U.S. District Judge William Orrick III, Northern District of California (Jason Doiy / The Recorder)
SAN FRANCISCO — On one of the first days of a high-stakes antitrust trial, a cellphone rang out in the courtroom. Lawyers and observers nervously checked their pockets and purses. Eventually, they looked to U.S. District Judge William Orrick III.
“Does anybody have that attractive sound? If so, would you take it out of the courtroom, please?” he asked.
It was a moment that revealed a great deal about how the second-generation federal judge wields authority. In his early months on the job, Orrick III has shown a willingness to forgive infractions that his father, the late judge William Orrick Jr., would have castigated, lawyers say.
Orrick Jr., who presided in the Northern District of California from 1974 to 2002, was famous for dressing down lawyers who arrived late, appeared unprepared or otherwise disrespected his courtroom. Orrick III brings a calm and cheerful presence to his father’s old seat.
It is more than a story of a son breaking from the ways of his father. The divergent temperaments of William Horsley Orrick Jr. and William Horsley Orrick III have gotten court watchers talking about a generational shift in judicial demeanor that has taken place on the Bay Area’s federal bench and in many courts across the country.
“There is a sense that the dinosaurs who once roamed the earth pounding their desks and screaming at lawyers are gone,” said U.S. Magistrate Judge Paul Grewal, who sits in San Jose.
Social evolution explains much of the shift—standards of decorum have slackened inside and outside the courtroom. What’s more, having greater numbers of women and minorities join the judiciary has introduced new approaches for controlling a courtroom and commanding respect.
Today’s judges also weather considerable pressure before they ever take the bench. Judicial vetting has intensified, as has the political warfare the candidates encounter when their nominations are taken up in Washington. The dynamics clearly favor candidates who are agreeable, well-connected and haven’t made enemies while building their careers. They may also breed a judge who is more restrained.
“The arduous path that many of our judges take to the bench may encourage them to be a little more cautious in their thinking and in their approach,” said Nanci Clarence of Clarence Dyer & Cohen. “I hope that life tenure gives some of these very brilliant and talented and wise people the comfort to think big while they’re on the bench.”
For his part, Orrick III objects to being held up as a foil to his father.
“I have to say, I’m completely tired of listening to people compare our personalities,” Orrick III said during an interview in his chambers. “I think they miss most of who my father was.”
ALL IN THE FAMILY
Orrick III wears a robe he inherited from his father. But the two men aren’t exactly cut from the same cloth.
U.S. District Chief Judge Claudia Wilken made that point gently at his investiture ceremony in August.
“Our new Judge Orrick’s personality is not much like his dad’s,” Wilken began, interrupted by knowing laughter from the crowd. “But his smile is exactly the same.”
Many veteran litigators carry tales of their appearances before the late judge like badges of honor. Thomas Nolan, for one, was once interrupted in the middle of his closing argument by the judge, who told the Palo Alto defense lawyer he had heard enough.
Like his son, Orrick Jr. was born into the legal profession. He began his career at the firm founded by his father, now known as Orrick, Herrington & Sutcliffe, and took a seat on the Northern District bench after serving as assistant U.S. attorney general of the Civil Division in the Kennedy administration. He built a legacy of bold judgments in cases ranging from the sentencing of Patricia Hearst to overcrowding in the county jail. He made waves in 1992 with a declaration that San Francisco’s antipanhandling ordinance violated free speech protections.
But the judge was also known for a quick temper. Former clerk Evan Lee, who is now a professor of law at UC-Hastings, said Orrick Jr. saw federal court as the pinnacle of the legal profession, and he wanted lawyers who appeared before him to rise to the occasion.
“You couldn’t get in trouble with him if he really was convinced that you were doing your best,” Lee said.
Other times, the judge simply got worked up, Lee said. Nonchalance irked him.
“You could say he was old school,” Lee said.
Clarence, who appeared before the late Orrick scores of times, said the judge’s sharp exterior was coupled with deep erudition. “I was too young to understand that there was a gentle wisdom that made him a great judge,” she said. “I was too busy fighting my fights.”
Orrick III always stops to look up at his father’s portrait when he is in the ceremonial courtroom. His father’s memory has also hung over him in other ways. The “original” Judge Orrick set the precedent for his son’s first major test—a bench trial in the Justice Department’s challenge to the merger of two little-known software companies.
