Patricia Wald Third Interview

March 8, 1993
This is the third oral history session with Circuit Judge Patricia M. Wald of the U.S. Court
of Appeals for the District of Columbia Circuit. It is taking place on Monday, March 8, 1993,
commencing at 9:50 a.m. Present are Judge Wald and the interviewer Stephen J. Pollak. The
interview is being conducted as part of the Oral History Project of the Historical Society of the
District of Columbia Circuit.
Mr. Pollak: Good morning, Judge Wald. We’re up to the point of your
nomination by President Carter to be Assistant Attorney General for Legislative Affairs.
Judge Wald: Well, I always felt that there was something random about that
appointment. The fact that I got an appointment at all I attribute in large part to the women’s
groups and network that materialized in 1977 as President Carter was coming into office. I got a
call to go down to Atlanta. This was after Griffin Bell had been nominated as Attorney General,
and his confirmation hearing was just about to begin.
Things went much quicker in 1977 than now because by early February we were all
ensconced in our assistant attorney generalships. We hadn’t been confirmed, but we were all
there working on consultant basis, getting our particular shops in order. In March we went over
for one mass confirmation, all of the Assistant AGs, except one or two, without any problems.
But as to how I got the job, I was called to come down to King & Spaulding in Atlanta for
an interview. I had never met Griffin Bell before, and had no prior contact whatsoever with him,
nor with, as it turned out, any of the group of special assistants that worked with him. They were
all primarily his ex-law clerks. Terry Adamson, who has resurfaced in the more recent Clinton
inner-group. These were all, I’d say, young men in their late twenties, maybe one or two of them,
like Terry, in their early thirties; they were definitely the inner-group of Griffin Bell’s trusted
-130-
associates. John Harmon, who later became the head of OLC, a lovely guy, was down there with
Bell in King & Spaulding doing the interviewing.
I remember there were several women in the waiting room the day I went down, many of
whom showed up later in other Carter administration departments. We sometimes commented
later, when we got to know each other, how we had met each other in the waiting room at King &
Spaulding. So it was clear that the women’s network was at work, especially Margaret McKenna,
I remember, who later worked over in the White House for Carter. She was the person who
contacted me. There definitely had been word sent someplace from on high, whether it was
Carter directly, or people working with him in the White House, that there should be women and
minorities in the Carter Justice Department.
So a whole string of women were being interviewed when I came down. The interview
was with Griffin Bell and John Harmon. I remember meeting Charles Kirbo sort of in passing.
Bell was extremely gentlemanly. I came from a public interest background at that time. I had
been Litigation Director for the Mental Health Law Project which, given his fairly conservative
leanings, one would not have thought was the most direct route into his heart. But, actually, we
got along on a personal level very well. I had the sense that his people, people like John Harmon,
and Terry, were actively pushing for him to bring in not only women, but perhaps women with a
“liberal public interest background.” That seemed to fit most of the women I met being
interviewed.
So the interview came and went and nothing happened. John told me that Judge Bell,
that’s what he was always to be called, “once a judge, always a judge,” liked me. The question
was where I would go in the department. I had some litigation experience certainly in the public
-131-
interest area, but I didn’t consider myself a premier litigator. I was thinking of OLC, not knowing
that that had been, in effect, promised to John. John made a very good head of OLC, incidentally.
Barbara Babcock, who had been a friend here in Washington when she was head of the Public
Defender Service, was also being interviewed. So I called her at Stanford to find out what she
knew about it. She said she was waiting, too – she had said that the only spot she would take
was head of the Civil Division, which she eventually did get. She and I turned out to be the two
women Assistant AGs in the department.
As we went through that month of January 1977 when things were kind of falling into
place, at one point, Judge Bell, through John, offered me the Head of LEAA (Law Enforcement
Assistance Administration). I had worked on the Crime Commissions in the 060s, and I knew
with what hopes and promises LEAA had come into being, but I also knew of the troubles and
politicization it had gone through in the 070s. I just had the sense in my gut that that was not the
job for me, handing out all these funds to the various law enforcement agencies. Gerry Caplan
was then heading up one of the triumvirate leadership positions that LEAA was trisected into. So
I went over to see Gerry. Gerry said, I remember, “I’ll talk to you, but I can’t talk to you here.”
This was in his office. “We’ll have to go next door to the deli.” Apparently, relations were
sufficiently strained at that time so he didn’t want to talk to me about the job in the office. So we
went next door to the deli where he in effect said to me, “Don’t take this job.” Gerry left shortly
thereafter and became a renowned professor at GW, and is now a dean of a western law school.
This just reinforced my notion that I really didn’t want that job. You were going to be caught no
matter how well or with what integrity you acted, in the squeeze of politics between all the law
enforcement agencies.
-132-
Anyway, I knew I didn’t want to do it, so I said, “ I think that’s not the job for me, and I
really would like to serve in your administration in almost any capacity, but I simply don’t think
LEAA is it.” Judge Bell was really very good. He said, “I don’t blame you; I wouldn’t want that
job either.” So he said, “We’ll see what we can do.”
Somehow I found out by myself there was an Office of Legislative Affairs, though no one
seemed to pay much attention to it. It had been elevated to an assistant attorney generalship back
in Saxbe’s administration. This had happened seven or eight years before, so what you had was a
relatively small office, which it would have been hard to justify, I think, on an organizational
chart, being classified as a division. It had about 16-20 people in it and it reported directly to the
Attorney General.
Anyway, eventually John called me, and we talked about that as a possibility, and it turned
out that that was what I eventually took.
I was totally unprepared for the political life. I think the reason I got the job was because
Bell liked me, and wanted to have a couple of women in the department. He had specific people
very much in mind for the other jobs as it turned out. He knew Drew Days and was going to offer
him Civil Rights. He knew Ben Civiletti and was going to offer Ben the Criminal Division.
Barbara, he didn’t know, but she certainly was qualified by dint of her litigating experience to
head Civil.
Mr. Pollak: You thought the flow of these appointments, though, was in Judge
Bell’s hands, rather than in Jimmy Carter’s hands?
Judge Wald: That’s my impression. I had the notion that there had to be some
-133-
women and there had to be minorities, but the actual individuals were up to the AG. Now, Wade
McCree was made Solicitor General, and he was Bell’s pick. He brought up Mike Eagan from
Georgia as Associate Attorney General. He picked Civiletti, he picked Drew, he picked McCree,
he picked Barbara and me. We had no interviews with anybody on the White House staff.
Eventually he picked Jim Moorman to head Natural Resources, but that was a month or two later.
And eventually he picked John Shenefield to head Antitrust, and that was a little bit later still.
Justice Powell was a strong backer of Shenefield and there was something about Shenefield not
being able to get there for a few months, so they kept the old incumbent on as a carryover.
Mr. Pollak: In Antitrust?
Judge Wald: Yes, Don Baker. He stayed on for several months. In fact there was
an impression that he would have liked to have stayed on longer than that, but eventually in the
late spring Shenefield came on. In the beginning, Bell didn’t have a Deputy Attorney General.
I’m not quite sure why that was. Anyway, the White House wanted Bell to give serious
consideration to Pete Flaherty who had been the Mayor of Pittsburgh. So Pete came over, but he
didn’t come over until several months after the rest of us were off and running. In the meantime,
Bell had kept Dick Thornburgh on, who had been head of the Criminal Division under President
Ford. He and Bell got along well so Bell made him Acting Deputy for several months even
though he was a hold-over from the past administration. I think it’s not talking out of school to
suggest that in many cases Bell’s own philosophy probably was more comfortable with many of
the Ford appointees, or certainly as comfortable, as with the newcomers coming in with the
Carter administration.
-134-
Eventually whatever deal between the White House and the Justice Department was cut,
Flaherty came over. Now, I liked Pete, and he brought one or two good staffers with him. By the
time he got there, however, everybody else was in place; the other people were Bell’s people.
Flaherty, in my view, never had a fighting chance to make it in that department. We did some
work through him, but it soon became known that he was not really in the loop and Civiletti was
the heir apparent, to that spot.
Mr. Pollak: What did Flaherty come into, what position?
Judge Wald: Deputy.
Mr. Pollak: But he really never was able to fill it?
Judge Wald: He was never really able to fill it, in the sense of being in charge of
the department’s operations, the alter ego of the Attorney General. The political internal politics
in the department are such that it becomes known within months – whether you are in good
standing, at the top. If not, people start end running you.
Mr. Pollak: Did you relate primarily to Bell?
Judge Wald: I reported directly to him. So after a short while, Pete left. He came
by to see me because we’d gotten along okay, and I liked some of his people. As a matter of fact,
Abbe Lowell came in with Flaherty. Abbe was smart and managed to keep his contacts outside
of the Deputy’s office so that when Pete left, he was already in good standing. I think he went
into the Criminal Division then.
That was the only time while I was in the department that I saw the White House try to
send one of their own over, and it was not a terribly successful experience.
-135-
My job on the organizational chart reported directly to Bell. When I wrote reports, they
went to him. A legislative liaison would normally have been somebody who had Hill experience,
political experience. I really had neither. Sure, I had been to the Hill and testified in a lot of
hearings, but I had not worked on the Hill. I didn’t have an intimate sense of how the Hill
worked. I really was a neophyte. I think the reason he was willing to give me the job was that he
underestimated the importance congressional relations would have in the Justice Department. As
a former judge, he thought the Justice Department should be above politics, which, of course, it
should be in terms of its adjudication, its case-bringing, but I don’t think he had any sense of how
much it has to be involved in the legislative arena in policymaking, both as part of the
administration team and for its own legislative agenda and how much the Congress will inject
itself when you don’t want it to into department affairs and you have to have a defensive posture
vis-á-vis the Hill. I would say that he ended up spending a large, large percentage of his time on
Hill activities.
Mr. Pollak: He did?
Judge Wald: Yes.
Mr. Pollak: So you worked closely with him in that work.
Judge Wald: Pretty much, yes. There would usually be a team composed of the
AG and whatever substantive division was involved, whether it was a criminal matter, or a civil
matter, or an antitrust matter, and our office. I’m not suggesting we made the policy in those
cases. We didn’t. We were a facilitator in most cases. He would consult whoever were his main
policymakers, but we would be in on the project to suggest, Well, if you do this, you’re going to
run into flack from Senator X, so maybe you want to do this or do that. Generally somebody from
-136-
our division would end up being a part of those kind of teams. But when I inherited the office, I
didn’t know what had gone on in the office in the Ford administration. I never got a word of
transition help because my predecessor had left two months before. So there was nobody there
but a GS-15 career employee, an older guy, nice guy. But nobody in a policy position was there
to show me the ropes.
Mr. Pollak: One question, just because we’ve all lived through it. Did you ever
see any materials prepared by the Carter transition people that spoke to your office and were they
useful?
Judge Wald: Only marginally; I don’t remember using them very much. I did get
a copy of the Transition Report. I was more or less told, I should say this, that I should take one
of the young people who had worked on the transition as a deputy, and I did, and it worked out all
right. I had another deputy whom I could pick myself. I can’t remember anything terribly useful
about transition papers. There was nobody, except the career people, who were invaluable but
somewhat limited in this sense, to tell you what the pattern of Hill relationships had been.
Actually, I was told that the Office of Legislative Affairs had been run as a fairly low-keyed
operation by my predecessor; one staffer volunteered that there were always people on the Hill
screaming because their phone calls were not answered. So there were certain procedures,
processes that you could do immediately just in terms of common-sense management, even if
you weren’t a sophisticated legislative person, like bringing the small staff up to snuff.
There were some good people there. Carolyn Havell was terrific. She was the person who
answered the phone, but knew the people on the Hill, had been there 20 years, knew where things
went inside the department, had an institutional memory. She was the one who told me about
-137-
always answering phone calls. Although one might be tempted to forget some of them, it’s fatal.
She was a terrific person to work with and wanted to perform at a higher level than she’d been
allowed to do. I’ve got to tell you, out of 10 or 11 people, there were a couple of very good
people like Mike Dolan who we were able to bring up to a higher job level and fully utilize their
skills. There were, and I’m not going to name names, but there were a couple in the middle, who
were not people you would have hired yourself, but you could use them. There’s a lot of stuff,
reports that have to be written, things that an honest, competent person can do, and then there
were a couple that were just hopeless.
Mr. Pollak: And could you move them out?
Judge Wald: GS-15 levels. Nobody wanted them. You could move them out if
you were willing; in fact I looked into it in the beginning, like every neophyte government
administrator, to see what would be the process for moving them out. Technically, everybody is a
Schedule C, but I was quickly told I could not just say, “Go home.” If I wanted to spend the next
year and a half going through the processes of firing these people out of their GS-15 slots that
they’d inherited through coming along for eight or nine years, I guess I could have done it. But at
least all of the old hands told me that that was largely a waste of time.
Mr. Pollak: Did you have the fortunate outcome that any of them left of their own
will?
Judge Wald: Two of them left during the time I was there. They realized the
office was changing and they had friends in other parts of the government and found jobs
elsewhere.
