Previously, for the Woman Advocate newsletter, we interviewed women appellate judges about their paths to the bench. Now, for the Appellate Practice newsletter, we once again reached out to state and federal appellate judges across the country to get their insights into effective briefing and oral argument as well as advice for those considering a path to the bench. Here are their answers.
What was your path to the bench?
There is no one way, or even primary path, to the appellate bench. The journey is short for some, long for others; simple for some, complex for others. While some early on in their career have a purposeful goal to be an appellate judge, for me it was being in the right place at the right time with the right professional experience. While the process always varies, there were some key ingredients for me.
For starters, in 1973–1974, I was among the first few women to clerk on the U.S. Court of Appeals for the Fifth Circuit. I was privileged to serve as a law clerk to the Honorable Elbert P. Tuttle on the Fifth Circuit. My first job clerking for a federal appellate judge gave me keen insight into the diverse legal work of an appellate judge. My law professors at Emory Law School instilled in me a passion for the law—not just one subject, but everything from criminal law to civil procedure, to torts and property, and even tax and domestic relations. If you like only a narrow area of the law, appellate judging may not be for you.
After my clerkship, in 1974, I joined the Atlanta law firm of Powell, Goldstein, Frazer & Murphy, which had 150 male attorneys. In 1980, I became the first female partner in that law firm. For 10 years as a trial attorney, I handled a broad range of cases in federal and state courts. While a significant portion of my practice involved commercial, insurance, and construction contract cases, the fact that I also had extensive experience in so many other types of civil cases made my legal background stand out when considered for a judicial appointment.
In 1984, I was happy with my law firm and law practice, but I had two children, ages five and two, and was traveling constantly for depositions, meetings, and cases outside Georgia. There were no cell phones, computers, or videoconferencing. I wanted to continue to work full-time but not travel so much for a while. A judicial appointment would give me valuable jury trial experience without the travel. It was not meant to be a judicial career but an interlude of public service until my children were in middle school. Then I would return to the law firm which had trained and helped me so much.
That year, Governor Joe Frank Harris of Georgia appointed me as a state trial judge in Atlanta on a court that handled only misdemeanors and certain types of civil cases. Somewhat to my surprise, I loved each and every day. I was reelected by the voters as a state trial judge in 1986 and 1990, and then in 1990 Governor Harris appointed me to the state trial court that handled felonies, all civil cases, and domestic relations lawsuits. I was reelected to that court in 1992. Since my trial-lawyer practice was civil cases, it helped to start trying criminal cases that were one- or two-day misdemeanor trials. I encourage lawyers to be willing to start on the lowest-level state or municipal court as those courts often impact more lives than other courts do.
After my 10 years on the state trial bench, in 1994 U.S. Senator Sam Nunn of Georgia recommended me as a federal district court judge on the U.S. District Court for the Northern District of Georgia. President Clinton nominated me on February 9, 1994, followed by confirmation 86 days later by the U.S. Senate on May 6, 1994. From 1994 to 1997, I served as a district court judge in Atlanta on a court with heavy civil and criminal caseloads.
In retrospect, my 10 years as a trial lawyer and 14 years as a trial judge paved my path to the appellate bench. Notably, I did not do those things with the intent to end up as an appellate judge, but they ultimately led to my destination on the appellate bench. While there are many routes to the appellate bench, mine was largely having a wealth of experience as a trial lawyer and a trial judge on both the state and federal levels.
Another key ingredient, though, was having the support of individual mentors and several bar association groups at each step of the way. A clerkship with a judge yields not only meaningful work but also, usually, a lifelong mentor. Judge Tuttle, for whom I clerked, as well as Judge Griffin B. Bell, who also served on the Fifth Circuit during my 1974 clerkship, were always willing to take time (1) to counsel me regarding career moves and (2) to be references for me for Governor Harris and later President Clinton. The staff of the appointing official will often make direct contact with such references. During my three elections on state court, my former partners at Powell Goldstein, especially John T. Marshall, David S. Baker, and Karen Wildau, helped organize and fundraise for my campaign, as judges cannot do that. Fortunately, in Georgia judicial elections are on a nonpartisan ballot. All three times I qualified with the Georgia secretary of state on the first day and never had opposition. Getting ready to run—and dissuading any challengers—is as vital as running.
