As part of the nomination process to be a federal judge, I went to Washington in 1997 for a so-called White House interview (which actually takes place in the Eisenhower Executive Office Building) with lawyers from the President's Office of Legal Counsel and the Justice Department. I was then a member of the Maine Supreme Judicial Court. (1) Evaluating how I worked with my colleagues on the court, one of the lawyers asked if I believed in lobbying them to win support for my views. Without hesitation I said that I did not. I had never lobbied my colleagues and they did not lobby each other.
Of course, we were not discussing lobbying that involved asking for a favor or promising a return favor in a future case. That kind of lobbying is improper. Rather, the lobbying at issue would be on the merits--one-on-one conversations, face to face or by telephone (the court had no email at that time)--with the objective of persuading a colleague to agree with my view of the case. I explained that I did not believe in such lobbying because, inevitably, the effort becomes personal, with an undesirable pressure on both sides of the exchange. The judge who lobbies wants to prevail. The judge being lobbied may feel an impulse to please. Also, I saw lobbying as divisive, creating factions on a court that valued cohesiveness. And so I told my interviewer that I had never done it.
My answer about lobbying reflected the culture of the Maine Supreme Court, where the seven justices dealt with the cases collectively, without side conversations between justices. We did not discuss cases before oral argument. Our post-argument conferences were invariably formal. The pre-assigned justice (2) would speak first, declaring a position that was a recommendation to the other justices, who then voted in ascending order of seniority, with the Chief Justice voting last. The explanations for the votes were brief. We did not challenge or ask questions of each other, understanding that the decision of the conference was subject to change during the writing process and the review of the draft opinion by colleagues.
If we had a split vote during the conference, it was in full view of the court. If disagreements emerged in response to a circulated draft opinion, they played out openly through the circulation of comment memos shared with every member of the court. Although four of us had chambers in the Cumberland County Courthouse in Portland, the home of the Maine Supreme Court, and our other three colleagues were in courthouses in other parts of the state, the four of us in Portland scrupulously avoided discussing the cases apart from our colleagues. There were occasional jokes about the Portland cabal, but we all valued our sense of shared mission as a court too much to jeopardize it with side discussions of two or three. Expressing our disagreements in memos that everyone would see, we relied on the force of those memos to persuade our colleagues to join us. If they did not, we would dissent or recede, and move on to the next case.
I have now had a different experience on the United States Court of Appeals for the First Circuit, where I have served for over fifteen years. Inescapably, my answer to a question today about my belief in lobbying would reflect that experience. It is no longer a simple answer.
I. THE COURT OF APPEALS--THE PANELS
The federal Courts of Appeals do most of their work in panels of three judges. Only in the exceptional circumstance of en banc review, (3) which involves less than one percent of the cases in any given Court of Appeals, (4) do all of the active judges hear and decide a case. Thus, unlike the Maine Supreme Court, the Court of Appeals as a whole rarely works together on a case. (5) The action is on the panels, whose membership is always changing, and the norm there is for the three judges to work openly together to find common ground. Although dissents on my court are not rare, they are not done casually. …