Childhood

After the Navaho field work, my parents moved to Cambridge, Massachusetts, where my father had a research fellowship and later taught statistics at Simmons College. I was born in Boston at Massachusetts General Hospital on February 14, 1937. My parents were pleased. They wanted a boy first. I was independent; as my mother said, “not a cuddly child.” My mother was 35 and my father 37. This was still the Depression, and although my parents were well off by the standards of the day (both parents being employed and my mother having a small inheritance), money was still a concern. Years later when I was filling out security clearance forms for the government, I learned from my parents that, in Cambridge, we moved repeatedly, taking advantage of the incentive provided by landlords of a month's free rent. Yet at the same time (not uncommon in those days for a middle-class family), my parents employed a nanny for me and for a time a butler as well. It was clear to me at an early age that my mother preferred working to housekeeping. We spent summers in Truro on Cape Cod at or near Longnook Beach, where my wife Sally and I now have a house, returning to my roots.

I do not have a lot of early memories. One was going out on a lobster boat in Maine with my father and eating lobster cooked on the engine of the boat. Another was trying to kill rats at a barn in Maine with a .22 rifle (no luck). Other early memories relate to health—splitting open my lip in a fall from a runaway tricycle, being hit above the eye with a baseball bat (stitches again) and being stung by many bees (requiring a hospital visit and an adrenaline shot). The scars from the first two are still with me. I also remember Thanksgivings at Uncle Melville's house on Beacon Hill in Boston. (He was the advertising manager for the Saturday Evening Post. He was my mother's cousin but had the honorific title of “uncle.”) The house was grand and memorable.

My parents with me in tow moved to Brooklyn in 1942.

Moving into Private Practice

My time at the Department of Justice had been a source of great satisfaction, but my appointment as a special assistant was only for one year. In spring 1964, I began to look for another job in private practice. I made a mistake by not accepting the opportunity to serve as an assistant US attorney in the US attorney's office in Washington, DC, something that was then available to people who had served as special assistants at justice. You could sign up for a six-month tour of duty, but I did not do that. What I missed was the valuable opportunity to try jury cases, something that I never had in private practice.

I felt some urgency about getting started in private practice. By that time, I had caught the Washington bug and did not consider returning to New York. Among the appeals of Washington was the revolving door. I could join a firm, leave for a period to serve in the executive branch and then return to the firm, the Washington firms’ often being tolerant and even encouraging of such detours. In my case it never happened, but that prospect was a major factor in my decision to stay in Washington.

At that time, there was no such thing as a clerkship bonus for those who had served as Supreme Court law clerks (as evidenced by my New York firm experience), and there was not any great rush by the firms to hire people who had clerked. So, I had to find a firm rather than waiting for a firm to find me. Washington was not then the vibrant center of national practice that it became in later years. Federal regulatory practice at the law firms in Washington in the early 1960s was limited. Since regulatory practice was what I wanted, my choices were similarly limited. In my mind, it boiled down to Covington & Burling, Arnold, Fortas & Porter (A, F & P) and Wilmer, Cutler & Pickering.

Covington had 100 lawyers in 1960 and was growing. A, F & P had 31 and Wilmer 22 by the end of 1963. From the outset, I did not seriously consider Covington for the simple reason that I wanted to join a firm where I was likely to become a partner.

TIMOTHY DYK’S CLERKS BY YEAR, LAW SCHOOL AND CURRENT POSITION

I begin with a bit of family history on the theory that who you are is influenced by where you came from. My mother, Ruth Belcher, and father, Walter Dyk, came from different backgrounds. My father was an immigrant from Germany, arriving in this country at age 5. My mother came from New England. While I know a great deal about the ancestry of my mother, I know much less about her life. In the case of my father, I know almost nothing about his family history beyond his parents, but I know quite a bit about his life. My mother's family in this country can be traced back to Myles Standish and Priscilla Alden. Of course, they did not marry (Priscilla had famously asked “Why don't you speak for yourself, John?” when John Alden was courting her on behalf of Standish, and she married Alden), but their children married, and they were my ancestors. So I had always felt a strong connection to our country's history.

