s to early 50s is probably
prime time. I think that at that stage you’ve been seasoned and yet you’ve
still got a lot of energy and creativity and enough time to put in to being,
doing a good tenure of service. I was a little, I was sort of on the edge of
that. I was in my 50s. Let’s see — ’88, I was 55. And, I mean, I thought I
had a lot of energy and things. Most of the judges now that are coming on
the Court come on at an earlier, somewhat earlier age. But I think below 45,
not that you’re too young certainly, I mean we have some judges who have
gone on and been very good judges, but I would say 45 to 52 is probably
the, you know, prime cut.
Ms. Flanagan: And just in this week’s press, we’re seeing an unusual movement. Usually
we see the judges go from the State Court system into the Federal system.
Judge Smith: Judge Jenkins?
Ms. Flanagan: Yes, and the newspapers are reporting that Judge Jenkins is making the
unusual move of going from Federal Court to State Court.
Judge Smith: Right. He is.
Ms. Flanagan: What do you make of that?
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Judge Smith: Well, I know Judge Jenkins, and so we’ve talked about this a lot. And while
it is unusual, I think, for him, you know these are very individual decisions.
And I think for him, for his temperament, for where he is in his career, the
plusses and minuses, I think it’s a fine thing.
[Telephone interruption]
Ms. Flanagan: We’ve touched on this a little bit in earlier thoughts, but can you generally
describe your viewpoint about what people call judicial activism, judicial
legislation? I mean, you’ve alluded to it earlier, but it’s a criticism that gets
leveled at a lot of Benches by people who think their job is to legislate.
Judge Smith: Right. Well, you know, I can’t add a whole lot more to what I’ve said. But
I will say this. Judges, I think all judges make law. We do it because,
surprisingly, there are all sorts of questions that have never been answered.
And you get a case, and there isn’t a statute or there isn’t a case right on
point. And so you have to make some educated guesses and do some
analogies and make some leaps about what might happen. I mean, for
example, there were times when I would get a case involving California law
and the standard was I was supposed to predict what the California Supreme
Court would do. Well, you know, that was my responsibility, to do that as
best I can. I didn’t think that was being activist. I didn’t have any other
choice. So I think that it’s one thing to fill in a gap because …
[Telephone interruption]
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Judge Smith: Well, I know Judge Jenkins, and so we’ve talked about this a lot. And while
it is unusual, I think, for him, you know these are very individual decisions.
And I think for him, for his temperament, for where he is in his career, the
plusses and minuses, I think it’s a fine thing.
[Telephone interruption]
Ms. Flanagan: We’ve touched on this a little bit in earlier thoughts, but can you generally
describe your viewpoint about what people call judicial activism, judicial
legislation? I mean, you’ve alluded to it earlier, but it’s a criticism that gets
leveled at a lot of Benches by people who think their job is to legislate.
Judge Smith: Right. Well, you know, I can’t add a whole lot more to what I’ve said. But
I will say this. Judges, I think all judges make law. We do it because,
surprisingly, there are all sorts of questions that have never been answered.
And you get a case, and there isn’t a statute or there isn’t a case right on
point. And so you have to make some educated guesses and do some
analogies and make some leaps about what might happen. I mean, for
example, there were times when I would get a case involving California law
and the standard was I was supposed to predict what the California Supreme
Court would do. Well, you know, that was my responsibility, to do that as
best I can. I didn’t think that was being activist. I didn’t have any other
choice. So I think that it’s one thing to fill in a gap because …
[Telephone interruption]
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Ms. Flanagan: We were just talking about judicial activism and you were explaining, am I
correctly capturing it, that there’s nothing wrong with making law if there is
no law?
Judge Smith: Right. And you know that’s part of your responsibility, and you have to.
