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CHICAGO-Judge Frank H. Easterbrook has long told his law students, only half in jest he says, that he wishes he had a button on his courtroom bench that he could push to open a trapdoor beneath the feet of attorneys not properly prepared for court, sending them sliding down a chute to the street outside. So far, he has no plans to install such an apparatus when he becomes chief judge of the 7th U.S. Circuit Court of Appeals in November. The ascent of Easterbrook, who has been on the court since 1985, will mean only a handful of changes for a court that he considers well-managed. “It’s running about as smoothly as one could hope for,” Easterbrook said in a recent interview. “I could mess up and become notorious from that perspective, but there’s nothing I could do I think to make people think it was a better court.” Easterbrook, 57, will take the top post when Chief Judge Joel M. Flaum turns 70, the age at which a chief judge is required to step aside and hand the baton to the most senior judge who hasn’t been chief. Easterbrook is not particularly excited about the new job, which is mainly an administrative one, because he’d rather spend time on judicial work. Still, he said he’s duty-bound to take his turn. As chief, he’ll have general oversight of staff, facilities and budget matters for the 15 courts in the three states of Illinois, Indiana and Wisconsin. He will also handle any concerns about the competence of about 100 judges on those courts. To make more time for court work, he’s cutting one of the two courses he typically teaches at the University of Chicago Law School and is reducing his commute by moving his home closer to the federal courthouse in downtown Chicago. Easterbrook, who is single and has no children, hopes that his new duties won’t disrupt his practice of spending three months of the year in Alaska, never more than two weeks at a time, while sometimes telecommuting for work. The Buffalo, N.Y., native said he loves Alaska’s climate, mountains and animals. He spends a lot of time hiking and watching the wildlife, he said. “It’s just gorgeous,” Easterbrook said. “Out my window in Alaska I see four mountain peaks and three glaciers flowing down between them.” Easterbrook was appointed to the bench by President Ronald Reagan after he had been a law professor at the University of Chicago for eight years and while he was working for the economic consulting firm Lexecon Inc. He worked in the Solicitor General’s Office from 1974 to 1979, arguing before the U.S. Supreme Court on a number of occasions. As a scholar and a judge, he’s “had an enormous impact because of the forcefulness of his reason, the clarity of his writing and his willingness to stake out the non-traditional positions,” said Dan Fischel, a former University of Chicago Law School dean who now teaches at Northwestern University School of Law. Fischel, who is also president of Lexecon, co-authored with Easterbrook The Economic Structure of Corporate Law, a book that “revolutionized” the approach to corporate law and is still used to teach law 15 years after its publication, said Dan Klerman, a professor of law and history at the University of Southern California. Two big challenges The two biggest challenges for any chief judge today are maintaining a collegial court and grappling with a burgeoning docket using static resources, said David Vladeck, a professor at Georgetown University Law Center. “This is a court that has avoided many of the tensions and the internecine battles that have marked other appellate courts, and I would expect he will do what he can to maintain that tradition,” Vladeck said. Easterbrook proudly notes that the 7th Circuit annually publishes about as many opinions as the 9th Circuit, which has about three times as many judges. Both circuits published about 600 written and signed opinions last year, according to the 7th Circuit’s annual report. The 7th Circuit also allows more oral argument than most of the other appellate courts, he said. While attorneys, professors and colleagues mainly praise Easterbrook’s intellect and knowledge of law, their opinions about his tough courtroom style vary widely. Some say he’s too harsh with attorneys, but are reluctant to talk about it publicly, given the possibility they may face him in court. He elicits a combination of reactions: Attorneys find him intimidating, but also intellectually challenging. Stephen Moore, an attorney with Chicago-based Rowland & Moore, said that his time before Easterbrook “was probably the most enjoyable oral argument I ever had,” describing it as “dueling with a brilliant mind.” But he also noted, “[y]ou’ll see him, I don’t want to say attacking an attorney, but putting them on the defensive. All parties are subject to his wrath.” Easterbrook earned the second-highest ranking in a 2003 study that sought to quantify the quality of federal judges’ work by, among other things, counting citations to their work and measuring how fast they produced opinions. Easterbrook’s fellow 7th Circuit judge, Richard Posner, ranked