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Evaluation of the United States Court of Appeals for the Seventh Circuit - Report DePaul Law Review Volume 43 Issue 3 Spring 1994 Article 5 Evaluation of the United States Court of Appeals for the Seventh Circuit - Report Chicago Council of Lawyers Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the Seventh Circuit - Report, 43 DePaul L. Rev. 673 (1994) Available at: https://via.library.depaul.edu/law-review/vol43/iss3/5 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. EVALUATION OF THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Chicago Council of Lawyers* Editor's Note: Law reviews are often criticized for not publishing more pieces containing helpful, relevant information to the practice of law. The DePaul Law Review was therefore intrigued by the following Evaluation of the Seventh Circuit Court of Appeals done by the Chicago Council of Lawyers. This Evaluation is based, in part, on the Council's informal survey of attorneys practicing in the Seventh Circuit. Although this survey information was not quantitative, and thus could not be verified by the DePaul Law Review, it serves to substantiate the Council's opinions regarding individual judges, expressed herein. All of the opinions and inferences drawn are those of the Chicago Council of Lawyers and not of the DePaul Law Review. TABLE OF CONTENTS Introduction ................................... 674 I. Recommendations For Criteria And Procedures For Selecting Judges ............................... 678 II. Evaluation of the Organization, Procedures, and Decisional Principles of the Court ................ 682 III. A Statistical Analysis of the Court and its Judges .. 722 IV. Evaluation of the Individual Judges ............... 726 A. William J. Bauer ......................... 728 B. John L. Coffey ............................ 731 C. Richard D. Cudahy ........................ 736 D. Walter J.Cummings ....................... 741 * The principal editors of this Evaluation were Barry A. Miller and Thomas R. Meites. Mr. Miller, B.A., Yale College, 1975; J.D., Harvard University, 1978; President, Chicago Council of Lawyers, 1991-93. Mr. Meites, B.A., Harvard College, 1965; J.D., Harvard University, 1969; member, Board of Governors, Chicago Council of Lawyers and Chair, Seventh Circuit Evaluation, 1991-93. Mr. Miller and Mr. Meites wish to thank current President, Paul Strauss, Executive Director, Malcolm Rich, Ann Reading, and the dozens of attorneys who worked on the project. Services for checking the accuracy of citations were donated by Lexis. This Evaluation was released in February, 1994 by the Council. It has been edited for publica- tion and appears in slightly different form here. The opinions and interpretations expressed herein are solely those of the Chicago Council of Lawyers, as approved by its Board of Governors, and not those of the DePaul Law Review. DEPA UL LA W RE VIE W [Vol. 43:673 E. Frank H. Easterbrook ..................... 747 F. Jesse E. Eschbach ......................... 761 G. Thomas E. Fairchild ...................... 765 H. Joel M . Flaum ........................... 769 L M ichael S. Kanne ......................... 778 J. Daniel A. M anion ......................... 783 K. Wilbur F. Pell, Jr. ........................ 788 L. Richard A. Posner ........................ 793 M . Kenneth F. Ripple ......................... 812 N. Ilana Diamond Rovner ..................... 817 0. Harlington Wood, Jr....................... 819 A ppendix ..................................... 825 INTRODUCTION This is the first evaluation the Chicago Council of Lawyers ("the Council") has conducted of the United States Court of Appeals for the Seventh Circuit. The Council was founded out of a concern by a wide variety of lawyers that other local bar associations were unwill- ing to criticize current judges and were too parochial in their inter- ests.' Since its inception, the Council has evaluated candidates for selection to state and federal courts, both trial and appellate.2 The Council worked closely with former Senators Charles Percy and Ad- lai E. Stevenson, III, in evaluating candidates for the federal bench in Chicago and has continued to evaluate candidates during the past decade. The Council has also conducted four comprehensive evaluations of the U.S. District Court for the Northern District of Illinois, most recently in 1991. These evaluations have been useful to the bar be- cause they publicly identify the strengths, weaknesses, and practices of the different judges. The Council also believes its evaluations have helped the district court by articulating problems perceived by the bar, as well as by letting the judges know that good work is appreciated. The 1991 evaluation described characteristics shared by successful judges to be used as a guide in selecting future judges; 1. Among the Council's founding members were some of the most prominent lawyers in the city - including Bill Brackett, Kermit Coleman, Alex Elson, Albert E. Jenner, Jr., Alexander Poli- koff, and Milton Shadur - as well as noted legal academics such as Gerhart Casper, David Currie, Philip Kurland, and Dallin Oaks. The Council's members predominantly are lawyers at large firms, as well as small firm lawyers, prosecutors and defense lawyers, academics, judges, and members of Chicago's legal aid and civil rights bar. 2. District Court evaluations are on file with the Chicago Council of Lawyers. 