As a federal judge, Chief Judge Edward R. Becker has served the country--and the word "served" is no euphemism when applied to him--for thirty years. First a trial judge, then an appellate judge, and now the Chief Judge of the United States Court of Appeals for the Third Circuit, his tenure on the federal bench literally spans a generation, and at this point he is the fourth most senior active federal judge.(1) A career in the judiciary such as Chief Judge Becker's gives us an opportunity to reflect on not only this remarkable man but also on the role of the judiciary in our constitutional scheme.
This Tribute is divided into two parts. First, Chief Judge Becker is the quintessential "mensch," the Yiddish word for a fundamentally good man. He is the virtuous man that the Framers hoped would be attracted to public service because they believed such men were necessary to make this experiment in constitutional democracy work.(2) The second part is a survey of Judge Becker's opinions on First Amendment issues, which provides not only a sense of his high standards as a judge but also a window into the remarkable depth and breadth of the constitutional issues a federal judge can be asked to address over time.
CHIEF JUDGE BECKER, THE MAN
A tribute to Chief Judge Becker such as this is the minimum due him, and it is an honor to be one of those given the pleasure of singing his praises. He is a man of great judgment, integrity, and high moral values. As one fortunate enough to have been one of his clerks, from 1988 to 1989, I can testify to his remarkable qualities.
This is surely the only appellate clerkship in the United States where the judge greets his new clerks on their first day with a single rule: "no deference." One soon learns that the chambers (not just the judge and not just the clerk assigned to the particular case) debates the legal issues presented in many of the cases and that the judge desires, and even demands, that each clerk engage her judgment and tell him what she thinks of a case, including what she thinks of his views. Substance is the order of the day, but so is cordiality and good humor. The underlying assumption is never the rote application of a static law, but rather the exercise of judgment--even wisdom--in the context of a legal system that is dynamic but stable.
Judge Becker's elevation of substance over form is apparent in many aspects of his judicial role. Oral arguments before him are famous for going well beyond the court's prescribed time limits. Two motives are quite clear from the judge's refusal to abide by such limitations. First, he thinks that every relevant issue deserves a hearing, so if an issue he believes is important is not addressed at the argument or even in the briefs, he opens the forum to that discussion. Second, his job is to serve the litigants, not to control them needlessly, so if there is meritorious discussion to be had, he welcomes it, regardless of time constraints.
In chambers, the discussions between clerks and the judge are remarkable seminars in legal reasoning, with doctrine, common sense, and the question of "what is the right thing to do" taking turns. Because of the "no deference" rule, clerks must work hard, inevitably learn a tremendous amount, and are nurtured to improve their legal faculties. Those of us lucky enough to clerk for him often tell each other we had one of the very best clerkships in the country.
The judge, of course, did not simply adapt the consensus of the clerks' views from our debates in chambers, but rather himself determined the bottom line, discerned the points that must be made in each opinion, and meticulously critiqued every proposal by any clerk. While there may have been "no deference," there was a very high standard of excellence and diligence set by the judge himself. No one works harder than he does; he is a man who believes rightly that every detail matters, who reads every brief in chambers with care, and who, because of the number of briefs filed, reads briefs in every spare moment, from his rides to chambers on the Market-Frankford elevated train to the precious minutes spent shaving (the results of which would indicate that this may be a dangerous habit).
His memory is prodigious both for people--if he does not know one of your cousins, you probably don't have any--and for detail. Not infrequently, he asks a clerk what she thinks about a seemingly irrelevant point that has been nagging him since he read the briefs (and that the clerk assumed was surplusage), only to take the discussion and debate down new paths necessary to reach a right holding in the case. For this reason, clerking for Judge Becker is not unlike being on Jeopardy! for five to six days out of every week, but it is more importantly a daily lesson in professional responsibility. Because of his attention to detail and nuance, his opinions tend to be comprehensive, careful, and extremely useful as a legal resource.
