Some Flamboyance, Lots of Hard Work Mark the Second Circuit

By Marci Alboher, The National Law Journal, March 29, 2001

Judge Learned Hand, possibly the most esteemed American jurist not to sit on the U.S. Supreme Court, served as a judge on the U.S. Court of Appeals for the 2nd Circuit from 1925 to 1950. Judge Hand’s legacy is a powerful presence in the circuit and one that the court has proudly tried to live up to. With its reputation for smart judges, respect for the judicial process and administrative efficiency, the 2nd Circuit may well be an appellate litigator’s dream court.

The 2nd Circuit handles appeals from federal district courts in New York, Connecticut and Vermont. But New York, because of its role as the national center of commerce and finance, is mostly responsible for the number as well as the character of cases before the circuit. Thus, the 2nd Circuit hears cases involving commercial disputes in a wide range of fields, including finance and securities, publishing and other media, labor relations, immigration and even maritime law. It also hears many cases involving organized crime. Most of the lawyers and legal scholars interviewed for this article agree with Thomas Maroney’s characterization of the circuit. A professor at Syracuse University College of Law, he has firsthand experience, having served as the U.S. attorney for the Northern District of New York from 1994 to 1999. He says the 2nd Circuit is “nowhere near as conservative as the 4th and nowhere near as liberal as the 9th,” which puts it “roughly center or a touch left of center.” And the same folks would nod in agreement that judges on the court are among the best prepared and most respectful of litigators of any circuit court in the nation.

The court has had a recent change in leadership. In October 2000, Chief Judge Ralph K. Winter took senior status, and Judge John M. Walker Jr., a seasoned jurist who had already served almost 11 years in the circuit, became chief judge.

Chief Judge Walker began his judicial career in 1985 as a district court judge in the Southern District of New York, appointed by President Reagan. In 1989, he was appointed to the 2nd Circuit by President George H.W. Bush, who is his cousin. The court is now bursting with moderate Clinton appointees (nine out of the 12 active judges). It has one vacant seat for President George W. Bush to fill. For that seat, Judge Walker says he is hoping for a “good lawyer” who is “hard-working and fully understanding of the very rich traditions of the 2nd Circuit.” The court also has nine senior judges who have elected to retire from active service while retaining their office and some judicial responsibilities.

The 2nd Circuit has a reputation for intellectual acumen; several of its members came to the bench directly from academia. Notable among these are Judge Guido Calabresi, former dean of Yale Law School, and Judge Robert A. Katzmann, who wrote several books about the judicial system during a distinguished career at the Brookings Institution. In addition to those with academic backgrounds, the other active judges fall largely into two categories: those who came from private law practice — including judges Amalya L. Kearse, Dennis G. Jacobs, Chester A. Straub and Robert D. Sack; and former district court judges — including Chief Judge Walker and judges Jose A. Cabranes, Pierre N. Leval and Sonia Sotomayor. Chief Judge Walker says that these differing backgrounds allow each judge to bring a unique perspective to the opinions he or she writes. As a testament to the court’s reputation as a bench of serious thinkers, several veteran practitioners before the circuit note the frequency with which these judges think of legal theories missed by the litigators presenting cases.

A Temperate Bunch

Judges on the 2nd Circuit bench are not particularly flamboyant. Indeed, the 2nd Circuit judge most likely to grab headlines is Judge Kearse a world-class bridge champion. What’s incredible about her, Chief Judge Walker says, is that she’s so gifted that she has found the time to achieve what she has in the world of bridge “without being overwhelmed by the work of the court.”

Judge Kearse, the only black judge on the court, is one of three women on the court. According to many watchers of the court, she is also, along with the nine Clinton appointees, part of a more liberal group. But these judges are not easily pigeonholed. Although the court may be seen as activist on some issues (such as protection of First Amendment rights), it can be more moderate on issues in the criminal arena.

Ideologies aside, many lawyers practicing before the circuit say that its panels are not always predictable. “You don’t see some of the litmus test decision-making you might see in other courts,” says Barry Ostrager, co-head of the 185-lawyer litigation group at Simpson Thacher & Bartlett. This may be due, in part, to the court’s long-standing tradition of cohesiveness and its ability to build consensus, both of which contribute to its tendency to avoid dissenting opinions as often as possible.

