POST # 6
This is the sixth in a series of posts recalling what it was like to serve as a law clerk to Judge Julius J. Hoffman during 1967 to 1969.
Sitting on the Seventh Circuit
Judge Hoffman was always worried about the fate of his rulings in the appellate court, the U.S. Court of Appeals for the Seventh Circuit, which reviewed the rulings of the district courts in the circuit, including ours.
The Seventh Circuit was made up of appellate judges who sat in three-member panels in a courtroom in the same courthouse as the district court courtrooms. But, as I recall, the Seventh Circuit courtroom was larger, was on a higher floor than the district court courtrooms, and was grander in every way. The court, as an appellate court, also conducted its proceedings in a far more rarefied atmosphere than the one that permeated the more rough-and-tumble atmosphere at the trial court level.
Hoffman was frequently reversed by the Seventh Circuit. In the process, he was often severely criticized by one or more appellate judges for the way he had conducted a trial or reached a legal conclusion. The South Holland school-district case was a prime example. Another example was the Amabile case, in which the Seventh Circuit opinion pointed out how easily Hoffman could have avoided reversal if he hadn’t so adamantly refused to ask the jury about the influence of the media on the jury’s thinking.
Of course, the “Chicago 7” trial was the leading case in which Hoffman was eventually slapped down by the Seventh Circuit. (I’ll say much more about that trial soon.)
In early 1969, despite his spotty record with the Seventh Circuit and several months before the “Chicago 7” trial, Hoffman was asked to sit “by designation” on a panel of the Seventh Circuit. The U.S. Courts of Appeals were at that time frequently overwhelmed by their caseloads, and they would ask retired judges or district court judges to sit by designation on a panel made up of two regular appellate court judges and one non-regular judge.
There was great excitement in Hoffman’s chambers when he was asked to do his bit for the Seventh Circuit. He was thrilled to play the role of appellate judge for a change. I’m quite sure that he longed to be appointed to the appellate court (he called it being “kicked upstairs”), but that plum had never been offered him. At least he could now be Appellate Judge for a Day.
As senior clerk, I was assigned to assist the judge in this new and challenging role. So when the briefs in the case he was to hear arrived in our chambers, he asked me to read them and prepare questions he could ask during the oral argument. This sounded reasonable enough. He was busy with his routine courtroom work and didn’t want to devote much time to the appellate briefs.
Still, I did expect him to scan the briefs and have some knowledge of the issues before the oral arguments would be heard.
I was myself excited about assisting the judge with his new role as appellate judge. I hadn’t applied for a clerkship with an appellate court, a clerkship that was (like the role of appellate judge vs. that of trial-level judge) more prestigious than the clerkships I applied for with the Northern District of Illinois. Looking back, I probably didn’t explore the possibility of an appellate clerkship because I was pretty sure that I had a better chance of getting a clerkship with the district court, when securing even one of those was a challenge for a woman applicant in 1967.
I’d therefore resolved that if I was offered a clerkship with the Northern District, which was based in my hometown of Chicago, I would grab it and forgo my inclination to work as a lawyer in Washington, D.C.
I’d always been fascinated with being at the center of power in D.C. But at the time of my last year in law school, Lyndon Johnson had squandered the remarkable record he’d acquired on domestic issues (for example, propelling the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and creating the Office of Economic Opportunity) by plunging further and further into the disastrous Vietnam War. I decided to await the results of the presidential election of 1968 before committing to D.C. So I was quite happy to accept a district court clerkship in Chicago.
My own affinity for appellate-level work had been sparked when I participated in my law school’s moot court program, the Ames Competition. In my first attempt at appellate brief-writing in the fall of my first year, I’d triumphed over a male classmate who was openly miffed that he was assigned to compete against a woman student. He was overheard complaining that “If you win against a girl, you’ve only beat a girl. And if you lose to a girl, you’ve been beaten by a girl!”
Some of my closest and longest-lasting friendships began in law school, and a great many of them are with male classmates. But it’s entirely possible that, at that time, there were some others among my male classmates who shared the same misguided notion as my Ames opponent.
All of which made my victory especially delicious when I walloped him in moot court. I earned a higher score from our three male judges, both on our oral arguments and on our briefs. I almost felt sorry for my opponent. His lawyer-father had traveled a thousand miles from the Midwest to witness his son’s humiliating defeat.
