judges/judging

Over the last decade it was my honor on occasion to invite Judge Pat Wald to join in a project, to contribute a writing or to speak at an event. Invariably she accepted with the same wry caveat: “Yes, if I am still here by then.” Happily she always was still “here,” enlivening every project to which she contributed. But now she is not. News media reported that Patricia Anne McGowan Wald died in her Washington home yesterday, having succumbed at age 90 to pancreatic cancer.

Many obituaries will focus on her prodigious and inspiring career in the United States: her journey, from a working-class upbringing in a single-parent family, to practice as a lawyer on child rights and in the Department of Justice, to service, in the District of Columbia Circuit, as the 1st woman Chief Judge of a U.S. Court of Appeals, and quite recently, as an Obama appointee to the Privacy & Civil Liberties Oversight Board.

We international lawyers also will recall Wald’s fierce service as a judge on the International Criminal Tribunal for the former Yugoslavia. There, she took part in noted judgments, among them a genocide conviction in Prosecutor v. Krstić and a “turning point” appellate ruling in Prosecutor v. Kupreškić.

Even after retiring from the ICTY, Judge Wald championed international criminal justice, placing particular emphasis on women. It was my privilege to welcome her interventions on these subjects, and at times to aid publication of her contributions (Pat’s computer savvy was, it must be said, rudimentary).

Just last year, our Georgia Journal of International & Comparative Law was honored to publish Pat’s essay “Strategies to Promote Women’s Participation in Shaping International Law and Policy in an Era of Anti-Globalism,” based on remarks she’d given here at the University of Georgia School of Law Dean Rusk International Law Center. They were a highlight of our 10th birthday conference for IntLawGrrls blog, not least because Pat referred to us assembled scholars and practitioners as “you ‘young people’ in the room.” She traced the beginnings of international criminal justice, then said:

“I do not suggest that the process of integrating women as upfront participants in international courts, let alone the inclusion of the crimes most commonly committed against women as worthy subjects of international criminal law jurisprudence, has been completed. More accurately, these developments had just gotten off to a reasonable start at the moment that global politics seem to have begun to shift toward a so-called anti-globalist populism. My central point, therefore, is that we must strategize in the face of a desired, yet elusive future.”

Her strategies: ally to strengthen international law, international legal education, and global-mindedness in many sectors, including the arts; “protec[t] the venues in which women have had significant impact,” including the International Criminal Court and related forums; and work globally to raise women’s awareness “about educational opportunities, rights to land ownership and profits, how to start a small business, how to farm efficiently, how to participate in voting or run for office, and about legal rights to divorce or separation.”

Issues like these were prominent in a special issue of the International Criminal Law Review, “Women and International Criminal Law,” dedicated to the Honorable Patricia M. Wald, for which I served as a co-editor along with Jaya Ramji-Nogales, Beth Van Schaack, and Kathleen A. Doty. Wald herself wrote on “Women on International Courts: Some Lessons Learned” for vol. 11 no. 3 (2011). And as shown in that issue’s table of contents, additional contributors included many whom Judge Wald’s life and work had touched: Supreme Court Justice Ruth Bader Ginsburg and Harvard Law Dean Martha Minow, along with Kelly Askin, Karima Bennoune, Doris Buss, Naomi Cahn, Margaret deGuzman, Katharine Gelber, Laurie Green, Nienke Grossman, Rachel Harris, Dina Francesca Haynes, Jennifer Leaning, David Luban, Rama Mani, Jenny Martinez, Fionnuala Ní Aoláin, Katie O’Byrne, Lucy Reed, Leila Nadya Sadat, and David Tolbert. The issue stemmed from a 2010 roundtable (pictured below) that then-Executive Director Elizabeth “Betsy” Andersen hosted at the American Society of International Law, an organization Judge Wald long supported.

Pat’s support for IntLawGrrls predated this event. In 2009, she had contributed a trilogy of essays to the blog: 1st, “What do women want from international criminal justice? To help shape the law”; 2d, “What do women want? Tribunals’ due attention to the needs of women & children”; and 3d, “What do women want? International law that matters in their day-to-day lives”.

