1
HONORABLE STEPHEN F. WILLIAMS
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
HONORABLE STEPHEN F. WILLIAMS
Interviews conducted by Jonathan E. Nuechterlein, Esq.
November 18 and 25, 2007
March 2, 2008
May 5 and June 9, 2013
TABLE OF CONTENTS
Introduction………………………………………………………………………………………………………….. i
Preface ……………………………………………………………………………………………………………… iii
Oral History Agreements
Hon. Stephen F. Williams ………………………………………………………………………………..v
Jonathan E. Nuechterlein, Esquire ………………………………………………………………… vii
Oral History Transcripts of Interviews
Session 1 (November 18, 2007)……………………………………………………………………….1
Session 2 (November 25, 2007)……………………………………………………………………..22
Session 3 (March 2, 2008) …………………………………………………………………………….46
Session 4 (May 5, 2013) ……………………………………………………………………………….59
Session 5 (June 9, 2013) ……………………………………………………………………………….83
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Hon. Stephen F. Williams…………………………………………………………………………..C-1
Jonathan E. Nuechterlein, Esquire ……………………………………………………………. D-1
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NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to,
the Oral History Agreements included herewith.
© 2022 Historical Society of the District of Columbia Circuit.
All rights reserved.
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Introduction
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer attorneys
who are trained by the Society. Before donating the oral history to the Society, both the subject
of the history and the interviewer have had an opportunity to review and edit the transcripts.
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.
5i
i
Preface to the Oral History of Judge Stephen Williams
This oral history consists of five interview sessions with Judge Stephen Williams — three
conducted in 2007-08, and two in 2013. We devoted Session 1 to his life from boyhood through law
school; Session 2 to his pre-judgeship legal and academic career; Session 3 to his appointment to and
first days on the D.C. Circuit; Session 4 to his views on administrative law; and Session 5 to selected
cases on antitrust and competition-oriented regulation.
In December 2019, the Judge and I exchanged our final emails about this oral history. We
decided in principle to conduct one or two additional interviews and then bring the project to a
close. There were several reasons why, at that late date, we were still working towards the
completion of an oral history begun in 2007. The Judge was busy with various academic projects
during that twelve-year period, including his second book on pre-revolutionary Russia, published in
late 2017. For prudential reasons, we also agreed not to conduct interviews while I was the general
counsel of an agency that appeared before him (2013-2016) or while a high-profile case that I argued
was pending before him (late 2018 to early 2020). During the early years of this project, the Judge
also suggested that he was not particularly eager to finish a retrospective on his life and work.
Completion would connote that his main contributions were behind him, and the Judge would not
go gentle into that good night.
We never did resume our sessions. The Judge contracted COVID-19 in May 2020, was
placed on a ventilator soon thereafter, and never fully regained consciousness. He died on August 7
at the age of 83, before signing the customary Letter of Intent to donate these interviews to the D.C.
Circuit Historical Society. In our December 2019 email exchange, however, he told me that the draft
letter the Historical Society sent him “seems fine, except that I thought I might expressly add you to
those involved in decisions [about disposition of the oral history in case of death or disability], as
you combine sophistication about the issues with a benign outlook on my posthumous interests.”
He added, with characteristic optimism, that he was “in good health, so that the type of event that
might trigger a need for this d[oes]n’t seem imminent.” It is hard to re-read that passage now.
After the Judge died, I was at first inclined not to make these transcripts public, given the
absence of a signed Letter of Intent. Over time, and in consultation with his family, I changed my
mind. Publication of these transcripts will benefit many readers and will harm none. And the Judge
unfailingly supported such Pareto-optimal outcomes in life.
The Judge and I met for these interviews in the townhouse he shared with his wife Faith
near Logan Circle in the District of Columbia. We recorded all five on old-style Dictaphone cassette
tapes. The Judge’s secretary — Mary Matera, who served him loyally and well for more than three
decades — then produced raw transcripts for our review. The Judge and I contemporaneously
collaborated on transcript edits for the first three sessions, and I have largely accepted the products
of that collaboration for purposes of this final master transcript.
Completing the transcripts for the fourth and fifth interviews presented greater challenges. I
sent the Judge my proposed edits for the fourth session shortly after we conducted it in May 2013,
ii
but I have no record that he reviewed them or offered any of his own. For this master transcript,
therefore, I have abandoned many of my 2013 edits in favor of the literal words in the raw
transcript. Finally, neither the Judge nor I had edited the raw transcript for the fifth session when it
was found in his computer files in December 2020. After many months of searching, the tape for
the first half of that session was finally found, but the tape for the second half has not been. I stayed
as faithful as I could to the tape (for the first half of the interview) and the raw transcript (for the
second half) while making the edits needed for accuracy and comprehensibility. In many cases, that
required me to insert clarifying words in brackets; all bracketed words and all footnotes are mine.
In a few places, I exercised my discretion — given my “benign outlook on [the Judge’s]
posthumous interests” — to omit brief passages from the underlying transcripts. I did so if those
passages were irremediably opaque as transcribed; tangential and uninformative; or otherwise
unlikely to have escaped the Judge’s own red pen had he survived to review these transcripts before
publication.
Preparing this document has been a bittersweet experience. Like many others, I miss the
Judge tremendously. But by documenting the Judge’s spontaneous thoughts on a vast range of
issues, this oral history brings him back to life and reminds us who he was — brilliant, kind,
intellectually ravenous, and very funny. I am grateful to have played a role in preserving this record
of an exemplary judge, scholar, and man.
Jonathan E. Nuechterlein
March 2022

 

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Oral History of Judge Stephen F. Williams
Session 1
November 18, 2007
Mr. Nuechterlein: Hello, this is Jon Nuechterlein. I am a partner at WilmerHale, it is
November 18, 2007, and we are here with Stephen Fain Williams to
begin his oral history for the D.C. Circuit Oral History Project. For the
sake of full disclosure, I have known Judge Williams for many years. In
fact, I clerked for him — first, as a summer clerk, back in 1988 (we
worked together on his cases in an office at the University of Colorado in
Boulder), and I went to work for him as a bona fide clerk in 1990-1991.
So I have heard some of these stories, but I have not heard them all. I am
looking forward to hearing more.
For this first installment, we are going to talk about the Judge’s
background. So, Judge, it would probably make sense for you to tell us a
little about your parents and grandparents. We have the outline that the
oral history people have provided to us, and one of their questions is when
your ancestors arrived in the United States. I am not even sure if I could
answer that question for myself, but do you have any insights?
Judge Williams: Everybody has a lot of ancestors, as you go up the family tree. They arrived
in a range of times from the early 17th century to maybe the mid19th century and probably after.
Mr. Nuechterlein: Do you have any Mayflower ancestors?
Judge Williams: I do.
Mr. Nuechterlein: Do you know their names?
Judge Williams: One was Richard Warren, who apparently is responsible for about
12 million American progeny (I’m not sure if that’s cumulative or presentday). It sounds like a lot, but if you imagine someone who had ten
children, each of whom had ten children, with an average gap of 25 years
between generations, you’ll see that since 1620 you would reach a current
number of descendants far above 12 million. Of course Warren and his
progeny were nowhere near so prolific, so there are only 12 million.
There’s also another Mayflower forbearer, Thomas Rogers, who didn’t
lead to so many descendants; I don’t have any figures on him.
Of course many of my ancestors were thrown out of countries or found
life uncomfortable in the countries where they were.
Mr. Nuechterlein: For religious reasons?
Judge Williams: Yes — well, at least some. Some were Huguenots who were thrown out of
France as a result of the revocation of the Edict of Nantes in 1685. I don’t
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think they made their way — in fact, I am reasonably sure they didn’t
make their way — straight to the US, but proceeded instead through some
intermediate countries, and at least one of the original exiles or his or her
child proved to be an ancestor [who came to America]. I think the ancestor
to arrive most recently was a great-grandfather who was starving in
Ireland as a result of one of the potato famines and came to Texas, and he
played an important role in my mother’s background. I should say that
both of my grandfathers were lawyers, although I don’t think my mother’s
father did much practice.1
Mr. Nuechterlein: Did you know them?
Judge Williams: I didn’t know my father’s father at all; he died nearly 20 years before I
was born. But I knew my mother’s father.
Mr. Nuechterlein: He was a lawyer?
Judge Williams: Yes, he was a lawyer, although not very active as a lawyer.
Mr. Nuechterlein: This was a Fain?
Judge Williams: Yes, this was William Hugh Fain.
Mr. Nuechterlein: Where did he live?
Judge Williams: He and his family lived in Greenwich, although in an early period in my
mother’s growing up, they used to go to Houston, Texas, where her
grandfather lived. I think they went every winter — just why, I am not
sure. Anyway they did.
Mr. Nuechterlein: So this is a little bit of a Horatio Alger story: the family went from the
potato famines of Ireland to Greenwich, Connecticut in several
generations.
Judge Williams: Yes — I suppose really two — the great-grandfather comes over, and his
daughter is soon living in comfort in Greenwich.
Mr. Nuechterlein: So tell us a little about your parents themselves. We can start with your
mother.2
Judge Williams: OK. She was born in 1907 in the city of New York but was brought up in
Greenwich and went to Rosemary — as it then was, now Choate
1
Judge Williams added this note to the transcript: “Jon—it might be fun to put in somewhere around here reference to
my ancestors who left Scotland after an itinerant preacher persuaded everyone in my ancestors’ town to take a no-alcohol
pledge. Only one couple, my ancestors, stuck to it. Apparently because the other townsfolk thought they were holier-thanthou, they left, and they or descendants made their way to America.”
2 Virginia Fain Williams.
3
Rosemary Hall — and then to Bryn Mawr. And after Bryn Mawr, she
moved to New York and got a job in the office of an architect, William
Lescaze, who at one time was fairly well known and among architects is
still well known. But she dropped that when she got married. And I think
that was probably a pity. It probably was a result of some sort of notion
that married women should be in the home rather than off at work.
Mr. Nuechterlein: What is the date range that we are talking about here?
Judge Williams: They were married September 6, 1930. And I think it was just between
college and marriage that she worked for Lescaze. And I remember
hanging on one of the walls of our summer house in Norfolk, Connecticut
was a sketch of a building for an elderly invalid, imaginary as far as I
know, which looked quite charming. It was very modern. It clearly
presupposed that this elderly invalid had a lot of people helping, because
she was out in the countryside, and how she was going to get anything to
eat or see anybody would have to depend on quite a few people helping
her. I thought about it wistfully in comparison to the retirement
communities most people end up in nowadays. I remember that my mother
mentioned that most of the work at Lescaze’s wasn’t very glamorous — at
least some if it was working out the exact details of closets in some houses
that he was designing.
Mr. Nuechterlein: When did your mother meet your father?3
Judge Williams: They married in September, and they met about 6-8 months before.
Something like that.
Mr. Nuechterlein: What year?
Judge Williams: 1929 or ‘30. They met at a dinner party, and they both agreed that the host
of the dinner party, who was a relative of my father’s, was perhaps the
most boring person either of them had ever met. And my mother took
from it that sometimes good things can come from going to a boring party.
Mr. Nuechterlein: It makes the guests talk to each other.
Judge Williams: [Laughter.]
Mr. Nuechterlein: And so they got married several months later.
Judge Williams: There weren’t long engagements in that era.
Mr. Nuechterlein: And you are one of how many children?
3 C. Dickerman Williams.
4
Judge Williams: One of three. I am the youngest, with two older sisters.
Mr. Nuechterlein: Do you want to say a few words about that?
Judge Williams: Sure. My older sister Joan went to Putney School in Vermont and then to
Radcliffe. She wanted to go to an art school after college, but my parents
didn’t feel that subsidizing that was a good venture. And I remember her
talking about whether she should learn how to type. She very determinedly
decided not to. She was concerned that anywhere she got a job would slide
her into typing, and she would never emerge, and that would be the end of
it. In fact, I just met someone at dinner a few nights ago who did learn
typing, started out typing at McKinsey and Company and rose, not to be a
consultant, but to an administrative post there.
So my sister’s calculations weren’t 100% right, but it worked for her
because she somehow or other got into investment analysis and became
very, very good at it. She founded the Young Women’s Investment
Association — that was the name at its founding, but since then it has
undergone a name change [to Financial Women’s Association of New
York] and is now a huge organization. And she just retired from the Bank
of New York as an investment analyst.
Mr. Nuechterlein: What is her name again?
Judge Williams: Joan Farr. And my next older sister is Honor, who had a radically different
career. She went to Radcliffe, and before that she also went to Putney, and
while she was there, Putney had a teachers’ strike. In fact, both of them
were there at the time of the teachers’ strike. Just terribly
discombobulating to the school. And I think it was in the middle of my
sister Joan’s last year, so she just finished up. But my sister Honor went to
Chapin School for a couple of years, which at least in part overlapped with
my father’s being Solicitor (as it was so called and perhaps still is) at the
Department of Commerce, so he and my mother were living in
Washington.
Anyway, Chapin and then Radcliffe, and there she took what proved to be
an important course for her. It was Professor Reischauer’s course, which
was generally known at Harvard as Rice Paddies. It had a more formal
title such as History of Far Eastern Civilization or something like that. She
became quite obsessed, and then she took an intensive course in Japanese,
and she did very badly. I remember her saying she got a “DD” because it
was two courses; and she felt that even the “D” had been a charitable
grade.
But she remained interested enough so that, upon graduation in 1956, she
set out for Japan with a job at a college there teaching English. She didn’t
continue to teach at that college, but she remained in Tokyo for the rest of
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her life up to now. She married a Japanese man, from whom she is
separated now, and has two daughters, both of whom live in the US.
Mr. Nuechterlein: You mentioned your father’s work at the Department of Commerce, and
since he was a well-known lawyer in his own right, I was wondering if
you could say a few words about his legal career.
Judge Williams: Sure. He clerked for Chief Justice Taft…
Mr. Nuechterlein: Was that right out of law school?
Judge Williams: Yes, right out of law school.
Mr. Nuechterlein: What law school did he go to?
Judge Williams: Yale. He was Chairman of the Law Journal. Then, when he was done
clerking for Taft, he went right into the U.S. Attorney’s office in New
York. He spoke with a little irritation of it later. He was assigned to the
Criminal Division and particularly prosecuted bootleggers, so he knew
criminal procedure very well. I do remember his saying that, as a
prosecutor of bootleggers, it was important for him not to drink liquor
during Prohibition (although I think he went to a huge number of parties
where there was a great deal of liquor). That seemed to be the honorable
thing.
To return to the irritation, which I think was mild but real: while others
were developing skills more immediately useful in a general civil
litigation practice, his concentration on bootleggers wasn’t so completely
transferable.
Then he was in private practice after that.
Mr. Nuechterlein: What firm, do you remember? Was it in New York?
Judge Williams: Definitely in New York — except for fairly brief stints in Washington, his
whole legal career was in New York. He was in Breed, Abbott & Morgan,
but I am not sure whether that was before or after he was General Counsel
of the American Locomotive Company. I think before. And then he
became General Counsel of the American Locomotive Company, and
then, in the last two years of the Truman Administration, he was Solicitor
of the Department of Commerce.
Mr. Nuechterlein: Was he a Republican or Democrat?
Judge Williams: He was definitely a Republican.
Mr. Nuechterlein: But he had a job in the Truman Administration?
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Judge Williams: Yes, but at least as he described it to me, the Department of Commerce
was a small enclave of conservatives in the Truman Administration. He
was a great admirer of Charles Sawyer, an Ohio Democrat who was
Secretary of Commerce, and they got on very well I think. As to things
that he did, the Steel Seizure Case was obviously highly political, but a lot
of stuff they did was — like, in a sense, most of the stuff I do — largely
apolitical, where the principal job was being sure that the Department
acted within the law — just like my job.
Actually, in his papers, I came across a memento of those years. A big
thing he did was to settle the dispute over the Dollar Line, a dispute that
generated a case called Land v. Dollar,
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a big case on sovereign immunity.
I think that was decided … just before he started at the Department of
Commerce. Anyway, it was a huge litigation that went on and on, and he
did settle it. And I have in his files a picture of him giving or receiving, I
honestly don’t remember which, a check for a million dollars that was part
of the ultimate settlement. I recall, in connection with that, he flew out to
San Francisco a couple of times, and that seemed to me, a kid in his teens
in the early 50’s, a terribly dramatic thing to do. [Laughter.]
I think at that time I had been on a plane once when we went to look at
boarding schools. We went up to Boston by plane, and I was to look at
Exeter. That was certainly the first time I had ever been in a plane, and we
did very little travel, so I think it held the record (for me) for a long long
time.
Mr. Nuechterlein: What did your father do after the Truman Administration?
Judge Williams: After the Truman Administration, he started a small law firm with others;
it had various names, but most of the time it was McClay, Morgan, and
Williams.5 They did a lot of maritime things, which I think is something
he picked up in the Department of Commerce, because it has (or had) the
Federal Maritime Commission. We occasionally review their decisions
from time to time. In any event, it certainly gave him exposure to maritime
law that I don’t believe he had before at all.
I tend to regard as the high point in his career the [Oksana} Kasenkina
case. She was a teacher with the school that the Soviets maintained in New
York for the children of workers at the Soviet Mission at the UN and the
consulate in New York. She decided she wanted to break away from
Soviet control. But they caught on to this, and their goons picked her up
4 330 U.S. 371 (1947).
5 May be a transcription error; Dickerman Williams’ New York Times obituary identified the firm as Baker, Nelson &
Williams.
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and took her to the Soviet Mission in Manhattan, a building just off Park
Avenue in the high 60s.
Word got out about it, and my father had the idea of using the writ of
habeas corpus to get her out. As you know, it is an ancient writ designed
to challenge the custody of someone, so this suit was filed on her behalf. It
didn’t do any legal good, but it received some publicity because the
factual background was exceptional. I don’t know if the New York
newspapers were particularly interested in the innovative use of the writ,
probably not, but as a result of the publicity, a throng of reporters gathered
on the sidewalk by the building. She was on the 4th floor and saw them,
and she jumped out of the window.
She wouldn’t have done that without the crowd, because the Soviets
would have just scooped her up and taken her back. She did survive, and
the newspaper men protected her from the Soviet agents. She wrote a book
about it.
Mr. Nuechterlein: So you father practiced for many years in this firm?
Judge Williams: Yes, from the end of the Truman Administration to his retirement, which
was a gradual thing — he let his work taper off — sometime in the late
70s.
Mr. Nuechterlein: I was fortunate enough to meet your father in 1988. He was in his 90s then

Judge Williams: If it was the summer of ‘88 he would have been on the verge of being 88.
Mr. Nuechterlein: And he lived to be how old?
Judge Williams: Lived to be 97, very nearly 98.
Mr. Nuechterlein: What can you tell us about his political views? Would you say he was a
mainstream Republican?
Judge Williams: He certainly was a Republican, and probably what was the Republican
mainstream at that time. He was very into economics, but he definitely
was soft on protectionism — both the two major kinds. One is tariff
protectionism, and the other is regulation of, for example, trucking, which
is now seen as having worked entirely for the purpose of protecting
trucking firms and trucking labor and of course has now been done away
with. This protectionist inclination may have come from the time he was
at the Commerce Department, which was pro-business.
Mr. Nuechterlein: When I think of the Republican Party from the first two thirds of the
20th century, I think of a business orientation.
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Judge Williams: He had considerable understanding of markets, but he was more probusiness than pro-market. He was also, as the Kasenkina story suggests,
very anti-communist. I once asked him when that started, and he
mentioned that when the Bolsheviks took over he was kind of agnostic —
“this is an interesting idea if it works.” I am sure there was a gradual
awakening process, but what really turned the lights on was a set of
articles by Eugene Lyons … called Assignment in Utopia. It was a series
of articles about what Lyons found when he went to the Soviet Union.
Unlike a lot of other people who went there in the 30s, he got it right. The
articles locked my father in on the viewpoint that I don’t think anyone
now questions.
Mr. Nuechterlein: How did he feel about the New Deal?
Judge Williams: Well, he wasn’t one of the people who called Roosevelt “that man.” I
remember discussing minimum wage laws with him; he found it odd that
farmers resisted the minimum wage, because on the family farm, using
family members, labor wouldn’t be paid at all. Because their non-family
competitors would be paying the minimum wage, among farmers it would
be advantageous for the family farmers.
And for farmers as a whole, it probably would have made little difference,
because their competition was other U.S. farmers, and the minimum wage
would raise all their costs and prices. So there would be little harm —
always on the assumption that foreign competition wasn’t a big deal.
Which was probably pretty much true in that era.
Mr. Nuechterlein: Do you remember your parents having political discussions?
Judge Williams: Certainly, by the time I knew them, they were roughly on the same page.
My aunt used to recall a moment in the mid-20s — she and my mother
were lying on a beach in Bermuda, and my mother turned to her and said,
“Well, I think I am really a socialist.”
But certainly by the time I knew her she wasn’t a socialist at all. They
were both out of the current Republican mainstream — they would be
classified as social liberals. Their very best friend was very active in
Planned Parenthood, and they were staunch proponents of the right to have
abortions. Although certainly, as a lawyer, my father thought Roe v. Wade
had absolutely no constitutional basis, he definitely liked the policy — if
he had been a legislator, that is what he would have voted for.
Mr. Nuechterlein: Had they ever identified themselves as libertarians?
Judge Williams: I don’t think so. The Libertarian party, if it existed at all, wasn’t yet wellknown, but certainly you could line up quite a few of their positions as
9
libertarian, except for my father’s sympathy for various kinds of
protectionism.
Mr. Nuechterlein: You mentioned during our break that there was something about your
mother that you wanted to talk about.
Judge Williams: She was a very bright and talented woman, but what I wanted to mention
is that she had legal skills. There was a time when there was a meeting
about her mother’s estate in the offices of Sullivan and Cromwell in New
York — my mother, father, lawyers from Sullivan, and a lawyer from
Connecticut called Mr. Badger. Apparently after this meeting, the
associate and partner from Sullivan and Cromwell were walking down a
corridor, and the associate asked the partner, “Who do you think is the
better lawyer, Mrs. Williams or Mr. Badger?”
She cared a lot about words, which lawyers tend to, and she cared about
using them correctly. She was very good at Scrabble and anagrams,
crossword puzzles, which I am terrible at, and I am not much good at
Scrabble either. She was extremely verbal. We actually have some
paintings of hers in the house. She had a lot of skills.
Mr. Nuechterlein: Let’s move on to where you grew up. Am I correct that was Connecticut?
Judge Williams: No — I grew up in New York City. In the summers, we went to Norfolk,
Connecticut, but for 9-10 months of the year, we were in New York City.
Mr. Nuechterlein: Where?
Judge Williams: Upper East Side. I went first to some school — you may want to delete
this:6 One time when my father picked me up at the end of school, the
head of it said, “I would like to talk with you and Mrs. Williams about
Stephen’s development” — I was five at the time, maybe four. The time
was set up, and he came to my parents’ apartment, and he said, after a lot
of throat clearing, “I have to tell you that Stephen does not understand the
role of the father in the reproductive process.” I assume it was a pretty
progressive school — I have very little recollection of it. That is the high
event from it.
Then I went to Collegiate from first through third grades, and what I
remember mostly is … my sisters’ endless teasing me about it. There was
a report card that said that I was “mature in thought, immature in actions.”
Then I started the fourth grade at the Buckley School, which ran from K to
eighth grade, and then I went to Millbrook School for ninth through
6 Too charming to delete.
10
twelfth — Millbrook being a boarding school. About two hours north of
New York.
Mr. Nuechterlein: Tell us about those years in Millbrook. Did you enjoy them; did you learn
lots of things? Tell us about your classmates you kept in touch with.
Judge Williams: It was a very small school at the time, partly why I went there. When my
parents took me to Exeter, which was something like seven or eight times
as big, I remember feeling just overwhelmed by the number of people, so
at least I thought a small place would be more comfortable. I am not sure
whether that was really true. That played a role in my going there.
I was originally quite drawn by the zoo they had there, which had been
started by Frank Trevor. He had just driven up to the school with a station
wagon full of animals and talked to the headmaster, Mr. Pulling. And his
enthusiasm and intelligence were so great that Mr. Pulling gave him a job
on the spot, and he started a zoo, which has now become quite a huge
enterprise at Millbrook. …
In the end, I had very little contact with the zoo, and I didn’t enjoy
Trevor’s biology course very much. It seemed to me to be too much
focused on taxonomy — we were always classifying animals, which
didn’t seem to be very interesting. If there was stuff on evolution, which I
think I would have found fascinating, as I do now, I don’t recall it. There
was also looking at things through microscopes, amoebae, spirochetes and
so forth, and I remember having great difficulty finding what I was
supposed to be finding. I didn’t seem to have very much of a knack for
that. So, anyway, that aspect of Millbrook didn’t prove out very much for
me.
But I found it offered a lot of attention to individuals, and there were
challenging courses. I went into … an advanced Latin course on arrival,
and same thing for French. My first year I was taking classes in French
and Latin with people who were at least a year ahead of me. They
certainly made sure they tried to fit students into the right classes.
There was a class taught by Mr. Pulling on the Bible, and that really
focused on interesting stories and so forth. And there was chapel twice a
week, which included one reading from the Bible at the Thursday chapel
and two at the Sunday chapel. So that gave me good exposure to the Bible,
which simply seemed to be extraordinary, and may have had some effect
on my writing.
Mr. Nuechterlein: How about socially? What do you remember about the social milieu of the
New England boarding school back in those years? This being your first
time away from your family.
11
Judge Williams: In some aspects, Millbrook was less preppy than other prep schools. There
were people there that undoubtedly had loads and loads of money but you
didn’t see it. Obviously no one could have a car, nobody had a TV set,
there was no way someone could display wealth at Millbrook, so that was
a good thing. I was very shy.
Mr. Nuechterlein: Were you homesick when you first got there?
Judge Williams: Yes, I must have been. There were a very limited number of times you
could go home for weekends, which was probably a good thing. But I
found a niche of a sort. I never became a madly social being there. My
best friend was Tony Piel, whom I encountered later at law school. A very
bright, very talented person. …
Mr. Nuechterlein: You mentioned earlier that the Buckley brothers were at Millbrook — Bill
and Jim?
Judge Williams: Bill and Jim, plus two of their brothers whom I’ve never met, John and
Reid. This was of course before I got there; they had all graduated — I
didn’t overlap with them. When I think of the Buckleys at Millbrook and
myself at Millbrook, I do think of this anecdote involving Frank Trevor,
who . . . I guess was ardently pro intervention in World War II. He
certainly locked horns with Bill Buckley, who was an America Firster —
an organization that opposed intervention in World War II.
Mr. Nuechterlein: This is while Buckley was a high school student?
Judge Williams: Right. And I must have had some political disagreements with Trevor,
because I do remember another teacher reporting to me that Trevor had
said that “Williams is the most dangerous student here since William F.
Buckley.”
Mr. Nuechterlein: What do you think he meant by that?
Judge Williams: Well, (a) I had bad ideas, the way he saw them, and (b) he must have
thought I had some skill at presenting them; otherwise I wouldn’t have
been dangerous.
Mr. Nuechterlein: What sort of ideas or topics?
Judge Williams: That is a good question. This was the Eisenhower era — good feeling,
complacency, and so forth. … They probably were things having to do
with America’s international role. I can’t recall any specific clash with
Trevor on such things.
Mr. Nuechterlein: Do you recall ever focusing on domestic, economic, regulatory issues?
Judge Williams: I really don’t.
12
Mr. Nuechterlein: Were you exposed to economics in high school?
Judge Williams: No — high school was devoid of economics.
Mr. Nuechterlein: Latin instead.
Judge Williams: [Laughter.] Latin made us think, so that would be enough. I am jumping
ahead: I had my first economics course in my freshman year at Yale, and
it was at 8:00 am, and I was sort of an early riser, so that wasn’t so bad,
but I have to say that something about the teacher or whatever made it
terribly boring, although Yale had a good economics department. I never
took another economics course. In fact I never took another economics
course in my life.
Mr. Nuechterlein: I took exactly one economics course at Yale and had exactly the same
experience.
Judge Williams: Oh really?
Mr. Nuechterlein: Yes. You mentioned before we began here that your first job was pumping
gas?