You can’t shy away from that because then I think you’re not fulfilling your
responsibility. I think that’s a very different thing than making law because
you have a personal agenda or set of beliefs, whatever, that you are trying to
get the law to meet, and I think that’s wrong. I think that is the kind of
judicial activism that is inappropriate, and heaven knows I signed orders and
sometimes inflicted sentences that I wasn’t happy with, and I would often
say on the record, if I had drafted this or if I had written this I would not
have reached this result. But I didn’t, and it’s not my role to do so, and until
Congress or whatever changes it, this is what I’m stuck with. And I think
that’s where judges, you know, sort of where the rubber meets the road on
judges making law.
Ms. Flanagan: Do you have your own judicial philosophy?
Judge Smith: I’ve never quite known what that meant, to be perfectly honest. No.
Ms. Flanagan: And that’s why I asked you if you had one. You read it all the time, in
terms of someone’s judicial philosophy.
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Ms. Flanagan: We were just talking about judicial activism and you were explaining, am I
correctly capturing it, that there’s nothing wrong with making law if there is
no law?
Judge Smith: Right. And you know that’s part of your responsibility, and you have to.
You can’t shy away from that because then I think you’re not fulfilling your
responsibility. I think that’s a very different thing than making law because
you have a personal agenda or set of beliefs, whatever, that you are trying to
get the law to meet, and I think that’s wrong. I think that is the kind of
judicial activism that is inappropriate, and heaven knows I signed orders and
sometimes inflicted sentences that I wasn’t happy with, and I would often
say on the record, if I had drafted this or if I had written this I would not
have reached this result. But I didn’t, and it’s not my role to do so, and until
Congress or whatever changes it, this is what I’m stuck with. And I think
that’s where judges, you know, sort of where the rubber meets the road on
judges making law.
Ms. Flanagan: Do you have your own judicial philosophy?
Judge Smith: I’ve never quite known what that meant, to be perfectly honest. No.
Ms. Flanagan: And that’s why I asked you if you had one. You read it all the time, in
terms of someone’s judicial philosophy.
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Judge Smith: Yes, I do read it all the time, and it sounds, I don’t know, it sounds sort of
pretentious to me. And, as I said, I really don’t know what that means, other
than the kinds of things we’ve talked about.
Ms. Flanagan: And maybe breaking it down, what is your conception of the judge’s role in
society?
Judge Smith: My conception of the judge’s role is to first do no harm if you can help it.
No, to resolve disputes that are within a judge’s jurisdiction to hear and to
resolve them according to whatever law is out there or the best approximate
source of authority that you’ve got and to try to do it in a way that is fair to
everybody who comes before you and to try to treat all people with that
same standard.
Ms. Flanagan: And do you think in general that’s what our society’s conception is of the
judge’s role in current day?
Judge Smith: I hope so.
Ms. Flanagan: Looking at the judicial appointment process, you came through it with
flying colors and little controversy. Having seen how it works, having seen
people who’ve made it and people who haven’t made it, what are your
thoughts about what should be involved in the judicial selection or
appointment process, and what changes do you think should be made, if you
think there should be any?
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Judge Smith: Yes, I do read it all the time, and it sounds, I don’t know, it sounds sort of
pretentious to me. And, as I said, I really don’t know what that means, other
than the kinds of things we’ve talked about.
Ms. Flanagan: And maybe breaking it down, what is your conception of the judge’s role in
society?
Judge Smith: My conception of the judge’s role is to first do no harm if you can help it.
No, to resolve disputes that are within a judge’s jurisdiction to hear and to
resolve them according to whatever law is out there or the best approximate
source of authority that you’ve got and to try to do it in a way that is fair to
everybody who comes before you and to try to treat all people with that
same standard.
Ms. Flanagan: And do you think in general that’s what our society’s conception is of the
judge’s role in current day?
Judge Smith: I hope so.
Ms. Flanagan: Looking at the judicial appointment process, you came through it with
flying colors and little controversy. Having seen how it works, having seen
people who’ve made it and people who haven’t made it, what are your
thoughts about what should be involved in the judicial selection or
appointment process, and what changes do you think should be made, if you
think there should be any?
