An Interview with William S. Sessions

William S. Sessions is a partner at Sessions & Sessions law firm in Texas. He was appointed a district court judge to the Western District of Texas in 1974, serving on the federal bench until 1987, when he was named Director of the Federal Bureau of Investigation. In addition to many other positions, he has served as the chairman of the Federal Bar Association’s Ethics Committee, as a member of the American Judicature Society, and most recently as the chair of the American Bar Association’s Special Committee on Judicial Independence.

Q: As a federal judge and the former director of the FBI, you’ve worked in two of the three branches of government and you’ve seen the federal Judiciary from both inside and outside. What is the public perception of the Judiciary? Has it changed during your career?

A: The favorable public percep- tion of the federal Judiciary remains at an amazingly high level in spite of the battering it has taken in the last 35 years. Although the mystical aspects of courts and judges have gradually dissolved in the glaring light of intense public interest, court television, and entertainment shows about lawyers and the Judiciary, the respect for federal judges and federal courts seems virtually undiminished. Americans seem to understand that our Constitution-based system is their best assurance for a consistent Rule of Law approach to dispute resolution—a system that has earned international respect. I believe that people want the courts to react to change more quickly but accept the fact that major changes are viewed in a variety of ways that must be considered, often in litigation, before a stable solution is found—and followed.

Q: Last year federal judges received their first cost-of-living increase since 1993, but it does not appear that Congress will pass the necessary legislation this year to give judges a called-for increase in 1999. What do you feel is behind the difficulty in increasing judges’ pay? Should federal judges’ pay be linked to those of members of Congress and the Executive Schedule?

A: I believe that there is a genuine difference of opinion about the need for a stable and fair plan for systematic pay increases for the federal Judiciary. The Congress in 1989, even though the linkage between congressional pay and judicial pay was continued, handled that need in a very reasonable way—by providing for a substantial “catch-up” raise and for an annual COLA. The failure of Congress to give that COLA in many of the years that followed has caused what I believe to be an unwise imbalance to accrue. Had the COLAs been given annually thereafter, that imbalance between judicial salaries and the substantial salaries that eminent lawyers can command would not have been so severe. It seems logical for Congress to recognize that the imbalance is a detrimental factor in recruiting and retaining the best of legal talent for the bench. If Congress chooses to deny itself the raise in pay, it should consider carefully the exacerbation of the imbalance and the resultant detriment to the maintenance of a strong and able federal Judiciary and grant the COLA to the Judiciary.

Q: You were the first chair of the recently formed ABA Special Committee on Judicial Independence. Why was that committee formed, and what does it hope to accomplish?

A: The special committee was authorized by the ABA Board of Governors in July of 1997 and appointed by ABA President Jerome Shestack in San Francisco at the annual ABA meeting on August 1, 1997. In abbreviated form, its mandate was to “assist courts . . . in considering and effectuating responses to infringement of judicial independence,” to “encourage public awareness and appreciation of the importance of judicial independence and merit selection to the American judicial system and the rule of law;” to “make recommendations on ways to improve and enhance the institutional independence and efficiency of . . . judiciaries and encourage appropriate accountability to enhance judicial independence and the efficient administration of justice” and, finally, to “act as a clearinghouse for ABA activities dealing with the independence of state, local and administrative judiciaries.”

The committee, since August of 1997, has laid a substantial foundation for carrying out the mandate given it. It has joined with the Lawyers Conference of the Judicial Division of the ABA to ensure the nationwide implementation of the Model Plan for Response to Criticism of Judges. It has received substantial encouragement and financial support of other institutions to develop model programs for effectively dealing with unfair, harsh, and untrue criticism of judges and courts. It has spoken out in the media in response to unfair, harsh, untrue criticism or disciplining of judges and has supported public discussion encouraging appropriate accountability and efficiency of courts and judges. Additionally, it has begun the initial work to create an educational video on judicial independence as a critical element underpinning the Rule of Law in America.

Q: Judges are vulnerable to political attacks from critics inside the government and outside. You’ve written that the founding fathers were confident that the judicial system could survive and flourish despite the attacks. How does the Judiciary do that? And should federal judges respond to public criticism of their judicial decisions and to calls for impeachment based on disagreement with decisions?

A: Since early in 1996, the high-level attacks from within the executive and legislative branches of the government are difficult to deal with because basic political philosophy is often involved and thus the attackers apparently feel the attack is justified because of the importance they attach to the particular issue involved—crime—abortion—guns. Of course each issue has intense and constant public interest. Because judges have traditionally felt bound by their ethical duty to stand and take it, the war of words rages about them with virtually no defense being raised and articulated in their defense. The problem is not solely a concern for the federal Judiciary. State judiciaries are at least as vulnerable, principally because of the processes by which those judges are chosen and retained.

