On Circuit Court Judging – Selected Reflections by Judge Robert Bork

borkRecently, I began some extended research on Judge Robert Bork and his views on the First Amendment. In the course of that research, I read various items in the Oral History Project of the Historical Society of the District of Columbia, and in particular the oral history file on Judge Bork. I read a transcript of a March 13, 1992 audio interview with the Judge conducted by Victoria L. Radd (then Deputy Assistant to the President and Deputy Director of Communications). (Image: here.)

 In the process of reading through that file, I came upon some fascinating comments Judge Bork offered concerning his sense of being a Judge on the United States Court of Appeals for the District of Columbia. Below I have excerpted a few of those comments.

Assembly Line Jurisprudence

You sit all day in chambers by yourself working on these things and then you go home and talk to the dog at night. It’s a very isolated lifestyle. . . . [E]verybody is busy and you don’t drop in on a judge to kick around a legal question because the judging has become too much of an assembly line process – get the stuff out. And it was regarded as an imposition on somebody to drop in and talk over a case, particularly if they weren’t involved in it. Even if they were involved in it, they communicate by sending a draft back and forth – memoranda and dissents and so forth. Rarely do you get together. We’d get together right after the argument . . . for a discussion and a vote. But typically that’s the last time you are face-to-face about the case. 

 No More Learned Hands

[Y]ou know, somebody wrote an article saying no more Learned Hands – that there’d never be a Learned Hand again, because there simply isn’t the time to deliberate in they way they used to. Hand used to go out . . . he had a house in the country, as you know. The panel would sometimes meet at his house and spend all day Saturday discussing a case. Today we just keep cranking it out. [Perhaps the article to which Judge Bork referred was that of Judge Howard T. Markey, On the Present Deterioration of the Federal Appellate Process: Never Another Learned Hand, 33 S.D. L. Rev. 371 (1988).]

Like Calling Balls & Strikes

You know, it’s a job, and after a number of years you see a lot of judges who just don’t care anymore, and it’s very hard to keep your interest up. Cases come up in random order, that is, the subject matters are random, you don’t really have any [actual time to deliberate] – it’s not like teaching a course in which you learn a field of law. It’s more like calling balls and strikes, which is not the most exciting thing in the world.

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