-138-
Because the shop was so small, there was little chance of hiring new people. I eventually
got one or two new slots and hired new people, and then one or two people changed spots inside
the department. So, overall, we arrived at a workable resolution of personnel problems, but it did
imbue me with the notion of how hard it is to move bureaucracy, even in a little shop like that.
Maybe if I’d been more aggressive I could have walked in and fired everybody on the spot, but
I’m telling you, with GS-14s and 15s, it would have been a hell of a fight. The question was
whether you wanted to use up your initial honeymoon period in that kind of fight.
So I guess what I’m saying is I really had to learn from scratch what I was doing. There
were a couple of good people there that were infinitely helpful and useful.
My experience for the next two and a half years turned out to be relevant to my judicial
service in the following ways. It gave me a sense of how the internal bureaucracy works in the
government, not just in the Department of Justice. Because the Department of Justice is the
litigating arm for so many other agencies, I often got involved in relationships with other
agencies, especially when it came to working on a legislative position that might affect other
agencies as well as ours. Bell felt very strongly, as had Attorneys General before him, that the
Department of Justice should have the principal litigating authority for the entire government.
There were all of these bills that kept being introduced into Congress whereby other agencies
would get litigating authority, attempts of rebellious children to leave the fold, and they, in Judge
Bell’s view, had to be firmly put down. On the other hand, all these other agencies that wanted
their own litigating authority had their own committees that they went to for help, which were
not the Judiciary Committees. Their own authorizing committees were often sympathetic to
them. EPA made some really strong attempts to get its own litigating authority during that
-139-
period. So did the Department of Energy with the 1978 Department of Energy Bill. I had to
spend, I can’t tell you, how many hundreds of hours trying to get those things taken out of various
bills so that the other departments wouldn’t have the litigating authority.
Mr. Pollak: Did you agree with Judge Bell’s policy?
Judge Wald: Not in my heart of hearts. I do agree that there has to be some
central authority to declare uniform litigating positions for the government, especially now that
I’m on the court. You can’t have every agency going off taking whatever position it feels like
about laws, certainly laws that are common to all the agencies, like FOIA. I have more sympathy
with the agencies, however, where they are arguing their own cases, interpreting their own
organic laws. As it is, most agency litigation is controlled by the so-called memoranda of
understanding between the agencies and the Department of Justice. The DOJ controls, but it has
to consult with the agency. I sometimes felt for the agency, and I still feel a little bit for EPA, as I
watch how these DOJ-agency litigating relationships work. They don’t always work. I watch it
from the court and I know why some cases sometimes are not argued with the greatest knowledge
or dexterity –
Mr. Pollak: By Department of Justice representatives?
Judge Wald: Yes. Generally the DOJ lawyers will have an EPA person at their
side at counsel table. That EPA person usually can’t talk to the court and sometimes when you’re
watching an argument you’ll see that person with his head in his hands, because it’s not always
clear that the Department of Justice person really understands what is going on in the dispute,
what the regulations are, how they really work. Sure, the Department of Justice attorneys can
come in and say,”no standing”; they can say, “Chevron”; and urge administrative deference, but
-140-
if you start questioning them about why does this regulation say this and how do you reconcile it
with that, they may have difficulty explaining. And I don’t blame them. They probably get about
the same level of technical briefing about the underlying issues that we do.
Mr. Pollak: I read the very long opinion in 1980 or ’81 of yours in Sierra Club v.
Costle and that’s very technical. Was it argued by the Department of Justice?
Judge Wald: Yes. EPA hardly ever gets to argue its own cases. I suppose the
department could let EPA argue if it wanted to, but I can’t remember a case where it has. The
majority of cases the arrangement probably works out all right, but there are cases, I have to tell
you, where the Department of Justice lawyer doesn’t understand the technicalities, and I know of
one case, at least, that I think ended up having to be en banced to get straightened out, because
the lawyer arguing it didn’t really understand how the regulation was supposed to work.
Mr. Pollak: What case was it?
Judge Wald: Bob Bork wrote the opinion in ’85 or ’86. Anyway, it involved one
of the chemical pollutants that was regulated under the Clean Air Act. It was a regulation
dealing with whether or not costs or technology could be taken into account in setting the level,
the permissible threshold level of the pollutant in the air or whether health and safety were the
only criteria. He wrote an opinion saying yes, cost and technology could be considered, and
the whole environmental community went up in smoke as it were. We had a brief filed for
rehearing en banc signed by 36 environmental law professors of virtually every stripe. After a
while there’s a sixth sense that tells you when something is wrong, and this petition told enough
people on the court, including Bob Bork himself, who I think voted to en banc his own opinion,
-141-
that something had gone wrong. And so the case was en banced and on the second time round
the lawyer from the Department of Justice got Bork so confused, he was trying to reconcile what
was being said at the second oral argument with what he thought was at the core of the opinion in
the first argument, that he threw up his hands and when he got back to conference, he said, “I’m
asking the Chief Judge for one thing, may I write the opinion coming out the other way.” And he
attributed the snafu largely to the fact he had gotten a totally different impression of the case the
first time. I think that experience showed that the lawyer did not understand what was going on
or didn’t know how to communicate it to the judges.
Mr. Pollak: Could I make one comment. It presents an interesting window, for
persons who don’t sit on your court, into the likelihood that there’s a lot of just plain judicial work
that you do that is not impacted by whether you’re a liberal judge or a conservative judge. That
sometimes may be lost sight of in looking at your court particularly.
Judge Wald: It’s absolutely true. In administrative cases particularly the stakes
are high and that’s what makes them interesting. But by and large they are not the cases that you
wake up at 2:00 in the morning with your heart aflutter worrying that somehow you will make a
terribly wrong decision. They’re more in the nature of workmanlike exercises that you go through
to make sure that you understand what’s going on and that in fact what principles there are in
administrative law or the statute have been honestly addressed. Although we have dissents and
there are judgment calls in administrative law cases about how much you interfere with the
agency, on where the line is drawn as to what the agency can do and still come within the confines
of the law, as far as substantial evidence or arbitrary and capricious is concerned, in a large
-142-
percentage of those cases people, regardless of their ideology or philosophy, can work together
toward a consensus.
Actually a judge’s personality traits, whether the judge is a perfectionist, or thinks things
should be done just right, can be more important than his particular philosophical stripe. There are
judges who feel the agency can do practically anything unless it clearly flaunts the law, and there
are others that say no, there are rules here and they have to do better than that; the agency has to
give an adequate explanation for everything it does. Those attitudes do not always coalesce with
who appointed the judges or with the part of the philosophical spectrum they come from.
I made the point earlier about how my time at Justice let me see how the bureaucracy
works. In many cases that come before me now, I can imagine how the regulations went wrong or
the issue didn’t get addressed adequately just from remembering warring agencies being called to
the White House, even back in those days, and put into a room and told not to come out until they
worked out an agreement. And so somebody works out something which is less than logical
sometimes, but satisfies the political problem of the moment. We didn’t have anything like the
Competitiveness Council then, but there were OMB reps calling agency people, agencies were at
odds with one another, Stu Eisenstat would be calling people and saying, “You have to work this
out inside the administration.” So people would work it out, your department wouldn’t always get
everything it wanted. What’s interesting is I remember those times now when I see cases come up
which do border on the arbitrary and capricious and I think initially, Why would an agency ever
have come out that way? On reflection, I can almost see them being called over to the White
House and told to come up with a solution, logical or not. Some of those solutions get overruled
by us despite the fact that I think I may know what happened; that’s not a consideration I can
-143-
legitimately take into account. So in many of the cases where we say, Well, there wasn’t evidence
in the record here, or that is arbitrary, or that is capricious, I can in the back of mind sympathize
with the agency a little bit. My guess is that it wouldn’t have come to this decision by itself. That’s
a perennial problem of government.
The other thing that I did learn, which I think is useful, although the subject of much
controversy on this court, is seeing how laws are made. Over the two and a half years I was there,
I did come up with a pretty intense familiarity with the legislative process, not learned out of
books. So in the current debate, which revolves around use of legislative history in statutory
interpretation, on which I’ve written several pieces, I have a decided point of view.
On this court, there are two points of view. I don’t suggest every piece of legislative
history anybody throws aboard in the hearings, reports, or Congressional Record deserves equal
consideration. But I do think that intelligent use of legislative history is necessary and essential
to interpreting a statute rationally. In most cases, I simply don’t think that the ability of the
human race yet is such that it can make any word or any series of words, especially in complex
arcane matters, mean the same thing to everybody and not be susceptible to different
interpretations in different circumstances. This is without getting into deconstructionism or
anything that esoteric. I think that looking back at a legislative history and seeing how a particular
phrase came to be in the law and whether it was accepted in lieu of some other phrase, is
important. Now I would have said that was self-evident, and certainly it was self-evident at the
time I came on the court. Nobody was really making any great stirrings on the court about legislative
history. But as you know, in the last eight, nine years, it’s become a very lively debate.
Nino Scalia has led the pack in advocating that we shouldn’t look at legislative history except in
-144-
the most extreme circumstances where the plain dictionary meaning of the words themselves,
that’s assuming you can always find that plain meaning, would be absurd. And he does have
some converts up there and on our own court.
I wrote two articles. One, in 1982, looked at the way the Supreme Court used legislative
history then, and concluded that it used it all the time; even when it said it was controlled by the
plain meaning of the statute, it would then turn around and say, We looked at the legislative
history and there’s nothing in the legislative history to contradict the plain meaning. So basically
the Court always looked at it. By 1989, when I wrote the second article, the situation was really
quite different. The Supreme Court used it less and felt the need more to rationalize any use of it.
There are still people on the Court who say legislative history is important and will use it, for
example, Souter. But there are some, apart from Scalia, who use it, if at all, very sparingly.
Kennedy is in that camp, and everybody up at the conservative end; Thomas, Rehnquist and Scalia
almost never use it. I was delighted to see Souter in an opinion last year come full force defending
its use against Scalia and Thomas. I feel very strongly that to go down the Scalia path would be
wrong, although I recognize that it’s been an item on the conservative agenda for a while now.
Nonuse of legislative history results in an increase in executive power in the separation of powers
balance because you are saying to Congress, You must say exactly what you mean, in the words of
the statute, even if it’s a 200-page ERISA statute that’s taken four Congresses and 10 years to
develop, and we won’t look at any explanatory material coming out of the reports, or the debate, or
anything like that, to inform our judgment. If we don’t think that you said something absolutely
clearly in the statute, then we will let the agency decide what it means.
Mr. Pollak: We, the court, defer to the agency.
-145-
Judge Wald: And we skip the step in the middle which says in looking at the
statute to see if Congress made its meaning clear, we will look not just at the words, but at some
of the background legislative materials that went into its passage. Given that we live in the “age
of statutes,” in Grant Gilmore’s words, and those statutes are voluminous and often contradictory,
there’s no way in God’s earth people who write them, the drafters or their talented aides, can ever
get pure, unequivocal, unambiguous wording in all of them. I understand the legislative material
has to be used selectively and rationally, but I think it can be. The notion that we will thumb our
nose at Congress and say, “Ah ha, if you can’t get it right in the pure text, then the executive will
take over,” is not an attractive one to me.
Mr. Pollak: Do you think the conservative approach will vary now that there’s a
different party controlling the executive?
Judge Wald: I don’t know. I credit people like Scalia with a consistency of belief
that will transcend changes in administrations. I think he honestly believes in a separation of
powers theory, and this attitude toward statutory interpretation is part of his separation of powers
theory, but it really does give a lot more power to the executive. My guess is he won’t vary on
this issue despite the fact the executive may be in different hands at different times.
I think it is a theory of government. Sometimes jokingly I say it’s a theory of “OLC”
(Office of Legal Counsel). All the principal advocates of executive power came out of OLC
school – from Rehnquist to Scalia. It’s something they teach at OLC, regardless of who’s running
it.
But to return to my main theme, the process of knowing how a statute is made is useful on
the court because we do more statutory law by a long shot than we do constitutional law, and
-146-
most of our cases have some statutory components. Even the very bright kids that come out of
Yale and Harvard and Michigan and Pennsylvania and Stanford, don’t have the sense of what
happens in the evolution of a statute that you get if you’ve worked closely with the legislative
process.
So, those are the two things I came away with. I have a few other points here and then I’ll
try to move along.
One other thing I got from the job that I thought was a special bonus was that the person
in charge of Legislative Affairs had to work with the substantive people in every one of the
divisions. The DOJ legislative agenda had two components. There were some bills that the
administration itself needed your help to push up there, and there were some department bills.
Bell had an Office of Improvements in the Administration of Justice run by Dan Meador. It
generated legislative bills of its own that we really had the prime responsibility for pushing up on
the Hill, among which was the creation of the Federal Circuit, on which I did a lot of work. We
had some other bills that we worked very hard on, like the Bank Privacy Act. Among the
administration bills that I did a lot of work on was the Foreign Intelligence Surveillance Act. We
had the primary lead in getting that passed, the creation of the warrant requirement and the
intelligence court. Also, the Omnibus Judgeship Bill. If you remember, there were a couple of
years of waiting over that. Remember the fight was over whether or not the Fifth Circuit would
be split. It was a hang-up.
