Hon. Milton L. Schwartz (page 6)

Miller: Okay. Right before we left we were talking about law clerks. And I think I'll restart the conversation by saying . . . had you had an awareness before you took the bench that one of the jobs you had was training young lawyers while you were resolving very important issues.

Judge: I think I probably did not really think about that. I had the feeling that they probably would be training me. I got David Hall as my first Senior Law Clerk. And he was trained of course. He was running the . . . and had set up the program for writ clerks here and he was doing all of that, and then he was also trained just generally in law clerking, and that's kind of what he wanted to do. And then he picked my Junior Law Clerk - he and Todd Fogarty from my old firm. Because I figured that Todd worked more for me than anyone else and knew more what I was like, and what to expect from me - more than I would be able to explain it. And that worked so well, because Kathy Banke was the one they agreed upon and picked, and she was just outstanding. And then I just kept looking for clones of those two.

Miller: So now when David left and Kathy became Senior and now you had to pick a new Junior Law Clerk, how did you do - what procedure did you follow?

Judge: I had the two of them interview first and screen down to eight or nine people. And then they gave me those and I reviewed them. And then they set up interviews. And we all do it, I find, quite differently. I would have the two law clerks, my Senior who was about to leave, and my then incoming Senior, together interview the prospect. And they would tell that person what the job was about and the things that I emphasized and that I made clear to them and various kinds of - what sort of chambers is it? And then when they were all through, that prospect would come in and I would interview him or her, mainly to find out whether the chemistry was right. I was very concerned about coming from a very active, gregarious law firm, where I rushed around the room in the suite and talked to him or her, and what do you think about this, and would you like to work on it with me because I won't be able to do it alone and I'll need some help, and that sort of thing, to all of a sudden no contact or no communication at all.

I used to think that the judges would talk a lot to each other, but not true at all. I think we were so jealous of each other's time that we did not want to bother the other judge, and if I had a problem that would take me an hour and a half to outline for the other judge, he's not going to have that kind of time to spend and would be champing at the bit to get me out of there. And if I could do it in 5 to 10 minutes I wouldn't need to go see him - I could figure it out myself. And so there really, there really is a minimum of discussions back and forth. We meet once a week and that's about it. And then we have retreats in which we get a lot done. But it's all very withdrawn and we're just all in this little chambers and the phone never rings and it's very lonesome. And so I felt that I wanted to find good chemistry first because we're too close together and that that was the number one requisite that I would - that we'd like each other and get along with each other. And other things, you hope, will fall into place. But that was always the first requirement, because you do discuss all these things and they become sort of part of your extended family, as you know, and it makes a big difference. But it's a, it's a solo kind of operation and I know we all do it quite differently.

I know Judge Karlton has a shouting session. He and his two law clerks and maybe somebody else sit in and here is the poor applicant, you know, turning from one to the other, and Karlton is saying, "Why would you do a thing like that," you know. And I've asked and he said, "They've got to learn that they'll get bashed in the head, and that it's a very tough job and very demanding, and all those things," and I said, "I know that, but if you tell them that, some of them are timid like I used to be and they wouldn't want to come to work for you because you're too mean. And you're depriving yourself of somebody that would be a very good law clerk if you were a little gentler in the approach."

Miller: I remember when Judge Karlton first came and his chambers section door opened into our chambers section door, and he would come I to talk to me because I did all the civil rights matters in our chamber, and so he would come in to say, "What do you think about this." But when he first did it he would come in yelling.

Judge: Of course.

Miller: And that would make my mind go blank, because it was so quiet in Judge . . . And I remember the first time I just sat there staring at him and he kept yelling at me and saying, "Well, what do you think? Don't you have a thought?" And finally I said, "You know, I can't hear what you're saying. You're yelling at me." And he was very startled, and he kind of laughed. And he said, "Oh, I guess that won't work here." And so he went and sat down on the couch and talked quietly and we had a good conversation. But I couldn't cope with it and he was so startled, because that is his style, indeed. Now, I got used it over time. He yells at me now all the time.

