Interview of Judge Richard R. Clifton

• Publication year: 2019
• Citation: Vol. 23 No. 05

Interview of Judge Richard R. Clifton

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by Ed Kemper

1. Please provide your educational and legal background prior to your appointment to the Ninth Circuit Court of Appeals.

My father worked for an insurance company, and our family moved a couple of times when I was a kid. When I was 10 years old, we moved to Wilmette, Illinois, a suburb of Chicago. After graduating from New Trier East High School in a neighboring suburb, I headed east. I graduated from Princeton in 1972 and from Yale Law School in 1975. The distinction held by my law school class is that it is said to have produced more federal court of appeals judges than any other single law school class, a total of five: Sam Alito (who was on the Third Circuit before taking another job), Duane Benton (Eighth Circuit), Guy Cole (Sixth Circuit), and Willy Fletcher (my colleague on the Ninth Circuit). If you had asked our classmates who might land such positions, I do not think anyone would have come up with that list.

In law school, I heard about judicial clerkships. Serving as a law clerk to a judge was and remains a great experience. It gives you a look behind the curtain at how the court operates and how decisions are made. On the court of appeals, it can be like an intense form of law school, applying the research, analysis, and writing skills that law school aims to cultivate, but with real cases and real people affected by the court's decisions. Many lawyers describe it as the best job they ever had. (Being a judge is even better.)

After I decided to apply for a clerkship, I focused on judges on the Ninth Circuit Court of Appeals. I had grown up in the Midwest, gone to school in the East, and worked on a research project in the South, but had little experience with the West, so I decided to try to experience a different part of the country. At that time, the reputation of the Ninth Circuit was not ideological. It was simply a highly regarded regional court of appeals.

I applied to some Ninth Circuit judges who, by word of mouth, were supposed to be good for clerkships. One of those was Herbert YC. Choy the first Ninth Circuit judge from Hawaii and the first federal judge of Asian ancestry. At the time, he had two law clerks, each for a one-year term. Judge Choy customarily hired one from Harvard Law School, which he had attended, and one from somewhere else. I was offered the job as the "somewhere else" clerk for the 1975-76 year.

I had never been to Hawaii when I accepted the position. I interviewed in San Francisco. Hiring was done nearly a year in advance, so I spent almost a year wondering what it would be like. I had seen pictures of the beach and ocean, but I started watching episodes of the original "Hawaii Five-O" with Jack Lord on an old black and white TV set to see what the city looked like.

I finally came to Honolulu to start the clerkship in September 1975. Judge Choy's office was in the old federal building across King Street from Iolani Palace, where the downtown post office is still located. The federal courts moved into the current courthouse building a couple years later. The old building is mostly occupied by state agencies today, but the original name, "United States Post Office Custom House and Court House," can still be seen at the front.

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Serving as a law clerk forjudge Choy was a fantastic experience. He was thoughtful, careful, and extremely dedicated to his work. Every night he took home a bundle of briefs and other papers to review. He observed once that each case was probably the most important thing in the life of some person, and he tried to give careful attention to each. Though quiet by personality, he was ready to share his thinking with his law clerks, and he encouraged us to offer our thoughts as well. He was also ready to share stories of growing up in an earlier Hawaii.

During that year, I also got the chance to know the other federal judges, their law clerks, and the rest of the court staff. Our offices were in close quarters on the third floor of the old federal building. We shared one photocopy machine, located in the clerk's office. That the offices were squeezed together probably helped me get to know others better. I spent time with Judge Sam King, in particular, and even served as a bailiff for one of his jury trials. He had gone to Yale for both college and law school and liked Yalies in the building. He also liked a new audience for his stories, which were both funny and insightful.

When I came to Hawaii to start the clerkship, I did not know what I was going to do after it was over, but remaining in Hawaii was not one of the options I anticipated. I assumed I would go back to Chicago or maybe Washington and would eventually work for the government, perhaps as a prosecutor or for the Department of Justice. I took the Illinois bar exam in July 1975, before coming to Hawaii for my clerkship. By the time the clerkship ended, I had learned much more about Hawaii and had come to appreciate the warmth and generosity of spirit of most of its residents. For example, I passed the Hawaii bar exam given in February 1976. The admission ceremony took place at the Supreme Court in April. I was surprised and touched by the number of people, mostly from the federal courthouse next door, who gave me lei because they did not want this person with no family in the state to be left out. I wound up with a stack around my head like other new lawyers.

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It was at about that time that I started thinking about practicing law in Honolulu. Judge Choy and Judge King were both encouraging, and they were emphatic in telling me I should work for someone from whom I could learn practical skills and good habits. They listed names. The main point was that law school did not in those days produce a finished lawyer.

I followed their directions and ultimately took a job with Cades Schutte, where some of the names on their lists worked. I knew a couple of other young lawyers there who had been law clerks the year before, and I liked what they described. What may have attracted me most of all was my experience playing on the courthouse softball team against the Cades Schutte team, both in the Lawyers League and in an informal preseason game. After the games most sat around, talking, drinking beer or soda, and seeming to enjoy each other's company. Working somewhere people liked each other seemed like a good idea.

I started at Cades Schutte on February 14, 1977. I remember the date because it was Valentine's Day. I did not know then how long I would be there. I probably would have guessed two or three years, but I wound up staying more than 25 years, becoming a partner in 1982. I did not leave until I joined the court in 2002. My practice focused on commercial and complex litigation. I also tried to have at least one case with an individual human being as a client and of smaller size that I could work on entirely by myself, usually pro bono. That work was rewarding in many ways, not the least being the experience I got. My first administrative proceeding was a claim for Social Security disability benefits for a woman with a serious heart condition. I felt adrift for much of the case, but in the end the woman got the benefits she needed, and I learned a lot about the process.

The most prominent case I worked on was probably a lawsuit brought by the state regarding the alleged corrosion of weathering steel at Aloha Stadium. It was certainly the longest case. It was filed in 1982 and went to trial in 1993, after mediations and mini-trials, with a couple more years for...