Patricia Wald Fifth Interview

October 17, 1994
This is the fifth oral history session with Judge Patricia M. Wald of the U.S. Court of
Appeals for the District of Columbia Circuit. It is taking place on Monday, October 17, 1994,
commencing at 9:30 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. This is anticipated to be the last of these oral history sessions and is
to be devoted to the opinions Judge Wald has rendered as Chief Judge and Judge of the D.C.
Circuit.
Mr. Pollak: Initially, Judge, you’ve written now going on 700 opinions, majority
opinions, concurrences, dissents. I asked you if you would designate a finite number that we
might talk about and you designated nine opinions from these 700. Initially, I ask you what
values or considerations motivated you to pick out these nine?
Judge Wald: Well, it was a difficult job. I started from about 30 and winnowed
down. The basis on which I arrived at the final nine are these: several of them are fairly complex
administrative law decisions. Those are basically the bread and butter of the circuit’s docket. The
ones I picked were illustrative of two things: both the complexity of some cases, and the
technical depth to which judicial review sometimes has to reach in order to deal with the issue.
Those would be Farmers Union, State of Ohio, Armstrong, Sierra Club and Palmer. A few are
in there because they went on to the Supreme Court and involved issues of larger social-political
scope. The whole time I’ve been on the court I’ve only had eight cases that I wrote that actually
were considered on the merits by the Supreme Court. I picked two to discuss here. Those were
two cases in which I dissented down below and was upheld by the Supreme Court, and those are
Finzer and Shurberg. I don’t want to suggest that that was the way all of the rest went. Actually,
I’ve been reversed four times by the Supreme Court, and I’ve been affirmed in two cases. In the
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two I choose to talk about here, which were big issues in national terms, one being affirmative
action and the other being free speech, demonstrating in front of the embassies, I wrote dissents
which were affirmed. As I say, I started out with 30 which were immediately prospects out of the
600 or so. These nine probably could have just as easily been another nine, but somehow, this is
the way it came up.
Mr. Pollak: You have referred to eight cases that went to the Supreme Court on
the merits. Four in which you were reversed, two in which you were affirmed, and then the two
in which dissents of yours then were either adopted or at least the Supreme Court looked the
same way as you had in dissent.
Judge Wald: In one of those, I said under the statute a person who was denied
security clearance in one of the intelligence agencies had a right to a hearing and was joined in
the panel by Judges Silberman and Bork. If ever it would have seemed there was a safe panel on
a security case, that was it, but we were reversed in an opinion by Justice Blackmun, so it was
very interesting. Unexpected things happen.
Mr. Pollak: What was the name of that case?
Judge Wald: It was Doe v. Chaney. They’re all Does, all the security clearance
cases are Doe versus whoever is the Secretary of Defense or whoever happens to be the agency
head. Then one of the other reversals was a five to four, I lost dealing with attorneys’ fees. It was
an offspring of the Sierra Club case dealing with Clean Air Act standards. This was back in the
early ’80s. The statute allowed the court to assess attorneys’ fees. It did not have any “prevailing
party” language in it, unlike most other statutes. It just said “on the basis of the public interest,”
and there had been some tradition of courts, where there was a very closely fought case and
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issues were well developed, of actually awarding attorneys’ fees, on a kind of “helping the court”
basis, to parties who lost. And, in fact, the Department of Justice cooperated in that venture. They
granted fees without contesting them even when the party lost. So, in Sierra Club, the question
came up whether or not, given the complexity of the issues and the enormous amount of time and
effort that had to go into raising them, whether or not the challenging attorneys deserved some
remuneration, not as much as they would get had their side prevailed. As I say, the statute in this
case was unique in that it had no explicit “prevailing party” requirement in it. We granted fees,
again a unanimous panel of myself, Judge Ginsburg, Ruth Ginsburg, and Judge Robb (I think I got
that right), but when it was circulated to the court, Judge Wilkey objected quite fiercely to the
notion. In any event, the Supreme Court took it and reversed me five to four. But the interesting
thing was, as the Washington Post pointed out, if you read their end-of-the-term opinion, you
quickly realized it had originally gone the other way. It was clear that in an earlier version, the
dissent had been the majority because the majority forgot to change some of the references to their
dissenting status in the footnotes. So, at least it was a close case.
I won’t even make an attempt to justify the other two. One of them involved a question on
which the circuits were split almost evenly. I took the side of the circuits that lost. I think among
judges on the court generally, it’s probably about an average record of affirmances and reversals,
if you’ve been here long enough.
Mr. Pollak: I checked. It was Wald, Ginsburg and Robb on the merits, Sierra
Club v. Costle. So probably that same panel was –
Judge Wald: I know Judge Wilkey was involved in it at the end, and whether he
came in at the point where you can ask for en banc and if you’re denied, issue a statement or
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whether he was replacing Judge Robb, by that time, I don’t know, but I know that he wrote
something which ultimately prevailed.
Mr. Pollak: Well, as long as we’re at this juncture of speaking about review in the
Supreme Court, what kind of reactions have you had when a case you’ve decided has gone to the
Court and the Court acts on it. Anything to say about that?
Judge Wald: Reactions inside the court, outside the court, or my own reactions?
[Laughing]
Mr. Pollak: Your own reactions. What’s it like?
Judge Wald: The first time I was reversed, I felt absolutely crushed and I thought
how am I going to go in the next day; people will look at you and say, “Oh my, she was reversed
by the Supreme Court.” I found out, to my pleasant surprise, that nobody said a word to me about
it in this court. And I learned that that is the more. You don’t call up your friend and
commiserate, if it is your friend, on his or her having been reversed. You just kind of keep your
mouth shut and go about your business. Occasionally, if somebody has been affirmed in the
Court, then you say, “Well, I was glad to see you were affirmed, Joe.” But nobody talks about the
reversals and that’s just fine by me. Unless they are very high visibility, they don’t get commented
on much in the press and life goes on. That’s the one thing about being on a court, you are
constantly in the middle of dozens of cases and one of them may go wrong, in your view, and
sometimes it hurts if it’s a very important one, but there are a lot of others still out there. You
don’t have the experience you might have as a lawyer and especially in public interest work of
having your whole life wound up in one or two cases. Of course, most people that are reversed
by the Supreme Court still think they’re right, and who knows?
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The thing that bothers a judge most is if you think you made a mistake. If you think, Gee,
I really read that case wrong, or, Gee, I really didn’t think of that argument, then you feel bad
because you feel vulnerable about your competence. But, it’s different if there’s been a big
argument between the circuits, as in one of the cases I was reversed on, about whether or not you
could immediately appeal a disqualification of a counsel in a civil case, or have to go through the
whole case with another counsel and wait till the end to appeal it. We said the disqualification
was immediately appealable and about four circuits said the same thing. Four or five other
circuits said no, and when it got to the Supremes, they picked the other side. In such a case you
don’t really feel, My whole integrity as a judge has been violated. And as I said, I didn’t really
feel that I could have been so badly wrong on the security classification case if Judges Silberman
and Bork both agreed with me that the statute required a hearing. I think the Supreme Court at
that point was in the process of coming down with a series of cases that were very, very tight on
disclosure of intelligence classification or appealability of any security clearance, except for a tiny
fissure they left open in Doe v. Webster, not my case, but Judge Edwards’ case, for constitutional
violations. It was not possible to make much headway beyond that.
Mr. Pollak: Judge, does this mean that in these eight cases or in other cases where
you’ve been part of the panel, and there’s review in the Supreme Court, that you study the
Supreme Court opinion pretty closely, where you’ve been in the case?
Judge Wald: You read it with great interest. You read it to see what they found to
be so wrong, or in some cases, with delight where they cite you and say you’re right. Sure, you
read it at that level out of interest and to see what adjectives they used. In one of my cases that
was reversed, it went something like, The court of appeals is involved in an conundrum of its
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own making. I didn’t find that particularly helpful, but there have been much meaner ones in
other people’s cases.
Fortunately, I can’t complain about ever having been lambasted by the Court. But some of
my colleagues have. I remember they really went after Skelly Wright in the Vermont Yankee
reversal; they used really strong language of displeasure. [Laughing] So you look at that, and of
course, even in reversal, you look with delight where you’ve evoked a dissent agreeing with you.
Then there are the joyous occasions where you’ve dissented below and been vindicated by the
High Court and where they cite to your dissent. That’s very nice.
We also look at a Supreme Court opinion with great care if it’s going to come back on
remand. If one of our opinions has been reversed or vacated, and there’s something left to be
decided. In other words, if they have remanded the case for further consideration in light of their
opinion, then you study it very carefully. I’ve been involved in three or four, maybe more, such
cases over the years that have gone back and forth, back and forth a couple of times. They go up,
get vacated and remanded, come back down, the same panel sits. Then you really look at the
opinion carefully because you’re supposed to be reconsidering the outcome in light of their
opinion. In the other cases, either you’ve won or you’ve lost, and you look at them with interest,
but it’s historical interest and put them aside. The ones you have to deal with again on remand
you look at very carefully.
Mr. Pollak: I have one other question with respect to the aspect of your court then
being reviewed by a higher court. Do you consider that the crafting of your opinions and the
articulation that you’ve given your decision has been significant or has a significance when the
case goes on to the Supreme Court because of, in front of the Supreme Court, of course, is all the
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briefing and the oral argument, but additionally, there’s the opinion or opinions of the appellate
judges.
Judge Wald: Sometimes the Supreme Court relies on or cites the lower court
opinions, but I’m not overly impressed with the amounts of time that they rely on the reasoning of
the lower court. It does seem as though when a case moves from one court to another, it almost
takes on a life of its own. The very first case in which I was reversed I barely recognized the
question they said they were considering in the Supreme Court. I’m not saying they were wrong,
but in all honesty, the way they posed the question, it seemed to be quite different from what we
thought we were deciding down here.
Now that can be the result of two things: Very often counsel will alter stance when they
go up, they will alter the way they have posited the question, slightly, just enough to result in
possibly a different light on the case, or a different rationale. Sometimes the Court itself will just
take it up and say, “Well, this is the way we look at this case.” I had that happen in a case a
couple years ago, a case called Siegert v. Gilley. I was dissenting down below. It was a case in
which the majority said in a [42 U.S.C. §] 1983 action, you had to have so-called “heightened
pleading,” a doctrine that the Supreme Court still hasn’t passed on, and only a couple of circuits
have picked up, none in as extreme a form as ours. It says that in § 1983 cases, and especially in
cases where the motive of the actor is being challenged on civil rights grounds as discriminatory,
you can’t just have ordinary notice pleading. You have to have this very detailed pleading so that
the government official will know enough to raise the qualified immunity defense and get it out
of the court before the case has to go all the way through the process.
Siegert was a heightened pleading case in which the majority said that a government
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psychologist who complained about what he said was scandalous defamatory material in the
evaluations that were sent by his supervisor at St. E’s to all the other government hospitals where
he was trying to get jobs, had to give specific details about the evaluator’s allegedly bad motives.
I said heightened pleading should not be invoked before the guy had a chance to have some
limited discovery since all the pertinent information was in the hands of the government. Judge
Sporkin had said this as well at the trial level. When it went up to the Supreme Court, the
Supreme Court never got to heightened pleading. Completely on its own, it decided that the
fellow had no initial claim of action at all because a liberty interest wasn’t involved if only
defamation of your character by government was involved and it hadn’t been accompanied by a
so-called change of status, i.e., a firing. It’s a very murky area of the law we’re still dealing with
here. But the Court never got to heightened pleading. In fact, in that case, Justice Marshall
complained bitterly in the dissent that the Court should never have taken on and decided a
question that had not been briefed, and which, when the petitioner’s counsel tried to raise it at oral
argument, was told that’s not the issue. You never know what will happen up there. It’s sort of a
different ball game. Once you lose control of the case in this court, the issues may be posited
differently, the Court may take a different view of the issue; sometimes it stays on track, but new
amici come in, the Solicitor General enters the case rather than the U.S. Attorney or the
government department which may have been arguing below, and it takes on a different color up
there. I’m never surprised at anything.
Mr. Pollak: I suppose that those words might reasonably lie in the mouth of the
federal district judges who watch their opinions come to the court of appeals.
