Matthew Stiegler Profile picture
Nov 28, 2020 53 tweets 10 min read Read on X
Our darkest time has been his finest hour.

The Chief Judge of the U.S. Court of Appeals for the Third Circuit, D. Brooks Smith, is one of the heroes of this horrible year. That is both deeply ironic and squarely in character.

(A very, very long thread.) 1/
Circuit judges wield real power, but they do so almost entirely out of the public eye. They’re not on TV shouting over the host, or even on twitter hurling zingers. 2/
They speak to the public through dense written opinions deciding individual legal disputes, no different than judges a century ago. 3/
Most circuit judges toil in obscurity, and that’s certainly true of Smith. Outside of the Third Circuit he’s largely unknown, even among my fellow federal-appeals lawyers. To the public at large, he’s anonymous, as free to walk down the street unrecognized as you or me. 4/
It’s mostly forgotten now, but Smith was in the spotlight once. In 2002, he was a federal district judge, the chief judge of the Western District of Pa. Just-elected President George W. Bush nominated him for a seat on the Third Circuit.

All hell broke loose. 5/
Smith was a moderate conservative with an independent streak, same as he is today. But—disastrously misreading the man—national liberal groups led by a group called Community Rights Counsel mobilized against his nomination. 6/
The New York Times ran an editorial entitled, “Reject Judge Brooks Smith.” It expressed “serious concerns” about his rulings, his fairness, and his ethics. It called him “unqualified for the appellate bench.” 7/…
(Hey @nytopinion, now would be a magnificent time to retract it!) 8/
After a bitter Senate fight, Smith was confirmed 64 to 35. 9/…
Pause a moment to imagine what a searing experience that must have been.

Consider how other judges have allowed experiences like that to shape their subsequent judicial careers. 10/
Aside: there’s a curious book about the whole affair, written by Jeffrey Lord, who was friends with Smith and college and who’s now a high-profile Trump toady fired by CNN after tweeting the Nazi salute “Sieg Heil” at a critic. 11/…
Now fast-forward to 2020. Smith is now the Third Circuit’s Chief Judge. One accurate reflection of how widely respected he is on the court is ... 12/
... that his predecessor, Judge Theodore McKee, widely regarded as the court’s most liberal judge, stepped down early as Chief Judge specifically so that Smith could become chief. Extraordinary. 13/…
As I said above, Smith remains a conservative. He's issued some opinions sharply criticized by liberals, like a major pro-government immigration ruling in 2016 that @steve_vladeck called “simply nuts.” 14/…
And Smith voted w the conservatives in two high-profile Third Circuit en banc cases, the Binderup 2nd Am case and the Dennis death-penalty case. But when I analyzed CA3 en banc voting back in 2015, Judge Smith had a relatively liberal record overall. 15/…
But Smith is not defined by ideology.

In my view, Smith is defined by his deep commitment to an idealized, even old-fashioned, conception of what it means to be a judge.

That commitment manifests in a few different ways. 16/
One is collegiality. Smith—like most federal judges, but more so—has a conscious commitment to treating all of his fellow judges with respect. More than that, collegiality for Smith means building warm, human relationships with the other judges. 17/
I heard Smith give a presentation once, a pretty routine do’s-and-don’ts-for-lawyers talk, and a newer judge (Judge Stephanos Bibas) mentioned the court’s great collegiality. Smith jumped in. This was a year and a half ago but it’s the part I remember most vividly. 18/
With feeling in his voice, Smith said his belief in nurturing the court’s collegiality was one he held with “almost religious intensity.” 19/…
Another aspect of Smith’s commitment to this idealized conception of judging is the value he places on judging as public service. 20/
On September 11, 2001, federal courthouses nationwide closed due to concern about follow-up attacks targeting judges. But Smith remained in chambers, on duty. He told his clerks, “I’ll be damned if I am going to let some terrorist run me out of my own courthouse.” 21/
The same impulse was reflected in his response as chief to the COVID pandemic. While the court was forced to modify operations, Smith’s core message to the public was direct: 22/
“The United States Court of Appeals for the Third Circuit is open for business and will fulfill its constitutional and statutory obligations and responsibilities.” 23/
And that perspective was reflected, more controversially, in US v. Raia, an opinion Smith wrote in April rejecting an inmate’s effort to win early release due to COVID risk. 24/…
Smith closed the Raia opinion by acknowledging the danger but observing that “strict compliance” with the governing standard “takes on added—and critical—importance” in the pandemic. ... 25/
Agree w the ruling or not (I don’t), it reflects the value he puts on judges doing their level best in the face of adversity. Service. 26/
Which brings us, finally, to Chief Judge Smith’s defining moment. 27/
Smith’s conception of the role and duty of a federal judge has at its heart, unless I’m very mistaken, an unshakeable commitment to judicial independence and the rule of law. 28/
That commitment may be old-school and hopeful, but it is NOT soft. The federal judiciary will be degraded or tarnished over Smith’s dead body. 29/
This, above all else, is the thing about Smith that my fellow progressives failed so completely to see two decades ago.

