December 10, 2019 | Season 1, Episode 4 | 34:10
Senior Judge Marjorie O. Rendell, U.S. Court of Appeals for the Third Circuit
Levi: Hello and welcome to Judgment Calls. I’m David Levi, director of the Bolch Judicial Institute at Duke Law School. My guest today is Judge Marjorie Rendell. She is a senior judge of the U.S. Court of Appeals for the Third Circuit where she has served since 1997. She first was appointed to the United States District Court in Philadelphia in 1994.
She is also a former first lady of Pennsylvania. In that role, she became interested in civics education in grade and high schools. She is now President of the Rendell Center for Civics and Civic Education. The Rendell Center promotes civics education and engagement in Pennsylvania, and I think in other places as well, we’ll hear about that.
Judge Rendell has become a forceful and influential voice for preserving and explaining our Democratic values and institutions. Thank you so much for joining me here this morning, Judge Rendell.
Rendell: Thank you, David. My pleasure.
Levi: Let’s start by talking about your very interesting and impressive career. You were a bankruptcy practitioner and a woman partner at a major Philadelphia law firm in the ’70s and ’80s. And that combination I think was quite rare. How rare was it then? How did those variances come to shape you later as a judge?
Rendell: Well, it really was quite rare at the time and unique. I was the first woman in Philadelphia to be engaged in the practice of bankruptcy law. And I guess, how it shaped me, I learned how to be in a room full of men, that’s for sure. But bankruptcy back then was not the sophisticated practice that it is today. When I first started practicing bankruptcy law in the mid-70s, we were still under the regime of the old Bankruptcy Act and the code didn’t come into effect until 1978.
So I was really at the forefront of what later became a very sophisticated practice. But I think what I really learned, in addition to learning how to negotiate, because that’s a lot of what you do in bankruptcy practice, I learned a lot about people. About people’s needs, bankruptcy’s like the emergency room of law practice. So you see people at their worst in some situations.
I also represented a lot of banks. So you kind of understood what commercial people’s needs were. So it really did shape me greatly in terms of the people aspect as well as the intellectual aspect of the practice of law.
Levi: Well, you were first appointed to the district court where I also served and you weren’t there very long but three or four years. And then you were elevated to the court of appeals, so you’ve seen the trial court and you knew bankruptcy practice. And now you’ve been such an eminent judge on the appellate court. As you reflect on this, what parts of being a judge or what aspect of being a judge have you most enjoyed or found most meaningful?
Rendell: Well, one of my colleagues on the district court used to say that it was wonderful to be a judge because you woke up in the morning and your job was to do the right thing. It’s really true. You work in the purest form of law. Legal practice at a law firm, is wonderful. You represent your clients, but you’re advocating for something.
But as a judge, you’re really trying to do the right thing, to find the right analysis, it’s extremely rewarding and you learn how your thoughts and your analysis can morph over time. When you have the opportunity to really think things through and study them. And I just find it so rewarding to to have the luxury of being a judge. And our federal judges can work forever and most of us do because we love it because it’s just such a rewarding experience.
Levi: But I think this is an important point, which is that when, as a judge you follow the law, which is just a different question that you ask yourself in the morning, then “Gee, what do I think in the abstract is the right thing here?” Because often you wouldn’t know what the right thing is anyway. You haven’t been presented with those materials or it takes you into a realm of philosophy or something of that sort.
And I think for judges like you and me, doing the right thing under the law was very satisfying and we had a sense of what our role ought to be.
Rendell: Right. Now, I probably should temper that. Saying do the right thing and people would say, oh well, I disagree with that. That’s not the right thing. And judging isn’t the popularity contest nor are you supposed to test which way the wind is blowing in terms of popular opinion. As you point out, the right thing has to be the proper analysis under the law reaching what precedent and the rule of law would dictate. So I probably need to temper that quote “right thing” with a little bit more analysis or description if you will.
Levi: We’ll come back to this topic in a moment, but related to what we’re talking about at the same time that you were a judge putting on the black robe every day, uniquely, you were also the first lady of Pennsylvania because your husband was governor of Pennsylvania. And I can imagine that it was challenging to wear those two hats or two robes or whatever you would call it, and that you probably had to make a lot of judgment calls about, “Gee, can I do this? Can I not do this?” And I’d just be interested in hearing what that was like as a … I don’t think I know of another judge who played two roles like that.