Judge Wald: They don’t lie in their mouths. They come right out of their mouths
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frequently. Some will tell you just what they think the next time they see you at a reception or in
the dining room. They’ll tell you quite frankly that you decided a different case from the one they
did, and in lots of cases, I’m sure they’re right.
Mr. Pollak: Do you want to select one of the administrative law cases.
Judge Wald: Why don’t you just head in?
Mr. Pollak: My initial questions I might pose on this mammoth opinion in Sierra
Club v. Costle, a case in which you wrote the opinion, I think was unanimous except that Judge
Robb mysteriously just said at the end that he concurred in the result. Maybe he couldn’t read it
all.
Judge Wald: I really don’t know the precise reason why he did that. That was just
a few years before he stepped down. Judge Robb was a very courtly old school gentleman, and
he would simply say on many occasions, I concur in the result. It may have been that he
disapproved of writing that much. I’m not altogether sure that with the hindsight of another 14
years on the court I would have written that much now. This was in my second year on the court.
It was an important case. I think there probably was a little bit of self testing there, a desire to
make sure that in a case of that complexity, I did get it right, that I didn’t leave any stone unturned
and that I could cope with that kind of technical material. I think certainly that I went to great
lengths to show that. I think if I were writing it today I probably would write the first part
somewhat more briefly. I think the most important part of the case is definitely the principles that
were laid down for informal rulemaking by way of comments, meetings and other things, and
how much had to be recorded. That area of the law needed some looking at and some direction,
but in terms of reviewing all of the technical evidence –
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One justification for it, though, illustrates the inevitable influences that are brought to bear
on judicial decisionmaking by the outside world no matter how insulated judges are supposed to
be, not on the merits of a case but just on the way you do things. This rulemaking, which
involved EPA Clean Air Act performance standards for utility plants, had gotten a lot of
publicity. Just before oral argument, a huge law review article came out which was subsequently
turned into a book called Clean Air, Dirty Coal, by Hasler and Ackerman, well known
administrative law gurus. They’d worked at the EPA, and it was about this precise issue. They
sent all the judges copies of the article. And they were prominently sitting in the front seats of the
courtroom when it was argued.
The thesis of the book was that all kinds of political influences were brought to bear on
this rulemaking, which is not surprising. It was an important rulemaking that had great
significance upon the use of soft coal. Much of the material in the book was not in the record and
therefore wasn’t eligible to be considered by the court. But the existence of the book and all the
publicity out there about this other behind-the-scenes dimension perhaps intensified the concern
we had that we really examine the record to make sure that the record could uphold the EPA rule
or, if it needed to be reversed. We did not want it to look as though our review was an “over and
out” kind of thing. Public comments had already suggested that the Rule had been influenced by
a meeting between Senators Bobby Byrd and Doug Costle, the EPA Administrator, to minimize
the hurt to the soft coal mining industry in West Virginia. So there was a felt need for much
intensive review, so-called hard look review.
So, to get back to your question, I never asked Judge Robb why he concurred in the
result only. Except for one phrase in a background discussion about nuclear power, he never sent
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any comment saying please change this or please change that or wouldn’t you go easier on this or
go harder on that.
Mr. Pollak: You decided the ex parte contacts issue in the opinion.
Judge Wald: Oh yes. That’s right. That’s why I put the case on the list. It’s still
cited widely as setting down the cardinal principles for what kinds of communications have to go
into the agency record. Ex parte, as we said in the beginning of the opinion, is usually a
pejorative term, so it attempted to set down guidelines for what kind of informal contacts could
be made in the rulemaking area and under what circumstances they had to be recorded.
This was important at this juncture because we had some tight no ex parte comment law
on the books. Home Box Office was one such case written by Skelly Wright, and there were one
or two other ones after that. There was an argument made that any informal comments to agency
personnel about a rulemaking were off-limits, and that area of the law was certainly not yet clear,
whether the “you can’t talk to anybody outside of the proceeding” standard which still applies in
adjudicatory rulemaking, whether or not that was applicable to informal rulemaking. We had a
variety of different kinds of off-record contacts involved in Sierra Club. There were meetings
with the President himself, briefing meetings with the President and his immediate staff, meetings
with Senators like Byrd, who had a strong economic interest in the outcome of the rulemaking.
There were problems of so-called conduit channels, industry using a person in the administration,
as an internal conduit for their comments. And there were comments filed after the comment
period was over. There was just a variety of informal communications to be catalogued. It was
sort of a big, untidy proceeding. Sierra provided the opportunity to go through the different
categories as well as to give an overall thrust to what was okay and what was not. I think we got
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the correct thrust, although some purists might still object. That was that the White House in any
administration does have an interest in constituent agency rulemakings, and as long as they
communicate that interest according to prescribed rules, then there is nothing wrong with them
doing so, and it is to be expected that they will attempt to bring some order and some coherent,
some consistency out of the many varied rulemakings going on simultaneously in various
agencies.
I understand even now that still is somewhat controversial. There are many people who
would suggest that when Congress says to the EPA you make a rule in this area the final say-so
should stop at the EPA Administrator, with no OMB power to review or complain. I don’t think
that’s the right viewpoint. I don’t necessarily agree with all of the kinds of things that went on in
the ’80s, vis-á-vis White House communications on rulemakings in the era of the Council on
Competitiveness. I think the general notion that the central administration has to be apprised of
the rulemakings that are going on and at least have the ability to participate in the discussions is
the right one. That was an overall theme in Sierra Club and I think one elaborated at greater
length than it had been up to that time and has come to be more or less accepted.
Mr. Pollak: I thought it was extremely interesting to read the court addressing the
meeting with the President which took place after the record closed. Obviously, the President’s
views had some influence on the agency, but personally I agree with the court that the President
couldn’t be excluded from the process.
Judge Wald: I think that in 1981 when I wrote that, I was only a year and a half
out of government myself. Two people I know have subsequently said to me, Were you at all
influenced by the fact you had just come out the Carter administration? When this was written,
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the Carter administration had been replaced, of course, by the Reagan administration, and I was in
Justice, not in the regulatory agency. We had a lot of banging-heads-together meetings over at
the White House where agencies were intent on doing something at odds with the administration
or with some other agency and where Stu Eisenstat or one of the deputies would take everybody
into the meeting and you were supposed to come out with it settled one way or the other. And I
learned the necessity for their involvement to get such disputes settled. Sure, it was something I
suppose I carried away from the administration, but I also carried away, and tried to put in the
Sierra Club, the notion that there had to be some holds on that, some control, some disclosure,
some notion that it couldn’t all be done in the dark. I was pretty intent to nourish that idea.
Mr. Pollak: This opinion, I thought the record ought to reflect, runs from 298 in the
Federal Reporter to 410 before appendices, and there are 24 appendices. In any event, West saw fit
to give it 109 headnotes. It’s a mammoth opinion. I thought it might be an occasion besides talking
about it as representative of addressing complex administrative law issues, of talking about running
your own time and your own office. What kind of hours did you put in? How did you array your
clerks, if you did, to help? You must have had mammoth briefing – You were sent a book in connection
with it. How did you process all of this to come out with the opinion, which incidentally,
as you know, has a three-page table of contents at the front. Essentially, you wrote a book.
Judge Wald: Well, actually, it evolved. If you note, the case was argued in
September. It got done in eight months, but I didn’t initially plan to spend eight months on it.
What happened was, this was my second year on the court, and after we prepared for the
argument and I’d been assigned the case by Judge Robb –
Mr. Pollak: Pardon me, but was it a long argument? Did you allow extra time for
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the argument?
Judge Wald: My guess is probably 25 minutes or a half hour a side, or something
like that. We didn’t have a complex track at that time.
I was assigned the opinion by Judge Robb. I think he probably didn’t want to write it
himself, and this was the very first sitting of Judge Ginsburg because she came on a year after me.
He very charitably, I think, did not want to push this on her as her first case.
I started out treating it like almost any other case. In fact, I asked a clerk based on our
discussions and the arguments to kind of outline the first draft, which is my usual procedure. He
did. He did an adequate job and then I took that home. I remember it was about a month after
the argument and I realized as I went through the draft outline, it just didn’t work, it just didn’t
work. This is a complicated case and even the technical issues were related to each other so
much. Then I had another clerk who was really a very, very bright young man out of Columbia
Law School who is now the Counsel for the University of Minnesota, and he got very interested,
even though the case had not been assigned to him, in the ex parte issue. He had done a lot of
work on separation of powers. He was writing a thesis for a doctorate in legal history, and so
that part of the opinion began to take on bigger proportions, and he offered, he volunteered to
work on that portion because the other clerk was really inundated on the technical stuff and I had
to move on to other sittings. I realized, however, on reading the clerk’s outline that I just wasn’t
confident that I had fully grasped the significance and interplay of the technical material, so I
started to write it from scratch myself – sort of taking it issue by issue. I did an awful lot of
ground work, technical ground work myself. In fact, I wrote the majority of the technical issues.
The first clerk still worked on that part with me, and the second clerk was very very helpful in
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getting the stuff going on the ex parte limits of rulemaking. He did a really good job in organizing
that. We just kept going at it, little by little, going over it and over it, and as I say, it didn’t
finally merge until eight months later. It may be the longest period I’ve ever had a case not
decided or under submission, at least where you’re not waiting for a Supreme Court decision or
something else from the outside. It became important to really get down into the bowels of each
issue in order to be able to move on to the next phase.
That’s the kind of case where you had to do one of two things: you either had to do a “this
is a big case and the agency decision doesn’t seem unreasonable on the face – over and out.” I
think Judge Robb might have preferred to do it that way, but I’m only guessing. Or you had to
really get down there and show that each little piece fitted into the next piece like a series of
Russian dolls or an obstacle course you had to go through. You couldn’t skip one and get to the
next. And that’s the course I ultimately chose. But it took a long time.
I suppose at the end the important thing, since that same issue was not going to arise in
subsequent proceedings, was, as I said, to show that we had really looked at the record, and
despite the stuff that was going on outside it had not been decided by the agency solely on
political grounds. Now nobody ever knows what really makes somebody else decide one way,
but our job was to see that the record was sufficient to support the decision.
There were also some things in the course of the technical analysis which proved to have
some precedential effect. It was one of the first discussions of simulated models which EPA has
relied on a lot in rulemakings. We discussed how you reviewed the adequacy of a model where a
rulemaking was based upon the results of the model. What were the review criteria for the
model? It’s been elaborated on and refined, but a lot of that hadn’t been formulated before.
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We just sort of did it. I didn’t give the main clerk on the opinion as much work as the
other two during the rest of the year. That 1meant the other clerks had more work to do. Every
year or so there’s a big case that sort of hangs over your head and you have to keep working it in
between all your regular work.
Mr. Pollak: Do you recall that there are some 500 often immense footnotes in the
opinion as well? The technical expertise that you and your clerks had to assemble to do this
really raises its own questions.
Judge Wald: Some of that work is done for you in the sense that a lot of the basic
material is in the statement of rule and purpose, or the rule itself. I don’t remember how long that
was now, but it was quite long. In some instances, we went one step beyond that to examine in
detail the materials the agency relied on for certain things, but in most instances, that material was
at least organized for us to review. The question was whether it made sense, but we didn’t have to
go out and find it.
Mr. Pollak: I don’t know whether this is an oral history item, and it’s hardly a
question, but at page 360 you were addressing the utilities challenging a particular rationale of the
EPA for the 90 percent standard, and you concluded or posed the issue for yourself saying, EPA
has plotted a reasonable course through the evidentiary thicket and stated a logical rationale for
the route it chose. I thought that that was really stylish and wonder when one is writing a long
opinion, how you move from what must be a tremendously mundane recounting of this, that, the
other thing, to something that has a ring to it.