(I think about this a lot. Sometimes the well-intentioned consensus is dead wrong, even when it comes to judicial nominees.) 30/
Smith’s bedrock commitment to judicial independence and the rule of law puts him—the once-controversial Bush-II-nominated conservative though he is—irreconcilably at odds with Trumpism. 31/
So it was no coincidence that, back in February, the Third Circuit announced that the theme of its 2020 circuit conference would be judicial independence and the rule of law. 32/…
When the conference was cancelled due to covid, I was mighty sad. My hunch was that Smith planned to use his platform as circuit chief at the conference to send a powerful, defining message. The loss of that opportunity felt tragic. 33/
Over the summer, the court announced plans to change its display in the courthouse lobby from the 1st Am to judicial independence. Again, no coincidence. It felt sad thoigh, knowing how little impact on the nation’s trajectory any exhibits could have. 34/…
Then came the 2020 election litigation. Pennsylvania ended up the key state for the election, and the federal courts in Pennsylvania have been the key forum for the legal fights over it. 35/
A month before the election, Trump filed a big challenge to PA’s election procedures involving poll-watchers & mail-in ballots. The case went to a judge nom'd by Trump, who rejected Trump’s arguments so emphatically that they agreed to a consent order, giving up w no appeal. 36/
In late Oct, a GOP candidate & 4 voters tried again, filing a suit alleging that PA’s election procs were unconstitutional. After a split ruling in dist ct, the plaintiffs appealed to the Third Circuit. The case was Bognet v. Secretary Commonwealth of Pa., decided Nov. 13. 37/
The Bognet panel was Chief Judge Smith, Judge Patty Shwartz, and Judge Anthony Scirica. Smith authored the opinion, an opinion I expect will be remembered as among the most significant of his three-plus decades as a judge. 38
Here's how Bognet began: 39/ ImageImage
The core holding of Bognet was that only the legislature, not private actors, has standing to sue to block ballot counting under specific constitutional provisions. 40/
Bognet was quintessential Smith: no flash, no soapboxing, just deciding the urgent question persuasively, clearly, and unflinchingly.

Appellate judging as judges have aspired to do it since the nation’s founding. 41/
The Third Circuit issued Bognet while a different case, bigger yet, was pending in MDPA. That case, Trump Campaign v. Secretary, was Trump’s centerpiece attack on the 2020 election. 42/
Bognet’s holding had a devastating impact on Trump’s suit pending in MDPA.

After it issued, the district court ruled against Trump in the MDPA suit, and Trump appealed. 43/
[Disclosing here again that I was among the counsel on an amicus brief in this appeal, opposing Trump’s side.] 44/
Trump’s lawyers requested oral argument. I explained in two tweets why I believed the court would decide it without oral argument: 45/


(By now you probably can tell that Smith is who I had in mind when I wrote this) 46/

The Third Circuit decided the appeal yesterday, of course. (Without oral argument.) It was a shattering defeat for Trump, and a resounding victory for the rule of law. 47/
Smith was on the panel, along with Judges Chagares and Bibas. As the ranking judge on the panel, it was Smith’s choice who would author the opinion. I’d guess he thought about shouldering that responsibility himself again, but Smith assigned it to Bibas. 48/
I said above that Smith’s conception of judging is idealistic, but at the same time he’s a canny realist. If he’d authored this opinion too, today we’d probably be all be hearing from Trump’s sycophantic spinners how this was a one-man vendetta. 49/
Instead, the fact that the blow was delivered by a judge nominated by Trump makes it a knockout punch.