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Judge Smith: Well, number one, I will say that I am a firm believer in not having judges
elected and having them appointed. I think life tenure is the best way to go,
or at least a sufficient tenure that takes political pressure off a judge. You
know whether — A lot of international countries, foreign countries define life
tenure as up to 65 or 70. I’m not offended by that. I mean I think the role of
lifetime appointment is, as I say, so you don’t have to worry that because
you made a bad decision you’re going to get thrown off the Court. I think,
however, that if you’re going to have an appointment process there needs to
be some way of spreading the power and the vetting process, making it fair.
Whether that’s with a merit selection board of a variety of people. In the
Federal for example, it could be maybe three representatives from each,
three senators from one side and three from the other. Something that gives
— I do have this concern that there seems to be a growing partisanship.
Maybe it’s always been there in Federal judicial selection. And so, you
know, for a while people were saying, oh you know, Reagan appointed blahblah percent of the Federal Courts, and then all they talked about was what
percentage Clinton had appointed, and now they’re talking about what
percentage Bush had appointed. And maybe it all works out in the long run,
I don’t know, but in a perfect world I think there would be a way to respect
the President’s right to appoint Federal judges but to vet them before they
get to that level, to make sure that at least there’s some overlay of vetting,
some unbiased or less biased vetting process.
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Judge Smith: Well, number one, I will say that I am a firm believer in not having judges
elected and having them appointed. I think life tenure is the best way to go,
or at least a sufficient tenure that takes political pressure off a judge. You
know whether — A lot of international countries, foreign countries define life
tenure as up to 65 or 70. I’m not offended by that. I mean I think the role of
lifetime appointment is, as I say, so you don’t have to worry that because
you made a bad decision you’re going to get thrown off the Court. I think,
however, that if you’re going to have an appointment process there needs to
be some way of spreading the power and the vetting process, making it fair.
Whether that’s with a merit selection board of a variety of people. In the
Federal for example, it could be maybe three representatives from each,
three senators from one side and three from the other. Something that gives
— I do have this concern that there seems to be a growing partisanship.
Maybe it’s always been there in Federal judicial selection. And so, you
know, for a while people were saying, oh you know, Reagan appointed blahblah percent of the Federal Courts, and then all they talked about was what
percentage Clinton had appointed, and now they’re talking about what
percentage Bush had appointed. And maybe it all works out in the long run,
I don’t know, but in a perfect world I think there would be a way to respect
the President’s right to appoint Federal judges but to vet them before they
get to that level, to make sure that at least there’s some overlay of vetting,
some unbiased or less biased vetting process.
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Ms. Flanagan: So, your thought is, if the individual didn’t get through the vetting process,
then it wouldn’t be an option for the President?
Judge Smith: Right.
Ms. Flanagan: And would you — Are you in favor of lifetime or long-term appointments in
the State Court system as well?
Judge Smith: Yes.
Ms. Flanagan: Looking at the legal profession as a whole, what about it concerns you
most?
Judge Smith: The greed. I just find, you know, the money situation these days to be quite
shocking, to be perfectly honest.
Ms. Flanagan: Greed is a vice in and of itself. What are the consequences of that that you
see causing problems?
Judge Smith: Well, I think it’s leading to — Part of it is this glut on the Courts, you know,
that people are just filing lawsuits over everything. That I think probably
more than anything is — If anything’s causing a two-tier legal system, I think
it’s more the lawyers to be honest than it is people going into ADR because
I think the average — It’s getting to be like medical care, you know, the
middle class just can’t afford it, or the people they can afford in general are
just nowhere near the caliber that the others can afford. So you go into
Court, and you’ve got one side represented by big powerhouse lawyers and
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Ms. Flanagan: So, your thought is, if the individual didn’t get through the vetting process,
then it wouldn’t be an option for the President?
Judge Smith: Right.
Ms. Flanagan: And would you — Are you in favor of lifetime or long-term appointments in
the State Court system as well?
Judge Smith: Yes.
Ms. Flanagan: Looking at the legal profession as a whole, what about it concerns you
most?
Judge Smith: The greed. I just find, you know, the money situation these days to be quite
shocking, to be perfectly honest.