While a trial attorney, I was active in several different bar associations, especially the Younger Lawyers Section of the Atlanta Bar Association, the Georgia Association of Women Lawyers, and the American Bar Association. Originally, I joined to meet other lawyers outside my law firm and to support my beloved profession. I was not contemplating the bench way back then. Yet it turned out that being well-known by other lawyers and having leadership positions in bar associations ended up being critical to all of my judicial appointments. I highly encourage young lawyers to get involved with your local bar associations from the outset of your practice no matter what your career goals.
Community service is also important. As a 1987 graduate of Leadership Atlanta, I was able to meet other executives outside the legal profession. And I previously served on the State of Georgia Commission on Family Violence; on the State of Georgia Commission on Gender Bias in the Judicial System; on the National Board of Directors of the American Judicature Society; and on numerous committees of the Atlanta Bar, Georgia Bar, and American Bar Associations. From 2000 to 2002, I was a Rosalynn Carter Fellow in Public Policy at Emory University’s Institute for Women’s Studies. I was an active member of the Cathedral of St. Philip Episcopal Church and a longtime member of the Women’s Community Bible Study, a women’s interdenominational Bible study in Atlanta. Each aspect of my life shaped the path to the appellate bench.
Timing is critical too. Most judges obtain their judicial position because a vacancy occurs on a particular court due to retirement, resignation, or a judge taking senior status on a federal court. You cannot pick your time and place. After 10 years on the state trial bench, I was thoroughly enjoying my work as a federal district court judge. I had been there only three years when, in Georgia, Judge Phyllis A. Kravitch, at age 76, decided to take senior status, creating a vacancy on the U.S. Court of Appeals for the Eleventh Circuit.
Historically, the Fifth Circuit, where I clerked, was the federal appellate court for six states: Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. In 1981, Congress created the Eleventh Circuit, covering Georgia, Florida, and Alabama; and the Fifth Circuit retained Mississippi, Louisiana, and Texas. In the Eleventh Circuit, each state has judgeships roughly commensurate with its population. Generally, three judges are from Alabama, four are from Georgia, and five are from Florida. When Judge Kravitch of Georgia took senior status, the other three Eleventh Circuit judges from Georgia were relatively young, and I knew this would probably be the only vacancy during my window of opportunity.
Even though I was happy on the federal district court and was not interested in undergoing yet another confirmation process so soon, I knew this was likely to be my one chance. So I thought, “Why not now?” But first I wanted to check with my district court colleague, Judge Orinda D. Evans, in Atlanta, to see if she was interested in the seat. If she was, I was going to stay out of the process as Orie had served on the district court for 18 years by then, and she was more qualified. We were friends, so I asked her intentions. Judge Evans immediately and adamantly said she was a trial judge and had no interest in going to the appellate bench. Orie’s response sealed my decision. I would not have been an appellate judge if Orie had been interested. On June 18, 1997, President Clinton nominated me, and I was confirmed 75 days later on September 4, 1997. Being “confirmable,” without the delay that often occurs, helped me in the White House–vetting process.
I am often asked whether I prefer the appellate bench or the trial bench. My reply is always that they are very different jobs but both are great work, challenging and fulfilling. My firm belief is every judicial position is a tremendous honor and privilege and provides meaningful, important work to our country.
What advice would you give to a woman lawyer interested in joining the appellate bench?
Never give up. Never give up.
After years on the state trial bench, I twice was on the short list of five judges interviewed by Governor Zell Miller, a Georgia Democrat, who appointed the first two women to the Georgia Supreme Court, both in 1992. I was not selected but was very pleased two good friends, also on the state trial bench, were: Justice Leah Ward Sears and Justice Carol Hunstein. Over time, both women became chief justices of the Georgia Supreme Court. Little did I know at the time that I would be appointed to the Eleventh Circuit Court of Appeals in 1997.
Never give up.
What was your path to the bench? And what was the most unexpected aspect of being a judge, once you were appointed?
I practiced law as an associate and partner with Gibson, Dunn & Crutcher [GD&C] for 17 years. I did not aspire to be a judge until the last year of my law practice. I enjoyed being a litigator, appearing in court, talking to judges, examining witnesses, and arguing my case. I was never a jury trial lawyer. GD&C was a sink-or-swim place, which made it an exciting place to practice law. But after 17 years, I was ready for a change, partly because my priorities shifted after I had two kids 18 months apart. I couldn’t see myself practicing with another law firm. So, I reached out to people who knew me and my work. Some of these people had become judges before me, and they encouraged my application for appointment to the superior court. Others did what they could to nudge forward the processing of my application. I got a “Christmas present” on December 23, 1997, when the governor’s appointments secretary called to tell me I had been appointed to the superior court. We had arranged to have family photos taken that Christmas, and I look happy and contented in the photos.