Rendell: It was quite challenging. I kept the ethics committee very busy.
Levi: I bet you did.
Rendell: But the then governor of Kansas, Kathleen [Sebellius] her husband was a magistrate judge and he would call me and say, “Now Kathleen says I can do this.” Yes. I said, “Yes, yes, Gary. Kathleen does say it and Ed says that I could do this, but indeed you cannot.” Because you know, the politicians say, “Oh, of course you could do this.” Well, no, you actually can’t.
But it was, it was really quite difficult and I just learned the mantra was, when in doubt, say no. Just say, no, I cannot do this. And when in doubt, recuse from a case that could involve the Commonwealth. So there was a lot of line drawing. But interestingly, I never had a problem. Because I always did say no instead of yes.
But it was difficult finding what I wanted to do as the first lady because I was a judge and when you are a judge, you’re a judge 24-7 but I decided that I would promote civics education in the schools as my platform. It was not politically charged, it wasn’t a matter of policy as such. But we were working on the curriculum and trying to help the teachers find what they could do in the schools because civics education has not been at the forefront in the classroom because history and social studies are not tested on all these standardized tests that are being given. And usually in the spring of the year, so from September to March, many schools are doing what’s tested and not civics or social studies. So we had an uphill battle, but I loved doing it. And being first lady gave me a little bit of a bully pulpit to try to make some strides in getting it back into the schools.
Levi: Well you evidently enjoyed it and thought it was important and knew that you were making some progress because you and former Governor Rendell have now started the Rendell center, which has its mission, the promotion of civics education among other things. Can you talk about the decision to start such a center, and what you hope to accomplish?
Rendell: Well, when we left Harrisburg, we had eight years of this effort and the woman who was my chief of staff in Harrisburg ended up really working on civics education for at least the last five or six years that we were there. So we kind of shrugged our shoulders, said well now what are we going to do? We can’t waste all this that we’ve been doing and it still is worthwhile. So we decided to start this nonprofit and Ed, who had not been all that involved because he had other things to do as governor, went in it with me and we have just so enjoyed working together.
Levi: I know the Rendell center in particular because you just held a conference on judicial independence and what it takes to preserve a fair and impartial judiciary, and you were so fortunate as to have Justice Kennedy as one of your speakers. What inspired you to take on this particular topic?
Rendell: Well, and I was especially fortunate to have one David Levi be the keynote presenter for the day to start it off. I really think that’s why Justice Kennedy came at 8:30 in the morning and stayed the entire day and ended up being interviewed basically by you, which was just fantastic. It was really a wonderful experience and available again on our website. Yes, great day.
I’ve realized, and I think you probably did too, as a judge, people don’t really understand what we do. They don’t understand that we adhere to the rule of law, that that’s the guiding force. And that being independent, not being politically aligned, but being independent allows us to be fair and impartial and again do the right thing in our federal system is wonderful because the president nominates us and we’re confirmed by the Senate and we have our jobs for life.
People think, Oh well that gives you the ability to do whatever you want. Well actually gives you the ability to do the right thing under the law and adhere to the rule of law and whatever it dictates. But it’s not understood and it’s not valued. It’s not appreciated. You know, when you look around the world and countries where there isn’t the rule of law, where the judges are beholden to the King or the prime minister, whomever who can take them, dock their pay or get rid of them, there’s corruption and there is not the essential consistency and predictability of the law that we have. So I think it’s difficult for people to understand. And once they understand that, I think they do appreciate it.
Levi: Are you of the view that that judicial independence is under threat in the United States? And if you are of that view in what way? What areas most concern you?
Rendell: Well, when political figures speak out and decry judicial decisions, I’m reminded of a Senator back when the Schiavo controversy was happening in Florida, who got on a talk radio show and decried the fact that the judges weren’t doing the will of the people to which we should say, well that’s your job Senator. That’s not the job of the judges. And I think when people criticize decisions because they’re not what they want the judge to have decided, and maybe it’s an unpopular ruling, it’s almost like intimidation, if you will.
And it’s difficult for judges to speak out. And I think as you pointed out in your talk at the symposium, we are probably so ill-equipped to speak out. We don’t do podcasts all the time. We’re not on public radio, we don’t write op-ed pieces because we just don’t do that. And so this misunderstanding of judges, when they do something that’s quote-unquote “unpopular,” it’s sad and it’s dangerous. It really is.
