Tagged: Federal Judges


Kozinski Revisited — 10 ways to become a Federal Judge by 35 . . . and more!

Give credit where it is due — and especially where it is not. — Alex Kozinski (8-19-96)

Over at the Volokh Conspiracy Eugene recently posted excerpts from a new article by Judge Alex Kozinski; the piece is titled “12 Reasons to Worry about our Criminal Justice System.” Eugene’s posting got me to thinking (yet again) about Kozinskian lessons on life and law.

Thus this post concerning an August 19, 1996 National Law Journal article by the Judge titled “So You want to Become a Federal Judge by 35?

Judge Alex Kozinski (credit: The Recorder)

Judge Alex Kozinski (credit: The Recorder)

Given the sound counsel in that piece, I thought our under 35 age readers might appreciate familiarizing themselves with the his 10 “commandments.” Take heed: they may serve you well. At the end of these “commandments” (as I term them), I asked the Judge a few followup questions, which he kindly answered. They should be of interest to the over 35 crowd.

Onward, then, to Alex Kozinski’s Ten Commandments, albeit in abbreviated form:

Commandment I: “Decide early. This, the most obvious step of all, is often overlooked. .”

Commandment II: “Get into politics. Judging is not a partisan political process, but being fitted for the robe definitely is. . . .”

Commandment III: “Never back a loser. Campaiging for the Spotted Owl Party in the middle of a lumberjack country won’t get you a robe. . .”

Commandment IV: “Get a job in Washington. If you want to become a federal judge; you might as well peddle your wares in the federal judgeship bazaar. . . .”

Commandment V: “Get to know your senators. You won’t get a federal judgeship if a senator from your state objects” to you or your credentials.

Commandment VI: “Make friends on both sides of the aisle. . . .”

Commandment VII: “Ask a lot of people for favors. . . . Most people believe that the way to get ahead in politics is to do a lot of favors for others so they’ll owe you favors when you need help. In fact, people hate to pay back favors — it makes them feel cheap; anyway, they always think the favor you’re cashing in is worth lesss than the one you’re asking in return. . . .”

Commandment VIII: “Give credit where it is due — and especially where it is not. When you do achieve a measure of success . . . be sure to thank those who helped. . . .”

Commandment IX: “Do your level best at whatever job is entrusted to you. Political assignments are not merely stepping stones; they are important jobs in themselves. . . . [And] if you disappoint someone who has helped you, don’t expect that person’s help again.”

Commandment X: “Don’t be daunted. . . There’s a fine line between being persistent and being a pest; don’t crosss it, but get close to it.”

So if one follows those ten commandments, will they work? Well, “you’ll have a very good shot” wrote Kozinski, provided you have a “modicum of intelligence and common sense.” And, of course, a kindly nod from Fortuna is always helpful.

* * *  *

 Twenty Years Later — A Few Followup Questions 

Most judges leave politics behind when they take the bench. — Judge Alex Kozinski (7-18-15)

In 1981-1982 Alex Kozinski served as the first U.S. Special Counsel; he was appointed by President Ronald Reagan. Thereafter, he was nominated to be Chief Judge of the United States Court of Federal Claims. In 2002 he spoke at a conference celebrating the twentieth anniversary of the US Court of Federal Claims. On that occasion he said: 

My acquaintance with the new court started one day while riding the Metro during the spring of 1982. In those days, I used to read U.S. Law Week religiously, even the boring parts at the end where they reported on new legislation and such stuff. I was getting near my stop – it was Farragut North in those days – when I came across a new statute called the Federal Courts Improvement Act of 1982. Yeah right, I thought. How can one possibly improve the federal courts? But, as I read on my eyes opened wide: 

The Act created two new courts, the Federal Circuit and the United States Claims Court. I glossed quickly over the Federal Circuit; too ambitious, I thought. Maybe in three years or so I could think about becoming a circuit judge. But the Claims Court retained my interest. The Act provided that the President would be appointing all the judges of that court – fifteen in all – and, most interesting to me, he would also be designating the court’s chief judge. “Shezam!,” I thought to myself. That’s my job! 

Over the next couple of weeks I spent considerable time on the phone calling everyone I knew in the White House and Justice Department, explaining to them why I’d be the ideal candidate to be chief judge of the Claims Court. In truth, I don’t remember what I said, because I can’t think of anyone less suited for that position. In addition to knowing nothing about the court, I knew nothing about trials.