Judge Wald: I waited until the whole thing was done and then I just went to my
typewriter and wrote the conclusion. It’s a situation where you know you have something to say
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and you just sit down and write it and mostly just tinker with it afterwards. The line you
mentioned is in the conclusion. You get the hard stuff done, and then you go back and read it and
that’s when you’re likely to introduce a phrase, a word, or a sentence or a transition, hopefully a
stylish one. That’s when you do the style and editing work. Once you know, once you feel in
command of the substance –
Mr. Pollak: I think I have two more questions, although one could ask many about
an opinion that has so much in it and is so big in its quality, in review of administrative
rulemaking. At 389, in a footnote, you say, in addition to reviewing EDF’s main procedural
challenge to the emission ceiling, we must also dispose of two pending motions involved in that
challenge, EDF’s motion to supplement the record, EDF’s motion for leave to obtain discovery,
and I thought it was possibly useful to ask what leads something like that to be cast in a multipage
lengthy footnote of decisionmaking by the court and also something about the relation
between motion practice in your court and whole merits considerations.
Judge Wald: Although motions usually come to a special panel, if you have a very
complicated case and the motion is not a threshold motion, like standing or ripeness, the tendency
of a special panel is to push it on over to the merits panel. The merits panel deals with it in the
context of the whole case.
One reason that a motion to supplement the record would probably be taken care of in the
main opinion is that very often a person challenging a rule will say, Okay, what’s in the
rulemaking record is up to the agency in large part. The agency decides what to put in the
rulemaking record except possibly for outside comments on the rulemaking, but they’ll also say,
They left out an important document, they didn’t put ‘X’ into the rulemaking record, so therefore,
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you, the court, don’t have X, Y or Z in the rulemaking record. If you had that in, you’d see that
their decision was arbitrary or capricious or not reasonable. So they’ll make a motion to
supplement the record with X, and sometimes they have to get X through FOIA, the Freedom of
Information Act. So the question arises of whether or not that document was so important it
should have been in the record. The presumption usually is the agency was in control of the
record and you have to make a strong case to get an outside document in, but occasionally an
important document somehow isn’t in there. So that’s why motions to supplement the record and
that sort of thing would be likely to be taken up by the main panel rather than an outside panel
that can’t possibly get that deep into the case to see if the material is really that essential.
Mr. Pollak: I had asked why it is you dealt with it in the footnote, but I guess that
with a great, long opinion –
Judge Wald: The chances are it wasn’t considered a critical part of the decision by
the panel. If it was considered critical, then we would have put it into the text. It was probably
considered housekeeping. You usually try to clear up all the incidental motions in footnotes and
get them out of the way of the main thrust of the text.
Mr. Pollak: The other question I wanted to ask which I think you might like to say
something about is that here there really were a number of significant issues to the law respecting
review of administrative informal rulemaking, and as I hear you, after the argument, the case is
assigned to you and there is really a long, creative period that generates the opinion. I would like
you to address the question of how the panel really gets back into that kind of decisionmaking,
and if you want we can mark this down and you can put it into a 30-year hold.
Judge Wald: I’m comfortable addressing that question. The fact is that in most
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cases there is unanimity at the conference which is held immediately after the argument. The
panel agrees on the result and the judges might discuss one or two issues in there, but conferences
are typically pretty brief. The panel doesn’t get back into it until they see a draft opinion, which is
circulated weeks or even months later.
In this case, it was many months later. In a more typical case, it will be probably be
between a month and a half, or two months later, so for one thing their memories will be fresher.
But again a panel member will read over the opinion, if it seems reasonable, if his or her memory
is that they were reasonably satisfied with this result back then and this rationale sounds
reasonable, then they’re not likely to get into it very much further other than possibly making
some fine tuning comments.
Then again, you may have a case where one of the members from the panel was hesitant
and unsure from the start, sort of, well, I’ll go along with that; let me see what it’s like when you
write it. That happens sometimes. Then, when the draft is circulated, that judge is likely to
assign a clerk to look into it, and talk about it and give it much more probing thought to see if he
or she is really convinced or wants some kind of rationale changed. In such cases, it’s likely to be
a much more interactive process.
The third example is where someone has initially said they’re going to dissent, so that
person really looks very carefully at the opinion and prepares a dissent, circulates that. Then the
majority generally looks at the dissent and tries to see whether or not it wants to change parts of
the majority, usually it does. Not always. So there’s an interactive process then, too. On a rare
occasion, a person who initially agreed to go along with the majority will be convinced by the
dissent. Not too often. It has happened only a few times in my experience. So there are different
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levels of involvement, but I think there is also the recognition in a court – If I could describe the
whole court process, it’s like a river. It’s constantly flowing along and if you don’t grab onto the
fish when you first see it, it’s going to be harder to catch it downstream; not impossible, but
harder to catch downstream.
At the point you sign off on a case in conference, you certainly are not estopped in any
way. We do have very strong exchanges in memoranda back and forth, but unless your doubts
have surfaced at that early point, or unless the opinion contains something which is immediately
recognizable to a fellow judge as something he doesn’t want to be associated with, then it’s likely
that the writer of the opinion will take 80 percent to 90 percent of the laboring oar on the case.
Mr. Pollak: I note that in the Finzer v. Barry opinion, obviously the majority and
the dissent drafts were circulated and then deeply commented on in the opinion.
Judge Wald: Seven, eight, nine, ten of those drafts went back and forth in Finzer.
Judge Bork liked a good argument and he was not one to concede readily either, nor am I. So we
had a go round on those exchanges which, if I recall, lasted a couple of months. In other words,
between the time that I first sent on the dissent to the majority, we went back and forth for a
couple of months.
Mr. Pollak: The last question that I think comes off your comment that the Costle
v. Sierra Club opinion was one of your early ones, is to ask you what happens to a judge’s
decisionmaking and opinion writing over the time on the bench? Do you become ever better and
better at it because you have more experience? Do you have more energy earlier? What’s the life
span experience of doing this job?
Judge Wald: I can only talk about myself. In terms of experience, it’s more like
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the old story about the blindfolded dart thrower. You know you can keep throwing darts forever
blindfolded and you don’t really get any better at it because you don’t have any feedback on your
accuracy in hitting the target. We get such little feedback, unless the case is notorious or involves
some hugely controversial issue so that all the editorial writers take up on it and that’s probably
not the right kind of feedback anyway.
Mr. Pollak: What about the law reviews?
Judge Wald: No comment until two years later. The law reviews are terribly
slow. That’s the nature of the beast, but it does take away a lot of the efficacy of their critiquing
or commenting on a particular decision. You pick up one today and you might read with some
mild interest about a case that you wrote two or two and a half years ago, but either you don’t read
it at all, which I confess lots of times I don’t bother to do if the case isn’t terribly important, or you
don’t read it with the same kind of intense interest or familiarity as if it had been a little more
recent. It’s history.
As I watch a new generation of judges come on our court now and I see the enormous
enthusiasm they have for every single case, I have to admit that level of exhilaration dulls a little
bit with time. You become more selective as it goes along in the cases in which you throw
yourself body and soul. At least I find that’s true with me. I don’t work any less hours, but I use
my time differently. I remember talking with Judge Bazelon in his later years before I went on
the court and he said that there were some cases that were really the vehicle cases, those were the
cases he threw himself body and soul into, but he said the rest didn’t need that degree of
commitment. I would not have believed that during my first five or six years on the court. I
would have believed that each one was an intellectual exercise in which you should absorb
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yourself totally. I don’t think I give any less attention to the cases now, but I think the kind of
emotional reaction that I have is a little bit more distanced.
For one thing, you encounter the same issues many, many times. At least as to some of
your colleagues, you know pretty well what their reactions are going to be too, so you can quickly
evaluate your chances of convincing or persuading, and so you begin to kind of categorize certain
kinds of cases. I hope, I think I do, stay alert enough to know when a case doesn’t fit in a mold
and requires some new thought, but you also recognize the molds after awhile.
There isn’t the same tendency to want to reinvent the wheel so that each time you
encounter an issue you think you have to go back to day one, to the beginning of the whole
problem in ancient common law and bring it up to date. There is a feeling that the last case that
you wrote two years ago did that so you can pick up from there and move on. I suppose, perhaps
by osmosis, there’s more of a sense of what a court can do, try to do, proper for it to do. That is
the sort of thing which you can read a hundred articles on judicial restraint about when you’re a
new judge and it really doesn’t come home. You see a case and you want it to be yours and you
want to do everything you should on that. I think it’s only after a while that you maybe realize
you can’t, there’s problems you can’t solve on the court. You don’t take the ones that you lose so
much to heart. You can’t, you’d kill yourself. [Laugh] You’d bleed to death. So after a while,
when you lose the ones, even the ones you care very much about, and I’ve lost a lot of those, God
knows, there’s an ability to distance yourself, you can say, “Okay, I gave it my best shot.”
There’s was one recent set of cases, called Ayuda I, II, III, IV and V, all of which I sat on.
God knows I couldn’t begin to have invested the amount of time and effort that Stanley Sporkin
did in the district court where he had masters and a class of 4,000 undocumented aliens. These
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cases went up to the Supreme Court twice. They didn’t use our case, they held it in abeyance and
then decided a similar type case on the West Coast in each case, but then they vacated and
remanded our case as well and each time it came back and each time I dissented from the panel.
So I’ve literally written five Ayuda opinions. The end result of which was not one alien got any
relief from any part of this litigation, though many did get help from an earlier part which was not
appealed. When you think back of the thousands and thousands of hours invested in that
litigation, and as a younger judge I think maybe I would have felt even a little more strongly than
I do now – I’m not sure how to finish that sentence except I think I’m at the stage now where I
can take it with a bit more equanimity. At least I have 15 years of judging to look back on. There
was a lot of effort that went into that. I still think we were right, but, “que sera, sera.” I’m not
sure if I were in my second year of judging I would have had that kind of fortification. Some of
them are hard cases, but I think time has a way of putting things into perspective, allows a little
bit of distancing, and maybe, I say this with some experience born of suffering, there is an ability
over the years to be perhaps more charitable toward the opposing point of view.
Mr. Pollak: Does it give you strength or solace that you’re a player in a
constitutional system in which differing views are all the time fighting and clashing?
Judge Wald: Sure. I know all the intellectual justifications for the process. I
believe in them. I’ve written with bona fideness about the function of dissenting, that even if you
don’t win the case or the point, you perhaps temper the majority’s opinion, you perhaps leave
some legacy out there for the next case to think about. I believe all that, but I will say that it still
hurts when you lose the big ones, and I still do have the emotional capacity to feel bad, mad,
whatever it is, but perhaps I’m more selective about how long I grieve.
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Mr. Pollak: I have to say the discussion spurred by Sierra Club fascinated me.
We have three other administrative law opinions that you selected, Farmworkers Justice Fund,
Farmers Union Central Exchange, and Armstrong. The order of the decisions, Armstrong is
1993, the Farmers Union is 1984, and Farmworkers is 1987.
Judge Wald: Why don’t we go chronologically? Let me suggest a way in the
interest of time here. Let me make a short statement as to each of the three cases, why I think
they were important and what I thought I was doing. And then you can pick up on your questions
and that way we may cover more.
Farmers Union concerns deregulation in 1984 and one of the reasons I selected it was that
one of the interesting problems in administrative law which courts wrestled with during the first
half decade of the ’80s was how we reviewed an agency’s refusal to regulate or its lowering of
regulation, as opposed to what we were much more used to doing in the 070s, when you had an
escalation of regulation.
Farmers Union was a very bold, and I mean bold in the sense of departure from the
existing status quo, attempt to deregulate oil pipeline prices. They had operated for however
long, since pipelines were regulated, under a so-called just and reasonable kind of rate making
mandate. Now, without changing the statute, the agency, the FERC, decided that what they
would do was to pretty much throw it open completely to the market, what the market would
bear, but they still had to operate within the statute. They said that they would define just and
reasonable as allowing the agency merely to set a cap on what they called egregious price
exploitation or unconscionable gouging. So instead of evaluating prices or rates in the traditional
case-by-case basis, they would set these sort of caps on what they thought would be just totally
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beyond toleration – gouging, unconscionable high prices, and anything underneath that was okay.
They also did a few subsidiary things. They revised their traditional standard for the rate of return
to allow ceilings which they didn’t expect the companies to even approach. Generally, that was
the route they decided to go, and as I say, it was a fairly bold departure.
One interesting thing about it was they themselves, the FERC, wrote what they described
as the “longest and most elaborate decision in the history of the agency.” Those were their words,
and it was hundreds and hundreds and hundreds of pages. Many years later, I met some FERC
regulator at some conference, long after this was history and he laughed and said we really
thought we were going to drown you folks in paper on this one. He said he had done a great deal
of the drafting on the FERC opinion, holed up for months, told to produce a long, very long,
elaborate decision.
