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Fourth Circuit Judges Speak about Appellate Court Judging

by Ken Reitz

Peter Rubin
Peter Rubin, founder of the American Constitution Society, moderated the panel.

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Peter Rubin, founder of the American Constitution Society and professor of law at the Georgetown University Law Center, moderated a discussion with two 4th U.S. Circuit Court of Appeals judges regarding judicial decisions made at the appeals court level. The panel spoke at an event held September 25 in Caplin Pavilion at the Law School.

Describing the 4th Circuit as the second highest court in the land, Rubin explained that the federal appeals court includes the states of Maryland, Virginia, West Virginia, North Carolina, and South Carolina and enjoys one of the richest of circuit court histories. Rubin described the 4th Circuit as the center for “… exceedingly important and fundamental decisions in constitutional law,” particularly since September 11, 2001.

Introducing Judge M. Blane Michael, a 1968 graduate of New York University Law School, Rubin noted that he had been assistant U.S. attorney for the Southern district of New York, a special assistant U.S. attorney to the Northern district of West Virginia, former counsel to former West Virginia Governor John D. Rockefeller IV and in 1993 Michael was appointed to the Federal Court of Appeals for the 4th Circuit by President Clinton.

Rubin then introduced Diana Gribbon Motz ’68, who was one of only two women in her class of 250 law students at the University of Virginia’s School of Law. He noted that in 1972 Motz was appointed assistant attorney general for Maryland and in 1982 she was named chief of litigation in the Maryland attorney general’s office. She left in 1986 to spend several years in private practice. She was appointed to the Court of Special Appeals of Maryland in 1991 and elevated to the 4th Circuit Court of Appeals by President Clinton in 1993.

Rubin began the discussion by noting that the 4th Circuit was “widely known as the most conservative court in the United States, a situation which leaves Michael and Motz … in dissent in some quite important cases.” Commenting that, “Neither of you are in the 4th Circuit’s philosophical majority,” he asked, “How does that affect your overall approach to judging?”

Judge Michael answered by quoting Yogi Berra: “You can observe a lot by watching.” He added, “I’ve chosen to take a more cautious approach … to watch for situations where I might be able to make a difference.” He described his opinion writing style as minimalist. “I don’t really go beyond the facts at hand … I try to write in a very limited way in the hopes of getting a favorable result in the case at hand,” he said.

Rubin asked Judge Motz if, when assigned to write a majority opinion, she took into account the views of her colleagues on the bench. “I do take them into account,” she said. “I’m very interested in trying to get a majority on every case. I’m not interested in making it difficult for someone to join my opinion.” However, she noted, “You come across some issues where you feel you cannot compromise so that you’re always working within those two parameters.”

As an example of opinion compromise, Motz said she was reminded of a chat she had with U.S. Supreme Court Chief Justice William Rehnquist, who told her, “People are always asking me, ‘What’s this paragraph doing in this opinion? It just doesn’t seem to follow the other paragraphs,’ and he said, ‘If one of my colleagues wanted that paragraph in and they needed that for their vote, that paragraph’s in.’” She explained, “A fair number of times there’s not disagreement about the end result, but with how we get there.”

Pointing out that appellate courts and the U.S. Supreme Court are multi-member courts, where decisions are made in the majority, Rubin asked, “What is the role of the dissent in a multi-member court?” Judge Motz replied, “When you’re not on the court, it seems very easy to figure out what dissent is.” She warned, however, that a vigorous dissent may actually make the majority opinion appear stronger. “There are some situations where I have either tempered the dissent or not dissented at all.”

Judge Michael agreed adding, “Sometimes you write your dissents hoping that you might persuade the Supreme Court to take the case.” But, Michael said, that too can back-fire. He related details of one case where he had written a strong dissent and the Supreme Court agreed to hear it. “I thought, ‘Ah-ha, maybe we’ve got a chance here,’ but it turned out that all the Supreme Court did was take the case to tell me once more I was wrong.”

Rubin pushed to go beyond ordinary dissent asking both judges “What should a judge do when he or she feels that the court majority on the Supreme Court has rendered law that is fundamentally at odds with our Constitution?”

Judge Michael answered that judges are bound by oath to uphold the rule of majority court decisions. He then turned the question around asking the audience, “What do you do if the Supreme Court renders a decision that you don’t agree with? No matter which side you’re on, you don’t give up.”

Judge Motz agreed. “If you don’t like what the Supreme Court’s doing then your answer is in the ballot box and you get a different legislature, a different executive and you make laws that are different and eventually they appoint different judges.” She added, however, that “… If I think that something my colleagues have done is fundamentally wrong, then I dissent.”

Referring to recent cases involving the detention of so-called enemy combatants, Rubin asked the two judges: “Are you concerned about government statements made to the courts of a national security need that may not be true, that are undermined in the end by the government’s own actions?”

Both Michael and Motz were careful not to comment on cases before their court or possibly to be reviewed by the Supreme Court. Speaking in general terms Motz said, “I think that the pull between civil rights, personal liberty rights, and national security interest is the big question that we are confronted with.”

Judge Motz recalled her experience being on a similar panel at Georgetown Law School a few months after Sept. 11, 2001. “I can remember saying, ‘I certainly am ready to forfeit some of my personal liberty rights …. I want people to be searching and I want there to be increased security and another judge was on the panel and he said, ‘These are the times when you have to be the most vigilant.’ And I think I’ve come to the conclusion that he was right and I was perhaps too trusting and too worried about the national security concerns and not worried enough about the civil libertarian concerns … There is this tension: we want to be safe and we want to be free. We want both … This is a defining moment that we have right now, this pull between civil rights and national security.”

Judge Michael agreed. “Throughout this country’s history, when we let down on the 4th Amendment … we’ve come to regret it. And, as Judge Motz said, I think there’s an argument to be made, although the questions are tough, for holding fast.”

The event was sponsored by the American Constitution Society.