1994] SEVENTH CIRCUIT EVALUATION this proved helpful in evaluating candidates for recent vacancies on the U.S. District Court in Chicago. A. Reasons for Conducting this Evaluation Upon completion of the 1991 district court evaluation, the Coun- cil's Board of Governors approved an evaluation of the Seventh Cir- cuit Court of Appeals. The Council's decision was based on several factors. First, the U.S. Court of Appeals is an important institution for practitioners and litigants in Chicago and has also become one of the most distinctive courts in the country. Second, to our knowl- edge, no U.S. Court of Appeals, including the Seventh Circuit, has ever been the subject of a detailed evaluation of its performance conducted by a bar association. The Council's evaluation of the Seventh Circuit had the following objectives: - Providing information to the judges on how each of them is per- ceived by the bar. This information is particularly important for ap- pellate judges, who spend less time with lawyers than district judges and who may have less interaction with the lawyers who appear before them. - Providing information to the judges on how their colleagues' work is perceived by the bar. Since the court sits in panels of three, and en banc on occasion, this information may be of interest to members of an appellate court in a manner that it may not be to members of a trial court. - Providing information to the judges on how the court as an in- stitution is functioning, as perceived by the bar. - Providing information to lawyers and litigants who are not fa- miliar with a judge about the bar's perception of that judge's strengths and weaknesses. * Providing information to the public about any strengths or problems of individual judges, and the quality of the court as a whole. - Providing information to those who participate in the nomina- tion and confirmation of Seventh Circuit judges on factors that should influence their decisions. It is not easy for practicing lawyers to criticize judges before whom they appear. Nonetheless, the public has the right to in- formed views about the performance of its judges and its courts. A bar association is in a unique position to provide that information. DEPA UL LA W RE VIE W [Vol. 43:673 The Council recognizes that the members of the Seventh Circuit Court of Appeals are dedicated public servants who work hard to provide justice. Despite any criticism of individual members of the court, the Council appreciates their efforts on behalf of the public. B. Overview of the Evaluation The Evaluation is divided into four parts. The first discusses the Council's recommendations for selecting judges to the Seventh Cir- cuit. The second describes the functioning of the court as a unit, identifying some of the court's administrative processes, including the role of the chief judge, and discussing problems identified by practitioners with the court's current procedures. The third section of the report reviews statistical information con- cerning the court and its members. Some of the statistics relied on by the Council were gathered from reports compiled by the Admin- istrative Office of the United States Courts, and they compare the Seventh Circuit's performance with that of other federal appellate courts. The Evaluation also reports the results of a preliminary sta- tistical analysis of the work of individual judges conducted by Assis- tant Professor Lawrence Lessig of the University of Chicago Law School.' The fourth section evaluates each individual judge on the court. Although the Evaluation indicates judges vary substantially in abil- ity, the Council sees no point in rating judges with life tenure as "highly qualified," "qualified," or "not qualified," as we do when evaluating candidates for appointment to the federal bench, or for election or retention to the state courts. Instead, we include only a narrative description of their performance. These evaluations are not designed to be a comprehensive summary of the opinions written by each judge - we are not writing a digest of the court's rulings. While we have tried to give examples for most of the conclusions we have drawn about judges, in some instances we have not done so. Because we promised confidentiality to our sources, we do not al- ways use the best possible examples of cases to illustrate our conclu- sions. For example, if lawyers involved in a case tell us that judge X was not fair to the facts in that case, we will evaluate that opinion and see if that lawyer's viewpoint was shared by other lawyers.
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