In keeping with the blog’s practice at that time, Pat dedicated her IntLawGrrls posts to a transnational foremother, “a wonderful German/Jewish woman, Gisela Konopka,” a University of Minnesota social work professor with whom Pat had collaborated in a lawsuit against the Texas Youth Authority. In her lifespan of 93 years, Konopka, Wald wrote, “fought in prewar Germany for children’s rights, was put in a concentration camp, managed to get out and work her way through occupied Europe to America, where she became the champion of children, especially girls, who got in trouble with the law.” Explaining how Konopka had influenced her, Judge Wald penned a sentence that today does service as her own epitaph:

“She inspired me as to what an older woman can do right up to the point of departure to help those behind.”

Executive Branch Lawyering course, from left: Maria Eliot, Wade Herring, Professor Diane Marie Amann, Sarah Mirza, Hanna Karimipour, Jennifer Cotton, Taylor Samuels, Judge David J. Barron, Morgan Pollard, Keelin Cronin, Joe Stuhrenberg

Who decides how America wages war?

What does “commander in chief” mean?

What (national or international) laws govern the United States’ waging of war?

How and by whom are those law identified, interpreted, decided, and implemented?

Those questions and many more arose during the Executive Branch Lawyering course that I just had the honor of co-teaching with David J. Barron, Judge of the U.S. Court of Appeals for the 1st Circuit and also The Honorable S. William Green Visiting Professor of Public Law at Harvard Law School, where he had taught full-time before his 2014 appointment to the federal bench.

My own association with Barron – like me, a former law clerk to U.S. Supreme Court Justice John Paul Stevens – dates to 2008. That year, Barron and I were among the charter contributors to “Convictions,” a legal blog published for a time at Slate. And in 2017 Judge Barron began serving on the Judicial Advisory Board of the American Society of International Law, with which I am affiliated thanks to my editorship of ASIL’s Benchbook on International Law (2014).

For an 18-month period between those years, Barron served as Assistant Attorney General in charge of the Office of Legal Counsel, providing legal advice to then-President Barack Obama and to agencies in the Executive Branch. That experience formed the basis of the 1-credit course that he and I co-taught last week at my home institution, the University of Georgia School of Law.

Our texts included Barron’s 2016 book, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS, as well as The Terror Presidency: Law and Judgment Inside the Bush Administration, a 2009 memoir by Harvard Law Professor Jack Goldsmith, who had led OLC from 2003 to 2004 – plus executive orders, congressional enactments, judicial decisions, and other primary materials.

To prepare for sessions with Judge Barron, a topnotch group of 9 Georgia Law students and I examined a selection of historical moments when Presidents’ war-waging generated tensions, with other branches of government established in the U.S. Constitution and with other stakeholders. Of particular concern were instances related to executive detention in time of war, for example: treatment of British officers held during the American Revolution; General Andrew Jackson’s jailing of a judge who issued a writ of habeas corpus during the 1814 military occupation of New Orleans; and 2 capital military trials, the 1st of an Indiana civilian in the Civil War and the 2d of Nazi saboteurs in World War II.

Sessions with Judge Barron concerned US executive detention and related issues since the terrorist attack of September 11, 2001. The focus was on OLC’s legal, ethical, and practical duties in advising on such policies – and, through careful and extensive role-playing, on how Executive Branch lawyers go about the day-to-day work of giving such advice.

A most valued, and rewarding, teaching experience.

 

“The defendant before you is an innocent man.” That claim, rarely heard in a court of appeals and still more rarely sustained, compels the attention of the judge. All our provisions for appeal, our careful scrutiny of the record, our hearing of argument, our conferencing and analysis are designed to prevent just such a perversion of the criminal process as the infliction of punishment upon an innocent person. It is not our way to imprison a defendant because we do not like him or find his conduct worthy of disapproval. If he is to be stamped a felon by federal law, he must have committed a federal crime. If he has not, he is innocent. Such Marsh contends he is. Such Marsh should be found to be.

So wrote Judge John T. Noonan Jr., who died Monday at age 90. (photo credit) It appeared in United States v. Marsh, a 1994 decision by the U.S. Court of Appeals for the Ninth Circuit.

