The ways of a judge and on appeal.

• Author: Lipez, Kermit V.

INTRODUCTION

What do you do when your judicial hero, the author of two important books on appellate judging, was for many years your neighbor, friend, colleague, and mentor? You revel in your good fortune, and you share your admiration for his books.

In his extraordinary career, Judge Frank Coffin was an accomplished trial lawyer, the architect, along with his good friend, Senator Edmund S. Muskie, of the modern Democratic Party of Maine, a chairman of the state party, a two-term Congressman, an unsuccessful candidate for Governor, a deputy administrator of the Agency for International Development, and a member of the United States Court of Appeals for the First Circuit. That service in the legislative, executive, and judicial branches of our government reflects a breadth of experience that few people can match.

Judge Coffin's long involvement in the political world contributed significantly to a primary focus of his two books on appellate judging, The Ways of a Judge, published in 1980, (1) and On Appeal, published in 1994. (2) As a political organizer, a candidate for public office, a Congressman, and an administrator in a federal agency, Judge Coffin understood his accountability to constituents, legislative committees, and appointing authorities. Although his life tenure on the Court of Appeals made him immune to the vagaries of election or appointment, Judge Coffin retained a keen awareness of the need to legitimize his work--and the work of all judges--to the public at large.

Indeed, Judge Coffin recognized that federal judges had a particular need to explain themselves to a wary public. With its lifetime appointments and constitutionally conceived independence, the federal judiciary is an anti-majoritarian institution. That independence invites the familiar charge that the judges use their authority to impose their personal preferences on the public. Appellate judges are accused of writing decisions that, despite the trappings of precedent and logic, are nothing but a camouflage for instinct, bias, or hunch. They are criticized for creating law that undermines the politically accountable institutions of our government. In short, the unaccountable judges are charged with acting in unaccountable ways.

Aware that such criticisms are abetted by the lack of transparency in an appellate judge's work, (3) Judge Coffin undertook to remedy the problem as only a man of his gifts and experience could. By describing his own decisionmaking and work habits, he could demystify the decisionmaking process of federal appellate judges and, by so doing, legitimize it. This would be no small feat. It is not easy to be an observer of one's work, particularly when the essence of the work is something as evanescent as a decision. And there is always the possibility that the revelations about the ways of a judge might not be reassuring.

Whatever the validity of such difficulties and dangers, they did not deter Judge Coffin. He believed that the task of judging requires self-consciousness about the decisionmaking process--understanding how it unfolds and the factors that influence it--and the ability to explain why that process led to a particular outcome. He reports in The Ways of a Judge that throughout his first decade and a half on the bench he would make notes about the process of judging--observing stubborn problems, approaches that worked, and methods of craftsmanship--that would help him to examine and reflect on his own judging. (4) Judge Coffin embraced the challenge of opening that introspective process, as much as possible, to the public.

It would be misleading, however, to suggest that Judge Coffin's two books on the appellate process are devoted solely to the elusive concept of judicial decisionmaking. Here again Judge Coffin's roots in the detail-rich world of the trial lawyer and the nuts and bolts of political organization and political campaigning are telling. He does not pursue his larger themes about the nature of judicial decisionmaking until he anchors his conclusions in the details of the appellate process and the work that takes place in a judge's chambers. In his first book, The Ways of a Judge, there are chapters on "The Appellate Idea in the United States," "The Elements of Deciding Appeals," "Place and Patterns of Work," "Preparing for Argument," and "A Term of Court." In On Appeal, there are chapters on "The State-Federal Court System: One Whole," "In Chambers," "Where Appeals Begin," "The Judges' Conference," and "Working with Law Clerks."

Written in a graceful, pleasing style, and carefully organized to lead the reader through the stages of the appellate process, these chapters, and others like them, describe in entertaining detail all aspects of the appellate process, both the public process that takes place in the courtroom and the process away from public view--the judges working together to reach a decision and the judge working with law clerks to craft an opinion explaining that decision. The answer to almost any question about the appellate process can be found in one of Judge Coffin's books.

For example, Judge Coffin tells us that the modern "brief" (which he observes is "usually anything but") "brazenly carr[ies] the name once reserved for a slip of paper listing a few cases." (5) The English barrister would hand the slip to the judge on the bench, who might send the bailiff to retrieve a case noted on it. (6) There are hundreds of such intriguing details in Judge Coffin's books, which add much to the pleasure of reading them.

However, those interesting details are merely the indispensable prelude to the larger subject of appellate decisionmaking that Judge Coffin addresses at the end of each of his books. The judicial process produces winners and losers. The appellate courts give content to civil liberties, confirm or vacate sizeable jury awards, resolve the inescapable ambiguities in statutes, establish rules of conduct for businesses, decide issues of crime and punishment, and occasionally declare statutes unconstitutional. The stakes in understanding appellate decisionmaking are high, for the parties going through the process and for the larger public who give such power to their judges. Judge Coffin wrote his books, in substantial part, to explain why that power has not been misplaced.

THE WAYS OF A JUDGE: REFLECTIONS FROM THE FEDERAL APPELLATE BENCH

Despite the large ambition behind his writings on the appellate process, the title of Judge Coffin's first book bespeaks his personal modesty. He disclaims any intent to speak for anyone but himself: (7) "This is a personal document. I do not claim to speak for all judges, all appellate judges, or even all federal appellate judges. I write only of my own work ways and thought ways, but I hope to reflect basic values widely held." (8) His primary purpose is "to shed as much light as possible on the subject of judging" so that non-judges may understand judges and the appellate process, (9) which ideally will lead to their respect for, and confidence in, the system. (10)

However, Judge Coffin is careful to circumscribe the expectations for his own inquiry. He acknowledges that the decisionmaking process will always be shrouded in some mystery: "[U]nless a judge were an extraordinary introvert and a psychiatrically trained one at that, he could not begin to describe with candor and completeness what goes on in a judicial mind in the deciding of a case." (11) He further observes that judges are not "jurisprudents"; they reach most decisions "without trying to tap the wellsprings of jurisprudential or moral philosophy." (12) Between the inaccessible terrains of the psychoanalyst and the philosopher, there is the more accessible terrain of the self-aware craftsman, whose skills and values can be described and defended.

Judge Coffin operates largely in the craftsman's middle terrain where most cases are decided. Despite the controversy generated by a few highly publicized cases, the vast majority of cases decided by appellate judges are not the "great" cases involving unsettled principles of constitutional law or issues of first impression. Instead, they are cases involving the application of settled principles to different facts and the familiar issues at the heart of appellate judging: Did the trial court's dismissal of the case reflect a proper understanding of the law? Were the evidentiary objections and the...