In Appreciation of Third Circuit Senior Judge Aldisert

In Appreciation of Third Circuit Senior Judge Aldisert Howard J. Bashman

Upon Further Review

The U.S. Court of Appeals for the Third Circuit is about to lose another giant from its ranks, as Senior Judge Ruggero J. Aldisert announced recently that he is planning to retire entirely from judicial service in August. Aldisert joined the Third Circuit in July 1968, appointed by President Lyndon B. Johnson, and thus Aldisert will have served on the court for more than 46 years when he steps down this summer.

By the time I arrived at the Third Circuit as a judicial law clerk for another judge in 1989, Aldisert had already taken senior status and had relocated his chambers, for health reasons, from Pittsburgh to Santa Barbara, Calif. Despite being based in California, Aldisert continued to serve on Third Circuit panels, in addition to sitting by designation from time to time in the Ninth Circuit, the federal appellate court encompassing California. And he also occasionally accepted invitations to sit by designation on other federal appellate courts.

Although 46 years of service on the Third Circuit is itself a notable tenure, Aldisert will fall short of Albert Branson Maris’ slightly more than 50 years of service on that court. However, in common with Maris, Aldisert may be best known for the significant contributions he has made to the legal profession beyond merely serving on the Third Circuit for such a notable length of time.

Notwithstanding the statement of U.S. Supreme Court Justice Oliver Wendell Holmes Jr. that “the life of the law has not been logic; it has been experience,” Aldisert has always been a longstanding supporter of logical reasoning in appellate briefs and decisions. Although judges at the very highest level of a judicial system may have the luxury of abandoning logic to reach the results they believe best, judges who serve at the trial and intermediate appellate court levels do not enjoy that same degree of freedom. As a result, Aldisert was absolutely correct to recognize that much of what appellate lawyers and appellate judges must do is logically reason from existing legal precedents to determine the correct outcome of a new appeal, which ordinarily will involve differing facts and circumstances.

Aldisert’s point was not that judges should seek to emulate computers or any other sort of unemotional artificial intelligence. Rather, Aldisert merely recognized that both lawyers and judges operating in our common-law system need to correctly understand the scope and limitations of existing precedents to reach the correct outcomes in later cases.

In addition to trying to teach by example, demonstrating in his judicial opinions the power of correct logical reasoning and the flaws inherent in illogical legal reasoning, Aldisert also devoted considerable effort both in his judicial role and in his role as a teacher to instruct lawyers on excellence in appellate advocacy and judges in excellence in opinion writing. Anyone who more than dabbles in appellate advocacy should read and own a copy of Aldisert’s book, “Winning on Appeal: Better Briefs and Oral Argument.” In that relatively short book chock-full of helpful recommendations, Aldisert draws on his considerable experience as an appellate judge to advise lawyers how to effectively brief and argue appeals.

Yet, Aldisert has not merely written a must-read book on appellate advocacy; he has also written a very important book for sitting judges, titled “Opinion Writing.” Just as lawyers need to know how to do their job to enable a court to reach a correct decision, judges who are writing opinions that will serve as precedent governing future cases benefit from delivering opinions that make clear the court’s holdings so that lawyers and judges who will need to apply those holdings in the future can appreciate their scope and limitations.

Aldisert’s considerable contributions to the goals of good appellate lawyering and good appellate judging teach lessons from which we can all learn. Being a good judge or lawyer requires great effort, leaving little time or energy to devote to trying to improve the overall quality of our system of justice. Yet Aldisert has shown that someone who is a capable teacher and who is interested in not only trying to do good work himself but also to raise the quality of justice in general has the ability to influence for the better countless others.

With Aldisert’s departure from the bench, we will be losing one more connection to a time before the current caseload demands of federal appellate courts have necessitated an almost assembly-line approach to justice in place of a time when judges could more carefully consider and collegially discuss the outcomes of cases without fear of falling further behind in handling an otherwise crushing docket of appeals.

Most of all, we have been fortunate here in the Third Circuit to have had so many judges who have been giants of their profession. Now that we are seeing a new generation of appellate judges join the Third Circuit, many of whom are my age or even younger, I hope that the lessons taught by their predecessors, including Aldisert, about the benefits of working to improve the skills of lawyers and judges will find a new voice. To be sure, federal appellate judges already work far too hard for far too little pay. However, they are fortunate to hold jobs offering lifetime tenure and the ability to significantly influence the discussion concerning good lawyering and good judging.

Judges such as Aldisert, Maris and Edward R. Becker are irreplaceable, even though in time they all are replaced. It is too soon to know who the future giants of the Third Circuit will turn out to be, but the fine tradition of public service to the law that so many of their predecessors have offered gives one hope for the future even as we prepare to say farewell to another of that court’s shining stars.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached at 215-830-1458 and at hjb@hjbashman.com. You can access his appellate blog at http://howappealing.law.com and via Twitter @howappealing.

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