Judge Williams: I worked in a gas station.
Mr. Nuechterlein: Do you remember which one?
Judge Williams: This was a gas station in Norfolk, Connecticut, where we went for the
summer, and it was probably the first summer I had a driver’s license, so I
would have become 16 the September before. I pumped gas, which wasn’t
rocket science obviously, and I tried to watch what the mechanics were
doing by way of repair. I can’t say that I picked up a great deal. I did learn
how to change a tire; I don’t mean just changing the wheel and tire, but
removing the tire from the wheel and replacing it. But you have to have
the equipment, so later in life it doesn’t do any good without the
equipment. At least I know what they are up to when I watch them doing it
in a garage.
Mr. Nuechterlein: When did you buy your first car?
Judge Williams: I think it was when I got to New York after law school, and after my
10 months in the Army.
Mr. Nuechterlein: Did you put a lot of thought into what you were going to buy?
Judge Williams: Well, I liked the idea of a convertible, and being in New York, I wanted
something easily parked, and I got a VW convertible. VW had a very good
reputation.
13
Mr. Nuechterlein: You are not still a car aficionado?
Judge Williams: No, I am really not.
Mr. Nuechterlein: So this is sort of an interesting summer job, given your background. You
had gone to an exclusive prep school, and you took a job pumping gas one
summer. Was this considered something that was good for you?
Judge Williams: I am sure my parents thought it was good for me. In exactly what ways, I
don’t know. They knew I was very interested in cars – it was a natural
thing.
Mr. Nuechterlein: I think I remember the first President Bush spent some of his summers
bailing hay out in the West because that was considered good for the
character.
Judge Williams: Yes. When I was small, the farm we lived on was a working farm — not
worked by my parents, but it was a working farm. One summer I was a
farmer helper in a serious sort of way, getting up at 6 a.m. or before to
milk the cows. And being with the farmer and his main helper on all the
stuff they were doing, I got a real exposure to farm life.
Actually, that reminds me that Millbrook has put out a 75th Anniversary
CD. And in the course of it, they interview lots of graduates, not including
me. They interview actually both Bill and Jim Buckley, and Bill talks on
the CD about his brief period of involvement with the Millbrook zoo, and
says that it gave him a lifelong dislike for all things agricultural. I will say
that my time on the farm made me not want to become a farmer.
Mr. Nuechterlein: This was your parents’ farm?
Judge Williams: Yes, my parents’ farm.
Mr. Nuechterlein: What sort of salary did you make at the gas station?
Judge Williams: I am sure it was minimum wage.
Mr. Nuechterlein: What would that have been?
Judge Williams: $1 an hour? Very, very small. But it presented a tax situation. If my
income, or perhaps my earned income, rose above $500, then I had to file
a tax return. I can’t believe the tax rate was very high, but my parents
wanted me to continue working, and they wanted me to have an incentive
to work. They didn’t want me to receive more taxable income, so after I
hit $500 they paid me.
Mr. Nuechterlein: I’m sure the gas station appreciated that.
14
Judge Williams: So clearly my parents weren’t interested in boosting the family income.
Mr. Nuechterlein: You graduated from Millbrook and went to Yale. What was the college
admission process like then? Was it highly competitive to get into Yale?
Had your father gone there for college and law school?
Judge Williams: Yes he did. It was obviously much less competitive than it is now. I really
can’t say what position I would be in if what is happening in 2007 had
prevailed in 1954. I sailed in.
Mr. Nuechterlein: Did you apply anywhere else as a safety school, or did you apply, get the
answer back that, yes you were admitted, so you didn’t need to apply
anywhere else?
Judge Williams: I did apply to Haverford, but it wasn’t really as a safety. Again the
yearning for the small was at work, and so I did apply to Haverford. I
assume I got in, but more relevantly I got into Yale. The college adviser at
Millbrook told my parents, “Steve can write his own ticket.” He felt
confident I could get into anyplace.
Mr. Nuechterlein: I went to Yale, just for the record. Did they have residential colleges then?
Judge Williams: Oh yes — I was in Pierson. They all had some number of residential
seminars, and I remember I took an English seminar with Joel Dorius, who
I thought was a really good teacher. … He helped me see things in what
we were reading that I would have never seen.
Mr. Nuechterlein: What did you major in?
Judge Williams: History. I remember another teacher … — L. Pearce Williams, whose
specialty was the history of science. He didn’t teach the main European
history course, but they had “sections.” Once a week, a small group of
people — 20 or so — would meet. … There was a separate book for that
part of the course, which had problems and was supposed to teach you
how to reason from the raw material of history. And he was just
extraordinarily lively and came up with comparisons that made things
understandable and vivid, which on the whole they weren’t in the main
lectures.
Mr. Nuechterlein: Did you write a senior thesis?
Judge Williams: I did — I wrote on the Hoover Moratorium. Very few people know of the
Hoover Moratorium now, but a continual problem from the end of World
War I until the Hoover Moratorium in 1931 … was the failure of the
Germans to pay reparations, and the failure of the European allies to pay
their wartime debts to the U.S. There were successive reductions under the
Young Plan and the Dawes Plan, and finally, once the Depression got
underway, it obviously became still more difficult for them to pay. The
15
Hoover Moratorium was a moratorium on the payments across the board,
Germans to the Allies, and the Allies to us. It was done in the hopes of
rescuing the European economies from the Depression. Obviously in some
sense it was completely inevitable, but it was a good thing that the world’s
principal creditor called a halt to it semi-voluntarily. That made it a less
contentious problem than it would have been if we had kept on trying to
collect the debts. Of course moratorium means just delay. But as it proved,
it wasn’t just a delay; it was the end.
Mr. Nuechterlein: Who was your thesis advisor?
Judge Williams: I forget — it wasn’t a very hands-on giving of advice.
Mr. Nuechterlein: Do you ever remember thinking “Oh, I wrote this interesting paper, maybe
I should get it published?”
Judge Williams: I really didn’t — no.
Mr. Nuechterlein: That is one of the odd things about college — people are constantly
writing these papers that only one other person will probably ever read.
Judge Williams: I am sure I sensed that it wasn’t good enough. Whether it could have been
turned into something good enough, perhaps by the help of some shoving
by a teacher, I don’t know.
Mr. Nuechterlein: … I am thinking about William Buckley and his book God and Man at
Yale and … about current President Bush’s view of Yale in the late ’60s
when he was there. And I am wondering whether you perceived a
particular ideological environment at Yale. Did you feel estranged at all
from the other students, or did you feel you were more in the mainstream
of the Yale students’ worldview at that time?
Judge Williams: I was probably in the mainstream. A very central event of it — almost the
exact chronological center of my time at Yale — was the Hungarian
Revolt of 1956. Everyone was on the side of the Hungarians. If we were to
construct a parallel today, I’m not sure if that would be true.
Mr. Nuechterlein: So, Judge, tell us a little about the Yale Political Union when you were a
student there in the ’50s.
Judge Williams: Well, it was modeled on the Oxford Union idea that students could hone
their skills as debaters. There was a right-wing party called the Party of the
Right, and a left­wing party, I don’t know how it was labeled. And each of
them in my time had one incredibly articulate … outstanding spokesman
(they were men, as were all students at Yale at the time). For the Party of
the Right, it was Richard Arnold, who later became a judge of the Eighth
Circuit. You mentioned, while we were talking, “Wasn’t he a Democrat?”
Well, yes, he was a Democrat, but I remember a conversation with him —
16
I don’t know if it was at Yale or a later, at law school or even beyond —
in which he said, “A liberal Republican is the worst thing because it is
against nature.” You might say the same of a conservative Democrat. But
he probably didn’t feel that was against nature.
He certainly showed at Yale the brilliance that he later showed. I can’t
remember particular lines of his but he was definitely very eloquent. Then
on the left there was André Schiffrin, who later went into a very
distinguished career in publishing, being director of publishing at
Pantheon for decades. He also was very eloquent. I do remember a line of
his — well, I am not going to get it quite right — but it was basically how
the Republicans are always criticizing the Democrats for giving away
countries the U.S. doesn’t have. That must have had to do at least in part
with China.
Mr. Nuechterlein: Do you remember debates at the time about economic policy?
Judge Williams: There must have been debates about tax policy, but I honestly don’t
remember them. I think it is fair to say that today a debate about
economics would be carried on at a more sophisticated level than it would
have been then. … I also remember — and this may say something about
Yale in that era — I think it was André Schiffrin who was very critical of
the course on Marxism, and I remember him saying it was just an attempt
to inoculate the students.
Mr. Nuechterlein: Did you have any Marxist professors?
Judge Williams: Not that I know of. If there were, they kept it in the closet. The course on
Marxism took us through the great Marxist writers, but of course it also
took us into the uses of Marxism by Leninists and Stalinists and Third
World dictators who assumed power and then justified their one-party rule
with Marxist theory. It is fair to say that it didn’t leave one with a very
warm feeling toward Marxism.
Oddly enough, later in life, I found that Marx occasionally said something
that was really very penetrating and smart. I quoted a whole paragraph of
his in my book,7
so maybe my general distaste for Marxism shows that the
course was just an inoculation. But I have been thinking back on it. It does
seem to me that Marxism then and Marxism now, on the whole, as a way
of looking at the world, tends to flatten things into class struggle. Social
life, economic life are so much more complex than class struggle that
Marxism overall seems to be really quite a deadening set of notions.
7 Stephen F. Williams, Liberal Reform in an Illiberal Regime: The Creation of Private Property in Russia, 1906-1915 (Hoover Inst.
2006).
17
Mr. Nuechterlein: Did you get the sense that other students at Yale College were flirting with
Marxism?
Judge Williams: No, not at all. No sense at all, except for André Schiffrin, who was
definitely a strong and articulate left-winger.
Mr. Nuechterlein: One gets a sense that, at Oxford and Cambridge in those days, there was a
lot of Marxist ferment.
Judge Williams: Yes. If there was at Yale, I completely missed it. …
Mr. Nuechterlein: Were there any discussions about whether Yale should admit women?
Judge Williams: No.
Mr. Nuechterlein: Where did people meet women?
Judge Williams: People went to Poughkeepsie and Northampton. Women came from
various places. …
Mr. Nuechterlein: Were there any great universities in that time that were co-ed?
Judge Williams: Well, Harvard de facto was, although, as my wife will tell you, in her era
it was definitely not fully integrated as it is now. Radcliffe had a separate
residential life, but to some degree there was an integrated intellectual life.
There was obviously geographic convenience, and in addition some jointly
given courses.
Mr. Nuechterlein: What about racial minorities? Do you remember Blacks on campus?
Judge Williams: There was a tiny handful — very few.
Mr. Nuechterlein: Was there a sense that Yale didn’t look like the United States at large?
Was that a concern for anybody?
Judge Williams: People weren’t talking about it, I don’t think.
Mr. Nuechterlein: Did you meet any of the Black students?
Judge Williams: I am sure I met them, but I didn’t have any extensive contact with them.
Mr. Nuechterlein: Asian-Americans?
Judge Williams: I don’t think there were many Asian-Americans.
Mr. Nuechterlein: How about Jews?
Judge Williams: Yes —
18
Mr. Nuechterlein: I was told that, during this time, there was a quota system designed to limit
the number of Jews at Harvard and Yale. Do you remember hearing
anything about that?
Judge Williams: I didn’t — it seems I had my ears and eyes closed. I don’t remember that
being a subject of discussion.
Mr. Nuechterlein: But you knew there were Jewish students?
Judge Williams: Oh yes. I have to admit it was a problem I had and still have — I am not
very good at identifying who is Jewish, so I have absolutely no idea what
the proportions were.
Mr. Nuechterlein: Was there any sense of Jews being outsiders at Yale College at the time,
or were they fully assimilated?
Judge Williams: I think they were pretty assimilated.
Mr. Nuechterlein: So you graduated in 1958?
Judge Williams: Yes.
Mr. Nuechterlein: And you moved straight on to Harvard. Did you know early on in college
that you wanted to go to law school?
Judge Williams: Law school was certainly on my parents’ agenda and so it was something
that I thought about. At college I had notions of going into the ministry. I
had a strong but very erratic idealistic streak. For some reason or another,
I thought I would do well as a minister. I didn’t really believe, which made
it not a terribly good fit.
Mr. Nuechterlein: You would have fit in perfectly at the Yale Divinity School.
Judge Williams: I would have fit in perfectly today, but I am not sure if I would have fit in
in the mid-’50s. I think I would have been ahead of my time.
Mr. Nuechterlein: Were your parents church-going people?
Judge Williams: Randomly, or occasionally.
Mr. Nuechterlein: What type of church?
Judge Williams: My father had been brought up as a Presbyterian, and in fact his mother
was Presbyterian, but, as a young girl at a marriageable age, she had a
suitor whom she liked a lot who was a Methodist, and in the end that was
the deal-breaker.
Mr. Nuechterlein: Don’t both the Presbyterians and the Methodists — don’t they both trace
from Calvin?
19
Judge Williams: Whatever the divergences were, they were conceived by her in the 1890s
as too great.
Mr. Nuechterlein: At some point you gave up these dreams of the priesthood to go to law
school.
Judge Williams: Not exactly priesthood. Even at law school I had resistance. I actually won
a Ford Foundation scholarship to study Chinese, which was to be
integrated with law to some extent. It was a flight from the law. And in
part a flight into scholarship, to which I later did turn, for 17 years. There
was a special resistance to being a conventional lawyer.
Mr. Nuechterlein: But your parents, you say, wanted you to be one.
Judge Williams: They were very enthusiastic.
Mr. Nuechterlein: Why? Did they think you would be good at it?
Judge Williams: I think they thought I would be good at it. My mother had somewhat
idealistic notions about lawyers. She thought they were always dealing
with principles, and she distinguished that from businessmen, who were
just making money. That may have played some role. I remember my
mother being quite articulate on that ideal.
Mr. Nuechterlein: And your father didn’t set her straight?
Judge Williams: No. My father really had a high regard for law professors, and he admired
enormously his professors at law school.
Mr. Nuechterlein: Now that was during the era of Legal Realism.
Judge Williams: Yes. In another effort to break away from the law, I toyed with foundation
work. We had a friend who was on the board of the Ford Foundation, and
he set up an interview for me there. And I came away from that horrified
on two grounds. One was, I said something to the person interviewing me
indicating my notion that the great thing about the Ford Foundation was
all these bright people having millions to throw around; I pictured great
lunch conversations finding new ways to deploy their millions. And he
responded that there was rather a strict chain of command. He depicted it
as the most bureaucratic organization, and that didn’t appeal to me at all.
And the other thing I remember him saying that repelled me was, “When
we travel, we travel first class.” So he wasn’t speaking to the idealist in
me. But I do remember talking to my father about that, and my father
specifically saying, “It is not as if you would become a law professor,”
which he regarded as challenging and serious. He regarded foundation
work as dilettantish and frivolous.
Mr. Nuechterlein: So did you apply to other law schools?
20
Judge Williams: I applied to Yale and Harvard, and I got into both, and I spent a long time
mulling which one to go to. And I decided I should flip a coin. So I flipped
it, it came up Yale, so I said, “well, maybe it should be the best out of
three.” So I flipped some more, and Yale was still ahead, and then I
thought, maybe it should be the best out of five. And Harvard won on the
best out of five, so I went to Harvard.
Mr. Nuechterlein: So what do you think guided you to keep on flipping?
Judge Williams: I think it must have significantly had to do with Cambridge over New
Haven. …
Mr. Nuechterlein: We all have a sense of the difference that Harvard and Yale law schools
have today. When you think back to the late ’50s and early ’60s, when you
went to Harvard, what was the popular conception of the distinctions
between those two law schools?
Judge Williams: People still thought that you got a serious legal education at Yale.
Mr. Nuechterlein: Is there a “but” coming?
Judge Williams: There is a “but,” but I don’t recall anyone saying to me that attention to
other disciplines would engulf the legal education. I think I did ask family
friends and people like that, and I don’t think anyone said, “Steer clear of
Yale.”
Mr. Nuechterlein: And your father was OK with your heading off to Harvard?
Judge Williams: Oh, he was OK with my heading off to Harvard, and by the same token, he
certainly didn’t raise any ideological objection to Yale.
Mr. Nuechterlein: We have all heard these stereotypes of Harvard Law School — the first
year, in particular — from the popular media, like The Paper Chase,
books like One L — I think they both took place, like, ten years later. Do
you recall the first year being high-pressure?
Judge Williams: I think it was high pressure. But at the same time, I should say, I was a
member, for example, of a study group there, and I think what we did was
practice on exams, which was a useful thing to see what exams were like
and to have practice at writing an answer. This study group used to meet
the in the late afternoon and do this for an hour or an hour and a half or so,
and then it would be time for drinks. So it couldn’t have been too
absolutely nose-to-the-grindstone.
Mr. Nuechterlein: And you were a member of the Law Review?
Judge Williams: Yes.
21
Mr. Nuechterlein: I assume that was highly competitive then.
Judge Williams: Yes.
Mr. Nuechterlein: Do you remember a lot of stress in the class about competing for a seat on
the Law Review?
Judge Williams: I don’t remember people talking about it.
Mr. Nuechterlein: Did it seem like a competitive environment to you? Were your fellow
students obviously ambitious?
Judge Williams: A lot of them were much more ready to speak out in class than I was, and
some of those I identified to myself as loud mouths, but some of them
were very, very bright. I rarely spoke in class. The first and only time I
was called upon in Contracts, there was something about a case that
engaged my interest, so I was able to say something that the professor
really liked. I don’t remember what it was.
Mr. Nuechterlein: What professors stand out as particularly good ones?
Judge Williams: Braucher was very funny, but I never understood Commercial Law, which
is what I took with him. I had Property I and Property II with Casner, and
it was very clear, and gave to a large extent a sense of how property held
together as a system. I should say, at the same time, that when I later came
to teach property, I took a somewhat more Yale-oriented approach,
because I tried to fit it into economic notions and to some extent
sociological notions. That hadn’t really happened at all in Casner’s class.
There was a clarity I remember about it, a sense of someone being totally
prepared and totally conscientious about trying to bring out the meaning of
the materials, within a certain constrained sphere.
I had Abe Chayes, who was very exciting. I don’t know if I fully
understood corporations, but he was almost, you could say, electrifying. I
remember this — I won’t focus on the professor, but Torts — I do
remember when we came to nuisance, my mind immediately started to see
it in economic terms, and these weren’t the terms in which the professor
addressed it. As one of my few affirmative interventions in law school, I
put forward a view that would now be associated with Pigou, the professor
whose ideas to a significant extent were overthrown by Coase in his
famous article on social costs. But even Pigou was far too advanced for
that course in that era, and the professor just brushed it off.
Mr. Nuechterlein: I take it this was before Melamed and Calabresi’s article, Another View of
the Cathedral.
Judge Williams: Yes. It was definitely before that article, and it would have been shortly
before Coase published “Social Cost” in 1960, but it is fair to say that my
22
gambit there was just brushed off without hesitation and without its being
engaged with. That says something quite critical at least about that
professor and probably about Harvard Law School in that era.
Mr. Nuechterlein: Did you get the sense that the professors were trying to instill in the
students a sense of mission, of the use of the law as a social tool for the
betterment of society — was that part of the environment at the time?
Judge Williams: Griswold was Dean at the time, and I connect this remark to him, although
possibly he said it later or it really was said by someone else, but I think it
captures the feel: “The world has no need for more lawyers. It has a huge
need for better lawyers.” Of course, it was a self-serving remark to some
extent. There was certainly a notion that lawyers were a good thing, and
this was largely put on the basis that lawyers were essential for the wheels
of commerce to run.
Mr. Nuechterlein: What about the law of racial equality, which was obviously an important
issue at the time? Was there much focus on that in law school?
Judge Williams: Very little.
Mr. Nuechterlein: So the focus was really on what the people in law firms do.
Judge Williams: I think that is fair to say. Yes. Maybe this is my mother’s influence, I had
a kind of scornful view of business, moneymaking, so forth. I really didn’t
see its role in making life better for people.
Mr. Nuechterlein: You didn’t see the value of a capitalist economy?
Judge Williams: It wasn’t that I thought socialism was a good thing. It was that it didn’t
seem very uplifting. Sort of the spirit of Irving Kristol’s book, Two Cheers
for Capitalism. As a young idealist I didn’t think two cheers were enough.
Mr. Nuechterlein: Harvard Law School was co-ed at this time?
Judge Williams: Yes, it was — but in my class of approximately 500, there were eight
women.
Mr. Nuechterlein: Would I recognize any of the names?
Judge Williams: One I remember very well was Nancy Eastham, and she is the mother of a
Canadian law professor. His first name is Edward, and his last name is
Iacobucci, and her husband was also a Canadian law professor, but I am
not sure about that.8 Her son certainly is. I saw him at a conference, and I
8 From 1967 to 1985, Frank Iocobucci was a professor at—and, for a time, dean of—the University of Toronto Faculty
of Law; he later became Chief Justice of the Federal Court of Canada. His son Edward Iacobucci is also a professor at the
same law school and was dean from 2015 to 2020.
23
knew she had married someone named Iacobucci, and he looked plainly
too young to have married her, so I introduced myself and found out he
was her son. There was another I met post-law school when I went down
to Mississippi with the Lawyers Committee for Civil Rights under Law —
that was in 1965.
Mr. Nuechterlein: Did you overlap at all with Ruth Ginsburg?
Judge Williams: No — I am 99.9% sure of that. Her travails with Harvard Law School
were earlier.
Mr. Nuechterlein: How about racial minorities? Were there Blacks or Asians?
Judge Williams: There certainly were Asians. One, Wally Tashima, became a federal judge
— part of the enormous contribution of our class to the federal judiciary.
But I don’t think I knew him at the time. There were Asian faces, and
there were black faces, but very few. I have a count on women, but not on
minorities.
Mr. Nuechterlein: The admission process at Harvard Law School was fairly competitive.
Was there any sense that the admissions office was trying to achieve social
or economic diversity, or was it solely on the grades?
Judge Williams: I think the overwhelming focus was on LSATs and grades. I think they
must have made an adjustment from where the grades were coming from.
Mr. Nuechterlein: But it was a solely quantitative assessment?
Judge Williams: I believe it was quantitative, and yielded a prediction of how well,
quantitatively, they would do in law school.
Mr. Nuechterlein: Was this an era in which people failed out of law school? …
Judge Williams: [There] is a terribly famous and much-quoted statement. The class
gathered together in the auditorium, and was addressed by the Dean, who
said, “Look to the right of you, look to the left of you; one of you three
will not be here at the start of the second year.” I can’t remember if the
Dean actually said that to our entering class. I think he couldn’t have said
it, because it was totally not true. I think our class of 500 was roughly 500
through the second and third year. Although, actually, I just learned from
some friends of mine that I had a classmate — I don’t know if he did
badly or just didn’t like it — but he did drop out after the first year and
became extremely distinguished in Chinese literary scholarship, which is
probably is a strong net benefit for the world all around. I learned of it
from talking with the wife of a now-deceased classmate, who had kept
somewhat in touch with this person. We were talking about it because one
of my sons is now a Chinese literary scholar.
24
Mr. Nuechterlein: You mentioned that your class holds a record of sorts — tell us about that.
Judge Williams: I think we hold the record for any law school for the number of federal
judges, and I believe the class had that record even before Tim Dyk went
on the Federal Circuit. In any event, they now include Anthony Kennedy
at the Supreme Court, on our court Larry Silberman and me, Lanier
Anderson on the Eleventh Circuit, Wally Tashima on the Ninth Circuit,
and Tim Dyk on the Federal Circuit.
Mr. Nuechterlein: Did you know any of these people well when you were in law school?
Judge Williams: Except for Tim Dyk, through law review, no.
Mr. Nuechterlein: Didn’t know Anthony Kennedy?
Judge Williams: Not at all. Nor Larry. As Larry said at the hanging of my portrait, I spent
most of my time in the library or at the Law Review, and he was seldom in
the former and never in the latter.
Mr. Nuechterlein: This is the end of our first day interviewing Judge Williams. We will
resume soon.
25
Oral History of Judge Stephen F. Williams
Session 2
November 25, 2007
Mr. Nuechterlein: In the last session, we went up through Judge Williams’s law school years.
He says there was one additional [classmate] from those years he meant to
discuss. …
Judge Williams: I thought I would mention Bernie Nussbaum, who has become famous as
one of the White House Counsels for the Clinton administration. Faith just
told me he appears in the Bernstein book on Hillary Clinton, so I guess he
is a long-time Clinton fan. He was the editor of my note, which was on a
boring subject — state authorities, these quasi-public entities such as the
Port of New York Authority. In fairness to the editors who assigned it, the
fault was at least partly mine in failing to make anything good of it.
Bernie, though a faithful and active editor, didn’t transform it.
Mr. Nuechterlein: Have you kept in touch with him through the years?
Judge Williams: No, I haven’t. When he was here as White House Counsel, he came to
periodic lunches that the Class of ‘61 Washington contingent had in that
era. I was just thinking that there hasn’t been one of those lunches for a
long time. The probable reason is that a large fraction of that contingent
has gone off to other places in retirement.
Mr. Nuechterlein: You also knew Tim Dyk.
Judge Williams: Yes — not very well. He was on the Law Review, and I certainly saw him
there.
Mr. Nuechterlein: You graduated in 1961 from law school. What did you do after that?
Judge Williams: First I took the bar exam.
Mr. Nuechterlein: The New York Bar?
Judge Williams: Yes.
Mr. Nuechterlein: How did you do?
Judge Williams: I passed. There are only two possibilities — pass or fail, and I passed.
Very soon after that, I started work at Debevoise, Plimpton, Lyons &
Gates — or actually maybe it was Debevoise, Plimpton & McLean in that
era, I am not sure. A friend of mine liked to call it “Debevoise, Plimpton,
Lyons & Gates, good at talk and great at debates.”
Mr. Nuechterlein: How did recruiting work in those days? Did they come to campus? Did
you interview?
26
Judge Williams: Actually, I was quite interested in the Paul, Weiss, Rifkind firm — I forget
just why. It may have been partly because I had a classmate, Bob Rifkind,
the son of the Rifkind of the firm, who was my rival and then my partner
in the moot court system that Harvard employed. And for some reason or
another, my father seemed eager to steer me away from that, and one way
to do that was to steer me toward Debevoise & Plimpton. I don’t
remember them coming to the campus, but I remember very well my time
interviewing at D&P because my first interview was with Mr. Plimpton. I
was in his office, and the phone rang, and he embarked on a 30-45 minute
conversation about some complex financing, of which I understood not a
word.
Mr. Nuechterlein: Did you pretend?
Judge Williams: No, there was no occasion to pretend. The conversation rolled on, and we
had a few minutes of conversation, and then I was sent around to a
designated list. One piece of advice my father gave me was to go to a firm
where you liked the people, people you would like to go to lunch with and
so forth. I found the people there very engaging. I did have interviews at
Paul Weiss. But — it may have been after my father’s gentle steering
toward Debevoise & Plimpton — that was the end.
Mr. Nuechterlein: What were the starting salaries?
Judge Williams: I remember feeling embarrassed at what I thought was the princely sum of
a hair over $7,000 a year. The idea that anyone would pay $7,000 a year
for my time — that was quite shocking to me. I also remember thinking, if
you take what I am paid and what I am doing, some client is paying $5 an
hour for what I was doing. It seemed scandalous. But I charged ahead. The
dollar was different in that day, but even adjusting for inflation, lawyers’
salaries and fees were different.
Mr. Nuechterlein: Were you in litigation? Deals? Do you remember?
Judge Williams: I was in litigation a bit. I guess I was never specialized there, because I
went off to the U.S. Attorney’s Office, which was thought a particularly
suitable way to specialize. I remember I had a tax case and that I wrote a
memo for it that Martin Lyons really liked, and he asked me to specialize
in tax. I felt honored to be asked, but I did not feel drawn to tax. I held the
invitation at bay.
I did a lot of financing work. One of my friends there said that he saw a
parallel between Debevoise & Plimpton and Wellesley (I see you shaking
your head): “first rate people engaged in second rate work.” I don’t think
he meant to deny that these financings were very sophisticated and
challenging, but I think his thought was that the work was not as engaging
27
as the people. I don’t know just what his angle on the Wellesley education
was.