Lawyers defending the merger at Wilson Sonsini Goodrich & Rosati reminded Orrick III several times of his father’s refusal to meddle with the market in United States v. Syufy Enterprises, a 1980s antitrust trial over a series of movie theater acquisitions in Las Vegas. But Orrick III went his own way, handing antitrust enforcers a win.
Orrick III came to the bench with a litigator’s vantage. He spent more than two decades as a lawyer at Coblentz, Patch, Duffy & Bass and also served a stint in the Obama administration as an official in the Justice Department’s Civil Division.
His father taught him few explicit lessons about being a judge, he noted. “I wish all the time I could talk to my father,” he said, “which is not to say that I would approach an issue in the same way.”
California senators Barbara Boxer and Dianne Feinstein turn to vetting committees made up of local lawyers for guidance as they select potential judges for White House consideration. With layers of due diligence, rigorous interviews and background checks, it’s far more than a popularity contest. But a candidate known to have a short fuse would be hard-pressed to win the group’s endorsement.
“If somebody is going to be a bully on the bench, I think that’s a personality that we would not want to be recommending,” said Louise Renne, the former San Francisco city attorney who chairs Feinstein’s vetting committee.
The president’s picks face another test in Washington, where the politics of confirmation have reached a fever pitch. Orrick III’s handling of immigration cases for the Obama administration stirred protests from Republicans, and he was confirmed by a 56-41 vote after a nearly yearlong wait.
Such confirmation sagas influence which attorneys raise their hands for judicial vacancies and spell trouble for candidates with activist records, lawyers say. That too may contribute to a crop of judges with a softer touch.
At the same time, the pool of prospective judges has widened considerably by other measures. In the Northern District, a bench once inhabited almost entirely by white men now includes more women and ethnic and racial minorities. The diversity of backgrounds and life experiences now represented on the court has expanded the models for judicial demeanor, lawyers and judges say.
“With the attorneys coming through now, there’s a lot more diversity,” said U.S. District Judge Thelton Henderson, who was the Northern District’s first black chief judge. “It makes for a different court.”
The people reporting to the judges have changed a great deal, too. With more pro se litigants appearing in court, Orrick III says a new strain of thinking has emerged since his father’s days on the bench.
There’s a sense that “in addition to being objectively fair and right, it is also important to be subjectively fair—to make sure that the people who come before you realize that they are being respected and heard,” he said.
Henderson said he strives to afford that experience to litigants who appear before him. “Sometimes, even when I rule against them, I see them walk out with a bounce in their step,” he said.
There are practical considerations, too: A temper tantrum could haunt a judge if a journalist is documenting the episode in real time on Twitter. The heightened use of social media that has become de rigueur for journalists gives judges added incentive to keep their cool, Magistrate Judge Grewal said.
“You don’t have the luxury or freedom of bad behavior,” he said.
‘JURISTS BEFORE WHOM ONE TREMBLED’
Compassion, humility and temperament vary among judges of any generation.
“There was no single style then or now for that matter,” U.S. District Judge William Alsup wrote in an email.
Still, lawyers who came of age in the 1960s and 1970s may simply regard the judicial role—and power—differently than their predecessors.
“That kind of authoritarian style just wasn’t something we were comfortable with,” said U.S. District Judge Jeremy Fogel, who spent more than a decade on the Bay Area’s federal bench and is now on leave at the Federal Judicial Center.
Fogel says that he and many of his peers seem to apply the force of their office more selectively.
“The old school was firm about everything—firm about the merits of cases and also firm about, ‘Counselor, you’re a minute late, that’s going to be $50,’” he said.
He shares a sense that judges who practiced in the pricklier style of years past may also have been more willing to take a stand in tough cases, noting that judges of that generation were ushered in before calls for judicial restraint. “There were more judges in those days who weren’t afraid to be outliers,” Fogel said.
Speaking at Orrick’s induction, Coblentz partner Jonathan Bass described a progression from “jurists before whom one trembled” like Orrick Jr. to champions of diversity like Henderson and retired federal judge Marilyn Hall Patel. He also tipped his hat to the current, some would say gentler, court.
“A generation or two from now, I expect that our successors will look back on the members of this court,” Bass said, “and recall the giants who once strolled these halls.”
In an interview, Bass said he suspects that newly minted associates fear the bench less than he did as a young lawyer. He hopes they don’t get too comfortable.
“It’s probably the case that a given judge in the Northern District is less likely to take a bite out of you for some minor infraction,” he said. “But at the end of the day, the stakes are very much the same.”
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