We were talking off the record about how things have changed over time in kind of chambers administration, and many of the newer judges have gone to what we will call lifetime law clerks. People who come to work for them and then just stay with them for years. And you have not done that, is that correct?

Judge: Yeah, but it hasn't been because I wanted to. I have, when I've really liked somebody's work, I've said, "I don't want to urge you to stay because that's interfering with your life that's ahead of you, and mine is a long way's away. And that would be for my convenience, but it might not be the best thing for you. And so, you're going to have to make the move. But I'm telling you simply that Barkas is willing and if you want to stay here more or less indefinitely, which means permanently as long as we can both stand each other, and it's terminable at the will of either party, if you want to stay here on an indefinite basis as long as it works, all you have to do is say so because I don't have any of these rules."

I know that Judge Karlton - he doesn't not - not only will he not hire for longer than the two years, and I'm sure the reason he gives is just that, but also he won't hire an extern. He says it's not fair to other applicants for a job, because if my law clerks pick up an extern for two or three months or a summer and we like them, I don't think it's fair to give that person a head start in hiring. And I say, "Well, you're a lot more thoughtful about other people and fairness to them than I am. I will grab whatever I can get." And he said, "Well, I don't think it's fair." So then he comes around and works on me to hire one of his externs who he thinks is very good but he won't hire them. He is something else.

Miller: Oh, my.

Judge: There is a certified, real character. He does not pretend he's a character or act like a character, he is a character.

Miller: And as to the other staff. Did you bring a secretary with you from the firm?

Judge: No I didn't. And I tried to. I tried to hire Mimi and bring her over. And she said, "It wouldn't be enough action for me. I'd fall asleep." And I'm glad she didn't. Because I got Millie, and Millie was just very, very good. The only problem was that Millie could be shocked. Millie is one year younger than I am and so she comes from an old school. And so when Rich Brown would write me these awful, awful insulting letters indicating that this is a copy of which he sent the original to the House of Representatives recommending impeachment, poor Millie would just go into a state of shock. And then would hide the letters because she didn't want to upset me by reading these insulting and terrible things that he would say.

Nichols: Since this is for posterity, it probably should be indicated that Rich Brown is well known for speaking tongue-in-cheek.

Judge: He is very funny.

Miller: But, on the other hand, I would presume you, as with many of the judges got some pretty threatening things said to and about you, and had some experiences with anti-Semitism, because you are Jewish. And why don't you talk about that a little bit. About how that comes up and how you deal with those kinds of things.

Judge: I haven't received as many as I thought I would. I figured that I would have some very, very awful letters, and they actually made me sick to my stomach where you think you're going to wretch because I've never been exposed to that kind of insult--a vicious really hateful thing. It was not nearly as often or as many times as I thought it might be. But the biggest ones, perhaps, had to do with that strange case where I decertified a former Nazi from his citizenship which I thought he had improperly obtained. And that evoked something else like I've never seen from both sides. Hateful letters about why I let this terrible person stay here. He was dying and in his late '70's at the time. And I . . . but more I go the other kind that were letters that were Nazi type of letters attacking me personally for my own ethnicity, which really kind of make you sick when you see them. Because we're not really exposed that much to real hate and it shocks you every time you really are the butt of it.

Miller: Do you find that that kind of anger and animosity arises much more in the civil context than a criminal context or vice versa?

Judge: Do I experience in more in a civil than in a . . . I don't think that I've experienced much of any in a criminal - they don't say those things. You find out that they've said them and all of a sudden you've got around the clock surveillance because a threat was made about you. But face-to-face I've had very little experience in the courtroom with some obstreperous defendant who was shrieking and yelling and that sort of thing. That has almost never happened in the 21 years I've been on the bench.

