Judge Katzmann was a terrific judge and an even more terrific person.
by Michael C. Dorf
This week, Robert Katzmann, former Chief Judge of the U.S. Court of Appeals for the Second Circuit, died. I didn't know Judge Katzmann all that well, but I was extremely fond of him. Whenever prominent judges or justices die, their former law clerks, friends, and acquaintances have a natural tendency to exaggerate their good qualities and minimize their negative ones. Indeed, that's a natural tendency with respect to anyone. The adage "don't speak ill of the dead" is rooted in compassion and good sense. That said, everything I know about Judge Katzmann leads me to conclude that lavish praise without criticism is, in his case, well deserved.
I'll leave it to others who knew Judge Katzmann better than I did to eulogize him more fully, as he surely deserves. I'll just say a few words about his place in contemporary jurisprudence.
Being a great or any kind of legal scholar is neither a necessary nor sufficient basis for being a great or even good judge. Felix Frankfurter was a first-rate scholar but a disappointing justice because he never really made the transition. Conversely, figures we revere as judges have come from all ranks of the profession.
That said, there is a tradition of scholar-judges, from Oliver Wendell Holmes, Jr,, through Ruth Bader Ginsburg and Antonin Scalia. On the current Supreme Court, Justices Breyer, Kagan, and Barrett were all more-than-competent scholars before becoming jurists. On Judge Katzmann's court, there have been a great many scholars, including his colleagues Jose Cabranes, Guido Calabresi, Debra Livingston, and Jerry Lynch, as well as such past luminaries as Jerome Frank. And two of the greatest-ever federal appeals court judges--Learned Hand and Henry Friendly--were scholars of the highest order even though neither spent any substantial part of his career as a full-time faculty member.
Judge Katzmann earned rightful membership in that august company. He was a lawyer and political scientist before joining the bench; once there, he brought sophistication to his work, which in turn brought practicality to his continued scholarly contributions.
In 2016, I discussed some questions I would pose for Judge Katzmann based on his book Judging Statutes. With no disrespect intended to the extramural writings of Justice Breyer, Judge Katzmann's book is the most careful and thorough rejoinder by any judge to Justice Scalia's arguments for textualism in statutory interpretation. He had a talent for clarifying, crystalizing, and simplifying without dumbing down.
Judge Katzmann's work on the bench was first-rate. The obituary writers will rightly point to his en banc opinion in the Title VII sexual orientation discrimination case that presaged last year's SCOTUS ruling, as well as his ruling against Trump in the grand jury subpoena case, also upheld by the Supreme Court. What stands out for me about those rulings is that they don't stand out. Because Judge Katzmann was a great craftsman who colored inside the lines, he was able to write liberal opinions that managed to survive review by a conservative judiciary.
Those of my former students and friends who clerked for Judge Katzmann uniformly praised his in-chambers conduct as wholly consistent with the thoughtful and compassionate person he appeared to be in his writing. He combined keen intelligence, wisdom, generosity, and humility. I sometimes think that being called "your honor" on a regular basis leads jurists to develop an inflated sense of their importance and abilities. If so, that risk was never remotely realized in Judge Katzmann.
The past year has seen a great deal of loss. Those of us with close contacts with the Second Circuit feel it too. First Judge Peter Hall, whom I had the good fortune to get to know as well; and now Judge Katzmann. (And that doesn't count Justice Ginsburg, whom I always regarded as something of an honorary Second-Circuiter.) Here's hoping it will be a very long time before I find the need to write another memorial post.