Levi: It’s hard to explain all these things, I think, to the average person because we don’t take the position that judges should be insulated from criticism. Americans are free to criticize a judicial decision that they don’t think is true to the law. But that would be our point. You know, don’t criticize the judge for the decision, if it reached the correct decision under law, then that’s a criticism of the law. And there are other ways to address that through legislation, primarily.
Rendell: Right, exactly.
Levi: So there is criticism. On the other hand, I think in most parts of the country the judiciary does have the support of the people and has the respect of the people. And I think in that respect, as you pointed out just a few minutes ago, we’re very fortunate as compared to some other parts of the world where the judiciary is often just an extension of the executive branch.
Rendell: Right, right. And I think people don’t realize also that our economic prosperity I think is tied to the independence of the judiciary, because businesses can predict the law and can follow the law because our law is consistent. And I think that really does impact the economic prosperity. The chamber of commerce has come out with a white paper about why judicial independence really matters. And it’s true, it really matters to our businesses. So I think our economic situation benefits from the independence of the judiciary,
Levi: You know, and that’s an excellent point. There’s very interesting work on this, both historical and contemporary. So the World Bank and other entities like the World Bank have these rule of law indices and it’s very important to them that a country have an independent judiciary before it’s prepared to invest in that country or can make low-interest loans.
And then historically, I know that there’s quite interesting work on the origins of the industrial revolution. And one of the hypotheses that has been born out is that in England, which was the first country to industrialize, that the independence of its judiciary was very important to the markets. So that’s I think a powerful point.
On the flip side, there’s this issue of judicial accountability or judges should be accountable. And you just wrote, I think in just a superb piece, somewhat in response, or at least it was inspired by an article by Professor Stephen Burbank at Penn law, who is certainly one of the leading thinkers about judicial independence. He likes to pair independence with accountability and you weren’t so sure about that. Can you talk about that a little bit? Because of course judges have to be accountable in some sense, but what does that mean?
Rendell: Yes. Well, part of his thesis was that the accountability runs to people, to the people, to our representatives. And I don’t tend to agree with that. See, again, maybe I harken back to this too much, I see our accountability to the rule of law and to our institution. You know, as the judiciary we are accountable to our colleagues. We are accountable to the rule of law and to the institution. I don’t see that we’re accountable to quote-unquote “people” as in the people.
We have accountability measures. On the court of appeals, the fact that we sit in panels of three, we were accountable. The fact that our opinions circulate to all of our judges on our court before they’re issued. The fact that we have ethics committees and we have a specific committee charged with taking on issues of disability of judges, whether it’s disability or some kind of incapacity. So we have things that keep us accountable and keep us in check. But the emphasis on accountability to me is a negative aspect that I just don’t see. So I don’t see the pairing of independence and accountability as being that strong unless you are talking about accountability to the rule of law, which is essential and important.
Levi: You know, I think one of the other issues with accountability is that it can very easily be thought of as accountability at the ballot box, which is what many of our state court judges face periodically when they run for reelection. And that that aspect of our overall system is, is problematic. It seems like it’s here to stay and we’re going to have to find ways of working with it. But because the American people seem to want to elect their state court judges, I say that …
Rendell: Yes, they think it’s the democratic way. But unfortunately, the people don’t really know who they’re voting for. I have friends who will call me and say, who should I vote for in this judicial election? Well, I say ask the bar association, whether they’re rated, how they’re rated, but the people really don’t know who these people are. And they have to raise money, the party will back them or not depending upon the money they raised. So you get into office as a judge and you’re ruling on a case and maybe you have a retention election coming up, in fact, I have a friend who is on the county court in Pennsylvania, and he tells me that when the other judges have a retention election in the next two or three years, the other judges who aren’t up for retention take the tough cases so that they won’t have to rule in a way that’s unpopular.
Well that shouldn’t be, and you wonder if you are going to have to face a retention election in six or seven years, but you have an extremely unpopular case before you are one where you can, the rule of law would require you to rule in a way that is not popular. You’ve got to wonder, you’ve got to know that in your mind, kind of looking over your shoulder is the fact that that retention election is going to come at some point and people are not going to be happy.