We overturned the regulation, and the rationale was an attempt to historically trace what
just and reasonable meant. But reduced to its essence, we said that just and reasonable, that
standard, and its whole history up to that date, suggested that the agency had to have some
standards, it certainly could have looser rather than tighter guidelines, but it had to have some
guidelines on what was just and reasonable price, what was a zone of reasonableness. It could
not simply set a cap on what was price gouging and say anything you want underneath that is
okay. If that’s the route Congress wanted to take, to throw it completely up to the market, then
Congress would have to indicate that; the agency couldn’t do that on its own. It was, I think,
important in the sense that it was one of the first couple of major deregulation cases that we got.
We also had to get involved in the problem about what you do when a statute that was passed in
one era, is being interpreted in a new era where the regulatory philosophy is very different, where
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the politics are very different, and where the economics of the market are very different. How far
can the agency go in adapting an old statute to all of these new developments before having to go
back to Congress and say, hey, we need legislative change, this just goes too far. And this was
one of those cases. Judge Edwards wrote another about the Labor Department regulation of home
work. This pair of cases set some limits on what an agency could do in terms of rising above its
statute.
An interesting postnote to Farmers Union was that Bill Baxter, the “market oriented”
head of the Antitrust Division in the early years of the Reagan administration, again, long after
the case was over, said he thought the case had been rightly decided.
Mr. Pollak: You concluded that the FERC’s action had contravened its statutory
responsibilities, or the Act, in the area that you’ve been discussing, the just and reasonable
standard, then you went on to decide that the decision lacked a reasoned basis, and I was led to
ask was there action on remand that required you to deal with both?
Judge Wald: I don’t think so. It’s hard to go back now. I might be wrong, but I
think this came down before Chevron, it was 1984, and I think the kind of framework in which
we reviewed a rulemaking, under Chevron I, Chevron II analysis, was not as precisely delineated
as it was after Chevron. I think if I had to put a Chevron I, Chevron II, framework around this,
one would have had to say that construing “just and reasonable” was not a Chevron I preciselydefined
case so that we would have been thrown into Chevron II – “was this a reasonable
interpretation,” which the statutory discussion in the case would have covered. I think it would
have come out the same way.
Mr. Pollak: Judge Starr was a participant in the panel and joined in the opinion,
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and he had come out of the Reagan administration and the deregulation drive of the Office of
Management and Budget. Do you have any recollections as to the dates or …
Judge Wald: I don’t remember his having any serious problems with the opinion
or the case. Also at this time Scalia and Bork were on the court too. And none of those asked for
rehearing en banc. I think the general feeling was a little bit like Baxter’s comment, “They went
too far this time.” I have great respect for Ken Starr. I didn’t always agree with him, but I had
great respect for his integrity as a judge and it would have been perfectly in keeping with him to
have said, “You know, I’m in favor of deregulation as a policy and to the extent an agency can
implement that policy within the confines of its statute, that’s fine, but you can’t go outside that.”
He was a big separation-of-powers man.
Mr. Pollak: I was going to ask this question. I think you’ve answered it. Wasn’t
this a tension here between the conservative’s goal of deregulation and the conservative’s
commitment to follow the will of Congress? The courts should follow the will of Congress?
Judge Wald: What’s interesting is that on this case I think I would have
anticipated perhaps more flack than I got. I can’t remember now whether they went for a cert. or
not. They certainly didn’t get it, but I don’t even remember –
I don’t think we have to dwell on Farmworkers too long. Let me tell you why I put it in
there. Farmworkers dealt with the Secretary of Labor’s refusal over a 14-year period to put out
toilet and drinking water standards for agricultural field workers. What was interesting was
when we got the case in 1987, the litigation had been going for years and years and years, it had
been one of these things where they’d settle earlier litigation and say we’ll put out standards and
there’d be a delay, and these rules had been in the making for 14 years. During Secretary of
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Labor Brock’s confirmation, I think questions had been raised even after 12 years as to whether or
not they really needed such rules, and he had said something to the effect of, “Well this is a low
priority for the department,” and some other things are much more important for OSHA, like
asbestos. It was just not one they seemed ever to get around to.
Soon after he became Secretary, however, he put out a statement distancing himself from
the notion that there didn’t need to be any standards. In fact, the Labor Department had
consistently said we know there have to be field sanitation standards, but they wanted the states to
do it. So Brock said we know there have to be standards, but we’re going to have a two-year
delay period to let the states do it.
Now we were near the end of the two-year period by the time the case came to us, so you
might say why didn’t we just wait it out. The majority (Judge Hubert Will was visiting from
Chicago, in my opinion a fine and, still, feisty judge) thought there was enough of a principle
there that it ought to be established that the OSHA statute, did not permit, once the Secretary had
determined that standards were necessary, delaying them until the states got around to doing it.
OSHA did have a specific provision which dealt with the relationship, the so-called federalism
relationship, between state and federal standards. If the state was going to do a standard which
would be as good as the federal standard, there was a procedure for it to get in there and tell the
department. The department might say, okay, you can use your state standard instead of the
federal standards, but not “Let’s wait a couple years and see if the states are going to do it.”
The problem was if we just sort of let it lay there – it looked as though the states were not
going to do it and the two-year period was going to end – that technique might well have been
used again, and we didn’t think it was legal. As it was, we got the case down, Judge
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Williams dissenting. They went for rehearing en banc and before that process could be finished,
the two-year period ran out and the Secretary brought down the standard. How much the decision
influenced them in bringing down the standard, that’s one of the things you don’t know.
There was a legal question that was interesting, that Judge Williams dealt with. This was
right after the Heckler v. Chaney opinion, which dealt with the question of whether courts could
review an agency’s refusal to enforce because that was something which was peculiarly within its
resource allocation power. We did not think that this case posed a Chaney/Heckler problem, but
Judge Williams did, and so there was a long discussion in his dissent about that.
Mr. Pollak: Right, the non-action issue. There was some question in my mind as
to whether the decision of the majority was truly consistent with the philosophy of Heckler v.
Chaney!
Judge Wald: Certainly a fair question.
Mr. Pollak: Well, I don’t mean that was where I came out. It was just a question I
was going to ask. At least that was a significant issue on which the majority and the dissent
differed.
Judge Wald: Heckler v. Chaney took up a lot of our time for several years in the
mid-eighties. There is always a period after a Supreme Court case comes down based on its own
facts, different situations, but with a lot of language in there that might apply to others. It is the
function of the lower courts to start figuring out where the edges are on the case and how it
applies to a lot of situations not clearly encompassed within the original decision. That’s part of
our case-by-case method of making law. We had 10-11-12 Chaney v. Heckler cases in those
early years. Afterwards, God knows how many Chevron I and II cases, working out in practice
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where the case applied, what its limits were.
Chaney was very difficult. Chaney was almost counter intuitive to some judges. The
notion that the agency’s decision was not reviewable when it refused to enforce something. You
understood it in the strictly prosecutorial sense but there were so many other areas that you
couldn’t immediately analogize to prosecutorial discretion: such as where there was a mandate to
do something, and the agency didn’t do it or when the agency made a determination which under
the statute required them to go on to the next step and either do regulations or something else and
then they would stop at the first step, as in this case, make the determination the standards were
needed, but not go the second step. This was an even harder problem then, a situation where they
might have just said, We’re not even going to get to that problem.
There was so much old case law to put in perspective or overrule as to agency inactions.
Many of the Bazelon-Leventhal type decisions in the 070s would never have survived Chaney,
where, for instance, they told agencies to regulate pesticides when the agencies hadn’t done it. So
there was a lot of sorting out.
Mr. Pollak: There was something of general applicability that interested me, or at
least I think general applicability, Judge Will found your opinion excellent and said so, and he
had an additional ground, and I wondered what the dynamics are that didn’t lead to your inclusion
of that ground in your opinion? Did you consider it unsound? Was it a timing matter maybe?
Judge Wald: No, no, no. I am trying to remember. I like Judge Will particularly.
We had only one sitting together and he was with me on this case; and we had a housing
demolition case which he was ahead of me on. A visiting judge comes and then goes. You could
call him on the phone, I suppose, but usually you write your opinion and it goes out to him and
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then if he decides to say something separately he sends back a concurrence.
Mr. Pollak: You were off to something else?
Judge Wald: I was sparring with Judge Williams on the dissent, which I
considered a more immediate problem than absorbing Judge Will’s concurrence, so my guess is it
was one of those things … also there was a time constraint on this one. We wanted to get it out.
Mr. Pollak: Do you think it will change with faxes? This was 1987?
Judge Wald: It could. But I was interested in getting this all lined up here,
answering the dissent.
Sometimes another judge who is nice enough to concur with you in the main has some
point that he wants to make which wouldn’t be at all inconsistent with your opinion, but would
take time to incorporate. Sometimes you’d rather they just went ahead, they can say it in their
own words, you don’t have to negotiate the style or the forcefulness. I still do that, many times
we think, Well, terrific, go ahead and make your extra point.
Mr. Pollak: Next, in order of time is Palmer v. Schultz, the discrimination against
female foreign service officers.
Judge Wald: Schultz I put in there because it was certainly the most in depth look
I ever took at statistics which is not my native habitat. This one, again –
Mr. Pollak: Amazing, this was the Bell Curve. How did you absorb all this? It
was so technical.
Judge Wald: This time I was fortunate. I had a very, very fine clerk who also
went on and clerked for Justice Blackman and now teaches law in the Midwest. He was not a
statistician even, but he was a digger. He dug into the statistical underpinnings for this disparate
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impact challenge to the way in which women foreign service officers were assigned to the various
cones, which are the name they use for tracks. There’s a consulate cone and a political cone and
economic cone and maybe another cone or two. There were a lot more women in one cone and a
lot more men in the other cone, and the evidence showed that clearly the upward mobility came
in certain cones, the political and economic cone; the consular cone where you do visas and that
sort of thing, was where the women were disproportionately put, and that didn’t have great
upward mobility.
Mr. Pollak: You could understand it all because the consular cone was sort of like
estates and trusts for women in law practice?
Judge Wald: The plaintiffs’ whole case had been thrown out in the district court
for not having made a prima facie case. They did have some statistical analysis down there, but it
was a relatively unsophisticated kind. The lower court didn’t deal with the statistical impact at all
and actually the evidence was there in the record but the presentation of it was not particularly
clear or compelling. Let me just say we had to do most of the work ourselves on this one. I mean
we could do it, the question had not been waived, but we really had to do it. The big question for
us was what did the statistics mean, was the statistical presentation that had been made sufficient
to raise an inference of discrimination from the numerical disparity of men and women in the
different cones? There was no dispute about the disparity, but was the disparity of a type and
kind that was legitimate in the prevailing state of the art in statistics to raise an inference of
discrimination? Whenever you have statistical disparity, one it can be chance, two it could be
bias and, three, it could be other nondiscriminatory causes. We got out Baldus & Cole who wrote
that employment discrimination book and a couple of other basic statistical texts. Then we
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had to look at what little judicial talk there had been on analysis of statistically-based cases.
There was one case written by Skelly Wright on this circuit, and there was one or two very
cursory treatments of statistical evidence in the Supreme Court’s Hazelwood case. They gave us a
couple benchmarks, but not very much more. Depending on whether you used the 1 or 2 tail test,
the evidence here would have fallen inside or outside of what was the accepted statistical
disparity significance point. We really got into this 1 and 2 tail test business and I will admit my
law clerk did an awful lot of the initial casting about for our statistical moorings. He was a
treasure. He was really consumed with it and drawing his own little bell curves, and I’m not
saying we got it perfectly right. I had one or two letters from people saying, Well you got it
mainly right, but this little point is off or that little point is off. But I think I didn’t make any bad
mistakes on it.
The case had to be remanded. Actually, it went through a series of subsequent stages, a
couple of which I got, but basically settled out in the end. The interesting thing was by doing this
kind of really picayune statistical analysis, we kept the case alive and even brought along Judge
Bork on the issue.