Mr. Pollak: Judge Wisdom had very strong views that it should not be split.
Judge Wald: The reason for the hang-up in Congress was that, at least in the
House, where Pete Rodino was the Chair of the House Judiciary Committee, the civil rights
-147-
groups were afraid of the way the split would go, which judges would be on which side of the
split, and what they were afraid of was an anti-civil rights group of judges concentrated in one of
the two circuits. Everybody was very frustrated. The Omnibus Judgeship Bill created over 150
new federal judgeships and was being held up because of the fight over splitting the Fifth Circuit.
Bell had very good relations, being a bona fide Southerner himself, with both Eastland, who was
still, for the first two years we were there, the Chair of the Judiciary Committee, and with Rodino,
whose friendship he cultivated.
There was stalemate there for a year and a half. During the period I was there, the ABA
also tried unsuccessfully to come up with some formula. Nothing seemed to work.
Speaking of Senator Eastland, I remember early on when we were all coming up for
confirmation, we went up to the Hill as a group. We were taken up by Jim Turner of the Civil
Rights Division, about a week ahead of the hearing to meet Senator Eastland. It was Jim
Moorman, myself, Drew Days, Barbara Babcock, Dan Meador, John Harmon. We were ushered
in to the August presence. Jim Turner, apparently, had an easy relationship with Eastland.
Anyway, he was delegated to do the formalities. So we all sort of sat there with folded hands and
Eastland looked us over and he said, “Well, I got one thing to say to you. Don’t say a word to the
press before your confirmation hearing.” Of course, after that we would have died rather than say
anything. Bell must have been there as well because I remember Jim Moorman, who had come
straight out of the Sierra Club Legal Defense Fund (I had known Jim before – we worked together
in the Center for Law and Social Policy years before he went to the Sierra Club), had a long beard
and he looked a little bit like a “lefty public interest” type. So, Eastland said to Jim, “Would you
walk around the room?” Jim walked around the room and he turned to Bell and he said, “You
-148-
want him?” Bell said, “Yes.” He said, “Okay,” and that was the end of our whole interview. It
was a little strange. So we went up there and had one of those “kiss and run” type of hearings, and
then we were all confirmed.
Anyway, to get back to the judgeship bill – this is a year and a half later now. Each
morning Bell would have breakfast in the AG’s dining room. If you had any problem that came up
and you needed to see him quickly, you could go up there and say, “This has just come up and I
need your guidance,” rather than wait to go through the appointment process. So I was up there
on something else one morning and he was musing about feeling frustrated about the stalemate on
the judgeship bill. He said, “I was thinking last night,” and this is genuinely him, this is genuinely
Bell, “and I wondered if we couldn’t do it this way. If this way would be vague enough to satisfy
both sides,” and he had a formula. He wrote it out on an envelope, and he said to me, “Go up
there and see how this plays.” It was that informal. I had no hope of going in to see Eastland. He
didn’t actively dislike me, but I’m sure he had no awe or affection for this little woman who
appeared on behalf of the department. I did have good relations with a couple of his people,
however. I cultivated them by being respectful and helpful and not acting too aggressive, so they
listened to me and promised they would take it up with Eastland.
That was the good thing I found out about Hill people. If you didn’t act too belligerent or
too snooty, and you cultivated relationships with the aides, they could be of great assistance to
you. If they said they would get this word to Eastland, they would get the word to Eastland. So I
made a great effort to get along with staff. I probably knew many more aides and did far more
business with the aides than I did with the Senators or even the House members directly. I
wouldn’t make it a point to try to always deal with the Senator because I found out an awful lot
-149-
can get done and undone by the aides. If you had them on your side, generally, it was a good
thing. You have to play straight with them, by and large. Not all of them were equally
trustworthy, but after a while I knew the ones that would play straight with you.
So they did get the word in to Eastland and Eastland said that if Bell would come up and
see him directly, he’d talk about it. They all played these kind of games. Bell went up and talked
to him. Meanwhile, they said to me, “This will never work with Rodino, so go see X” – X was a
liberal Democrat on the House Judiciary Committee and a good guy, by and large, but just a
member. I remember Alan Parker was then the counsel for the House Judiciary Committee. Alan
and I got along quite well, and Alan had said to me once that you have to realize the enormous
importance of turf and you never do business – and, of course, Allen would say this because it
was in his interest to say it – he said never do important business with anybody on the committee
unless you first make the chairman aware of what’s going on. So on my way across the Capitol, I
thought, it’s not Kosher for me to go and talk to this other guy and not have Alan in on it. So I
went to see Alan first and he went in to see Rodino. By 1:00, Rodino had signed onto the Bell
compromise. By 3:00, Eastland, after Bell went to see him, had signed onto it. That was how the
judgeship bill finally got settled in less than one day, after over two years struggle.
Mr. Pollak: It shows, doesn’t it, that experience, an undergirding of experience,
that you only gain through some time at the effort played a role. You made judgment there to go
and not violate Allen Parker’s instructions.
Judge Wald: Right. As I say, I had to pick up my knowledge as I went along, and
I made a lot of mistakes. There wasn’t anybody there to hand it over to me, and the career people
did not do lobbying when I came in, believe it or not. The first time we had a legislative crisis
-150-
was really funny. I had to ask somebody how to get to the House floor. Only one or two people
in the office knew; most of them had never lobbied up there. What they had done was sit in the
department and write their reports. I think it was a fairly low-keyed operation before I got there,
at least in the latter days of the Ford administration. Any real lobbying was done straight out of
the AG’s office and our office was kind of a water boy, carrying messages to the Hill.
OLA had a lot of routine work. Any time a legislative request for the department’s view
came in, there was a regular routine. The request comes in to the office from the Hill; that office
decides which division upstairs to send it to; somebody in the division writes some kind of
substantive report. It comes back down. It goes out over the signature of the Legislative AG, but
the substance of it is by and large done by the other Division involved. This is assembly line
stuff, because there are thousands of such requests that come in every session. So that’s basically
what OLA was doing and it seemed they were not often called upon to actively lobby anything
important.
Mr. Pollak: Do you think the divisions were lobbying their own measures?
Judge Wald: Yes. I know they were. Some of that continued even in my day. It
was never possible to reign it in completely. We made a great effort while I was there to get along
and to be helpful to the people in the divisions so they didn’t look on us as some kind of
competitor. We weren’t seeking to cut them out in any way, and say, Well, it’s only us who will
do this. I remember the deputy in the Tax Division, Marty Baum saying, “In one week, your
division has done more for us than in the last three years,” and we knew nothing about tax. It was
just that we made it a point to get any information we had up to them quickly, to work with their
people, to try to let them have the credit if they wanted it.
-151-
Mr. Pollak: You had on-going relationships with members and staff up there that
the divisions then could benefit from?
Judge Wald: Sure. We never got into any big turf fights with the divisions. The
good part about the job was I got to know every Assistant AG very well. I might have done that
anyway. Bell would have lunches every Monday with all the Assistant AGs and their people, their
deputies, and that included Mike Eagan, the Associate Attorney General, whom I liked very much
and got along with well. So pretty soon you did know what was going on in all the divisions, and
you had a sense of problems, hopefully, as they arose. Not to say we didn’t have a lot of things
that went wrong.
I think there’s only one other point that I would make, and that is while I was there we had
an interesting exercise which I didn’t start, but which Jim Moorman and I performed the last year
or two. That was the beginnings of affirmative action in the department. We had something
called the Employment Review Committee. The first two heads of it were Barbara Babcock and
Drew Days. Mike Eagan authorized it. Then after that, Jim Moorman and I took it over.
Anytime anybody wanted to hire, and this included strike forces, anyone, at the point that they
were about to make the offer, they would notify us. We didn’t have any authority to tell them they
couldn’t hire or not hire. But we would look at the record of their recent hires in terms of women
or minorities, and if it really looked monolithic or if it looked as though they were not sensitive to
the diversity issue, we would just ask them to tell us what their outreach efforts had been. It was
all at the level of persuasion and outreach. It did have results. Some people thoroughly disliked
it, needless to say. We would meet every Wednesday to go over all those reports. I think it had
some effect.
-152-
The other thing was that, in the Carter administration for the first time, there were
substantial numbers of women in positions of importance throughout the administration, and we
formed a loose social and informational network. Ironically, for a period there, General Counsel
was considered a “woman’s” job, there were so many of them. The Carter women appointees
would get together every month or so, just to talk about problems that we had encountered, more
management- than discrimination-type problems, actually. It was a good plan. It gave us a sense
of support. Barbara and I were the only two women political appointees in the department. But,
for instance, there was Joan Claybrook in Transportation; Toni Chayes was over in the Air Force;
Dianne Seimer was Counsel at Defense; Donna Shalala was in HUD then; Doris Meizner and Pat
Bailey were both in Justice as nonpolitical appointees then.
Mr. Pollak: Doris who?
Judge Wald: Meizner, who later was – Now she’s about to become the
Commissioner of Immigration, Jody Bernstein was General Counsel, first at EPA and then HHS,
Sara Weddington was first in Agriculture and then over in the White House. There was a sense
that we weren’t isolated when problems came up. Sometimes if a problem came up with another
agency, you might find yourself calling a woman you knew over there just to say, “Well give me a
low down, here’s the problem I have.” So that was the first time that I had encountered that kind
of communal feeling among so many women; never before except perhaps in Legal Services had
there been enough of them around in the workforce to form any kind of network. Informal, but a
power network nonetheless which I thought was a very good thing, very useful at the time.
Mr. Pollak: I have a few questions. Did you play any role in selection of judges?
-153-
Judge Wald: Not specifically. Bell took enormous interest in the selection of the
judges. He said that he wanted that to be his legacy as AG. He had been a judge. He also knew a
lot of the other judges in the system. However, vis-á-vis getting the councils set up, remember
Jimmy Carter set up councils for the picking of appellate judges in each circuit, I would be
consulted on people I knew being considered for council membership and sometimes candidates’
names, but I was not directly involved in picking the judges. I would hear about it at the breakfast
and at the lunch table. Bell not only knew everyone on the councils, but when the councils would
vote out their four names for every slot, they would bring the names to him first. Then he would
make his own phone calls, and decide who he thought should get it. He would listen to the ABA
evaluators, and he would sometimes negotiate with them. I saw judge candidates who came in
originally with “qualified” ABA ratings, raised to “well qualified.” At that point there was some
kind of a 15-year litigating standard in the ABA for a “well qualified” rating, which most women
couldn’t meet. As a result of negotiations, it is fair to say, there were some women recommended
who didn’t meet that technical standard, but who turned out to be very good judges.
Bell would go over to the White House with his pick of the council recommendations. He
said at various times the White House people were extremely frustrated that he did not consult
them enough. I heard Bell say he would check with Hamilton Jordan to make sure that the person
didn’t have some terrible political liability, then he’d walk his choice in to the Oval Office and
present it directly to President Carter. He would walk it in and when he came out he would have
the judge. And he once said that if he had to check with anyone else, he would resign.
Mr. Pollak: Do you care to state an observation as to how this complex process
came out on a merits basis?
-154-
Judge Wald: Here’s what I’ll say: Certainly the quota of women and minorities
went up exponentially, and that was part of the reason for the process. We went from one woman
appellate judge, Shirley Hufstedler in the Ninth Circuit, up to at least eight or nine women on the
circuits and many more district judges. I don’t know the precise numbers, but I bet if you checked
it, the number of women and minorities went up by a thousand percent during that period of time.
On the caliber of the judges, I think many, many have turned out to be extraordinarily good.
There’ve been a few misses. Look at the impeachment process. Some of the recent subjects are
Carter appointees.
When my name came out of the D.C. Council, there were four or five other people on the
list, including Ab Mikva. Joe Tydings was the Chair of the D.C. Council. He called me on
Tuesday night. I guess he called all the people to say who would be on the recommended list. At
the DOJ breakfast the next morning, Bell who was a supporter of mine for this job, said, “I’m
going to go over to the White House later this afternoon with the names.” He came back that
afternoon and announced that Mikva and I would get the nominations.
Mr. Pollak: Do you have anything to say on your observation of how policy was
set in the department and your own role? Or was that so diversified into the divisions that policysetting
was not something that happened in your eyesight except as to legislation?
Judge Wald: Quite frankly, I had no role in policy setting, except as to legislation.
