Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

76 THE STORIED THIRD BRANCH Vol. 105 No. 1

A model of collegiality JUDGE HARRY T. EDWARDS SENIOR JUDGE, U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Three tributes by , Pamela Harris, and Daphna Renan

One of Judge Harry Edwards’s succes- challenging endeavor given the well- chief judge and marked a fitting cul- sors as chief judge of the D.C. Circuit earned reputation of judges as often mination of his tenure. The case was has called Judge Edwards the “Great more tech-phobic than tech-savvy. extraordinarily complex, with a record Chief.” That is a fitting appellation. He oversaw the design of a substan- containing tens of thousands of pages While Judge Edwards could serve as tial expansion of the court’s physical and oral arguments spanning multiple chief for no more than the statutorily plant, including the incorporation of days. As an indication of the case’s sig- prescribed period of seven years — new common areas and lunch spaces, nificance, the court elected to hear it en not the 34 years served by the original enhancing the ability of judges and banc at the outset, an exceedingly rare “Great Chief,” Chief Justice Marshall — court personnel to gather and inter- occurrence. The dispute was highly vis- Judge Edwards’s tenure as chief judge act. He organized a lunchtime speaker ible and hotly contested, engendering is rightly considered a markedly sig- series for the judges, initiated a tra- predictions of a divided and perhaps nificant and successful one. His close dition of annual dinners, and treated splintered disposition. Those predic- friend and former colleague on the D.C. judges with handpicked gifts on their tions proved decidedly wrong. Under Circuit, Justice Ruth Bader Ginsburg, birthdays. In short, he played the roles Judge Edwards’s stewardship, the court said that Chief Judge Edwards “trans- of architect, social chair, personal shop- issued a unanimous, 125-page opinion, formed the court into a model of per, and IT consultant, all to great effect. with every judge drafting a portion of collegiality and efficiency” and “steer[ed] All of those measures were of a the opinion and no judge writing sepa- the court on a course of caring collegi- piece with, and were in service of, the rately. Judges on the court at the time ality.” I’m particularly grateful for that broader object of promoting collegi- have described their pride in deliver- model, and am a direct beneficiary of it, ality, which could be considered Judge ing a unanimous decision under — and as a member of the court. Edwards’s organizing principle of in many ways as a credit to — Judge The ledger of Judge Edwards’s leadership. The fruits of that push to Edwards’s leadership. accomplishments as chief judge runs collegiality were nowhere manifested The Microsoft decision was unsigned, exceedingly long. Among other initia- more tangibly than in the court’s con- signifying a court acting as a collective tives, he directed efforts to automate sideration of United States v. Microsoft, institution rather than an assemblage the court’s processing of matters in fun- 253 F.3d 34 (D.C. Cir. 2001) (en banc). of individuals. Judges, though, are inde- damental ways, significantly improving The Microsoft decision issued in the pendent actors, often proudly so, and the court’s efficiency — an especially last month of Judge Edwards’s time as a chief judge has virtually no formal Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

Judicature 77

authority over her or his colleagues. If we do this while modeling integrity, Instead, a chief judge’s authority, such confidence, resilience, and success, the as it is, rests almost entirely on having generations that follow will be better the trust of one’s colleagues, and hence positioned to enjoy the fruits of what on earning a faith that one is acting this country has to offer.” One would with fairness, with integrity, and with A chief judge’s be hard pressed to formulate a more the broader interests of the institu- apt description of Judge Edwards’s own tion firmly in mind. That kind of trust authority rests life, example, and legacy. is gained over time by the character almost entirely on of one’s actions. Judge Edwards, by all having the trust of — Sri Srinivasan is chief judge of the U.S. Court of accounts, had that trust in abundance Appeals for the D.C. Circuit. He served as an Assistant in his time as chief judge. one’s colleagues. to the Solicitor General and as the Principal Deputy Judge Edwards evidently earned Judge Edwards, by Solicitor General of the United States. He was a law the confidence and admiration of his all accounts, had that clerk to Justice Sandra Day O’Connor and to Judge J. peers from an early age. This is a per- Harvie Wilkinson III. son, after all, who served as his class trust in abundance in president for each of his four years his time as chief judge. in high school. It is not at all the case, When I became an appellate judge though, that he was openly embraced — CHIEF JUDGE SRINIVASAN (ABOVE, LEFT, in 2014, I fully expected that Judge and willingly accepted into any insti- WITH LISA FRELINGHUYSEN, JUDGE EDWARDS, Edwards would be my role model. I AND PAMELA CARRINGTON-EDWARDS). tution of which he was a part. Hardly had watched Judge Edwards — first so. Rather, Judge Edwards has spo- as his , and then as a law- ken of his experiences as an African yer and a friend — hold himself to American contending with racial bias “something of a legend at the school, the most exacting standards, metic- while growing up and when coming of one of the best all around students ulously preparing for every case and age in the legal profession. we ever had.” Nonetheless, the major then turning out fully reasoned and In high school, a young Harry law firms with which he interviewed carefully crafted opinions. Everything Edwards was told by his guidance coun- in multiple cities told him that they had to be done perfectly because the selor that he was not “suited” to attend could not hire him because of his race. stakes were so high: Judge Edwards Cornell because of his race. He applied It was only due to the intervention always kept front and center the real- and went anyway. Fraternity rush took of a faculty mentor that one Chicago world impact of his work on people’s place in his first days at Cornell, but he firm ultimately extended him an offer, lives. That core commitment to get- received no invitations to join a fra- which he accepted. He later became ting it right, I thought, would be my ternity at that time because none of the first African American law pro- takeaway from Judge Edwards. the participating fraternities accepted fessor at Michigan Law School, which All of that was true, and I still am Black students. The entire time Judge hired him in part in response to stu- working toward the impossibly high Edwards attended Cornell, there were dent protests demanding greater bar Judge Edwards has set. But in my no more than ten African American diversity on the faculty. new job, I also have come to appreciate students on campus. While he excelled Judge Edwards’s fortitude, per- another of Judge Edwards’s commit- there academically, he has described sistence, and record of achievement ments: his commitment to collegiality the social experience as a “nightmare.” in the face of the bias he encountered in appellate decision-making. Getting When he then attended the have enabled him to become not just a it right, it turns out, is not only about University of Michigan Law School, he leader in the profession, but a pioneer. the work ethic and the analytic rigor. was the sole African American student He has said the following in reflecting For Judge Edwards, it also is about in his class. Once again, he performed on “the ongoing quest for racial justice”: the engagement with his colleagues, superbly as a student. A later dean of “As lawyers, we certainly understand a collective process in which judges the law school, as recounted by Justice the need to be vigilant in continuing to reason their way together to the Ginsburg, described Judge Edwards as press for racial justice in this country. right answer. u Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