Anyway, there was a heavy load of financings, which certainly weren’t as
engaging as litigation. On the other hand, litigation, one could easily see,
was very taxing. Of course, after that I went into the U.S. Attorney’s
office, where I only did criminal litigation, which is a very intensive form
of litigation.
I do remember — this is jumping ahead, I am afraid — the trade-offs of
the different segments of the law, at least as they appeared to me. I worked
on a case in the U.S. Attorney’s office with Arthur Liman, who worked on
the case while he was in the office and came back to be the lead
government representative on it. He took pills to calm him down (I am
sure they were legal), but at some phase during the trial, he may have been
hospitalized with ulcers or something, and you could see that the physical
stress of litigation on him, who really was a master at it, was very severe.
As I think about it, I continue to be amazed at my father, who was not a
laid-back person (of course how could a litigator be laid back?), and I am
amazed at how cool he was at being able to handle the pressure of
litigation and also lead a normal life.
At Debevoise, my biggest litigation was the incredibly long, drawn-out
antitrust suit. That was a more leisurely form of litigation.
I remember very well that, just before I started working on the antitrust
case, our firm had the idea that we should file interrogatories asking the
government essentially for details of what their position was. The
government’s claim was that the client’s acquisition of another firm had
tended to lessen competition, a violation of Section 7 of the Clayton Act,
specifically in the envelope industry.
And so one of the questions was: “How did the acquisition tend to lessen
competition?” And the answer from the Department of Justice was: “By
accelerating competition in the envelope industry.” That seemed to show a
paradox, at least, in their position.
Mr. Nuechterlein: What did they mean?
Judge Williams: I think, as one steps back from it, that probably the driving force behind
the government’s complaint was (as it sometimes is in antitrust cases)
pressure from competitors that felt that the acquisition might cause more
aggressive competition. In fact, prices in the envelope industry fell,
although I am sure there were complicated causes for that, but certainly
they did, and I am sure part of it was increased competition. In essence,
the government’s case — this was a vertical acquisition —was really a
now-abandoned theory: a version of “predatory competition.”
28
Mr. Nuechterlein: “Predatory competition” meaning, in this case, that the company had made
itself more efficient as a result of this merger, and it was therefore able to
produce goods at a price lower than its competitors and still turn a profit?
Or was there any claim of selling below cost?
Judge Williams: There was no claim that the client and its partially acquired firm were
selling below costs, measured in any way. When you think of it, basically
as you said, either they were more efficient or they were ready to accept
lower profit margins than the envelope industry liked to enjoy.
Mr. Nuechterlein: This sounds a little familiar to me — it reminds me of the E.C.’s treatment
of the GE/Honeywell merger.
Judge Williams: I don’t claim any expertise in that — but I have heard of certain parallels.
Mr. Nuechterlein: How hard did they work you at Debevoise? Was there a billable hours
expectation?
Judge Williams: If there was, it was not stated. I worked very hard.
Mr. Nuechterlein: Did you bill time?
Judge Williams: Yes, and they made it easy for you by paying for your dinner. Particularly
in my early times there, all kinds of associates and young partners and I
went out to dinner at 6:30 or 7:00, often at some of the very nice
restaurants that were located near the firm. Towards the end I reduced
participation in that and would have a sandwich sent in. They made it
easy for you by paying for it. I guess now they make it much easier by
having cars to take you back home. I guess it was much safer back then —
that was before the great crime wave hit New York. I guess I often worked
until 9 or 10. In the period that I lived on West 96th Street, I would often
walk home through Central Park. That would now be thought lunatic;
some thought so even then.
Mr. Nuechterlein: What time would you get in?
Judge Williams: 8:30 or 9, something like that.
Mr. Nuechterlein: When you started there, did you have any sense that you might stay over
the long term, become a partner?
Judge Williams: I guess I was highly ambivalent about that. There was this continual sense,
which my 17 years as an academic did fulfill, of wanting to be able to set
my own agenda. Obviously I don’t do that as a judge.
The other thing that work in a firm didn’t do was enable me to take the
position that I wanted to take — which being an academic does, and which
was being a judge does, within the constraints of the law.
29
Mr. Nuechterlein: So you were there about 10 months before military service?
Judge Williams: No. I started in the Army Reserves in August 1961, as a result of the
Berlin crisis. The Reserve unit which I joined (because that was a
comparatively painless way of avoiding the draft) was activated. I think I
joined it something like the week in which the unit was activated.
Mr. Nuechterlein: That was unexpected?
Judge Williams: Unexpected by me certainly. I later learned that some people who had
served longer in the unit were aware of rumors that it would be activated.
It was a kind of intelligence unit. “A.S.A.” were the initials, standing for
Army Security Agency. What it did was basically listening. So the core
training for the unit was training yourself to listen to dots and dashes and
to copy them down. But I never actually reached that stage because I had
not even had basic training at the time we were activated. My first period
in the Army was about four months, September 1961 to January 1962,
when the unit was in Fort Devens, Massachusetts. That was actually a
quite charming place. I later took Faith there on our first date; we sat by a
lake that, when I was stationed there, I thought would be fun when one
had a girlfriend.
Our unit didn’t do much. The people who had been regulars in the unit got
retraining in their specialties — and the big specialty was this listening
activity. Something or the other was found for me to do. No long-term
possibilities. We were milling around marking time.
In January, I went to basic training in Fort Dix, which was where a vast
proportion of the Army got basic training. That was a period of my life in
which I lost weight – like 10 pounds in 8 weeks. I remember some things
of that time very vividly. The low crawl under live machine gun fire, a
very tense activity. I remember after you get to the end of the course, you
are free to stand up, you are alive, it is wonderful — and I threw up.
Probably tension. A strange experience.
Mr. Nuechterlein: So you had a drill sergeant?
Judge Williams: You arrive on the bus from New York with a lot of others in the same
position. The first thing they did actually with my name was to get it
wrong: “Bill Stevens!” So I tried to correct that, but I don’t think the
correction was very well-received. Then you start life. One of the
sergeants especially stated that the purpose was to stamp out
individualism.
Mr. Nuechterlein: They were communitarians?
Judge Williams: They were communitarians of a kind, yes. Basically the object was to
make sure you followed orders, no matter how peculiar, as needed. All
30
these stories about how the Army turns rotten kids into stalwart citizens —
I am sure that is true.
Mr. Nuechterlein: So here you are, having gone to a prep school, Yale College, Harvard Law
School — first of all, did you tell anybody about that?
Judge Williams: Oh no — of course not. I should say that when I went to basic training,
there were three others from our intelligence unit that went that same time,
and actually we were made squad leaders because we had some
experience. It was not an activity that played to my strengths. One or two
of the others surged ahead inasmuch as one could surge ahead in basic
training.
Our unit, because it was an intelligence unit, was a relatively welleducated group. In fact, of my three best friends in the intelligence unit,
one is a professor at NYU Law School now; one has just retired as a
teacher of English at Flagler College in St. Augustine, Florida, a
wonderful person, just very witty and full of ability to cite reams of
Shakespeare in a very amusing way; and one, Pierre deVegh, who was an
investment manager on Wall Street later. They were not the ordinary
grunts certainly. They were probably among the better educated in the
intelligence unit. And the education level there was relatively high
compared to basic training.
Mr. Nuechterlein: How long were you in the Army?
Judge Williams: A total of 9-10 months. We were activated for the Berlin crisis, but it was
perceived as receding.
Mr. Nuechterlein: Did you seriously entertain the prospect of going to war?
Judge Williams: Yes, there was talk of that. And by the time of basic training,
January 1962, the sergeants used to try and concentrate our minds on the
theory that what they were teaching us would be helpful to our survival if
we were sent to Vietnam.
Mr. Nuechterlein: So after 10 months … how did this work exactly — why didn’t you stay in
the military and get sent off to Indochina?
Judge Williams: The deal with the Reserve program was that you joined supposedly for six
months of training — that is why all the people in the unit had the training
for listening to signals — and then you were on reserve for five-and-a-half
years; that makes it a total of six with your six months of original training.
They somewhat shortened our terms in compensation for the time spent as
an activated unit. After deactivation, we served a periodic night and a
periodic weekend. The weekend that Kennedy’s assassin was shot was a
weekend we were on duty. A bunch of people were sitting around doing
31
nothing, and someone had the radio on, and there was Ruby shooting
Oswald.
Mr. Nuechterlein: Basic training ended, and you went back to New York and Debevoise?
Judge Williams: Basic training ended and then I went back to the unit. It was demobilized,
deactivated in June, and soon after I started again at Debevoise.
Mr. Nuechterlein: You stayed there actually several years.
Judge Williams: Yes, until I went to the U.S. Attorney’s Office in the spring of 1966.
Mr. Nuechterlein: Before I ask you about that — particularly as your former clerk, I am
curious: did you give any thought to clerking for a federal judge?
Judge Williams: I remember thinking of it in law school, and I only applied to Justice
Harlan. And that was probably for a bad reason — that he was a friend,
from the U.S. Attorney’s Office, of my father. That link did not do any
good. I don’t know what Harlan’s system was for picking clerks. It would
have been very interesting.
Mr. Nuechterlein: So you never thought of clerking, like, on the DC Circuit?
Judge Williams: I didn’t, no — I guess I thought that I would go to New York.
Mr. Nuechterlein: — or the Second Circuit?
Judge Williams: No. I wasn’t really focused on it.
Mr. Nuechterlein: You missed out.
Judge Williams: Yes, I missed out.
Mr. Nuechterlein: So you went to the U.S. Attorney’s Office in 1966. What motivated you to
look for a job there?
Judge Williams: It seemed to be the classic thing to do if you wanted to be a litigator. As I
said, I had conflicting thoughts on being a litigator — the great positive
being the variety, the challenge, a new set of issues continuously, the
downside being the incredible pressure. Faith likes to recall a Christmas
Eve when I was working at the office until 10 or something, but that was
because we were in the middle of trial. A trial waits for no man.
Mr. Nuechterlein: You did criminal prosecutions?
Judge Williams: Yes.
Mr. Nuechterlein: Did you have a specialty?
32
Judge Williams: There were a huge number of drug cases. People seem to think that the
war on drugs is a new thing, but in the U.S. Attorney’s Office in the early
’60s, it was a huge part of the criminal docket.
Mr. Nuechterlein: Which drugs would you prosecute?
Judge Williams: Mainly heroin. There was a drug unit. I wasn’t in it but it scooped people
up and assigned cases to them. Then I made my way into the securities
fraud unit. I worked on a case with Arthur Liman. That was a case against
a very well-known swindler at the time, Lowell Birrell. When one of his
swindles broke, he had taken off to Brazil, and then he was returned to the
U.S. I don’t know the details of the return, except that another person
working on that case told me that he returned to the U.S. without even a
toothbrush. So I take it that it was not voluntary and was engineered by the
FBI and friends in Brazil.
Mr. Nuechterlein: Did you enjoy your years there?
Judge Williams: Yes I did. In the securities cases, a great challenge was to try and make it
coherent for a jury — or for anybody. I remember working with a guy
from the SEC on charts that would map out the flow of funds, all backed
up by checks and deposit slips and so forth, and trying to get those in a
way to communicate the exact nature of the scam.
I enjoyed summing up, enjoyed cross-examination. On the Birrell case, I
was low man on the totem pole — the witnesses I was given were small
fry. I had a nice securities fraud case of my own just when I was ending
my time there, involving a father-and-son team whose last name was
Parrott. Great fun cross-examining Mr. Parrott.
Mr. Nuechterlein: How did this experience affect your views of juries? Did you think that
jurors reached the right results? Did you talk to jurors after a verdict?
Judge Williams: I didn’t talk to them afterwards — no. We were not encouraged at all to do
that. There was one trial where we did get feedback. I was handling the
trial, and it was fairly early in my time as an Assistant; there was a senior
person sitting with me. As I recall, there was one person among the venire
that I was nervous about, and I thought of using a peremptory challenge on
him — but didn’t. Later I did learn that he had been quite active for
acquittal.
Mr. Nuechterlein: Do you remember what made you nervous?
Judge Williams: Yes — he looked to me like a pointy-headed left-wing intellectual.
Mr. Nuechterlein: A beard?
Judge Williams: No, not a beard. Worked for one of the NY media.
33
I will say that I certainly didn’t see any greater pattern of folly on the part
of juries than judges. One criminal trial comes to mind. A defendant chose
a bench trial, the evidence was pretty overwhelming, and the judge
acquitted him. There were two possible stories. There was the
government’s story, that this guy stole a suitcase — a very small crime —
stole a suitcase in Pennsylvania Station. And his story was that he was
helping a little old lady carry her suitcase. The judge acquitted, but he also
rather severely instructed the defendant that he certainly hoped that he
would not be involved in this sort of thing again. The defendant was very
young. I think the judge did not want him to be marked in a way that a
felony conviction would mark him.
Mr. Nuechterlein: Were you the prosecutor?
Judge Williams: Yes —
Mr. Nuechterlein: I take it this was one of your early cases?
Judge Williams: Yes, it was an early case. Very handy for training young assistants.
Mr. Nuechterlein: And when were you involved in the case with Arthur Liman?
Judge Williams: He was brought back as lead counsel in the Birrell case because he had
been involved for the government at the indictment stage. A story told
about him, which was always very impressive, was that at the end of some
very long securities trial, running months and months, he had summed up
for the government, and the first thing the jury did was to send back a note
asking for the exhibits mentioned by Mr. Liman and arranged in the order
in which Mr. Liman had spoken about them. So that certainly set out an
ideal of clear communication to a jury.
Mr. Nuechterlein: This is neither here nor there, but did you watch any of his crossexamination of Oliver North? That was my first exposure to Arthur
Liman.
Judge Williams: Oh really. He was cross-examining Oliver North on whose behalf?
Mr. Nuechterlein: He was the Senate’s counsel [during the congressional Iran-Contra
investigation of 1987], and John Nields was the counsel for the House.
I am going to ask you a question that requires some generalization, and
maybe the generalization is misplaced. Do you think that your experience
as a prosecutor has affected the way you conceive of the role of prosecutor
now that you are a judge? Having been a prosecutor, are you sympathetic
toward the challenges that prosecutors face, or in fact are you more
demanding in what you expect of prosecutors because you have been there
and can see when someone has done a shabby job?
34
Judge Williams: Seems like a very good question, for which I don’t have a very good
answer.
Mr. Nuechterlein: Let’s talk about Faith — you said you met her in 1965?
Judge Williams: I met her in the fall of 1965 at a wedding of someone she had known in
college and someone I had known in New York. I was in the receiving
line, and the gentleman in front of me was her brother, whom I had gone
to school with — two schools, actually. And so we were chatting away,
and along came Faith in the receiving line, and her brother introduced me
to her, and nine months after that we were married.
Mr. Nuechterlein: What month was this?
Judge Williams: September 1965.
Mr. Nuechterlein: And when did you get married?
Judge Williams: June of the next year.
Mr. Nuechterlein: That was a quick engagement.
Judge Williams: By current standards, lightning.
Mr. Nuechterlein: Tell us a little bit about your courtship of Faith. Was it love at first sight
between the two of you, and did the plans for the wedding begin after two
weeks?
Judge Williams: The course of true love never did run smooth.
Mr. Nuechterlein: Of course, these days, if you meet in September, you are not even going to
be able to reserve a place to get married by the following June.
Judge Williams: We did not have a vast wedding, so there was no worry about that.
Actually there was a bit of luck involved.
She was up in Cambridge, and it so happened that that I was working on
an acquisition of a company in Boston; I had to go there for the closing.
So I gave her a call when I found out her number, which was much harder
in those days. Anyway, I called her and took her out, and then, after
maybe one more date, there came an evening — quite soon, I think it was
October — in which she sent me packing. I was very crestfallen. She later
explained that she intuited me as someone she might marry, and that made
her hopelessly nervous. So she cut it off. But then fate intervened again,
and a very good friend of mine from Debevoise & Plimpton was getting
married in Boston, so that brought me to Boston, and I tried again with
Faith, and this time she accepted me back into the fold.
35
Mr. Nuechterlein: How old is Faith? Is she about your age?
Judge Williams: No — she is five years younger than I am.
Mr. Nuechterlein: So what was she doing when you met her?
Judge Williams: When I met her, oddly enough, she was momentarily interested in city
planning. I had an uncle who, in one aspect of his life, was a city planner. I
was (and am) very fond of him, and so this seemed to be a very positive
thing about her. I think her city-planning career lasted about two weeks.
Then she started working for a publishing company. I can’t remember the
name.
Mr. Nuechterlein: A book publishing company?
Judge Williams: Yes. It published some sort of guide to colleges, and so Faith knew
(probably still knows) the names of colleges which, to me, were extremely
obscure, but she knew where they were and all kinds of things about them.
I don’t think it was a very challenging job. But you had to be accurate and
so forth.
Mr. Nuechterlein: Did you have a religious ceremony? A civil ceremony?
Judge Williams: A religious ceremony. We both admired William Sloane Coffin a lot, so I
guess I was assigned the task of calling him up to see if he would marry
us.
9
Mr. Nuechterlein: You admired him! Why?
Judge Williams: It is interesting to think of nowadays — he was the classic left-wing
clergyman.
Mr. Nuechterlein: So this was 1965, and the war was already…
Judge Williams: 1966, and the war was really almost at its absolute peak, and I guess I had
not completely given up on the policy. Maybe my admiration of him was
in deference to Faith, but I didn’t feel I was being pushed around at all by
her. So I called him up and he said he couldn’t do it, but he recommended
a guy named Howard Moody, who was the rector of the Judson Memorial
Church in New York. I called him up, and he said probably yes. He asked
us both to come over, and we met him in his office. An early question was,
“What day would you like to get married?” So we gave the day, and he
said, “What time?” And we said “4:00,” and he said “AM or PM?” That
somewhat endeared him to us.
9 Coffin was a well-known peace activist and, at the time, the chaplain of Yale.
36
Then he asked, “Are you sure you want to risk spoiling a good
relationship?” We said we were willing to take that risk. And then he
performed the ceremony. The ceremony was in the Quaker meeting house
at Gramercy Park in New York, a lovely building. Actually, since then we
have been to a wedding there, for the daughter of a cousin of Faith’s.
Mr. Nuechterlein: What was his religious affiliation?
Judge Williams: Judson Memorial is actually Baptist.
Mr. Nuechterlein: Has Faith been a Quaker all her life?
Judge Williams: No — her father was a Quaker at this time, and Faith had sort of dabbled
in Quakerism, as I have. I actually participated in a “Ban the Bomb”
march while I was a Yalie. We had no effect on the Bomb, but we did
cause a minor accident. We distracted the eye of a driver, who smashed
into the car in front of her, then panicked and smashed into the car behind
her, and then panicked again and smashed a second time into the car in
front of her. So we did some damage but did not solve the issue of nuclear
weapons. That may have been my last involvement with Quakers while I
was in college. Law of unintended consequences.
Mr. Nuechterlein: Faith’s father was a Quaker?
Judge Williams: He was a Quaker. She only became very actively involved — in fact we
both did, at the time — when we went out to Boulder in 1969. I don’t
think we had any joint Quaker activity before then, other than the site of
our wedding.
Mr. Nuechterlein: I have actually been to a Quaker wedding. There is no script, and people
will just say nice things about the couple as the Spirit moves them. Was
your wedding like that?
Judge Williams: No, it wasn’t. It was in a Quaker building, and Dr. Moody gave a talk, and
he actually said something that I have used at many weddings since (but
not at yours, and I am not quite sure why I didn’t). He said, “Don’t be
troubled by your differences — you will grow by your differences.” Of
course he did not point out just how many growth opportunities we would
have. Obviously I have always remembered that in the 40-plus years since.
He also told a complicated story about being in World War II. He was a
bombardier, and he told a story that seemed to involve him being stretched
in a terribly perilous way — feet and arms connected to parts of the plane,
but his whole middle section not connected — nothing but 40,000 vertical
feet and then earth below his middle section. In fact I hadn’t thought of
that analogy for a long time. I assume he was alluding to the possible
sense of anxiety that people have approaching matrimony. Whatever the
details, it was generally a very good talk, although talking about life as a
37
bombardier was a little odd, considering he was chosen for his peacenik
connection.
Mr. Nuechterlein: In 1969, you decided to go into teaching. What prompted you to do that?
Judge Williams: Well, basically I thought it would be a way of exploring the law without
any prior commitments dealt you by your client. I think circumstances like
the midnight work on the Birrell case made Faith enthusiastic [about a
teaching career].
Mr. Nuechterlein: How did getting a teaching job work in those days — similar to the way it
is now?
Judge Williams: Somewhat similar. There was the AALS [American Association of Law
Schools]; they had a meeting in the fall, and you submitted to them a onepage form with basic data. Then that went out to the law schools, and they
called you either to meet you at the actual AALS meeting or to meet you
elsewhere. The University of Colorado called me before the meeting, and
they sent the Dean and James B. White.
Jim later spent the end of his academic career at the University of
Michigan, after becoming famous for his book The Legal Imagination. Jim
was absolutely a dazzling character. It was very clear from the first
moment of conversation with him that he was very brilliant, and that
certainly helped me embrace the idea of teaching at the University of
Colorado.
The other places that I went to were University of Indiana and Ohio State
University. I liked particularly Ohio State — I was there on a gorgeous
day, very deceptive — but Colorado seemed more appealing.
Mr. Nuechterlein: And Faith agreed?
Judge Williams: She seemed to be very happy about it. Part of her theory was putting a
little mileage between herself and her family.
Mr. Nuechterlein: Oh.
Judge Williams: Well you know — independence, growing up.
Mr. Nuechterlein: So you went out in the fall of 1969. What did you teach? Do you
remember?
Judge Williams: The first year, I was given the second half of Civil Procedure, to students
who had had someone else for the first half of the course. I taught Property
by my request. Property was a split course — there was Property I and
Property II, and Property II was located in the fall, so again I was teaching
students who had had someone else for the first part. What else did I
38
teach? At some early stage, Evidence. It was a few years before I moved
into Administrative Law.
Mr. Nuechterlein: There are many ways to teach Property, and in recent years a lot of people
have been teaching it through the lens of law and economics. Were you
one of the vanguards in that movement?
Judge Williams: Yes, I think I was. I remember I called Charlie Meyers, who was the
author of a Water Law casebook. Water Law was one of the courses I
taught too. I was asking him about what books to use, and he suggested I
call Richard Epstein. So I did, and I found something that most people
find when they call Richard Epstein: there is no great burden on them to
keep the conversation going. But I felt very honored. Here I was, a nobody
from Colorado, and he was already very distinguished, and he talked at
great length and in great detail and very interestingly about Property and
casebooks and so forth. Whatever the casebook was that he recommended,
I adopted.
I found it was interesting to view Property Law as a building block of an
economic system, and not simply as a set of rules which someone worked
out and were more or less coherent among themselves.
Mr. Nuechterlein: You mentioned before that you didn’t have much formal training in
economics. You took one course in college.
Judge Williams: And I worked on this antitrust case at Debevoise & Plimpton, and that
certainly restored interest.
Mr. Nuechterlein: Did you start reading economic literature to get you up to speed on these
concepts?
Judge Williams: I can’t remember. At some very early stage, the Law Review asked me to
review Dick Posner’s Economic Analysis of Law, First Edition.
Mr. Nuechterlein: That was the ’70s?
Judge Williams: Very early in the 70’s. It was interesting: I found that Posner’s work
“spoke to my condition,” to use a Quaker phrase, in the sense that, in
many respects, it approached things in the kind of consequentialist way
that seemed to me essential or inevitable. In some respects, he deliberately
put in things that he was confident would make people react with some
shock. The whole question about pricing limbs was articulated by him in a
particularly bloodless way, and that slightly horrified me. But the
fascination enormously exceeded the horror.
Mr. Nuechterlein: When you were asked to review his book, had you met him yet?
39
Judge Williams: I had seen him around on the Harvard Law Review, but I can’t really say I
knew him.
Mr. Nuechterlein: Oh, you overlapped with him.
Judge Williams: Yes. He was a year behind me.
Mr. Nuechterlein: Was he recognized as brilliant then?
Judge Williams: Yes he was. The Harvard Law Review had a very elaborate system for
choosing the President, which took hours and hours and hours. And it was
clear from a very early stage that Dick was just astonishingly brilliant, and
that it would be crazy for the Law Review to pick anyone else.
Nevertheless, the system ground on and took hours and hours and hours,
and of course it did elect him President.
Mr. Nuechterlein: What sorts of things made it obvious that he was brilliant?
Judge Williams: On the Law Review, you get reports from the people who had worked on
any piece of student writing that an editor had done. And those reporting
about him, very bright people themselves, made clear that they were in
awe of him. There was no way to explain these encomia except that he
was very, very bright.
Mr. Nuechterlein: Was he a nice guy? People liked him?
Judge Williams: I didn’t know him all that well, but in the reports on him, no one said
anything nasty about him.
Mr. Nuechterlein: My year at Yale, [to pick the editor-in-chief of the Yale Law Journal,] we
used something you may be familiar with — the Borda count, where you
rank your preferences. You don’t merely vote for people “yes” or “no.” It
measures the intensity of likes or dislikes. And the predictable
consequence of that is you get someone highly competent and
uncontroversial.
Judge Williams: As I said, nobody suggested that there was any sort of character flaw in
Dick that would undercut the advantages of having someone who was
very brilliant.
Mr. Nuechterlein: You’ve kept in close correspondence with him over the years, haven’t
you?
Judge Williams: Yes, but not starting from Law Review days. I wrote a review of one of
the Morty Horowitz books entitled The Transformation of American Law. I found his
economic analysis woefully defective. I forget just how that review came to Dick’s
attention, but for some reason Dick saw it before it was published, and very kindly asked
me to publish it in the Journal of Legal Studies, which he was editing. I told him that I
40
had committed to publish the review in the UCLA Law Review. And of course I visited
for a year at the University of Chicago, where he taught. It was very nice there.
Mr. Nuechterlein: When were you in Chicago?
Judge Williams: Chicago was ’79-’80. I had been at one conference, at least, that took
place in Chicago before then. The conference had originally been
scheduled for Cornell, but an incredible storm forced everyone to go back;
the conference was cancelled and replaced by this one in Chicago.
Dworkin, Ellickson, George Priest — good people.
Mr. Nuechterlein: You mentioned that it was a couple of years before you started teaching
Administrative Law?
Judge Williams: Yes.
Mr. Nuechterlein: How popular of a course is that at the University of Colorado?
Judge Williams: It didn’t fill a big room.
Mr. Nuechterlein: At Yale, it was a very popular course. A lot of people expect to go to
Washington.
Judge Williams: Yes — obviously, I think it is important for any lawyer anywhere, but no,
it was not a blockbuster course.
Mr. Nuechterlein: Were you assigned to teach that, or did you choose it?
Judge Williams: I honestly can’t remember. I think I saw it as a nice foil to Property, a
different way of organizing matters.
Mr. Nuechterlein: As you describe it, it sounds like your first clearly public-law-oriented
course.
Judge Williams: I also taught a course in the law of city planning. So that is kind of public
law. In fact, as I think back, it seemed to me the real issues in that were
effectively administrative law issues, issues that one would now classify
as administrative law: the relationship between courts and agencies. That
of course is the issue of administrative law. I suspect that what happened
is, I had a long-term interest in city planning, and I stumbled into that
course, and then seeing that an administrative law course was focused on
the more central issues, I moved into that.
Mr. Nuechterlein: Describe your scholarship a little bit in the ’70s. What were you writing
about?
Judge Williams: I wrote something on aesthetic regulation in the interest of city planning.
41
Mr. Nuechterlein: “Aesthetic regulation?” I don’t know the term.
Judge Williams: It is an element of zoning — also an element of historic preservation,
design review, that type of thing. It seemed to me, as I explained in my
paper, to raise First Amendment issues, but ones that were solvable in a
fairly reasonable way.
I recall that one of the people at the Justice Department later talked with
me about whether I was suitable to be appointed a judge. He had seen the
paper, although I don’t think he had read it carefully. It somewhat alarmed
him because, on a casual reading, it seemed to smack of judicial activism.
Mr. Nuechterlein: Did this relate to the government’s ability to zone out adult entertainment?