Ms. Flanagan: Greed is a vice in and of itself. What are the consequences of that that you
see causing problems?
Judge Smith: Well, I think it’s leading to — Part of it is this glut on the Courts, you know,
that people are just filing lawsuits over everything. That I think probably
more than anything is — If anything’s causing a two-tier legal system, I think
it’s more the lawyers to be honest than it is people going into ADR because
I think the average — It’s getting to be like medical care, you know, the
middle class just can’t afford it, or the people they can afford in general are
just nowhere near the caliber that the others can afford. So you go into
Court, and you’ve got one side represented by big powerhouse lawyers and
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a plaintiff or somebody represented by, you know, “Joe Schlub” down the
street. That’s not to say all solo practitioners are incompetent, I don’t mean
that at all, but I think there is an imbalance, and I think that’s bad. And then
the other thing that I think it leads to is a demeaning of the profession. And
you hear — One hears a lot about the fact that the law isn’t a profession
anymore, it’s a business, and it’s run according to the bottom line just like
any other business. And I think that’s too bad. I mean I think the pressure
that associates and partners, young partners in particular, are put under and
what it does to their family lives and that whole thing is regrettable.
Ms. Flanagan: And do you think — In your time in the “legal biz,” have you seen that
worsen significantly?
Judge Smith: Oh absolutely. I mean the billable hour phenomenon when I started
practicing law — Now Bronson always had a more loose requirement level.
But you know, we were, you certainly were expected to bill 1600 hours a
year, and if you billed 18 that was really great. And then you know,
suddenly it was, I mean not overnight, but within a decade or so, you were
talking about 2200 hours. Well I billed 2300 hours one year, and I know
what that was like. And I think it leads to burn out, I think it leads to
dishonesty, and it leads to lawyers padding their bills. It’s just a bad thing.
Ms. Flanagan: And looking at the same legal profession, what about it are you most proud
of?
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a plaintiff or somebody represented by, you know, “Joe Schlub” down the
street. That’s not to say all solo practitioners are incompetent, I don’t mean
that at all, but I think there is an imbalance, and I think that’s bad. And then
the other thing that I think it leads to is a demeaning of the profession. And
you hear — One hears a lot about the fact that the law isn’t a profession
anymore, it’s a business, and it’s run according to the bottom line just like
any other business. And I think that’s too bad. I mean I think the pressure
that associates and partners, young partners in particular, are put under and
what it does to their family lives and that whole thing is regrettable.
Ms. Flanagan: And do you think — In your time in the “legal biz,” have you seen that
worsen significantly?
Judge Smith: Oh absolutely. I mean the billable hour phenomenon when I started
practicing law — Now Bronson always had a more loose requirement level.
But you know, we were, you certainly were expected to bill 1600 hours a
year, and if you billed 18 that was really great. And then you know,
suddenly it was, I mean not overnight, but within a decade or so, you were
talking about 2200 hours. Well I billed 2300 hours one year, and I know
what that was like. And I think it leads to burn out, I think it leads to
dishonesty, and it leads to lawyers padding their bills. It’s just a bad thing.
Ms. Flanagan: And looking at the same legal profession, what about it are you most proud
of?
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Judge Smith: I’m proud of the fact that there are I think a whole lot of lawyers who do go
out there and fight for justice and try to do the right thing and represent their
clients in an ethical and honest and really competent way. And I’m proud of
our Courts because I think the majority of judges are people who work
really hard at trying to do again the right thing and to follow the law as they
understand it, and when they make law they make it carefully and within the
bounds of what they should be looking at. And I visited enough foreign
countries and studied or worked with enough representatives from other
countries to think that our legal system is so far and away above anything
else, maybe not England, I can’t speak to England or Canada, I’m speaking
of basically you know everything else that I’ve seen at least. And so, even
with all its faults and things, I think we need to be proud of it. But I am very
concerned about the fact that, as I say, like the medical profession, I think
we’re pricing the middle class out of justice.