In 1985, after having served on that court and when he was 35, President Reagan nominated Kozinski to the Court of Appeals for the Ninth Circuit. He was confirmed: 54 to 43.   

Question: Did you follow your own advice? Be honest!

Kozinski: For the most part. I’d probably do a better job on some of them today — like making more friends with people on the other side of the political fence.

Question: Your 10 “commandments” speak mostly to the prospect of being nominated to be a federal judge. Do you have any additional advice — e.g., dos and don’ts — on how best to weather confirmation hearings?

Kozinski: Try answering questions by using baseball metaphors.

Question: If Judge Robert Bork had taken you’re advice, starting from when he was 25 in 1952, would he have had a “very good shot” at becoming a Supreme Court Justice?

Kozinski:  With my advice he’d have certainly become a Justice.

Question: The political atmosphere today seems different from what it was twenty years ago when you wrote your article.  It seems more polarized. No? If so, how does that affect your “get into politics”/ “make friends on both sides of the aisle” maxims?

Kozinski: Those maxims are probably more relevant now than ever.

Question: Can you give an example of when persistence turns into annoyance?

Kozinski: When you persist by trying the same (failed) strategy over and over again. To avoid annoyance you have to be imaginative in your persistence.

Question: Tell us more about the art of asking favors of others so that they do not feel exploited.

Kozinski: Appeal to their better nature. Make no promises as to how you would vote on cases or issues. Be dignified. And don’t overreach. Most important of all, promise to reciprocate when you’re in a position to do so.

Question: Say more about what you meant when you said “give credit . . . where it is not” due.

Kozinski: Let’s say you ask 10 people for help and you then find out that only one or two made a difference.  The rest either didn’t try or were ineffective. Never mind — they all get 100 percent of the credit:  “I couldn’t have done it without you.”

Question: You claim that “judging is not a partisan political process.” Are you speaking of the ideal of appellate judging or the reality of such judging? It seems that many people now just assume that such judging is partisan.

Kozinski: Not in my experience. Most judges leave politics behind when they take the bench. Of course, your philosophy stays with you, and that will inform you decisions-making. Sometimes that looks like politics, but it’s not.

Question: Mindful of what you say in “Commandments” 6-8, can you tell us the names of some of the people whose help made a difference in you getting nominated to be a Circuit judge?

Kozinski: I probably shouldn’t mention names without their consent, but there are many names you’d recognize.

Question: Given how confirmation hearings are conducted in the post-Bork era, just how candid do you think that a judicial nominee can be in answering senator’s questions? Isn’t the name of the game to be as evasive as possible? Or not?  What is your sense of this?

Kozinski: Yes, total candor is probably best left for private conversations. Always follow the three rules of  live in Washington:

  1. Don’t say it if you don’t want to see it quoted in the Washington Post.
  2. Don’t do it if you don’t want to be asked about it during your confirmation hearings, and
  3. If you can eat it and drink it in a single sitting, it’s not a bribe.

Question: What do you think of an 11th “Commandment”: Whatever else you do, avoid writing anything on any potentially controversial topic (e.g. capital punishment, criminal justice, abortion, campaign finance, gay rights, women’s rights, corporate rights, environmental protection, etcetera).

Kozinski: I’m not so sure. You do have to do something to be noticed. Timidity may result in its own kind of failure.

Question: What is your sense of the A.B.A. committee that evaluates judicial nominees?

Kozinski:They gave me a hard time and eventually gave me a mixed Q/NQ rating. But they did let me get by, so I’m grateful.

purported sighting of the young Kozinski in a forest (credit: NBC News)

purported sighting of the young Kozinski in a forest  (credit: NBC News)

Question: Given your talents in advising young men and women on how to best secure a federal judgeship, do you have a few words of wisdom for law students who aspire to be law clerks for a federal judge?

Kozinski: Bust your buns; sleep little; read much; and take lots of practice exams.

Question: If your plans to be a judge had never panned out, what do you suppose you’d be doing today?

Kozinski: I would have been a lumberjack!


The Maverick – A Biographical Sketch of Judge Richard Posner: Part I

Below is the first installment in a multi-part series of posts on Seventh Circuit Judge Richard Posner. The first two installments consist of an unconventional biographical profile of the Judge. These posts will be followed by a series of posts consisting of the Judge’s candid and often unexpected responses to numerous questions I posed to him along with those of 24 noted legal figures. In the process, Judge Posner bursts into the breach with frankness about his views on privacy, the exclusionary rule, NYT v. Sullivan, intellectual property rights, law and economics, constitutional interpretation, legal education and scholarship, and the politicization of the judiciary. With Posnerian resolve, he also speaks of his own life, his onetime thoughts on being a Supreme Court Justice, his cherished feline, and even his favorite rock stars. Given all that, we selected “Posner on Posner” as the title for this series.