Judge Williams: No — although at least one of those cases had been decided by that point,
I think, and so I used some of the reasoning from it. It was more a matter
of the city trying to make itself look better.
Mr. Nuechterlein: As for your other writing…
Judge Williams: The review of Morty Horowitz. The Colorado Law Review asked me to
do something on a couple of water rights cases that I didn’t know anything
about at the time, so I immersed myself in that. And it certainly was an
economic analysis — I don’t think it had any legs. When I visited at
UCLA…
Mr. Nuechterlein: When was that?
Judge Williams: That was ’75-’76. While at UCLA, I talked with Dick Maxwell about
property law issues, and that led into oil and gas law, which he taught.
That subject just right up front raised very interesting economic problems,
particularly the common pool problem and how different common law
principles had failed on that. What were suitable ways of making the law
more efficient? And also, of course, if the property rights were well
defined, to what extent was there a threat of premature exhaustion of
resources?
Mr. Nuechterlein: So that, over time, became your academic specialty: The Natural Gas
Revolution of 1985.
Judge Williams: It certainly became a great interest. And it involved network industries,
which proved to be a lasting interest.
Mr. Nuechterlein: What is your first law review article that, in looking back on it now, you
are genuinely happy with, knowing your future in law and economics?
Judge Williams: It is hard to say. Very early on, the review of Morty Horowitz’s book.
42
I should say that, when I visited UCLA, I audited a course called Law and
Economics, which was really sort of an intermediate micro course. It was
taught by Armen Alchian, and it did a great deal to revivify my interest in
economics.
Mr. Nuechterlein: Was there a discernible law and economics movement by this point?
Judge Williams: Yes, I think that is fair to say.
Mr. Nuechterlein: Did you attend conferences devoted to law and economics issues?
Judge Williams: The budget at Colorado was always very lean, and so I could attend
conferences only when somebody from outside the university paid for it.
That was the case for that one in Chicago in ’78-’79. That was nine or
ten years into my academic career.
Mr. Nuechterlein: Did you find like-minded souls on the Colorado faculty?
Judge Williams: Not really many — no.
Mr. Nuechterlein: How about students? Did you have students that seemed particularly
proficient at looking at the world the way you did?
Judge Williams: There were a few, yes. One of them became a clerk — Bill Mooz.
Mr. Nuechterlein: Oh yes — I went camping with Bill Mooz once. How long were you in
that house on Euclid Street in Boulder?
Judge Williams: The whole time. We bought that in 1969 and still have it.
Mr. Nuechterlein: I bet the property value has appreciated.
Judge Williams: Yes, somewhat.
Mr. Nuechterlein: I am going to ask you about your kids. You have five children?
Judge Williams: Yes, five. Geoffrey was born August 8, 1969. We flew to Colorado on
July 7
th, bought the house, and closed July 8th.
Mr. Nuechterlein: Tim is next?
Judge Williams: No, then it gets complicated: Susan and Sarah. Susan is older than
Geoffrey, but her parents had split, and there were all kinds of other
difficulties. She is actually Faith’s second cousin once removed, so we
heard of this problem. Susan arrived in January of 1971. By that time, we
were already launched on adopting Sarah. We got word from the adoption
people in Vietnam that she had been assigned to us nine months before she
arrived in March 1971.
43
Mr. Nuechterlein: She was born in Vietnam?
Judge Williams: Yes.
Mr. Nuechterlein: Describe your interest in adopting her.
Judge Williams: At that point, we were to some extent persuaded by the population growth
people, who were totally wrong, but whose influence was at its peak. We
were unsure we would have any more children ourselves, but we wanted
to raise more children, and all these terrible things were happening in
Vietnam, so adoption seemed like a win-win solution. We were very
active in the adoption movement in Colorado and got in contact with a
remarkable Australian woman in Vietnam who was very good at
organizing reasonably good conditions for orphans there — and also in
trying to place them in the West. Sarah came through that.
Mr. Nuechterlein: And Tim was next?
Judge Williams: Yes, Tim arrived in December 1973. There was a stillborn child while we
were in Chicago, in May or June 1980. And Nick was born in April 1981.
Mr. Nuechterlein: One of my fondest memories of working with you that summer in 1988
was of you hoisting Nicky up and Nicky saying, “I love you Daddy!” I
was thinking that parenthood can’t be all bad.
Say a few words about what the five of them are doing now.
Judge Williams: Susan is a housewife; she works in the home and has two children. One is
at little over 7, and the other is a little over 3, and Susan takes care of
them. They live in Chantilly, about 45 minutes away. Our only child with
children, therefore — our grandchildren — happily live in the same city as
we do.
Geoffrey has done an extraordinary number of things, but is now
embarked on getting his Ph.D. at Rutgers in economics. He says there is a
very small group of Ph.D. candidates there, and he stands out because he
has had a lot of math training, which is of course what modern economics
mostly is. I think Geoffrey sees himself as a big fish in a relatively small
pond.…
Mr. Nuechterlein: I think we have covered Susan and Geoffrey.
Judge Williams: Oh, Sarah — Sarah is the only one who went to law school. I don’t really
think law school interested her that much, but then after a couple of years
in the Florida state bureaucracy, she took a special real estate law program
at the University of Miami. That really did engage her interest, and she is
now doing real estate law in New York — but I think it is much more real
estate than law.
44
Mr. Nuechterlein: Tim?
Judge Williams: Tim and Nick came with us on my first expedition to Russia, which we
call in the family “bringing the rule of law to Russia.”
Mr. Nuechterlein: [Facetious:] Worked out well.
Judge Williams: It had effects on the Williams family because, in the Arbat area of
Moscow, Tim met a Russian girl, and they corresponded for years.
Various things happened in his life and her life, and he went back to
Russia in the summer of 2000, and to our surprise — at the end of the
summer of 2000 — he announced that they were engaged to be married.
Indeed, they were married in December of 2000 in Moscow. I remember
Faith kept saying throughout the trip, of one decision and then another,
“Next time we have a wedding in Moscow in December, we must do this
differently.”
That opportunity actually hasn’t arisen, and the marriage did not work out,
and they divorced two years later. But his interest in things Slavic lasted.
He started getting a Ph.D. in Slavic studies at Columbia. And then he went
to Poland to learn Polish as his minor Slavic language, Russian being his
major one, and wanted to stay there — so he stayed by teaching English. I
think it’s been three years. Now, surprisingly enough, he may be about to
move to Japan to teach English there.
And that is a natural segue to Nick, who took an intensive course in
Chinese at Harvard, paralleling his aunt, who took an intensive course in
Japanese. Nick did well and liked it — loved it. At some point after his
time at Harvard, he told me he wanted a career in which he had plenty of
time to devote himself to reading and translating Chinese poetry. The
choices seemed to be either an academic career, in which you can do that,
or another career that would leave him plenty of time to do that. He
seemed to prefer the first, and in about a year and a half, he will get his
Ph.D.
Mr. Nuechterlein: He was a math prodigy right?
Judge Williams: Yes, he was very good at math in the early days, and his major at college
was math. But his interest in Chinese was much stronger.
Mr. Nuechterlein: That requires some intellectual versatility — math and Chinese. Not many
people are gifted at both those two things.
Judge Williams: I don’t think they’re very often mixed.
Mr. Nuechterlein: I think the next major topic of discussion is your ascension to the
judgeship. Maybe we ought to do that next time.
45
46
Oral History of Judge Stephen F. Williams
Session 3
March 2, 2008
Mr. Nuechterlein: I’m talking to the Judge today about his nomination and confirmation to
the Court. I think we left off our last interview with the judge’s academic
career, so now it is time to talk about the day he got “the call”. Apparently
he was first considered for the Tenth Circuit, but that encountered
difficulties, so he was later proposed for the D.C. Circuit. So, Judge, why
don’t you tell us how you first found out that you were being considered
for a seat on the Tenth Circuit.
Judge Williams: I have to admit the process started with me. It started at a very particular
moment in time, which can be checked out easily, and that was when I
read an editorial in the Wall Street Journal revealing and celebrating the
nomination or confirmation of Dick Posner for the Seventh Circuit. I said
to myself that if they want Dick Posner for the Seventh Circuit, then surely
they will want me for the Tenth Circuit. There are obviously a number of
leaps in that logic. In any event, I made some phone calls. Actually, the
person who was completely pivotal through the whole thing was Bill
Buckley. Both directly through his friendship with the President and
through various indirect steps, he boosted my nomination.
Mr. Nuechterlein: Maybe it makes sense to pause here for a moment to talk about Bill
Buckley, who died this past week. I know you went to the same school as
he did?
Judge Williams: I did.
Mr. Nuechterlein: But you didn’t overlap at all.
Judge Williams: No, not at all.
Mr. Nuechterlein: When did you meet him?
Judge Williams: I think I may have met him briefly when he came up at Yale when I was
there. I am not honestly sure about that. Faith and I had dinner at his house
in New York sometime when I was a lawyer there. Must have been the
late ’60s. At that time I was at the U.S. Attorney’s Office. There were
quite a few people there, including Jim Buckley, whom I didn’t know but
who would later become my colleague on the court. My most intensive
contact with Bill was in connection with my nomination, and there were
many phone calls, sometimes his reporting a development, sometimes my
reporting a development, discussing what might be done.
Mr. Nuechterlein: So Posner was nominated to the Seventh Circuit, and you found out about
it, and you thought it would be appropriate — a stroke of similar wisdom
— to appoint you to the Tenth Circuit?
47
Judge Williams: A comparison is not an identity.
Mr. Nuechterlein: So you picked up the phone and called Bill Buckley?
Judge Williams: No, I actually called my father who was very close to Bill, and he started
investigating.
Mr. Nuechterlein: Was you father in retirement at this time?
Judge Williams: Yes, he was.
Mr. Nuechterlein: So he contacted Bill Buckley.
Judge Williams: Well, although I described what seemed to be suitable logic for the
administration, actually I wasn’t expecting at all that that logic would be
followed. So at first I wasn’t very invested in this. And then I got a call
telling me that my nomination to the Tenth Circuit had passed the
“Thursday Committee,” which was a committee of Justice Department and
White House people who met on Thursdays and talked about judicial
nominations. Passing the Thursday committee normally led to a
nomination, and nominations in that era led pretty often to confirmation
and appointment.
Mr. Nuechterlein: Do you know who was on the Thursday Committee?
Judge Williams: I honestly don’t. It was a fluctuating membership.
Mr. Nuechterlein: Did you have to talk to any of these people?
Judge Williams: No — or at least not that I know of. That is to say, I don’t know the exact
membership of the Thursday committee.
Mr. Nuechterlein: So they were just proceeding on the basis of Bill Buckley’s
recommendation.
Judge Williams: At least in the sense of starting out, right.
Mr. Nuechterlein: Presumably he was not himself…
Judge Williams: No, absolutely not. No. No.
Mr. Nuechterlein: So you didn’t have close personal ties with anyone directly involved in the
process. Were you being considered because of your ideological
orientation? Because of your scholarship? Had somebody in the
administration read it?
Judge Williams: I think somebody had at least looked at it quite early, and at a later stage I
did speak with Justice Department people in Washington who had read
48
some of it. One of the people I met with that I particularly remember was
John Harrison, who now teaches at UVA. Do you know him?
Mr. Nuechterlein: I think I have met him.
Judge Williams: Yes, he is very smart. But if they were checking me out for ideological
soundness in those meetings, they had a very subtle way of going about it.
At least it so seemed to me. There was a somewhat roaming discussion
intelligent people might have about the law. Since then I have occasionally
gotten a call from someone who was being considered and looking for
guidance on how to confirm one’s ideological credentials. And I am not
able to provide any guidance because I at least didn’t feel called upon to
prove my bona fides as a conservative.
Mr. Nuechterlein: Do you know whether they were talking to any friends or colleagues?
Judge Williams: I’m not sure whether the FBI and ABA vetting began right after I passed
the Thursday committee, but my recollection is that, not long after that,
word came of trouble in the form of Senator Armstrong.
Mr. Nuechterlein: Armstrong of Colorado – the Republican senator?
Judge Williams: Yes — Gary Hart was the other senator.
Mr. Nuechterlein: You were OK to Hart?
Judge Williams: Yes; at least there was no report of opposition from him. Anyway, word
came back to me that Senator Armstrong objected. I am reasonably sure
Senator Armstrong never said, although it was probably the case, that he
didn’t like the idea of a nomination being driven by forces outside
Colorado. There was a turf aspect to it.
Mr. Nuechterlein: Had you ever met him?
Judge Williams: No, I hadn’t. After my name surfaced, I met him twice, when the Justice
Department thought that, at a meeting, I could bring him around, but I
failed to. He pretty much said at the beginning of each of the meetings that
there was no chance of bringing him around.
Mr. Nuechterlein: So these were two meetings that were held between your endorsement by
the Thursday committee and the ultimate decision not to nominate you to
the Tenth Circuit?
Judge Williams: Yes.
Mr. Nuechterlein: What year is this? 1986?
Judge Williams: No; 1986 is the grand successful climax.
49
Mr. Nuechterlein: So probably ‘84.
Judge Williams: As I recall, we’re talking of ‘83 & ‘84. Senator Armstrong was extremely
nice — and totally unmoved by anything I had to say. I should say that the
turf battle aspect seemed to be a very significant, perhaps dispositive,
factor. But he also had the idea that I was a liberal in conservative
clothing.
Mr. Nuechterlein: What gave him that idea?
Judge Williams: Well — I think in 1972, I had actually rung doorbells in Boulder for
George McGovern. The Vietnam War was a very big issue. I had what I
regarded as a centrist position; I was very concerned about what would
happen to the people there who had supported us. It seems to me that
concern was well placed.
Mr. Nuechterlein: It has certain analogues today.
Judge Williams: So I am not sure whether he had accurate information, on which he
personally put an extreme cast, or whether he got all kinds of inaccurate
reports that were exaggerations of my leftist phase.
Mr. Nuechterlein: How did he know that you had rung doorbells for George McGovern?
Judge Williams: I don’t know if he knew that. I point it out because, if you were looking
for activities in my background that were suspicious from his point of
view, that would certainly be such an activity. A second thing I should
mention is that Faith and I went on a candlelit peace march on a beautiful
snowy evening in Boulder, with Geoffrey on my back.
Mr. Nuechterlein: What year was that?
Judge Williams: Geoffrey was a year and a half — so it had to be late ’70 or early ’71.
Mr. Nuechterlein: Did Senator Armstrong raise any of these ideological concerns during
your interviews or did you just surmise?
Judge Williams: He certainly didn’t say, “I am suspicious of you because word has it that
you have done ‘X.’ ” He just seemed to have a vision of me as at best as a
recent convert, and at worst as a liberal in conservative clothing.
Mr. Nuechterlein: Did he say that? Did he say he was concerned because you were a recent
convert?
Judge Williams: I am sure he didn’t use those words, and what is hard for me to sort out —
especially at this remove — is how much I was told by someone in the
administration about what he thought and how much was what he said to
me. My memory of the two meetings is that he was an extremely
50
agreeable and charming person and that I got absolutely no sense of
moving him an inch on the matter.
Mr. Nuechterlein: Were you there alone or were you accompanied by anyone?
Judge Williams: I was alone. One meeting I remember explicitly was in the Senate Dining
Room. I don’t know why it was in the Senate Dining Room; it was not
meal time, and we didn’t eat anything.
There was quite a long period between the initial discussions about the
Tenth Circuit and when they actually decided to put me forward for the
D.C. Circuit. In fact, I don’t think I was ever told that they had completely
given up on the Tenth Circuit. What happened was that it kept ebbing and
flowing, and suddenly the D.C. Circuit emerged out of nowhere.
Mr. Nuechterlein: Was there a particular call you got when you heard that you were now
being considered for the D.C. Circuit?
Judge Williams: It wasn’t quite that way. The call came from Grover Reese, I forget his
exact title at the time, but he was an aide to the Attorney General. … I
vividly remember Reese’s somewhat elusive call. He said that they wanted
to nominate me for a court. His first position was he couldn’t tell me what
court it was, and I said even though I did want to be a judge, I didn’t want
to go to Alaska. In fact there were very few courts I would want to be on.
Mr. Nuechterlein: Did you have a sense that it was an appellate court?
Judge Williams: I think, after some provocation by me, he did say it was an appellate court.
Then, after some more phone calls in fairly short order, I finally persuaded
him to tell me, on condition that I would promise, under oath, that I would
not reveal it to a soul. So I took that oath.
Mr. Nuechterlein: Including your wife?
Judge Williams: Right. Actually, it was only a four-day period, as I recall, between when I
knew what court was involved and when I got the call from Reese saying
they were going forward, soon followed by a call from the President. I
probably told Faith after the call from the President.
I must have come fairly close on the Tenth Circuit, because I know my
ABA vetting and my FBI vetting were all done under the assumption that
it would be the Tenth Circuit. That led to one of the more startling
moments of the whole process. When I went before the Judiciary
Committee it was a rather strange scene. There was a district court
nominee from California, who had Senator Wilson in attendance and a big
booster group in addition. I, of course, had no Senator supporting me. I did
have my family.
51
I was called behind the hearing room before the session began. Duke
Short, the Committee Counsel, read aloud five questions that he predicted
Senator Thurmond would put to me; he also briefly held a piece of paper
in front of me with the questions. He was entirely accurate, word for word,
as I recall. I could not precisely understand Senator Thurmond’s actual
words. He certainly had a very heavy Southern accent, and although no
one has ever confirmed this for me, I think he may have had a stroke or
something; it seemed to me his speech was slurred. The questions came in
the order read to me, and of course once a fragment came through I could
fill in the rest. There were also one or two questions from Senators other
than Thurmond.
Mr. Nuechterlein: The usual protocol now is to go meet the individual senators on the
Judiciary Committee before they show up for the hearing. Did you do that,
or was your first experience with Senator Thurmond at your actual
nomination?
Judge Williams: That was my first exposure to him. I met with Senators Hatch and
Simpson shortly before or after the committee meeting. I remember both
interviews very well, each for very different things. Senator Simpson was
very gracious and hospitable and told jokes, and I went on my merry way.
Senator Hatch, after a friendly greeting, started by saying, “I know your
parents were very staunchly left wing.” I said, “Senator Hatch, I have to
stop you there.” And I gave a brief précis of my parents’ conservative
credentials. He didn’t seem to be out to get me at all. I honestly forget
what we talked about afterwards. Maybe it helped that I was able to dispel
the first problem rather firmly.
Mr. Nuechterlein: Did he ask about your own ideology?
Judge Williams: I don’t recall if he did.
One thing I left out; we got diverted slightly from the Senate Hearing. I
should come to the climax of that. The last question — or, rather,
statement — was from Senator Simon, who said: “When you were
checked out by the FBI and ABA, you were being considered for
nomination to the Tenth Circuit. Here you are nominated to the D.C.
Circuit, so this will have to be redone.” I remember it was a declaration,
not a question or suggestion. I responded, first, that the criteria for being
an appellate federal judge should be the same for all circuits — and,
second, that, if there was a difference, the fact that the D.C. Circuit has
such a heavy administrative law caseload made me more suitable for it
than for the Tenth Circuit, as I had taught Administrative Law for years. I
talked afterwards with my Justice Department handlers, and they managed
to make sure there wasn’t a complete redo.
Mr. Nuechterlein: Did Senator Simon oppose your nomination?
52
Judge Williams: No.
Mr. Nuechterlein: Did anyone oppose your nomination?
Judge Williams: No — no one openly. In fact, the day that I got the call saying the Senate
had voted, whoever called said, “Yes, seven judges in seven seconds.”
Mr. Nuechterlein: And then they rested.
Judge Williams: Right.
Mr. Nuechterlein: You were talking about Strom Thurmond and his questions — do you
remember the substance of those questions?
Judge Williams: How is the Constitution to be amended — by Article 5 or by the
Judiciary? And that seemed to have an obvious answer. I am slightly
simplifying the question in my rendition of it, but that was perhaps the
most totally obvious one. I would say that all of the questions had the
happy attribute that the answer that was right for Senator Thurmond was
also right. It was the obvious and the inevitable answer. They were
obviously rhetorical questions. I guess someone out to push a “living
Constitution” model might have had a hard time answering them.
Mr. Nuechterlein: I think they would say they are not amending the Constitution.
Judge Williams: Of course, that is how they would handle that.
Mr. Nuechterlein: To back up a little bit, when you heard that you were being diverted from
the Tenth Circuit to the D.C. Circuit, did you view that as a promotion? Or
were you sorry you wouldn’t be in Colorado?
Judge Williams: Yes, I was sorry I wouldn’t be in Colorado, but I thought the D.C. Circuit
would be much more fun.
Mr. Nuechterlein: So you viewed this as a happy development.
Judge Williams: Yes, as long as Faith could be persuaded it was a good development.
Mr. Nuechterlein: And could she be?
Judge Williams: Yes, she could be. Reluctantly. She did it for me, to put it simply. If I had
been indifferent about the choice, she would have been decisively
opposed.
Mr. Nuechterlein: How about your kids?Were they happy with the prospect of moving?
Judge Williams: Susan was in college at that time. In a sense, the move was hardest on
Geoffrey because he would be coming here for his last year of high
school. But he liked the idea of something new. He is pretty
53
adventuresome. The three youngest didn’t voice any objection. I don’t
know if they fully grasped what was going on. And Faith took them here
to look at houses with her. And they all came for the Senate hearings.
Looking at houses before the Senate acted seemed dangerous to me —
likely to be taken as a sign of hubris. She certainly tried to accustom them
to Washington and to the schools they might end up at.
Mr. Nuechterlein: A postscript on the Tenth Circuit nomination — who ultimately filled that
seat?
Judge Williams: Filling it took a long time. I am not honestly sure why, but, as in our court,
a seat can stay empty for many years. In the end, it was filled by David
Ebel. Do you know him?
Mr. Nuechterlein: I know people who clerked for him. He is probably one of that court’s
most respected jurists.
Judge Williams: Yes. I have met him and like him very much.
Mr. Nuechterlein: So you got the call you had been confirmed by the Senate. That must have
been very exciting.
Judge Williams: Yeah! In the period between the hearing and the final Senate vote, some
people were obviously interested in derailing the nomination. An
alternative newspaper in Colorado, Westword, had an article, and its pitch
seemed to be aimed at depicting me less as a turncoat than as an
opportunist. I guess there could be a lot of overlap between those two
categories. I remember my brother-in-law, Steve Morrow, wrote a letter to
Westword. which they published. [He said] it is true that Stephen Williams
was a liberal before he was a conservative, but it is also true that he was a
conservative before he was a liberal. He had known me when I was about
ten. He was in a position to vouch for my early ideology.
Mr. Nuechterlein: This alternative newspaper was a liberal newspaper?
Judge Williams: Yes.
Mr. Nuechterlein: So you would think they would take some comfort in the possibility that
you were an opportunist because that might have meant…
Judge Williams: Right. I guess it would depend on where they felt the advantage lay. There
had to be some suspicion. I had the feeling that somebody was stimulating
this; just who, I don’t know.
Mr. Nuechterlein: Seems like it never gained much traction.
Judge Williams: No, I don’t think so. I had gone to school at a very early stage with a
person who later became a Senator from West Virginia, Jay Rockefeller,
54
and I remember calling him up in this period of uncertainty. He said, in
essence, we Democrats don’t care at all. He obviously didn’t think the
administration was sneaking a liberal in. He seemed to think it was a
Republican fight.
Mr. Nuechterlein: How long between the time you got the call and you actually moved out to
D.C.? Didn’t you have courses you were teaching or scheduled to teach?
Judge Williams: It worked out pretty well. Through the spring of ’86, it looked as if I
would be confirmed, so I would not be teaching in the fall. Actually, in my
last year of teaching, I taught two courses for the first time—Federal
Courts and Public Lands, a Western-oriented course. I can’t say there was
much payoff to teaching the second once I got to the bench.
Mr. Nuechterlein: But you had had Tenth Circuit aspirations.
Judge Williams: Exactly. It meant that I knew a little more of the vocabulary of these rather
special arrangements than I would have. I do remember one line from the
course book that I used. Someone celebrating wilderness described it as a
place “where the hand of man had not set foot.”
Mr. Nuechterlein: I assume — I know — there is a formal process by which you are inducted
in the court.
Judge Williams: I was sworn in on our deck — we have a picture of it.
Mr. Nuechterlein: In Colorado?
Judge Williams: Yes — in Colorado. A local district judge, Jim Carrigan, who retired
rather than take senior status, and now I believe conducts a lucrative
arbitration business. But in any event he swore me in. My family and
Steve Morrow were there, I’m not sure about Steve’s wife. We had a beer
and I was a judge.
Mr. Nuechterlein: This is the analogue to a wedding on the beach with one’s family.
Judge Williams: Right. Then there was an investiture back here.
Mr. Nuechterlein: Where was that?
Judge Williams: That was in the courthouse.
Mr. Nuechterlein: I assume all investitures are in the courthouse.
Judge Williams: Yes.
Mr. Nuechterlein: For some reason I thought the swearing-in was part of the investiture. But
apparently not.
55
Judge Williams: Well, you take the oath again, but it is decorative. The speakers were my
brother-in-law — who really had everyone laughing; he was a great
speaker — and Kent Greenawalt.
Mr. Nuechterlein: The professor at Columbia?
Judge Williams: Yes. This is another suspicious part of my past. Actually- I don’t know
how it was regarded. But I was with Kent in Mississippi in the summer of
‘65.
Mr. Nuechterlein: You were a freedom fighter.
Judge Williams: Well, a legal freedom fighter. He and I worked on a number of cases that
were all at an early stage of development. I remember working on a
complaint in a case called Love v. Mississippi. And Love was indeed the
right name, because the theme of the case was that there was some
constitutional illegality, I forget of just what sort, going on in
Mississippi’s failing to give welfare, or putting restrictions on welfare, to
unwed mothers. Love that had been carried too far.
On another case, I remember, Kent and I did field research, not very
successful, in some town in Mississippi. We were essentially talking with
possible plaintiffs or witnesses, for a case about discrimination in public
services. Tony Amsterdam — who was then and still is a well-known Con
Law professor — developed the original theory.
Mr. Nuechterlein: He and I worked on a cert petition about a year ago.
Judge Williams: Oh really?
Mr. Nuechterlein: About Alabama’s death penalty scheme.
Judge Williams: Oh, OK. This was a possible claim of racial discrimination in the
allocation of municipal facilities. The roads in the black sections of this
town did not seem to be very well kept up. What left its impression on me
was when our host for the night showed us the bullet holes in the wall. The
family that gave us a room for the night had been actively involved in
protesting the power structure, and the power structure had reacted. I don’t
think anyone had been killed.
Mr. Nuechterlein: Just intimidation.
Judge Williams: Yes, intimidation. And I remember Kent and I were driving along the road
and were pulled over by a sheriff’s car. Remembering the bullet holes in
the wall, we were anxious, but nothing happened.
Mr. Nuechterlein: Back to the summer of 1986. When did you formally join the court and
occupy chambers?
56
Judge Williams: Shortly after I got through the Senate, I came to Washington and
interviewed a few clerks and I also hired Mary. Mary had been working
for Judge Wald, and Judge Wald had been perfectly happy with her, but
because of the pay structure of judges’ secretaries, she could not pay Mary
more. Mary wanted to be Chief Secretary, which would mean more pay. I
forget how we found Lindy — Mary was instrumental in that.
Mr. Nuechterlein: I know one of your clerks from the first year was Bill Mooz. He was a
student of yours at Colorado?
Judge Williams: Yes, he had been. He also helped me as an R.A.
Mr. Nuechterlein: Who were the other clerks from that first year?
Judge Williams: The other clerks were Rob Tiller and Josh Rosenkranz. Josh was in the
unusual position of having already clerked, though only momentarily, for
Scalia.
10 As I recall he’d been hired for a Scalia clerkship on the D.C.
Circuit for ’86-’87 and for a Brennan clerkship for ’87-’88. So when
Scalia was appointed to the Court, Josh’s court of appeals clerkship was
unavailable.