Mr. Pollak: I was interested that it was a unanimous opinion on numbers.
Judge Wald: Bork’s initial reaction, if I recall, was to go along with the district
court, which wasn’t a bad reaction if you looked at the explanation in the record there. This was
one of those cases where you really had to do a lot of work with analyzing and re-analyzing and
reworking what was in the record to come to the right conclusion, which was that statistical
evidence of disparity which fell within a certain range, could give rise to an inference of
discrimination, especially if supplemented with anecdotal evidence. The exercise effectively
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resurrected a dead case. The case was dead.
Palmer v. Shultz is also an instance of something that is troublesome in litigation. I don’t
have any easy answers. Palmer v. Shultz had been brought in 1976. By the time we got the first
appeal, which we just sent back to say, Yes, there’s a case for development here; You can survive
a summary judgment motion, it was 1987, which is 11 years later. We had three or four
subsequent pieces of the case which came up, although in the main it settled out. I think I did a
subsequent Palmer v. Shultz opinion on just a little piece of the case a year or two ago. We do
have this phenomenon of cases that drag on like this one for 14 or 15 years. We talked about
Farmworkers, which was in some form of litigation for 14 years. Sometimes when you are
assigned a case which has been up and down a few times, you remember it as having been one of
the first cases you ever worked on over a decade ago. I don’t know what the answer to that is, but
it is frustrating. It gives rise, I suppose, to some of the criticisms people have about lawyers.
Mr. Pollak: Charles Dickens’ Bleak House syndrome. I had a question in and
around page 104, the court remanded for district court determination, rather than ruling that the
disparity in promotion of women from rank 5 to rank 4 was the result of discrimination. I don’t
know whether you can respond to that this far away from it, but I was interested in the decision to
remand rather than decide.
Judge Wald: Again, I’m talking without having gone back too deeply into the
record. I think that we saw it as our function to say that the evidence was sufficient to raise an
inference of discrimination. The statistical evidence, almost like a prima facie case of the
McDonnell-Douglas genre, only raises an inference of discrimination; there was other anecdotal
evidence in the case, and it was up to the trial judge to decide where the preponderance lay. For
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instance, the Foreign Service might well have been able to show that the entrance examination on
which core assignments were largely based was a justifiable gender-neutral tool, or there might
have been some other evidence, counter-evidence against a finding of discrimination. There are
very few instances where we decide something up here based on record evidence without
remanding.
The cases we decide outright primarily are ones involving the interpretation of the statute.
If the interpretation of the statute means that there’s only one right way out of the case, then we
might reverse, but otherwise, we almost never do.
Mr. Pollak: You opened your comments on Palmer saying that you selected the
case because it was one that was representative, indeed lead all others in your addressing
statistical analysis. Was that the reason you put it in?
Judge Wald: It was the most intensive look I ever took into statistical analysis
here and I suppose I saw it as another example of having to go deeply into a non-legal discipline
and really master it, at least to the best of your ability, apart from help from the parties. You had
to dig in and learn statistics. Actually I took a course in statistics in college, but God knows I
didn’t remember any of it since then. So you had to go learn a new discipline in the course of
trying to decide a case, or else make a fool of yourself, or else ignore it all completely.
Mr. Pollak: Do you have awareness as to whether ultimately the plaintiff’s
attorneys got attorneys’ fees after carrying this thing forever?
Judge Wald: They got some, I know, but I don’t remember how much, but they
did get some because they settled the main part of the case which would make them prevailing
parties to some extent. There were some little pieces of the case that came up again, but I’m sure
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there was a case settlement.
Mr. Pollak: So I guess the next case then is State of Ohio v. Department of
Interior, a 1989 decision.
Judge Wald: The oil spill. Although this case, State of Ohio, did not itself come
out of an oil spill, I will say again, always making my point that although we operate on record
and in insulation, we can never completely distance ourselves from the world around us. It so
happened that the decision came out almost simultaneously with the oil spill, the Alaskan oil
spill. So a great deal of attention registered on it and the New York Times carried a piece about it.
Mr. Pollak: Say, I want to go back, actually, I had a question about the Palmer
case. Palmer seemed to me to represent what I came in reading in an effort to read closely these
nine opinions of a single judge, the Judge Wald treatment. You, and I wondered if you yourself
come to these decisions in opinion writings with this idea. I read Palmer to begin at an early
point in your stating a set of general principles and then carefully, one by one by one, applying
those principles to both the facts and the claims and the arraying of the law in deciding the case,
and that’s the way I found you operating in many of these opinions. Is that how you would
explain how you proceed?
Judge Wald: Yes, I think that comes close to it. There is a pattern which most
judges evolve in opinion writing and mine is to tell the reader up front what you have decided and
why. There are some judges who write opinions that are like mystery stories. You start at the
beginning in chronological order or narrative and you have to get right near the end before you
know how the case is going to come out unless you sneak a look at the end of the case to see
whether it says affirmed or reversed.
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Although it may be a very small audience who actually read the opinion, I do usually try
to pose the issue and tell up front in the opinion what principles I’m going to use to analyze the
issues and even what results I’m going to come to so that people have a road map as they travel
through it.
I find in reading other decisions myself that it’s very useful. Half the time when you’re
reading, if you don’t know where you’re going, you’re missing things or you’re not using your own
mind to say, Well, is what they’ve got here really forwarding the conclusion they’re going to come
to? I think in general that’s my plan, at least in long complicated opinions. Short opinions you
can just go boom, boom, boom with them, eight pages, and bomb it through.
Mr. Pollak: Well, State of Ohio.
Judge Wald: State of Ohio dealt with the regulations put out by the Department of
Interior as to what measure of damages polluters would have to pay so-called public trustees from
the states, sometimes the federal government, once pollution had been found. It didn’t deal with
liability, it dealt with the extent of the damages that they would have to pay. But as I say, it
turned out to be a very timely issue because of the 1984 Valdez oil spill in Alaska.
The Department of Interior had adopted – I’m trying to simplify this – a measure of
damages which was the “lesser of” the cost of restoring a polluted piece of land or water to the
approximation of its natural state, or in the alternative, and remember it’s a “lesser of” standard,
i.e., which costs less, the lost value of whatever had been corrupted, the land, the habitat, the
water. But the lost value was a market value.
The example that we have in the opinion, I guess, is still the clearest way to suggest the
difference. If you polluted a seal rookery, you would look at what it would cost to restore that
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rookery, and I guess begin the process of seal repropagation within it, or the market value of the
water or land on which the rookery was situated plus the seal pelts, which ran at $15 a pelt. So
almost invariably, the lost value, the market value, when we’re dealing with natural resources like
this, was going to be the “lesser of” the two alternatives. The environmentalists were very
unhappy with this choice. This was a Chevron case. The reason I put it on my selected case list,
aside from the fact it did have repercussions in the real world, of pollution cases, was to show
what a lower court does with a big broad doctrine like Chevron, how it has to fine tune it.
Chevron says that if Congress addresses itself to the precise question that is involved in a
case, then, of course, we must follow Congress’ will. If it doesn’t address itself to the precise
question that the case poses, then it falls into Chevron II which means that the agency can make
any reasonable interpretation of the statute, even if the court disagrees with it; the standard of
review is much, much lower. It means that it has to be an unreasonable interpretation of the
statute.
Now, what State of Ohio required was defining what the precise issue was, because the
outcome turned on that decision. What the government said is, this is clearly a Chevron II case
because Congress has not specifically said in the statute whether or not damages should be based
on the cost of restoration or the cost of the lost market value. It didn’t say, “Measure damages by
the cost of restoration.” Lots of legislative history coming out of your ears and stuff about
rehabilitating natural habitats, but it did not say you must make damages calculable by one
particular method. So the Department of Interior said it’s a Chevron II case.
We said, No, it was a Chevron I case.
This is a per curiam opinion, but I wrote that portion of it.
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Mr. Pollak: I was interested, maybe you’ll tell us, how it all got divided.
Judge Wald: Anyway, what we said is the precise question which we have to look
to see if Congress answered in the statute, is not whether or not damages must be based on
restoration or lost value, but the precise question is, Can the agency, consistent with what is in the
statute, promulgate a standard which sets up the `lesser of’ the two, restoration or lost value? Can
it, in other words, do, what was essentially a cost based standard, a cheaper, whatever is cheaper,
standard, whether it’s restoration or market value? Is that consistent with what Congress said in
the law, in the legislative history as well as other parts of the statute? We thought those sources
showed that it would be inconsistent with Congressional intent for the agency to have said we
won’t even decide whether it should be restoration or lost value, whatever is cheaper is okay. We
said there may be some cases where restoration is so exorbitant, so impossible, so
disproportionate, to say you must restore one bird nest at the cost of a million dollars, that
Congress could not have meant to require it, and the agency can certainly have authority to take
care of those kinds of cases. But it can’t just say in any case do whatever is cheaper.
There the job of the court was, in a Chevron I case, to define what the precise question
was, and I think there’s a little bit of creativity involved in that. Interestingly enough, the
government chose not to appeal. The Secretary of Interior, I can’t remember what his name is, a
Bush official, Manuel Lujan, I think, said it’s more important we get these regulations out than to
appeal. That was sound judgment, to my way of thinking.
I ran into some environmental lawyers a couple years later who said they were still having
trouble negotiating the regulations on remand. But anyway they never did come up for any
further review. Again, as I say, it was another example of what we do all the time which is to
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take some doctrine which is pronounced up on high, but cannot be applied without taking the
whole context of the dispute into account and trying to fit it to the case at hand. No matter how
they try to cabin our discretion, it still resides in things like that, defining what the precise
question is.
We also established firmly in State of Ohio something which there was a little bit of doubt
on, and which has since been carried through in later precedent, and that is in looking at whether
or not Congress has answered the precise question, you don’t have to stop at the text as some
people have suggested and say well, if it isn’t in the text, that’s it. In Chevron II we said you can
look at text, legislative history and structure of the statute. Indeed, the opinion shows we looked
at a lot of legislative history in defining whether or not Congress had answered the question.
Mr. Pollak: How did the writing of the opinion get assigned?
Judge Wald: I’m glad you asked that. This is one of our cases on the complex
track which was started back in ’86. This would have been a couple of years after that. Every
year, there are some cases which have so many issues in them, they are almost entirely
administrative cases, though sometimes we get a criminal case, a big conspiracy, which we put on
a complex track. The Staff Counsel’s Office, which does the initial screening of all cases as to
what track they go on, realizes the case just can’t be handled on a regular sitting day with three
other cases, so they schedule it separately. There are a couple dozen cases of this sort every year.
Then judges are assigned to them in random panels. These assignments are over and above the
regular panels, in other words, they’re not a tradeoff. You just have to take your couple of
complex cases each year over and above your other work.
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And you know that you’ve been assigned one for months ahead, so if any motions come
up early on they’re sent to that particular panel, they don’t go the regular motions way. And
because there are usually many issues involved, a practice has grown up. It doesn’t have to be this
way, but a practice has grown up to treat them inside the panel a little differently in two ways.
One is we have the clerks get together with some guidance from us and divide up the bench
memos, so that one clerk’s memo on one-third of the issues will be circulated to all of us.
Normally, we do all our own bench memos, we don’t exchange them or circulate them before the
argument, they’re just for our own use. But if everybody did a bench memo on every issue on
these complex cases, we’d be inundated.
It doesn’t mean you have to take Judge Henderson’s or some other judge’s clerk’s bench
memo as the final word, but at least your clerk doesn’t have to do it all by himself or herself.
Then, we set the time for oral argument, and it may go quite long. We usually set these cases
down for argument on a day when there’s no other argument, or in the afternoon. Argument will
generally go on for several hours on these complex cases. Sometimes days. We’ve had some
arguments that took a couple of days. Then, afterwards, generally we divide up the opinion.
That’s why it’s generally per curiam. Often, there will be a little star telling you who wrote what
part. But we will divide it up so that one person will not be writing hundreds of pages alone.
Now if this complex track arrangement had been around in Sierra Club, I’m sure the
opinion would have been split. But it wasn’t. In the State of Ohio case, it was Judge Mikva,
Judge Robinson and myself who split the writing.
Mr. Pollak: But you really had the laboring oar.
