Memorial ceremony for Judge Ross

On March 24, 2014, a joint session of the United States Court of Appeals for the Eighth Circuit and the United States District Court for the District of Nebraska was held in memory of Judge Donald R. Ross, my mentor. The ceremony materials are now on the web. See The Historical Society of the United States Courts in the Eighth Circuit (click on Ross page). In particular, I recommend viewing the video.

Remembering that Ross won the Distinguished Flying Cross twice, the ceremony begins with “Amazing Grace” performed on a trumpet by Staff Sergeant Carl Eitzen of the United States Air Force. It ends with the Sergeant performing the “Air Force Song.”

In between, there are remarks by (a) Chief Circuit Judge Riley and Chief District Judge Smith Camp (whose father was one of Judge Ross’ law partners);  (b) three appellate colleagues (Judge Myron Bright, Judge William Webster and Judge Roger Wollman); (c) one of Judge Ross’ remarkably talented children, Becky Ross, who is a distinguished trial lawyer and managing litigation partner at a large national law firm; (d) and the judge’s son-in-law, the highly regarded Justice Ken Stephan of the Nebraska Supreme Court. I was privileged to serve as master of ceremonies.

In particular, the remarks of Judge Ross’ friend Judge William Webster, former head of the FBI and then the CIA, is worth listening to (beginning at about 18:34) if only to hear one truly remarkable man speak about another truly remarkable man. But, if you have time, listening to the other speakers will give you an even better idea of a man who quietly became a national power broker and later a judge who, despite his past political affiliation, played things right down the middle as an appellate judge.

This was one of the most important events of my life. At the conclusion of the ceremony, I had fulfilled a solemn promise to a man I revered. Some things are more important than others.




5 responses

  1. RGK: “At the conclusion of the ceremony, I had fulfilled a solemn promise to a man I revered. Some things are more important than others.

    Judge Gertner: ““When I was trained as a judge the trainer began the session on civil rights, “Here’s how you get rid of these cases. ’”

    28 U.S.C. § 453:

    Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”

    As I have documented ad nauseum, it seems that some promises are more important than others.

  2. I am, as I often do, speaking more generally. The taking of the oath of office of Article III judge ought to be one of the most solemn acts one takes in a lifetime, but as Judge Gertner’s admission exemplifies, if there is any oath more freely dismissed, I am not aware of it.

    I suppose that it really comes down to what duties are incumbent upon you as an Article III judge. If, as Judge Miner of the Second Circuit observes, lawyers have a duty to vigorously criticize the courts,, then a fortiori, judges have an even more compelling obligation in that regard. That is why I direct my venom at the judicial Mike McQuearys, more inclined to protect the Tribe and (the illusion of) its reputation than the rule of law.

    Whereas the men and women of our military academies take a strict code of honor (“We will not lie, steal, or cheat, nor tolerate among us anyone who does.”), the men and women who insist on being addressed as “Your Honor” not only tolerate them but in many instances, assiduously look the other way like a Mike McQueary. Judge Gertner had an obligation to speak out, and not some twenty-five years after the fact. It infuriates me that so many federal judges believe that the principle of collegiality compels them to do their best Mike McQueary impression while their colleagues abuse defenseless litigants’ constitutional rights, not just in an otherwise-deserted shower, but in plain view.

    I persist because I find this delicate dance comical. I can’t even get a judge to condemn the spectacle of a judge sitting in judgment of his own case when 16 non-conflicted judges are available and expressly authorized by law to take his place. Cf., e.g., Calder v. Bull, 3 U.S. 386, 388 (1798). You will come to the defense of a Shira Scheindlin in a heartbeat, but this is “too heavy a lift”? We all know why and if not, the ever-candid Judge Kozinski explains it:

    Disciplining our colleagues is a delicate and uncomfortable task, not merely because those accused of misconduct are often men and women we know and admire. It is also uncomfortable because we tend to empathize with the accused, whose conduct might not be all that different from what we have done–or been tempted to do–in a moment of weakness or thoughtlessness. And, of course, there is the nettlesome prospect of having to confront judges we’ve condemned when we see them at a judicial conference, committee meeting, judicial education program or some such event.

    In re Complaint of Judicial Misconduct, 425 F.3d at 1200 (Kozinski, J, dissenting).

    Character is “the sum of those qualities of moral excellence which compel a person to do the right thing despite pressure or temptations to the contrary.” At the United States Air Force Academy, we’ll teach you to evince character in everything you do.

  3. Ken,

    I appreciate your elaboration. You have a point. Indeed, the problem that you describe is not limited to judges. Lawyers face the same problem when one of their colleagues step across the line. It takes real courage to do that. I have a war story I could tell about that but it can wait.

    All the best.


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