Rob Tiller had been going through law school, and then he was scheduled
to be another clerk of Scalia’s. There was a third clerk Nino had picked,
Paul Cappuccio. People talk about Nino sending me his clerks, or offering
them to me, but of course they are human beings and the Thirteenth
Amendment does apply, and Paul did not seek to work with me. My next
year’s three clerks were all part of my Scalia inheritance.
Mr. Nuechterlein: Had you known any of the judges that were on the D.C. Circuit when you
joined the court?
Judge Williams: Jim [Buckley] was on but I knew him only from dinner at his brother’s
house. Leventhal11 at that time was long dead, but I had met him. I did a
paper for the Administrative Conference. All papers were done under the
guidance of a committee before they went before the full Conference. It
was [Judge Leventhal’s] committee that had charge of the subject, so the
paper was to go before his committee.
I may as well tell you this story though it is somewhat embarrassing. I was
supposed to come to Washington to talk about the paper with the
committee, but there was some confusion about the date — entirely my
fault — and I came to Washington exactly one week ahead of the
scheduled meeting. But [Judge Leventhal] very kindly made time in his
schedule to talk with me about the draft. And I am reasonably sure I talked
10 Antonin Scalia served on the D.C. Circuit from 1982 until 1986, when he was elevated to the Supreme Court.
11 Judge Harold Leventhal served on the D.C. Circuit from 1965 until his death in 1979.
57
with Bill Allen of Covington on that occasion. He was a wonderful source
of ideas for improving the paper.
Anyway, by the time I got to the court, Leventhal was dead. Jim had just
joined, and apart from him I didn’t know any of them. I made a number of
calls before I started — one to Ken Starr and one to Larry Silberman, both
of whom were very welcoming.
Mr. Nuechterlein: When you came to the court in ’86, did you have the impression that it
was an ideologically divided court in any way?
Judge Williams: It had that reputation around the country, and I didn’t see anything that
particularly contradicted that. When I look at the list of my cases for the
first year or two, I see there were quite a few dissents. But we didn’t have
abortion cases, of course, which for the last 35 years have been the
greatest single source of judicial disharmony. I think in my 22 years, the
case most closely touching abortion was a dispute over funding birth
control activities abroad, and I was not on that panel. So that whole hotbutton area was out.
Mr. Nuechterlein: To the extent the court was divided ideologically, was it your first
impression that it was a friendly ideological division or was it a personal
one or somewhere in between?
Judge Williams: There were certainly elements of rancor. Very definitely. At various
meetings of the court, when we were alone together, people used some
quite harsh language. Nothing like that would happen today.
Mr. Nuechterlein: Is that largely a function of the personalities involved or a function of
time?
Judge Williams: A combination.
Mr. Nuechterlein: In some ways the ideological divisions in Washington are worse today.
Judge Williams: Just what the explanation is, is not clear.
Ben Wittes is writing a book on the federal courts of appeals and has
puzzled over all of this. Part of it is the caseload. He compares us with the
Sixth Circuit, where they have a great deal of death penalty litigation —
another subject we don’t have at all. He depicts a group of judges there
that feels the death penalty is a weapon being used against the
African­American community and another group that doesn’t see it at all
that way. Here, race and sex preferences were the biggest divisive issue,
but there were others. To some extent there were environmental cases that
acquired an ideological look to them. How much else was going on I am
not sure.
58
Mr. Nuechterlein: Give me a sense of the social life you had with the other members of the
court during this time. I can imagine a lunchroom with Reagan appointees
at one table and Carter appointees at another.
Judge Williams: Well, very few of the court of appeals judges had lunch in the judges’
dining room at all, so they didn’t have a chance to divide in that way. I am
an extreme example — having an apple and sandwich in my office. There
weren’t all that many occasions for us to manifest discord at mealtime.
59
Oral History of Judge Stephen F. Williams
Session 4
May 5, 2013
Mr. Nuechterlein: It is May 5, 2013, and we are back after a five-year hiatus to resume Judge
Williams’ oral history interviews. Judge, we left off at the point in 1986
when you had been confirmed by the Senate and were preparing to take
office. Remind us of the events through your first days on the bench.
Judge Williams: I came back from Colorado. I interviewed a harvest of Scalia clerks.12 And
I had lunch with Pat Wald, who was very nice.
Mr. Nuechterlein: She was the Chief Judge?
Judge Williams: She was the incoming Chief Judge. It must have been—just before or just
after July 1.
Mr. Nuechterlein: Who was it before that?
Judge Williams: It was Spotts Robinson. I don’t know if Pat had actually taken office or
was about to. And she was very gracious. We chatted amiably. I am not
sure there were any special lessons I picked up in that discussion, but it
gave me a comfortable feeling. There was also a party for some judge on
the court, and it was at Pat’s apartment, I’m pretty sure. That was a very
pleasant event.
Mr. Nuechterlein: And that included the rest of your colleagues?
Judge Williams: Yes.
Mr. Nuechterlein: Did you know any of them before you arrived at the court?
Judge Williams: Well, I knew two of them. I knew Nino [Scalia] because he had been head
of the Administrative Conference when I did a paper for them. And I knew
Jim Buckley, though not well at all, because he and I had been at a dinner
at Bill Buckley’s.
What I remember particularly about Jim was that he was flat on his back
with a backache, which he happily recovered from. Later, when I had
terrible backaches, I followed his procedure, and that enabled me to see
something [interesting] in the court’s robing room. Lying on my back in
the robing room, I noticed that there is sort of an entryway before you get
to the door into the courtroom, and at the very top of this sort of arch was
what looked like a track for a curtain. It was my guess — and it has been
neither confirmed nor rejected — that the track once held a curtain to
produce a certain muffling of sound. And that [would have been useful] if
12 Then-Judge Scalia had hired these clerks for D.C. Circuit clerkships before he was elevated to the Supreme Court.
60
the rumor was correct that Judges Bazelon and Burger13 used to scream at
each other in the robing room. As I say, that hypothesis has never been
confirmed or denied. But I certainly have never gotten any alternative
explanation of why this track was there. It has since been removed.
Mr. Nuechterlein: So tell me about your first sitting. What did it feel like being a law
professor for all those years to suddenly be a judge hearing cases? Do you
remember the cases?
Judge Williams: Let me see — I think one of those days, maybe all the days, I sat with
Larry Silberman, along with a district judge sitting by designation, an
Eisenhower appointee from the district of Montana. As you could guess,
he was quite old. There were a torts case and a Speedy Trial Act case;
those are the ones that are coming to mind.
Mr. Nuechterlein: Did you feel at all shy about asking questions?
Judge Williams: No. I think it is possible that the court [as a whole] has gotten more active
in asking questions since then. But no, I didn’t feel shy. Dick Posner has
observed somewhere that the transition from professor to appellate judge
is pretty easy. You are doing something very similar: you’re trying to
figure out what the rule means, what its application would be in different
circumstances, and what the arguments are for interpreting a case this way
and interpreting it that way. That is what professors and appellate judges
do. Opinion-writing is somewhat different.
Mr. Nuechterlein: Do you remember your first opinion?
Judge Williams: The first one to come out was in a labor law case. I remember feeling not
very comfortable with it because I had never had anything to do with labor
law at all.
I also remember that Judge [Ruth] Ginsburg sent me a nice note
congratulating me on my first opinion. So that was a heartwarming thing.
Incidentally, the Ginsburgs had us to supper that fall. Which was very
nice. That was my only exposure to Marty Ginsburg’s cooking, which was
fantastic. His charm was fantastic too.
Mr. Nuechterlein: So you had a full complement of clerks by the time court started?
Judge Williams: Well, a full complement — the standard package then was three clerks and
two secretaries. It seemed to me at the outset that having two secretaries
was strange. And three clerks were plenty.
13 David Bazelon served on the D.C. Circuit from 1949 to 1985 and was Chief Judge from 1962 to 1978. Warren Burger
served on the D.C. Circuit from 1956 until his elevation to Chief Justice of the United States in 1969.
61
Mr. Nuechterlein: Presumably the two secretaries were a vestige from the days before
computers.
Judge Williams: Exactly. I may have been the first judge to have a regular desktop
computer with suitable word-processing software in it. In those early
years, you could see signs in the way [opinions were revised] that the
secretaries were clearly trying to avoid the horrors of trying to retype the
whole 70 pages. I think it’s fair to say that the court’s opinions have
somewhat shrunk in length since that era. Probably a healthy thing.
Mr. Nuechterlein: That’s interesting. If I remember correctly, by the time I ended up clerking
for you in 1990, you were using what was then considered an
unconventional word-processing program. It was Microsoft Word, which
no one used. I had to learn it [from scratch] because the industry standard
was WordPerfect.
Judge Williams: Yes, exactly. And the federal judiciary, except for a few crazies like me,
pretty much stuck with WordPerfect.
Mr. Nuechterlein: Why were you using Microsoft Word?
Judge Williams: Because I was using it in Colorado.
Mr. Nuechterlein: You weren’t using it to strike out against the monopolist WordPerfect?
Judge Williams: No. [Laughter.]
Mr. Nuechterlein: So you had three clerks. Did you give any thought to how to use clerks
now that you finally had them?
Judge Williams: I intuitively was not drawn to the idea of bench memos.
Mr. Nuechterlein: Why is that?
Judge Williams: There never seemed much point in it. Surely I was going to have to read
the briefs. So if a clerk did a bench memo, that would mean more for me
to read. And it was a distinct likelihood that a lot of what I [would have] to
read [in the bench memos] would not be of great interest to me. After
looking at all three briefs in a standard case, I would have reached a pretty
firm conclusion on some of the issues. And on the issues I found
troublesome and needed more to be done on, there was no guarantee that
the clerk would necessarily have shared that view and would have gone
out and done the extra research [on those issues]. So [bench-memowriting] just seemed to me a process that would delay things.
Mr. Nuechterlein: If I am remembering this correctly, instead of bench memos, you would
have meetings. Everyone would read the brief, and then you would get us
in a room and ask questions.
62
Judge Williams: Yes — that was roughly it. There has been a change since your era.
During my first time in the hospital for hip surgery, I knew I was going to
be convalescing for a period running up pretty close to the next sitting. So
I thought that to coordinate with the clerks, I should get all the reading of
the briefs done before the surgery and would leave the clerks notes giving
my initial take on all these cases. So I did that. That seemed to be a very
good idea. Since then I have usually done that [for all cases that haven’t
been] no-brainers. This approach starts a conversation with a clerk — and
sometimes it ends the conversation, or comes very close to ending it,
because, on the issue where I have indicated a leaning but noted some
doubts, the clerk comes back with something that resolves the doubts.
Mr. Nuechterlein: I am trying to remember if all three clerks read all the briefs in all the
cases for a sitting and then met with you collectively.
Judge Williams: It was more the clerk on the case and me. That is certainly the way it is
now. I don’t recall any shift. Sometimes, in a hot case, all the clerks get
very interested and start pursuing it.
Mr. Nuechterlein: You mentioned when we spoke informally before that Richard Posner had
offered advice on how to use clerks and how not to use clerks.
Judge Williams: He had said that you should write the opinion from scratch yourself and
not have a clerk draft it. In some cases I have done that, but I have to say
that they have been rare. The extent to which I change a clerk’s [draft]
opinion obviously varies a lot. What usually happens is this. I read over a
clerk’s draft and think, “that is pretty good.” And then I start all over again
on it, and I see some little thing that bothers me, and it snowballs, and I
see more and more things that bother me. So typically I think the draft
changes quite a lot. You might be a bad example in this because your
drafts were very good. It varies hugely depending, unsurprisingly, on the
draft that I get. I certainly like to think that, by the end of the process, the
opinion has the stamp of my thinking, that it reflects entirely what I think.
The litigants and the taxpayers deserve that.
Mr. Nuechterlein: Judge Posner is one of the few judges that doesn’t rely on his clerks to
draft opinions.
Judge Williams: He and Easterbrook are the same.
Mr. Nuechterlein: And I think Justice Stevens. Give me your rationale for letting the clerks
do the drafts.
Judge Williams: The rudimentary thing is this. You come away from oral argument with a
vision of what has to be addressed, but that vision may be incomplete. So
having someone else’s take on it usefully highlights issues that ought to be
addressed and, to some extent, facts that ought to be included. The vision
63
one person comes away with is incomplete and in some cases inaccurate.
Having a draft [from a clerk] is certainly useful [to address that concern].
I know that Posner is very scornful of the following proposition, but I
think it is also useful to have a clerk place some raw facts out there — on
paper. Otherwise, I might have to spend quite a lot of time getting the facts
from the record to formulate them exactly. The same is true to some extent
for cases that ought to be cited. Typically I start with a clerk’s draft,
[which] has most of the cases that will end up in the final opinion and
most of the facts. [This process] seems timesaving.
Mr. Nuechterlein: I should add that, from the perspective of the clerk, it makes all the
difference if you feel like you are part of the process of writing the opinion
and not just cite checking or critiquing it. That makes the job that much
more interesting.
Judge Williams: I would think so.
Mr. Nuechterlein: I often think that one of the things you love the most about your job is the
opportunity to have what are essentially small seminars, with students of
your choosing, to talk about any number of issues under the sun.
Judge Williams: Yes — I think that is one of the joys of it. One little phrase of yours is
very important there — “students of your own choosing.”
That reminds me of a conversation I had with a student at the University
of Colorado in my last year there. I knew that my nomination was under
consideration in the Executive Branch, and I remember talking with a
student who had very firm thoughts about what should be and should not
be in an opinion. I was thinking, no, you are wrong — at least in the case
of my opinions, [the things you would omit] will be there. It involved the
issue of addressing possible vulnerabilities of the opinion — [whether to]
state them clearly and then try to refute them.
Mr. Nuechterlein: The student thought it would be better to write something closer to a brief,
where you hope that the reader doesn’t notice the arguments on the other
side?
Judge Williams: Right.
Mr. Nuechterlein: Tell me a little about the culture of the court. Your first year was 1986–87.
Justice Scalia has just been elevated to the Supreme Court.
Judge Williams: Yes, he was around in the summer, but he was terribly busy on his
confirmation process.
Mr. Nuechterlein: Justice Rehnquist had just been made Chief Justice?
64
Judge Williams: The clerks that year and I went up and heard part of the Senate debate on
that, I think.
Mr. Nuechterlein: As I recall, that was ideologically contentious. Tell me the extent to
which, during all your years on the court, the court has been affected or
not affected by partisan ideological divides in DC.
Judge Williams: I think certainly in the early years it was quite heavily affected by them.
There was some sense of entering warring camps. Actually, Harry
Edwards told me that, when he first arrived, Bazelon said to him, “Well,
you will be voting with us!” And Harry said, “When I agree with you!”
I think there was certainly some feeling like that. [During that period,]
Wald, Mikva, and Edwards sat together on a panel that, in one day,
produced two en bancs even though they heard only three cases that day.
That is a pretty striking ratio. And you can play it either way. It doesn’t
make any difference which team was ahead on the panel — just that there
was a deep split.
Mr. Nuechterlein: What were some of the issues in those days that were particularly divisive
along ideological lines?
Judge Williams: Well, certainly the whole question of affirmative action or racial
preferences, however you wish to frame that issue. I’m trying to think if
criminal law was divisive — maybe a little bit.
Mr. Nuechterlein: When I think of criminal law in the D.C. Circuit, I think of the old-style
disputes between Burger and Bazelon.
Judge Williams: Right — it wasn’t as extreme as that. I do recall some cases where it
seemed to me that there was a bending over backwards to generate a
retrial when there was no need for a retrial. In the beginning we didn’t
have sentencing appeals. I haven’t seen any numbers on this, but I would
say that the principal issue in half of our criminal cases is the sentencing,
given the complexities of the Sentencing Guidelines. And we are not out
of that [now even though,] since Booker,
14 the Guidelines have been
optional or at least not mandatory, because they are still the first step in
calculating what a Guidelines sentence would be and then analyzing the
sentencing judge’s explanation of why he deviated from them. …
Mr. Nuechterlein: One set of issues you have not mentioned is justiciability — for example,
standing.
14 United States v. Booker, 543 U.S. 220 (2005).
65
Judge Williams: Yes, those, too, certainly were big issues. My reading is that those disputes
declined in significance after those early years because the Supreme Court
became much more open to finding standing than it was in the past. …
Mr. Nuechterlein: To what extent do you think these disputes about standing [in the 1980s
and 1990s] reflected a deep philosophical divide about justiciability issues
themselves as opposed to underlying disagreements about the relief sought
in particular cases?
Judge Williams: … A view that originated in the Progressive Era was that courts should not
get involved in anything that smacked of policy at all. That view was then
picked up by conservatives, largely as a response to the Brennan Court.
The progressives did not want the courts doing the things that progressives
saw the courts doing [during the Progressive Era], and the conservatives in
the Brennan era did not want the courts doing the things they saw those
courts doing. And in both cases, of course, the position was reinforced
with a broader ideological structure, which at least on its face was neutral.
And I thought, at the time [I arrived at the court], that the ideological
structure was sound.
I notice small signs that there may be a non-ideological weakening of that
view. One sign is the Fifth Circuit opinion in the Louisiana casket case,
15
in which the court is confronting a Louisiana statute that limits the people
who can sell caskets. Basically, the statute creates two separate rules: one
for out-of-state caskets and one for in-state caskets. The one for out-ofstate caskets has no particular limit on what the casket-maker must be
doing with the rest of his time. The one on in-state caskets says that the
casket-maker must be an undertaker, essentially providing undertaker
services. And the plaintiff is a group that, as one might say, has been
chosen by God for this purpose. It is a Benedictine monastery that is
following the edict of St. Benedict to make its own living. This one chose
to make its own living by making caskets for sale.
There is a brief discussion [in the opinion] of a completely flimsy
argument [by the state] as to some genuinely public-regarding purpose for
this rule. It is very flimsy because, if out-of-state caskets can be made by
people who are not undertakers, what is the consumer-protection element
in applying that rule to in-state casket makers? That is pretty quickly taken
care of. Then you come down to Louisiana’s flat-out honest defense of the
statute, which says it is simply to afford a benefit to the current incumbent
in-state casket makers by cutting down the competition. And the court
says that is not an acceptable purpose. The court does not go into a long
treatment of the history of [substantive] due process — or as I like to call
it, the rule against partial legislation. But it rejects [the state’s defense].
And it cites a Tenth Circuit case that flat-out says, “this is what
15 Abbey v. Castille, 712 F.3d 215 (5th Cir.), cert. denied, 134 S. Ct. 423 (2013).
66
legislatures do all the time, and it is perfectly OK constitutionally.” So the
Fifth Circuit very consciously, I assume, framed the issue in terms of a
circuit split. Whether the Supremes will bite, who knows?
Mr. Nuechterlein: So where do your sympathies lie?
Judge Williams: My sympathies lie entirely with the casket-makers.
Mr. Nuechterlein: The competitive casket-makers.
Judge Williams: Yes, the Benedictine Monks.
Mr. Nuechterlein: And what would be the constitutional basis for invalidating that state law?
Judge Williams: Well, that is obviously the weak point. The very fact that you have a
doctrine that was foolishly called “substantive due process” suggests
problems, because process is process and not substance, right? So that is a
problem. Even if you apply the more accurate name, “rule against partial
legislation,” you can fairly ask, “where does that rule come from?”
Mr. Nuechterlein: If you were a judge in that case, what tools would you seriously consider?
Judge Williams: I would do a lot of research.
Mr. Nuechterlein: Perhaps the rational basis test under the equal protection clause?
Judge Williams: The rational basis test can be rational basis with teeth, instead of toothless.
And we know that there are realms where rational basis does have teeth,
and maybe this should be one of them.
For a long time, I was persuaded that the strongest objection [to this
judicial role] was not really a doctrinal one but a practical one. And that is
the question: doesn’t this involve judges too much in policymaking?
Richard Epstein called my attention to the fact that we do have a
methodology in the negative commerce clause [context] that seems to
have worked without causing outrage — except perhaps on the part of
Justices Scalia and Thomas, and even then in a muted way.
Mr. Nuechterlein: On the other hand, the judicial rulings on the commerce clause can always
be overcome by Congress.
Judge Williams: That is true.
Mr. Nuechterlein: So there is a political check.
Judge Williams: Yes, that is fair enough. But have any [those rulings] been overturned by
Congress? I don’t think it’s common.
67
Mr. Nuechterlein: I have no idea. This discussion reminds me that, back in the ’80s, the
rallying cry of the conservative movement was “judicial restraint,” and the
liberals made fun of the doctrine of judicial restraint. It seems to me that
the battle lines have shifted since then. When you joined the court, did you
feel that “judicial restraint” described your [operative approach]?
Judge Williams: Yes, I did.
Mr. Nuechterlein: Although in this casket case, there is no readily available doctrine [for
countervailing the will of the people to suppress the ability of] the
Benedictine monks to manufacture their competing caskets. A good
majoritarian would say, well, that’s legal.
Judge Williams: Definitely an area where [my views have] changed. I guess, living in
Washington, you see more of the [crony] capitalism and all the forms of
anticompetitive manipulation that go on, and increasingly it seems like a
serious blight.
Mr. Nuechterlein: So are there other areas besides fostering competition where you think
courts are rightly vigilant against the majoritarian process, apart from the
obvious cases like restrictions on free speech?
Judge Williams: The big area is one kind of anticompetitive legislative activity or another. I
emphasize that area because a lot of the anticompetitive activities are not
in the form of restrictions on competition; they’re in the form of assistance
to a particular competitive group. Those are peculiarly unreachable [by
courts] because of our standing rules, particularly Massachusetts v. Mellon
and Frothingham v. Mellon.
16
Mr. Nuechterlein: Those are the taxpayer standing cases?
Judge Williams: Right.
Mr. Nuechterlein: So you are talking about ostensibly pro-competitive initiatives that involve
giving money to competitors, as opposed to legislation that gives
competitors, say, access rights to the assets of incumbent market
participants. The latter obviously are subject to judicial review.
Judge Williams: Right. Of course that is purely statutory. It is a matter of interpreting the
statute.
Mr. Nuechterlein: Tell me a little bit about how the ideological divide in the court mellowed
over the years.
16 262 U.S. 447 (1923).
68
Judge Williams: I think the biggest single thing was the Microsoft case (which only
involved seven of us).17
Here was a very high-profile case; it is silly that it
appeared to the public in ideological terms, but I think it clearly did. At
least some people who self-identified as conservatives thought that
Microsoft should be left alone, and a lot of the people hostile to Microsoft
seemed to be liberal in some sense of the word. Yet here our court, which
ranged from me as a conservative to David Tatel as a liberal, agreed [on
the outcome].
When it was decided [that we would hear the case] en banc, I thought
there was a prospect that we would agree, and I thought that that prospect
would be enhanced if Tatel and I worked together in preparation for it. So
we did. We had a number of meetings, and our clerks worked very closely
together. And I think that did produce a shared basis of understanding. I
have always gotten along well with him, but that [experience] really
deepened our relationship a lot. [I don’t know if] there’s any colleague I
find it more easy to deal with. That does not mean that I can always bring
him around where he ought to be brought around, but I do feel he listens to
me.
Mr. Nuechterlein: Do you share my sense that [the ideological divisions on the Court may
have] mellowed even before the Microsoft case?
Judge Williams: I think they did. The date that Harry Edwards became chief judge18 was a
big date because he clearly was setting out to mend fissures. I think
everyone recognized that and was ready to credit it.
Mr. Nuechterlein: How did he manifest that?
Judge Williams: Some of it was superficial. He organized an annual court dinner. He gave
people birthday presents on their birthdays. He conveyed very strongly the
sense that we were individually a reasonably distinguished court, but
maybe not as distinguished as a collective entity as we could be if we tried
to be more collegial and more respectful of each other’s opinions.
Mr. Nuechterlein: How do you think the public perception of the D.C. Circuit has changed?
Judge Williams: Most people have not heard of the D.C. Circuit; you should start with that.
When you say “the public,” you mean some very narrow set of the public.
Mr. Nuechterlein: Yes — so, the elites that pay attention to what courts do, how do you think
their perception of the court has changed in the last 25 years?
17 United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001) (en banc).
18 Judge Edwards served as chief judge from September 1994 to July 2001.
69
Judge Williams: I think there is still a tendency to pigeon-hole the court. The history of
pigeon-holing that I see is: “D.C. Circuit wildly liberal,” “D.C. Circuit
violently divided,” “D.C. Circuit staunchly conservative.” And all of those
are oversimplifications, although they have an appearance of truth. … If
you look at all the cases where there is a dissent, it is extremely common,
probably a majority of cases, that the majority is composed of an
appointee of a Republican president and an appointee of a Democratic
president. And so it makes you think this is a strange “ideological”
division if it is an ideological division. And I think you can look at the
merits of the cases and see something more complicated than a simple
“ideological” division—at least in terms of the politics of the Senate or the
House or something like that.
Mr. Nuechterlein: The D.C. Circuit does seem much less ideologically divided than it was
before and also less divided than the current Supreme Court. There might
be a number of reasons for that. One is that the cases that you get are not
as often prone to strong ideological divisions as the cases that the Supreme
Court gets.
Judge Williams: Absolutely.
Mr. Nuechterlein: Another reason may be that the Republicans on the D.C. Circuit have
more of a libertarian streak than their counterparts on the Supreme Court.
Judge Williams: I think that is true. Of course, there is another big thing: everyone on the
D.C. Circuit knows that if an issue is highly ideologically divisive and of
any significance at all, we are not likely the people who are going to be
deciding it in the end. It is going to be decided by the Supreme Court, so
the stakes are much lower for us.
Mr. Nuechterlein: I want to close this discussion of the court’s culture by talking about your
opportunity, which I take it you declined in 2001, to become chief judge.
Give us a little background on your eligibility and why you decided to
pass that up.
Judge Williams: The rule is that you can be chief judge for a term of seven years, but you
can’t be chief judge beyond the age of 70. [And you can only start being
chief judge, basically, if you would have five years in that position before
turning 70.] When Harry’s chief judgeship was coming to an end, it was
clear just by looking at the calendar that I would fit in that window by a
matter of weeks.
I had seen chief judges over the years. I won’t say that any of them were
completely unhappy in the post, but I could see that they had quite a bit of
administrative work to do, which didn’t particularly appeal to me. And
then in the spring, before this critical moment, which had to be September
of 2001, Harry gave me a call and said, “Steve — I have this meeting two
70
weeks away, and I think that since you are going to be chief judge, you
should be in on it, or at least know about it and come if you’d like.” It was
a meeting in which the people in charge of the buildings on C Street
between 3rd and 6th Streets — I think Harry used the term “the
stakeholders” — were to meet to talk about the parking and congestion
problem. [That problem] was terrible then and is still terrible, because the
people using the Municipal Building do not want to pay for a parking
garage, and they do not want to have someone else come with them who
could drive around the block while they do their business. And therefore
they double-park, and there is quite a lot of traffic in addition, so the
traffic is often tremendously congested. So I was grateful to Harry for
alerting me to this, but I was very confident that I did not want to spend
much time working on that problem.
Mr. Nuechterlein: Do you think he was doing you a favor by showing you a day in the life of
a chief judge?
Judge Williams: It certainly made sense that, if I was going to assume these responsibilities
in September, I should get in on the background, and this would be a way,
at relatively low cost, of getting in on the background with respect to
parking on C Street. But I don’t think it was a plot to shift the chief
judgeship to Ginsburg.19
Mr. Nuechterlein: Do Chief Judges get paid more?
Judge Williams: No — I don’t think so — if they do, it would be $5000. Their secretaries
get more — Mary wanted me to be chief judge. One thing that has
reminded me about this episode time and again is discussions with
Russian judges. In Russia, being chief judge is a very, very big deal. They
have a control over the other judges that is completely foreign to us.
Mr. Nuechterlein: What does that mean?
Judge Williams: Shift them around from one place to another, disciplinary activities. The
Russian judiciary is like a civil service, and if you are boss of a
department, you have a lot of power that goes with that. And I think that is
the way in which the government controls the outcome of the cases it
cares about. Sometimes they have a more traditional “telephone justice”
line straight to the judge, but I think in a lot of cases they do it through the
chief judge.
Mr. Nuechterlein: Before we conclude this discussion of life on the court, I do want to ask
you about your secretaries. Mary [Matera] has been with you since the
beginning?
