On July 16 — his 70th birthday — Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia will pass the gavel to a successor. Appointed by President Reagan in 1987, Lamberth, well known for his colorful written opinions and no-nonsense demeanor, is taking senior status. He's served as chief of the trial court for five years.
Lamberth spoke with The National Law Journal about a range of topics, from his leadership of the court and his regrets to the emerging controversy over whether the Foreign Intelligence Surveillance Court, which he led from 1995 to 2002, blindly acquiesces to requests from government lawyers.
"I gave the first speech of any judge of the FISA court in public," he said. "I spoke to the American Bar Association national security law section and I said that anybody who knows me and knows how I handle government litigation knows that Chief Justice Rehnquist did not put me on the FISA court to be a rubber stamp."
In the interview, Lamberth addressed his recent — and rare — public apology over missteps that kept public records hidden in the high-profile prosecution of Stephen Kim in a national security leak case. And Lamberth assesses his court-ordered removal from the Elouise Cobell Indian trust case — the suit that turned into one of the largest-ever class action settlements in U.S. Justice Department history.
Lamberth, who will be succeeded by Judge Richard Roberts as chief, also talked about what he's looking forward to doing once he has a little more free time. Here's a hint: a lot more of the same for this Texas native who loves to travel.
The remarks below have been edited for length and clarity.
The National Law Journal: You've been chief judge since 2008. Can you start by talking about what you've accomplished since then and what you're most proud of?
Royce Lamberth: Certainly, the first year, and more than a year, was really spent virtually full-time on Guantánamo [Bay habeas cases]. We had some nervousness about whether we were doing this the right way until we finally got our first opinion out of the court of appeals blessing the way we had done it.
When the Supreme Court refused to review that opinion of the court of appeals, we realized we're in perfect shape, because we're going to decide everything here and the Supreme Court is not going to touch it and we just have to satisfy the [U.S. Court of Appeals for the] D.C. Circuit. And we've been able to do that. The cases still rock along in some senses, but the load is much less now. Beyond Guantánamo, I think the thing that I've been most proud of as chief judge is working really hard to make us more collegial with the judges of the court of appeals.
NLJ: Why would that be important?
Lamberth: I think the administration of justice looks like it's smoother and better when you don't have all the discord of vitriolic dissents. Judges will always, on controversial issues, have differing opinions, but there's no real reason that the opinions have to attack each other in the way that sometimes they slip and do in the Supreme Court. And that had been known to happen here and it really is exceedingly rare here now.
Judges of the court of appeals are much more sensitive now about noting, for example, that they're reversing on an issue that was never presented to or ruled on by the district court. District judges appreciate that, so they don't look like they're complete nincompoops. Just little things like that don't take a lot of effort and yet they have a big payoff.
NLJ: Is there anything you had hoped to do that you weren't able to do?
Lamberth: At the end of my tenure, I had this incident where I had to fall on my sword about our making these mistakes in the clerk's office about sealed and unsealed records. It turns out to be a more difficult and systemic problem than I had first anticipated, so I have asked the new chief judge to leave me in charge of the project. I'm going to get that cured and solved and ultimately explain to the public how I've corrected a number of errors that have been made.
NLJ: Have you found that the reason that happened was something attributable to court leadership or was it something more localized within the clerk's office?
Lamberth: Notions of quality control that I understood and that actually the clerk of court understood turned out to be ill-founded. For example, in docketing a matter, once you docket it, then you would give it to another employee to make sure it was docketed correctly. They had built up a procedure in the clerk's office where if a supervisor docketed it, it was just presumed to be correct and therefore there was no quality control.
Obviously, supervisors can make mistakes as well as anyone else — and obviously did, in this particular instance. So there's some failure that we didn't recognize that supervisors weren't getting the kind of supervision that they needed, as well.
NLJ: Why did you decide to issue a public apology for that in the way that you did?
Lamberth: I think when a court does something as improper as that was, courts should just own up to what they did, admit what they did and say they're going to correct it. I think that's the way government should do its business.
Our error was egregious because it was in a high-publicity matter, but a worse error would be to try to cover it up. What you should do is just beat your breast and say: 'Mea culpa, mea culpa. We did it, I'm sorry, I'll make sure it never happens again.' If the government did a lot more of that, we'd have a lot better government.
NLJ: Another major issue facing the court while you've been chief recently is budget cuts and sequestration. Could you talk about the [Administrative Office of the U.S. Courts' (A.O.)] handling of this nationally and what your perception of that has been?
Lamberth: So much of our budget is personnel. We have some uncontrollable costs in terms of our facilities, the rent we have to pay [to the U.S. General Services Administration], but most of our cost is personnel. And so, if we're freezing, we're basically having to freeze personnel. We were getting good guidance, I felt like, all throughout that from the A.O. The one thing I didn't pay enough attention to, I think in retrospect, was the impact of the budget cut on the public defenders, because they're a separate line item and we can't really move money from other accounts in the judiciary to that line item. I think the public defenders and that part of the A.O. that represents the public defenders sort of blindly — they won't like my saying this — I think they sort of blindly went along the line of, well, there's a constitutional right to our services so Congress has to fund us. Well, I hate to tell them this, but Congress doesn't have to fund them and they didn't and they won't. We're going to be extremely hard-pressed in the 2014 budget both for public defenders and [Criminal Justice Act] payments. Unless Congress decides to appropriate more money in that area, I don't see any relief at all.
