Justice Souter: Working in Reverse, by Choice

This article first appeared in the February 26, 2013, issue of the National Law Journal’s Supreme Court Brief.

Justice David Souter retired from the U.S. Supreme Court in 2009, but has not stopped being a judge.

In January, Souter heard fifteen arguments at the U.S. Court of Appeals for the First Circuit and eight more in February. As a retired associate justice, he has participated in approximately 170 First Circuit opinions, writing nearly fifty, far surpassing his previous experience as a court of appeals judge.

The First Circuit “is extremely grateful to Justice Souter for his invaluable contribution to the [court’s] work,” said Susan Goldberg, Deputy Circuit Executive, in response to an email inquiry for this article.

Even fully staffed, the First Circuit has only six active judges, the fewest of any circuit. One of those seats has been vacant since the end of 2011, when Judge Kermit Lipez took senior status. President Barack Obama nominated William Kayatta to the position in January 2012 and re-nominated him in January 2013. Kayatta was finally confirmed this month.

After serving on the bench for twelve years in New Hampshire, Souter’s home state, he sat on the First Circuit for just a few months, beginning in April 1990. He was nominated to the Supreme Court in July and confirmed in October. On that timetable, he heard argument, but authored no opinions.

Post-retirement, Souter’s numerous authored opinions for the First Circuit cover, among other topics, business, immigration, education, and employment.

In 2012, Souter was part of a unanimous decision in United States v. Kearney, written by Chief Judge Sandra Lynch. Kearney, which upheld restitution for a child pornography victim and identified a circuit split on the issue, is currently before the Supreme Court on a petition for certiorari. Another retired federal judge, Paul Cassell, filed a pending petition on behalf of victims in related litigation out of the Ninth Circuit.

One of the First Circuit appeals Souter heard recently involves a request to disqualify the district court judge in the case of accused mobster James “Whitey” Bulger. On the FBI’s Ten Most Wanted Fugitives list, Bulger eluded authorities for sixteen years before being captured in 2011.

At argument, Bulger’s attorney asserted that the federal government had given his client immunity, but declined to say when, despite the panel’s interest in the question. The district judge had been a federal prosecutor, so the date could be relevant to his alleged knowledge of the Bulger case.

Souter pressed the attorney twice, noting that his brief implied a particular time period. The attorney eventually confirmed Souter’s reading and offered, “You’re the first person to get that out of me.”

So, why would Souter retire from the nation’s highest court only to be so involved at another court?

As the other justices expressed in a farewell letter read from the bench by Chief Justice John Roberts on Souter’s last day: “We understand your desire to trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake,’” references to a region in New Hampshire and the words of Robert Frost from his 1923 anthology, New Hampshire.

Put less poetically, the Associated Press quoted Souter as telling acquaintances that his was “the world’s best job in the world’s worst city.”

Solution: Keep judging at a high level, but from a different location.

First Circuit arguments are generally held in Massachusetts, an hour-and-a-half drive from the justice’s New Hampshire home. The court hears cases from those two states, as well as Rhode Island, Maine, and Puerto Rico.

In his resignation letter, Souter told President Obama: “I mean to continue to render substantial judicial service as an Associate Justice.”

By all accounts, he has succeeded.

Unlikely Lame-Duck Vote in 1980 Still Reverberates

This article first appeared in the December 19, 2012, issue of the National Law Journal’s Supreme Court Insider.

Thirty-two years ago this month, one day after John Lennon was killed, the Senate confirmed Stephen Breyer to serve on the U.S. Court of Appeals for the First Circuit. Looking back, this 1980 vote on a future U.S. Supreme Court justice was remarkable and historic in its timing, speed, and long-term consequences.

In November 1980, Jimmy Carter lost a landslide election to Ronald Reagan, and Republicans won control of the Senate. Just days later, though, President Carter nominated Breyer to the First Circuit, and the lame-duck Senate confirmed him in December.

Citing the Congressional Research Service in a press release two weeks ago, Senator Chuck Grassley noted that, in addition to 2012, “the Senate has confirmed judicial nominees during a lame-duck session in a presidential election year on only three [other] occasions since 1940” (1944, 1980, and 2004).

Breyer was the only judge confirmed in the 1980 lame-duck session; in other words, he was in a category by himself between 1944 and 2004.

Breyer moved from nomination to confirmation in less than a month, which was not completely out of the norm then. Other circuit judges confirmed earlier in 1980 had gotten votes in short order. The Senate confirmed Breyer’s future colleague, Ruth Bader Ginsburg, only two months after her nomination to the D.C. Circuit. Ninth Circuit Judge Stephen Reinhardt was the exception with a nine-month gap.

Today, Breyer’s one-month lag time would be almost unthinkable, particularly for a circuit nominee. President Obama nominated William Kayatta in January of this year for a Maine seat on Breyer’s former court, the First Circuit. Despite support from Maine’s two Republican senators, Kayatta has not yet been confirmed. Two pending circuit nominees have been on hold even longer.

Without the quick, once-in-a-blue-moon vote in 1980, Breyer would have had a long wait for another opportunity. Republicans controlled the White House for the next twelve years.

Breyer served on the First Circuit during that time and beyond, eventually presiding as chief judge when President Clinton nominated him to the Supreme Court in 1994.

Clinton could have nominated Breyer to the Supreme Court without circuit experience, but the odds are against it. The last ten nominees to join the Court, except Elena Kagan, were all circuit judges.

Perhaps Breyer could have been nominated to a circuit court soon after Clinton’s election and had a short stint below. David Souter sat for only five months as a circuit judge before being confirmed to the Supreme Court, as a nominee of President George H.W. Bush.

No one can know for sure what would have happened, because lightning struck for Breyer in 1980, and the rest is history.

So, why did Breyer’s 1980 nomination go through?

Boston Globe articles at the time point to at least two reasons.

Breyer, who was serving as chief counsel to the Senate Judiciary Committee when nominated, impressed senators from both parties.

“It’s a rare personality that can survive two years in Washington and gain the admiration of a liberal Democrat like Edward Kennedy and an arch-conservative like Republican Strom Thurmond,” the Globe explained. However, “Breyer managed to do it.”

The Globe also reported that the two parties may have struck a deal. Republicans would support the Breyer nomination, while Democrats would not push a stack of other pending judicial nominees. Republicans helped force a vote on Breyer when a block was attempted and then helped confirm him.