This, I feel sure, was not mere happenstance. 50/
Back in 2002, who would have predicted that the judge that liberals had just fought so furiously to block would now be the judge who, as much as any other, held the line against Trump and Trumpism?


Anyone who knew him, that’s who.

Dangit, I meant to include a photo up above. Oh well, here's one. Image
*in college

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More from @MatthewStiegler

Apr 11, 2023
I'm reading @mkonnikova's book The Biggest Bluff. In it, she makes a point about the value of early losing, and it has me thinking about how it applies to appellate lawyering. A little 🧵…
Konnikova is a psychologist who studied under the marshmallow experiment guy. She knew zip about poker, but from von Neumann she got the idea that poker's a good way to understand decisionmaking. So she got a top poker pro, @Erik_Seidel, to mentor her. /2…
So Konnikova's learning poker from scratch, and one of the first lessons she gets from Seidel and another pro, Action Dan Harrington, is the educational value of losing early on. /3
Read 21 tweets
Oct 9, 2021
We don’t know yet if Judge Pryor made an unknowing blunder or a knowing choice. If the former, he should fix it forthrightly and apologize to the public and the judiciary. If the latter, he should resign.
District Judge Corey Maze NDAL, too.…
When you welcome into the chambers of the Chief Judge of a US Court of Appeals a person nationally reported to have written, "I hate black people. Like fuck them all," you do something frightening. It is important that Judge Pryor understand that.
Read 4 tweets
Sep 10, 2021
When Trump nominated James Ho to the 5th Circuit, a remarkable thing happened. To simplify only a little, all the civil rights groups expressed deep concerns, while all the lawyers said he'd be a splendid judge.

If we don't learn anything from that, heaven help us.
Let me show you what I mean. /2
The Leadership Conference expressed "serious concerns" about his "troubling record of taking conservative legal policy positions" and predicted he'd be a "consistent and reliable vote against civil and human rights litigants." /3…
Read 8 tweets
Apr 14, 2021
As a young appellate lawyer, I got the idea that one must keep one's hands on the lectern during oral arguments.

I don't remember where I got that idea, but it's fairly common advice. The idea is that OA is formal and gesturing is too casual and can be distracting. 1/
Hands dutifully on podium, my next argument or two stunk.

I'd be at the lectern giving my argument, and the voice in my head listening to myself was shouting, "hey idiot, stop the deadly monotone!" and I couldn't. I had no idea why. Nerves? It was strange and unsettling. 2/
Then I read a book called The Articulate Advocate, by Brian Johnson and Marsha Hunter. Drawing on a robust body of scientific research, they argue that gesturing with your hands and arms is important for effective communication. 3/
Read 9 tweets
Mar 8, 2021
1. Progressives are waking up to the importance of younger nominees for federal judges.

But one reason why it's so important hasn't gotten enough attention yet: circuit chief judgeships.
2. Circuit chief judges wield real power. Their control of opinion assignments and administrative control make them the most powerful non-Scotus federal judges. (@marinklevy and Judge Newman have an article on the way in @PennLRev on the office of the chief judge.)
3. Who becomes circuit chief is complicated, but the key part is that you can't become chief once you turn 65.

In practice, this means that younger nominees are far more likely to become chief than older ones.
Read 10 tweets
Feb 23, 2021
1. Some legal-writing advice meant esp for first-gen law students.

College taught me that the key to good writing was originality. 1L-year exams taught me that sounding like a lawyer was about spotting every issue.

To become a good legal writer, I had to unlearn both lessons.
2. Good legal writing isn't about coming up with clever new ideas or expressing them in a unique new way. And it's nothing at all like an issue-spotting final exam.

Good legal writing is about clarity.
3. Once you figure out what your most important points are, your job—your only job, more or less—is to state them as clearly as possible.
Read 5 tweets

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