19 Douglas Ginsburg was chief judge from 2001 to 2008.
71
Judge Williams: Right — she came from Pat Wald.
Mr. Nuechterlein: So that has been what — 25 years?
Judge Williams: 27 years.
Mr. Nuechterlein: Lindy was your secretary for a long time.
Judge Williams: Yes. The chief judgeship was also combined with the option to take senior
status, and senior status had some real appeal. At that point, assuming that
I was going to do a three-quarters load — which, from an early stage, I
contemplated — I couldn’t have three clerks and two secretaries. … Lindy
understood this, and so she started looking around. Before the actual
critical moment when I did take senior status, she saw it coming and
sensibly made arrangements. I am not sure what her first job was after
that, but pretty soon she got a job with a judge at the Tax Court. And that
has worked out very well for her.
Mr. Nuechterlein: I want to ask you about taking senior status. So the rule is that you have an
option to take three-quarters of your cases, or …
Judge Williams: You have an option in principle to take anywhere between 0 and 100.
Mr. Nuechterlein: How does your compensation change?
Judge Williams: Your compensation is completely unaffected by it. What is affected is
staff, and at three-quarters, you are entitled to three clerks and a secretary.
Mr. Nuechterlein: I guess it would be meaningless to take senior status and keep your full
complement of cases?
Judge Williams: Actually, Judge Sentelle is doing that. He says that the reason he is doing
it is that he has had two additional jobs besides being a judge in the D.C.
Circuit for the last several years. One was being Chairman of the Judicial
Conference, and the other was the Chief Judgeship itself.20 With those two
going away, with his taking senior status, he is like on vacation.
Mr. Nuechterlein: What does it mean if you are a circuit judge that takes senior status but
does not have your case load diminished?
Judge Williams: How does your life change?
Mr. Nuechterlein: Yes.
Judge Williams: At least on the D.C. Circuit, your ranking changes. You immediately
become junior. One thing I had not realized until I did it was that you can
20 David Sentelle was chief judge from 2008 to 2013.
72
become very junior. If the judges who previously took senior status were
appointed before you, they have seniority over you. So when I took senior
status, I think it was only Harry [Edwards] and Larry [Silberman] who
were already senior at that point, and they had seniority over me, just as
they did when I started in 1986.
Mr. Nuechterlein: What is the significance of seniority other than who gets to preside over
panels?
Judge Williams: [Opinion] assignment is really the only significance. There are cases that I
would have assigned to myself but that were not assigned to me. And vice
versa. Not a huge number. And people know that I enjoy not merely the
FERC cases, but also the other regulatory cases, and so they think rightly
that everyone will be happier if I do quite a lot of those.
Mr. Nuechterlein: Let’s begin talking about the substance of administrative law, which is
probably the most important substantive area of law at the D.C. Circuit
and certainly the area the court is best known for. At a very high level of
generality, I think of the principles of administrative law [as boiling down
to a core objective]: keeping the Executive Branch honest. Tell us how
you conceptualize the function of a court of appeals, and the D.C. Circuit
in particular, in scrutinizing the decisions of regulatory agencies.
Judge Williams: Well, your summary, at a high level of generality, is the essence of it.
What follows from that is making sure that the Executive Branch is
complying with the law, assuming it is a case where the plaintiff has
standing.
One might think that [this goal — ensuring that an agency complies with
the law —] does not justify a court of appeals in being bothered at all with
the facts. [Under that line of thinking,] the court of appeals could just
accept the facts as found by the agency. But when you think about that for
a minute, that doesn’t make complete sense because it would mean that an
agency that really wanted to get around the law could just find facts that
justify its outcome, and at that point the review on the law would become
meaningless. … But a court does have some duty to make sure that it is
not getting into decisions that are properly the agency’s.
Incidentally, once when I was in Russia, I had a lengthy discussion with
interpreters on the meaning of the word “deference,” and I found it
impossible to get across what was involved. I think it is partly because we
use “deference” in two different ways. One of these — I think the proper
[use of the term] — describes the lens through which we examine what the
agency has been doing. The other is a statement of the conclusion: “we
defer to this,” meaning “you win.” Although I am not sure if my opinions
have always rigorously done this, the word “defer” should not be in that
sentence. …
73
Mr. Nuechterlein: We have a lot of verbal locutions to describe the proper role of a court in
scrutinizing what agencies do. And deference in the more nuanced sense
you mentioned — the lens through which you view agency decisions —
obviously plays an enormous role in the life of the court. As a practical
matter, it requires a lot of subjective judgment to know when you have
gone far enough in second-guessing what an agency has done. … When
you analyze APA cases, how do you draw that line? Not you in particular
— the court in general. What is your sense of when the court is more or
less likely to second-guess a decision of an agency?
Judge Williams: Are we beyond the area where the language of the statute seems to require
or forbid [a particular outcome?]
Mr. Nuechterlein: I am talking more about the State Farm type of case,21 [where the question
is whether the agency has reasonably analyzed the record.]
Judge Williams: It seems to me there is inevitable subjectivity there. If you think about the
area being regulated with one outlook, then omissions or contradictions in
the agency opinion will look large or small depending upon how your
brain automatically fills in the blanks. … Harry [Edwards] has written
quite a few articles about this. One of his most intuitively correct findings
is that it is on those issues, the State Farm issues, that you see the biggest
divisions. In at least one of those articles, he pointed out that these are
problems for the agency, which the agency can solve, if there is a good
answer to the basis of the court’s remand.
Mr. Nuechterlein: The D.C. Circuit has a reputation for being more scrutinizing of agency
decisions than other federal courts of appeals.
Judge Williams: Yes. But I have heard people say that other courts sort of fluctuate more
between being totally submissive to the agency and just acting as if they
were the agency, while we fret and worry a great deal trying to avoid those
extremes. I can neither confirm nor deny this statement about other
circuits.
Mr. Nuechterlein: There is this sense that courts are more likely to second guess an agency if
they understand the subject matter and find it interesting.
Judge Williams: Yes.
Mr. Nuechterlein: Often when you have complicated ad law cases in regional courts of
appeals, you get a panel with no prior exposure to the area of regulation,
and it finds the case mystifying, so the path of least resistance is just to
affirm. In the D.C. Circuit, you have judges who have a deep background
in certain substantive areas, and in some cases they were picked for the
21 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Insur. Co., 463 U.S. 29 (1983).
74
court for that reason — because they are comfortable with analyzing the
regulatory state. You are thus more likely to get [second-guessing] and
less likely to get crazy remedies.
Judge Williams: Yes — I think both of those are true. Actually, the Federal Energy Bar
Association very kindly gave me an award — it is on the windowsill in my
chambers — and the price of getting the award was giving a little talk.
And I made the argument that a judge who knows something about an area
has sort of a plus and a minus for the parties involved. Exactly this: they
more likely understand what is going on, but on the other hand there is
some risk that they will be overconfident about their grasp of what is
going on in the area and will therefore not leave to the agency what ought
to be left to the agency. I think those are genuine problems.
Mr. Nuechterlein: Which is a reason for humility in the remedies: instead of saying “you
may not do this,” you say “have another look.”
Judge Williams: I think I may have mentioned to you that sometime, quite a while ago, I
asked a clerk to do a check of D.C. Circuit opinions to survey the
frequency of remand for want of reasoned decision-making. Somewhat as
I expected, I seem to be, in that particular sweepstakes, the winner.
Mr. Nuechterlein: We have been talking about the State Farm set of issues. There is also the
Chevron set of issues.22 I have heard several different justifications for the
practice of deferring to agency interpretations of ambiguous statutes.
Some of these rely on notions that Congress kind of intended for the
Executive Branch to be the one to resolve interpretive ambiguities in a
statute that has been committed to an agency.
Judge Williams: My guess is, as on so many issues that Congress addresses without a great
deal of focus, that [rationale] is largely a fiction to justify a conclusion
arrived at upon other grounds.
Mr. Nuechterlein: So what do you think the [appropriate] rationale is?
Judge Williams: I think it is the basic idea that there is a lot of policy involved in coming to
an interpretation of a statute, and that policy is properly for the agency, as
long as Congress doesn’t resolve the policy issue one way or the other.
Incidentally, coupled with that is the strong belief that one generation of
regulators, one cohort of regulators interpreting an ambiguous statute,
should not bind the others for all times, or at least until Congress manages
to get around to correcting the statute.
Mr. Nuechterlein: So what I am hearing is a sort of highly utilitarian explanation: “We
assume that Congress probably had some policy objective in mind. Who
22 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
75
better than the agency — which spends its whole day thinking about these
issues — to resolve the ambiguities Congress leaves in the statute? That
approach is more likely to produce a result that comports with public
policy than if generalist judges play that role.”
Judge Williams: I am not 100% sure about [whether the outcome would be] better or
worse. I guess [the key is the] flexibility of the agency, the ability to put
the learning of experience to work. If a court interprets a statute, and says
it means “this,” then it is very rare that [a litigant] will be able to come
back ten years later and say, “Look, history has shown that that has
produced terrible results.” The court is unlikely to dig its way out of the
hole it has put everybody in.
Mr. Nuechterlein: We operate as lawyers and judges in a world where we speak of statutes as
having “a meaning,” and it is left to the agency or a court to determine in
the first instance what that meaning is. Of course, that can’t possibly be
the right model for understanding statutes if we say that it is OK for the
agency to reverse course on what it thinks a statute means. So [courts do
not defer to agencies on the theory that agencies are somehow uniquely
qualified] to perform the epistemic function of determining what the
“true” underlying meaning of a statute is. I think we are just saying that
courts should [defer to agencies because, through gap-filling, agencies
rightly] play a role in legislating.
Judge Williams: I have always liked the metaphor used by Cardozo in his separate opinion
in Panama Refining.
23 It makes sense to look at what Congress does as
creating a canal that has borders and has a body in between, and as long as
the agency is on the water, within the boundaries of the canal, it is OK. He
was using the metaphor for a different purpose, of course, but it still
applies here.
Mr. Nuechterlein: Let’s go back to reasoned decision-making. When you remand for
reasoned decision-making, the instruction is essentially this: “you, agency,
may well have the authority to do this thing….”
Judge Williams: On the other hand, you might not.
Mr. Nuechterlein: Might not but you may well. We are not going to say that you don’t, but
we do want you to explain yourself. That is part of keeping an agency
honest.
I was just wondering: I have worked at federal agencies that may
sometimes, under some leaderships, view that sort of remand as essentially
a victory. If the remand is not accompanied by a vacatur remedy, the
agency can take a few more years before it has to cook up its next
23 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
76
rationale for the thing it wanted to do, and its political decision is in full
force in the meantime. Perhaps a remand for reasoned decision-making is
highly valuable in an idealized political system, where agencies care about
meeting their responsibilities. Do you have any views on whether the
actual political system we live in works like that?
Judge Williams: That is very interesting. What you are suggesting is that the key variable
with a remand for reasoned decision-making is the application of vacatur.
… In deciding whether to vacate, we expressly apply the sort of balancing
test that we definitely, expressly apply when it’s an application for a stay.
Mr. Nuechterlein: Yes, you look at the likelihood that the agency will be able to reach the
same outcome on remand, after further deliberation, and you also look at
the disruptive consequences of vacating a rule that may later be reinstated.
So if you do vacate when remanding for reasoned decision-making, you’re
telegraphing a very strong sense that the agency will probably not be able
to reach the desired policy. Here, though, I’m referring to the other class
of cases where you are throwing up your hands and saying, “Agency, it’s
up to you guys. You are the expert agency, but you have not produced
something we can defer to yet, and you need to explain yourselves, but we
are not at the point where we believe you can’t [justify the same
outcome].” My question is, in those cases what do you think the practical
effect of a remand is?
Judge Williams: [The question is] how does such a remand actually work out? You
probably recall the [FCC] case involving the question of ISP reciprocal
compensation. There we did not vacate. …
Mr. Nuechterlein: You did not vacate. [You remanded twice but] didn’t vacate either the first
or second time. I think you wrote both of those opinions.24
Judge Williams: Then there was [a later] opinion by Merrick Garland.
Mr. Nuechterlein: That was the mandamus proceeding. Your second decision was in [2002],
and the Core mandamus opinion was in either 2007 or 2008.25 There was
some strong language in that opinion.
Judge Williams: That’s interesting. My sense in the first opinion was that the case was
really, really complicated, and we did not want to screw things up. And
the Commission in the next round came up with a justification that really
didn’t work. I and the panel were unanimously convinced that it didn’t
24 WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002); Bell Atl. Tel. Cos. v. FCC, 206 F.3d 1 (D.C. Cir. 2000).
25 In re Core Comm., Inc., 531 F.3d 849 (D.C. Cir. 2008). The court directed the Commission, which had not responded to
the second remand for a half-dozen years, to come up with an acceptable rationale within six months or face automatic
vacatur.
77
work. [That suggested that the issue] was not only complicated in terms of
the regulatory economics and so forth, but also complicated legally, or
they would not have stumbled onto a solution such as the one they did. …
[That it took the Commission six years more to come up with a new
rationale] may suggest you are right — that [the remand without vacatur
penalty] doesn’t send a strong signal. On the other hand, taking the history
as a whole, I am not convinced that it would have been good to throw the
system into potential chaos.
Mr. Nuechterlein: What do you think is the main contribution to our regulatory system of
having this light-touch [remand-without-vacatur] remedy?
Judge Williams: I am enough of an optimist to think that [our demand for a] clearer
expression in an agency’s justifications has some sort of positive effect on
actual thinking. I understand there are some big gaps in that proposition.
Mr. Nuechterlein: So, over the long term, the fact that there is a court willing to hold an
agency accountable for [its failures of reasoned decision-making] …
Judge Williams: Yes — it has a healthy effect. And how big that effect is, I certainly
wouldn’t try to estimate.
Mr. Nuechterlein: Do you have a sense that remand-without-vacatur is more common now
than it was when you took office?
Judge Williams: That’s a good question. I don’t know. I honestly don’t know. I suppose
that Chevron might make it more common—reversals in the statutory
interpretation process at least theoretically would decline and therefore
leave more room for spotting [other] troubles in agency decisions. There
is also a paucity of empirical data on what Chevron’s effects have really
been.
The most famous [study was by Peter Schuck and Donald Elliott, entitled]
To the Chevron Station. There have also been some more recent studies.
Tom Merrill has done a piece. [Bill] Eskridge, too, has a very recent
article. He accumulates the total volume of Supreme Court decisions
where Chevron was, in principle, in play — in the sense that the Court, if
it were dedicated to Chevron, would have necessarily gone through a
certain mental process in arriving at its conclusion. I think that, in a
majority of those cases, Chevron does not appear. Period.
Mr. Nuechterlein: In terms of the remand-without-vacatur remedy, there is some
disagreement on the D.C., Circuit about whether that is even permissible
under the APA. My first question is this: I don’t recall seeing the court
actually do an analysis of the words of [5 U.S.C.] section 706 to determine
whether it is actually permissible.
78
Judge Williams: I think that is true. The prime exponent of the view that the words require
vacatur is Judge Randolph. Certainly in the long period between his initial
opinion and his taking senior status, he has had plenty of opportunities to
call for an en banc on the issue. That would not have necessarily produced
an en banc, but it might have produced a whole set of opinions concurring
with and dissenting from the denial of en banc. I don’t believe that
happened. So I guess the unspoken understanding is that the words are not
all that clear.
Mr. Nuechterlein: So Judge Randolph’s view would in theory, though probably not in reality,
divest the D.C. Circuit of the humble remedy of sending a case back to an
agency to think about it some more without disrupting the status quo. But
in reality, as he has pointed out, and as have you, that the difference
[between his view and yours] does not amount to very much. That’s
because, [even when the court issues a vacatur order,] the agency can just
come and say, “don’t issue your mandate.”
Judge Williams: Yes.
Mr. Nuechterlein: Then you’d have presumably the same balancing of stay factors [that the
court already uses, under your approach, to decide whether to remand
without vacating]. So why does anyone bother with this issue?
Judge Williams: Well, I think the answer is that nobody bothers about it very much — Ray
is bothered about it a bit — but as I said not all that much.
Mr. Nuechterlein: Do you have a sense of whether certain agencies come to the D.C. Circuit
with a greater presumption of reasoned decision-making than others? Are
there certain types of agencies that are more likely to be subject to hardlook judicial scrutiny?
Judge Williams: Do we view a decision from agency X differently than a decision from
agency Y because of a prior record of lesser competence? I honestly think
the answer to that is no. We look at the issues as raised by the petitioner,
we look at what the agency had to say, and we decide the case on the basis
of those things. So I don’t think an agency can get into an automatic losing
streak, or an automatic tendency to lose, on the basis of its record.
Actually, it would be sort of reprehensible if we did [consign agencies to
different categories on the basis of their past records] because, after all,
agency staffs change, and one hopes there is improvement. It would be
really peculiar to review a well-reasoned decision by a “bad” agency
partially. This is like the problem that investors have in dealing with
mutual funds (at least mutual funds other than index funds). Investors can
sometime [choose a fund] on the basis of its prior record, which of course
may be luck, and which also may [reflect the investment decisions] of
some genius fund manager who has then gone off [to some other job].
79
[This issue of treating agencies differently reminds me of a question I was
asked when] I was initially being vetted for the Tenth Circuit. It must have
been the FBI. I had not realized that the FBI not only checks to see if you
are smoking dope and doing other terrible things like that, but also seems
to try and answer questions that have more to do with judicial skill or
something. Anyway, the FBI agent talked with a lot of people in what is
considered the relevant community, and apparently some people in the
relevant community in the Tenth Circuit said, “he doesn’t really know the
district judges, and it is very useful to know them in ruling on their
opinions.” [Laughter.]
I share your laughter, but mine is mixed with dismay about the attitude
that this seems to represent. And the suggestion that we would have a
fixed view of an agency — a fixed view that was relevant to [reviewing
the agency’s] decisions — falls somewhat in the same category.
Mr. Nuechterlein: Although some agencies are subject to political pressures in ways that
other agencies are not. So even though they may be just as smart as other
agencies, just as capable of producing well-reasoned, lawful opinions,
some agencies may be disproportionately subject to, for example,
congressional oversight pressures that other agencies are not.
Judge Williams: I am not sure if I am well plugged in enough to know which these
agencies would be.
Mr. Nuechterlein: Independent agencies are more subject to congressional pressure than
[Executive Branch agencies. Of course, Executive Branch agencies may
be more subject to White House pressure.] It may be just different types of
pressure.
Judge Williams: Yes — that would be my guess.
Mr. Nuechterlein: After you have remanded a case to an agency for the first time, is there
any presumption either way about the soundness of what it has done on
remand?
Judge Williams: That reminds me of when I was first teaching administrative law. In
Chenery,
26 you will recall, the Supreme Court’s first decision does
effectively remand for reasoned decision-making. And then the second
decision says [the agency order on remand] is OK. Justice Jackson,
however, remarks: “the more you explain, the less I understand it.” Of
course, he is talking about his colleagues on the Court, saying that their
26 SEC v. Chenery Corp., 332 U.S. 194 (1947); SEC v. Chenery Corp., 318 U.S. 80 (1943).
80
opinion doesn’t make much sense. Maybe a change of personnel on the
Court [explains the second] Chenery [decision].
Also, how long can [a court] keep it up? There are two possible ways that
a court can respond [to an agency that stays the course following a remand
without any satisfying explanation]. One is to think [the agency is] utterly
determined about this so it seems fruitless to keep trying. And the other is
[reflected in] an opinion [I wrote]. This was not a case of successive
remands of the same actual decision, but successive critiques of the
agency’s reasoning. The agency said, “we were looking for data that
would support this,” and the prior panel said, “all right — you can’t be
expected to have good data that early.” But then finally there came a time
when [the agency] came back to us, and they had by then years and years
to produce data, and yet they had produced no data. They did produce sort
of theoretical reasoning as to why this was a sensible rule, but the theories
did not seem to hold up logically at all, and so we did say: “No, you can’t
do it.”
Mr. Nuechterlein: The presumption is that if the agency tried that hard to find some good
reason to produce an outcome, and if they could not come up with it even
on remand, they are probably even less likely to justify that outcome the
third time, and therefore you should vacate?
Judge Williams: That would be the lesson from that case. … If there is a discrete
proposition that appears not to have a basis, and then turns out not to have
a basis, that sounds like a case for drawing the line. …
Mr. Nuechterlein: Do you ever get approached by regulators about your decisions
informally? Do you ever run into someone at a party who says, “You
know, you reversed me like eight years ago, and I just want to tell you that
you misunderstood X and Y.”
Judge Williams: No, I haven’t — that is interesting. I would enjoy that. …
Mr. Nuechterlein: You mentioned discussions with Russian judges before. You’ve spent a lot
of time in Russia and a lot of time thinking about Russian legal reforms,
such as they are. In your discussions with judges from Russia and other
foreign countries, what is their view of the administrative law regime that
we have in the U.S., where agencies are quasi-lawmaking bodies, and
where courts supervise agencies but defer to them? Is there a counterpart
to that in other countries?
Judge Williams: The answer is I can’t be sure, but I think so. We know from Justice
Breyer’s books that the conseil d’état plays sort of a role like this [in
France]. But it’s less a court than a super-agency, so it’s not quite
analogous. In Russia, courts are deeply involved in looking at what
administrative agencies do, and interestingly enough, the complainants
81
there have, at least numerically, a very successful track record. I think the
[reason] is partly because these are very small-stakes cases, and the
higher-ups in Russia are not involved at all.
[Also, whereas a U.S.] court’s decision has an impact going forward, [the
Russian] system is either [ignores] precedent or views precedent in a very
special and limited way. So the government can lose a lot of socialsecurity-type cases without any impact. In contrast, in the disability area,
the U.S. courts were highly interventionist and produced a significantly
different system that [because of precedent] has led to an enormous
increase in the number of people on disability. That may be a good thing
or a bad thing, but it certainly had a huge fiscal effect. Very little risk of
that in Russia. And my sense is that the idea of having a [deferential] lens
through which [a court] examines agency decisions is quite alien to
[Russian judges]. Also, they don’t write opinions of the sort that we do.
Although they have something called an “opinion,” it just has a lot of
“whereas” clauses and then it has an outcome.
Mr. Nuechterlein: Is there reasoning in the “whereas” clauses?
Judge Williams: I don’t think so.
Mr. Nuechterlein: That is discouraging. I want to ask you about the choice that we make in
our system to have generalist courts of appeals review agency decisions of
most types.
Judge Williams: Yes — exactly.
Mr. Nuechterlein: The D.C. Circuit seems to occupy a middle ground between the regional
courts of appeals on the one hand and the Federal Circuit on the other,
[which specializes in matters within its exclusive appellate jurisdiction].
… What are your thoughts about the extent to which it is useful to have
truly generalist judges reviewing decisions of administrative agencies
versus judges who really have (or acquire) a deep background in the
subject matter?
Judge Williams: It is self-serving, but I am quite comfortable with this intermediate ground
that you have identified. And I have heard the argument — which, it
seems to me, is probably correct — that a court such as the Federal Circuit
is likely to feel that it owns its area and therefore, if there is an area where
there is supposed to be any deference, it gets clouded and torn away. Now
assume that the court and the agency are of absolutely equal quality and
intellectual quality. The problem that I mentioned earlier, about the
interpretation of the law getting locked into a particular viewpoint — is
more likely to occur [if the court supplants the role of an agency, because
agencies can more easily change their positions].
82
Mr. Nuechterlein: Do you think anyone in Congress ever gives serious thought to when it is
appropriate to have a specialist court of appeals review something and
when it is not?
Judge Williams: Well, they do sometimes. Remember there was kind of jurisprudential
crisis in veteran’s benefits. … The V.A. did not particularly want 600
generalist federal judges getting into their stuff, but the veterans wanted
some kind of supervision of V.A. decisions because they assumed,
probably correctly, that the courts would be tilted pro-veteran, probably
even more than the V.A. The solution was the creation of a Court of
Veterans Appeals. My guess is that it is a pretty special set of
circumstances that makes Congress take a serious look at [consigning
particular topics to specialist courts].
Mr. Nuechterlein: Thanks, Judge — that concludes today’s session. We’ll continue in a few
weeks.
83
Oral History of Judge Stephen Williams
Session 5
June 9, 2013
MR. Nuechterlein: This is Jon Nuechterlein, and today is June 9, 2013. Before I
turned on the tape recorder, the Judge said he had an additional
interesting thought about court collegiality, and I told him to hold
the thought until the tape recorder was on, and now it is on.
Judge Williams: I said earlier something about the general proposition that the leftright split was less important than it had been in my earlier days on
the court. I have been trying to find words to characterize the other
split: I guess it’s a sort of attention to judicial craftsmanship. That
is a vague phrase, I guess. I am thinking in terms of what happens
when a writing judge circulates a draft. Obviously, we all make
mistakes, and if the other judges respond with what I’ll call
craftsman-like suggestions—suggestions trying to prune things that
don’t need to be in the decision, to prune actual errors—that
process can go very smoothly with a judge, regardless of ideology,
who is really committed to those craftsmanship goals. But with a
judge who … does not seem quite so concerned about these
craftsmanship qualities, it can just be torture. …
Mr. Nuechterlein: What would you describe as some of the good principles of good
craftsmanship?
Judge Williams: Certainly not having mischaracterizations of other cases. Not using
very broad language on issues that, in their broad form, may be
highly controversial and difficult whereas in a restrained form are
unobjectionable. Those two certainly. [Also,] simply logic, trying
to pursue logic pretty carefully. Those ones.
Mr. Nuechterlein: So what do you think causes some judges to depart from those
principles? They seem pretty uncontroversial, as you describe
them. Most judges should aspire to logic, construing precedents
accurately, and not being needlessly controversial.
Judge Williams: … There are degrees of intelligence, and on the whole, everything
else being equal, more is better than less. And I guess the other
thing is focus. What is the particular judge focused on? There are a
lot of things other than those [craftsmanship] characteristics that
the judge can be focused on. Maybe extracurricular activity.
Maybe the goal of writing a splashy opinion. Those are a couple of
things that come to mind. …
84
I just read a short article by Mike Boudin on Judge Friendly’s
dissents.27 One thing he observes is that Friendly’s dissents were
pretty much equally divided to the extent that there were any
ideological division in the judges on the panel — they are pretty
much equally divided between dissents from Democratic
appointees and dissents from Republican appointees. My suspicion
is that is probably generally true on our court nowadays. That
would be true of most dissents: most dissents don’t fit into a simple
ideological slot. I was thinking of asking a clerk to search my own
separate opinions to see what comes up there.
Mr. Nuechterlein: That is probably a change from 25 years ago.
Judge Williams: Absolutely. Certainly the dissents that I remember.
Mr. Nuechterlein: I have always wondered — there are these two turns of phrase that
can conclude any dissent: one is “I respectfully dissent,” and the
other is “I dissent.” Does anyone attribute any significance to the
presence or absence of that adverb?
Judge Williams: I don’t know. The gossip is that one of my former colleagues,
when presented with a draft dissent by a clerk, made one change
and that was to delete “respectfully.” I take it that for him at any
rate it meant something.
Mr. Nuechterlein: Today we are going to focus on what I loosely call “business law”
cases, particularly the regulation of competition within various
industries. As I look through my list, all but one of those industries
could be classified as a high tech industry. I want to begin with
antitrust and a particular focus on the Microsoft case.28 When I
think of antitrust law in the lower courts, I don’t think specifically
of the D.C. Circuit, and I get the sense that the D.C. Circuit does
not get as many antitrust cases.
Judge Williams: I think that is absolutely true.
Mr. Nuechterlein: Is that simply because defendants don’t have their principal place
of business in the District of Columbia, and there is no statutory
provision that makes the D.C. Circuit always an available forum?
27 Michael Boudin, Friendly, J., Dissenting, 61 Duke L.J. 881 (2012).
28 Microsoft was also a topic of discussion in Session 4.
85
Judge Williams: That must be it.
Mr. Nuechterlein: It is somewhat anomalous given the number of antitrust-like issues
that the court addresses coming out of the regulatory agencies.
Judge Williams: Yes.
Mr. Nuechterlein: So the Microsoft case arose, as I am remembering, before your
court in the year 2000?
Judge Williams: Oral argument was before us in the winter of 2001.