No. 1. “It’s not just that he comes out ahead of everybody, except for Richard Posner,” said Mitu Gulati, a Duke Law School professor who co-authored the study. “It’s by how much he comes out ahead. They’re off the charts.” The study was an attempt to show empirically which judges might be best suited to serve on the U.S. Supreme Court. Easterbrook has sometimes been mentioned for the court, and said he would certainly consider it a “privilege” to serve. “When you’re before Easterbrook, you know he’ll understand the issues, will ask astute questions and will make an intellectually honest ruling,” said Michele Rocawich, a Chicago attorney who has argued before him and reads his opinions. Still, a 1994 Chicago Council of Lawyers evaluation of 7th Circuit judges was critical of Easterbrook’s track record on the bench to that date. While the report called him “exceptionally smart” and “hard working,” it complained that he sometimes disregarded precedent and the facts of a case, didn’t recognize litigants “as real human beings with real life problems” and showed contempt for attorneys. “Judge Easterbrook’s performance is divided between the extremes,” the evaluation by an anonymous group of attorneys said. “In some respects he is excellent; in some he is subject to the most severe criticism.” The council didn’t have a current comment on Easterbrook’s performance. Easterbrook said his work speaks for itself, noting that “roughly 1,700 opinions have a lot of talking to do.” Unlike many other judges, Easterbrook writes all of his own opinions rather than hand them to law clerks. Easterbrook said he’s “reasonably comfortable” that he’ll have the diplomatic skills necessary to handle delicate court matters, such as the occasional need to encourage a senior member of a court to consider retirement. “I sometimes have a reputation for being undiplomatic, but I like to think it’s only when I choose to be undiplomatic,” Easterbrook said. “Sometimes it’s my preference to be blunt because I think that’s the only way I can get lawyers moving correctly.” Two things that make Easterbrook wish he had “the button” are lawyers not properly explaining jurisdiction for a case or claiming ignorance of the trial record. “He’s very intolerant of what he regards as incompetent or inadequate advocacy,” said Phil C. Neal, a founder of Chicago-based Neal, Gerber & Eisenberg and a former University of Chicago Law School dean. “He keeps lawyers on their toes and I think that’s a good thing for the performance of the bar.” Changes to come Three partners at Chicago-based Mayer, Brown, Rowe & Maw who are appellate litigators and worked with Easterbrook in the Solicitor General’s Office, recently made three suggestions to the incoming chief in a public statement in the 7th Circuit Bar Association publication, The Circuit Rider. They advised Easterbrook to consider allowing post-argument letters, more amicus briefs and a one- to two-minute period for counsel to address the court before questioning begins. One policy change that Easterbrook may make is to ask district judges of the circuit to occasionally sit on a 7th Circuit panel, giving them a view from the appellate court. That would be a change from a ban on visiting judges set by Posner when he was chief from 1993 to 2000. “If I do this, I won’t be doing it to provide a significant number of sittings, just so that they get the experience for what it is we do as an appeals court,” Easterbrook said. Easterbrook, who believes that visiting judges in the past led to more en banc reviews for the entire circuit, said almost all of the cases would still be handled by the court’s regular judges. Posner said in an interview that he tends to oppose using visiting judges because they inject uncertainty into the court and result in regular judges sitting together less often. But he agrees it can be a help when a court needs more judges. While not citing it as a reason for seeking visiting judges, Easterbrook said that one of the biggest challenges facing the U.S. judiciary is the volume of cases flowing through the federal courts. He questioned whether federal court, which should be focused on setting precedent, is truly the proper place for many immigration, Social Security, employment law and other cases. As chief, Easterbrook will assign the writing of opinions in slightly more cases than in the past and in all of the few en banc cases the circuit handles. Historically, Easterbrook’s opinions have won a consensus and he doesn’t dissent often, Fischel said. “The court gets its decisions out very promptly,” said Bill Jentes, a retired Kirkland & Ellis partner who is a University of Chicago colleague. “My prediction is that he will have an important influence on the court in getting things done expeditiously.” While Easterbrook doesn’t expect to be a “leader” of the 7th Circuit, he does hope to help it keep producing opinions as quickly and as efficiently as possible. “A large herd of cats does not have a leader,” Easterbrook said. “You can only lead by example.”

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