Miller: It's interesting, isn't it. I remember Judge Levi, when he was the United States Attorney, being surprised when a criminal defendant would take a federal defender and kind of roll over on the criminal charges, but if there was a forfeiture to follow it, now they wanted a real lawyer. It was the money and what they would return to that was of more concern to them than the loss of freedom for a period of time.

You mentioned the isolation. And obviously we're sitting here and we can look around and see that physically there's no way that you can communicate between chambers. You people are all over the place and widely separated. But did the attitudes of people that you had known before in the community seem to change once you had become a federal judge?

Judge: Not as much as you might think for the reason that I'm older - I think I'm older than anybody - any lawyer that has appeared in my court on business. I don't think that I've had a lawyer in my courtroom that was as old as I was when he was in my courtroom. And that is a big, big help. I would gladly trade much greater mental, academic acumen in place of seasoning. When you are older than the lawyer and have been around quite a bit longer than the lawyer, for some reason or other the macho aspects of his character and the taking you on kind of thing are greatly diminished. I'm shocked when I hear - when we have young judges where the lawyer is older and been around longer, they just can't contain themselves if they disagree with the judge's ruling. They simply can't. And I've thought back to see if I was subject to that same sort of thing and I really find that I was. If I felt that a relatively new judge I didn't particularly like, and he was not sympathetic to my position, I would get a lot angrier and get a lot more combative than I ever would with an older judge. And I think that's nice.

Miller: Well, it is interesting. We've had some very young people appointed.

Judge: Yeah. Now some of them bring this upon themselves. You get someone like - who was over in the state court that used to be so difficult that retired early and - [text omitted]. Those guys when they came on they had a chip on their shoulder. It was almost saying, "You may be from New York City and have 35 years of experience but you're not going to make waves in my courtroom, Buster, and don't try, don't try . . .". You know, that kind of stuff right off the bat before the lawyer had done a thing. They want to serve notice, "You're not going to push me around." And that's too bad because they become defensive and some of them very much so and very difficult to deal with.

But people like David Levi are as gentle and as kind and they don't attack, they're not confrontational, and yet he'll take a lot of flack that I've heard about that I can't believe he would be subjected to, and particularly by people that I know who have been in my court a lot and have never evidenced those characteristics to me. And when he first talked to me about it he said, "It's upsetting to me because I know that this man is a very good lawyer, and has a good reputation, and his stuff is good. Obviously I don't agree with everything he says, and when he doesn't like the rulings I make he can get just really out of line." And I said like, "What is out of line for you?" And he told me and I said, "That's out of line. You have no - you shouldn't put up with that, you should be subjected to it. You can put up with anything you want in your own courtroom but you should never be subjected to that kind of thing, and particularly from a lawyer who is as sophisticated and as good and knows what he's doing as much as this one does. I can't believe it." And he said, "Well, I couldn't either, and I don't know where to go from here, and I don't want to get too tough," and all that. And he said, "Do you have any idea why?" And I said, "Sure, he's threatened by you. His masculinity is threatened. You're much younger than he is, and he's been around a long time, and he's acquired a reputation in which he undoubtedly believes, believes his own press notices, and he knows he's good. And he just can't handle something like this and it just offends all of these things that get started. And it's too bad because I would not have guess that he was susceptible of this, but he's a fighter and he's a trial lawyer, and it's too bad. But I would sit him down real hard. You just don't have any business subjecting yourself to this.

Miller: Well, and it can be contagious.

Judge: Oh, yeah.

Miller: Now you've been on the bench 23 years.

Judge: Almost 22.

Miller: Almost 22. Okay. And if you had been appointed the first time you thought about it you would have been on the bench 50 years.

Judge: 100 years.

Nichols: 40 years.

Miller: Okay. Can you even imagine that? I mean would that have been a good thing, do you think?