78 THE STORIED THIRD BRANCH Vol. 105 No. 1

Judge Edwards’s passion for judi- take full advantage of the diversity of cial collegiality is well known. When I backgrounds and professional exper- clerked for him in 1990, the D.C. Circuit tise on our courts. was just starting to come out of what At bottom, Judge Edwards’s commit- was widely thought to be a person- Judge Edwards ment to collegiality boils down to one ally bitter and adversarial period in the embraces the thing: the generous conviction that court’s history. Restoring a sense of we do our best work together, actively community and collegiality was very collective dimension engaging each other in an atmosphere important to Judge Edwards, especially of appellate decision- of inclusion and mutual respect. It was when he became chief judge in 1994. a privilege to learn this lesson from him Most observers rightly credit Judge making: judges as a law clerk, and I am confident that all Edwards with helping to restore a listening to and who have worked with him have ben- more cooperative and collegial culture learning from each efitted enormously from his example. on the D.C. Circuit, and he has gone on to write and speak extensively about other, willing to be — PAMELA HARRIS is a judge on the U.S. Court of the importance of judicial collegiality. persuaded and also Appeals for the Fourth Circuit. She previously worked Judge Edwards always makes clear to persuade, testing in private practice as a Supreme Court and appellate that by “collegiality,” he has in mind litigator with O’Melveny & Myers LLP. She was a law something more than friendly and civil their views in the clerk to Justice of the U.S. Supreme relationships among judges. There crucible of a lively and Court and to Judge Edwards. is overlap, of course; Judge Edwards treasures his friendships with his col- productive dialogue. leagues and understands that civility in — JUDGE HARRIS (ABOVE Judge Edwards cares deeply about the disagreement is a precondition of any WITH JUDGE EDWARDS). human impact of the law, while focus- healthy collaboration. But when Judge ing just as intently on the theory and Edwards talks about collegiality, he is craft of legal reasoning. Part of what describing a very substantive concep- ings with each other. Disagreement, I admire so much about Judge Edwards tion of the role of an appellate judge, as Judge Edwards has explained, goes is his ability to hold both of these com- in which reaching decisions through hand-in-hand with collegiality; strong mitments at once. He has never lost interaction is central to the job. collegial relationships are what allow sight of the significant, wide-ranging Not every judge sees it that way. judges to express their disagreements and far-reaching impact that the law People who become appellate judges and individual perspectives rather than has on the lives of individuals, groups, often are used to making decisions on suppress them for fear that they will and communities. He appreciates, and their own and tend to be very confident be poorly received. A collegial judge impresses upon his law clerks, the in their own views. Once on the bench, has to be willing to engage, and able to grave responsibility that comes with they may emphasize the purity of their navigate, the inevitable differences of implementing — and, in the process, own independent judgments, reaching opinion with respect and affection. making — law that will have a pro- decisions separately from their col- Judge Edwards thinks — and I have found impact on the lived experience leagues and then considering the matter come to agree — that all of this is of many, and on our shared humanity. closed. But Judge Edwards embraces the worth doing, because we as judges are If Judge Edwards appreciates the collective dimension of appellate deci- fallible. We have blind spots and intel- human responsibility of judging, how- sion-making: judges listening to and lectual vulnerabilities, and nobody ever, he also is deeply immersed in learning from each other, willing to be — no matter how thoughtful and dedi- the theory and craft of judicial deci- persuaded and also to persuade, testing cated — can decide every case perfectly. sion-making. One thing his law clerks their views in the crucible of a lively and Collegiality helps us get it right when learn quickly is just how important productive dialogue. we might not on our own. It gives us legal writing is to the Judge. Judge All of this takes work and energy and the benefit of different points of view Edwards loves a good detective novel. a fair bit of magnanimity in our deal- and others’ wisdom, and allows us to But he does not believe a judicial opin- Published by the Bolch Judicial Institute at Duke Law. Reprinted with permission. © 2021 Duke University School of Law. All rights reserved. JUDICATURE.DUKE.EDU