In legislation, I had primarily a process role, which, as you well know, spills over into the
substantive area lots of times. First of all, you had this kind of rolling assembly line of
departmental positions on hundreds and hundreds of bills that came through for comment. They
would be sent up to the substantive division, and a draft comment would come back down. I
-155-
looked at all those drafts personally. If it involved something that someone else in my division
knew about, I would call them in on it. The report ultimately went out over my name, so I did
have a say in it. There were many reports, on the order of 20 percent of these routine legislative
analyses, I would send back because I had a question about them. Generally, I did not feel that
because I personally disagreed with something that the Criminal Division might be putting forth, I
could stop it dead in its tracks. But I could and did raise questions about it. Generally, I tried to
maintain a decent enough relationship with the people so this wouldn’t be taken amiss. I would
say, “Well, isn’t this an extreme position to take, or don’t we have to take account of this.” Very
often such reservations could be worked out so I felt perfectly comfortable in signing onto the
final report. There were a few occasions I just simply wouldn’t sign onto the policy. Nobody
made that big a fuss. I just had someone else sign as Solicitor General lawyers sometimes do
when they just personally can’t support the position of the government in a brief. Considering it
was the Carter administration, there weren’t too many crises of conscience for me.
If there were a dispute between different divisions, or even between me and the Assistant
Attorney General in the substantive division, we would take it up to the AG in a memo. He would
settle it. I didn’t want anything to go up to the Hill with my name on it that I felt was anathema to
my beliefs. There would be areas like antitrust law that I didn’t know, where I had to go on faith,
but in the other divisions, I understood enough criminal, civil and environmental law to contribute
to policy determinations when necessary or appropriate.
There were several other areas in which I worked. I was very much a part of task forces
involved in the substance of the bills that came out of Dan Meador’s operation, the Office for the
Improvement of the Administration of Justice. In fact, there was some talk of melding the
-156-
divisions. We worked on all of Dan Meador’s Federal Circuit bills, class action bills, and
magistrates bill. There were privacy task forces. We worked very closely with criminal and civil
rights on the Bank Privacy Act. We were part of the task force for the FBI charter, which didn’t
eventuate in anything because it was never clear the FBI really wanted a charter, at least at that
time. This was a few years after Watergate while the open government era was still in effect. We
were involved in all of the discussions going on about the foreign intelligence bill. I never felt
that we were cut out. In fact, things changed for the good; we stopped being widely perceived as a
water carrying operation; you know, as merely a messenger to the Hill.
There’s a little bit of elitism in the department, the same thing you find in universities, that
anybody who is responsible for administration or for facilitating projects is somehow of a lesser
order than somebody who is sitting off in a room someplace, doing research, reading cases and
writing reports or briefs. Whereas, in many cases, the legislation in importance far transcends
what’s accomplished in the brief, or in that little memo. There was that kind of notion about our
office when I came in; the unspoken assumption was, We’re doing the substance of civil rights, or
we’re doing the substance of antitrust, or substance of this or that, and you people, you’re just
supposed to be ready to move when we say, Here it is, get it passed. I think over my two and a
half years, we got several steps beyond that assumption.
Another step along those lines that I took involved the few hires I got to make. I tried to
make sure they were really substantive people, so they would be perceived as such. One of them
was a Black woman, Muriel Morrissey, who is now a professor at Temple and was at Harvard
with John Shattuck. Another one was Dave Barrett, who came to work at OLA after coming off
-157-
of a Thurgood Marshall clerkship. I tried to hire people who would be perceived by other people
in the department as their substantive equals.
In the beginning of my job someone from the Hill also told me it’s going to be very
important up here to establish an image of being substantive, on your own. Make sure you get to
go up and testify. So I did. I testified four or five times up there. I did the ERA extension. It was
a natural; nobody else wanted it, I was a woman, and I certainly had no competition for that. I had
a go-round with Senator Hatch on it and Tommy Emerson and Phyllis Schlafly were right behind
me. I also testified on the lobbying bill and on some of the appropriations and authorization bills.
Mr. Pollak: Did you have any relation to the President? In the White House?
Judge Wald: Not a great deal. I didn’t know Carter before I took the job. I had
been on a criminal justice task force with Stu Eisenstat during the campaign, but I really didn’t
make any major contribution – substantive or otherwise – to the campaign. During my tenure at
OLA, Carter used to come sometimes to the Friday afternoon meetings of the departmental
liaisons. Frank Moore, who was the lobbyist for the White House, would have meetings on Friday
afternoon of all the Congressional people from all of the departments. Nobody could beat the
admiration I have for Carter, especially in his post-Presidency. But at those Friday meetings he
tended to mostly lecture us, “Why haven’t you done better this week?” I never had any close
relationship with him, although I certainly met him on numerous occasions. I did know his top
White House people better. I knew Stu Eisenstat and Dave Rubenstein, who was his assistant.
There were a couple of people over there who were detailed to the Justice Department and who
were supposed to be kept informed of our legislative activities. One was Bob Malson who is still
around in the Clinton administration, and Annie Gutierrez. Now, these were young people, and I
-158-
got along with them fine, but Bell would not give them much entré. I mean, he felt there was no
need for any White House liaison. My division kept them informed of everything we possibly
could. But they had no power over us whatsoever.
Mr. Pollak: Well, I think that closes out the time at Justice and brings us to the
federal bench. You’ve alluded to your appointment. Maybe that’s all that there is to speak about.
Had you sought it before it became a reality?
Judge Wald: Let me make a few remarks on that and the confirmation and we’ll
finally move to judicial service. I wanted to be a federal judge.
Mr. Pollak: From whence in your life?
Judge Wald: It could go back to the time I started practicing full time in the 070s.
Maybe even earlier. It could have fed on memories of what it was like working for Frank. There
were aspects of the job that fit my personality. While I was fairly active in the community and in
litigation, there was a part of me that didn’t really like the political side, having constantly to be
pitting one force against the other, or watching out for the politics of this, or that situation. Some
people loved that. It’s part of their sense of power. I think politics is terribly necessary to getting a
lot done in society and in the law, but I don’t love it. The notion that you could be exercising
power in an important way, hopefully to the good of the things you believed in, and not be subject
to the pillorying of politics I found attractive. I didn’t campaign for the judgeship in the sense I
never knew when and where it would come from. It’s like you never know who’s going to be
elected President, so you don’t know what year you’re even in the ballpark. As I told you earlier, I
had had an offer in the late sixties from Warren Christopher, who was then the Deputy AG, to
take a family, domestic relations judgeship, the one eventually that went to Joyce Green. I didn’t
-159-
do that because I honestly didn’t think I had enough litigation experience. I really didn’t think I had
the experience to go on the court and, in addition, my kids were not fully grown. They were still
fairly young, so it was not the right time and the right place. I needed to do some more things, so I
politely declined that one.
As I say, there were no more opportunities even to think about things like that until a
Democratic President was elected in 1976. I didn’t begin thinking about it right away even then,
but certainly when I was in the Justice Department, and the whole Omnibus Judgeship Bill came
along it triggered my thinking. You had to affirmatively apply for a judgeship in those days under
the Carter council system. You had to actually fill out long applications. I remember it took me
four days over the Christmas holidays to fill mine out. Some people were offended. Frank
Murnaghan, whom I knew because we had mutual friends in Baltimore, and who was Paul
Sarbane’s choice for the Fourth Circuit, was terribly offended by the minute and detailed disclosure
requirements. The detail in the questionnaire, every case ever argued, who’d been on the opposite
side, it went on and on and on. I was asked several times if I wanted to apply to go on the district
court bench over the first couple years I was at the department. I didn’t think I would be a good
district court judge. I had some litigation experience, but I didn’t really have the kind of litigation
experience I thought the job needed. Maybe that’s wrong, some people who don’t have much, turn
out to be good judges.
Mr. Pollak: Who asked you? The commission head?
Judge Wald: You had to apply, but women’s groups or individuals would call me
up and say, why don’t you apply, or we’d like you to apply.
-160-
Mr. Pollak: Did the commission do both district court and court of appeals here in
the District of Columbia?
Judge Wald: In the District, I think it did do both. In other places, it only did
circuits. I knew in my heart that I wanted the circuit. I had one or two conversations with Bell
about it, but not until late, not until I thought I was more established, in his good graces as it were.
He was very receptive. I heard, and this is hearsay, from Erwin Griswold, who was on the
commission, later on, much later on, that Bell indicated to the council members that he would like
to see my name on the list, and maybe that isn’t kosher, but I’m just telling you what Erwin said; I
did not know that at the time. Erwin said, “Thank God you were qualified,” so it didn’t cause any
great problem.
When the Omnibus Judgeship Bill was created, it contained two new positions for this
circuit. So I did apply and I knew I had his backing. That part was fine. I was thrilled with the
announcement of my nomination. I felt some decisions you make in life are clearly right, and some
you know almost instantly are wrong. I just had a sense this one was right. Naively I thought once
the nomination was announced everything was fine. I didn’t think I’d made any enemies,
particularly, on the Hill. In fact, I had worked with people like Senator Hatch, and Hatch had once
said to me after the nomination was announced in the period before any of the confirmation fuss
began, “If there’s anything I can do to help, let me know.” So I don’t think there was any personal
animosity. I knew Laxalt. I knew Simpson.
Mikva’s and my nominations were formally announced in early April 1979, and nothing
much happened, for a while. Then I began to hear that there were right wing groups that were
going to oppose me. The one victory the right wing had scored up to this point was defeating
-161-
Norval Morris as head of LEAA. You remember Norval Morris, the Dean of Chicago Law
School, and a man of great qualities, was supposed to be Administrator of LEAA but when his
nomination got up there, the anti-abortion and gun people came out in full force and the
administration eventually withdrew his name. Nobody was prepared for these people. They
were doing trial runs. They decided to do a trial run on both Mikva and me. Mikva had opposed
the gun lobby in the House. I didn’t have any record on guns, but they decided I would be attacked
as anti-family. It really was mysterious; at first I did not understand what they were talking about.
One of my deputies came back from the Hill and said that the House Republican Study Group has
got all of your writings and has decided to oppose you because you’re anti-family. I didn’t even
know what they were talking about. What they were talking about was one article I’d written about
children’s rights which had appeared in a University of Minnesota publication and later in the
ABA magazine on Human Rights. It was quite similar to the kind of article Hillary Clinton got
attacked for during the 1992 campaign. In fact, I cited her article in mine. What mine said
basically was, some civil rights should be available to children at a lower age, and that children
need to be represented by counsel in legal proceedings where their fate is at risk, not very radical
stuff. But anyway, the right wingers were delighted to find that I had suggested that indeed some
people might even assert that the voting age might be lowered. It was the kind of academic
speculative thing that several other people writing similar articles in the same time period freely
talked about. The conservative groups started on this mail campaign. It was a scary thing, I’ve got
to tell you. They sent out canned editorials to every newspaper in the country. My mother-inlaw’s
best friend in Scottsdale, Arizona, sent us back this editorial against me. Since I was a
-162-
nominee for the D.C. Circuit, not the Supreme Court, it seemed strange, indeed, to be pilloried in
Scottsdale. It was a trial run, really.
Then, somebody came up to me and said, “You know, Senator Humphrey is going to go
to take the lead in opposing your nomination.” My first thought was, My God, why would
Hubert Humphrey want to oppose me? Gordon Humphrey was only a year into the Senate, he’d
just come out of New Hampshire. He didn’t know me from a hole in the wall. They began to
mount this campaign and it seemed to be coming from all different directions. Peter Hutt and I
had written a book for the Ford Foundation on drug abuse and in it we had a chapter which lots
of people had told me was very good. It had been used as a curriculum about drug education.
The new right wing groups were saying that this was an attempt to take away from the family the
right to govern the use of drugs by their children, put it in schools, stuff that was off the wall. It
was scary, and you couldn’t not do anything about it, because allegations were appearing all
over the country. We had all watched Norval Morris get ambushed for no good reason in a
predominantly Democratic Congress. It could happen again. Candidates are not supposed to do
anything, so of course, you have to get all your friends to do it. Bob, my husband, was terrific.
He did the majority of the truth squad work. He worked with the people on the Hill. The staffs
of the Democratic senators were extremely helpful, sympathetic, but it was still scary. I went
around and saw people. I was still in the department too. It was a very unnerving period.
Finally, Bell and I agreed that I would step down from any active work on legislation until the
confirmation was over. It was just an impossible position to be trying to lead the department’s
legislative work at the same time certain key people were opposing you. Alan Parker was going
to be my successor. There was a month and a half there where I was still at the department, but
-163-
doing nothing of any substance. My friends all worked on helping me right up to the hearing.
What you find out when your neck is on the line is people are very good, but they have lots of
other things to do, too. They can’t sit around all day and worry about your nomination. A few
people close to you have to do most of the work.
Mr. Pollak: Like passing a bill.
Judge Wald: Yes. It’s interesting that help comes from strange places. John
Frank, down in Arizona, who you might have known back at your old law school, called up and
said he thought he could help. He got Barry Goldwater to go on the floor on my behalf.
Goldwater didn’t know me, but said the President has the choice of his own people and I don’t see
anything wrong with her. That was a great help. All sorts of other people were saying that I was
out of Judaeo-Christian tradition.
Mr. Pollak: And that’s bad?
Judge Wald: No, I mean, I was outside of it. We had people write telegrams
saying she’s clearly inside – Donna Shalala got, who was the great priest that recently died?