Note: Some links will open only in Firefox or Chrome but not in Safari. 


A man[’s] . . . thinking should be

cosmopolitan and detached. He should

be able to criticize what he reveres and loves.

                                                — Oliver Wendell Holmes, Jr., February 4, 1901

He is like no other. Cool, calm, and calculating (in a methodical sense, that is). To watch him, one might think him shy, if only because of the way he averts his blue eyes when speaking. His complexion is fair (sun sensitive), which makes for a striking contrast to the dark suits he often dons. His appearance is ordinary, highlighted only by a blue Oxford linen shirt and wide-framed rectangular glasses. He speaks in a measured manner and while his voice can be monotonic, his oral style can fluctuate from serious to humorous. At times, his expression is flat, though once and a while a chuckle erupts, prompted by some folly he underscores or some hypocrisy he exposes while discussing this or that point or person. His public conversations with others can seem singular; they smack of a man thinking aloud.

Candor is his calling card, print is his preferred medium, and the moves of the mind are his raison d’être. One is reminded, in a fleeting philosophical sense, of Ludwig Wittgenstein. The “atypical . . . manner and character” of both men only adds to the resemblance. That said, there is one big difference: He is no parlor philosopher; he is a man who lives to transform ideas into action.

To some, he is an irritating gadfly. To others, he is a cold-blooded pragmatist. To many, he is an enemy of liberalism, while to many others he is a foe of conservatism. To more sensitive types, his economics-grounded “thinking is inevitably without compassion and often cruel.” To more cerebral types he is “our most prominent rationalist.” To those whose world is divided along uncompromising ideological lines, his views on the Second Amendment are horrendous and tyrannical, even if he is quite libertarian when it comes to legalizing marijuana, “cocaine, heroin, methamphetamime, LSD, and the rest of the illegal drugs.” To still others, he is a mental maverick gunning for any kind of specious arguments (especially self-righteous ones) that pass for gospel. And to yet others, he is the only one who dares to describe law as it is here on mortal earth rather than how it might be in some utopian salon. In that realist respect, there is even a Machiavellian streak in him.

He is, to be sure, an acquired taste. Even to those who know him, there is a distant quality about his personality. Perhaps because of that, those who know him appreciate his wit and playfulness all the more. Not one to hand out a diplomatic compliment, merit is the measure that rules his life.

Past as Prelude

Richard A. Posner, Harvard Law Review photo

Richard A. Posner, Harvard Law Review photo

He is Richard Posner. At 75, the New York City born jurist shows no signs of slowing down. If anything, his cerebral game is as good or better than it was in 1959 when he graduated summa cum laude from Yale College at age 20 (he was an English major with an avid interest in Yeats) or when he graduated first in his class from Harvard Law School in 1962 (he was President of the Harvard Law Review). 

His credentials as a young man all signaled future greatness – law clerk to Justice William J. Brennan (1962-63 Term), assistant to Commissioner Philip Elman of the Federal Trade Commission (1963-65), and assistant to Solicitor General Thurgood Marshall (1965-67). In that capacity and others, he wrote some 40 briefs and argued ten cases before the Supreme Court. The cases he argued were:

  1. Consolo v. Federal Maritime Commission (1966) (audio here)
  2. Accardi v. Pennsylvania Railroad Co. (1966) (audio here)
  3. United States v. Von’s Grocery Co. (1966) (audio here)
  4. First National Bank v. Walker Bank (1966) (audio here)
  5. Illinois Central R. Co. v. Norfolk & W.R. Co. (1966) (audio here)
  6. Honda v. Clark (1967)(audio here)
  7. United States v. Arnold, Schwinn & Co. (1967)
  8. Will v. United States (1967)
  9. Volkswagenwerk Aktiengesellschaft v. Fed. Mar. Comm’n. (1968)
  10. National Broiler Marketing Association v. United States (1978) (Frank H. Easterbrook was on the brief for the government on the other side)

Posner also served as general counsel on President Johnson’s Task Force on Communications Policy (1967-68). Soon enough the legal academy beckoned him, first as an associate law professor at Stanford (1968-1969) and later as a professor at the University of Chicago Law School (1969-1981). It was during that time that at age 34 he published his momentous work, Economic Analysis of the Law (1973) (now in its 9th edition).


