Episode 90: M. Margaret McKeown

Judge
Written By Third Boxcar LLC

U.S. Ninth Circuit Court of Appeals Judge

01:02:34
 

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Show Notes

U.S. Ninth Circuit Court of Appeals Judge Margaret McKeown, the first woman partner at Perkins Coie and a White House Fellow, shares her career journey from lawyer to judge, and provides insights into the crafting of a judicial opinion and good legal writing. With host MC Sungaila, she also discusses her book Citizen Justice: The Environmental Legacy of William O. Douglas―Public Advocate and Conservation Champion. Judge McKeown tells the inspiration behind writing it and which skills in writing judicial opinions translated into her work as a book author. There's a lot to learn from this episode. Be inspired by her journey by tuning in.

 
 

About M. Margaret McKeown:

TPP M. Margaret McKeown

Judge McKeown was appointed to the United States Court of Appeals for the Ninth Circuit in 1998. She graduated from Georgetown University Law Center and holds an honorary doctorate from Georgetown University. Before her appointment, Judge McKeown was a partner at Perkins Coie in Seattle and Washington, D.C., and served as a White House Fellow.

Judge McKeown is Chair of the ABA Commission on the 19th Amendment, past President of the Federal Judges Association and former chair of the US Judicial Conference Codes of Conduct Committee. She chairs the Ninth Circuit Workplace Environment Committee and is a member of the National Workplace Conduct Working Group. She is on the Council of the American Law Institute, the Judicial

Advisory Board of the American Society of International Law, the managerial board of the International Association of Women Judges, and the editorial board of Litigation magazine.

Judge McKeown is immediate past chair of the ABA Rule of Law Initiative and a current special advisor. She has lectured throughout the world on international law, human rights law, intellectual property, litigation, ethics, judicial administration, and constitutional law and has participated in numerous rule of law initiatives with judges and lawyers.

Judge McKeown is a member of the American Academy of Arts and Sciences and received the ABA Margaret Brent Women Lawyers of Achievement award, the ABA John Marshall Award, and the Girl Scouts Cool Woman Award, among others.

 

Transcript

Welcome to the show where we chronicle women's journeys to the bench, bar, and beyond and seek to inspire the next generation of women lawyers and women law students. I'm very pleased to have Judge Margaret McKeown from the Ninth Circuit US Court of Appeals. She is a trailblazing first woman partner at Perkins Coie, a very well-regarded judge on the court of appeals, and involved in the judiciary at large and community service. She is a Renaissance woman judge, and also, a published author with a book on Justice William O. Douglas. 

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I'm very pleased to welcome you. Thank you so much for being on the show. 

Thank you for having me and also for doing this to explore all the different things that people in the legal profession do. 

It’s especially for the various areas in which women are making an impact in the law and with their law degrees so we can give some vision to people. They may not think, “I can do that as well.” Also, your path shows that there are so many different things you can do. It's not like, “I'm going to go into the law and do this one thing.” Things evolve. People evolve. Our skills evolve. That's what you show in your career in terms of bench practice and authoring a book at the same time as serving on the bench, which is something. 

First, I wanted to talk about your career on the bench and practice and then we'll turn to the book. The book is an interesting microcosm of all of your experiences beforehand. It also gives us an opportunity to talk about good writing in general. First of all, how did you decide to go to law school and become a lawyer, to begin with? 

Initially, I was headed to medical school. I got a scholarship to go to Cornell for six years. It was three years for undergraduate and three years for medical school, but my father said we could not afford the delta between the scholarship and the cost. I then started exploring other things. I went to work in Washington, DC for a Senator from Wyoming where I grew up. He got me interested in the law. He was not a lawyer, but the whole legislative process was captivating for me. All of a sudden, I began to shift my courses and move from the idea of being a pediatrician to being a lawyer. 

I worked for him for several years. In fact, my work for him paid for my law school because I saved every penny working for him. In my last year of college, I was going to college and working for him almost full-time on constituent issues. I saw a range of all these federal issues. He was a great champion. I began to see this intersection between law and policy. The legislative process was particularly interesting to me. That's how I ended up at Georgetown Law School. 

That’s certainly something that I've heard from Christine Durham who was the Chief Justice of the Utah Supreme court. She talks about that in terms of seeing the law as an opportunity for problem-solving. It's an approach, and writ large at the policy level, something that you can make a difference in. You went to Georgetown. I know you became a White House Fellow at one point as well. I suppose that was during your time at Perkins Coie. 

I am a westerner at heart, so I came back west. I went to Seattle and to Perkins Coie. At that time, we're talking in the ‘70s, there were not many women, if any, at large law firms. I went to Seattle in part because I'm a mountain climber. I grew up landlocked. I wanted mountains, the ocean, and the practice of law. After about four years there, the firm asked me to go back and open their DC office, which I did. I then applied to be a White House Fellow. I became a White House Fellow. I worked both as a special assistant to the secretary of the interior and also at the White House. With the secretary of the interior, we'll come back to that because that later implicated some of my interest in public lands. 

You're an avid outdoors person as well, so you have that interest also. 