Gino Baroni. He weighed in for me. I remember it as one of the worst periods in my life and Ab
Mikva said the same thing. All the times that he ran for seats in Congress, he never felt as
isolated or out at sea, was so unsure of what was going to happen, as during that spring and
summer of 1979 when they were opposing both of us. You never quite knew from where the
next blow was going to come. We overlapped. He came up for his hearing two months after
me, after the summer recess. I remember having a meeting with Laxalt, a very pleasant meeting.
We talked about giving graduation speeches, and of course, he ended up opposing me. I can’t
-164-
remember if I recounted the Hatch-Simpson episodes. I think it’s worth going into because it
illustrates so well the vagaries of political life.
As I told you, Hatch and I had had a very amiable relationship up to the hearing. And I
had gone to see Simpson. He had sort of pooh-poohed the anti-family rap. The only lesson it
should teach you, he said, is never put anything in writing. He told me how he would always talk,
but he was very careful what he put down on paper. He was quite charming. He and Bell had a
nice relationship. Bell had a way of dealing really quite affirmatively and helpfully with Senators
from the other party and so he had done things for Simpson. I can’t remember whether he’d gone
out with Simpson to Wyoming, but he’d done something that was perceived as a help to Simpson
and he did the same for Laxalt, too. So there was no reason for them to be at all antagonistic
toward the department or me based on their experiences.
At any rate, Simpson told me about some misadventure in his youth, how his opponents
tried to use it against him in an election. So anyway, we had the hearing before the Senate
Judiciary Committee and parts of it were quite bizarre I thought. There were a lot of people there.
It lasted four or five hours, the whole afternoon. At this point, we knew it was serious business. I
would keep getting the information from the Hill, Humphrey was really onto it, the right wing
groups were really going all out against me. I heard at one point, and it was true, Strom
Thurmond had asked Bob Jones to come personally to testify against me. Bob Jones didn’t know
me at all. At one point, Bayh’s people, who were in charge of the mechanics of the hearing,
thought that Jerry Falwell was also going to come up, but fortunately he missed the deadline for
signing up and they closed the hearing legitimately. Mikva’s hearing wasn’t for another month or
so, so I was the lead target on this opening campaign. Before the hearing the staff told me, “Get
-165-
all your kids here. Line them up, so you look like a good family person.” Two of them had
summer jobs in other cities and had to fly in. One of them was still in high school. One of them
was in Europe. They all came, looking gorgeously clean and neat – a feat in the late ’70s. There
was some irritation because they had to fly in for what they perceived was a ridiculous exercise.
Anyway, we went through the hearing. Sarbanes introducing me, and Mathias being enormously
supportive even though he was a Republican.
Chuck Work, who was the D.C. Bar president, said, “We will get a panel of ex-D.C. Bar
presidents together and come up to testify.” So they got, I think it was Barrett Prettyman, Chuck
Work and John Pickering. Maybe John Douglas, too. And they came up and gave testimony which
I think must have been extremely helpful. But John Pickering loves to tell the story about how he
thought it was going to be just one of those pro forma type things. He decided it would be a good
event to bring the summer associates to. He said he went up thinking this was going to be a little
pro forma hearing, “isn’t she a nice woman,” kind of thing. He said when he got there, there was
this room teeming with people and they arrived in the middle of the Bob Jones testimony about this
woman who is an instrument of the devil. He said the summer associates clearly had no idea what
was going on, what was this happening, was this typical Washington fare? The D.C. Bar was extremely
helpful, the women’s bar was very helpful. I do remember one awful thing: the New York
Times, probably courtesy of Jack McKenzie, ran a nice editorial. The Post eventually ran one, too.
The Star wrote quite a negative one. It was a woman, though, who did write it on the ground that I
was some kind of ’70s flower-child type and we didn’t need them on the bench. That’s the end of
-166-
the confirmation. With the exception of this article, I hadn’t done anything remotely controversial
and my whole life and everything else I’d written was a clear repudiation of any anti-family
tendencies. There was nothing there. One Senate aide told me later on, very often opponents will
raise something that they don’t really believe in, on a theory that if they get your name out there,
something may come up that is of real substance. I think this had to be what they were doing with
me. Fortunately, there wasn’t any real substance. But they had Gordon Humphrey railing for a good
part of the hearing. At one point, Bayh turned to him and said, “Have you ever met this woman?”
And he said, “No.” Bayh said, “Well turn around, I’d like you to meet her and shake her hand.”
That’s the only time I had any contact with Humphrey. Bob Jones called me an instrument of the
devil which turned into a family joke because one of the reporters came up to my younger son later
after the hearing was over, and said, “Well, how did you feel when they called your mother an
instrument of the devil?” And he said, “Well, she burns the TV dinners, but otherwise she’s okay.”
It was an enervating thing, though. There was something demeaning about it. Strom Thurmond had
his list of questions there, which he asks one at a time. If you don’t answer, it doesn’t matter because
he just goes on to ask the next question anyway. I don’t know whether his heart was in it or not in
my case. I think even he must have known there really wasn’t anything there, but he had his
constituents. Bell actually talked to him about it. He gave what I thought was a wonderfully
irrelevant reply. Bell said, “You know, you’ve seen her, you’ve worked with her for a couple of
years, do you honestly believe that there’s anything to this?” And Thurmond reportedly replied, “I
got young children; I have to be careful.”
Hatch abstained from any active questioning at the hearing. He didn’t vote. When the
nomination came up in committee several weeks later, Humphrey was not on the committee, but
-167-
Thurmond put the nomination on hold for whatever number of weeks you’re allowed under
committee rules. Finally, when that period lapsed, they got a vote. I think there was only a couple
of votes against me, but I knew Thurmond and Laxalt voted against me.
When I saw the vote, it had Simpson also voting against me. And I thought, “Well, there
you go. That shows you what life is like.” He had been so positive at our meeting.
So I was sitting at home during this anxious period. No longer at the Justice Department.
Congress is getting ready for the July recess, and the phone rang. It was Alan Simpson. He said,
“You know, I just found out my vote was recorded against you in committee. I gave no
authorization for that. I couldn’t be at the voting because I was at X hearing or whatever. My staff
person assumed I would vote against you. He’s no longer with me.” He had one of those right wing
young people. The assistant had just assumed he’d vote against me, and he said, “I personally called
the committee to change my vote to one for you. I called the Washington Post.” He was extremely
honorable. It restored some of my faith in mankind, I can tell you.
So after the committee vote Humphrey then used the parliamentarian maneuver that my
nomination couldn’t be brought to the floor until the hearings were printed. And that took a while.
So all the time we were sitting in July, and they were going to recess at the end of July. The worry
was that it would be carried over into September.
My oldest son, Doug, was at home with me, studying for the bar. His temper was quite
short at the time because of the pressure involved in studying for the bar. My temper is similarly
short-fused because I’m waiting for the phone call as to whether the confirmation hearing is off or
on. So the two of us are like two firecrackers waiting to take off. We were like two caged lions.
One afternoon, July 26th, it was getting close, very close; the phone rings. It’s one of Kennedy’s
-168-
aides. By now Kennedy was chair of the committee. He said, “Bobby Byrd says if we don’t bring
your name up this afternoon, there’s a hole in the calendar for 2:00 this afternoon (this is 12:00 that
day) then there’s going to be no more time, so it goes over.” So the aide said, “Get anybody you can
and come down here.” July 26th also happened to be the day that Teddy Kennedy was in Boston for
the funeral of the conductor of the Boston Pops. The only kids I could conjure up were my two
youngest. One was working in a restaurant for the summer, and one was in basketball camp. And
my husband Bob. The four of us tore down there. There’s nobody there, in the Senate. I mean it
was like a movie where the bad guys are winning and only Humphrey, Laxalt and Thurmond are
there and giving diatribes against me.
Thurmond got up and talked about protecting the young people of the country. Laxalt got
up and didn’t even focus much on me. He just talked about judicial activism, a somewhat ironic
detail in light of the activism of a lot of judges that the conservatives so warmly embraced
subsequently. I kept thinking, “Now, where are the good guys?” Well, Bayh was the head of the
Intelligence Committee, he was chairing some important intelligence hearing. Kennedy was up at
Arthur Fiedler’s funeral. Finally, Sarbanes came in out of a hearing and made a speech in my
favor. Then Leahy did likewise. But I’m still very nervous. Now, I’ll tell you about Hatch. Just as
we were going into the visitors’ gallery to watch the floor debate, I see Hatch. I’m with Bob and
Freddi, my daughter. We were just about to sit in the regular audience gallery; there weren’t very
many people on the floor or around the Senate generally. He said, “I want to talk to you.” He put
his arm around my shoulder. He said, “I want you to know I don’t believe any of this anti-family
business. I know you. I know you’re not that way.” But he added, “You know, it’s the Year of the
Child, and I’m getting a lot of mail. So I want you to know, if it’s even close, if it’s close, I’ll vote
-169-
for you.” But he also said, “I don’t think it’s going to be close. I’ll wait ’til the end. If you’re in any
danger, I’ll vote for you. But if you’re not, then I’m probably going to vote against you or abstain.”
I believe he did the latter.
In the meantime, he said, “I’d be happy if you’d sit as my guest in the members’ section of
the Senate Gallery.” So we all sat through a couple of hours of floor debate, and I must say it was
agonizing. And then gradually, it was like a movie where the guys with the white hats finally
show up. Kennedy didn’t get back until the middle of the vote, it was not his fault, but he had his
speech put in the record. Goldwater got up, which was really very helpful, even though he just
said the President has the right to his own choices, if they’re qualified, this is the way to go. So I
think in the final analysis, there were something like 17 votes against me. Two I will never understand.
Two Democrats voted against me. No reason. In fact, I had never dealt with them. One
was Stone from Florida; I didn’t really know him. Another was Frank Church. I will never understand
Frank Church. I know he passed away and because my special assistant was a very good
friend of his legislative assistant, we had dealt with him somewhat, but had not the remotest notion
of any antipathy, and you would have thought that if there was some problem he had, his assistant
would have told my special assistant. They were good friends. Not a clue. Perhaps he was scared
of his right wing constituents but I couldn’t have been that big a fish. I never had any subsequent
contact with him but I was always very sorry it happened. Otherwise, I admired the man.
I did get confirmed and I got sworn in the next day before anything further could happen.
Mr. Pollak: Who swore you in?
Judge Wald: I came over here and got sworn in privately. Carl McGowan set it
up. It was summertime and I was nervous about waiting for a big public investiture. Mikva did
-170-
the same thing a few months later. Now, most judges get sworn in privately first. I came over,
Dave Bazelon swore me in, Carl McGowan was here. Then my husband and I went away for a
vacation.
Mr. Pollak: Now it’s federal Judge Wald.
Judge Wald: Well, I came to work in early August of 1979. At that point, I was
the tenth judge on the court. There had been nine judges, and then two new positions were
created, the ones that were to be occupied by myself and Mikva. I was the first woman ever to
serve on the D.C. Circuit, and I heard later on from staff people, little, funny stories like Judge
Tamm apparently had a real question about what to do about the bathrooms and the robing rooms.
There were two bathrooms in the robing room which is behind the bench, and he, the gentleman
that he was, insisted that one be marked “women” and one marked “men.” Of course, I was the
only woman, which meant by and large that ten men would have to line up and I would have the
other one all to myself, which needless to say was very gentlemanly, but I’m not sure how
necessary it was.
I did have an advantage in that I knew many of these judges, having practiced here. There
couldn’t have been a kinder, lovelier person than Carl McGowan, whom I had known from
serving on various judicial conference committees with, and Harold Leventhal also went out of
his way in the early days to welcome me because he was glad for some new additions on the
bench. Actually, I had had a few phone conversations with him before and during the
confirmation process. I had known Dave Bazelon a long time, and been part of his speechwriting
coterie. Interestingly enough, he thought of me as more consistently allied to his causes
than I turned out to be. That required a little adjustment on both our sides. I was not 100 percent
-171-
with him on all cases, and that came as a little bit of a disappointment to him. Spottswood
Robinson I didn’t know well, but clearly he was a likely soulmate on many issues. The thing
about these older judges was I felt they wanted me to succeed. They wanted to be friendly. They
wanted to be outgoing.
A few people on the court I didn’t know so well. I had only a passing acquaintance with
Judge Tamm because he had been on an ABA narcotics treatment committee way back in the
early ’70s, which actually had come out with a much more radical recommendation about
legalizing the possession of drugs than Peter Hutt and I did in our book. But he was definitely of
the old school of judges, reserved, formal. Judge Robb, whom I didn’t know, was certainly more
conservative than I was or would ever be, but he was always a gentleman. He wrote me a very
cordial note when I came on the bench. While I suppose our relationship was always formal, I
never knew him to be anything but polite and welcoming; he never engaged in any personal
antagonisms, on or off paper. George MacKinnon and Malcolm Wilkey were by far the most
active conservatives on the court. They were all appointed by President Nixon; George
MacKinnon was really at his peak when I came on the court. He called for more en bancs than
anyone else. He got more excited about cases than anyone else.