Case management

Workload is an issue for the 2nd Circuit, one of the busiest in the country. The circuit hears approximately 30 cases in any five-day sitting, up from 10 to 12 a week in Judge Hand’s day. Given the large number of cases before it, the court looks for ways to streamline the process. Steven E. Obus, a partner at Proskauer Rose, who has argued in the 3d and 4th circuits as well as the 2nd, says one of the distinctive aspects of the circuit is that “you may get a decision you’re not allowed to cite in the future.” What he’s referring to is the court’s use of summary orders. Although these unreported decisions enable the court to manage its enormous caseload, they have been criticized by some practitioners because they carry no precedential weight.

In his 13 years on the bench, retired Judge George Pratt learned that the court was “very conscious of the need to write opinions when opinions are called for.” But in his experience, “more than two thirds of the cases coming before the court don’t belong there” because they contain only routine variations of fact applied to well-established principles of law. In such cases, Judge Pratt explains, the court can issue a summary order, which can be prepared in one or two hours, as opposed to a full opinion, which would go through four to five drafts and take several days.

“When it comes to certain motions, the court is known for its speediness,” says Mr. Obus. “If you are in receipt of a motion on a procedural matter in the 2nd Circuit,” he says, “the first thing to do is call the clerk if you want to oppose it, or else there’s a fair chance that an order will be issued before you’ve had a chance to respond.” And that’s not just true of motions. According to Judge Pratt, because the judges have the briefs three weeks before oral argument, in many cases oral argument holds few surprises for the panel. “The court’s panels meet in the robing room immediately after oral argument and, if all feel able, they tentatively vote and sometimes even assign the opinion,” he says.

En banc?

No, thanks. A distinctive feature of the court is its extreme reluctance to grant en banc reviews, which allow the full complement of active judges to reconsider decisions issued by the three-judge panels that decide all appeals. During the past 10 years, Chief Judge Walker says, the court has not granted more than two a year, and some years have passed with none. He says that the circuit is willing to tolerate “some dissonance in panel opinions because we feel that en bancs are often counterproductive and can result in fragmented opinions.” Judge Pratt is more vehement, saying that he “detests en bancs” and finds them to be a waste of time. “You end up with four different opinions and don’t know what the law is,” he says, recalling the results of one en banc decision years ago that involved 11 judges and yielded nine different opinions and for which “you literally needed a spreadsheet” to determine what the court had decided.

“It’s a pleasure to appear before the circuit,” says Leon Friedman, a professor of constitutional law at Hofstra University School of Law, who has handled many appeals before the court. Stanley Goodman, a partner at Grotta, Glassman & Hoffman in Roseland, N.J., recalls one case as reflective of the court’s culture. His opposing counsel was a young lawyer clearly making her first oral argument. “If any judge barked at her, she would have been destroyed,” he says. But his impression was that the judges were “kind, gentle and concerned with making sure everyone leaving the room had their own hearing.”

This respect for the appellate process comes through in other ways. The court has a policy of allowing oral argument in every case in which it is requested. This right is even extended to pro se litigants (but not incarcerated prisoners). Karen Greve Milton, the circuit executive, says that she knows of no other circuit in which pro se litigants can argue their own appeals.

As a practical matter, the 2nd Circuit generally sits only at the Foley Square location in Lower Manhattan, but on occasion, it holds sessions elsewhere in the circuit. For the convenience of those litigants who live or work far from New York, the court can arrange oral argument at one of its videoconference facilities, which are available at federal courthouses at nine sites within the circuit. The court encourages the use of such conferences and is in the process of upgrading the equipment.

Public affairs

High on Chief Judge Walker’s agenda is the hiring of an assistant circuit executive for public affairs, whom he expects to have in place this spring. The establishment of the position will be a pilot project (similar to those undertaken by the 1st and 5th circuits and being explored by others), but Chief Judge Walker “fully expects it to be permanent.” In his view, the lay public and even some of the press are often misinformed about “the role of a judge in deciding cases and articulating the law. “Through better communications with the community and public, these misperceptions can be overcome,” he says. He also hopes to establish programs and communications systems that will foster greater accuracy by the media in reporting on legal matters.


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