The standard of excellence in the Becker chambers is a standard that is derived from the judge's strong sense of being a public servant, one who is literally serving the public through the administration of justice. This sense of his mission resonates with the longstanding United States rule that judicial opinions belong to the people, not the judges who write them or the reporters who report them.(3) He has translated this principle of service to the public not only into the work ethic of his chambers, but also the practices of the Third Circuit, where, as Chief Judge, he has made it much more difficult to issue so-called judgment orders--unpublished opinions that declare a result without full explanation or precedential value.(4)
Judge Becker's public service does not end with his dedication to a thoughtful, diligent, and careful jurisprudence. He has been a workhorse for the Sentencing Guidelines, as a member of the executive committee of the Judicial Conference of the United States, and through individual efforts to improve the federal judiciary, including an unfortunately failed campaign to set the date of judicial clerkship hiring in the spring of the second year of law school.(5) The people simply could not ask for more from a federal judge--unflagging, unstinting, in short, remarkable.
What makes Judge Becker more than remarkable, though, is the fact that his extraordinary work ethic, which is not so uncommon among highly successful attorneys after all, has flowered in the midst of a life devoted to family and friends, clear enjoyment of his duties, and a commitment to good health. Here is a man whom we would all do well to emulate, to the extent that we can. He is not the workaholic his productivity might indicate if it were the result of any other human's endeavor, but one who has a rich life beyond his work. In fact, his family is a visible presence in every aspect of his life and he fits exercise into a schedule most of us mortals would believe had no such room. When I clerked for him, his mother was an invalid who lived alone in an apartment in Center City, Philadelphia. We would regularly depart from the courthouse and, with the judge setting a brisk pace, discuss one aspect of a case one way, and another aspect of that, or another case, on the way back. In the middle, he made sure his mother's needs were met and showed us that family devotion can and should be sewn into the fabric of the day, not shoved to the perimeter. For me, he was just the antidote to the law firm associate I met while interviewing at New York firms for a summer job during law school, who told me that he had never seen his children in the daylight.
His love of family extends well beyond his immediate family to his family of law clerks, his staff, and his many friends and acquaintances. As his "no deference" policy indicates, he is utterly lacking in the hubris that surely tempts those who don the federal judicial robe with its important power and its life tenure. Instead, he teaches by example a diametrically opposite lesson for those who might hold power; he is loyal, devoted to family, fundamentally decent, and never too busy to do a good deed in the midst of working tirelessly to achieve excellence. The voluminous, serious Becker jurisprudence is part of his legacy, but so is his creation of a universe of people that he has connected by mutual care and respect. He does not preach kindness or goodness; he just is. For every clerk that has the privilege to work for him, his personal example is a gift to be opened in future days when they are tempted to turn away from that which is good for whatever expedient end.
Judge Becker is, in short, the virtuous, gifted, hard-working public servant the Framers hoped would volunteer for the heavy labor of public service. In no small part because of individuals like him, the United States constitutional experiment is as successful as it is.
CHIEF JUDGE BECKER, THE CONSTITUTIONAL LAW JURIST
The record of Chief Judge Becker's constitutional law opinions opens a window into the processes of the Becker chambers, but also into the work of the federal judiciary. In thirty years of serving on the district and then appellate benches, he has written opinions in 17 First Amendment cases, 37 Fifth Amendment cases, 62 Fourteenth Amendment cases, and more, for a total of 127 constitutional law cases altogether.(6) But these numbers provide only a profile of the body of work that is there. The cases cover a difficult-to-digest array of disputes with each one carefully calibrated to answer the questions presented carefully and thoroughly.
To give a sense of the Becker jurisprudence and of the federal docket in general, I will focus on a subset of his constitutional law opinions--the First Amendment opinions. I choose them not only because the First Amendment is one of my specialties, but also because one might think that the First Amendment is a fairly closed category of issues. The Becker...