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ion should read like one. He wants the role of being a leader of the bar, it is court’s decisions to be clear from the central. The Judge has often remarked outset, and well-reasoned at every about the impact that his own mentors analytical step. For Judge Edwards, a have had on his life and professional legal opinion should provide a compel- Judge Edwards trajectory. “My mentors . . . were abso- ling account of the law, grounded in the loves a good detective lutely essential to my professional facts before the court, but deeply alert development and accomplishments,” to the broader doctrinal implications. novel. But he does he has written, “[n]ot only did they pro- Beyond the craft of judicial writing, not believe a judicial vide connections and advocate on my Judge Edwards cares about the theory opinion should read behalf at crucial moments in my young underlying the doctrine. I don’t mean adult life, but, more important, they theory in the sense of esoteric puzzles like one. explained the system to me, nurtured and rudderless abstractions. The Judge, — PROFESSOR RENAN (ABOVE WITH me, and gave me the confidence to take both in his own legal scholarship and JUDGE EDWARDS). on and complete challenging work.” in his guidance to current law clerks Those of us blessed to count Judge and former-law-clerks-turned-bud- Edwards as a mentor would say very ding-academics, has been very critical Prompted by some early work on much the same. The Judge brings to the about what he famously termed the the first edition of this treatise, Judge role of mentor the singular serious- “growing disjunction” between aca- Edwards and I have had a years-long ness, thoughtfulness, and tenacity that demic scholarship and the legal conversation about statutory interpre- he brings to everything else he does. profession. But Judge Edwards is tation and judicial deference. In these It is not uncommon for Judge Edwards deeply attuned to the ways in which conversations, Judge Edwards will reg- to call you before you have even fully strong legal argumentation depends ularly assert that he is uninterested in realized that you have a professional or on a framework for analysis. “theory,” and then proceed to advance life choice to discuss. He spends count- Indeed, unsatisfied with how instruc- nuanced theoretical arguments about less hours on the phone with former tors and casebooks handled the federal the role of the judge in light of dif- clerks — hours he has somehow found, standards of legal review, and the many ferent types of legal meaning and or made, notwithstanding the many interesting problems and important different kinds of statutory text. When pressures and demands on his time. He puzzles that they pose for courts, Judge I teach statutory interpretation and will dissect every aspect of a decision Edwards created his own treatise. What administrative law to my own stu- with you, sensitive to both the pro- motivated the Judge, who was teach- dents, there is no greater influence on fessional and personal commitments ing a class at NYU Law at the time, was my own thinking and instruction. No that each of us strive to best fulfill. The frustration that he did not have an ade- one’s words echo more loudly in my Judge is also an incomparable cham- quate source to provide his students on mind, and I often find myself rereading pion of his students and former law this pivotal aspect of judicial reasoning. a passage from his treatise, or looking clerks. If the Judge’s legal opinions and Rather than muddle through with the up an old email exchange, in deciding scholarly writings have shaped the available readings, Judge Edwards took how to teach a new twist in deference law, his fierce advocacy and powerful on the project of creating a new way doctrine or a connection between dif- mentorship of so many have reshaped to structure the field. The difficulty of ferent aspects of how courts review the legal profession. creating a treatise covering the various administrative action. and complex issues involving standards While Judge Edwards has written — DAPHNA RENAN is a professor of law at Harvard of review — out of whole cloth — can- so impactfully about the judge’s obli- Law School. She has served as a counsel to the Deputy not be overstated. But Judge Edwards, gations in connection to standards of Attorney General in the U.S. Department of Justice and together with his friend and collabora- review, he has written just as power- as an attorney advisor in the . tor Linda Elliott, created a nuanced and fully about the human responsibility She clerked for Justice Ruth Bader Ginsburg of the U.S. rich framework for a stunning amount of lifting others up in the legal pro- Supreme Court and Judge Edwards. of material, which they explicated with fession. For Judge Edwards, strong enormous clarity, coherence, and depth. mentorship is not peripheral to the