In fact, when Ed Rendell was governor, we would go to county fairs all over the state. There would be tables, one year there was a huge outcry about a pay raise. In fact, Sandra Day O’Connor came to speak about the fact that the electorate should not throw out hundreds of years of judicial experience because of this one situation. But there were tables with petitions to declare no on retention on judges. It was crazy. So it’s a sad state affairs for judicial independence for sure that we have elected judges but the political forces in most states are too strong to change it.
Levi: I think that’s right. You know, we started with this topic and we’re still on it in a way cause it is, it’s such an important topic and that is kind of the relationship between politics and judging. It’s sometimes said by critics that the judges are merely politicians in black robes. And I think you’ve somewhat answered this question, but I take it you don’t agree with that. And it would be good just to hear your views on it.
Rendell: Needless to say. I do not agree with that. But I think it comes about because primarily the Supreme Court, I think because they are nominated by the President of a certain party, and very often when you write about a certain Supreme Court justice, the tagline is nominated by and therefore you know, whether they should be liberal or conservative in their agenda or their rulings. But I think that’s what causes it. And I think also the Supreme court opinions, all these opinions, although there aren’t that many that are five-four hot button topics and people attribute the rulings to politics.
But you know, we’re all products of our experience. And the experience of Sam Alito, who was my colleague before he became Justice Alito, his experience was he was a prosecutor. Was it any wonder that he’s probably tougher on crime and criminals in rulings than other people might be? I was a bankruptcy lawyer, where does that put me? But we’re all a product of our experiences which dictate how we’re going to look at something.
Very few judges that I have come across have agendas or a political position. They may be predictable in their rulings because we’ve seen what they have decided before and how they think about a certain topic. But it certainly isn’t agenda-driven or political. So I would definitely not be in favor of viewing judges in that way.
Levi: It’s an interesting topic because we benefit from that experience, that’s why we have multi-member courts and it’s great to have a prosecutor or a former defense attorney or a bankruptcy lawyer-
Levi: People who grew up in the West and people who grew up in the East. I mean you value that and I’m sure you’ve had the experience of being persuaded by a colleague who does have a different background. I mean, we’ve all had those experiences.
Well, your work on civic education, it really resonates with me and I think with many judges and former judges, their programs that courts have around the country, and I’m interested if you have some thoughts about what judges at all levels, in particular, can do about public discourse and civics education?
Rendell: Well, I think judges are so well-positioned to help the citizenry understand our government and we really need a lot of more understanding than we’re getting. But we in the courthouse in Philadelphia are right across from the National Constitution Center. We have an arrangement with them where when they have classes come in, they contact us and we do what’s called judge chats and we will sit with the students at the Constitution Center for 50 minutes and talk about what we do and take questions, and the teachers just appreciate it.
I wish judges would reach out to schools and let the schools know I’m available to come speak to a class or at an assembly and answer questions about what we do and educate the students. We can do so much. And yet the teachers have no idea that the judges would be willing to do this. And there are probably some judges who’d say, “Listen, I’m not a social studies teacher, don’t task me with this.” But by and large, when I asked judges in our courthouse to be involved in our mock trial or to do the judge chats, they love it.
Again, it gives back much more than the time that the judges have to spend doing it. And at the Rendell Center, we have a number of activities, not just the literature-based mock trial, but we have what’s called the citizenship challenge. And we have classes, fourth and fifth graders submit essays on a different topic of constitutional significance, and I get judges to come and judge when the top 10 essay winners have to come to the national constitution center and perform a skit. The teachers come and the parents come. And when I have a whole group of judges who will come and judge the competition, they invariably love it, and just see how the kids and the parents and the teachers respond and the kids get excited about it.
The reason we are focusing on these grades, it’s interesting, I’ll ask a fifth grade or something and they’ll raise their hand. They’re anxious to speak. You do that to an eighth-grader and they’ve already moved on. They’re in adolescence that they have so much on their plate. And yet we wait to tell children about voting until they are either adolescent or in high school. And by that time, they’ve moved on. They’re not in the formative years anymore. And I find that when we get these fourth and fifth graders, they’re so excited to learn and they’re like sponges and you know, teach them the importance of voting, the importance of jury service early on, and they’ll never forget it. So I think there’s so many things judges can do if it just occurs to them to pick up the phone and call their grandchild’s teacher or you know, their niece’s teacher or principal and say, “You know, law day’s coming up or bill of rights days coming up. I’d be happy to come in and speak to your school.”