Judge: I don't think so. I thought at the time it was a great disappointment, but I would have missed a great many things that not only did I like in my life, but I think I learned a great deal from cases I handled. I was 43 years old at the time and there were a lot of things I've done since then that have been very important in my own outlook and everything else. So I don't think it would have been a good idea. Plus that I would have fallen prey to this awful - these awful things that judges are just as susceptible to doing as lawyers are. You --they're talking all the time about, "Look what kind of money I could make if I were outside."

And I had a wonderful lesson to learn. I had a very bad complex that we in our law firm were earning a good deal less money than almost every lawyer I knew. And that was upsetting to me just as a matter of pride. And it so happened that over the years I represented around 45 lawyers in different areas. Sometimes they were partnership dissolutions, sometimes they were domestic. There were all kinds of cases, including some criminal cases, and I found to my amazement that every one of those lawyers that I represented was lying outrageously about how much income he was earning. He was always earning way more. At first you think, well now he's telling the truth, or rather now he's lying because he doesn't want his wife to get at all this money and so he wants to talk poor mouth. But then I realized that wasn't it at all. They just want to make a show and a splash and then pretending that they slip when they tell you how much income they earned last year. But it's never "I earned $300,000; it's "I was amazed to find out, and it kind of surprised me, that I had earned $200,000 more than I had planned on and that I," and you know, you think he must be making millions, millions. But I didn't find a single one that was telling me the truth. Not one of them.

Miller: Well, it is interesting. I've told many young people who talk about going into the law who want to know how much money they'll make, "Just remember, you're selling your time. And that's finite;. You know, and at a certain point people aren't going to pay much more for that time. And so it's not like being a stock broker, or a trader, where theoretically you can leverage and maximize and so on. You're selling your time kid. That's it. That's all you got."

Nichols: Is it . . . do you have any opinion as to whether it does or does not make a difference to judicial appointees as to whether they have ever been in private practice and had to deal with private clients, as opposed to always having had a public agency practice?

Judge: Well, I think we all fall prey to these things that we all say, like, "Well, it's obvious he's never been in actual law practice and now he just leaps onto the bench and he doesn't have any real training or schooling or grounding," etc., etc. That's such an overstatement that I couldn't even say that I think it's primarily true. Because I've known some awfully mediocre lawyers that have been put on the bench and they're going to do a poor job by and large, or they're weak judges. And I've seen some scholarly people, you know Leonard Friedman never was in private practice and he went from private practice to the Muni Court doing the most mundane, fender bender stuff. He was delighted. He wanted to become a judge. He thought that was a good thing for him and he wanted to do it. And he loved that. And then he went on to the Superior Court, and then he went on to the Court of Appeal and in every area he distinguished himself, I thought, in whatever contact I made with him. And it's sort of when you're good, you're good and you're going to adapt.

The same way that when you talk to young lawyers in classes and other things and they want to know about how you project in the courtroom, how angry you might get, or how quiet, or whether you were a shouter, or what is the better way, and those kinds of things. And the only answer I ever give is, "I've seen some absolutely wonderful lawyers who never raise their voices, never shout, but are absolutely effective in their way, and some equally wonderful lawyers who shout the entire time. They just shout, but they're effective in their way. As long as you're not acting, or posturing, or trying to fool anybody, or to copy somebody else's style because it seems effective the way he uses it, all of those things I believe to be mistakes. You have to be your natural self and if you are person who shouts when he gets angry or who becomes exercised, or whatever, that's your style. And I don't think it makes any difference what your style is so long as you're true to what's natural for you " And I think that's the biggest mistake. We get, you know, new young lawyers that try their first case here and they immediately phone and say can I come by and talk to you. It has nothing to do with one of my cases, etc. And they want to know, "Can you give me a critique. Nobody tells me how I'm doing." And I say, "I think it's a big mistake for you to do this. In the first place judges are not uniformly cruel people, and if you've gotten your first case and gotten banged in the head, that's where you learn. But for me to say you did a lousy job is just very hard to do." And you don't want to break a person's spirit. And it's all very well to have him or her say, "I've got a thick skin and I just want to know what the unvarnished truth is," it isn't so. They want to hear that they did well and sometimes you can break their back if you're harshly critical, and maybe you're not right. Maybe you aren't any better qualified to be critical than somebody else who may thing that the performance was a good one. And you're going to rely too much on what that judge tells you when it might not be anything that you ought to be relying on. And then they'll say, "How do you really learn then, when nobody's sitting along beside you riding shotgun?" And I have always felt you learn when you lose cases. I never once learned anything when I won. I was way too good for that. I was marvelous. I did exactly the right thing, and I was a genius. But boy do you know when you've made blunders and when you've been whacked across the side of the head and you never make those mistakes again. But you have to, you have to live with the mistakes. But there isn't any way to go to somebody and saying "Tell me how I did." I think it's a mistake.

