Q&A with 9th Circuit Judge Milan D. Smith, Jr.

As much as any federal judge in the country, Milan D. Smith, Jr. of the 9th Circuit represents the ideal in public service, going onto the bench as he did when most others opt for retirement. He tells us how he got to the 9th Circuit and what he sees from the bench.

William Domnarski: You've just hit a milestone in your service on the court -- 15 years of service. How does that feel?

Milan D. Smith, Jr.: After I was confirmed by the Senate, then Senator Barbara Boxer told me that I was about to enter upon the "greatest job in the world." While I think some would not agree with that description, I have enjoyed the job immensely. I thoroughly enjoyed practicing law for 37 years before becoming a judge, but what lawyer wouldn't enjoy winding up one's career being able to research and write full time with a publisher [Thompson Reuters/West] who must publish exactly what one writes, working with four brilliant young lawyers each year in an effort to better understand and declare the law, and being at the table in considering some of the most interesting legal issues of our time?

WD: What's unusual about your judicial career, if that's the right word for it, is that you started late, far later than most of the federal judges appointed these days. What's the backstory to your appointment?

MDS: I did indeed start late. I was confirmed just before my 64th birthday, an age at which no one would even be considered in today's political climate. Moreover, although I had tried 10 cases during my career, which probably makes me an "experienced litigator" in today's legal climate, my private practice primarily involved transactional law. Even though I had a good academic record, and a lot of legal experience, I would have had no chance of being nominated if one of my brothers had not become a U.S. senator, if our family had not known then Sen. Orrin Hatch for over 40 years, and a Republican president had not followed President Bill Clinton. I was also fortunate to secure the strong support of then Sen. Barbara Boxer because I had resigned from the California Fair Employment and Housing Commission in protest of then Gov. Pete Wilson's veto of a bill that would have permitted the commission to continue awarding compensatory and punitive damages, primarily to women who had suffered sexual harassment in the workplace. In addition, our then California senators knew from my role on the commission and as president of the Los Angeles State Building Authority that I would be a "non-political" judge committed to applying the law instead of one applying his own policy preferences to cases before him. Finally, because the control of the Senate had changed from a sizable Republican majority to near equipoise in 2006, the White House knew it had a better chance of getting a "moderate" confirmed than someone from the legal far right. That proved correct because after I was finally nominated by the White House after more than four years of working behind the scenes to obtain a nomination, I was rated Well Qualified by the ABA, and was confirmed by the Senate on May 16, 2006 by a vote of 93-0.

WD: Do you ever think that perhaps that taking it easy would be the better way to go?

MDS: Interestingly, I find that because I am well organized, I am able to travel, play golf, read, relax and do other things I enjoy, just about as much as an active judge as I would as a senior or retired judge. I have also observed that unless one has something else that keeps him or her feeling relevant and involved after retiring, people who leave high-level jobs with little to replace their former duties are often intensely unhappy, and tend to die sooner than they otherwise would have. Barring health or other similar issues involving me or my wife that make it impossible or very difficult for me to do my job properly, I have no present intention of ever going senior or retiring. As the old saying goes, I hope to "die with my boots on" when my time comes.

WD: I know you have an interest in history. Are there justices or judges who have particularly impressed you or influenced you?

MDS: The judge who most influenced me was my grandfather, Jesse A. Udall, who was a trial judge, later a member of the state legislature, and finally a chief justice of the Arizona Supreme Court. I thought he was wonderful, and a great example. When he died, one of his former colleagues on the Arizona Supreme Court, Robert O. Lester, wrote of him: "[H]e was, quite simply, the finest man I ever knew. I have, sinfully, envied a good many men for what they had. [Jesse A. Udall] was the only one I ever deeply and truly envied for what he was."

I have also long admired the integrity and courage of Justice John Marshall Harlan (1833-1911), the great dissenter of the 19th century. Although he was clearly out of touch with the zeitgeist of his era, and may not have been the most gifted member of the Supreme Court in its long history (Justice Oliver Wendell Holmes, Jr. told his law clerk, Dean Acheson, that Justice Harlan's "mind was like a vise, the jaws of which did not meet. It only held the larger objects"), he had a clear moral compass, which led him to write some of the most important dissents ever written on the Supreme Court, many of which have ultimately led to important legal reforms in our time. Among others, he wrote stirring dissents in the Civil Rights Cases, Plessy v. Ferguson and Lochner v. New York.