Judge Wald: I took the major part, yes. Judge Mikva had a couple of issues and
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Judge Robinson, who was then toward the end of his tenure, took a smaller part.
Mr. Pollak: What about the statutory requirements for preserving electronic
materials, Armstrong v. Executive Office of the President.
Judge Wald: That was just a couple of years ago, August 13, 1993. There was
one we had to do on the quick. Mikva, Wald and Henderson. It was argued in June and decided
in August, and we split that one up too.
Mr. Pollak: Right. Parts one and two authored by Wald; four authored by Mikva,
and it doesn’t indicate who authored three.
Judge Wald: That’s because Judge Henderson believes that if you do a per curiam,
like most of these divided opinions are, that you shouldn’t indicate who the authors are for each
part. Judge Mikva and I felt differently. The reason I feel differently is I think it’s a little bit more
accountable. These complex cases are not the old fashioned per curiams.
The usual per curiam is a smaller opinion. When you get into a big, important case, with
a lot of different issues that have to be split up for the reasons I’ve explained, it seems to me that
it’s better to tell people who’s writing. It’s a legitimate difference of opinion. But at any rate, this
was the second trip of Armstrong up here.
As you know, Scott Armstrong through two, three administrations and generally
represented by Alan Morrison’s group, Public Citizen, tried to prevent outgoing administrations
from wiping the stuff off the computers during their last days.
The first time the case came up, I wrote an opinion which actually was pretty
conservative, certainly it was the only one that the panel would have agreed to, which said the
only thing we could really review was the guidelines that the Archivist put out for the
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preservation of these records under the Federal and Presidential Records Acts.
Mr. Pollak: And when you say review them, do you mean review whether they
fulfilled the statutory –
Judge Wald: Whether the Archivist promulgated guidelines and monitored record
disposal under the statute. I must say that I will tell you frankly on the basis of these two cases, I
hope we get a much more diligent and vigilant Archivist in the future. I don’t think this
administration has appointed one yet, but the lack of action on the part of past Archivists in
taking any kind of decisive action, in either of these two cases, was, I think, quite an eye opener,
at least for me.
The point of the first case which is not the one we’re going to talk about, was to tell the
Archivist he ought to do something, to get going. The point of the second case was a little bit
more specific. By the time we had the second case, the Clinton administration was in power even
though the problem had arisen at the end of the Bush administration.
At the end of the Bush administration, Public Citizen had come in for and gotten a TO and
preliminary injunction from Judge Charles Richey to stop the throwing out of all of the electronic
records, so they were preserved and the immediate emergency was over. By the time we got to
adjudicate the issue, the Clinton administration was in place, but they were still defending the old
policies. The issue was very important because we’re now talking about taking old statutes,
which were written in a paper age like the Federal Records Act, the Presidential Records Act, into
the electronics age. Congress should hopefully do that itself, but in the meantime, problems arise.
The Bush administration and Clinton administration, at least for purposes of defending
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the action, were saying the following: We are abiding by the Federal Records Act. Let me focus
on the Federal Records Act because that comes much much more into this than the Presidential
Records Act and also is subject to greater review.
A federal record is very broadly defined as any record that might be expected to be of
interest to historians or to have memorialized some action of consequence; the statutory terms are
very very broad. And there were some guidelines in place that applied to paper records. Now,
the question was, when you moved into an electronic records system where you basically have
different types of computer documents, the position of the government was basically … people in
the government make the decision whether or not that’s a federal record. And if it’s a federal
record, then they punch it out into hard copy and we preserve all the hard copy federal records, so
we’ve done our duty.
The opposing notion was, Oh no, it’s not, because what you’re punching out isn’t the same
as what’s appearing on the screen. What’s appearing on the screen has dates, has copy list names,
has other things which can make it different, those are information. They can make it a different
record and they had some interesting examples of having to go into the computers which had
been saved by the last injunction in order to get much of the Iran Contra information, which was
not available elsewhere. The government again was saying these fell within the exception for not
preserving extra copies of records because they had a hard copy of it.
Chuck Richey said, “No way.” Chuck was very strong and adamant on this issue, straight
up throughout. This court has not upheld him in everything, but I mean in the core, the basic
notions, I think he got it right down below. So we sided with him on this. We said you had two
sets, there were two parallel tracks of records, and decisions had to be made on each track. You
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can continue to go ahead and preserve your hard copies, make your decisions on those, but you
also have to make decisions independently on these computer records.
I think the net effect, if it’s followed, is that almost everything, except maybe “see you for
lunch Tuesday,” will be a federal record and it can be sorted out under the Archivist guidelines
later on as to what has to be preserved long range, what can be destroyed by permission of the
Archivist. The Archivist is the central figure in this and I must say, these cases did not give me
any confidence that that job is being done – but on the other hand, that’s the way Congress said to
do it. It was a good case, it was an important case. The fact that the new administration was
content to go along with the old administration’s policies surprised me.
Mr. Pollak: I thought it came out 1,000 percent right. Anybody who has tracked
his way through discovery where a document that looks different than another document even if
there’s only a check on it, has to be produced.
Judge Wald: I suppose it might be, if one wanted to get global, which I try to
avoid, one of those instances where it’s good to have a court around. Even if you like the
administration and you think it wants to do right, the fact is, as you and I both know, having been
in administrations that we believed in, administrations are themselves constrained by institutional
forces. This litigation was in motion when they took over. I’m sure that people were arguing we
can’t abandon our old position now, etc., but I still think it was good that you had Chuck down
there to say “Halt” and eventually we upheld him.
Mr. Pollak: Here at page 1285 this statement is made under your pen, I believe,
and I wondered how it got into the opinion. It says, “Tomorrow and tomorrow and tomorrow of
government “will be allowed to” creep in their petty pace from day to day without benefit of the
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last syllable of recorded time.” Shakespeare, MacBeth.
Judge Wald: I did that. You may think it’s a bit of writing overindulgence but
when you’re writing opinions every once in awhile, you get an irresistible urge to cite something
from outside the law. After all, isn’t it funny to think the case was precisely about that – “the last
recorded syllable of time” which we said had to be preserved. But I think my clerk swallowed
twice when I insisted on keeping it in.
Mr. Pollak: I vote for keeping it in. We’ve got three more. What order, North,
Finzer v. Barry, and Shurberg?
Judge Wald: Let’s do them timewise: Finzer v. Barry, Shurberg, and
North last.
Mr. Pollak: First Amendment, demonstrating with critical signs within 500 feet of
an embassy, not permitted.
Judge Wald: Finzer v. Barry was one of those cases, I was really surprised that I
ended up having to dissent in. The other judge was Oscar Davis, and it was also, again, one of
these instances where there is an outside counterpart to what’s going on inside. This was the
period when we were having all sorts of people arrested in front of the South African Embassy
demonstrating against apartheid.
Every day people were violating this law. Now, Joe DiGenova was not prosecuting them
for obvious reasons. They were getting checked in at the police station and sent home. They
weren’t spending overnights in jail, but they were being technically dispersed and arrested for
doing exactly what was involved here. This was a different instance, this was a priest protesting
in front of the Russian Embassy, as I recall. But it seemed to me, if there ever was a content-
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based law or viewpoint, this was it.
I was really surprised at both Judge Bork and Oscar [Davis] when they bought into it. The
statute involved was the D.C. statute that was 30-40 years old. Judge Bork thought that we were
in an area where international obligations required us to take appropriate measures to protect the
dignity of foreign embassies here, that if we didn’t do that, people might be nasty to our embassies
abroad. Now, all of that, I always felt, as I said in the dissent, could be accommodated perfectly
by one of these laws which we now have that says that there is a certain number of feet in front of
the embassy where you can’t do demonstrating of any kind so that people can come in and out and
dispatch their business without being accosted, that applies to everybody.
Mr. Pollak: Pro embassy signs could go inside –
Judge Wald: That’s right. I must admit, this law really shocked me. It was
inconceivable to me that you could justify a law that said you could hold signs in favor of the
embassy but not against the foreign country’s position within those 500 feet. It seemed to be you
were under the First Amendment clear and loud, and this law couldn’t be a less restrictive
alternative when all over the nation, other states and cities had a neutral kind of law. But Judge
Bork worked this up, and Oscar, for whom I always had the greatest respect, agreed. The only
remark I remember him making was he recalled the days of the Nazis, but it seems to me that
would have cut both ways, so I don’t really understand his reasoning. But he never wavered for a
minute.
Mr. Pollak: The opinions placed the First Amendment issue sort of frontally as
clashing with foreign affairs power, so it really was argued between you and Judge Bork in high
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constitutional terms.
Judge Wald: Judge Bork, I will say for him, when he went into something, he
usually did it with aplomb, relish and a great deal of work; he believed in the argument though I
didn’t, and ultimately neither did the majority of the Supreme Court. But he certainly went at it
with a great deal of care. This case, you know, was reversed in the Supreme Court on this point.
Scalia wrote the opinion.
Mr. Pollak: He said that the judiciary has no role in a foreign policy decision.
Judge Wald: He was very strong on the President as the chief foreign policy
maker. That came up in many of his decisions while he was on the court. This was also the
period of intense separation of powers debate and war powers disputes were going on between
Congress and the President. I think Judge Bork’s notion was that the President was the ultimate
maker of foreign policy, but in my view this is a congressional statute. This is one of the few
times I’ve admired counsel for a little bit of self-discipline. The plaintiffs’ lawyer, having gotten
the panel against him, did not come up asking for rehearing en banc.
He might have gotten it, but it would have taken another two years. Rehearings en banc
take a long time and you come out with some very splintered decisions. So he just was confident
enough that he was in the right that he skipped that whole thing and went straight to the
Supremes, got it taken up and had it reversed within a much, much shorter period.
Then, as I understand it, D.C. passed a law just like everybody else’s, providing for a
neutral zone in front of embassies.
Mr. Pollak: So at the end of your opinion you said “I hope that Congress will
revisit this statute and show it has the constitutional sense to do what this court – .”
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Judge Wald: But the Supreme Court had reversed our court by the time Congress did it. From
my point of view, Finzer was never a difficult case. It was just very surprising to me … it was
one of the cases, it was hard for me to see the other side. Judge Bork did a lot of work and
certainly articulated it well, but it would have been so surprising to me in light of our past
precedents, Supreme Court precedents, if we had ended up saying you can have people who are in
favor of the embassy with signs but people who are against the embassy policy have to stand 500
feet away. It’s one of those things that your gut, my gut, says “No, no, no, that’s just not the way it
is.”
Mr. Pollak: Tell me, Judge, do you – I don’t know that you have to cite chapter
and verse, but have you found over your time on the bench that there are occasions when you
change your mind about a case afterwards?
Judge Wald: Yes. We all know the most recent example of that, the one which
probably got more newspaper publicity than any other decision I ever participated in. I didn’t
write it, but it was the Moldea libel case from last year where Harry Edwards, I agreed with
Harry, first said that the scathing book review was susceptible to libel, was at least susceptible to
being the subject of a libel case, and then on rehearing, we changed our mind.
I’d say there have been seven or eight cases over the 15 years where I have changed my
mind. You can change your mind in a couple of places. You can change your mind between the
time you leave conference and the time an opinion comes out. Nobody but us know about that,
but it happens. It happens. People circulate a memo saying, As I get into to this, it doesn’t write.
Mr. Pollak: I think the bar is aware of that. And as you say, sometimes the
opinions indicate that there’s been a switch.
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Judge Wald: That’s considered par for the course. Then there is the stage when an
opinion comes out and there’s a petition for rehearing and I’ve seen, as I said, six or seven cases in
which I’ve changed my mind because, if it’s a close case, you call it one way, and then people
come in, and you think about what they say, and you reluctantly conclude, Gee, maybe they’re
right. Occasionally somebody will raise something new which hadn’t been argued or argued
precisely that way before.
There’s a third way the bar doesn’t think about, but it happens a lot. Somebody writes an
opinion one way. It gets taken on rehearing en banc, and, either the author or panel members who
agreed with the original writer, will join the other side on rehearing en banc. That happens much
more. People don’t think about it. They think of rehearing en banc almost as like a new case,
which it is. But a lot of that switching goes on because sometimes when a case goes from panel
to a whole court participating at a much higher stage of visibility, it’s rebriefed, and intervenors or
amici may come in, it takes on a new life, and judges who thought one way on the first go-round
change their mind on the en banc.