Mr. Nuechterlein: I remember it well because I had just left the FCC and was about to
join Wilmer, and I remember listening to it on the radio. It was
really quite a gripping argument, and it went on forever as I
remember it.
Judge Williams: Well, it was two days, although the second day, things sort of
petered out.
Mr. Nuechterlein: So the case was heard en banc initially.29 Could you say a little
about how that came to be?
Judge Williams: Well, I recall it quite vividly. I was somewhere, I think it was at an
ALI meeting in Philadelphia, and an e-mail came around from
Chief Judge Edwards. … He didn’t say what the topic was, except
that it was about Microsoft. So I remember being puzzled and
exchanging an e-mail with another judge asking what this could
relate to. Today, I would just call Harry.
Mr. Nuechterlein: You knew that Judge Jackson had issued an order in the district
court …
Judge Williams: No doubt the appeal was pending before the court, but the decision
to treat it initially en banc had not yet been made. We did gather at
the time specified, and Harry proposed that we do just that. His
reason was that there were seven non-recused judges — if it went
to a panel and the panel split, there would be no way in which the
case could be en banced under the rules then prevailing, under
which a recused judge counted as a ‘no’ on en banc.30 It was a
29 Typically, the court sits en banc only after a three-judge panel has issued a decision. It is unusual for the court to bypass
a panel altogether and hear a case en banc from the outset.
30 Federal Rule of Civil Procedure 35(a) was amended in 2005 to exclude disqualified judges from the vote count.
86
mathematical truth. It seemed that, for something as important as
this appeared to be, to follow a procedure in which en banc was
simply mathematically impossible was not a good idea. So we all
agreed without much hesitation and were probably in part
influenced by the thought that this was an intriguing case and we
would all like to be involved in it.
Mr. Nuechterlein: Did it seem to you at the time that the likelihood of Supreme Court
review would be lower if the court [went] en banc?
Judge Williams: I didn’t think of that. If I did think of it, I would have thought yes,
that was probably true.
Mr. Nuechterlein: Your point about recusals makes me want to ask a question about
them. Presumably there were recusals because people owned
Microsoft stock.
Judge Williams: I think that’s the case, yes.
Mr. Nuechterlein: I recall that Justice O’Connor recused herself in every case
involving AT&T because she owned AT&T stock. Wouldn’t it
make sense simply to require federal judges to divest themselves of
an individual company’s stocks if there is any material likelihood
that they are going to be asked to adjudicate a case involving that
company?
Judge Williams: There is an exhortation in the Canons [of Judicial Conduct] that
judges do just that. Obviously on its face that is an attractive
suggestion. I assume that the only reason it [isn’t a requirement] is
that, under current law, a judge could be exposed to a huge capital
gains tax, depending on when the judge bought the stock, and
people in Congress were reluctant to impose that burden. That in
turn would be soluble by having some sort of roll-over provision.
Why Congress would not do that I have no idea.
Mr. Nuechterlein: So, back to Microsoft. The readers of your transcript 30 years
from now may not immediately know what the Microsoft case was
about. Microsoft makes an operating system that, at the time, had
something like an 80-95% market share, depending on how you
defined the market. And there were various claims in the case that
Microsoft had illegally preserved its monopoly power by
suppressing middleware such as Netscape or Java. The district
court, which was Judge Thomas Penfield Jackson, found Microsoft
to have violated Sections 1 and 2 of the Sherman Act. He then
87
imposed a rather extraordinary remedy — splitting up Microsoft
into two different business units, even though Microsoft was a
unitary company and there wasn’t any easy way to accomplish
that. So the two main issues in the case were (a) was Microsoft
liable under the antitrust laws and (b) if so, what would an
appropriate remedy be.
Judge Williams: The first of those issues divides up into the tying claim and what
the Europeans [would call] “abuse of a dominant position.”
Mr. Nuechterlein: Correct. If I am remembering this correctly, the Court of Appeals
upheld the district court with respect to the latter theory — illegal
monopolization — but rejected the district court’s finding of an
illegal tie. You imposed a rule-of-reason analysis rather than a per
se analysis..
Judge Williams: Yes — we remanded for that modified view to be applied, but my
recollection is that, on remand, the Justice Department dropped
[the tying claim]. Let me just add that, on the monopolization
argument, we also sorted out different types of acts. So that some
of the things that had been found to be unlawful by the district
court, we found that the case had not been made.
Mr. Nuechterlein: In fact, all the theories against Microsoft involved allegations of
unlawful single-firm conduct. As we know, ever since the Chicago
School arose in the ’70s and ’80s, there has been significant
academic debate about the proper scope of antitrust prohibitions on
single-firm conduct. Yet this was a unanimous opinion, finding
violations of Section 2 of the Sherman Act. I have two questions
about that, one procedural and one substantive. The procedural one
is that this was a huge opinion, had many different parts, was very
controversial at the time — and yet the entire opinion was
unanimous. There is not a single separate statement by any judge.
It is marked “per curiam,” which means the whole court took
responsibility for everything in it. That is extremely unusual [for
such a case].
Judge Williams: How did it happen? I think the members of the court thought
that—in a case of what seemed to be its importance (whether it
was really important I guess history may have different views on
or support different views, but it seemed very important at the
time)—we all felt that if we could agree, that was enormously
desirable. One thing is that, if we agreed, that probably increased
88
the probability that what we were saying was right. That is not
always the case, but we had a sense that it was true.
Mr. Nuechterlein: Can I stop you there? That does sound somewhat counterintuitive.
It is true that, in a political context, consensus usually marks the
point of social balance. But if you are talking about trying to find
the right answer to a question of complex legal doctrine,
compromise isn’t necessarily the way to get there.
Judge Williams: It isn’t necessarily, that’s certainly true. But I think we had a
feeling, right or wrong, that searching for agreement meant
listening to each other really carefully — and that the law was
probably not so inscrutable or chaotic that if we did that we would
not be able to reach a correct unanimous conclusion. One personal
thing. I had the feeling, which I articulated to myself, but I also
thought that there were two judges who were likely to be at
opposite ends of the spectrum on this [set of issues], those might
be Judge Tatel and me. But I also had experience with him by that
time and found him to be a good listener — and a good speaker,
obviously. So I proposed that we do some joint preparation, and
we did. And that was extremely helpful.
Mr. Nuechterlein: Much of the first half of the opinion is focused on distinguishing
between what might be called “competition on the merits” by a
monopolist, which is pro-competitive and OK, versus
“anticompetitive acts,” which are not OK. And that line can be
rather tortuous. …With respect to the monopolization discussion in
the opinion, there is not a lot of theoretical hand-wringing about
the ability of courts to distinguish between procompetitive and
anticompetitive behavior by dominant firms.
Judge Williams: An absolutely accurate and fair point. As it worked out, in the first
place, there are Supreme Court cases, which [we cited], which
appear to create a kind of balancing test. Is there a purpose for a
particular policy or act that is completely consistent with
competition? Is there a purpose to be discerned from the act that is
not consistent with competition? And then the Supreme Court
appears to create, although it is not 100% clear, a kind of balancing
test. So, in principle, there is the question of how on earth do you
balance these [procompetitive and anticompetitive effects]? In fact,
if you look at the sections of the opinion that deal with this, no
occasion was ever presented to do the balancing. … For some
things, Microsoft never offered a purpose consistent with
89
competition, so that ended the matter, at least if the government
had given an indication of an anticompetitive purpose and effect.
… Certainly failures of Microsoft or the government [i.e., to give
such an indication] at either of those stages produced the result
without any balancing at all. You’ll see that no balancing in fact
goes on in the opinion. …
Mr. Nuechterlein: The Antitrust Division had not yet fully articulated its “no business
sense test,” which it later articulated in its amicus brief in Trinko.
31
… [W]hat courts often say about single-firm conduct cases is that
antitrust law should suppress activity that over the long term will
harm consumer welfare in some measurable sense (in the net) and
that it should permit conduct that over the long term will help
consumer welfare, in the net. The distinction between those two
things is going to vary from context to context; it is going to be a
heavily empirical question. And it is not really susceptible to neat
doctrinal formulas.
Judge Williams: I agree one hundred percent, and I am sure the Antitrust Division
… would have to agree on that. I think the basic idea was to have a
test that ordinary mortals and more specifically judges could apply
and that would have a relatively high prospect of coming out right
over the long run. And I think the appeal of that [no business
sense] test, which you say was formulated clearly by the
government only in Trinko, is that it doesn’t involve this mystical
weighing. The argument against that test would be that it allows
too many possibly anticompetitive acts because, as long as there is
a legitimate business purpose, that is the end of the case, or so it
appears under that formulation. So what do you do when there is a
little legitimate business purpose and a big anticompetitive
purpose? At least in principle, you allow it to go forward. And if
you don’t allow it to go forward, then you are back to weighing.
Mr. Nuechterlein: One question I often have is, if we had it to do over again — if we
could go back to the late 19th Century and write the Sherman Act
from scratch — whether would we decide to include a Section 2 in
it. I think most people believe there is a role in the law for
prohibitions on anticompetitive single-firm conduct, but that is not
an uncontroversial proposition. I have heard intellectually
respected people argue that, over the long term, the line-drawing is
so intractable and the risk of suppressing productive conduct is so
31 Verizon v. Trinko, 540 U.S. 398 (2004).
90
great that we would be better off if we simply narrowed the scope
of the antitrust laws to multi-firm conduct. Do you have views on
that?
Judge Williams: I think [I have] the sort of conflicted feeling that a great number of
people have. I see that as a highly intellectually respectable
argument. Actually, I went on a program for the FTC in which we
presented to judges and lawyers in the Caribbean [about U.S.
antitrust law]. We [discussed] a Third Circuit single-firm
misconduct case. One of the lawyers we were addressing came up
with beautifully articulated arguments as to what competitors of
the [defendant] in fact could have done to get around the obstacles
supposedly created by its conduct, which was found to be unlawful
by the Third Circuit.
Mr. Nuechterlein: Is this the LePages’ case?32
Judge Williams: No, it isn’t LePage’s ; it’s Dentsply.
33
And he seemed to do a
fantastic job on that. But that certainly doesn’t exclude the
possibility of cases where the anti-monopolization rule can be
useful. My understanding is, and this is totally vague, certainly
we’ve never seen any effort to pull it together in the actual
Microsoft litigation; it largely became moot.34 I don’t know if
that’s true; I have read intelligent people saying that.
Mr. Nuechterlein: Can you think offhand of a judicial intervention in single-firm
conduct that has received consensus approbation by the antitrust
academy?
Judge Williams: That is a wonderful question. The answer is no, but that may not
prove much because I can’t be said to have my fingers on the pulse
of the antitrust community.
Mr. Nuechterlein: One of the challenges in the Microsoft case was that the industry
was obviously changing very rapidly. In some ways, the case
already looks sort of quaint in part because of the rise of non-PC
computer hardware that people now use in their everyday lives
32 LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003).
33 United States v. Dentsply Int’l, Inc., 399 F.3d 181 (3d Cir. 2005).
34 Although this passage is obscure, JUDGE WILLIAMS appears to be stating that the Microsoft decision, while correct on
the merits, produced only incidental consumer benefits because technological change promoted competition faster than
the litigation process could.
91
[e.g., smartphones]. Microsoft Windows no longer has the scary
position it seemed to have twelve years ago. Early on in the
opinion, the court acknowledged that, in high tech industries,
courts should be more reluctant to impose strong remedies than to
find liability because the remedies might more easily become
immediately obsolete.
Judge Williams: Yes — the broad concept about the special problem of high-tech
industries keeps popping up in the opinion, and I know it was
critical, for example, in the treatment of the tying claim. I think the
court did see that as a problem throughout. In fact, if you look at
the violation findings by the district court that we actually
affirmed, they were very narrow bits of Microsoft behavior, which
undoubtedly seemed big to the victims at the time, but they were
pretty specialized and narrow things, and I can’t believe we did
much harm by striking them down. That doesn’t mean we
accomplished a great deal by doing that.
Mr. Nuechterlein: There is also the question whether the middleware threats that the
suit was designed to preserve were genuine threats to Microsoft.
Judge Williams: Yes. Now the one thing on that – my recollection is there were emails from Bill Gates himself, which clearly took the view that
they were.
Mr. Nuechterlein: But he might have been wrong.
Judge Williams: He absolutely might have been wrong. Absolutely. No, it’s
interesting — corporate chiefdom is slightly paranoid. Does that
mean that the assumptions that he bases his fears on are sound?
How do you treat them? You might say he was in a better position
to appraise them than we were.
Mr. Nuechterlein: True. There is an interesting passage in the opinion about the role
of causation in antitrust analysis. Once you have concluded that a
particular form of conduct is anticompetitive and could harm
nascent competition, the court appears reluctant to engage in a fullthrottle investigation of whether that [nascent] threat was a genuine
threat.
Judge Williams: You’re talking about the threat to Microsoft?
Mr. Nuechterlein: Yes — once it was found that Microsoft took anticompetitive acts
that could disadvantage nascent potential competition …
92
Judge Williams: I see.
Mr. Nuechterlein: … the court doesn’t look particularly hard at whether that nascent
potential competition would have been a serious threat over the
long term.
Judge Williams: Again, I think that probably seemed a perfectly good way of
treating the matter because, for the things for which Microsoft was
found to be liable — they were things for which it had no
explanation, no justification at all.
Mr. Nuechterlein: By the way the opinion is sort of interesting as well in that,
although it is per curiam, different sections have very different
voices.
Judge Williams: Have they been run through computers yet to determine which
voice was at work at each?
Mr. Nuechterlein: I have my suspicion about which sections you may have played a
particular role in, but I suppose that is still off the record?
Judge Williams: Yes I think it is.
Mr. Nuechterlein: OK — the final portion of the opinion was the unpleasant matter of
disqualification. The case itself had sort of a fraught history, in that
the D.C. Circuit disqualified two district judges who had been
involved in Microsoft matters. First, Stanley Sporkin in the prior
round.35
Judge Williams: Yes — I had forgotten that. What had he done?
Mr. Nuechterlein: I am having a hard time remembering, but I think it had something
to do with his relying on too much on a book that he found
particularly useful.36 It wasn’t in the record, but he liked it, and he
acknowledged very publicly that he was relying on this extrarecord material. And there were just various remarks of his that a
panel of the D.C. Circuit, which I believe you were not on, found
problematic.
Judge Williams: It comes back to me now — yes.
35 United States v. Microsoft, 56 F.3d 1448 (D.C. Cir. 1995).
36 James Wallace & Jim Erickson, Hard Drive: Bill Gates and the Making of the Microsoft Empire (1993).
93
Mr. Nuechterlein: Then the Court of Appeals en banc disqualified Judge Jackson [in
the later case].
Judge Williams: Just for the record, [he had] prolonged conversations with a
journalist about the case, while the case was going on, in which he
shared his views with the journalist apparently. One has to assume
that, to some extent, the journalist, at least by body language, must
have responded to those.
Mr. Nuechterlein: Yes. This was obviously a big moment in Judge Jackson’s career,
and yet as far as I can tell, he wasn’t given any opportunity to
submit anything to the Court of Appeals.
Judge Williams: That’s interesting.
Mr. Nuechterlein: And so there is a process question.
Judge Williams: You mean if it had been done in the form of mandamus then the
brief would have come nominally from him, although in all
likelihood someone from the Justice Department would have
prepared it?
Mr. Nuechterlein: Although, in this case, the Justice Department didn’t know about
what he had done until after he had issued his final judgment,
because he had embargoed [the article]. Then, at oral argument,
DOJ refused to defend what he had done. So no one was defending
what he had done before the court of appeals.
Judge Williams: Is that true? I thought there was some, perhaps not full-throttle
defense. But there was none whatever?
Mr. Nuechterlein: I was just reading this section of the opinion yesterday, and there is
an extended quote from the DOJ attorney saying that “I have no
brief to defend Judge Jackson’s discussion of this case with the
press.”
Judge Williams: Am I not right in thinking the Department did oppose his being
removed from the case?
Mr. Nuechterlein: That is possible. Yes.
Judge Williams: That is interesting. I had forgotten that. I am trying to think how
normal recusal litigations go. When it’s mandamus, the order is
directed to the court, let’s say the district judge in question, to
explain himself. It seems to me on those we have actually gotten
94
briefs from the government, presumably done in coordination with
the judge. It must depend upon where the objection is coming
from. Maybe the lion’s share of them comes in criminal cases
where it is the defendant who is calling for recusal. I think that is
the most frequent claim for recusal. So that does create, I think, a
sort of logical entry point for the judge’s views. But you’re right
there wasn’t one here. I think apart from this criminal defense
situation, which is probably the lion’s share of them, what
happened in our case is probably typical. I don’t think there was
any dispute about the facts — of course, if one side is
unrepresented, it’s hardly surprising there’s no dispute about the
facts. It’s hard to say the facts [here] were indisputable, but I think
there was a basic story that did seem to be unquestioned. I think
there had been some motion before Judge Jackson that had given
him an occasion to set forth whatever. …
Mr. Nuechterlein: The opinion is interesting in that, towards the end, you
acknowledge that Judge Jackson was feeling some degree of
pressure because Microsoft was conducting a PR campaign at the
same time, and it was apparently driving him crazy because he
viewed the PR campaign as consistently distorting what was
happening at trial. And he was aware that this was one of the
highest-profile cases of that time and wanted to make sure the
record was set straight. Your opinion acknowledges that judges are
subject to a strong impulse to get the truth out and defend the
exercise of the rule of law in the face of distorting PR campaigns.
But you also point out that that’s just corrosive to the public
perception of the judiciary.
Judge Williams: I don’t know if it was said [in the opinion, but,] as you pose it now,
my reaction [to judicial frustration with a party’s PR campaign]
would be [to ask]: what are the methods of getting the record clear,
and [is] the method of getting the record clear by statements on the
[trial] record? Statements on the record would present a problem
because the parties and the press hearing the judge [would] issue
rebuttals … And at least beyond some incredibly hard-core types
of misrepresentations, [we’d] probably think this was showing off
a tender skin, so there would be limits on that. .… But to have
private conversations with a journalist seems like a really, really
bad way of doing it.
Mr. Nuechterlein: So I have a segue here — let’s see if it works. The two judges that
were disqualified from the collection of Microsoft lawsuits in the
95
last decade of the 20th century were Judges Jackson and Sporkin.
Those are also the same two judges that you shared a district court
panel with in the “must carry” cases.37

Judge Williams: A three-judge district court.
Mr. Nuechterlein: So of the three, you were the designated court-of-appeals judge,
and the two of them were district judges. The way the
[jurisdictional] statute worked is the constitutionality of [the
challenged] statute would be assessed by a three-judge district
court, with one court-of-appeals judge sitting by designation, and
then there would be a right of direct appeal by the loser to the
Supreme Court of the United States.
The most important provision at issue in that set of cases was the
so called “must carry” provision, which requires cable companies
to carry the signals of all broadcasters located within the coverage
area of their cable systems. Congress gave a couple of reasons for
that requirement. One of them was, without it, broadcasting would
wither and die because more and more people were watching TV
over cable systems than over the airwaves, and if over-the-air
broadcasting was not carried on cable, then the advertising
revenues would shrink for broadcast TV and the business model
would become untenable.
Judge Williams: In fairness to Congress, you should add that this [dynamic] would
leave, they said, people without access to cable utterly deprived [of
television].
Mr. Nuechterlein: It would seem, speaking out of school, that a more sensible
solution to that concern would be simply to grant vouchers to
people to subscribe to cable service.
Judge Williams: There were lots of alternative methods.
Mr. Nuechterlein: Another rationale given by Congress is that local broadcasters
were unique sources of news and other local coverage in particular
communities and that, if they were not carried by cable systems,
then viewers of TV over cable systems would lose access to local
coverage.
37 See generally Turner B’casting Sys., Inc. v. FCC, 512 U.S. 622 (1994) (“Turner I”); Turner B’casting Sys., Inc. FCC, 520 U.S. 180
(1997) (“Turner II”).
96
Judge Williams: That seemed to move the case into the content-specific aspect of
First Amendment law. That [statutory promotion of local
coverage] was never a [constitutional] concern at least [for] the
Supreme Court majority.
Mr. Nuechterlein: It wasn’t a concern of the district court majority either. There were
two phases to this case. One of them was in the early ’90s and
involved, among other things, the proper standard of First
Amendment review. That was Turner I . And then Turner II. You
were in the dissent in the district court in each phase of the case. …
In the first case, there was a majority opinion written by Jackson,
and Sporkin concurred in the opinion but also wrote separately.
You dissented. [On appeal,] the Supreme Court [held] that
intermediate scrutiny would be the legal standard, and the case was
remanded to the district court for fact-finding on whether Congress
had met that First Amendment standard. Sporkin resolved the
[second] case on summary judgment on the ground that the statute
could be deemed to have satisfied that standard. You would have
resolved the case on summary judgment the other way. And
Jackson was in the middle, saying “I don’t think we have enough
facts yet to rule on these cross-motions for summary judgment, but
because I must vote one way or the other, I will vote with Judge
Sporkin.”
Judge Williams: It appears, as you recount it, a complete non-sequitur.
Mr. Nuechterlein: That occurred to me as I was reading this last night.
Judge Williams: I’d certainly forgotten it.
Mr. Nuechterlein: In your initial dissenting opinion in ’93, you found that the mustcarry provision triggered strict scrutiny because it was a contentbased form of regulation of speech.
Judge Williams: I assume that was on the basis of the congressional purpose to
protect the unique characteristics of what the locals had to say.
Mr. Nuechterlein: Yes, that is correct. It raises interesting first principles of free
speech jurisprudence because there was nothing viewpoint-based
[in the must-carry statute].
Judge Williams: It was not viewpoint-related.
Mr. Nuechterlein: Purely content-based. And [Congress’s] sense was that it is good
97
for an informed electorate to have access to broadcaster-supplied
local coverage, so let’s make the cable companies carry this local
coverage. You would have applied strict scrutiny to that judgment.
Which was a perfectly defensible way at the time of viewing the
First Amendment. But it does seem to be a very categorical
approach because [the statute] doesn’t raise concerns about
censorship or the government favoring one side or the other.
Judge Williams: It’s true. My recollection is … that the Supreme Court hasn’t
articulated clear criteria about when non-viewpoint but contentbased discrimination gets particular types of scrutiny. My
recollection also is there are certainly more cases that said flat out:
“[if] content based, [then] strict scrutiny.” Maybe I was overapplying it. … The plurality opinions in both [Turner] cases are
just about the same. They go off essentially on a bottleneck
monopoly theory, and that struck me as just desperately weak.
Mr. Nuechterlein: You are saying the bottleneck theory is desperately weak, not
because cable was not a bottleneck …
Judge Williams: It was terribly easy to get around it from a customer’s point of
view. The A/B switch seemed to be the single biggest obstacle, but
the record showed you could get one for $70.38 …
Mr. Nuechterlein: This was also earlier in time before the rise of satellite [TV
services]. In the 1993 opinion, you said: “In considering cable,
Congress confronted a very real problem — one for which it has an
easy remedy entirely consistent with the First Amendment. The
problem is that cable systems control access ‘bottlenecks’ to an
important communications medium.”39
Judge Williams: That is interesting. So I bought it in the first round.
Mr. Nuechterlein: You did. But you pointed out that [there was] a non-content-based
solution to the problem of bottlenecks, which is to impose a
common carriage principle on the cable systems.
40 Which is ironic
38 Affixed to a television, an A/B switch allows consumers to switch easily between cable signals and over-the-air broadcast
signals.
39 Turner B’casting Sys., Inc. v. FCC, 819 F. Supp. 32, 57 (D.D.C. 1993) (Williams, J., dissenting).
40 Id. (“There are well-developed regulatory responses to this sort of situation. The ‘bottleneck’ holder may be ordered to
serve all parties that meet neutral criteria for service. The Federal Communications Commission itself administers just
such regulations in assuring that interstate long-distance telephone companies have access to local telephone networks.”).
98
because I think they would have hated it, the very cable systems
[that challenged the must-carry law].
Judge Williams: Right, right, right.
Mr. Nuechterlein: So this went up to the Supreme Court, and they decided
Solomonically to adopt a standard of intermediate scrutiny. The
case came back down, and you had additional proceedings on
whether Congress had met its intermediate First Amendment
burden. Maybe I wasn’t following this closely enough, but this
struck me as an odd exercise. You are in essence holding Congress
to a sort of APA obligation in connection with an exercise of
regulatory power. I can’t recall now whether it’s relevant what the
facts are that were not before Congress. In other words can you
have freestanding fact-finding in that First Amendment setting?
Judge Williams: I think this is a completely unresolved question of constitutional
law. You know that the Supreme Court, from time to time, strikes
down a statute on the basis of its finding that the facts do not
sustain a congressional viewpoint. My recollection is that we sort
of fudged the issue on both sides as to whether the presence [or
absence] of a fact before Congress made any difference, but that
obviously does take the Supreme Court into a somewhat unusual
role. On the other hand, if there’s going to be serious review of
constitutionality of statutes — and one hopes there should be,
particularly for the First Amendment — [the courts] certainly can’t
let Congress just assume a bunch of facts that have no basis in
reality.
Mr. Nuechterlein: This was a set of cases in which your position lost not once, but
twice before the Supreme Court — although in both cases, as I
recall, in close votes.
Judge Williams: The second one was 4-4-1 with almost no overlap between
Breyer’s separate opinion and the plurality opinion.
Mr. Nuechterlein: How does it feel when the Supreme Court objects to a position that
you care a lot about and have written on?
Judge Williams: It’s disappointing, but it’s the nature of the job, so I don’t go home
and weep. …
Mr. Nuechterlein: [Let’s] move on to another topic in communications law: the
FCC’s efforts over the last fifteen years to implement Congress’
99
directive that the FCC cap the number of total subscribers
nationwide that any cable system (or affiliated group of cable
systems) can reach.41 The theory underlying this legislation is that,
if too many people watch TV over the same affiliated group of
cable systems, then that [group] would have undue power to
suppress independent programmers. So Congress told the FCC to
limit the reach of cable systems so as to ensure that independent
programmers would not face market power by a monopsonist in
the market for distribution for cable programming. As I articulate
that issue, one question that immediately comes to mind is that this
legislation seems in some tension with the Chicago School’s
insight that, with well-established exceptions, concerns about
vertical leveraging of monopoly power are misplaced. It may be
that there was an exception to that principle here. But Congress’
basic concern was, rationally or irrationally, that cable systems
would discriminate in favor of their own programming and against
programming of independent entities.
As a result, it limited the number of subscribers that any given
cable system could reach, and it directed the FCC to come up with
a number. The FCC had a variety of mathematical formulas that
led it to say that programmers really needed an open field of
something like 40% of viewers nationwide in order to reach an
efficient operating scale. But then it didn’t draw the natural
conclusion that the number should be 60%. It … cut that figure in
half to 30% on the ground that there might be collusion between
two unaffiliated cable companies to discriminate against
independent providers of programming. This coming back?
Judge Williams: I do remember the 30% figure, and I do remember some strange
moves the Commission was making. I suspect we said — I don’t
remember saying this, but it sounds as if we might well have said it
— why do you think collusion is likely, and if collusion occurs,
why not stop it?
Mr. Nuechterlein: What was interesting is that the [court could have] reached the
same outcome through traditional APA analysis. There were a
variety of empirical holes in the FCC’s analysis, which by
themselves would have warranted a remand.
Judge Williams: Wasn’t it sort of an APA [decision] with a First Amendment
41 The opinion discussed in this portion of the interview is Time Warner Enter. Co. v. FCC, 240 F.3d 1126 (D.C. Cir. 2001).
100
flavor? Or First Amendment with an APA flavor?
Mr. Nuechterlein: Well, that is what I was going to ask about. There is a First
Amendment dimension to the case: you basically apply
intermediate scrutiny, and you say this imposes on the FCC a
particularly strong need to justify what it has done. As I was
reading the opinion, I came to the conclusion that the FCC would
have lost either way — whether you imposed a First Amendment
overlay or not.
Judge Williams: That’s interesting. I think the answer is quite possibly yes, but
when you fix your glasses for viewing through a First Amendment
lens, you don’t have to address the exact question of whether
[viewed through another] lens it would come out the same way.