WD: Oral arguments seem to lie at the core of the collaborative nature of the judicial process. What's the best way for advocates to reach and persuade judges in oral argument?

MDS: I'm not sure I agree with you about the importance of oral arguments, at least in the 9th Circuit. Because almost all 9th Circuit judges come into oral argument having read the briefs, important parts of the record, and the underlying cases, statutes, or regulations, they have essentially reached a tentative conclusion before they ever hear counsel argue their cases. Accordingly, I believe that the writing of persuasive briefs is the most important thing an appellate lawyer does. I believe that the primary purpose of oral argument is to answer the questions that judges may have about your case that were not answered fully in the briefs. If you have a problem issue, try your best to answer it in your oral presentation. Trying to hide the ball will not help you because the judges almost certainly know about the problem, and have likely formed an opinion before argument about its effect on your case. When asked a question about your problem, try to answer it in a straight-forward conversational manner, and be prepared to respond to questions about the impact of contrary cases, and what the record shows about your issue. Most importantly, don't misrepresent anything to the court, such as what a case means, or what the record reflects. If you are perceived as a prevaricator, it is likely that no significant part of your message will be believed.

WD: For a new book I've been working on, I've been exploring the idea that, more than anything else, judging is about character? Am I on to something, or should I be looking elsewhere for explanations as to what makes a good judge?

MDS: Although no human being is perfect, I believe that people generally hope and expect that judges will have high moral qualities apart from their intelligence, competence, or special talents. The judiciary has no army or navy to enforce its decisions. However, we expect that our rulings will generally benefit from a certain moral suasion that yields compliance usually without the necessity of applying physical force. If people perceive a judge as corrupt, or his/her life a glaring contradiction to the rules he or she expounds, they will not be inclined to honor voluntarily his/her rulings.

WD: The appointment and confirmation process for all three levels of the federal judiciary over the last couple of decades seems to be distinguished by excessive partisanship? Or am I losing sight of the political nature of all appointments and confirmations?

MDS: The political process that leads to the nomination of federal judges has always been contentious from the birth of the republic. In modern practice, federal court nominees must usually meet basic standards of training and experience, and demonstrate that they have a judicial temperament, but after those basics have been demonstrated, it is often more who you know than what you know. In my opinion, the factor that has augmented the level of partisanship in federal judicial selections of late is that litigants increasingly seek to have the courts make policy and political decisions that they cannot successfully enact through the regular legislative or administrative law process. When that happens, if the parties are successful in getting the judges to make what would normally be decisions reserved to the elected branches of government, people recognize that those judges are essentially performing the role of "politicians in black robes," and must be scrutinized, criticized, and checked just like political opponents would be. I lament that increasingly frequent situation. It is far better for the rule of law for judges to be seen as, and be, neutral arbiters in law cases rather than extensions of some political party or politician. To the degree judges act as "politicians in black robes," we cease to follow the rule of law and, instead, follow something similar to the pattern of countries like Russian and China, where political leaders can simply instruct the prosecutors and the courts to charge and rule as they instruct.

WD: Our 9th Circuit in the last few years has gotten a lot of attention, but not in a good way. Currently in the Harvard Law Review, for example, there is an essay by a former 9th Circuit law clerk about the sexual harassment in the workplace issue at the 9th and her experience with a judge who seemed to know no behavioral boundaries. What should we know about the 9th Circuit's past and future when it comes to this issue?

MDS: As students of the federal judiciary and the 9th Circuit in particular know, our former chief judge resigned from the bench in 2017, after having been a judge for 32 years, after a number of women accused him of misconduct. As a result of his charged misconduct, and the conduct of some other judges as well, the judiciary nationally felt compelled to consider how it had historically responded to such allegations, and to address them. After receiving nationwide input, the judiciary promulgated amendments to the Code of Judicial Conduct to address such issues, which became effective on March 19, 2019. After receiving the recommendations of an ad hoc committee on Workplace Environment, on Feb. 12, 2019, the 9th Circuit itself established an Office of Workplace Relations for the United States Courts for the 9th Circuit, and promulgated its own guidelines. Those guidelines apply to all Circuit employees (and to its judges) and even require judges to report serious violations of the new guidelines by other judges to appropriate authorities. The office is intended to help prevent and resolve workplace issues generally and is available to assist judges and staff throughout the circuit on employment dispute resolution policy issues. It is too early to tell how effective the new national regulations or our new office and circuit guidelines will be. 