The virtual Posner

As if all of that were not enough, “Posner augmented his professional life . . . found[ing] Lexecon Inc., a [profitable] consulting firm that tried to put into practice [his law and economic] theories. A large portion of Lexecon’s early business, when he was still a partner, was advising companies as to whether their competitive practices would run afoul of antitrust laws.” In late October of 1981, after his time in the legal academy, Posner then pursued a judicial path as a Ronald Reagan appointee to the Seventh Circuit. In the process, he traded wealth for fame – not what one typically expects from a unapologetic cost-benefit capitalist.

One more thing: In 2006 the ever-colorful Judge stared as an avatar in Second Life, an online virtual community.

The Brennan Clerkship

I was a little disappointed in the Supreme Court. I had a

more elevated opinion of it as a law student than it merited.

                                                                            Richard Posner

To return to his clerkship with Justice Brennan: It came to him via Paul Freund (1908-1992), the famed Harvard professor of constitutional law. In those days it was customary for certain law professors to select law clerks for some of the Justices, this even without a prior clerkship. Young Posner (age 23) was one of Freund’s two picks.

Once he arrived in Washington, D.C., Posner went to work on a variety of jobs for Justice Brennan. It has been reported that during that time he “wrote up an opinion arguing the reverse of Brennan’s [initial sense of the] decision.” Things worked out, nonetheless, and the clerk’s opinion proved “so compelling that Brennan and the Court changed their minds and adopted it.” That unanimous opinion, replete with 83 footnotes, was Sanders v. United States (1963), a habeas corpus case.

Posner also had a hand in writing another habeas case, Fay v. Noia (1963). And then there was NAACP v. Button (1963), a First Amendment civil rights case he authored. For Harry Kalven (1914-1974), the renowned First Amendment scholar, the Button opinion was an important one. “The Court,” he wrote in The Negro and the First Amendment (1965), “offers a generous view of the range of First Amendment protection, a view which seems to me to be indisputably correct although the Court had never previously been given an appropriate occasion for announcing it.” Kalven found it “exciting” that the opinion appeared to break “new ground.”

In a 2013 interview Posner reminisced about his clerkship at the Court: “The most significant experience of my clerkship was happening to work on a case assigned to Justice Brennan, an antitrust case called United States v. Philadelphia National Bank (1963) [the vote was 5-1-2 with Justice White not participating and Justice Harlan dissenting]. And working on that greatly stimulated my interest in antitrust law, and my time in Washington after the clerkship – I was there for another five years – I was mostly concerned with antitrust issues. So that was, I’d say, the most significant experience I had at the Supreme Court.”

Four Brennan-Posner opinions – there is a certain irony here, namely, that these opinions were written by a law clerk who when he became a judge refused to permit his own law clerks to write his judicial opinions. Then again, as Judge Posner once quipped, “Life is full of surprises . . . .”

judgeposner_2010Mind Games — A Multidimensional Man

Richard Posner is a man of the mind. He welcomes the challenges of complexity; he takes pride in showing the hollowness of legal abstractions; and he loves to simplify the complex without leaving it senseless. Speaking in a soft but nonetheless deliberate tone, he delights in exposing babble masquerading as legal argument, and can be rather relentless when counsel persists in being evasive (see, e.g., here).

In a legal world divided, on the one hand, by jurists who demand the rigidities of rules in matters of interpretation, and jurists who, on the other hand, insist on the flexibility of standards, Posner readily sidesteps ideological boundaries. As he sees it, such disputes are better understood as psychological in character than logical in nature. He prefers a more pragmatic contextual approach. To draw upon his own words in MindGames Inc. v. Western Publishing Co. (2000): “some activities are better governed by rules, others by standards.” Thus, in MindGames the Court declined to be bound by a 1924 rule regarding new businesses and lost profits.

Another Posnerian trait: He is not oblivious to the obvious, even when others are. And he does not hesitate to speak sternly when the circumstances warrant it, as in a class actions case (Eubank v. Saltzman) involving a lawyer who took far too many liberties. There, Posner used the opportunity of the controversy to demonstrate the factual oddities and ethical problems with the case, this while offering several learned yet pragmatic observations about this body of the law and its efficient operation. He did much the same in another class action case (Redman v. Radio Shack Corporation) in which he was quite critical of a settlement that offered Radio Shack customers about $830,000 worth of coupons while offering the lawyers who negotiated it $1 million. He was equally outspoken in a recent copyright case (Klinger v. Conan Doyle Estate, Ltd.). And his edgy wit and probing reasoning were much apparent in a pair of recent same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker) in which he was particularly hard on the counsel for the state during oral arguments in those cases.