Competing in moot court, I discovered my love of brief-writing, and I continued to compete in the Ames Competition as long as I could, hoping to do brief-writing during my career as a lawyer. As things turned out, I did write appellate briefs during my career, and I went on to teach appellate brief-writing to students at law schools like Northwestern and the University of Michigan.
The day Hoffman sat on the Seventh Circuit, I was present in the imposing courtroom, perched on a chair just behind the judges. Once the oral arguments began, the judges were free to interrupt the lawyers with questions, and I had provided Hoffman with a list of challenging questions for both sides.
I was shocked when Hoffman finally spoke and revealed his vast ignorance of the legal arguments presented in the briefs.
He asked the right questions, of course (I had written them out clearly for him), but he asked them at the wrong time. Once or twice, he asked a question that a lawyer had already answered, and the lawyer was forced to repeat what he had said a few minutes earlier.
Hoffman also asked some questions completely out of context, revealing his total lack of understanding of the issues. As the appellate lawyers struggled to complete their well-prepared presentations, I cringed. The man was smart enough. He simply hadn’t bothered to learn anything about the case being argued in front of him, and it showed.
After the argument, the three judges and their law clerks adjourned to the chambers of one of the appellate judges, and the judges took an informal poll of where they stood. Once the two appellate judges announced how they were leaning (the two were tentatively in agreement), Hoffman of course jumped in and agreed. He was then assigned the task of writing the court’s opinion.
Back in our chambers, Hoffman asked me to write the opinion. I was excited and eager to bite into the apple of appellate opinion-writing, something I’d never expected to do while working for a trial court judge. I immediately immersed myself in the law that applied to the case.
The law turned out to raise serious constitutional questions.
The legal issues were complex, and I discovered that I was not completely sold on the outcome the three judges had tentatively agreed upon. I began going back and forth, one day deciding in favor of the appellant, the next day agreeing with the appellee.
Looking for help, I sought out one of the appellate judges’ law clerks. He was a friend I’d known in law school, and I was sure that he could give me some guidance. But, like me, he seemed uncertain which way to go, so our brief discussion didn’t help me resolve my internal debate.
Once or twice, Hoffman asked me how my opinion was coming. I assured him that I was researching the applicable case law and giving the issues a great deal of thought. I stated quite clearly that I was deeply involved in pondering these important issues and that I wanted to write an opinion he would take pride in.
I didn’t see any reason to rush to judgment. I preferred to think through the issues and come up with a well-reasoned ruling. Appellate court opinions are often not issued for many months after oral argument.
But Hoffman’s obsession with speeding through his caseload triumphed over my desire to do a thoughtful and thorough job.
One morning I arrived in chambers and was abruptly informed by Hoffman’s secretary that the opinion was written and I no longer needed to do any work on it. After catching my breath, I asked, “What happened? Did the judge write the ruling himself?”
Of course not, I was assured. He had hired someone to write his opinion for him. Although the secretary didn’t reveal the name of the author, it was a professor at a local law school.
So, without telling me, Hoffman had turned the case over to a law school professor, whom he paid out of his own pocket.
I was astounded. If Hoffman had given me a deadline (say, “If you don’t write this by June 1st, I’ll have to take it out of your hands”), I would have finished writing an opinion by the deadline. And it would have been as good as, or better than, whatever the law professor came up with.
But I wasn’t given any deadline. After I spent weeks doing difficult legal research and evaluating the merits of the competing issues, the case was yanked out of my grasp and turned over to someone else.
I never checked to learn how the opinion fared. Did the two other judges go along with it? Did the parties appeal to the U.S. Supreme Court? The truth is that, after the shock wore off, I really didn’t care what happened, so I never bothered to find out.
Looking back, I probably should have realized that Hoffman desperately wanted to get the appellate case out of the way so he could get back to his everyday routine. I had assumed that he could separate his appellate court role from his obsession with being in first place in the district court’s statistics. While he waited for a well-reasoned opinion, he could have speeded through his trial-level caseload the same as always. But I was mistaken on that score. He couldn’t separate the two roles.
In retrospect, maybe I could have proceeded differently. Maybe I spent too much time going back and forth on the complex legal issues. Maybe I should have set aside my trial-court responsibilities and focused exclusively on the appellate case.
I could have simply sat myself down and written an opinion that favored one side or the other. And been done with it.
But I still think that Hoffman was unforgivably wrong to do exactly what he did.
As disillusioning as so much of my experience with him was, I view this entire episode as one of the worst examples of Hoffman’s high-handed behavior.