Monday, November 03, 2003

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:

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enthusiastic supporter of the view that federal appellate courts should not be able to issue decisions identified as "non-precedential."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 Kozinskiís 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.