As far as his personality went, George was always a straight shooter. He did things in
cases I didn’t agree with; he tried to en banc me God knows how many times, but on a personal
level, he really was a straight shooter. One of the interesting things is that over the years George
and I have become extremely good friends. I like him very much, and I think he likes me. We
could still be on a panel together and disagree, but I think he’s mellower and perhaps I’ve
mellowed over the years. I always think of him as his own person. George believes very firmly
-172-
in law and order and he had some preconceptions about what that required that certainly weren’t
necessarily in line with my thoughts, but he was his own person.
Malcolm Wilkey has also become a friend. I don’t see that much of him because he’s in
Chile, but when he’s back in town, we’ve had dinner together a few times. Malcolm had strong
views too, but actually in people’s cases, in cases of an individual against the government, if it
didn’t involve law and order or national security, he could be quite liberal. I don’t know if you
remember the case, I couldn’t sit on it because my husband’s firm was involved, but it was about a
Nicaraguan who owned land in Honduras that was taken over by American forces to train
guerillas to fight against the Nicaraguans. He was all on the side of the poor guy who was being
undone by the government. And several civil service cases I was on, he’d be on the side of the
little man. He had a populist tinge.
Mr. Pollak: You didn’t mention Judge Wright.
Judge Wald: Skelly was Chief Judge when I came on, and, of course, I had known
him before. And I’d known Helen Wright through her work in the mental health area. So he was
a really good friend, and he was fine for the first several years we were on the court together. He
called me in early I remember, and he said, “We’re going to win some and we’re going to lose
some, but it’s a great job. You’re going to have fun.”
Mr. Pollak: Sounds like quite a collegial group.
Judge Wald: Yes, collegial in a basic sense, and let me make this point clear
because it’s interesting the way it plays out in later years as the court changes in personality.
When I came on in 1979, it was a group the majority of which could be counted on in most
cases to take the same philosophical approach toward important cases. Now I know Leventhal
-173-
and Bazelon had their own differences, even Bazelon and Wright did. But in the main, we played
by the same rules or standards and gave priority to the same values. We might vary a little from
each other from case to case. In another sense of collegial, though, I don’t think this court was ever
a run-down-the-hall, drop-in-on-your-colleague, put-your-feet-on-the-desk place. I don’t say that
because I was a woman. I sensed that was not the way things were done, because I knew enough
of the judges personally, and I knew their wives, Jody McGowan and Helen Wright and Micky
Bazelon, to know that that was not the way these judges behaved with each other. But I think it
was collegial in the sense that I felt I was moving into an atmosphere where the majority of people
were certainly not out to get me. They were out to help me succeed. They welcomed me. It was
not, however, an atmosphere where everybody or even anybody was going to be your best friend.
It was not a camaraderie-oriented institution.
You inquired whether I “missed” the old active life when I went on the court. I won’t use
the word “miss” because the first several years on the court were so exciting, subject-matter wise,
that just learning the job and being a judge was all-consuming. There were some occasions when I
might contrast in my mind the way we judges behaved toward each other to the kind of behavior
you get in a public interest law firm, occasionally in the government when you win victories, or
even when you lose cases, a kind of let’s-let-our-hair-down, or let’s-go-out-and-have-a-drinktogether,
or let’s-really-go-over-this, Monday-morning-quarterback-style. There was none of that
on the court. Although it’s an institution, you’re very much on your own. The only people you
ever get to let down your hair with, and maybe that’s why they are so important, believe it or not,
are the clerks. And of course you don’t really let down your hair with them because of the
generational gap. Still, they’re the only ones to whom you even make passing remarks, say, “I
-174-
think that’s the most outlandish thing I’ve ever heard,” or “Where the heck could that have come
from,” or “Come on, now, give me a break.” Practically none of that goes on between judges, even
among judges who agree with each other, respect each other, and it wasn’t going on back in those
days, either.
In 1979, most of the judges were 15 years or more older than I was, though I’m not sure
that accounts entirely for the inherent reserve either. As I say, I knew a lot of them individually,
and I knew they weren’t great buddies, personal buddies before or after I came along. But it was a
court in which you could win vital issues for the first several years I was on it. Within a year,
Judges Mikva, Edwards and Ruth Ginsburg came on and we had a definite majority when we
needed it in an en banc situation for rational, well-thought-out positions. And many en banc
petitions initiated by the more conservative judges like George and Malcolm were easily defeated.
In subsequent years, we learned to write all our opinions in the shadow of an en banc.
At that time, we on the so-called liberal side were the ones who would initiate the en bancs.
In retrospect, I wonder if sometimes we weren’t guilty of being as casual in our use of that kind of
power as some of us believe the conservative majority is now. As I think back to the early years of
making the change between an advocate and a judge, I realize the line isn’t always absolutely,
crystal clear. It’s only through experience you begin to see that line. It’s easy for the academic
people to talk about judicial restraint, and I agree with them in principle, a judge doesn’t have the
leeway to do anything he or she wants, and there are institutions and structures and precedent, that
limit your discretion in many ways. What I will say is that line – between what is appropriate and
inappropriate for courts to do – becomes clearer only with experience – case by case. And it
differs from judge to judge, no matter how long you are on the court.
-175-
There were some cases in the very early years that I think I would decide differently now,
probably in a more conservative vein. It is always a line-drawing situation. I remember very early
on there was a case that had to do with medicare hearing rights for elderly people, and, of course, it
was a kind of case where, if you came from a legal services background like mine, you would tend
to sympathize with the plaintiffs, and they did have some very plausible legal arguments on their
side. I remember writing a quite liberal decision holding the statute unconstitutional for failure to
grant full due process rights, including an oral hearing. Skelly Wright, who was street smart as
well as liberal, said, when one of our conservative colleagues called for an en banc, “Well, maybe
you want to temper this.” Of course, he was right. It wasn’t that any precedent clearly said I was
wrong. It was a question of where the right place is to draw the line. It takes you a while to find
that marker. So that decision ultimately got revised and an en banc was avoided. Malcolm
Wilkey, who had originally dissented, was actually very cooperative about revising it. He did not
insist on absolute vindication of his position. He appreciated anybody making a conciliatory
gesture. I suppose if I had persisted, maybe I could have resisted the en banc, and my normal allies
wouldn’t have voted against me. But I think the revised opinion is really quite sound, and actually
it’s still perceived in the textbooks as a liberal opinion.
The whole issue of how much the court can intrude upon agency discretion is one which is
always with us on the court and is not susceptible to instant recognition.
The first case in which I was reversed by the Supreme Court involved a judgment which in
retrospect I think I was wrong, on my part although the panel was unanimous.
Mr. Pollak: What case was that?
-176-
Judge Wald: It was called Energy Action v. Andrus. It was about whether or not a
statute dealing with oil and gas regulations required the Secretary to authorize by regulation
several new ways of financing leases for drilling oil on offshore public lands. Despite clear
authorization in the statute to try new leasing techniques to encourage drilling, the Secretary had
continued to use the traditional payment modes. I wrote an opinion, which Spottswood Robinson
and Harold Greene went along with, saying he had the obligation to experiment with at least some
of these alternatives that had been authorized in the statute, not stick to the old method entirely.
I got reversed by the Supreme Court. Perhaps rightly so. I thought, gee, there’s got to be a
clear congressional desire here to have the Department of the Interior try out some of these other
mechanisms, but the fact is, the statute had waffled on a clear insistence that it do so. Congress
had not expressly said “you must,” so it wasn’t a mandate. There’s a learning process going on all
the time for a new judge, just where to draw the line. Even when you think Congress wanted to
have the executive do something, if it really didn’t give some sure signs, that they were insisting it
be done, the court can’t provide the prod.
At any rate, I’ve now written 550 or so opinions, published opinions, including dissents,
and four of them have been reversed in the Supreme Court. I think most judges on the court have
a reversal record somewhere in the same range.
It’s interesting about the mores of the court, because when that first case was reversed, no
one said a word to me about it. But I was crushed.
Mr. Pollak: You were? Was it the first reversal?
Judge Wald: Yes. It was; it happened in my second year. I was crushed. It made
me think how the district judges view it. They have to come up here all the time.
-177-
I thought, how am I going to walk in the courthouse. Everybody will say, The Supreme
Court reversed her. I think it was the first opinion assigned to the then-new Justice Sandra Day
O’Connor.
I remember, I waited, I thought people would be on the phone. You know how it is in the
outside world; a Supreme Court decision would cause a great to do, win or lose. People
sympathize if you lose, congratulate you if you win. But the phone never rang all day, and the
week went on, and nobody ever said a word. I realized that one of the unwritten laws in this court,
and probably in most courts, is you never comment on somebody’s reversal by the Supreme Court.
So nobody said a word to me, and I didn’t say a word to anybody, and that turned out to be the
pattern in the three other reversals I had as well. I myself would never dream of calling anybody
and saying, “Well, too bad Harry, too bad Ruth, you got reversed.” You just put it away.
Occasionally, if somebody’s been affirmed and it’s a friend of yours, you say, gee, that was great.
But even that doesn’t happen much.
I’ve been affirmed a couple of times and I’ve had several dissents vindicated up there, and
rarely has anyone ever congratulated me. You might go to a bar reception and have somebody
say, “I’m glad the dissent you wrote in Metro Broadcasting was upheld by Brennan in the
Supreme Court,” but that’s not common. Most people don’t remember the pre-Supreme Court
history of a case. Actually the silent treatment is comforting when you do get the occasional
reversals. I’m sure the law clerks gossip in the halls, but nobody makes you give a full court press
on it.
I learned some other lessons in the first few years; I had a terrible tendency to over-write in
the beginning. I now look back on Sierra Club, which I worked five months on, and realize it’s
-178-
terribly over-written. I didn’t have to get into all of that kind of detail. There is a tendency in the
beginning, especially in technical, administrative law cases, if you aren’t familiar with the
background material, to want to show that you can handle it. “Hey, I’m not just that woman judge
who used to do public interest law in the mental health field. I can handle a complicated
administrative law case.” I perceive that tendency in my colleagues as well, when they first come
on the court to over-write, because the first time you encounter a complex problem, you have to
work it through yourself from A to Z, and you want everyone to know you’ve done it diligently. It
may not be the first time that issue has come before the court, so for somebody, if such a persons
exists, who reads our opinions, seriatim, this might be the fifteenth instance of the application of X
principal. But for new judges, it’s probably not the worst thing in the world to err on the side of
explaining everything they do. Later on you feel more comfortable in being more terse.
I’ve also come to the view over the years that it’s unwise to try and be funny in opinions;
sometimes even judges get bored with administrative opinions and drop witticisms or double
entendres in them. I did this a couple of times and then I quit because I realized to every litigant
his case is an important, serious affair. I once wrote an opinion about a hydroelectric dam in
which I kept using water images, but on rereading, it seems somewhat silly and skewed, kind of
self-indulgent, so I don’t do it anymore.
Mr. Pollak: But the Sierra Club was all business.
Judge Wald: All business, yes. But I don’t think I had to go into that kind of
detail, although it was a complicated case. Roger Robb concurred in the judgment. He made
only one suggestion, and that was that I take out a statement in the very beginning that was just
background about nuclear power being risky. I think that there was so much in the opinion, he
-179-
couldn’t be sure about everything. And I was new, so he wasn’t going to tie himself down to
every word. On the other hand, he had no reason to dissent. That case was a kind of a baptism
for me. There were no other judges to confer with. My clerk was not an expert in pollution
control any more than I was. In fact, I abandoned the first draft totally. Then we just sat down
and said we’re going to go through this morass together, issue by issue by issue by issue. It was
an interesting exercise for me because it taught me I could do it. I could understand and cope
with the material if I was willing to put in the exhausting amount of time and effort to do so. It
took us four or five months to write the opinion, which was almost 200 pages long in slip.
Mr. Pollak: It’s an incredible amount of work that you did on it.
Judge Wald: But I learned you could do it. Whether it’s the right way to spend
your time is another question. I have a sympathy for new judges. I was lucky. I had this learning
period in a basically supportive atmosphere. I remember one other opinion I wrote in one of my
first sittings. I had a long footnote in which I analyzed every Supreme Court precedent on
whatever the topic was, many of which were probably peripheral to the main holding. I got this
really nice note from Carl McGowan, the soul of discretion, saying perhaps I would like to store
this footnote away for future use. There were all kinds of things you really had to figure out for
yourself; nobody was going to tell you directly, like, You’re not writing a law review article, you’re
not writing a brief. What you are doing is trying to establish some kind of a reputation for doing
things carefully. During that early period, I was lucky I did not come onto a hostile court which
probably could have made mincemeat of some of my early efforts had they wanted to.
Mr. Pollak: Did you have any formal training? The administration did not afford
you any training?
-180-
Judge Wald: No. That’s an interesting point. It really is a case of throwing the new
judge in, sink or swim. The Judicial Center runs a “baby judges’ school.” It’s a couple of days of
lectures. In my case, they didn’t offer them for almost nine months after I’d gone on the bench. I
probably was on my 35th opinion by the time I went to baby judges’ school. And, at least when I
went, they didn’t do anything with opinion-writing or decision-making techniques.