Ms. Flanagan: And what do you see as some steps that could be taken? Do you see steps
that could be taken by the Courts themselves to balance that out or is that
something that has to come …
Judge Smith: I think it has to come from the profession, frankly. I don’t think you can
really legislate, I don’t think the Courts should be legislating. Again the
legal profession, I think it’s up to the profession itself to try to find ways to
do that.
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Judge Smith: I’m proud of the fact that there are I think a whole lot of lawyers who do go
out there and fight for justice and try to do the right thing and represent their
clients in an ethical and honest and really competent way. And I’m proud of
our Courts because I think the majority of judges are people who work
really hard at trying to do again the right thing and to follow the law as they
understand it, and when they make law they make it carefully and within the
bounds of what they should be looking at. And I visited enough foreign
countries and studied or worked with enough representatives from other
countries to think that our legal system is so far and away above anything
else, maybe not England, I can’t speak to England or Canada, I’m speaking
of basically you know everything else that I’ve seen at least. And so, even
with all its faults and things, I think we need to be proud of it. But I am very
concerned about the fact that, as I say, like the medical profession, I think
we’re pricing the middle class out of justice.
Ms. Flanagan: And what do you see as some steps that could be taken? Do you see steps
that could be taken by the Courts themselves to balance that out or is that
something that has to come …
Judge Smith: I think it has to come from the profession, frankly. I don’t think you can
really legislate, I don’t think the Courts should be legislating. Again the
legal profession, I think it’s up to the profession itself to try to find ways to
do that.
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Ms. Flanagan: And in the 30-plus years that you’ve been in the profession, what are your
thoughts about the place of women in the profession, when you started and
then looking at it today?
Judge Smith: Well, certainly, women have come a long way if you want to say how many
there are and whether there are now women managing partners and things,
and I think that’s a big thing. I think that still the numbers are very skewed,
but I understand why. I mean, again, because as time has gone on, while it’s
become easier for women to get into the profession, I think all the things
we’ve just talked about, the hours and all of that, have made it harder for
women to stay in the profession. And I think there are just a lot of really,
really bright, wonderful women who aren’t willing to sacrifice their lives to
what the profession is now viewed as by a lot of people, and a lot of them
don’t have to. They have, many of them have a spouse or a partner who
brings in money as well. They want to have families. They want to stay,
take care of their families. Some women are able to juggle it, some just
don’t want to pay that price. So while I don’t think the glass ceiling exists
in terms of people trying to keep women out, I think there is a ceiling that,
sort of a metaphorical ceiling that just makes the price too high for them to
stay in.
Ms. Flanagan: And is that, when you’re referring to that, are you referring to the balance
with family responsibilities or just women generally are less likely to make
that trade-off regardless what it is they want to do with their time?
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Ms. Flanagan: And in the 30-plus years that you’ve been in the profession, what are your
thoughts about the place of women in the profession, when you started and
then looking at it today?
Judge Smith: Well, certainly, women have come a long way if you want to say how many
there are and whether there are now women managing partners and things,
and I think that’s a big thing. I think that still the numbers are very skewed,
but I understand why. I mean, again, because as time has gone on, while it’s
become easier for women to get into the profession, I think all the things
we’ve just talked about, the hours and all of that, have made it harder for
women to stay in the profession. And I think there are just a lot of really,
really bright, wonderful women who aren’t willing to sacrifice their lives to
what the profession is now viewed as by a lot of people, and a lot of them
don’t have to. They have, many of them have a spouse or a partner who
brings in money as well. They want to have families. They want to stay,
take care of their families. Some women are able to juggle it, some just
don’t want to pay that price. So while I don’t think the glass ceiling exists
in terms of people trying to keep women out, I think there is a ceiling that,
sort of a metaphorical ceiling that just makes the price too high for them to
stay in.
Ms. Flanagan: And is that, when you’re referring to that, are you referring to the balance
with family responsibilities or just women generally are less likely to make
that trade-off regardless what it is they want to do with their time?
