Legal folklore has it that judges arrive at their decisions only by weighing the law, looking at what other judges did in similar cases and by consulting the legislative history to see what lawmakers had in mind.
But the reality is quite different, said U.S. Court of Appeals Judge Patricia M. Wald in a recent speech in which she offered a rare glimpse into the way the robed crowd thinks.
"We delude ourselves if we believe that decisions are made solely on the basis of clear judicial precedents and legislative intentions," Wald told a meeting of the Virginia Women Attorneys Association. No two cases are exactly alike, Wald said, which means there's always room for judges to stray from precedent and reach a new result.
As for scrutinizing the intent of Congress, Wald said "Legislative history has been described by a colleague of mine as 'Looking out over a crowd of people and picking out your friends.'"
"Candid appellate judges will tell you that an advocate's most crucial task is to convince" judges that what happened in a trial court or federal agency was or was not fair, Wald said.
The best lawyers, she said, are able to show judges "which interpretations of statutes or case law can and yes, should be advocated as law."
That is where intuition, instinct and life experiences come into play in fashioning arguments, she said, and that's where women lawyers and judges, by using what she called " 'intuitive' insights from our lives as women" can "bring special insights and experiences" to the legal world.
Wald cautioned that some women lawyers try too hard to be like men lawyers. "It will be no victory if women win their place in the halls of justice by mimicking male experience and values," abandoning their own instincts, she said.
But she also cautioned against overzealous advocates who bring "foolish discrimination suits based on a nodding glance at the law . . . and without any tough analysis of whether any real discrimination that women care about is taking place."
"Not only do such suits lose, but they badly dilute women's capital in the courts," Wald said.
Update for fitness freaks: "It was tough. It was hard. It was hard as hell," says Arlington lawyer Benjamin Kendrick of his recent effort in the Budweiser Light "Ironman Triathlon," a torturous combination of rough water swimming (2.4 miles), bicycling (112 miles) and a marathon (26.2 miles).
Kendrick, who finished the race--held in Hawaii on Oct. 9--in 13 hours and a couple of minutes, in the front half of a crowd of about 900, says his feet cramped up shortly into his swim and that he faced 70 mph head winds on his bike. "It was just disgusting. It was terrible."
In the marathon, Kendrick said he "hit the wall" at 21 miles and had to walk for two and a half miles before he could run again. After he crossed the finish line, Kendrick said he was massaged for 90 minutes by three people, had dinner and went to bed early.
As hard, disgusting and terrible as it all was, Kendrick, in the spirit of the truly committed, says he's already planning to do it again next year. "It's a hell of a race. It's fantastic," he says.
For less intense fitness buffs: Jim Davey, clerk of the U.S. District Court, planned to run in yesterday's New York marathon. Davey, 47, ran the Boston marathon in 1979 at about three hours and 35 minutes, which he said, "ain't bad for an old man."
Meanwhile, D.C. Bar president Jake Stein, 57, plans to run in the Nov. 7 Marine Marathon in Washington. Stein, by the way, is said to favor long pants when he takes to the track.
Sen. John Warner (R-VA.) is looking for candidates for a seat on the 4th U.S. Circuit Court of Appeals held by Judge John D. Butzner Jr., who plans to take the semi-retired status of a senior judge on Nov. 1.
Butzner, 65, an appeals court judge for 14 years, had been a federal trial and state court judge before he was nominated by President Johnson to the 10-member appeals court.
Peter T. Meszoly, formerly assistant director and general counsel at the Pennsylvania Avenue Development Corporation is now in the D.C. office of Baltimore's Semmes, Bowen & Semmes. . . . Bruce D. Sokler, formerly an associate with Covington & Burling, and William D. Freedman, formerly with the Federal Communications Commission, are associates here with Boston's Mintz, Levin, Cohn, Glovsky and Popeo. . . . James R. Barnett, formerly with Donald M. Murtha & Associates, and Nik B. Edes, former Labor department deputy undersecretary, are partners in Feder & Gordon, now called Feder, Gordon & Barnett.