She’s rich, powerful, and has friends in the highest of places. And she just leapfrogged over two other candidates with deep ties to the local courts and government to become the newest member of the D.C. Court of Appeals.
Kathryn Oberly will take her seat Jan. 23, bringing to the District’s appellate panel decades of public service and private accomplishment. She’s worked at the Justice Department and in the Solicitor General’s Office. She helped launch Mayer Brown’s appellate litigation practice and has spent nearly two decades in-house at Ernst & Young, rising to vice chair and general counsel of the accounting giant. Legal Times’ sibling publication The National Law Journal once named her one of the 50 most influential women lawyers in the country.
Oberly is also politically connected. She was a top fundraiser for Hillary Clinton during the Democratic presidential primaries and has been a friend of the soon-to-be secretary of state since childhood. In a rare show of star power at such an occasion, Clinton testified on Oberly’s behalf during her Senate confirmation hearing for the Court of Appeals slot. What Oberly doesn’t have is a long background in the D.C. courts—a common feature on the résumés of most Court of Appeals judges.
Six of the nine current members of the court came to the bench through that route, and two others were selected after long stints at Washington law firms. “Historically most of the nominees to the D.C. Court of Appeals have had close connections to the local courts system,” says Pauline Schneider, who heads Orrick, Herrington & Sutcliffe’s public finance group and is a past president of the D.C. Bar. “What is unusual is the lack of nexus to the D.C. court system itself.”
Since 1994, Oberly has worked most days in New York, where Ernst & Young is based. Her work there has focused on national corporate matters such as personnel, risk management, mergers, and insurance—not the kind of issues that usually bubble to the surface at the Court of Appeals, where criminal and family law generally mix with smaller-scale civil disputes.
Oberly’s ascent has caused some behind-the-scenes grumbling among lawyers and judges, though none would go on record to say they were unhappy with the choice and none questioned her credentials as a lawyer. For her part, Oberly dismisses the criticism about her connections to the court, stating that her ties to the District go back more than 30 years.
She owns a home in the city and knows the federal court system here, having argued appellate cases for the Justice Department as an assistant to the solicitor general in the Reagan administration. She says she is the product of a nonpartisan judicial selection process.
“Anyone on the list is a person any president can say has been through a very extensive screening process,” Oberly says.
Given Oberly’s Clinton connections, there’s already chatter among some members of the D.C. appellate bar that Oberly could be on a fast track to the federal bench.
UP THE LADDER
Oberly, 58, is giving up a gold-plated position at Ernst & Young, where she pulled in between $3.7 million and $4.6 million, according to a financial disclosure report she filed as part of her judge application. The wife of Pulitzer Prize-winning journalist Haynes Johnson, Oberly reported a net worth of $17 million. The judgeship pays $179,500. “It certainly isn’t a financial reason” to take the position, Oberly says. “I’m fortunate enough to be in a position where I can go back to public service.”
Oberly comes from the same Chicago suburb as Clinton, Park Ridge, where the two attended the same Sunday School class at First Methodist Church. Oberly says her bond with Clinton stems from, among other things, working in jobs where there were few women.
Oberly quickly made a name for herself after graduating from University of Wisconsin law school in 1973. For 12 years, she argued appellate cases, first for the Justice Department’s Land and Natural Resources Division and then as an assistant to Solicitor General Rex Lee. Oberly has argued more than a dozen cases before the Supreme Court.
In 1986, Mayer Brown pulled Oberly and two other lawyers from the Solicitor General’s Office to develop an appellate litigation practice. Oberly became an expert in accountants’ liability. In 1991, she was lured away by a client—Ernst & Young—and became an associate general counsel tasked with strengthening appellate litigation in D.C.
Throughout her career, Oberly has been involved with national legal groups. She was part of the American Bar Association reading group in D.C. that investigated Supreme Court nominees David Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer. She is a member of the American Academy of Appellate Lawyers and a former editor of the ABA’s Appellate Practice Journal.
Since 1994 Oberly has run Ernst & Young’s legal department as its general counsel, spending most of her time in New York supervising a national team of 125 employees, including 41 lawyers.
Colleagues say Oberly is a very hands-on, aggressive lawyer. “Kathryn wants you to have the answers to the questions that she will see in any issue before she raises those questions,” Ernst & Young senior deputy general counsel Robert Cohen says.
Volunteering for Clinton, Oberly says, marked the first time she jumped deep into a political campaign. Oberly made calls from her home in the District and from Clinton’s headquarters in Arlington, Va. She volunteered in Iowa, New Hampshire, and South Carolina.