Mr. Pollak: What about not the same case, later on, doctrinally, you shift
positions?
Judge Wald: Yes. It can happen. I’m trying to think of an example. It’s usually
more subtle than that, however. It’s rare that you get exactly the same case. You may get the
doctrine and you may decide not to extend it to the next case, or –
Mr. Pollak: But you must know internally that you’re turning away.
Judge Wald: You’re not as thrilled with this doctrine as you were before, and that
can be very legitimate. Sometimes in the meantime you’ve seen the application of that doctrine
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in a number of cases and been disturbed at the direction it’s going or the results it’s producing.
You say I want to cut it off here. Occasionally, you’ll come outright and say, in the facts of that
first case, it really seemed that you could make that principle of law. Now I’m seeing somebody
take that principle of law and apply it to the second state of facts and I don’t think it’s right.
Therefore, I defined the principle too broadly the first time; it should have been much more
limited, or maybe not even applied at all because it had the implications for making bad law.
Some people are more flexible about that kind of mea culpa than others. There are some judges
who really think it a cardinal sin or a concession of incompetence to say I was wrong.
We all know Justice Jackson’s view about admitting past error. We’ve all done a few of
those confessions of errors over the years. You don’t do it lightly because of its implications (1)
for the consistency of the law, but (2) also for your own self-image or even image of credibility
out there. I suppose the presumption is always to stick with what you’ve said before, but there are
times when it just doesn’t seem right to do so.
Mr. Pollak: The next case in terms of time is Shurberg.
Judge Wald: Well, Shurberg, of course, dealt with affirmative action and came
mid-stream in a whole series of Supreme Court cases and cases in the circuit. The circuit had
early on decided in a case written, I think, by Skelly Wright, back when the court was
predominately liberal, that the Federal Communications Commission could indeed, in granting
comparative licenses, give an extra credit to minority owners. They had a whole series of criteria
for granting licenses and they added up points. The court said they could give an extra point for
being a minority owner. So we had this case on the books, saying that’s okay for the FCC, in the
interests of seeking a policy for diversity of programming, to give an extra credit where
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management and ownership is integrated and the management/owner is a member of a minority
group.
Then along came a case in the mid-’80s which attempted to do the same thing for women,
a lesser credit, but still a credit. That came to a panel of Scalia, Tamm and myself, and they said,
Oh no, you can’t do that. They didn’t say it’s unconstitutional. They said it’s not “in the public
interest,” as the FCC authorizing Act means that term. It was a Judge Tamm opinion called
Steele v. FCC. The rationale in that case, I find it pretty hard to understand, was that women were
different from minorities because, if you gave minorities control, they had a unified interest in
bringing about programming that would be attuned to or directed at minorities, but there was no
such cohesiveness in the case of women. They were kind of all over the place, they were
everybody’s mothers, they were sisters, or daughters, so it wasn’t “in the public interest to
affirmatively encourage their ownership of media.” I dissented from that. Along about this time
the FCC said we want to take this Steele case back down. We want to have a hearing about
whether it’s constitutionally right to have any kind of race or gender preference in these license
proceedings. So a majority of the court in the Steele case which had then a pending petition for
rehearing en banc, a majority of the court agreed to remand it to the agency.
The FCC started out having this rulemaking on race and gender preference. This all
becomes relevant to Shurberg. In the middle of that rulemaking, Congress came in like
gangbusters and said no, no. They had FCC Commissioners up there to testify and concluded you
can’t have that hearing. There was a rider on an appropriation that said we don’t want you to have
that hearing about race and gender preference. No money can be spent on that. So having done
that, the FCC closed up shop on the hearing and just went forward with its old rules.
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Now one of the rules which would have been up for grabs in the hearing, although it
hadn’t been the subject of one of these earlier cases, gave a preference for minority ownership in
the sale of a license when the owner was facing revocation. This minority distress policy had
been in effect for some years.
Basically, and it applied only to minorities, if a station was coming up for renewal and it
looked like the current licensees weren’t going to get it, if they had a really serious financial or
ethical problem, and those are apparently quite predictable in broadcasting, they hadn’t complied
with some requirements or things looked pretty bad for them, they would be allowed to sell the
station to a minority at a certain price discount. In that way, they got a reprieve of having their
license taken away from them at a renewal proceeding – you can’t just give up and walk away
from the station – and they would get some money back. The price might not be what they
wanted or would have gotten on the open market; I don’t even remember how the discount was
calculated, but they would get something for it and you’d get more minorities in broadcasting,
who don’t many times have the money to buy or build a station from scratch.
Actually, the statistics, which I don’t have in front of me, show that it hadn’t been used a
great deal. Nonetheless, in this particular instance, the policy was challenged because somebody
else who wanted to buy that station didn’t get it because the minority applicant was given
preference. So it came up to us. This was Larry Silberman, George MacKinnon and I, and Larry
wrote an opinion. I can’t say it was a majority opinion. The result George agreed to, but George
wrote his own opinion. It said that they couldn’t do this on constitutional grounds, that it was a
racial preference and was therefore subject to strict scrutiny. Strict scrutiny meant that you had to
have a compelling reason to do this and then adopt the means that were least restrictive to
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implementing the compelling purpose; that this policy could not meet any test of remedying past
discrimination because, and this part was true, there was no record that these particular owners
had been discriminated against or even any particular minorities in the past in that area. There
wasn’t anything much in the record except general stuff about minorities not being able to buy in
to broadcasting historically. There was no record to show, outside of this just general notion, that
old boy networks tend to exclude them purposefully.
Mr. Pollak: Sort of sounds like the kind of considerations that led the Supreme
Court in Croson to strike down –
Judge Wald: Croson figured very prominently in this debate and Judge
Silberman’s opinion relied upon Croson to a great degree. The big difference I thought, and he
acknowledged the difference, but didn’t find it controlling, between Croson and Shurberg, was
that we had a congressional law here. It was more like Fullilove. Our law was a rider to an
amendment, but it did have hearings and Congress had spoken and said it wanted these programs
to continue. And it wanted them to continue in the interest of diversity of programming.
Judge Silberman and Judge MacKinnon, who wrote his own opinion, said that there was
no compelling interest that was being fostered here. I dissented recognizing that affirmative
action, this was in ’89, I don’t know how much better it is now, was in pretty much of disarray; if
you were trying to get a clear read from the Supreme Court opinions and our own opinions, you
were in trouble. But basically my approach was that a couple of reasons had been accepted by the
Supreme Court in the past cases, as being compelling interests to remedy specific instances of
discrimination. But those reasons did not exhaust the reasons that might justify giving a
preference. In this case Congress had recognized and the FCC had recognized the need to get a
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diverse mix of broadcasters as a kind of surrogate or proxy for diversity in broadcasting itself.
The FCC had been told it could not directly regulate broadcasting content; in the interests of
diversity, it couldn’t say you have to have so many programs for women, or so many for Blacks,
or what the content of the broadcasts should be, so therefore, the way to get at diversity in the
media was to have a diverse mix of broadcasters. The amount of specific data that you needed to
justify that, the number of studies, etc., was much less than in Croson because Congress deserved
a much higher degrees of deference than state or local authorities.
As you know, the case went up to the Supremes. It was Brennan’s last opinion, Metro
Broadcasting. He managed to get White to agree with him – White, Brennan, Blackmun,
Marshall, Stevens. It was five to four. It was the last day of his last term that it came down.
Now there is a followup though, just to show you, this is one of those things where a great social
problem kind of continues, nothing ever decides it, it just keeps going.
A lot of people say Metro Broadcasting is a shaky precedent not only because of the
changing nature of the court up there, but following Metro Broadcasting, the old Steele case came
up a second time here, it came up with a different name because it was a different case, but
involved the same question of a woman’s preference. This time it was Thomas, Buckley, and
Mikva on the panel. Judge Thomas wrote an opinion which said it was unconstitutional for the
Congress to give a woman’s preference even though that came out of that same congressional
hearing in a rider that proved so determinative in Metro. He distinguished what he said was the
backing to show that connect between minority ownership and minority controlled programming
in a minority case – I don’t know; I find it a totally unconvincing rationale, but that there weren’t
studies to show that giving women more ownership and control was going to lead to women’s
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broadcasting, which I’m not sure is the way the issue should have been defined. I thought it was a
pretty unconvincing opinion. Judge Mikva had a very strong dissent on it. The FCC is not
always I think way out front in defending its principles. I’m sure it is buffeted by the political
winds, but I don’t find it a terribly courageous agency, they just decided to take it no further. This
was ’89. They didn’t even try.
This was also, incidentally, the opinion that caused all the flak because somehow it was
leaked during Judge Thomas’ confirmation hearings, it was leaked to the press and then there was a
big fuss about whether or not the court should’ve hired somebody outside to come in and
investigate the leak. But we did pass a rule, which was much more stringent, I happen to think too
stringent, on what clerks and everybody else can talk about even after they left the court. That was
the way it was handled here, but it still comes up. For instance, on Judge Mikva’s recent change in
job, the Wall Street Journal ran an editorial saying this should have been investigated, this leak was
allowed to lie dormant. Anyway, I think that we have a very strong tension in our law now
between the Lamprecht case, it was never taken up, which says that even if Congress says you can
do this, still you have to have this meticulous study of evidence to see what they were basing their
findings on in the case of women, but you don’t have to have it for minorities. We have that, and
we have Metro, and I don’t know for how long considering the new membership on the court.
The affirmative action problem, I think, will haunt us for a while to come. I mean the legal
standards by which it’s judged will plague us for some time to come –
Mr. Pollak: Was this an unusual case where the conservative position found an
action that Congress took to be an unconstitutional action?
Judge Wald: Well, I don’t know whether it’s always the conservative position to
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uphold Congress. I’ve been on other panels that struck down laws, sometimes in agreement with
the “conservative” members of the court, sometimes not. Let me give you one example. A case
that’s up in the Supreme Court now. They’ve heard argument on it. It started out with a panel
consisting of Larry Silberman, myself and Ruth Ginsburg. Then in the middle of it, before it got
decided, she went onto the Supreme Court, so under the rule of this court, it just takes two
members in agreement to issue the opinion. Well, this was a constitutional challenge to the FEC,
Federal Election Commission, requirement in the law that they have two designated members of
Congress who are ex officio members of the Commission. They don’t vote, but they can attend
all meetings, all deliberations, get all notifications, get all evidence. Is that a violation of
separation of powers? Larry wrote the opinion saying it was a violation and I agreed with him.
Mr. Pollak: Did you strike it down in your opinion?
Judge Wald: Yes. Larry wrote the opinion, but I agreed with him.
In another case a summer or two ago, we had a constitutional challenge to the franking
privilege, insofar as the privilege had been extended to mail sent to newly-redistricted areas by
Congressmen who were going to have to run from the new district in the next election. We had
an emergency appeal on this in the middle of the summer before the election, and Judge
Silberman and the other person struck down that statute as unconstitutional. I would have
upheld that statute. I really don’t see a clear line at all where conservatives tend to uphold statutes
and liberals not. Shall we go on to the last case?
Mr. Pollak: A book-length set of opinions in the North case.
Judge Wald: There were a lot of issues in that particular case. I think the only
one, unless you want to talk about more than that that I will address myself to would be the self-
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incrimination issue.
We could talk about the authorization defense if you want to, but the rest were what I felt
were mainly procedural issues that you can see in a lot of cases.
Mr. Pollak: This was a case in which the panel was composed of yourself, Judge
Silberman and Judge Sentelle and there were an opinion by the court per curiam, a dissenting
opinion of yours and a concurring and dissenting opinion of Judge Silberman. Go ahead.
Judge Wald: Well, it was a very visible case, as you’re well aware. It also had
excellent counsel on both sides. It was not Brendan Sullivan who argued it to us. Barry Simon
argued it for North, but he was certainly able, and Gerry Lynch argued it on the IC side. They
were both really, really good. It was one of those cases in which you encouraged all the law
clerks to go and watch high class, first-rate counsel.
