THE HON. DIANE P. WOOD
AND THE CASE OF THE
MISSING COMMISSION
Ross E. Davies,
George Mason University School of Law
NYU Annual Survey of American Law,
Vol. 71, No. 1, Forthcoming 2014
George Mason University Law and
Economics Research Paper Series
14-06
forthcoming in 71 Annual Survey of American Law ___ (2014) Commission of Hon. Diane P. Wood, in her chambers, Chicago, Illinois. THE HON. DIANE P. WOOD AND THE
CASE OF THE MISSING COMMISSION Ross E. Davies† Practically from the start of her service on the U.S. Court of Appeals for the Seventh Circuit in 1995, Judge Diane Wood (Chief Judge Wood since last autumn) has been justly recognized as an extraordinarily able and effective and influential and, well, just, Professor of law at the George Mason University School of Law and editor-­‐‑in-­‐‑
chief of the Green Bag. An oral version of this paper was presented at the New York University School of Law on February 25, 2014, as part of the ceremony at which the Annual Survey of American Law dedicated its 71st issue to the scholarship and legacy of Chief Judge Diane P. Wood of the Seventh Circuit. Thanks to my co-­‐‑
clerks, Derek Chan and David Gossett. Copyright © 2014 Ross E. Davies. †
Ross E. Davies judge — a great public servant. Unfortunately, much of what I could add to the public record about her qualities and accom-­‐‑
plishments is stuff of the sort that law clerks are not supposed to gab about. Not that the line between proper silence and prissy, pointless secrecy is easy to draw. Bennett Boskey put it well a few years ago in some remarks about The Brethren1 and other behind-­‐‑
the-­‐‑curtain books: “the claims of history, journalism and biog-­‐‑
raphy strongly press against principles of privacy, confidentiality and ethics. There is not always a simple answer to questions of how much should be published how soon.”2 The claims of privacy, confidentiality, and ethics are, however, weighty when the subject is a judge who is still active on the bench, and perhaps especially so when she is blessed, like it or not, with rather close and constant attention from a respectful bar. And so I feel bound to keep my mouth shut. But there are limits to proper silence, or at least to my capacity for it, and I would like to think that what follows qualifies as both an illuminating anecdote about Judge Wood and an ethical act of post-­‐‑clerkship storytelling. The story is about something insignifi-­‐‑
cant in itself, but it sheds light on something significant about the judge. I should also be clear up front about one matter: There is a reason for the scarcity of direct quotes. My memory is not that good. I am, however, quite confident that I have the gist of her words and deeds right. I was there, and they made an impression. • • • There was one small hiccup in the otherwise smooth beginning of Judge Wood’s judgeship. Her commission — that piece of paper signed by the President and the Attorney General of the United States, with the appropriate seal — disappeared. It had made the BOB WOODWARD AND SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT (1979). 2 Bennett Boskey, Justice Reed and His Family of Law Clerks, 69 KENTUCKY L. REV. 869 (1980-­‐‑81), reprinted in SOME JOYS OF LAWYERING: SELECTED WRITINGS OF BENNETT BOSKEY 1946-­‐‑2007 at 14 n.4 (2007); see also Code of Conduct for Judicial Employees, Canon 3D (2013); Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 5-­‐‑9 (2d ed. 2011). 1
2 The Hon. Diane P. Wood and the Case of the Missing Commission trip from Washington, DC to the U.S. courthouse in Chicago safe-­‐‑
ly, in a cardboard tube. But someone involved in the repairing or cleaning or arranging of her new chambers exercised some poor judgment, and the tube was discarded with the commission still inside. This was an irritant, but not a disaster. Indeed, in Marbury v. Madison, after ruling that the President’s signing of a commission — not any delivery of the commission thereafter — is the moment at which an appointment to office is complete,3 the Supreme Court explained why the signature requirement obviated worries about missing commissions: If [an original commission] was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted, but that a copy from the record of the office of the secretary of state, would be, to every intent and purpose, equal to the original.4 Fifty-­‐‑some years later, in United States v. Le Baron, the Court did seemingly add the affixing of the seal to the commission as a pre-­‐‑
requisite for appointment.5 But as best I can tell there have been no more constitutional additions since then. And no one has ever said that a federal judge must receive that piece of paper — let alone preserve, protect, or defend it — in order to keep her job. Nor has any scholar written a long and learned article about the constitu-­‐‑