My mother was born in Portland, Maine, on March 25, 1901, into a family of Republicans. Her father was a lawyer. His name was Arthur Belcher, and he was born in Farmington, Maine, on April 24, 1861, about the time that the Civil War began. He went to Andover and then Bowdoin College. He did not attend law school, but instead studied in various law offices, as was common in those days. Admitted to the bar in 1885, he practiced law in Farmington until 1896, when he moved to Portland and entered into a partnership with Frederick Hale. A lot of the work he did as a lawyer was for a telephone company. Unhappily, at a time when he reportedly was about to run for the US Senate, my grandfather contracted appendicitis and died of peritonitis on October 5, 1904, when my mother was just three years old. My grandfather's partner, Hale, was elected to the US Senate in 1916 and became famous for his opposition to Hugo Black's nomination to the Supreme Court because of Black's Klan affiliation, an opposition that was misplaced, given Justice Black's later record.

I left the practice of law in the twentieth century and began as a judge in the twenty-first century. When I was sworn in as a circuit judge on June 9, 2000, I was 63 years old. I was secure financially. My three children had been, or would be, able to go through college without any debt, and the two older ones were employed and self-supporting. Sally, who had had her bout with breast cancer, was then finishing her treatment and on the road to recovery. Because of my age, I had no realistic ambition of doing anything else in government other than sitting on the court. True, I would be eligible for senior status or full retirement in 10 years and could in theory reenter private practice or serve as a mediator or arbitrator. I had seen what that world was like for retired judges in private practice, having spent time working with George Pratt, who retired from the Second Circuit, and Charles Clark, who retired from the Fifth Circuit. That was not for me. I note that four judges on our court left the court for greener pastures that perhaps turned out to be not as green as they thought they would be. Thus, I came to the bench knowing that I would remain for the rest of my professional life—a prospect that I found most congenial.

Like all new judges, I felt a profound sense of privilege—the opportunity to contribute to American jurisprudence and to decide cases fairly and pragmatically within the bounds of precedent. The feeling of responsibility was enhanced by our location overlooking Lafayette Park and the White House.

Any new circuit judge coming from private practice is aware that there are major differences from the world that he or she has just left. There is life tenure (unlike most state appellate courts) and fixed compensation. There is no client to establish the lodestar of a desired outcome. A judge no longer has to be concerned about where the work is coming from and whether there will be work to do.

There is enough time to address the issues properly and, apart from the need to show up on time for oral argument, few deadlines (the lack of deadlines is not as beneficial as one might think; judges sometimes can take years to produce an opinion that should take a couple of months).

Leaving Private Practice

Despite the satisfactions I found in private practice, I had always wanted to be a federal judge. This opportunity only existed for me during a Democratic administration since I was a Democrat, and Republican presidents rarely nominated Democrats. I never pursued a judgeship under President Jimmy Carter, in part because I had no significant connection to the administration (even when Cutler was White House Counsel) and in part because Carter very appropriately recognized that it was important to increase the number of women and minorities on the bench. Carter's Executive Orders required that selection panels “make special efforts to seek out and identify well qualified women and members of minority groups as potential nominees.” The assumption was that there were going to be fewer white men appointed. In the District of Columbia, in particular, Carter appointed only one white male to the D.C. Circuit (Abner Mikva who had been a congressman). The Federal Circuit did not yet exist. Although Carter made five appointments to the Federal District Court for the District of Columbia, only two were white males: Louis Oberdorfer and Harold Greene, both of whom had long records of public service. I was much too junior to compete with them for the bench.

In 1992, when Bill Clinton was elected president, it was clear to me that, if I wanted to pursue a judicial appointment, this was the time. I was getting along in years, being 55 when Clinton was elected, so I would likely be aged out if I waited much longer. In addition, continued private practice as a long-term alternative seemed problematic. Though I loved private practice, and I had every reason to think that I would be welcome at Jones Day for some years to come, the firm then had a mandatory retirement age of 66, which in some instances was extended to age 70. I knew law firms and could not conceive that I was going to be able to practice law at Jones Day after age 70. The judiciary offered the added benefit of allowing me to remain active in the law beyond normal retirement age.

