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Posted April 5, 2007

Judges Discuss Life in D.C. Circuit Court of Appeals

Judge Thomas Griffith '85

Judge Thomas Griffith '85

It’s often called the second-highest court in the land, but the compliment may have as much to do with the camaraderie and professionalism of the D.C. Circuit Court of Appeals bench as with the critical role the court plays in deciding key cases involving the federal government, suggested Judges Thomas Griffith ’85 and Brett Kavanaugh during a Federalist Society talk Friday. The two judges came to town as part of a three-member panel of D.C. Circuit appellate judges presiding over the Law School’s William Minor Lile Moot Court competition Saturday.

Looking at the distinguished line of judges who came from the court, which most recently served as a stepping stone for Supreme Court Chief Justice John Roberts, Griffith said “it is more than passing strange to me that I find myself a member of this court.”

About two-thirds of the court’s docket includes cases involving the federal government in a civil action in some form, whereas nationwide such cases account for less than 25 percent of dockets. With the expansion of the federal government in the 1970s, “our docket grew,” Griffith explained, and since then the court has heard cases on the Pentagon Papers, Watergate, whether Microsoft broke antitrust laws, and the legality of holding Guantanamo Bay detainees, to name a few.

Robert Post

Judge Brett Kavanaugh

“The facts in the cases we get are very interesting,” said Griffith, despite the docket’s focus on administrative law, which many attorneys consider mundane. Their cases have a “huge impact on the lives of Americans.”

Unlike other federal appellate courts, the D.C. Circuit Court pulls from a national pool of candidates for judgeships, Griffith said, and all the judges’ chambers are in the same building, unlike other federal districts.

“There is something deeply moving about the performance of this court,” Griffith said, noting that cases often aren’t decided along liberal-conservative lines. “I believe that citizens must argue with one another, but that we must also conduct these arguments in a respectful fashion.”

Kavanaugh, who joined the court in June and is its latest appointee, went through a confirmation process that took three years due to a Senate filibuster.

Even after his contentious candidacy, when he was finally confirmed, Chief Judge Harry Edwards welcomed him with open arms and offered him a signed copy of a law review article he had written on the collegiality of the bench. “That really made an impression on me,” Kavanaugh said. “We hope to maintain and enhance the collegiality of the court.”

Kavanaugh noted that he is often asked whether oral arguments matter.  “It really makes a difference in terms of how we decide cases.” When oral arguments begin, the judges “are very well prepared, but they haven’t made a final decision yet.” He also warned that oral argument is a “very challenging experience” for the attorneys arguing before them. He recalled that even the legendary John Roberts would prepare for cases by studying index cards that held questions on one side and answers on the other. “Mere mortals need to do at least what he was doing,” he said.

When the judges turn to conference, “there really is discussion and deliberation and debate about particular issues,” Kavanaugh explained. Unlike the Supreme Court, the junior-most—not the most senior—judge voices his opinion first. “I need to have a pretty good idea of what I want to say at conference.”

Kavanaugh urged students in the audience to consider careers in public service. He also suggested they try “to get into court as much as you can” early in their careers, which can be difficult when working for mid-size or large firms. Furthermore, “maintaining your moral and ethical compass as you go through your career is so critical.”

Asked about the long confirmation process suffered by many federal appellate court judges in recent years, Kavanaugh said he thought the Senate should have a time limit by which a candidate must be voted on. As it stands now, “there are a lot of good lawyers out there who don’t want to go through the process.”

“You’re really seeing echoes from [the difficult nomination of Robert] Bork,” who was denied a seat on the Supreme Court, Griffith added. “Payback doesn’t work…It’s no way to govern.”

Both denounced the idea that politics creeps into their decisions. “Our job…is to find out what the people of the United States have decided, through their representatives, what is fair and just” and apply it, Griffith said. As judges, “you get to figure out what the law means and apply it dispassionately.”

“We are all judges who follow the will passed by Congress,” Kavanaugh said. “Our only agenda has to be the law.”
• Reported by Mary Wood