Basically, the big issue, the one that ultimately proved determinative, was whether or not
the self-incrimination privilege, as expounded by the Supreme Court in past cases, covered this
situation which was somewhat novel. It wasn’t a question of the jurors having been over-exposed
to the fact that Ollie North had had these hearings which were televised, or that the prosecutors
made any wrong use of his testimony. They had built this elaborate, elaborate Chinese wall to
insulate the prosecutors which we all, including the majority, accepted. The place that the
privilege came to bear was whether or not any witness who was supposed to be testifying at trial
from recollection alone had seen the hearings and might have been influenced in his or her
memory of events by North’s testimony at the hearings.
Gerry Gesell had been the trial judge and he had taken several precautions which
ultimately I thought were enough to cover such a risk. He had not only, of course, warned the
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witnesses to testify only from their own memory, but he told us, and I certainly believed him, that
he had gone back and compared their court testimony with the grand jury testimony that had been
canned before North testified publicly. What had happened was all but two witnesses who
testified at trial on the counts for which North was convicted, which were the crux of the appeal,
all but two witnesses who had anything to do with those counts for which he was convicted, had
finished their testimony to the grand jury before North ever appeared on television. That
testimony had been canned, put in cans and preserved. The trial judge had that canned testimony
and he said he reviewed that, and I’ve got to believe he did. What that would show, the
independent prosecutor said, and I agree with him, is, if the witness’ testimony at trial did not
differ in any relevant way from the grand jury testimony, which was given before North ever
appeared, then it was okay to presume that their testimony hadn’t been influenced by it. Now if it
differed in some way, there would be cause to have a hearing. But absent anybody pointing to
any kind of material difference, or even in this case, non-material, they didn’t even get to the level
of the difference, then it was alright for the trial judge to presume that they had testified in
accordance with earlier testimony. In addition, he gave them warnings not to rely on anything
they heard, and asked them point blank if they had. He ruled they didn’t have to have a
particularized hearing line-by-line comparing their two sets of testimony.
There was one witness, Bud McFarlane, who had testified before North was on television,
but then come back after North was on television. There was one other person whose testimony
was totally immaterial, but nobody fussed about him at all. McFarlane came and gave some
testimony. North had his public testimony, and then McFarlane came back –
Mr. Pollak: Before the grand jury?
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Judge Wald: Before the grand jury. He gave some testimony. In my dissent, I
examined that and went through it in the opinion and, as I say, Gesell also said he had examined
it, we must believe him, and said that there wasn’t any difference. So I said, Look, if the
defendant can come up and can show us some evidence, facts, somebody who changed their story
or did anything different, then you have to hold a hearing. But right now you’re just saying that
what Gesell should have done because of these things having happened is subject each witness to
a line-by-line particularized hearing as to whether or not each line of their testimony was
influenced by the hearing, which to my mind, was practically saying you can’t use it, which I
think was really the point of the majority. The majority said there must be this particularized
point-by-point comparison with each witness. I think they set up a rule that, in all honesty, would
be practically impossible to abide by. And that, of course, is what happened. Subsequently, after
this reversal, they went back down to Gesell, they put on one witness, McFarlane, who later,
incidentally, repudiated North all over the place, calling him a liar and everything else, in the
current Senatorial campaign, but in that little hearing, he, McFarlane, having pleaded guilty long
since, got on the stand and said, “Oh yes, I did testify partly on the basis of the North testimony,
not from my own memory.” So at that point, it never came up on appeal; my understanding from
reading the paper is that the independent prosecutor kind of threw up his hands and Gesell said,
“Okay, I’ve no choice,” and they threw out the whole prosecution.
At any rate, I felt it was an unjustified extension of Kastigar that no previous court had
ever hinted at. I must admit that since then I haven’t seen any application of the North rule to
other cases. In fact, we’ve had one later case here, interestingly enough, in which the majority to
my mind went much easier on applying it and Judge Sentelle, one of the North majority,
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dissented, saying they didn’t apply the North opinion.
So subsequent to this, just to put this all in perspective, came the Poindexter case. I did
not sit on that panel, Mikva, Doug Ginsburg, and Sentelle sat on that appeal. There Judge Harold
Greene had tried the Poindexter case. He had taken even more precautions than Judge Gesell did.
I don’t remember all the particulars, but I know it was distinguishable because he, I think, had
actually had a little individualized hearing for each witness who heard the public testimony. I
don’t know if he did it line-by-line, but he had a little bit more of a hearing process on each
witness. They threw that one out on appeal, too.
Mr. Pollak: I wonder whether after North there could be a reasonable anticipation
that an immunized witness could be tried?
Judge Wald: I think Congress seems to have operated on the notion that they can’t
because you hear a lot of discussion, I heard lots of discussion from Senators and House members
watching TV during the Whitewater hearings this summer, talking about why they wouldn’t
immunize a witness any more up there. In fact, the Whitewater hearings, from my understanding
watching TV again, had just set out these very specific little areas that they thought were not
going to interfere with what was then Fisk’s investigation. They were afraid, Mitchell or Dole or
somebody said on TV, that should they immunize a witness who later became a target of the IC, it
was more or less all over.
I don’t know. It’s not for me to say whether that’s ultimately the right solution, and that all
sides, Congress and the courts and special prosecutors, can live with that kind of demarcation.
Maybe they can. I did think, and I said it, the court laid down an extremely stringent standard that
really could not be met in most cases and had not been anticipated by prior precedent. But that’s
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only my opinion.
Mr. Pollak: Do you think that the North outcome represented some failure of the
judicial system?
Judge Wald: Not failure of the judicial system. It’s hard to say that. Every time
you disagree with your brethren you might think it’s a failure of the judicial system. I think the
North case laid down much too stringent a burden on the prosecutor that couldn’t be
accommodated in any case where Congress had gone its way and immunized a witness who later
was criminally tried.
I mean, Congress and the special prosecutor will have to work it out. I’m not in a position
to say that: (1) the policy is dead wrong, or on the other hand; (2) that there won’t be particular
cases in which public injustice will result from having to make that kind of a hard, cold choice up
there on the Hill.
I always thought I was a civil libertarian. But I thought this case went too far. It probably
won’t affect the run-of-the-mill criminal prosecution. It will affect only big, high publicity cases,
and those will be settled ultimately on some kind of political basis where Congress either accedes
or makes a deal with the special prosecutor like they did in Whitewater as to what areas they’ll
have hearings on.
Mr. Pollak: I think one thing interested me in view, particularly, of the sensitivity
of the differences between the judges in the case, and you did agree on some conclusions. How
did you reach your decisions in the sense of conferences? Was there an initial conference?
Judge Wald: Yes. There was a long initial conference. This was a long argument,
a couple of hours, I recall. We had a long conference and we had a lot of discussion. We divided
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up the issues. We knew we had a difference on the basic issue, self-incrimination. But there
were a lot of issues which we either were together on or one or more members were dubitante, so
we divided up the opinion. I wrote a lot of the per curiam, actually. I didn’t write the portion I
disagreed with, but I wrote a lot of the other issues, Judge Sentelle and I. Judge Sentelle and I
agreed on several that Judge Silberman wrote separately on. I wrote several of those per curiam.
Two basic issues I dissented on. They reversed one of the counts, because they said that Judge
Gesell had given too restrictive an instruction to the jury as to North’s defense that he was only
following orders, what I saw as a variation on the Nuremberg defense. That’s an issue which I
disagreed on.
Mr. Pollak: What do you make of the effect of an opinion reversal of this kind on
the role and scope of the trial judge? The trial judge has a living, breathing trial to conduct and
then the appellate court comes in.
Judge Wald: I’m not sure. It’s hard to evaluate what the long-range effects of an
opinion like this are. But I really thought they were much too tough on the district court and that
was exacerbated by the Poindexter ruling in which they were just as tough on Judge Greene who
had gone to even greater lengths than Judge Gesell to insure no adverse effects from North’s Hill
testimony. I remember just reading the record, the record was in boxes up to here. Most
documents didn’t come up on appeal; all the business of the government’s not wanting to disclose
certain material, the grey material, and what you did if they wouldn’t disclose it.
It was tough for a trial judge to have to conduct that trial in the glaring light of publicity and
with all the security problems involved and everything else. Not that is an excuse for real error,
which can happen sometimes, a big case like that with one person in charge of it. If there’s real
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error, you can’t say I’m sorry for the trial judge, so it’s okay to commit real error. Unfortunately,
that’s part of what they have to live with. In close cases, in so many other areas of the law, we tend
to side with the judge. But you can’t do that in a criminal case. And where you’re going to really
depart from prior law, now the other judges on the panel would not have said that they were really
departing, but in my view, they were really departing from prior precedent here and staking off into
a new area and to do that to a trial judge after the amount of time and effort that went into this case
is a hard thing. I must say, I had a great deal of sympathy for him. Characteristically, he never said
a word about it publicly or to me privately. I never said a word about it; we sort of smiled at each
other in the hallway, but it was tough and I think it was tough on Judge Greene, too.
Mr. Pollak: Well, Judge Wald, those are great cases, great issues. Is there
anything else you want to say?
Judge Wald: Let me make one departing comment and I think we will call it a
day.
Mr. Pollak: Let me just say that in your parting comment, you said something
quite provocative to me before we began this morning, and that is, you recall, that we had been in
this oral history for three years, or almost three years, and that in that time you have had some
changes, as all of us, I suppose, do, and I wondered if you wanted to put anything on the tape that
indicates any amplification or understanding for the historians as to changes that you may have
experienced in this?
Judge Wald: Well, I’m going to make two brief ones. Brevity, everyone loves it,
but it’s sometimes misleading. I have two thoughts which may seem in contradiction, but I do
have them simultaneously.
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One is, I’m increasingly convinced of the importance of having an independent and
somewhat feisty and irritable judiciary, regardless of the changes in administration. I’ve been
through four administrations since I’ve been on the court, in the end of the Carter Democratic
administration, the two Republican administrations of the 1980s, and the first two years of the
Clinton administration.
I think there are some issues the courts justifiably tackle and they have to tackle regardless
of which administration comes in. In other words, what I’m saying is there are still issues of
importance to our jurisprudence which I would not depend upon any administration to solve
politically. I mean, Armstrong was one. Is an e-mail a federal record? Well, okay, so nobody is
going to vote or not vote for a President on that basis, but I think in the long run it probably is an
important issue and that’s what the court has to be here for despite changes in administration.
And there are other issues like that. Last year, we had three cases of some note en banced
that are still yet undecided. Judge Edwards, Judge Mikva and I sat on the first panel in September
which was highly publicized as either the dream panel or the panel from Hell. But by random lot
again, though nobody seemed to believe it, but I can attest to it, we were assigned a gays-in-themilitary
case, the midshipman at Annapolis who was discharged for saying he was a homosexual;
and two FCC regulation cases involving regulations on indecency and a gag rule on abortion
advice by federally funded doctors. The first one involved whether indecency programs, which
still have First Amendment protection, could be confined to a midnight to 6:00 a.m. safe harbor;
the other one involved rules for cable companies making their own decisions about what’s
indecent on these channels, public access channels. It was all in one sitting.
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Three of those are up for en banc now. One has been argued, but not decided, the other
two FCC cases will be argued Wednesday.
So we had three en banc out of the sitting. We had three en banc out of one sitting. I
think those are important issues, however they come out, which the courts needed to decide, once
the current administration decided to stay with the policy of its predecessor administration. I may
not be on the winning side of what the courts decide, but I guess I’m glad they are at least taking a
look. So, even more so as time goes on, I think of the worth of having this other branch around
even though I’m often in the minority and often disagreed with.
The second thing is the longer I’m at this job, the more humble I am as to what we can
really do and when we just spin our wheels and when we make things worse. I think more often
about that as I move along. I think less than I did in my early years about what’s the right decision
in this case and now more about what if we do this? Is this likely to do anything good? Would it
be better if it went to some other branch to decide this and get it done with? Are we just creating
impossible obstacles, either for people or the agencies or other entities and just indulging
ourselves in our theoretical preferences? So, it’s kind of a tension between thinking there are
some issues that it’s very good we’re here to look at, and some issues maybe we ought to leave
alone. That’s the extent of my acquired wisdom.
Mr. Pollak: Thank you.
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