Color him with many stripes. Posner relishes the study of economics; he savors the lure of literature; he delights in clearing the air polluted by scandalous politics; he enjoys applying his free-market thinking to explain the various economic crises of our time; he relishes the chance to confront head on those issues that bedevil cultural critics; and he loves his life in the law (be it jurisprudence, antitrust, intellectual property, regulatory law, patent law, labor law, criminal law, or constitutional law). In a world increasingly bereft of public intellectuals, he rises from the lifeless ashes like a modern-day Phoenix. True to that cerebral calling, Posner has personal opinions, often controversial, on everything from sexual behavior to judicial behavior and beyond to subjects as diverse as terrorism, global warming, aging, moral and literary theory, and even the risks of catastrophic harm due to an asteroid colliding with the earth.

Unconventional Appeal Read More


The Law Clerk Hiring Process – An Interview with Federal Judge Thomas Ambro

Thomas Ambro is a judge on the United States Court of Appeals for the Third Circuit and sits in Wilmington, Delaware. He was confirmed by the Senate by a 96-2 vote and has served on the Third Circuit since 2000. Judge Ambro received both his undergraduate and law degrees from Georgetown University. He was a law clerk for former Delaware Supreme Court Chief Justice Daniel Herrmann (1975-1976). Thereafter, Judge Ambro was with the firm of Richards, Layton & Finger in Wilmington, Delaware, where he was known nationally in two areas—legal opinions in commercial transactions and bankruptcy. Judge Ambro is a former Chair of the Business Law Section of the ABA. He is also a member of the American Law Institute and the National Bankruptcy Conference.

Welcome, Judge Ambro, to our corner of the blogosphere here at Concurring Opinions. It is an honor for us to have you contribute to this blog.Unknown

Question: How many law clerks do you have, and how long are their terms?

Answer: I have four law clerks per term. Generally those who clerk with me serve only one term. Because of the timing of exceptional post-clerking job opportunities, a few clerks have served less than a full-year term. For scheduling reasons, some have served up to a few months longer.

Question: Tell us a little bit how the clerkship application process works. For example, when do you first start accepting applications and up to what point do you stop considering them?

Answer: When the hiring protocols were in effect, I would receive applications from putative clerks via  OSCAR (Online System for Clerkship Application and Review) when those applications were released. All applications would be from persons who had completed at least their 2L year in law school. Because the hiring plan for federal law clerks has been discontinued, applications now come in randomly, and they are often from applicants in their 2L years.

I stop considering applications when the four law clerk positions for a term have been filled. Thereafter, the judicial assistant in our chambers alerts OSCAR of this fact.

I review the applications sent to me, whether online or in the mail. If I am interested in a particular application, I either wait for the letters for recommendation to come in (if they do not accompany the application) or begin calling the recommenders. Often an application is preceded by one or two recommenders alerting me of an applicant and inquiring whether I have a position available for the term to which the applicant is applying. In any event, if I remain interested, I call the applicant to set up a time to meet. For the four spots in a given term, it is uncommon that I would have more than a half dozen interviews with potential applicants.  In addition, the interviews with me and with my clerks are lengthy. Thus, it is rare if I do more than one interview of an applicant in a day.

Question: How much do you rely on OSCAR?

Answer: With the demise of the hiring plan, many applications come by mail. Thus, in a technical sense, I rely on OSCAR less than I did when the hiring plan was in effect. Nonetheless, I find OSCAR very helpful in every respect I can think.  In addition to saving reams of paper, it is both easy to use, highly efficient, and much appreciated.

Question: How far in advance do you select your clerks?  Some federal judges are now hiring two years in advance?  What is your current practice?

Answer:  Right now (March 2014) I have all positions filled for the 2014-’15 and the 2015-’16 terms.  I also have two clerks committed for the 2016-’17 term. My typical lead time for a clerk is two years. That may mean that a clerk will be at least a year removed from law school when she or he begins working in my chambers. That time is usually spent in another clerkship (almost always a District Court clerkship, though on two occasions it has been another Circuit Court clerkship), with a law firm, or sometimes both another clerkship and work in a law firm. Read More