For all but a very few, Marsh was a mine-run case. And yet, I personally have never forgotten the quoted passage. For I was the Assistant Federal Public Defender who, late on the morning of November 3, 1993, stood before 3 judges – all of them slouched in their chairs, stern-faced and not a little tired after hearing a long string of short oral arguments – and began the scant 10 minutes allotted for her client’s quixotic appeal with these words:

“The defendant before you is an innocent man.”

It is a bold claim for any defense lawyer to make, in any case. It was especially bold in this case, which involved same-sex phone-sex.

Years earlier, my then-quite-young-and-poor client had met a not-poor, then-in-the-prime-of-his-life man. For decades they were often apart yet still in touch, often communicating by phone. By the early 1990s the elder man was quite elderly. His grown daughter discovered the still-continuing phone calls, and the consequent transfers of her father’s funds. The discovery spurred shock, then outrage, and then a federal complaint, trial, and conviction.

The trial transcript indicates that many in the courtroom found the underlying conduct and calls (the sexual content of which was discussed in graphic detail) distasteful, perhaps even repulsive. Perhaps it was for that reason that the prosecutor forgot to elicit any evidence of an essential element of this charged violation of the Hobbs Act; in this extortion case, to be precise, the prosecutor forgot to elicit even a scintilla of testimony to the effect that the alleged victim paid money out of fear.

It was my position that this utter failure to prove a material element of the offense compelled reversal of the conviction:

“The defendant before you is an innocent man.”

On hearing these words, 2 on the panel looked annoyed – no surprise given the overall tone of the case. But the 3d sat up straight and began asking questions. It was Judge Noonan, a Berkeley Law professor and noted scholar of law and Catholicism, whom President Ronald Reagan had appointed to the 9th Circuit in 1985. Noonan’s questions and my answers eventually produced the passage quoted above, published in dissent from the panel majority’s decision to sustain the conviction.

Anyone who has practiced federal criminal defense will understand this as a kind of victory, despite the larger loss of the appeal.

I met Judge Noonan in person not long after, in a lunch arranged by my supervisor, then-Federal Public Defender Barry Portman, another giant in the San Francisco federal courthouse. Only then did I learn that the question of when – even whether – words alone can provide the basis for criminal punishment was an issue with which the judge long had grappled. His thoughts gelled in one of his several significant writings, Bribes: The Intellectual History of a Moral Idea (1987). (Other works inclined toward legal history and philosophy, among them his masterful book-length case study, The Antelope (1990).) The judge was erudite, a gentleman – even courtly – and I was honored to have met him.

When I entered academia, Marsh joined the repertoire of practice stories I deployed to engage my Criminal Law classes. The experience stayed with me – and long after the decision, I learned that this lingering effect was not mine alone. A student alerted me to the following passage in a symposium piece, “The Foxboro Referee, the Boston Judge, the County Juror, and the Conscience of the Court,” 2003 U. Ill. L. Rev. 1403:

Call it the heart or the spirit or the inner person, there are in each of us perceptions and convictions that cannot be reduced to rules external to us. It is that internal core of the judge that a good advocate seeks to reach. “I represent an innocent man,” declared Diane Marie Amann in a criminal appeal I heard argued six years ago. I had never before heard such a claim. It spoke to something in me more tellingly than a reference to due process of law would have done. It set in motion thought and action …

The author, of course, was Noonan, discussing judges’ professional responsibility. The passage revealed that for him as for me, Marsh had been no mine-run case. It revealed that Judge Noonan still pondered my unexpected yet accurate protestation of my client’s innocence and, indeed, the injustice of my client’s conviction. It revealed that he still pondered his own “thought and action”: his lone vote against conviction, without concern about what mid-1990s America might think of the underlying conduct. It revealed a quintessential judge, whom we will miss.

Just had a chance to read in full the Marriage Cases – that is, U.S. Supreme Court’s June 26 judgment in Obergefell v. Hodges – and was struck by the degree to which it upends tradition.

No, not that tradition.

What’s striking is not so much the holding that the Constitution guarantees a right to marry that extends to couples regardless of sex. That result has seemed reside in the it’s-only-a-matter-of-time category for a while now.

