Chad M. Oldfather · June 2010
78 GEO. WASH. L. REV. 846 (2010)
There is no shortage of books on judging. A nonexhaustive list from the past few years alone includes books entitled Justice in Robes, Judging under Uncertainty, Law and Judicial Duty, Judges and Their Audiences, The Judge in a Democracy, Running for Judge, Are Judges Political?, and How Judges Think. Law journals are likewise filled with articles and symposia devoted to the judicial role.
These works represent a broad variety of perspectives. Many of the countless thousands of words involved are not only about judges, but were written by judges. Those, we might imagine, are to be especially privileged as words that come from those who know whereof they speak. Certainly only someone who is (or has been) a judge can fully understand what it is like to be a judge. Most of the remainder, and undoubtedly most of the entire total, were produced by academic commentators. The value of any given one of these latter contributions perhaps lies in the eyes of the beholder. But surely, as a general matter, the detached perspective has its virtues. As Judge Posner put the point, in confessing his feeling “a certain awkwardness in talking about judges”: “Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology.”
All of this work has been valuable, much of it incredibly so. But there remains a sense in which the resulting picture is incomplete. Quantitative studies provide a picture of the judiciary as a whole, but speak only in generalities. Qualitative accounts are useful to round things out, but the self-selected nature of judicial writings on the judicial process suggests that such accounts provide an incomplete perspective as well. Judges who have chosen to write about the processes of judging may have different perspectives than those who have not, and it is consequently difficult to conclude that their insights apply broadly to other judges.
A book like William Domnarski’s Federal Judges Revealed holds out the promise of filling this gap. The book is constructed around oral histories of roughly 100 federal judges at both the district and circuit-court levels. Its raw material, in other words, consists of discussions in which a wide array of federal judges—not just those who have taken the initiative to address the matter in print—talk about the processes of judging. Here, then, we have the perspective of the average judge, and we have enough of a sample size to imagine that we might be able to engage in some generalization about the characteristics of the federal judiciary.
In focusing on oral histories, Domnarski has tapped into a source of information on judges and judging that has been largely overlooked. There are at least two reasons for thinking that this approach will yield worthy insights. First, because the interviews on which Domnarski draws were conducted orally, the judges lacked the ability to stage-manage to the same extent that they could in a lecture or written article. To be sure, the judges were undoubtedly still controlling the message. But an interviewer who establishes a good rapport with a judge can introduce a comfort level that perhaps leads the judge to be somewhat less guarded than she otherwise might. Second, the timing of these interviews is significant. The judges who sat for these interviews were almost uniformly at the end of their careers. For them, the battles had been fought, and any felt need to position themselves for a potential promotion had passed. This, too, encourages candor. Domnarski is thus, to take just two examples, able to relate some revealing stories about the appointments process, and to provide as full and unguarded an account of the extent to which judges rely on their law clerks as is available anywhere. Domnarski encourages these sorts of conclusions about the unique contributions of oral history. He contends that “the sources we would ordinarily expect to turn to have not produced anything resembling a critical mass of information to allow us to begin making judgments about the performance of the federal judiciary, either on an individualized basis or on the judiciary as a branch of government.” Only oral histories, he suggests, can tell us “who the judges are and what they do.”
My aim in this Essay is to explore these claims and intuitions, with an eye toward determining just how useful oral history is to the study of the judiciary. Part I examines oral history as a methodology, on the understanding that we can appreciate the value of the products of oral history only after having a firm appreciation for oral history’s methodological strengths and weaknesses. Part II reports the results of my review of three oral histories provided by the late Judge Thomas Fairchild of the Seventh Circuit, one of which was among those reviewed by Domnarski. Part III then turns to Federal Judges Revealed. It provides a brief overview of the book and an assessment of its contribution to the study of judges and the judiciary.