NLJ: Another big topic in the news lately is the Foreign Intelligence Surveillance Court, which you served on. There's been criticism that the court has served as a rubber stamp for the executive branch, and you've pushed back against that publicly. Is that still a belief you maintain?
Lamberth: I think the charge is totally invalid. The truth of the matter is, that these judges from north and south, east and west, wide variety of backgrounds of judges that have served on the FISA court, are approving these surveillances because they're the kinds of surveillances we should be doing for the good of our country and to protect our country. They're very well-scrubbed by the time they're presented to the court; they've been to the head of the investigative agency who signed off on them, they've been to the attorney general who signed off on them.
There are some cases where there's some tinkering, some modification, some wording changes, things like that. The FISA court in the past has not gone through and called that a rejection and then they issued a modification or something. They just haven't played those numbers games. Maybe they should — maybe they would look different if they did those kind of things. But they haven't bothered to do that sort of thing in the past.
I think that it's unfortunate that the rap exists about being rubber stamps. It's existed throughout the history of the court. It existed when I was there. Anybody that knows me knows that I'm not anybody's rubber stamp, and I think if you apply the same thing to [presiding FISA court judge and U.S. District Judge Reggie] Walton today, you would not call Judge Walton anybody's rubber stamp, or the other FISA judges who served through time. They weren't put on the court to be rubber stamps for the government. They're put on the court because they're thought to be thoughtful, careful, dedicated individuals who perform a national service of great importance.
NLJ: It sounds like you feel the court does provide an adequate check.
Lamberth: I do — an important check. The value added of the court is that the FISA coverage is not being done for political purposes. There's no wiretapping of Martin Luther King as the FBI did and the intelligence abuses that FISA was intended to stop. An outside judge is not going to authorize that kind of political shenanigan.
I'm not saying that FISA judges are experts in how to catch spies and how to catch terrorists. But they know political shenanigans, and they know how to make sure that's not what we're engaged in. They know how to make sure that what we're doing is really something we need to do to protect our country.
The public, I think, should have some confidence in the kind of wiretapping we're doing. That you have an outside judge who's saying that violation of privacy — and there is one when you're wiretapping — is justified by the greater good that we need that information to figure out how to save our country.
NLJ: You're known for being often more expressive than many other judges, both in what you say and what you write. Why is that?
Lamberth: I guess it's my Texas background — I just say it like I see it. There's a great luxury in life of being appointed to a lifetime job, and no judge has ever been impeached for how they rule in a case. Absent bribery or some criminal conduct, I'm not going to be impeached, so I can really just say what I think is right. I may get reversed on appeal and that doesn't mean I'm not right. It just means they get the last word. Maybe that sounds arrogant but there are a fair number of my cases where I've been reversed where I still know I'm right.
What I get upset about is if it's a point I overlooked or didn't think about or didn't focus on and I get reversed. Then my law clerk and I are going to have quite a little session. But that's not the ordinary case. The ordinary case is, I know exactly what I'm doing and they know exactly what they're doing and they don't agree with me. That's their prerogative because they get to go last. It doesn't make them right.
NLJ: Is there anything you've ever said or written that you now regret?
Lamberth: Oh, sure. I regret the extra wording that I used in the [Cobell v. Salazar Indian trust case] that resulted in the court of appeals removing me from the case. I was shocked that the attorney general asked that I be removed from the case and I was even more shocked that the court of appeals, in the name of case management, would actually remove me.
I regret that I said those extra words that the court of appeals found so offensive and found that it displayed that I could not be fair to the government. I think in many ways I spent a lot of time giving the government every possible chance to explain away what they had done to the Indians. And the final proof is in the pudding — $3.4 billion — as to what the government did to the Indians.
NLJ: Any lessons learned that you'll be passing on to Judge Roberts?
Lamberth: I enjoy meeting lawyers and greeting lawyers and going to receptions with lawyers and talking to lawyers about how we're doing. I'm always soliciting feedback about how we're doing. I think that as a chief judge, that's something you can do very easily.
NLJ: Anything you're looking forward to doing once you take senior status?
Lamberth: I will take a somewhat reduced caseload here but I will still continue to help other judges who are backlogged or unable to go forward.The other big deal is that by taking senior status, I can be a visiting judge. I do expect to visit San Antonio, where I grew up, and sit in San Antonio in January and February. The chief judge there has told me that he's going to set a trial for every day in January and February and that he figures a lot of the lawyers, when they find out it's me, will get scared and settle.
NLJ: Do you expect to have more free time to do other things?
Lamberth: I do expect to have a little more travel time for extended trips, like three weeks, which I couldn't really do too well now.
NLJ: Any hobbies outside the court?
Lamberth: No, I love the court. I love what I'm doing, I love the job. My wife has already told me lunch is not on her, so I expect to come down every day.
NLJ: Anything else you'd like to add?
Lamberth: This is the first time our court has been at full strength in years. It will make the court function more efficiently and make cases move better by not having the kinds of backlogs that we'd been having with the large number of vacancies we've had. The new judges are all off and running, a tremendous asset to the court. I've been extremely pleased with the high quality of the appointees of this president and just delighted with the start they're all off to. I think we're going to do well. And then my replacement is on the horizon.
Contact Zoe Tillman at firstname.lastname@example.org.