Arriving at the Court

The central figure at the Supreme Court in those days was, of course, Chief Justice Earl Warren. Warren was a Californian, trained in law at Berkeley. He served in a number of leading positions in state government before being elected attorney general in 1939. When World War II broke out, Warren opposed the isolationists and supported Roosevelt's campaign to enter the fight. After Pearl Harbor, Warren was a leading proponent of the internment of Japanese Americans. By 1943, he had become governor, a position he held for 10 years. During this time, Warren had a national political profile, running as Thomas Dewey's vice presidential candidate in 1948 and losing to Eisenhower for the 1952 Republican presidential nomination, a defeat for which he held Richard Nixon responsible.

Because of Warren's ultimate support of Eisenhower's candidacy, Warren was promised the next vacant spot on the Supreme Court. In 1953, when Chief Justice Fred Vinson died from a heart attack, Eisenhower was reluctant to appoint Warren, but Warren insisted. He was given a recess appointment (unheard of today) and was confirmed for the position in March 1954. Warren had not been a Supreme Court advocate, arguing only one case before the Court in his time at the bar—Central Pacific Railyard Company v. Alameda County, 284 U.S. 463 (1932)—a quiet title action involving the right to real estate in California's Alameda County, where Warren was then the district attorney.

If the central figure at the Court in 1961 was Warren, the central issue was racial discrimination in the aftermath of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), decided seven years earlier. At the end of the previous century, the Supreme Court had decided the notorious Plessy v. Ferguson, 163 U.S. 537 (1896), which held that state-enforced racial segregation was consistent with the Constitution's equal protection clause. With the blessing of Plessy, the Southern states enforced “separate but equal” racial segregation in the school systems. Subsequent Supreme Court decisions had chipped away at Plessy in higher education cases, holding that graduate and professional programs could not exclude students or segregate them on the basis of race in McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) and Sweatt v. Painter, 339 U.S. 629 (1950), because equal facilities were not available to Black students.

Special Assistant to Louis Oberdorfer

In the spring of 1963, finishing my second year clerking on the Supreme Court, I turned to the question of what I would do next. The other clerks and I were anxious to get out into the real world—to go to the government or to a firm, which is very much contrary to the attitude of many of the clerks that I see now at our court. Today many look at their clerkships as the high point of their lives. Things are never going to be that good again, and they are not looking forward to private practice, though the academy or government service still appeal.

I assumed that I would finally join the large firm in New York, whose offer I had previously accepted twice and postponed for my clerkships. I again interviewed with the firm, and one of the firm's older and most distinguished partners (by dint of his ancestry and well-publicized public service) was my contact. We will call him Garrett. At the time I was earning almost $10,000 a year as the chief clerk ($1,000 more than the other clerks for no good reason). Garrett offered me $11,000, and I agreed to start in the fall. Two weeks later, Garrett wrote to say that the firm could only pay $9800 (about the same as I was then earning) because that was the set salary for lawyers two years out. He was clearly embarrassed. I declined, my thought being that a deal was a deal. My impression was that the firm was reluctant to depart from the agreed salary scale followed by the New York firms (an agreement broken some years later by Cravath). I do not mean to suggest that it was not a fine firm. It was, and is, and I think things turned out for the best. Interestingly, Justice Stevens apparently earned less in his first year of private practice than he did as a clerk.

This left me without a job but with a new attitude toward my professional life. Until then, my approach toward my professional career was that things would work out, that the world would take care of me, and that very little effort was required by me to shape the future. That now changed.