I did not anticipate that a large portion of the daily life of a trial judge consists of struggling to get lawyers, jurors, witnesses, and courtroom staff all in position to begin work. It is a bit like herding cats. But the most unexpected aspect of adjusting to being a trial judge was the difficulty in getting the billable hour out of my frame of thinking. The most unexpected aspect of adjusting to being an appellate justice was accepting that I could no longer do anything without the consent of other justices. After 13 years of deciding everything myself, that was not an easy adjustment, as my colleagues will attest. As both a trial and appellate judge, it has been a constant challenge to know when it is time to make a decision or issue a ruling, and when it is more prudent to listen and wait for more information.
What advice would you give to a woman lawyer interested in joining the appellate bench?
The prevailing view is that experience on the trial bench is necessary to qualify for appointment to the court of appeal. Some justices appointed directly to appellate courts have proven that trial court experience is not a necessary prerequisite. But most justices have had previous experience on the trial court and will tell you they greatly benefited by it. My years on the superior court were among the best years of my professional life. So, I think I would advise that you apply for a position on the superior court rather than apply directly to the court of appeal, no matter how highly regarded you are in your field, unless someone close to the governor has indicated you should not do so. More generally, my advice is the same that anyone would offer to those seeking a new opportunity. Build a reputation for being honest, conscientious, diligent, reliable, and kind. Develop good communication skills because you will have to collaborate. Have the courage of your convictions and also an open mind, and develop patience so that you will permit yourself to take the time to reflect on whether it is courage or close-mindedness that prompts you to disagree with others.
What is the one thing you wish lawyers appearing before you would do that would help you and your colleagues decide cases?
Study the record closely, particularly the parts of the record implicated in your appeal. If you asked the superior court to prepare the record rather than submit your own appendix, be sure you’ve looked at the copy of the record we received from the superior court because it may have notes made by the trial judge. At least one of us has reviewed the record in order to draft an opinion before argument. If a member of the panel was uncertain about the draft opinion, he or she may have also read the record. Too often, counsel make mistakes in telling us what is in the record.
Listen to the judge. Judges do not appreciate lawyers who reread their arguments, try to artfully steer the conversation away from the court’s questions to other areas where they feel on firmer ground, misstate the facts or law, or refuse to concede points when they are clearly on the losing side. When the court asks a question, answer that question, not the one you wish the court had asked. Lawyers who ignore the concerns made obvious by the court’s questioning and guidance are missing the most crucial part of the proceedings—where the court explains what is important to the court.
Would you say you ever had a mentor or sponsor who made a genuine difference in how your career turned out? If so, please tell us a little bit about that.
Yes, of course. Every successful person has had mentors. I had mentors at GD&C, on the trial court, and on the appellate court. Each of these mentors greatly influenced my development. In my early years as a lawyer and as a judge, I consulted my mentors several times a week. As a lawyer and as a judge, I had to sink or swim, and it is only because of my mentors that I have been able to stay afloat as long as I have. My mentors are too numerous to name. My advice is to ask for help when you need it, and if anyone appears on your doorstep offering advice, welcome that person in and listen carefully.
What is the best lesson in leadership you have learned, and how has being a judge (as compared to a practicing lawyer) opened up new avenues of leadership for you, both on the bench and in the community?
I like these words of Nelson Mandela: “It is better to lead from behind and to put others in front, especially when you celebrate victory when nice things occur. You take the front line when there is danger. Then people will appreciate your leadership.” I choose these words of the great Mandela because the appellate court is structurally collaborative, and no single justice can lead in any decision without the concurrence of another.
Fairly early on, I realized that each of the justices of my division has a different communication style, and that I needed to change my own style in order to communicate effectively with my colleagues. One other thing I learned was to stay quiet and listen in order to understand others’ views, rather than to leap into every discussion to present the merits of my views. (OK, I'm still working on this.)
As for leadership within my own chambers, I meet regularly with the gifted members of my staff to plan time frames to draft opinions and place them on calendar for argument. Within my chambers, I try to lead by example. We all work diligently on an agreed schedule to issue draft opinions in the cases assigned to our chambers, and to have ample time to draft a concurring or dissenting opinion when necessary. We all have families, so in our scheduling of the workflow, we build in time “cushions” to accommodate the occasional unanticipated absence due to family needs.