On Aug. 18, the Chicago Tribune published an op-ed written by Oberly in which she described how she grieved after Clinton’s loss in the primaries. In the essay, Oberly chided the “questionable legality” of military commissions at Guantánamo Bay and declared politicization has “tragically corrupted” the Justice Department—swipes at the administration that weeks later would nominate her for a judgeship.
A JUDGMENT CALL
When Judge Michael Farrell announced he was retiring after nearly 20 years on the Court of Appeals, 13 lawyers applied for the slot. One of those who applied was D.C. Superior Court Judge Neal Kravitz, who was a finalist for a D.C. Court of Appeals vacancy in 2006. Kravitz, who has served on the bench since 1998, declined to comment.
In D.C., where even local judges are selected by the president and confirmed by the Senate, a seven-member Judicial Nomination Commission reviews applicants and sends three names to the White House. In an effort to keep politics out of the process, there are several qualifying requirements. Candidates must be D.C. residents, active members of the D.C.
Bar, and actively practicing law—or teaching law—in the District in the five years preceding the vacancy. The requirements, along with the salary, usually mean lawyers from the government, local bar, or the court system get the nod.
When it comes to appellate slots, Superior Court judges are well represented. Two of the four judges who joined the bench since 2005 were pulled from Superior Court. Chief Judge Eric Washington rose through the ranks of Superior Court.
Oberly says she read about the vacancy in the May issue of the D.C. Bar’s e-brief. Ever since clerking for the late Chief Judge Donald Lay of the U.S. Court of Appeals for the 8th Circuit, Oberly says she has thought about taking the bench.
She also had an eye on the future. Ernst & Young’s mandatory retirement policy would force her to step down in 2010 at age 60. Mandatory retirement at the D.C. Court of Appeals is 74.
On Aug. 22, Oberly was among the three names the nominations commission sent to the White House. The other candidates: Walter Smith Jr. and Corinne Beckwith. Smith, 61, a former Hogan & Hartson partner and former deputy corporation counsel for the District, manages a team of pro bono lawyers at the D.C. Appleseed Center for Law and Justice. It was the second time he applied. Beckwith, a first-time applicant, is a 45-year-old lawyer in the appellate division of the Public Defender Service, where she has worked since 1999. Smith and Beckwith declined to comment.
One commission member, who spoke on condition of anonymity, acknowledges hearing criticism about the Oberly recommendation—specifically that she did not share the other candidates’ familiarity with the local courts.
Current and former commission members say the five-year practice requirement, meant to ensure some familiarity with local court issues and procedure, is not set in stone and that the bench should be opened up to lawyers who bring a wide range of experience. “We haven’t interpreted that as practicing in our courts, the local courts. We’ve always looked for people who are active in the practice of law, still agile, still fresh, still engaged, still learning, still developing their skills,” says former commission chairwoman Patricia Worthy, a Howard University law professor. “That’s more important than where they are practicing.”
In an e-mail to Legal Times, the commission chairman, Judge Emmet Sullivan of the U.S. District for the District of Columbia, said “no one has expressed negative feedback or ‘grumbled’ to me on this issue.”
On Sept. 26, President George W. Bush nominated Oberly. Associate White House counsel Scott Coffina, who participated in the nomination process, declined to comment.
ROLLING UP THE SLEEVES
Oberly says she only enlisted Clinton’s help at the end of the process. “I don’t believe in any way I was either selected by the JNC or by this White House because of some effort on her part,” Oberly says. Clinton was “more than happy” to introduce Oberly on the Hill, says Clinton spokesman Philippe Reines. Reines does not recall Clinton ever speaking for a nominee to a local D.C. court. At Oberly’s Nov. 17 confirmation hearing, Clinton spent a little more than three minutes introducing Oberly to the committee.
One question came after the hearing from Sen. Tom Coburn (R-Okla.), who asked in a letter why Oberly omitted Clinton fundraising activity on her questionnaire, where Oberly declared she was a volunteer with no official title. Oberly wrote in response that “volunteer” incorporates a host of activities, including fundraising. She said her questionnaire answer was “accurate and offered in good faith to the committee.”
Mayer Brown partner Andrew Frey, a longtime Oberly friend and former colleague, says Oberly “is somebody who has no ideological axes to grind one way or the other.”
Still, it’s a big change to put aside politics now that she is back in the public sector. “There was some trade-off,” Oberly says. “But there are different ways to contribute to the community.”
Oberly recognizes another challenge: freshening up on criminal law, which has on average made up 43 percent of the D.C. Court of Appeals’ docket since 2003. “You’re going to have a lot of homework to do, I think, in the beginning,” Sen. George Voinovich (R-Ohio) said at the confirmation hearing.
“That’s true,” Oberly responded.
Mike Scarcella can be contacted at email@example.com.