During the confirmation process, I kept a daily diary. Here are some entries following my April 1, 1998, nomination. These entries, which appear here substantially as written at the time (with some supplementation), are only a small portion of the whole. For almost two years I made calls and met with people, seeking support for my confirmation on a daily basis, weekends included. I replicate the diary entries to give a sense of the uncertainty and chaos of the rollercoaster ride as it unfolded. As far as I know, there is no similar published record of such an experience. There are 785 days between my nomination and my confirmation on May 24, 2000. The median waiting time for circuit court confirmation during the Clinton presidency was about 140 days.

April 8, 1998: The White House tells me that Hatch (the chairman of the Senate Judiciary Committee) and John Podesta (then deputy chief of staff) do not get along.

April 12, 1998: Hatch and Lott (the majority leader) also have tensions between them. Republican Senators Ashcroft and Sessions are Lott's eyes and ears on the Judiciary Committee. Lott does not want to move too fast with nominations.

April 16, 1998: Colby May, associated with the Christian Coalition and the lawyer for Trinity Broadcasting, agrees to help with my confirmation. For the first time, I hear that my wife Sally is a problem because of Republicans’ concerns about regulatory reform.

May 5, 1998: The ABA letter concerning my nomination is released. It rates me “qualified” rather than “well qualified.” The primary reason, as later explained to me privately by an ABA committee member, is that a district court judge that I appeared before said that I screamed at him in court. That is not my style, and it never happened. I assume that this was a Cleveland district judge who sat on one of the firm's cases and was unhappy with my predecessor's attitude toward him before I took over the case. In fact, I had never met the judge nor been in the judge's courtroom.

Every federal judge is the product of an earlier life in the law. On the bench you continue to learn from colleagues, litigants and many others, but your earlier experiences powerfully shape your view of judicial excellence and your own aspirations. No two judges followed the same path to the bench; no two judges have an identical jurisprudence. Yet there are commonalities. One of these is that we have great faith in the American legal system, imperfect as it is, and its ability to provide an impartial forum for the resolution of significant disputes and to thereby sustain our democracy. There is no other legal system in the world with the same authority, dedication to excellence, independence and honesty as our system of federal courts. For more than almost 60 years now, I have been a lawyer in practice and a federal judge, litigating and then adjudicating cases of some significance in the federal courts. This memoir describes the path that I followed to the bench from my earliest days, how I now pursue my craft, and my sense of privilege in having been able to serve this system from both sides of the bench.

There are relatively few memoirs or biographies of the legal careers of circuit judges during the period that I have been in active practice and on the bench—from the early 1960s to the present. The only non-Supreme Court comprehensive biographies of federal appellate judges in modern times that I am familiar with are those of Learned Hand, Henry Friendly, William Hastie, Jon Newman, Richard Posner and Damon Keith. With the exception of Newman’s, none of these is in the judge's own words, and the Hand, Friendly and Hastie biographies cover an earlier period. There is, therefore, a dearth of information about what it was like to be a lawyer and then a federal judge during my time in private practice and on the bench. I thought that it might be useful to record what I learned and what I experienced.

This memoir was not at the inception designed for the general public. Rather, it was originally designed for my children, my grandchildren and their descendants.

The history of the Cravath firm covers the period from the inception of the predecessor firms in the nineteenth century to the period after World War II. Most of the book is a boring listing of railroad reorganizations and other firm representations, but there are other parts that describe the way the practice used to be, and they are fascinating. That led me to attempt to describe the changes that occurred from the time that I started in practice to the time I went on the bench and to some extent thereafter.

Many of the changes in the legal profession in the past 50– 60 years are readily apparent and were summarized in Chapter . My goal here is to describe some aspects of those changes and other changes not so well known. The focus is on changes in what is fondly known as “Big Law” in Washington, the venue of my 35 years in private practice. The major changes can be easily summarized: Over the past 60 years, what used to be a profession has morphed into big business with all the attendant problems.