As for community service, ethical rules limit opportunities for judges to be leaders in organizations that need fundraisers and spokespeople to argue for change. But judges can speak and write for bench/bar audiences and at community events concerning the justice system. I particularly enjoy being a member of the Judicial Advisory Council of the Los Angeles chapter of the Association of Business Trial Lawyers (ABTL), a contributor to the ABTL Report, and an executive editor of California Litigation.
What was your path to the bench? And what was the most unexpected aspect of being a judge, once you were appointed?
My path to the bench was very circuitous. I did clerk for Judge Murphy [district court judge], and I loved that judge and I saw firsthand the amount of good an excellent judge can do. Clerking for her, I became interested in someday joining the bench.
I started in private practice, plaintiffs-side law firm, which later merged with a large firm. Then I switched to the criminal appellate section of the Minnesota Attorney General’s (AG’s) Office, which was a wonderful introduction to the court of appeals. I also tried some cases there. Then I applied to the U.S. Attorney’s Office, and then returned to the AG’s office in a leadership capacity, as deputy in charge of all criminal, antitrust—supervising 110 attorneys. I then went part-time (we had just adopted a daughter) and went back to being a prosecutor.
I then became assistant dean at Public Policy School (my friend, who was leaving the job, recommended me). Students were incredible, and it was invigorating to be around students who wanted to change the world. It was a nice way to get to know members of the community, and it was clarifying—leaving the practice of law helped me appreciate how much I really enjoyed the law in its purity. I missed the law. I applied to the Minnesota Court of Appeals and was appointed.
I had previously applied to the district court bench and the court of appeals. This time, one of the woman judges leaving the Minnesota Court of Appeals, Judge Harriet Lansing, approached me at a luncheon and asked me why I was not applying for an open position on the court. Supreme Court Justice Wright had also earlier suggested I apply. Sometimes women need an invitation. We sometimes believe that we need to be knowledgeable about everything before we can apply for a position, which is not true.
It was very helpful to have a broad background: civil, criminal, administrative, class actions.
A lot of my career was being open to saying yes when someone asked me if I was interested in an opening.
I love our court, and I feel very supported by fellow members of the court (there are 19 members). It was a far more welcoming environment than I could have anticipated. I love having law clerks; it is wonderful to work with newer attorneys and to get the perspective of a different generation, and being able to mentor my law clerks has been a wonderful aspect of the job.
What advice would you give to a woman lawyer interested in joining the appellate bench?
It is important to get experience before appellate courts. That may be difficult, but there are pro bono opportunities to get this experience. It is invaluable to get that experience and understand what the court is about. Also important is to get some trial experience so that you have a good handle on the record and how it is created.
Be open to saying yes when someone asks if you are interested in an opportunity.
What is the one thing you wish lawyers appearing before you would do that would help you and your colleagues decide cases?
I love the lawyers who are very honest about the most difficult part of their case and recognize the part that will give the court the most trouble. I like to ask questions about the key stumbling block, and I appreciate when attorneys do not hide the ball and go right to the toughest aspect of their case. If you do that, you will have more input into how the court decides the case.
I also love the attorneys who know when to stop: they do not belabor anything and get right to the point.
Would you say you ever had a mentor or sponsor who made a genuine difference in how your career turned out? If so, please tell us a little bit about that.
My long-term mentor has been Judge Diana Murphy. She did a lot for me. I was timid about even making recommendations about how the district court should rule; I wanted to know more before offering a recommendation. She taught me to make the very best decision I could based on the record presented to the court. She also improved my writing. I call her before every big decision I have made in my career.
Judge Lansing, who came in at exactly the right time to recommend I apply for the court of appeals.
I have had mentors at every job. I like to ask for advice and enjoy hearing what others think.
Minnesota is a small enough community that mentors reappear in different forms. My mentor at the AG’s office later appeared on the judicial nominating committee.
What is the best lesson in leadership you have learned, and how has being a judge (as compared to a practicing lawyer) opened up new avenues of leadership for you, both on the bench and in the community?
I had been a leader at the AG’s office and the school. I am less of a leader in that way now. But I do feel like I am more of role model than I was before, both to my law clerks and to other women lawyers. I am a lesbian and an out lesbian, and that may be important to that community to see me as well.