Some learned person gives you a lecture on Section 1983 and somebody gives you a lecture
on federal jurisdiction. It’s all substantive. It gives you a wonderful opportunity to meet all the
other new judges. I met all the new Carter judges, and especially all the other women Carter
judges that I hadn’t known. I still keep up with them. There’s a socializing function that’s very
important, and a modest informational increment. But there’s nobody to tell you, at least there
wasn’t in my day, I haven’t gone to any of the baby judges’ schools since, how to write an opinion
or that sort of thing.
I remember also I was thrown headlong into motions in the first week or so. Motions is
where you have all these emergency motions coming. I was on the motions panel with George
MacKinnon. At that time, although we would have a panel of three, only two would really rule on
the motion. If they disagreed, they’d call in the third judge. So it was George and me. George
seemed a formidable figure to me at the time, and also we disagreed a lot. So he wasn’t somebody
I could run to for advice if I were unsure of the right way to rule. They roll in a trolley with 35
motions on it to decide in one sitting. One of those motions in my first session was to stay some
railroad consolidation in upper Indiana. I did not know from nothing about railroads, and George,
an old railroad man, voted to stay. And I thought, God, I don’t know anything, I’d better go along
-181-
with George. He’s been here a long time. So I voted to stay too on the basis of pure ignorance. I
didn’t know what in God’s name I was doing.
Well, of course, we shouldn’t have stayed a railroad and it went up to the Supremes, and
Chief Justice Burger overruled us; at that point I decided, okay, even on these motions I’m going to
have to sit down and go over every detail for myself. You do make mistakes.
Mr. Pollak: Could you get significant help from your clerk on the motions?
Judge Wald: No. The practice on our court is not to use elbow clerks on motions.
We have a separate group of young attorneys who work up the motions – when they have time.
They were then called motions clerks. Now they’re called staff counsel. This was an emergency
motion on Sunday night. Someone called me at home and so I couldn’t call on anyone to do
research. I made the wrong judgment. It got righted very quickly, but still. They really throw you
in the middle of it. But it’s like everything else. If you’re bright and you work hard, you’ll catch
up. Remember, too, I was picking law clerks out of the regular schedule. I was not picking them a
year and a half early as is our practice now; I was doing it in a hurry in the month of July so we
could get started in August. As it was, I did quite well with clerks that year. They were all
competent, and a couple were excellent. In 1980 the administration changed, as you know. I came
on in August of 1979. During that same year, Mikva came on in September of 1979, Harry
Edwards came on around March and Ruth Ginsburg came as one of the last appointees of the
Carter administration the following September. Then they closed down shop before the 1980
election.
-182-
In fact, as to the leasing royalties case that I got reversed on in the Supreme Court, the
original Carter administration had not petitioned for cert., and when the Reagan administration
came in, they got an extension on the period to file cert. and took it up and won.
As time went on, I could perceive differences in the positions of the new Justice
Department. If you’re going to ask me to document that, I’m not sure I can remember specific
cases. But it was my impression there was a much harder line taken in areas like FOIA, standing,
sovereign immunity, executive power, than in the prior administration.
Mr. Pollak: What kind of schedule did you keep in your early years, and has it just
carried forward to today?
Judge Wald: I have pretty much stayed with the same schedule over the years. It’s
a schedule I set for myself because judges in the court of appeals have really a lot of discretion
about the way they use their time. In fact, I worry sometimes if the public knew how much
discretion there is in schedule setting they might be skeptical of our pleas of overwork. In my own
case, I get here between 8:00 and 8:30; that’s the time Bob leaves for work, too. I’ve always
traveled by subway. It’s interesting, Carl McGowan and I used to be subway takers. Now, Steve
Williams and I are. Most of the others come by car.
I don’t work late at night. My pattern has been to leave here between 6:00 and 6:30 and
take some work home. Mostly, that’s because I go by the subway, and I don’t like to walk to the
subway at night alone, late. There have been episodes around here, people being assaulted. I
usually go home at a reasonable hour. That’s turned out to be entirely workable.
I’m not one of the judges, there are some, who insist that their clerks stay here until the
wee hours of the morning. Weekends I usually come in one of the two days. Vacation-wise,
-183-
we’ve always been able to get away for at least one week, sometime during the course of the
winter, and then a couple of weeks in the summer.
The way the court is set up, we only sit, meaning your physical presence is required in
court, for one week a month. The other three weeks we’re working on our opinions, unless you are
also on motions duty. You have one three-month-long tour of motions duty when you’re deciding
all these motions in addition to your regular work. The motions conferences are held every two
weeks. There are some judges who don’t get here until noon, or come in only on days they are in
court. They just like to work at home better, especially now with computerization. It’s changed a
lot. Everybody can now have a home computer with a modem coming into court and law clerks
can get the stuff back and forth easily. Bob Bork used to work a lot at home; Ruth Ginsburg
generally doesn’t come in until late in the morning, because she’s working at home. Harry
Edwards does a fair amount of work at home. Doug Ginsburg has moved way down into the
boondocks and plans to be here only for a couple days a week.
Mr. Pollak: Really? Working at home with the computer?
Judge Wald: He’s going to have a law clerk work down there. It’s sort of a joke
about whether law clerks know when they apply for the job that they’re going to be spending part
of their time in Front Royal.
Mr. Pollak: Is that where it is?
Judge Wald: It’s near there. So different people have different patterns and given
the nature of our work, we are able to be pretty flexible. Roger Robb used to, in the early days,
take the entire month of September off. Come hell or high water. Even if there was an en banc, it
was just known he took off the month of September. Malcolm Wilkey would go to Argentina
-184-
during the month of March where his wife’s family had a place. People just arranged it, and
nobody thought anything of it. There’s a lot of leeway.
I, personally, like to be around the courthouse unless I’m away someplace for a reason. I
think you pick up the rhythm of the place if you have a day-to-day relationship with the clerks and
messengers; if you’re there when the mail comes in, you can react fast. I have always liked to get
things out fast. That can be a negative as well as a positive trait, but if somebody is commenting
on your draft or you have to change an opinion, I like to get to it really quickly. Maybe because I
had been a lawyer here in the days when it took forever to get an opinion out of this court, and I
remember waiting in one case myself two and a half years for an opinion. I sympathize with the
lawyers and I think it is really important to get opinions out as quickly as you can, consistent, of
course, with doing a good job. Not just put drafts in a pile and say, well, we’ll get to that later on.
In general, unless it’s one of those cases that has to wait on a Supreme Court opinion or
you’re negotiating with a dissenter and there are a lot of revisions going back and forth, we aim to
get an opinion out of here in one or two months. In general, we succeed.
If you think speed an imperative, it’s necessary to actually be in the courthouse more to
react to colleagues, to read galleys, etc. I hope I won’t be lynched for saying it, but being a judge
here is not the hardest job I’ve ever had in my life. I don’t think you have to work the hours in this
job that you have to work as a political appointee in the government, or in a high-powered law
firm, or, based on my experience, even in a public interest firm.
That’s not to say in some ways being a judge isn’t harder in terms of having to work with
people, having to come to a resolution on all issues within a reasonably short time, having a lot of
responsibility. But timewise, it’s not bad given the schedule we have. We sit on less than 120
-185-
cases in a regular calendar year. You have all this motion stuff in addition, but that clears up
quickly. I write somewhere in the area of 40 published opinions in a year, that’s counting dissents,
and lots of unpublished memoranda.
I think it’s a very doable job. In fact, heresy of heresies, I think we could be leaned upon
for more. Now, other circuits don’t have it so easy. Our average per judge is 120 cases a year, but
some circuits have 300-400. The average for the country is 255. I know a lot of them are social
security and diversity cases, but the fact remains we in D.C. probably have one of the more
leisurely sitting schedules. I have, over the years, had all the spare time I needed, though not
during the time I was Chief Judge, because that was certainly a filler.
Mr. Pollak: Jon Newman was quoted in the morning paper yesterday as questioning
adding more judges.
Judge Wald: That’s a complicated question. I don’t think there’s a yes or no to that.
I think there are some places where they do need them, and some places where they don’t. Maybe
they could reallocate some of the ones they have already.
On this circuit I have never felt overwhelmed. Sometimes I’ve felt underwhelmed. I think
almost every judge in this circuit does a fair amount of extracurricular activity. For some, it’s
teaching. I have never longed to teach on a regular basis, so it hasn’t been teaching for me. But
certainly, I have had plenty of time to do the law review articles, and law school cameo
appearances, moot courts, lectures, graduation speeches, to be active in the ALI.
Mr. Pollak: You’re an active speaker, aren’t you?
Judge Wald: I’ve cut it down some, but yes. I would say over the course of a year I
generally publish up to four to five things, and probably give six or seven speeches, varying from
-186-
serious lectures to the kind of appellate advocacy stuff, which I do for the U.S. Attorneys or for
Legal Service training programs.
Mr. Pollak: Has the computer, both as a word processor and the computerized
citations systems of Lexis and so forth, made a difference in either quantity or quality of the work
you can turn out?
Judge Wald: Personally, I haven’t found it to make that much of a difference.
Admittedly, the law clerks are brought up on it and you have to have it. They learn to do research
and drafting that way. They’re the ones who do the cite checking and look for case authority. I
think if you asked them, they would unanimously agree it’s a heck of a lot easier than Shepardizing
citations.
Personally, most of my time vis-á-vis research and writing would tend to be spent on
reading the cases that are actually cited, either in the brief, or that a law clerk might have found in
a subsequent search of Lexis, in scoping out what the opinion will say, and in playing with the
actual wording of it. I’ve made myself learn how to use the PC, but I don’t do anything glamorous
with it. I use it basically as a word processor. I felt you had to use it or you’d lose face with the
law clerks.
Harry Edwards does all kinds of things with his. I’m not that gifted and I never will be. I
don’t find it lends itself to my style of writing opinions. I think what has probably made more
difference is the way the law clerks are able to find authority. I’m not sure even that is all good. I
sometimes find a law clerk will hand me a list of certain authorities, and it will have a case
missing that I will just happen to remember from somewhere, because it’s something I’ve dealt
with before. It’ll turn out because the clerk didn’t push the right number, he didn’t push the right
-187-
key or something, the computer somehow didn’t spit that case out. It’ll make mistakes that you’re
stuck with.
I think legislative history, the reading of legislative history, has gone downhill. I think
research by computer can be qualitatively different from the old hard copy method. I no longer
entirely trust legislative history to the law clerks alone, because legislative history used to entail
going to the library, you got the hearings, you got the Senate and House debates and you sat down
and you read from the introduction of the bill right through to its passage.
Mr. Pollak: How do they do it now?
Judge Wald: Well, now they tend to get bits and pieces. They push a couple of key
phrases and they’ll get this little piece of history out here, and this little piece of history out there,
but they’ll be no sense of where either piece fell into the bigger picture. I don’t even like using the
microfiche which all of our legislative history is now on, where you sit in the library and watch
endless numbers of these little frames on the screen until your neck hurts. But at least it’s
coherent. It’s still not as natural to me as sitting down with the actual books and being able to go
back and forth in them and see the whole process unfold. You come out of that with a sense of the
history of that bill and how various dialogues fit into it. You don’t get one little piece pulled out of
context. But basically, I’m not anti-computer. I think it does help the law clerks get their work
done faster. I’m not sure I think it results in any better research.
In fact, I like to cite one of my law clerks a couple of years ago, a Yale fellow, Malcolm
Stewart, who later worked for Justice Blackmun, and had been an English teacher for six years
when he first came out of college. He was one of the best clerks I ever had. The entire year he
was here, he dealt with nothing but yellow pads. He had a stack of yellow pads; he never touched
-188-
the computer. I’m told he had to use the computer on the Supreme Court. He just had his stack of
yellow pads, and he turned out just as many drafts as anyone else. They were better written,
probably, than the majority of clerk drafts. Maybe he used the computer to check citations or
something, but basically he wrote on these yellow pads. He was terrific. I think you can do quick
cites, you can do the mechanics a lot faster. If you’re a real wizard at it the way Harry Edwards is,
maybe you can change paragraphs around faster and play with new organizations. I’m a bit of a
skeptic.
Mr. Pollak: You’ve noted down some things. I’d next move into, to the extent
there’s anymore to be said, in terms of your, something I call, judicial techniques, but you may
have some directions you want to go.
Judge Wald: Let me mention one other area, which I think is important in the
history of the court. That’s the changes that were made, personnel-wise, on the court over the past
15 years, including the change in philosophical tilt in the ’80s. That’s an important part of the
court’s history.
In the first three or four years I was here, we still had Wright active, Bazelon took senior
status, but he still sat with us. We had a lot of visiting judges coming on the court. A lot of them,
as you would expect, were of the same persuasion, Luther Swygert, Wayne Justice. Our
conservative wing was Wilkey, Robb, Tamm and MacKinnon, and occasionally there were
frictions. Malcolm Wilkey wrote with a strong pen.