What’s striking, rather, is that in reaching this result, the Court explicitly revived an interpretive method that views certain constitutional clauses as interlinked.

‘The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws,’

14th Amendment 2Justice Anthony M. Kennedy wrote for a 5-member majority. He continued:

‘The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.’

In support of this posited “synergy,” Kennedy cited numerous twentieth-century decisions, among them  Loving v. Virginia (1967), Zablocki v. Redhail (1977), and one I find a super teaching vehicle, Skinner v. Oklahoma (1942). He chose to stick close to the family-related subject matter at hand, and so omitted other examples of this method, such as Griffin v. Illinois (1956), requiring the provision of trial transcripts to rich and poor defendants alike. Each judgment evinces more concern for doing justice than for divining a single-clause source from open-ended terms like “due process” and “equal protection.” Some of these decisions also tend not to devote much time to shoehorning facts into “levels of scrutiny” – a judge-created superstructure not found in the Constitution’s text, and not invoked in last month’s Marriage Cases.

Far from aberrational, these developments follow a trend detectable in many constitutional opinions of the last couple decades. It bears echo to other Kennedy opinions, not to mention the duty to govern impartially posited by Justice John Paul Stevens during his many years on the bench. (Kennedy’s view that the Constitution’s framers intended today’s Court to interpret their words in an evolutive manner likewise jibes with writings of Stevens and another retired Justice, David H. Souter.)

Many law schools follow a format that puts the Due Process Clause in Con Law I and the Equal Protection Clause in Con Law II. That division has made for gaps or overlaps in teaching a number of issues. LGBT rights has been one of them. There are others – such as abortion – and one imagines the list will grow with the Court’s overt resuscitation of this method and others subsumed within what Kennedy calls “reasoned judgment.”

Time for those of us in U.S. legal academia to rethink how we teach constitutional law.

2justicesEight Justices of the U.S. Supreme Court today cut short an effort to use a state long-arm statute to hold a multinational corporation accountable for human rights abuses.

The judgment in Daimler AG v. Bauman thus freed the defendant, a corporation whose subsidiary, Mercedes-Benz USA, “is the largest supplier of luxury vehicles to the California market,” from a 2004 lawsuit brought by 22 Argentinians. As Justice Ruth Bader Ginsburg (above right) explained in her opinion for the Court,  plaintiffs alleged that Mercedes’ Argentina subsidiary had

collaborated with Argentinian state security forces to kidnap, detain, torture, and kill plaintiffs and their relatives during the military dictatorship in place there from 1976 through 1982, a period known as Argentina’s “Dirty War.”

The multi-count suit was on shaky footing even before the Court heard argument last October. The Court’s application of a presumption against extraterritorial jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (2013) impaired counts based on the Alien Tort Statute; similarly, the Court’s ruling in Mohamad v. Palestinian Authority (2012) that only human beings may be held liable under the Torture Victim Protection Act gutted counts based on that statute. Left were counts that looked to California’s long-arm statute, which permits a court to exercise personal jurisdiction provided that the state and federal constitutions so permit. It was this proviso that ended the case: Ginsburg wrote at footnote 20 that whether a court enjoyed general jurisdiction over a corporate defendant depended not only

‘on the magnitude of the defendant’s in-state contacts,’

but also on

a corporation’s activities in their entirety, nationwide and worldwide.

Applying this reasoning, the Court concluded that the named defendant lacked sufficient contacts with California, so that the Due Process Clause of the 14th Amendment to the U.S. Constitution forbade the exercise of “general” or “all-purpose” jurisdiction.

Ginsburg’s opinion for the Court further placed the holding within “the transnational context”: quoting a 2001 article by Friedrich K. Juenger (a since-departed and much-missed Cal-Davis colleague of mine), Ginsburg wrote that the Court’s withholding of jurisdiction jibed with practice in the European Union, and thus avoided “risks to international comity.”

The Court’s reasoning drew sharp criticism from Justice Sonia Sotomayor (above left). In a separate opinion sure to provoke much discussion among civil procedure profs, Sotomayor complained that

the Court decides this case on a ground that was neither argued nor passed on below,

and in so doing

unduly curtails the States’ sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries,

with the result of

shift[ing] the risk of loss from multinational corporates to the individuals harmed by their actions.