Miller: Well, now, how about you don't see a difference between public lawyer/private lawyer, do you see any greater or lesser difficulty between a judge who comes on the bench and has no civil background, only criminal, versus one that's had only civil and no criminal? Or do they start from equal starting point?

Judge: Well, that's another matter of opinion. I believe, personally, that to do a good job of prosecuting a criminal case is the best training a trial lawyer can get. And the reason is there are no short cuts. In a civil case you call the defendant to the witness stand and prove half of your case by making him testify first. You can't call the defendant to the witness stand, and for all practical purposes you can't commit - the defense, in effect, has a free shot at you and you can't get back at the defendant's lawyer because he does what he's going to do and if he gets an acquittal there's nothing you can do about it. But if you get a conviction there are all kinds of things that your opponent can do about it. And so you have to be a thorough craftsman, and I think you need to be a good, outstanding even, engineer to do a successful and a good job prosecuting. I think defending is more of an art than it is a craft, and you may or may not be good in that area also. But it's quite different and it's a different focus. I think if you can successfully prosecute and/or defend in a criminal case, and do a first class job, you can try any kind of case well. I think that I learned nothing but criminal law for my first few years and it was the best training I think I ever had, and I think I had a jump on lawyers in civil cases because you can learn the substantive law for a civil case but you can't learn how to prosecute or defend it. And, so, it depends upon where you want to come from, but if you want to be a real litigators and be in court a great deal, I think you have to have, to be grounded in prosecutorial training. I think you just have to know. I never had any problem trying a civil case, except that the quality of the lawyers opposing me in those days was considerably better than the quality of the lawyers defending criminal cases and I got a false sense of security that I was a real hot dog until I ran into my first few civil cases when the opposing attorney would - like Russell Harris, or Jerry Desmond - would pick me up by the front of my shirt and slam me against every wall in the courtroom and just beat me up. And I learned that I had tougher competition. But apart from that I felt comfortable prosecuting any criminal case, and therefore, almost any civil case.

Miller: And you think it contributes on the same level to judging?

Judge: Yeah. The big mistake, I think, that's made about judges, is this foolishness about - what is the - what kind of a - he's supposed to be even tempered and even handed and quiet and thoughtful and we call that good judicial temperament. That, I believe to be a terrible misnomer. Because I think that a person who is well liked by all of his colleagues, and is a fine, gentle person, polite, is also run the risk of being a very weak judge. And I think some of the roughest, toughest advocates whom you would never say has judicial temperament frequently turn out to be the best judges, because they know what their obligations are, and they know what it is to be mean and tough if they have to be, and they don't hesitate. That's their job anyway. But I think that a good part of the time those who are considered fine fellows, good companions, congenial, frequently are very weak people and become weak judges.

Who was it? One of the judges who was on the bench when I was here years ago and I asked about how he was on the bench and the lawyer said something like, "When he walks into the courtroom and ascends the bench, it's like somebody just walked out." And we had some of those. And they were nice guys, but they always compromised. In civil cases it became a joke almost to throw in a cross-complaint, even if you had to make it up, so he could deny both sides relief.

Miller: At least he'd get something done, right?