The general direction of the court, even in the early Reagan years, when different
arguments were being put to it by the Reagan Justice Department, was still a predominantly ’70s
one. Yet, even then there were differences between the old and the new Carter judges. I
-189-
remember an episode in my first years where I sat on a panel with Wilkey and Dave Bazelon,
whom I knew perhaps more closely than anyone else on the court. It involved a habeas corpus writ
that had been denied by June Green and Dave wanted to make a big deal out of it. I won’t try to
replay the case, it’s too long; but by my way of thinking, she had been okay to deny the writ. Dave
felt there should have been a full-scale hearing, but I disagreed with him. I didn’t think too much
about it at the time. I thought this was a modest disagreement, but apparently he took it really to
heart and there was a period of many months in which he was exceedingly cool to me. I would
know that, maybe someone else wouldn’t, but I would know. My clerks also picked it up
immediately. I didn’t get invited to the Kronheim Warehouse for lunch anymore. Apparently he
absolutely could not understand how I could have left him to dissent alone in this case and side
with Malcolm Wilkey.
Eventually, after about eight or nine months, we were seated together at Bob Bork’s
wedding. I said something like I’m really sorry for this misunderstanding, and after that we fell
into and old friendship for the remainder of his period on the court.
It was kind of a shock to me that he took the disagreement so hard. He felt the same way, I
know, about a case in which Ruth Ginsburg didn’t come along with him. This happened to be one
in which I agreed with him. It involved a dissent in a mental health case about whether a
government psychiatrist’s examination should be recorded. Ruth ended up on the other side, I’m
sure for her own good reasons. Dave had a feeling somehow that we Carter appointees were going
to come on the court and restore the old majority, and sometimes we didn’t. Sometimes we didn’t
fall into that place exactly.
-190-
Starting in ’82 or ’83, we began to get a succession of new appointments. I will say that the
D.C. Circuit has got to have had more turnover than any other court in the country. We had
something like 15 new appointments come in and out since I’ve been on the court. Some of them
were ins and outs, like Bob Bork, Nino Scalia, Ken Starr and Clarence Thomas. And then we had
the gradual retirement of the older wing so that right now there’s nobody left on the court who was
here when I came on. George is taking senior status and he doesn’t sit on our regular cases. Spotts
is still alive, but never comes back to the court, and there’s nobody –
Bob Bork was the first of the Reagan-Bush appointees, and then the year after there was
Nino Scalia and then Ken Starr; in ’85, both Larry Silberman and Jim Buckley, and in ’86 Steve
Williams and Doug Ginsburg, then Dave Sentelle, then Clarence Thomas, then Karen Henderson,
then Ray Randolph. For a period there, there was no year in which there wasn’t at least one or two
new judges. In the meantime, we had the very tragic diminishment of both Skelly Wright and
Dave Bazelon through Alzheimer’s disease. That episode was very sad and eventually they left the
court. Malcolm Wilkey resigned in the mid-80’s and Roger Robb and Ed Tamm died a few years
later.
Mr. Pollak: Do you want to compare or say anything about the comparison of the
Robb, Wilkey judges with the judges that came on in the ’80s?
Judge Wald: To this extent, I think they were very different kinds of people. For one
thing, Tamm and Robb were older men by the time I came. They were already in their ’70s. Each
one had done his own thing. Wilkey and MacKinnon were not alike. They didn’t even agree a lot
of the time. They were not comrades in arms. Roger and George, I think, saw a lot of each other,
but even they weren’t always together. There was a famous case, which went up to the Supreme
-191-
Court involving Agee, the fellow whose passport they lifted for exposing CIA agents. When it came
up here, Roger and I said it was a constitutional violation. MacKinnon wrote an explosive dissent
and Robb wrote the majority opinion upholding Gerry Gesell down below and the ACLU, who
brought the case. One point made by the plaintiffs was, well, Agee had never actually been either
arrested or indicted or charged with any crime. George MacKinnon’s answer was, maybe not, but he
could have, and he attached a draft indictment to his dissent, which is still in the F.2d. So even those
two didn’t always agree. Actually, the Supreme Court upheld George over Roger Robb’s liberal
opinion. So each of these three was pretty much his own person.
The newer generation of conservative judges were much younger people. Bob Bork would
be the oldest, but the others were either in their late forties or early fifties. Ken was only in his late
thirties when he came on the court. Scalia was in his forties, Bob would have been in his late
fifties, and the rest of them down the line were all younger people from a different generation.
Most of them – not all, Sentelle and Henderson were district judges down in North
Carolina and South Carolina – but most of them were executive branch types, who had played
political roles. Jim Buckley, of course, had the double experience of being both in the Senate and
the State Department. Doug Ginsburg was from DOJ and OMB, Larry had a variety of positions in
the Nixon, Ford and Reagan administrations. Ray had been in the SG’s office for a time and went
into private practice. Clarence had been in EEOC. When they came here, most were fresh from the
Reagan or Bush administrations. I think they were much more directed about where they thought
the court ought to go, jurisprudentially, than the older conservatives. They had strong feelings
which were, I won’t use the word “agenda,” but they were certainly consistent and uniform. The
appointments here were paralleled by appointments in lots of other circuits around the country.
-192-
Suddenly, standing became a much stricter doctrine in this court. FOIA cases were much
harder to win, at least that’s what the plaintiffs will tell you. People from Alan Morrison’s group
who do most FOIA work say they tried to stay away from this circuit. All sorts of new nuances on
old doctrines, like ripeness, sovereign immunity, and, of course, this agency discretion thing, which
the Supreme Court gave a great boost to in the Chevron case.
The whole legislative history debate surfaced. If I had to pick out one area where I think
very important battles had been lost, by lost I mean battles that I would have liked to have seen
come out differently, it would be in the standing area. We have had several en banc on standing,
but I think now the steady embroidering of the showing that a plaintiff must make under the
three-pronged standing definition of the Supreme Court about injury-in-fact (which was always
there), but also the newer traceability and the redress ability parts have gone too far. It doesn’t
sound bad if you just talk about it in the abstract, but when you get a case like our Center for Auto
Safety case that we en banced in 1987 and then split four to four, you see hundreds of pages taken
up in several opinions about why the Center for Auto Safety’s members cannot bring a challenge
to the CAFÉ auto emissions standards because they cannot prove that if the CAFÉ standards were
higher, they would definitely be able to get more fuel-efficient cars. In other words, standing has
become sort of a whole sidebar litigation of its own weighing down the court. The Center for
Auto Safety fight was over whether or not the congressional findings in the CAFÉ legislation
were enough to satisfy the so-called traceability and redress ability requirements. There was no
doubt Congress adopted the standards to encourage more efficient use of fuel and some of us saw
no reason that this connection had to be retried in the context of a court challenge about whether
there’s standing.
-193-
That and something called the suitable challenger rule bothered me. The Supreme Court
had for a while a zone of interest test for standing but seemed to have retreated from it. This
circuit then recreated it in a form which is very difficult to surmount, something called the
suitable challenger requirement, which I have dissented from on the ground there’s no such
requirement either in the Supreme Court’s opinions or anywhere else. We have heightened
pleading standards in certain kinds of cases and all sorts of doctrines making access to the courts
more difficult which were not there before.
I think this whole notion of what the courts are for, and how much access there should be
to the courts, is very important. I won’t get into cases, although there are always individual cases
that really get to you at the time. But doctrinally, I feel we’ve gone down a path which some
might say is judicially restrained, but I’m not sure it really is. To create out of the words “case or
controversy” in the Constitution, the elaborate doctrines of standing that we’ve created now under
the redress ability and under the traceability requirements is to me a real exercise in judicial
activism.
Now, let me say just a word about the dynamics on the court. I’d say for a few years in the
mid-080s it was in equipoise. On any en banc you might get six-five or five-four, if someone were
recused. It was Nino Scalia’s theory that in that kind of a situation, you get more petitions for en
banc than when the court has definitely tilted, because the litigants will say, Gee, I don’t know,
that’s a narrowly divided court. I might be lucky enough to get the swing vote, so let’s go. When
a court decisively tilts one way, you’re going to get less litigation.
Mr. Pollak: Has that proved out?
-194-
Judge Wald: It hasn’t been proved out. It’s too hard a factor to isolate unless you did a
real study, and that’s not been done. Our filings have gone up and down, and down and up, over
the years, so it would be difficult to tie it to the changing faces on the court. For several years
now, our civil filings have gone down, while the other circuits went up. Our criminal filings have
gone up to become a much larger proportion of our docket. But our civil and administrative
filings have gone down.
It’s always difficult to tell without somebody really studying it whether the agencies
simply weren’t putting out so much stuff, or people were not challenging what the agencies were
putting out so readily.
There was a period in the mid-080s, when Bork and Scalia and Starr were here, when there
was still a lot of question about where the court stood. Either side could still win. I remember
winning or at least getting en banc on a couple of Nino Scalia’s decisions in the early ’80s because
we still had enough votes which we never had later. I’d say starting about the time that
Silberman, Buckley, followed by Steve Williams and Doug Ginsburg came on, the tilt of the
court changed. After that, we Carterites were in the minority.
By we, I don’t mean the same precise judges in every case. I’ve written a couple en banc
in which Mikva dissented. Ruth and I are often apart. But insofar as you can generalize, we
Carter appointees became the minority. When you’re a minority, and you’re much more
vulnerable to being en banced, I think you begin to write your decisions much more cautiously.
Even when they’re coming out the way you want them to, you do that to keep other judges on
board. Statistically, you’re more likely to have conservatives on your panel. You’re less likely to
have a panel of people with whom you’re entirely in tune.
-195-
The chances nowadays of my being on a panel with two people like Mikva or Edwards is
virtually nil. I’ve maybe had two or three panels a year with one of those. The rest of the time, if
you get a majority, you have to write something that’s acceptable to the majority, and it’s going to
be more cautious than you would choose. You’ll find the bigger generalizations and the more
activist principles and new doctrines announced in the conservatives’ opinions now, not in ours.
They have the support in the full court and we don’t.
Plus, suppose you are on a panel of like minds and you agree on a decision, you have to
write it in the shadow of the en banc because you can be very quickly en banced, and your
opinion wiped out. So what you try to do is write something that’s much more fact-oriented,
that’s not likely to invite an en banc and something that sounds very much more mainstream,
rarely if ever anymore, do you try to announce new principles, at least from our side of the aisle.
So your perspective changes.
I actually don’t write that many more dissents now than before. Over the years, the
number of dissents I’ve written has not changed much. One reason is, you have to pick your
shots. There’s no point in dissenting on everything that you would have liked to come out
differently. If it’s a close call, and you realize that your judgment may be on the other side of the
line from your colleagues, most of the time you let it go. Mostly you reserve a dissent for the
things you feel really strongly about.
Mr. Pollak: So you’d vote with the majority on one of those line cases? Or dissent
without opinion? Do you ever dissent without opinion?
Judge Wald: No. I never dissent without opinion. I concur in the judgment only
sometimes when I don’t particularly like the rationale. The way I’ve worked it out in my mind is
-196-
if I really feel something is wrong, then I feel compelled to dissent, and say why even though it
might only be a paragraph. If it was “iffy” in the beginning, and I went back and forth, but I could
pretty much see the justification on the other side, then chances are I won’t bother.
Mr. Pollak: Would you seek to avoid writing the opinion?
Judge Wald: If I’m not entirely comfortable with it, yes. Everybody gets about the
same number of opinions to write in the course of a year, so you don’t have to feel guilty about
refusing any one. There’s always enough opinions to go round, and since I am senior on most
panels, I can do the assigning. I’ve never gotten myself in the situation of having to write
something I felt really ambivalent about.
There are some opinions I will go along with but I really don’t care to expend my energy
writing them. Then there are the opinions you know are hopeless, but you still feel compelled to
dissent simply because you really do think the law is wrong. Then I do dissent.
Out of the 40 opinions a year I write, there will be at most 8-10 dissents. It’s a little on the
high side for this court, but there are a couple of other people up in that range too. The rest will
write five or six dissents. Over the whole time I’ve been here, I’ve written about 555 opinions and
about 400 of those are for the majority. There’s been just under a 100 dissents.
Mr. Pollak: The tape is probably going to run out. Do you want to put down any
thoughts, if there’s enough tape left, that you have in your mind that we want to be sure to pick up
at another time?
Judge Wald: Here’s what I would suggest for next time. Something about the
chief judgeship, judicial administration, and we’ll talk about some of the cases that stood out.
-197-
Mr. Pollak: Let me express one thing. I’m quite interested in having you state for
history what are the grounds on which you pick cases as significant to you. From your 550.
Judge Wald: I’ll go over them and try and identify the criterion.
Mr. Pollak: I’d like to hear you say something about lawyers from the aspect of
being a judge.
Judge Wald: I will.
Mr. Pollak: I guess my comment about your speaking about lawyers, I’m
interested in your speaking about advocacy, how you see it. I can type up this colloquy that we
have and just send it down to you.
Judge Wald: I honestly believe we could clean it up in one more hour. I think we
can clean it up maybe not today, but in another hour. Then we’ll both be free again.
-198-