Mr. Nuechterlein: Although what is interesting — and remember this tape is being
embargoed for some period of years — you were on a panel that
produced an opinion a few weeks ago in the Tennis Channel
case.
42 One of your colleagues [in a concurring opinion] had an
extended First Amendment analysis of why the FCC’s reasoning
didn’t pass muster. And you wrote the opinion for the court, which
was extremely short and said the FCC analysis had no empirical
basis [for finding that Comcast Cable had ‘unreasonably
restrain[ed] the ability of an unaffiliated video programming
vendor to compete fairly,’ in violation of Section 616 of the
Communications Act].
Judge Williams: … without getting into the nature of the legal standard at all.
Mr. Nuechterlein: This was probably an exercise in judicial humility. You didn’t
perceive a need to have a long discussion of First Amendment
jurisprudence in the case because it wasn’t necessary. As I was
reading the Tennis Channel opinion, I was thinking of this
stylistically: there is some contrast to the cable ownership case,
where you [also] didn’t strictly need to discuss the First
Amendment.
Judge Williams: Oh, that is interesting. Huh. Huh. So you are suggesting that
maybe the Williams of 2013 approaching the cable ownership case
might just have said, “let’s forget about the First Amendment.” My
recollection, which may well be wrong, is that … the First
42 Comcast Cable Commc’ns v. FCC, 717 F.3d 982 (D.C. Cir. 2013). The concurrence discussed here was by then-Judge
Kavanaugh.
101
Amendment had some sort of role in appraisal of this statute [that]
was not disputed. Once you get below intermediate scrutiny, there
is not much left so if they did agree on some First Amendment
role, you are already at intermediate. … I guess that I didn’t think
we were in significantly dangerous territory in what we said about
the First Amendment there. …
Mr. Nuechterlein: Different judges have different attitudes about the First
Amendment in business law cases. Justice Kennedy … has a very
expansive view of the First Amendment’s role in these cases. From
my own personal perspective, there are lots of forms of
government intervention in the media/communications
marketplace that are wrongheaded, but that I would not personally
invalidate as violations of the First Amendment, because I view the
First Amendment as being designed mostly to ensure that there is a
robust exchange of views in society and the government doesn’t
censor them.
Judge Williams: Right. I certainly understand that position, and I am sympathetic
with it to a degree. But I think it certainly is the case that by
[enacting] what looks like purely economic or purely structural
rules, Congress can seriously impinge on the robustness of the
debate. …
Mr. Nuechterlein: I want to turn briefly to a couple of cases that you authored in the
first decade of the 21st century. We still don’t have a term for that
decade; some people call it the “aughts,” but that doesn’t seem to
have caught on.
Judge Williams: I agree — it is a nameless decade.
Mr. Nuechterlein: One was in 2002 and another in 2004 — USTA I and USTA II.
43
“USTA” stands for United States Telecom Association, the trade
association for the incumbent telephone companies. In each case, it
was challenging the FCC’s rules governing access by new entrants
to the incumbent telephone companies’ facilities for the provision
of competing local services, and the FCC had adopted a fairly
aggressive pro-sharing regime under its original 1996 rules
[implementing the Telecommunications Act of 1996]. The
Supreme Court [held in 1999] that the FCC had not explained why
43 United States Telecom Ass’n v. FCC, 359 F.3d 554 (D.C. Cir. 2004) (“USTA II ”), United States Telecom Ass’n v. FCC, 290
F.3d 415 (D.C. Cir. 2002) (“USTA I”).
102
it was not doing what Congress told it to do, which was to limit the
facilities subject to sharing obligations to those facilities whose
absence would “impair” the ability of new entrants to provide
service.44 That subsequently became known as the “impairment”
standard. The FCC took a very narrow view of that restriction on
its authority to impose sharing rules even after the Supreme
Court’s remand. The result was these two cases, USTA I and USTA
II, in which you ultimately invalidated the FCC regime that made
the local telephone companies hand over, in most cases, all the
network facilities needed to provide competing telephone service.
Judge Williams: [That regime] meant that a competitive local exchange carrier
could thrive, theoretically at least, with no facilities at all.
Mr. Nuechterlein: That’s right.
Judge Williams: Entirely as a paper phone company.
Mr. Nuechterlein: Yes. One thing that is interesting about that case to me is that it
reveals the intersection of competition regulation with antitrust
law. The FCC had a [minimalist] view of the impairment standard
that I suppose is linguistically consistent with the language of the
statute. But your reaction was that Congress could not have meant
the impairment limitation to be that weak — it had to have
something more like the essential facilities doctrine in mind, and
even though this is not an antitrust case, it’s still appropriate to
look antitrust doctrine [to inform statutory interpretation].
Judge Williams: And one of my two opinions [was] criticized for relying on [the]
Breyer dissent [in Iowa Utilities Board ], but the Breyer dissent
made essentially the point about the incentive effects of the FCC’s
rules. In the first place, [they created] a disincentive for the
competitive [local exchange carriers] to actually do the things
Congress dreamed would come of all this. And they similarly, in
combination with of course the pricing rule, created a disincentive
for the incumbent [local exchange carriers] to invest anything if it
was immediately going to be made available to the competitors for
free.
Mr. Nuechterlein: The FCC had a contrary vision of what Congress was trying to
accomplish. The FCC, I think, basically concluded that these new
44 47 U.S.C. § 251(d)(2); see AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999).
103
entrants, which are called “CLEC s,” would be unlikely to
duplicate the core local facilities in ILEC network because those
are the ones most subject to economies [of scale and] density.
Judge Williams: Yes.
Mr. Nuechterlein: And so, according to the FCC, Congress may have had a much
more modest vision of competition in mind, in which CLECs
would basically become resellers of incumbent telephone
companies’ services and compete on the bases of marketing,
customer service, and to some extent price. So according to the
FCC, although it didn’t put it in these terms …
Judge Williams: What you say is interesting because I don’t recall their ever
articulating such a theory — that [facilitating] completely synthetic
CLECs is just fine.
Mr. Nuechterlein: Yes, you had to give them a couple of drinks before they would
acknowledge it. There was a hope that CLECs — over time, once
they got a foothold in the market — would begin deploying their
own facilities and distinguishing their services on the basis of their
networks and not just customer service and marketing. But there
was also a sense that, if that didn’t happen, it wasn’t such a big
deal because the ILECs were so profitable that the cheap sharing
arrangements weren’t ultimately going to doom the ILECs if the
prices were set right for these facilities. And that Congress just
wanted there to be an easier resale option. Now, one reason the
FCC understandably didn’t phrase this point in such bold language
is that there is a separate resale provision in the same legislation
that has a different pricing scheme attached to it.
Judge Williams: Yes indeed.
Mr. Nuechterlein: One thing that is interesting about your opinions is that you were
fairly assertive about divining a congressional purpose underlying
the ’96 Act and invalidating an expert agency’s view of the right
way to [interpret] that purpose.
Judge Williams: That’s interesting —
Mr. Nuechterlein: For full disclosure, I have been involved in this industry, and I
think the outcome you chose was the right outcome. I think history
also confirms that, because this was all about a contest for access
to conventional telephone company networks, which are becoming
104
obsolete in any event [in light of] internet protocol services. And
the FCC regime had nothing to do with those.
Judge Williams: Right. No one was even arguing, as I recall, for this alternative
view of the congressional purpose, so it seemed reasonable — and
clearly was the reading Steve Breyer had of it — that the object
was to actually encourage something like conventional competition

Mr. Nuechterlein: … Does the story of the Telecommunications Act of 1996 raise
any interesting questions about monopoly industries in transition
and the best way to govern them?
Judge Williams: The fascinating thing there seems to be Congress’ hope that what it
was doing was deregulatory. At the same time it was looking
forward to broad sunlit uplands of competition, the route [it chose
for] that was an incredibly intensive form of regulation. …
Mr. Nuechterlein: Justice Scalia aptly pointed out in his 1999 [Iowa Utilities Board ]
opinion reviewing the FCC’s first set of rules that Congress wasn’t
very clear about what it expected to happen in the wake of this
statute’s enactment. It was plainly written by opposing teams of
lobbyists, and it may be just a fool’s errand to try to figure out
what Congress’ “purpose” might have been.
So far we have done cable and telephones, and the list of regulated
industries would be incomplete if we did not turn to the natural gas
industry and your role in FERC jurisprudence. I am going to begin
this by saying that I know nothing, or almost nothing, about natural
gas regulation. I understand there are some similarities to
telecommunications regulation, that the Natural Gas Act is
patterned after the Interstate Commerce Act, that the same is true
of the Communications Act, that there are bottlenecks, and that
various forms of common carrier regulation are imposed — and
that is about the extent of my knowledge. What is intriguing to me
about you is that this is one of those serendipitous contexts in
which someone who was a recognized expert in the field in an
academic capacity goes onto a court and becomes the nation’s
thought leader on the same set of issues in an official judicial
capacity.
Judge Williams: I think that’s a bit of an overstatement on both sides.
Mr. Nuechterlein: I have a feeling that what I have said is true, but I don’t have
105
enough knowledge to back it up. So you wrote a book called The
Natural Gas Revolution of 1985…
Judge Williams: It is less than 100 pages.
Mr. Nuechterlein: The booklet was entitled The Natural Gas Revolution of 1985.
What happened in 1985?
Judge Williams: The FERC adopted an order, the core of which was to …
completely define [its role] by the regulation of natural gas
pipelines as pipelines, as sellers of transportation, as opposed to
their role as sellers of gas. Congress had already intervened on the
question of gas to some extent [in] the Natural Gas Policy Act of
[1978]. The initial proposal, which … that book was about, was to
essentially separate these two activities so that FERC’s function
would be confined to something for which there was a logical
economic case — the regulation of pipelines as natural
monopolists, which they to a significant extent were. … [I]n a
sense, [Congress in 1978 ultimately took] the price of natural gas
itself out of FERC’s jurisdiction. But in the meantime, there was
all this gas under prior contracts. … [Although] the gas market had
become highly competitive, there were these arrangements by
which natural gas purchasers were buying gas at highly inflated
prices and being denied access to competitively priced gas. The
subject was what [FERC] did to solve that. There were loads of
different issues, and a lot of them were purely transitional. Our
opinion in [Associated Gas Distributors v. FERC 45] has been
criticized for making more work out of some of these transitional
issues than should have been the case. And there is a good deal of
justice in that critique.
Mr. Nuechterlein: So to back up a bit, when did you first get interested in natural gas
regulation?
Judge Williams: Really when I was a visiting professor at SMU — no, I got
originally interested in oil and gas when I was a visiting professor
at UCLA and talked with Dick Maxwell.
Mr. Nuechterlein: What year was that?
Judge Williams: That was ’74-’75 I think. He was very charming person, good to
45 824 F.2d 981 (D.C. Cir. 1987).
106
talk with.
Mr. Nuechterlein: Had you done much work with regulated industries up to then?
Judge Williams: No, I really hadn’t. And the strange part of the process was getting
a call from SMU saying that they would like me to go there to
teach energy law. What is “energy law?” After the visit at UCLA, I
had started teaching Oil and Gas at Colorado, but I didn’t teach
energy law. It seemed to me a reasonable view of energy law was
to look at [the field] as a regulated industry, and that is what I did
….
Mr. Nuechterlein: So when you published the monograph, The Natural Gas
Revolution of 1985, presumably you were in transition from
academia into the DC Circuit or very shortly before.
Judge Williams: I think [it] came out before my nomination went to the Senate.
Mr. Nuechterlein: Is it correct to say that you author a disproportionate number of
FERC opinions?
Judge Williams: It is. I asked a clerk to check that out and see if one’s intuitive
sense of that was correct, and it was. …
Mr. Nuechterlein: You were discussing an early FERC opinion that you wrote — can
you elaborate on it?
Judge Williams: Sure. Basically the criticism was that we … interfered with what
the Commission had done on essentially the distribution of sunk
costs. [Professor] Dick Pierce, whom I have a lot of respect for,
[argued] that, in the first place, there was no particular logic in how
to allocate costs …. It is the perfect sort of subject on which to
defer to the Commission, and [that] seems to me a very strong
argument. … Maybe [that] should have been the way [the case]
came out; had I taken that view firmly, I would have been in the
dissent on the issue. … I am pretty sure there are very considerable
precedents in which the court gets over-involved in that [issue].
While we are on that [case], the most fun part of it was that there
had been two [prior] opinions by a single panel — why they
divided it into two opinions, I don’t know. Both of them were
called Maryland People’s Counsel v. FERC.
46 Putting aside what
the court did [in those cases], it certainly used some very
46 761 F.2d 768 (D.C. Cir. 1985); 761 F.2d 780 (D.C. Cir. 1985).
107
questionable economic language. So the great challenge in [our]
opinion was to work the Circuit’s way out of that language without
doing violence to the Maryland People’s Counsel decision.
Mr. Nuechterlein: Do you remember what the language was?
Judge Williams: … There is a point in my opinion where I talk about it. … [O]ne of
the opinions is by Scalia and the other’s by Ginsburg — Ruth, that
is. They went on to glory! [Laughter.] … I think it had to do
effectively with Ramsey pricing — there is language in those
opinions which makes it sound as if Ramsey pricing is outrageous,
terrible, bad.
Mr. Nuechterlein: I thought it was efficient.
Judge Williams: [Laughter.] Well, naturally, that is what made me want to improve
on the language.
Mr. Nuechterlein: Have you had interactions with policymakers at FERC during your
25 years on the bench?
Judge Williams: There was a chairman, Charles Stalon, who had been chairman of
the [Illinois Commerce Commission]. I had dinner with him at one
point. I am not sure exactly what stage it was — I think I was on
the court. He seemed to be a very analytical, clear thinker — [I
thought] it would be wonderful if his role continued. And then
[Richard] O’Neill, who has been, and I think is now again, [head
of FERC’s] equivalent of a policy planning office. I have ended up
chatting with him a number of times.
Mr. Nuechterlein: Did you get the sense when you talked to them that they
acknowledged your unusually substantial role in the development
of natural gas policy?
Judge Williams: I think that’s probably true, but I think, in the case of Stalon, it was
such early days that [such an acknowledgment] would have been
premature.
Mr. Nuechterlein: In my year of clerking for you, there were three clerks, one of
whom came from the fossil fuels industry and seemed eager to
work with you on FERC cases. And the other two of us were
deferential to that wish.
Judge Williams: Did David [Lawson] come from Texas?
108
Mr. Nuechterlein: He worked in the natural gas or oil industry. He is an engineer by
training.
Judge Williams: I didn’t know that.
Mr. Nuechterlein: So we let him do all the FERC opinions, and I am wondering
whether that is typical of your clerk classes.
Judge Williams: No — I would say it much more usually gets scattered around.
Mr. Nuechterlein: And I assume there is some radical disparity among your clerks in
readiness to take on this area of law.
Judge Williams: As some of my judicial colleagues have said, once you get into it,
it is not so bad.
Mr. Nuechterlein: And they always seem to be happy to defer to you in opinionwriting.
Judge Williams: Not always, no. There have been definite cases that I was sitting
there assuming it would go to me, and the presiding judge assigns
it to himself.
Mr. Nuechterlein: All right — I have no further questions to ask about FERC. I didn’t
really have any good questions to ask about FERC in the first
place. … So we will break – you are going off to Boulder, and we
will resume in the fall.
A-1
Oral History of Judge Stephen F. Williams
Index
Alchian, Armen, 42
Allen, William (Bill), 57
American Association of Law Schools (AALS), 37
Amsterdam, Tony, 55
Anderson, Lanier, 24
Another View of the Cathedral, by Melamed and Calabresi, 21
antitrust, 27, 38
Armstrong, William, 48-49
Arnold,. Richard, 15
Assignment in Utopia, by Eugene Lyons, 8
Associated Gas Distributors v. FERC (case), 102
Bazelon, David, 60, 64
Benedictine monks, 67
Berlin crisis, 29-30
Birrell case, 32-33, 37
Birrell, Lowell, 32
Booker (case), 64
bottleneck monopoly theory, 95
Boudin, Michael, 83
Braucher, Robert, 21
Breyer, Stephen, 80, 96, 100-01
Buckley, James (Jim), 11, 13, 46, 56, 59
Buckley, William (Bill), 11, 13, 46-47, 59
Burger, Warren, 60, 64
cable television“must carry” cases, 93
Cappuccio, Paul, 56
Cardozo, Benjamin, 75
Casner, A. James, 21
Chayes, Abe, 21
Chenery (case), 79, 80
Chevron (case), 74, 77
Chicago School, 87, 97
Clayton Act, 27
CLEC (Competitive Local Exchange Carrier), 100
Coffin, William Sloane, 35
Communications Act, 98, 102
competition, 84, 87- 90, 100-01
Core (case), 76
A-2
Court of Veterans Appeals, 82
Dawes Plan, 14
Dentsply (case), 89
deVegh, Pierre, 30
Dollar Line, 6
Dorius, Joel, 14
Dyk, Tim, 24-25
Easterbrook, Frank, 62
Eastham, Nancy, 22
Ebel, David, 53
Economic Analysis of Law by Richard Posner, 38
Edict of Nantes, 1
Edwards, Harry, 64, 68, 72-73, 85
Elliott, Donald, 77
Epstein, Richard, 38, 66
Eskridge, Bill, 77
Fain, William Hugh (maternal grandfather), 2
Farr, Joan Williams (sister), 4
FCC (Federal Communications Commission), 76, 85, 93-101
FERC (Federal Energy Regulatory Commission), 72, 101-05
First Amendment, 41, 94-98
Friendly, Henry, 83
Frothingham v. Mellon (case), 67
Garland, Merrick, 76
Gates, Bill, 90-91
Ginsburg, Ruth Bader, 60, 104
God and Man at Yale by William Buckley, 15
Greenawalt, Kent, 55
Griswold, Erwin, 22
Harrison, John, 48
Hart, Gary, 48
Hatch, Orrin, 51
Hoover Moratorium, 14
Horowitz, Morty, 39, 41
Huguenots, 1
Hungarian Revolt of 1956, 15
ILEC (Incumbent Local Exchange Carrier), 100
Interstate Commerce Act, 101
A-3
Iowa Utilities Board (case), 100-01
Jackson, Robert, 79
Jackson, Thomas Penfield, 85-86, 91-94
Journal of Legal Studies, 39
Kasenkina, Oksana, 6
Kennedy, Anthony, 24, 98
Kristol, Irving, 22
Land v. Dollar (case), 6
Lawson, David, 104
LePages’ (case), 89
Lescaze, William, 3
Leventhal, Harold, 56-57
Liman, Arthur, 27, 32-33
Louisiana casket (case), 65
Love v. Mississippi (case), 55
Lyons, Eugene, 8
Lyons, Martin, 26
Maryland People’s Counsel v. FERC (case), 103
Massachusetts v. Mellon (case), 67
Matera, Mary, 56, 70
Maxwell, Dick, 41, 103
Meyers, Charlie, 38
Microsoft, 61, 68, 88
Microsoft Windows, 89
monopolization argument, 86
PR campaign, 93
Microsoft (case), 68, 84-89
disqualification, 91
en banc decision, 85
Mikva, Abner, 64
Moody, Howard, 35-36
Mooz, Bill, 42, 56
Morrow, Steve, 53, 54
must-carry provision, 94
Natural Gas Act, 101
Nields, John, 33
North, Oliver, 33
Nussbaum, Bernie, 25
O’Connor, Sandra Day, 86
A-4
Panama Refining (case), 75
Piel, Tony, 11
Pierce, Dick, 103
Posner, 38, 46, 62, 63
Posner, Richard (Dick), 38, 46, 60, 62-63
Progressive Era, 65
Pulling, Edward, 10
Ramsey pricing, 104
Randolph, A. Raymond, 78
Reese, Grover, 50
Rehnquist, William, 63
Rifkind, Bob, 26
Robinson. Spottswood (Spotts), 59
Rockefeller, Jay, 53
Roe v. Wade (case), 8
Rogers, Thomas. See Williams, Stephen, -Mayflower ancestors
Rosenkranz, Josh, 56
Sawyer, Charles, 6
Scalia, Antonin (Nino), 56, 59, 63, 66, 101, 104
Schiffrin, André, 16-17
Schuck, Peter, 77
Sentelle, David, 71
Sentencing Guidelines, 64
Sherman Act, 86-87, 89
Short, Duke, 51
Silberman, Laurence (Larry), 24, 57, 60, 72
Simon, Paul, 51
Simpson, Alan, 51
Speedy Trial Act, 60
Sporkin, Stanley, 91, 93-94
Stalon, Charles, 104
Starr, Ken, 57
State Farm (case), 73-74
Steel Seizure (case), 6
Stevens, John, 62
Supreme Court, 24, 56, 59, 63, 65, 69, 77, 79, 85, 88, 93-96, 99
Tashima, Wally, 23-24
Tatel, David, 68, 87
Telecommunications Act of 1996, 99, 101
Tennis Channel (case), 98
A-5
The Legal Imagination by James White, 37
The Natural Gas Revolution of 1985, by Stephen F. Williams, 41, 102-03
The Transformation of American Law by Morty Horowitz, 39
Thomas, Clarence, 66
Thurmond, Strom, 51-52
Tiller, Rob, 56
To the Chevron Station by Peter Schuck and Donald Elliott, 77
Tom Merrill, Tom, 77
Trevor, Frank, 10-11
Trinko (case), 88
Turner (cases), 94-95
Two Cheers for Capitalism by Irving Kristol, 22
tying claim, 86, 90
United States Court of Appeals for the District of Columbia Circuit, 86, 91-92
United States Department of Justice, 41, 47-48, 51
United States District Court for the District of Columbia, 86, 90
USTA (cases), 99
Vietnam War, 49
Wald, Patricia, 56, 59, 64, 71
Warren, Richard. See also Williams, Stephen – Mayflower ancestors
Westword (newspaper), 53
Williams, C. Dickerman (father)
clerked for William Howard Taft, 5
Truman Administration, 5-7
Yale, 5
Williams, Faith Morrow (wife), 25, 29, 31, 34- 37, 42, 44, 46, 49-50, 52-53
Williams, Honor (sister), 4
Williams, Joan (sister), 4
Williams, L. Pearce, 14
Williams, Stephen F. – Personal
Army Reserves, 12, 29
Army Security Agency, 29
Buckley School, 9
Collegiate School, 9
Colorado Law Review, 41
Ford Foundation scholarship to study Chinese, 19
Law Review, 20-21, 24-25, 38-39
Mayflower ancestors, 1
A-6
Millbrook School, 9
minorities on campus, 17
New York Bar, 25
UCLA Law Review, 40
Yale, 12, 14
Political Union, 15
Williams, Stephen F. – Professional
agencies, 78
bench memos, 61
Debevoise, Plimpton, Lyons & Gates, 25- 28, 31, 34, 38
principles of good craftsmanship, 83
drafts, 83
opinion writing
focus, 83
process, 62
U.S. Attorney’s Office, 26-27, 31-32, 46
Williams, Virginia Fain (mother), 2-3, 9
political leanings, 8
Wittes, Ben, 57
Young Plan, 14
B-1
Oral History of Judge Stephen F. Williams
Table of Cases and Statutes
Cases
Abbey v. Castille, 712 F.3d 215 (5th Cir.), cert. denied, 134 S. Ct. 423 (2013), 65
Bell Atl. Tel. Cos. v. FCC, 206 F.3d 1 (D.C. Cir. 2000), 76
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
74
Frothingham v. Mellon, 262 U.S. 447 (1923), 67
In re Core Comm., Inc., 531 F.3d 849 (D.C. Cir. 2008), 76
Land v. Dollar, 330 U.S. 371 (1947), 6
LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003), 90
Love v. Mississippi, 4:13cv134-MPM-SAA (N.D. Miss. Dec. 4, 2013), 55
Massachusetts v. Mellon, 43 S. Ct. 597, 67
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Insur. Co., 463 U.S. 29 (1983), 73
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), 75
Roe v. Wade, 410 U.S. 113 (1973), 8
SEC v. Chenery Corp., 332 U.S. 194 (1947), 79
SEC v. Chenery Corp., 318 U.S. 80 (1943), 79
United States v. Booker, 543 U.S. 220 (2005), 64
United States v. Dentsply Int’l, Inc., 399 F.3d 181 (3d Cir. 2005), 90
United States v. Microsoft, 56 F.3d 1448 (D.C. Cir. 1995), 92
United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001) (en banc), 68
Verizon v. Trinko, 540 U.S. 398 (2004), 89
WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002), 76
Statutes
Clayton Antitrust Act of 1914, Pub.L. 63–212, 38 Stat. 730, enacted October 15, 1914,
codified at 15 U.S.C. §§ 12–27, 29 U.S.C. §§ 52–53, 27
Communications Act of 1934 Pub.L. 73–416 48 Stat. 1064, 100
B-2
Interstate Commerce Act of 1887, Pub.L. 49–104 24 Stat. 379, 104
Natural Gas Act of 1938, Pub.L. 75–688 52 Stat. 821, 104
Natural Gas Policy Act of 1978, Pub.L. 95–621, 105
Sherman Antitrust Act of 1890, 26 Stat. 209, 15 U.S.C. §§ 1–7), 86-87, 89
Speedy Trial Act of 1974, 88 Stat. 2080, as amended August 2, 1979, 93 Stat. 328, 18
U.S.C. §§ 3161–3174, 60
Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996), 101, 104
113
Biographical Sketch
Honorable Stephen F. Williams
Stephen F. Williams was born in New York City in 1936. He was the youngest of three children
born to C. Dickerman Williams and Virginia Fain, with an ancestry that included at least two
passengers on the Mayflower. He graduated from the Millbrook School in 1954 and from Yale
College, magna cum laude, in 1958.
Williams then attended Harvard Law School, graduating in 1961 alongside future Supreme Court
Justice Anthony Kennedy and Judge Laurence Silberman, who decades later became Williams’
close friend and colleague on the D.C. Circuit. After graduation, Williams served briefly in the
U.S. Army Reserve, working in military intelligence in the wake of the Berlin Crisis. He then
practiced law at Debevoise & Plimpton before serving for several years as an Assistant United
States Attorney for the Southern District of New York.
In 1966, Williams began his 54-year marriage to his wife Faith, with whom he had five children:
Susan, Geoffrey, Sarah, Tim, and Nicholas. From 1969 through 1986, the growing family lived
in Boulder, where Professor Williams taught law at the University of Colorado and began
building his legacy as one of the nation’s preeminent law-and-economics scholars.
In 1986, Judge Williams was confirmed to a seat on the U.S. Court of Appeals for the D.C.
Circuit. He took senior status in 2001 but continued with a nearly full caseload until he turned 80
in 2016, and he continued sitting on cases until his death in 2020. The opinions Judge Williams
wrote during his 34-year tenure have greatly influenced American jurisprudence in a wide range
of fields, including antitrust, regulated industries, and administrative law.
Although Judge Williams left his full-time teaching job in 1986, he never retired from academic
life. As a judge, Williams wrote many law review articles and published two highly regarded
books on economic reforms in pre-Soviet Russia: The Reformer: How One Liberal Fought to
Preempt the Russian Revolution (Encounter Books 2017), and Liberal Reform in an Illiberal
Regime: The Creation of Private Property in Russia, 1906-1915 (Hoover Inst. Press 2006). He
also showed relentless enthusiasm for helping others with their own academic projects. His
protégés—including many former law clerks—have gone on to become leading legal scholars in
their own right.

114
Biographical Sketch
Jonathan E., Esq.
Jonathan E. Nuechterlein is a partner and co-leader of the Telecom and Internet Competition
practice at Sidley Austin LLP in Washington, D.C. He previously served as General Counsel of
the Federal Trade Commission (2013-2016), as Deputy General Counsel of the Federal
Communications Commission (2000-2001), as Assistant to the Solicitor General (1996-2000),
and as law clerk to Supreme Court Justice David Souter (1991-92) and D.C. Circuit Judge
Stephen Williams (1990-91). He graduated from Yale Law School in 1990 and Yale College
(summa cum laude) in 1986. He is the author, with Philip J. Weiser, of Digital Crossroads:
Telecommunications Law and Policy in the Internet Age (MIT Press 1st ed. 2005 & 2d ed. 2013).