Notwithstanding her stated concern for the interests of individuals, even Sotomayor ruled against the plaintiffs in this case. She advanced a “far simpler ground,” which bore echo with the Court’s 2013 decision in Kiobel: “exercise of jurisdiction would be unreasonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct,” she wrote, adding, in an apparent reference to the courts of Argentina, “that a more appropriate forum is available.”

Sotomayor’s concurrence in the judgment thus underscores the Court’s current reluctance to provide a human rights accountability forum like that sought by these plaintiffs.

patDelighted to find amid my first-of-the-month mail the American Law Institute newsletter at left, featuring a brilliant photo of Judge Patricia Wald, beaming as Barack Obama bestows the Presidential Medal of Honor. The many inspiring reasons she deserved this award are detailed here. The ceremony took place back in November; so too this video interview of Pat. But the picture is timeless.

Judge_Patricia_Wald_A9E680357EDB9Delighted to see the name of Judge Patricia M. Wald among those set to receive the Presidential Medal of Freedom later this year. The White House announcement Thursday gave this terse account of her career:

‘Patricia Wald is one of the most respected appellate judges of her generation. After graduating as 1 of only 11 women in her Yale University Law School class, she became the first woman appointed to the United States Circuit Court of Appeals for the District of Columbia, and served as Chief Judge from 1986-1991. She later served on the International Criminal Tribunal in The Hague. Ms. Wald currently serves on the Privacy and Civil Liberties Oversight Board.’

That “international criminal tribunal” is, of course, the one that the U.N. Security Council set up to adjudicate offenses committed during the 1990s wars in the former Yugoslavia. Wald served as an ICTY judge from 1999 to 2001. As a onetime Wald clerk, Stanford Law Professor Jenny Martinez, wrote in a tribute appearing in “Women and International Criminal Law,” the special issue of the International Criminal Law Review dedicated to the judge:

‘When the U.S. government decided to nominate Judge Wald for the vacancy in The Hague, it was the modern equivalent of sending Justice Robert Jackson to Nuremberg. Judge Wald was unquestionably one of the most respected and admired federal judges in the United States. Nominating her to the ICTY said the United States took the court seriously, seriously enough to send one of its very best jurists to the posts.’

Martinez wrote that, at the ICTY, Wald:

► Helped reform procedures “to increase the court’s efficiency while ensuring fair trials.”
► ‘[C]ontributed greatly to the Tribunal’s jurisprudence”; for example, as a member of the Trial Chamber that in its 2001 Judgment in Prosecutor v. Krstić first used “the term genocide to the events at Srebrenica.”‘
► Demonstrated “courageous willingness to stand up for principle” in a way that “helped contribute to perceptions of the ICTY’s legitimacy”; for example, by presiding over the 2001 Appeals Chamber judgment that  reversed the convictions of 3 defendants in Prosecutor v. Kupreškić, who’d “been convicted based almost solely on one eyewitness’s testimony.” (I remarked on the significance of this decision in a 2002 American Journal of International Law casenote.)
► “Helped ensure,” through her “forceful presence in the courtroom,” “that gender-related violence was treated seriously and that victims were treated with respect.”
► “[C]ontinued to contribute to the project of international law since leaving the bench.” Wald’s served inter alia on the Open Society Justice Initiative board, as co-chair of the American Society of International Law International Criminal Court Task Force, as a member the President George W. Bush’s Commission on the Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction, and as a member of the privacy/liberties board mentioned in White House notice.

medalNow 84, Wald continues to inspire by example. I was honored earlier this year by her presence at the ASIL Women in International Law Group luncheon where I delivered the keynote speech. A couple years before, Wald had provided essential support to IntLawGrrls’ production the ICLR special issue, attending and speaking at the 2010 roundtable where papers were presented, and publishing her own speech as Women on International Courts: Some Lessons Learned. That essay complemented the 3-part series Wald published in 2009 at IntLawGrrls, on what women want from international criminal law (part 1 here, part 2 here, and part 3 here). (photo credits here and here)

Honoring Patricia McGowan Wald with the Presidential Medal of Freedom: a wise Obama decision.