Ahdieh on Judge Browning's Passing

It's with regret that I share the news that Judge James Browning from the Ninth Circuit recently passed away. One of his former clerks, Bobby Ahdieh (vice-dean at Emory), has shared some reflections on the man and judge. These reflections were written up a few weeks ago, just before his passing. At the time of his death, he was the last of Kennedy’s circuit appointees, and (probably?) the longest serving federal judge. Thanks, Bobby, for sharing these memories and inspirations.

A Montana Man:

Lessons in Judging and the Law

As I wandered through the cherished memories that I carry of the year I was honored to serve as law clerk to Judge James R. Browning, I felt like a kid in a toy shop:  with so many great choices, what was I to pick?

I thought of the humanity and warmth that are Judge Browning’s hallmarks, and remembered my first encounter with him, in the temporary chambers at the Rincon Center – a conversation that ended with my mention that I was en route to have dinner with Judge Dorothy Nelson.  As we both stood up, he walked around the desk, and took both my hands:  “Wonderful!  Please, tell her I love her!”  How many judges, I wondered as I left, have ever had occasion to send such warm greetings to a colleague?

From that same discussion, I also remembered the Judge’s insistence that I take as long as I needed to decide whether to accept his offer, and my promise to respond by the next day – as it would be unfair for me to delay his hiring further.  And I remembered our discussion two years later, when I pressed him on the need to give exploding offers to clerkship candidates, and he sent me packing, insisting applicants be given the time they needed, to make the right decision for them.

I thought of Judge Browning’s place astride history – which reads like a review session for 1L’s in constitutional law.  Who else could claim to have sat at the side of the Solicitor General as he argued Youngstown Sheet & Tube Co. v. Sawyer,[1] to have helped ensure submission of the United States’ amicus brief in Brown v. Board of Education,[2] and to stand at the literal center of perhaps the most iconic presidential inauguration photograph in U.S. history, in which Chief Justice Earl Warren administered the Oath of Office to John F. Kennedy, with the Judge holding the Bible on which Kennedy’s hand lay?  Or to have provoked disagreement among the Justices of the Supreme Court years earlier, when he was appointed to represent the defendant in the first Mann Act case to reach the Court,[3] and Justice Frankfurter insisted – incorrectly, of course – that the capable (and successful) advocate for the defense surely must be “A Harvard Man”?

But I also thought of the humility the Judge brings to all he does – forcing us to discover each of the above by chance or through our own efforts, without a word of encouragement (or even suggestion) from him.  On one occasion, the Judge asked me to prepare draft testimony for him to deliver to Congress, regarding the then-latest attempt to divide his beloved Ninth Circuit.  By way of a forceful opening, I included a statement of his place as the longest serving active federal judge in the country.  He deleted the reference, and I reinserted it.  Twice.  Finally, he called me to his office and – with all the force of the longest serving active federal judge in the country – told me that he simply did not have it in his constitution to make such a statement, even in the service of preserving the Circuit.

For those among us who were honored to serve as his clerks, the latter must also recall the care that Judge Browning invested in his written work – be it a brief thank you note, or a published opinion on an issue of first impression.  Consider his opinion in Guerrero v. Clinton.[4]  All of his clerks recall the forceful work he did with his red pen – which often left nary of word of the drafter’s prose to be found.  At least as striking was the work he undertook with his scissors – whether to strike whole paragraphs or sections, or to relocate them to more suitable ground.

It was against this backdrop that I – in an act of youthful indiscretion – offered the Judge a fifteen-page draft dissent from the majority opinion in Guerrero, addressing a concern he had raised with the latter.  Then began the real work, of achieving the precise framing and prose that he sought.  Draft after draft, the Judge whittled the analysis down to its core.  And what, in the final analysis, became of my fifteen-page dissent?  It would almost be better to leave you to look it up in F.3d yourself, but let me save you the suspense:  Go to 157 F.3d at 1997, and what will you find there?  A three-sentence concurrence.

For all my memories of Judge Browning, though, what I most carry away from my time with him is not any of the foregoing, but something deeper.  For so many of us in the legal profession – and perhaps especially in legal academia – the assumptions of legal realism, of rational choice, of motivated reasoning by judges represent the foundation of our approach to the law.  In this view, interests, preferences, and biases are at the center of legal analysis.  What the law is, ultimately, depends on who the judge is.

I embrace these assumptions as much as the next guy.  Never less so, in fact, than when I engage my students in Socratic dialogue about a case and what we should take away from it.  Should we really understand a given shard of Supreme Court jurisprudence to arise from what went before – or as simply a reflection of Justice Brennan’s famous adage on justices’ ability to “count to five”?

I count myself lucky, however, to always carry with me an antidote to such cynicism and doubt.  As effectively as I wish to convey to my students the critical perspective they must bring to their engagements with the law, few semesters pass without at least a mention or two of Judge Browning.  For all the insights of legal realism and rational choice, I tell them, I know at least one judge who is different.  Who proves that judges can be true umpires – even if the latter are less common on our highest court than has sometimes been advertised.

My judge, I tell them, might not prove the rule – but he is surely exceptional.  I tell them of the time I ran into his office, to insist that we simply had to vote for en banc review in what I was surely the most important case ever to come before the Ninth Circuit.  Perhaps, the Judge told me, smiling.  But in his time on the bench – at that point, as I did the math in my head, a mere thirty-six years – he had found such cases to often come and go, without nearly the impact they promised.  In another case early in my tenure, I tell them, I shared my notes as to how I thought the other judges might vote, and what that might mean for us.  I looked up and found the Judge staring at me intently, if quizzically:  “But what is the law?”

It is not that Judge Browning is oblivious to politics or political context.  But for his astute insight into the latter, and capacity to engage in the former, he would not have had the incredibly successful tenure as Chief Judge that he did – and the Ninth Circuit would have been divided long ago.  Nor is it that he is a blank slate – with no strongly felt views he might bring to the table.  I recall no lack of morning meetings, thus, at which the Judge would casually offer his own views of the wisdom or justice of the matter presented.  For him, however, those views are that, and no more.

For me, thus, Judge Browning exemplifies the capacity of law to be greater – and to do more – than its constituent parts.  Few of us may consistently live up to the standard, whether on the bench or at the bar.  But it is that vision – and its potential application in the day-to-day life of the lawyer – that I took away from my time with Judge Browning.  And it is that lesson that I hope I will always convey to my students, on his behalf.

---

[1] 343 U.S. 579 (1952).  We were ecstatic to stumble upon the connection to Youngstown, by way of a newspaper photo showing Solicitor General Philip B. Perlman speaking to reporters out of his car window, en route to oral arguments – with his special assistant, James R. Browning, immediately beside him.

[2] 347 U.S. 483 (1954).

[3] Bell v. United States, 349 U.S. 81 (1955).

[4] 157 F.3d 1190 (9th Cir. 1998).