Arthur T. Vanderbilt, former Chief Justice of the New Jersey Supreme Court, in his great speech to the law students at an ABA annual meeting took the position that “a great lawyer does his part individually and as a member of the organized bar to improve his profession, the courts and the law,” and “has the responsibility of acting as an intelligent, unselfish leader of public opinion within his (her) own particular sphere of influence.” The ABA Suggested Program Outline for the Appropriate Response to Criticism of Judges and Courts has great promise for nationwide response, in the media, in schools, in civic gatherings and clubs, and in the Congress, to harsh, unfair or untrue criticism. Bar associations and lawyers, nationwide, will not only respond to attacks on the Judiciary but, as important, will develop educational programs that will bring about a deeper public understanding of the critical importance of an independent Judiciary to the Rule of Law, which underpins our free enterprise system and our democracy.

Q: With attacks on judges and stagnating pay, what effect do you feel this may have on the quality of people attracted to serve on the federal bench?

A: This is a very tough but delicate problem. Unquestionably, the federal standards in many areas, including the courts and the Judiciary, set the standard for the states and the cities of America. The character, intelligence and competence of men and women who are selected and who choose to serve as federal judges will continue to be the best available, but we cannot allow the system to fall into disrepair, either in the housing for the courts or the support we afford them, in pay and security. Each of these facets of support will ultimately be reflected in the state and local systems and will encourage lawyers to serve, relying upon the strength and attractiveness of the court system. The cream will rise to the top! We must support the courts with all the strength and determination we can muster!

Q: Your areas of legal practice now include mediation and arbitration-areas into which the federal courts also are expanding. What are your thoughts on alternative dispute resolution in the federal courts?

A:My thoughts went immediately to the crisis that exploded upon the Western District of Texas when Judge John H. Wood, Jr. was assassinated May 29, 1979. Recognizing that the civil docket in San Antonio would be completely drowned by the huge criminal docket with the additional burden of the Speedy Trial Act of 1974, I asked the San Antonio Bar Association to devise a court-annexed ADR procedure that would meet the needs of the bar and the court. The bar proposed a court-annexed arbitration plan which was adopted by the court, enthusiastically supported by the lawyers and continues to this day. It is joined now by the Alternative Dispute Resolution Rule, both of which operate splendidly under the local rules. My view is that it is most important that the courts facilitate disposition of litigation in an efficient manner and that the public be aware that the court is overseeing the processes of the litigation and thus the public can have confidence that the judicial system is working efficiently and properly. Court-annexed ADR programs have the potential to splendidly fill these needs and allow the courts to meet the burgeoning workload.

Q: As the judicial branch nears the millennium mark, what, if anything, would you change in the federal Judiciary?

A: The federal Judiciary is probably the most respected judiciary in the world. The support mechanisms for the work of the federal Judiciary are extraordinarily able and diligent. Alvin & Heidi Tofflers’ Future Shock and The Third Wave enabled us to understand that the future can be predicted with amazing clarity if you are able to read the signs along the trail and interpret them. The ability to meet change head on and meet the challenge of that change will determine the future of the Judiciary. It must meet the expanding needs of the international business community, the international telecommunications industry, the international intellectual property demands, the international criminal problems. To do this, the federal Judiciary needs to direct its attention to creating streamlined and efficient ways to meet these needs. The alternative is to be “too late with too little” and to thus be bypassed as incapable of meeting the demands made on it. This is all very easy to say but very hard to do. We might begin with renewal of eclectic conferences on the model of those sponsored by The Brookings Institute in the 1970s where each of the branches of the federal government could learn from and be challenged by others. Futurists, such as the Tofflers and Nesbitt, might lay the groundwork for these discussions and exchanges.

Additionally, the Judiciary must lead in finding and proposing new models and methods for assuring that the judicial needs of all areas of the country are met in a more timely fashion. It is possible that Congress might be persuaded to meet the needs of a fast-growing area by adding a “next vacancy” type of appointment that would be taken from an area needing less judicial resources. The new number of judges would, in that circumstance, not be permanently increased, and the needs of each area would be met. Consideration might be given to creating an emergency pool of judgeships that could be assigned by the Chief Justice or the Judicial Conference in the interim between the usual omnibus judgeship legislation. Had such a capability been in place when the drug problem exploded on Miami, Florida, the long delay that resulted in a massive backlog might have been avoided.

Finally, I would make a strong and sustained effort to persuade Congress of the wisdom of finding a way to assure that the pay of the Judiciary does not lag dangerously behind that of the legal community. That lag not only causes a nagging preoccupation caused by the problem but almost certainly inhibits the ability of the President to find and keep nominees of the high quality demanded by the difficult nature of judges’ work. It may be that the Congress will decide that the time has finally come for dealing with the judicial pay issue by focusing intensely on the needs of the Judiciary, without other distractions.