Marbury v. Madison, 5 U.S. 137, 157 (1803). Id. at 160-­‐‑61. 5 United States v. Le Baron, 60 U.S. 73, 78 (1856) (“When a person has been nominat-­‐‑
ed to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete.”); see also Marbury, 5 U.S. at 158-­‐‑59 (leaving the question open: “If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and the commission is valid.”); cf. id. at 145 (non-­‐‑receipt of the commission by the officer responsible for affixing the seal and delivering the commission to the appointee was “immaterial”). 3
4
3 Ross E. Davies tional status of missing commissions and the judges who miss them, which is surprising but does suggest that any concern about the status of a judge who receives a commission and then is de-­‐‑
prived of it is truly trivial. Thus, Judge Wood was still a judge. But it would be better for her to have that commission, framed and hanging on the wall. A commission is not quite a robe when it comes to the most noticea-­‐‑
ble of judicial equipment, but it is surely the most significant of what Chief Justice Marshall in Marbury called the “evidences of office”6 of a presidential appointee. So, being the not-­‐‑shy and not-­‐‑retiring character that she is, Judge Wood telephoned the White House for a replacement.7 I do not know what happened next. The replacement commissions process is something of a mystery, and I have been unable to plumb it. But I have filed a “We the People” petition, since that seems like the
friendly and democratic way to go about finding out.8 In any event, the bureaucratic black box did work. Eventually, a replacement commission arrived in Judge Wood’s chambers, in a replacement cardboard tube. This time she secreted the tube on a high shelf in her small private office, behind a row of books, while the patching-­‐‑up, painting, and cleaning of her chambers went on. In due course, the time came when she could move pictures and books out of boxes and permanently onto walls and book-­‐‑
shelves. When I showed up to start my clerkship with her in the early summer of 1997, the replacement commission was flat on the desk in her office. It was pretty cool, though it had one odd feature. At the bottom, very close to the edge of the paper, was the tiny word “Duplicate” in etched cursive, just above some even tinier block lettering: “Bureau of Engraving and Printing.” I must em-­‐‑
phasize how small and close together and close to the bottom edge those words were, because that closeness made it obvious that Marbury, 5 U.S. at 155. Email from Diane Wood to Ross Davies (Jan. 27, 2014). 8 Please disclose the process for issuing replacement commissions to federal judges, WE THE PEOPLE: YOUR VOICE IN OUR GOVERNMENT, https://petitions.whitehouse.gov/petiti on/please-­‐‑disclose-­‐‑process-­‐‑issuing-­‐‑replacement-­‐‑commissions-­‐‑federal-­‐‑judges/GBZr1 cLQ (Feb. 22, 2014). 6
7
4 The Hon. Diane P. Wood and the Case of the Missing Commission they were fine print intended to be read by the recipient, just FYI, and then covered by a picture frame or matting. There wasn’t even enough paper below “Duplicate” and “Bureau of Engraving and Printing” for a frame or mat to hold onto the paper and keep it flat. This paper shortage was, alas, a second hiccup with the com-­‐‑
mission, because Judge Wood was not overjoyed by the prospect of covering up the “Duplicate.” Here I will offer a bit of unimagi-­‐‑
native reconstruction9: Wood: I am glad to have the commission, of course, but I am at a loss as to how I ought to put it on the wall. Davies: What do you mean? [I am sure my actual words were more numerous, and cloyingly worshipful and deferential, but I have blocked that out entirely. If I had been at my best I might have said something like “four thumbtacks ought to do it,” but I was not that strong. Assume for the rest of this dialogue that I am a toadying novice law clerk.] Wood: I mean this is a duplicate commission and I want to display it so that the word “Duplicate” is visible. I do not want to conceal it. Davies: Because you don’t want people to think you are hiding something? Wood: No. That would be silly. It’s because I do not want it to appear to be something other than what it is. I want to be accurate. pause Wood: But I doubt it will look right in a frame. I don’t know if they can even frame it properly to show the “Dupli-­‐‑
cate.” Davies: True. another pause Wood: Enough. It will look odd but be right. We’ll see. See Samuel Estreicher, Conserving the Federal Judiciary for a Conservative Agenda?, 84 MICH. L. REV. 569, 581-­‐‑82 (1986) (discussing imaginative reconstruction). 9
5 Ross E. Davies That was the end of it. It did not occur to anyone in her chambers, I think, to ask the Bureau of Engraving and Printing to provide a commission with “Duplicate” moved up inside the frameable space. Implicit in the production and distribution of commissions with the “Duplicate” down low was an assumption by the Bureau (which is very big and very experienced in the commissions busi-­‐‑