Size of the Legal Profession

There are now many, many more law schools and many, many more law school graduates than there were when I entered the profession. This has produced a great surplus of lawyers (though not a surplus of lawyers representing individuals, particularly the disadvantaged). Only a small percentage of recent graduates is hired by one of the leading firms. Many law school graduates do not end up practicing law at all. Interestingly, the same problem—a surplus of lawyers—has existed in vastly different contexts in nineteenth-century Europe and in China today. As a result of the lawyer surplus, there is a tremendous amount of anxiety at many US law schools about getting a job after graduation. That was not a problem when I was in law school. Even if you were toward the bottom of the class in a good law school, it was pretty much certain that you would have a job when you graduated, if you wanted one.

Composition of the Legal Profession

When I went to law school in 1958, there were very few women in the class. Harvard had only opened its law school to women in 1950.

On the eve of a class reunion, Judge Silberman, one of my classmates at Harvard Law School, had his clerks research the various Harvard classes and discovered that our class of 1961 had the largest number of federal appellate judges of any class that had graduated from the Harvard Law School. With Justice Kennedy's retirement from the Supreme Court in 2018, all five of my classmates who became appellate judges have taken senior status or have died (Williams in 2020). Almost all my classmates who joined private firms have also retired, though some have found meaningful work to do after retiring from their firms.

In all courts of appeals, at some point in the judge's tenure on the court there is a portrait painted of the judge which is presented to the court for hanging in one of its courtrooms. Unlike the D.C. Circuit, for example, in our court, the portrait presentation ceremony occurs before the judge leaves the court or takes senior status. In my case, that portrait presentation took place in October 2015 and resulted in a ceremony at which some of my former law clerks spoke. The transcript of the ceremony appears in 878 F.3d. The artist was British, named Brendan Kelly. He has painted portraits of members of the British government and has done the official portrait for Justice Breyer. His portrait of me appears on the cover of this book.

There was an amusing episode about my portrait. My wife and I went to London. Brendan had just finished the portrait. We went to his studio in London to look at it. Brendan had said that if there was something about the portrait that I wanted to have changed, he would address it. When we arrived, Brendan said that he wanted to give us the opportunity to look at the portrait in private, so he would walk around the block and come back. Before leaving, he unveiled the portrait. Both my wife and I were delighted with it—a uniform reaction by those who saw it later. As we talked about it, my wife noticed that one of my hands seemed to be lighter than the rest of the portrait. And so, when Brendan came back, she suggested that he could darken that part of the hand.

Making the Switch

Wilmer Cutler's relationship with CBS and the broadcast business generally, which had been so important to me over the years, began to peter out in the mid-1980s. The reasons for this were several. The first factor was FCC deregulation (as a result of the election of President Ronald Reagan), which substantially eliminated the threat of license challenges and other FCC regulations. This meant less legal business defending against the FCC. There was also management turnover at CBS. Those who fostered the relationship with Wilmer Cutler left the company or were demoted to lesser positions and were replaced by others less favorably inclined. This process began as early as 1969 when Jack Schneider and Dick Jencks (the latter a strong supporter of the firm) were scheduled to assume the positions of CEO and president, replacing Paley and Stanton, only to find at the board meeting to finalize the scheduled change that Paley had changed his mind. Schneider reverted to president of the Broadcast Group, and Jencks became the Washington representative, with far less influence over the legal work. Stanton, a champion of broadcasters’ First Amendment rights, retired in 1973, pushed out by Paley. Paley's ultimate failing was his inability to turn the reins over to Stanton and, thereafter, his unwillingness to plan for an orderly succession. At his core, he did not want to surrender his role as CEO. After a series of designated replacements either died or were fired, the control of the company passed to the Tisch family in 1986 with unhappy consequences for the company.

Even before Tisch took over, the new CBS management decided that the FCC was no longer a threat, and CBS News needed to stand on its own. In other words, CBS did not need to have an impressive news service as a defense to license challengers and other FCC regulation. Cost cutting became the order of the day—cost cutting that extended to CBS News’ outside legal fees. As a result of this emphasis on profit and belt tightening, there was a drastic turnover in CBS personnel, and my friends in management at the company departed, the last being Ralph Goldberg.