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Judge Smith: I think both. I think part of it is families, but I also think women are less
willing to make that trade-off. I think the way we’ve been brought up and
things that there’s in some ways not as much pressure on us to be as
“successful” in the traditional sense as there is on men. I think we have
better egos, healthier egos to be able to walk away from it and say, “Sorry, I
don’t want to do this.” When I look at my women law clerks, former law
clerks, and there isn’t a better, brighter group of women anywhere, and
almost none of them is in big firm practice today. And I think that is very
telling. And they’re not all, I mean they’re not all married with families,
some of them are, some of them aren’t, but they found other ways to live
their lives.
Ms. Flanagan: In some ways, you can imagine someone making the argument that the men
in big firms are more victimized than the women in big firms in the sense
that, culturally, they don’t, aren’t perceived to have the same options.
Judge Smith: Well, I don’t know about more victimized, but I think they’re victimized in
their own way. I don’t think any, I think it’s — Everybody is under
tremendous stress.
Ms. Flanagan: You know your life so much better than I could ever learn it from reading.
You know this project is for Women Trailblazers in the Law. Are there
areas we haven’t covered or thoughts that you’d like to share?
Judge Smith: I don’t think so. You’ve been pretty thorough, Sarah.
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Judge Smith: I think both. I think part of it is families, but I also think women are less
willing to make that trade-off. I think the way we’ve been brought up and
things that there’s in some ways not as much pressure on us to be as
“successful” in the traditional sense as there is on men. I think we have
better egos, healthier egos to be able to walk away from it and say, “Sorry, I
don’t want to do this.” When I look at my women law clerks, former law
clerks, and there isn’t a better, brighter group of women anywhere, and
almost none of them is in big firm practice today. And I think that is very
telling. And they’re not all, I mean they’re not all married with families,
some of them are, some of them aren’t, but they found other ways to live
their lives.
Ms. Flanagan: In some ways, you can imagine someone making the argument that the men
in big firms are more victimized than the women in big firms in the sense
that, culturally, they don’t, aren’t perceived to have the same options.
Judge Smith: Well, I don’t know about more victimized, but I think they’re victimized in
their own way. I don’t think any, I think it’s — Everybody is under
tremendous stress.
Ms. Flanagan: You know your life so much better than I could ever learn it from reading.
You know this project is for Women Trailblazers in the Law. Are there
areas we haven’t covered or thoughts that you’d like to share?
Judge Smith: I don’t think so. You’ve been pretty thorough, Sarah.
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Ms. Flanagan: Good, I’m glad to hear that, but this is your chance to make a statement if
you think there’s anything that we’ve missed.
Judge Smith: No, I think I’ve been incredibly blessed. A lot of it was luck, a lot of it was
timing. I do think that some of it I’ll take credit for. I worked really hard.
But I’ve had some wonderful opportunities and a whole lot of support along
the way. So, as I say, I wouldn’t have missed it for the world.
Ms. Flanagan: Well, one of my questions along the way was remarking on how you had
managed to achieve the unique status, unfortunately unique status of being
both respected and liked, and I think that is one of the things that comes
through this story, if someone picks this up and reads it some day. I’ve
enjoyed spending the time with you, so thank you very much for the
opportunity.
Judge Smith: My pleasure, my pleasure.
END OF INTERVIEW
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Ms. Flanagan: Good, I’m glad to hear that, but this is your chance to make a statement if
you think there’s anything that we’ve missed.
Judge Smith: No, I think I’ve been incredibly blessed. A lot of it was luck, a lot of it was
timing. I do think that some of it I’ll take credit for. I worked really hard.
But I’ve had some wonderful opportunities and a whole lot of support along
the way. So, as I say, I wouldn’t have missed it for the world.
Ms. Flanagan: Well, one of my questions along the way was remarking on how you had
managed to achieve the unique status, unfortunately unique status of being
both respected and liked, and I think that is one of the things that comes
through this story, if someone picks this up and reads it some day. I’ve
enjoyed spending the time with you, so thank you very much for the
opportunity.
Judge Smith: My pleasure, my pleasure.
END OF INTERVIEW
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Fern Smith Oral History Package

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