Judge: He'd get something done. He got something done. And I don't think that those people helped the profession, or any of us any, by being kind, friendly, warm, compromise everything, cut down the fees if they seemed a little high. You know, do everything that was conciliatory. And I think that adds up to weakness.

Miller: One other thing that I've always found interesting, because I think you're the only judge that did it, is that as far as I am aware, you have never entertained cases in which your old firm represents a party. Is that correct?

Judge: That's true. And now it's statutory.

Miller: Forever?

Judge Uh, huh?

Miller: Oh, really. I didn't know that.

Judge: The statutes have changed.

Miller: But when you made the decision, it was unusual. Most people recused themselves for what? Three years? Maybe two years?

Judge: Two years. For some reason or other they said two years I recuse myself, and then forever if it was somebody that was a personal client that I was working for, that should be probably forever. And then otherwise two years is an ample amount of time unless there's some special reason why it should be longer. I have a built-in reason, and that was that Dave Spottiswood was then my niece's husband and so the relationship is by affinity as well as consanguinity, and so I was prohibited from that. But then when he and Sally separated, then I didn't have that excuse anymore so I had to make up some other ones. It's like when you've been an original member of the firm, and worked together with these people, they are family, and there isn't any way that you can feel comfortable. You either are going to overreact against them to prove that you are fair to the other side, which isn't fair to your friend either, or you do automatically lean that way. And it becomes very difficult.

Do you remember Dolly Gee, who was one of my law clerks. She was so good. She's so great. And who'd have thought this, but she comes in with her senior partner to handle a case that is going to go to trial. And the senior partner, for all I knew, was going to be handling the case and Dolly was going to be riding shotgun. Well, Dolly never rides shotgun. I mean she is that good. And so it was always intended that she was going to handle the whole case. The partner wanted to come any way for whatever reason, that first time. The problem was that the lawyer, lawyers on the other side were absolutely frightful. And I told them, of course, that Dolly had been my law clerk, and we'd remained friends, and I see her maybe once a year, and still consider her a good friend. And I don't want anybody to feel uncomfortable about it because I've plenty more business and I won't lose any income, I can find more work to do, so don't be bashful and don't think that I will feel uncomfortable because all you have to say is my client would feel a little uncomfortable and so that, of course, would make me feel uncomfortable . . . and I would ask you to recuse yourself. But they didn't. And so I didn't think any more about it other than that because there was no legitimate reason except a possible appearance of impropriety or maybe that I would be prejudiced.

Well, I had nightmares. As the months rolled along we had a lot of law and motion and I was never able to rule favorably, not only on any major issue but on any question. Dolly was always right and these hamburgers were always wrong. And I thought, it looks so terrible, . . . my God, they're all friends and she worked for him. I went through the whole transcript. And I thought I'm not going to do this again because it's awful. And so Dolly sensed that I was having a tough time and she came in one day when . . . and was just sitting in the audience. And I said I didn't know you were here in town. Did you want to discuss something. She said, "No, I'll wait until you're finished. I just had some time and thought I'd wait." And so I finished. And she said, "I'm just here to make you feel better. We're going to settle this case and relief you of a lot of pressure that I'm sure you've experienced." And I said, "Thank you. It's been awful. It really has been terrible. You're just praying that they're going to say something like "I looked outside and the sun was actually shining," and I could say, "Yes, yes, I agree with you."

Miller: Have you ever had another law clerk in your court?

Judge: No.

Miller: I appeared before my Judge one time and it was really kind of minor. And we talked afterwards and said we're not doing that again. It was awful. I mean he, you know he tried to be really tough on me so there would be no question about it and knew that but it was really bad. I walked out of courtroom and I said, "I'm never going in there again, not ever."

Judge: It's difficult. Because you do establish, most judges I imagine do with their law clerks, trust. But also companionship. It's like your family. . . . It's like your kids. That was my only experience but I was sure careful about it.

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2002 United States District Court for the Eastern District of California Historical Society.