ness10) that everyone mats or frames over the “Duplicate.” A few weeks later Judge Wood’s commission was framed and on the wall, with the “Duplicate” on display. She was correct. Her commission — her “Duplicate” commis-­‐‑
sion — is funny-­‐‑looking. In fact, it has a special kind funny-­‐‑
lookingness, because it looks odd at any distance, and for different reasons. From across the room: Why is it off-­‐‑center — lopsided on the vertical axis, with the main text too close to the frame at the top and too far away at the bottom? At arm’s length: Why is there a smudge or tear — or are there two of them — at the bottom? Up close: Why is there tiny, half-­‐‑concealed text down at the edge of the frame? If you look more closely still — for some of us, reading glasses will be necessary — you can see the word “Duplicate” and below it, most of the words “Bureau of Engraving and Printing,” although they are partly cut off, or at least in the shadow of the frame, because the framing people needed to take that much in order to make the paper fit behind the frame properly. I do not want to overstate the peculiarity of Judge Wood’s commission. It is still obviously what it is: a record from the Presi-­‐‑
dent of the United States of an appointment to high office, in an ancient form, essentially unchanged since the founding of our country. Nor do I want to overstate the weightiness of the moment when she decided “Duplicate” should be exposed. It was not a big deal, it happened quickly but unhurriedly, and she obviously felt the right-­‐‑and-­‐‑wrong of it was easy. Nevertheless, in its presenta-­‐‑
tion on the wall of her chambers, the commission reflects the char-­‐‑
acter of the holder, and uniquely so, to the best of my knowledge, although of course I cannot be sure of that. See, e.g., BUREAU OF ENGRAVING AND PRINTING, ABOUT BEP 2 (n.d.), available at www.moneyfactory.gov/aboutthebep.html; BUREAU OF ENGRAVING AND PRINTING, BEP HISTORY 3 (n.d.), available at www.moneyfactory.gov/aboutthebep.html. 10
6 The Hon. Diane P. Wood and the Case of the Missing Commission Commission of Hon. Diane P. Wood, in her chambers, Chicago, Illinois. 7 Ross E. Davies But this ugly duckling is really a thing of beauty. What we have here is probably the homeliest commission in the federal judiciary, and the handsomest use of a commission to exemplify two im-­‐‑
portant attributes of a good judge — the ability to see things as they are (rather than as we might wish them to be), and a tendency to act on that insight (even when the results are less than pretty and there is an enticingly easy way out). By now the point of this little story — of this parable of the good judge — is both easy to see and impossible to express in just a few words. And to say more would spoil it. So, I will not insult your intelligence or try your patience. But I will close with one related observation. Judge Wood’s little exercise in openness also creates a nice symmetry of judicial symbolism. On the one hand there are her judicial robes, which identify the judge, but also, to some extent, conceal and constrain.11 On the other hand there is the “Duplicate” commission, which is also an “evidence[] of office,”12 and which offers the judge a choice between concealment and disclosure. But concealment to what end — to look better; to be neater; to paper (or frame) over a messiness in government administration; to avoid the risk that some not-­‐‑quite-­‐‑perfectly-­‐‑informed observer might misunderstand the meaning of “Duplicate” in this context? Or disclosure to what end — to share what can reasonably be shared; to hide only what must be hidden; to honor the democratic default rule of openness? These are small, perhaps practically in-­‐‑
significant choices, but it is by them, as well as by her truly judicial acts — decisions and opinions in cases, treatment of counsel in court, and so on — that we know her. • • • There are other stories I think I could tell — about her unortho-­‐‑
dox approach to the clerkship interview, about the history of the See Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616, 642 (1949); Francis D. Murnaghan, Jr., In Memoriam: Harrison L. Winter, 50 MD. L. REV. 6, 8 (1991). 12 Marbury, 5 U.S. at 155. 11
8 The Hon. Diane P. Wood and the Case of the Missing Commission set of U.S. Reports on the shelves in her chambers, about the occa-­‐‑
sional role of languages in oral argument, to name a few — but space and time are limited here, and so they will have to wait until next time. My expectation is that there will indeed be plenty of next times to celebrate Judge Wood, because she has been a judge for only about two decades, and all signs are that she has several more in front her. And that is a very good thing. 9