Posted 12:00 AM
by Howard Bashman
20 Questions for Senior Circuit Judge Richard S. Arnold of the U.S.
Court of Appeals for the Eighth Circuit: "How Appealing" is
delighted that Senior
Circuit Judge Richard S. Arnold of the U.S.
Court of Appeals for the Eighth Circuit has agreed to participate in this
Web log's recurring monthly feature, "20 Questions for the Appellate
Judge."
Edited: The entire article
is here: http://20q-appellateblog.blogspot.com/2003_11_01_20q-appellateblog_archive.html#106783560357360819
7. In 1994, you were widely reported to be a
finalist to fill the vacancy created on the Supreme Court of the United States
when Harry A. Blackmun announced his intention to retire. Why, to the best of
your understanding, did President Clinton not pick you, and in retrospect are
you pleased, disappointed, or some combination of the two about not having had
the opportunity to serve as a Justice on the Court on which you once clerked?
I will tell you what the President told me, and I believe it is accurate. I
have had a form of lymphoma since 1975. From time to time, it needs to be
treated, though it does not usually interfere with judicial functioning. The
problem was doubts about longevity. No physician acceptable to the White House
was willing to give sufficient assurances on that score. I also had some
political opposition, but I believe that health was the dispositive factor.
I would like to add two things. First, I have no complaints about how the
President treated me. He was very considerate of me, and he has been a good
friend to me. Second, I said at the time that Chief Judge (as he then was)
Breyer would be a wonderful justice, and events have proved me right.
As to whether I was disappointed, I think you know the answer.
I don't know about 15 years, but Mr. Mauro's statement is otherwise accurate,
to my knowledge. I don't feel discriminated against, however. In the first
place, as a matter of law, the Americans with Disabilities Act applies only to
employment, not to appointment to federal office. In the second place, an
expectation of longevity has been, for a long time, a practical political
consideration in appointing judges, especially justices of the Supreme Court.
The factor has received more weight, in my opinion, than it deserves, but it is
an aspect of political life.
12. Let me begin by disclosing that I am an enthusiastic supporter of the
view that federal appellate courts should not be able to issue decisions
identified as "non-precedential." You are perceived, rightly or
wrongly, as at the forefront of that cause, having raised the subject as an
addenda in 1998 to your
letter to the Commission on Structural Alternatives for the Federal Courts
of Appeals, in your 1999 law
review article titled "Unpublished Opinions: A Comment," and in your decision
for a three-judge panel of the Eighth Circuit in 2000 in Anastasoff v.
United States holding that the Eighth Circuit acted unconstitutionally in
adopting a local rule providing that unpublished Eighth Circuit opinions were
non-precedential. Of course, the Eighth Circuit granted rehearing en banc in
Anastasoff and dismissed the case
as moot because the federal government, in the interim, had changed its
position and decided that Ms. Anastasoff was in fact entitled to receive the
tax refund she was seeking in her lawsuit. The en banc opinion also vacated
your panel opinion. As a result, the Eighth Circuit local rule that your panel
opinion condemned as unconstitutional remains in effect today. On the other
hand, in 2002 the U.S. Court of Appeals for the D.C. Circuit abolished
prospectively the concept of non-precedential rulings, the Federal Rules of
Appellate Procedure are on the verge of being amended to allow appellate briefs
to cite unpublished and non-precedential decisions, and Congress recently
passed a law that will soon require the federal appellate courts to post all
unpublished opinions online as they are issued. How satisfied are you with the
current state of affairs concerning non-precedential rulings by federal appellate
courts?
I wrote the opinion dismissing the Anastasoff case as moot. Whether
rehearing en banc would have been granted had the only issue before the Court
been the merits, I just don't know, nor do I think it would be appropriate to
speculate on the subject. As to the current state of affairs, I believe it is
moving in the right direction. The most vulnerable part of current practice, in
some circuits, is the rule against citation. This rule and attempts to enforce
it are doomed to fail. Entirely apart from any legal difficulties or
theoretical problems, it is just not possible to put that much of a restraint
on the availability of information.
13. Knowing what you know today, are foes of non-precedential federal
appellate court opinions better advised to focus their efforts on achieving
changes through the rulemaking process (keeping in mind that it was the
rulemaking process that gave birth to non-precedential opinions) or on
achieving changes through the adjudicatory process?
I don't know the answer to this question. Experience up to now indicates that
the rulemaking process may be the best avenue. A lot of people who agree with
me that there should be no such thing as a non-precedential opinion don't agree
with my Article III approach. Incidentally, there is also a good
equal-protection argument to be made, but I didn't feel it necessary to reach
it.
14. Had the Anastasoff case not become moot before the en banc
Eighth Circuit could reach the merits, was it your prediction that the en banc
court would have agreed with you the local rule declaring unpublished opinions
non-precedential should be abolished, and why has the Eighth Circuit not
repealed, via the rulemaking process, the rule your panel opinion condemned as
unconstitutional?
I don't have a prediction on this subject. As to why the Eighth Circuit has not
repealed its rule, the answer is that a majority of the Court does not want to.
I will add, however, that we have never sanctioned a lawyer for citing an
unpublished opinion, or even threatened to.
15. Even some who are sympathetic to your view that non-precedential
federal appellate opinions should not exist believe that Ninth Circuit Judge
Alex Kozinski demolished the foundation of your panel opinion in Anastasoff
in his
decision in 2001 for a unanimous three-judge Ninth Circuit panel in Hart
v. Massanari. Did Judge Kozinski’s opinion in Hart
demonstrate to you that you had either reached the wrong decision in your panel
opinion in Anastasoff or had reached the right decision but for the
wrong reasons, and where if at all did Judge Kozinski err in his opinion in Hart?
No, I am not convinced by Hart. The opinion, which is a fine job of
scholarship, proves, if it proves anything, that the concept of precedent was
somewhat fluid in the 18th Century. That is not the point. The question is
whether certain kinds of opinions, in this case, opinions that a court does not
send to certain legal publishers, can be declared a priori to be
without precedential value. Such an idea would have been entirely foreign to
the 18th-Century legal mind.
16. Tony Mauro, in an article
published in May 2003, paraphrases you as saying that the proposed rule
allowing citation to unpublished and non-precedential federal appellate
opinions "would lead almost inevitably to giving unpublished opinions
substantial weight as precedents." He also quotes you directly as saying
that you "hope the slope is very steep and very slippery" toward the
widespread use of unpublished opinions and that "I don't know what judges
are afraid of." What in your view is the best argument those in favor of
retaining non-precedential federal appellate opinions have to offer, which side
in this battle do you expect to emerge victorious, and when and how do you
expect the battle to be resolved?
There isn't any good argument. It's my opinion that judges who believe that
unpublished opinions should be without precedential value are driven to that
conclusion by the sheer volume of work. I don't know how the battle will be
resolved, but ultimately I hope and believe that the idea of non-precedential
opinions of any kind will be consigned to the dust bin.