Levi: So we’re at that point in the podcast where I like to ask you as one of our great judges to step back a bit and take a big view in two areas. One about judging, which I’ll ask you about in a moment, and the other is about our courts in general. So you’ve been a judge at all levels. You chaired the bankruptcy committee of the judicial conference, you’ve served on the panel on multidistrict litigation, you’ve seen big cases, you’ve seen small cases, tried cases as a judge, you’ve heard countless cases on appeal. How do you think our system is doing and where can it be improved?
Rendell: Well, I think the system is doing well for those who can afford to be in it. One of the problems with litigation and with people’s access to courts is how expensive it is. It really is extremely expensive for people to come into court. I see individual plaintiffs who maybe they’re on a contingent fee basis with their lawyer whereby they, if they recover something, the lawyer gets something, but otherwise the lawyer doesn’t.
But even then if they lose, they can have to pay court costs. It’s just a shame to me that the cases that we see are probably only a fraction of the disputes that are out there. The things that need to be resolved. I don’t know what can be done to alleviate that. There are terrific community legal services organizations throughout the country, but I think it really is a dilemma.
But I think the courts by and large are doing a good job. Our caseload is down and I’m not sure if it’s because of arbitration clauses which are now proliferating in the commercial world. I was speaking with Justice Souter not too long ago and he volunteers to serve on the First Circuit Court of Appeals and was saying he was so surprised at the number of cases they were seeing. It wasn’t the quality of cases that they had seen previously. And he thinks it is because of these arbitration provisions that are put in a lot of agreements these days whereby the parties, usually individuals, waive their right to a trial or waive their right to bring a class action, even in employment contracts.
So that could be a reason we’re not seeing as many cases. But I do think the system, the cases we do see, I think we’re moving them forward fairly quickly. The fact that the Supreme Court has to decide their cases every year I think is a good one. And perhaps we should have that in the courts of appeals as well. But I think, by and large, the courts are doing a good job.
Levi: Before all of our great judges are actually just made by IBM and the other companies that make mainframes, and before machine learning takes it over. You’ve known so many great judges, you’re a great judge, a really wonderful one. How would you describe the qualities of a great judge and is there anybody that you feel comfortable sort of identifying as, “Gee, that person, that judge has been a role model for me in my personal life.”
Rendell: Well, obviously the qualities, my son used to say, “Mom, you’re so judgmental.” Well, that is what I do for a living, so judgment is obviously a good thing. But, you know, fairness and the intellect. But I think also caring about people and understanding, I get back to understanding people’s needs and kind of knowing where they live and knowing about people. And one of my most influential judges in my life was judge Ed Becker, who was former chief judge, now deceased of our court. And I only knew him for the nine years before he passed away, but he became a mentor to me and I was honored that I was one of the four people asked to speak at his funeral. And we had so much in common, but he was a mensch. He was a people person.
Every secretary in the courthouse, he knew where they lived. He knew who their ward leader was, and he was an intellectual giant and received every national judicial award you could have imagined. He was on the executive committee of the judicial conference. He was just such an amazing intellect, but he was a people person and he cared about people. And I just think, Senator Specter, when he gave a nod to someone to be a federal judge, he cared about their judicial demeanor and how they would be in the courtroom. Would they be courteous to the litigants and welcoming? And it’s an important characteristic. The face of the judiciary shouldn’t be these stern people who cut off lawyers and you know, are nasty as they’re portrayed very often in movies or television. They should be people who have empathy with the citizens before them.
I often, as a district court judge, was concerned about the individual litigants who were before me, the person who said they were discriminated against in their employment. The people who said that they were harassed in the workplace. The business world had not been good to them and they needed the courtroom to be good to them and to give them respect and to hear their story. I used to love to try to settle their cases and give them something. The judicial system, given the standards, maybe they weren’t going to succeed in their lawsuit, but that maybe I could get them some respect or let them tell their story. So I think that understanding the human characteristic of people before you is really important.
Levi: So Judge Rendell, what a delight to talk with you. It always is. Thank you for joining us. This has been another edition of Judgment Calls. I’m David Levi. Thank you for listening.
Voice: Judgment calls is produced by the Bolch Judicial Institute at Duke University. Find us online at judicialstudies.duke.edu.