What happened was I was a White House Fellow. While I was there, they called to tell me I would be made a partner. It was out of the blue. I wasn't expecting it. When I finished my White House Fellowship through a series of serendipity happenings, I went to Tibet as a member of the first American expedition to a mountain called Mount Shishapangma, which is 26,000-plus feet. I was a good mountain climber, but certainly no professional. 

I went there, and while we were there, three of us were in a very big avalanche. We're fortunate that we survived. After the avalanche, my feeling was I was not going back up that mountain. I was going to go back to Beijing. I was going to go to Hong Kong. I was going to go shopping. I was going to have a chocolate milkshake. That was a life-changing experience to come that close to a death situation, so I didn't care to repeat it. 

I can understand that. Hong Kong shopping or having some tea at the Peninsula is a lot better. 

After many weeks of freeze-dried food, all food looked good. 

Sometimes, some people feel that way when they're very close to a situation where they’re like, “That could have gone either way.” Did you feel like you had some purpose by surviving where you were like, “I better do something I'm still here. It's important.” 

There was a certain part of that where I felt incredible being blessed to survive. It did make me think a lot about trying to make an impact going forward. Certainly, as a young lawyer, you don't think about that a lot, but then this fruition crystallized this notion that I've been given a gift to keep going. I should not fritter that away. 

You said it was pivotal. I was wondering if that was part of the pivotal aspect too. The time that you began at Perkins Coie is interesting. There are some people who have joined the show, and I can think about Christina Byrd on the LA Superior Court. Her experience even in the early ‘80s was that a lot of large firms might interview you in Los Angeles, but they would tell you at the front, “If you're a woman, you only got a couple of years here. You're not likely to make a partner. You can go somewhere else. We're happy to have you for a couple of years, but you're not going to be on the partnership track.” It was shocking to me to enter the legal profession in private practice in the early 1990s. That was not happening. I can imagine in the ‘70s that would be a little bit different. That seems forward-thinking of Perkins Coie. 

In a way, I landed lucky in terms of my personality and their personality. To the firm's credit, it was a meritocracy. That mattered a lot. One of the people there who was managing partner, Tom Alberg, who later went on to do Angel investing in Amazon and many other things believed in a meritocracy. He had a vision. He was willing to support me and other lawyers. 

Asking me to go to DC as a senior associate showed a lot of either naiveté or support. I'm not sure which, but it was an experience where they were not used to having women lawyers who had stayed. There only had been a few. I appreciated that the firm supported me. Early on, I learned that I loved practicing law, but I also love mountain climbing and being in the community. I helped form the statewide Washington women lawyers. I worked a lot with the bar and other things. That gave a different texture to my whole legal practice. 

Litigators are dismayed if they're overworked and they're dismayed when they have no work.

Maybe we can talk about that a little bit because that's important. That's certainly a common theme, especially with those who end up serving on the bench. There's a sense of service to the community in many other ways prior to service to the public on the bench. The common route or thread of that is that people are involved both in community organizations and bar organizations. 

My experience is the same. It enriches things. You're part of a larger community. You need more than the people in your hall or in your particular firm. You are able to use your skills in different ways. How did you think that enriched things? I always want to encourage people to do this as soon as they can and as soon as it makes sense. 

There's such pressure on billable hours and such a premium on time. I felt that I was new to the Seattle community and it was a way to meet people, particularly the women lawyers. I also worked with the YMCA, Girl Scouts, and with many other organizations. To me, it became part of my life, so I didn't distinguish. After I had a baby, I didn't feel like my job was 9:00 AM to 5:00 PM. I felt like it was a whole package. If I needed to be home, I was home, and if I needed to be at the office, I was at the office, but I didn't draw hard lines. 

Many clients even then were communicating via phone, particularly if they were outside of the west coast or they were clients overseas. They didn't know if you were in the office or otherwise as long as their needs are being attended to.   That's even more possible with Zoom, the internet, and other communications. 

When I came back from being a White House Fellow, I was so impressed between working in the executive branch and having worked in the legislative branch with this value of public service. I also was in a situation where I had every lawyer's nightmare. I was gone from the firm for a year and I came back and had a completely empty desk. Litigators are dismayed if they're overworked and they're dismayed when they have no work. 

That’s so true. You wish you could have that happy medium, but every time, it's too much or not enough. 

A trial settles and you panic. I had to figure out, “What will I do now?” I’d been on this mountain planning. I'd been in the federal government. I began to develop the firm's intellectual property practice. At the time, it was not common at all to have an intellectual property practice in a big firm. Now, you can't find a big firm without an intellectual property practice. It was the beginning of the digital wave. 

I did some little clients and I did some clients that turned out to be big clients, some of which were Nintendo, Amazon, and others. Part of it was being open to trying something new and thinking strategically, “What could I do to distinguish myself?” I loved being in court. I wanted to continue to be in court, but I also saw the value of being a counselor. I also loved the idea that we didn't have a lot of established laws. 

It's always good when the interesting stuff can mesh with where you can develop some business as well. Seeing a nascent industry like that is the perfect mix. The industry is on the rise as it turns out, and then as a result, it was like, “We have to have some law that applies to this.” That's also changing, so that's a good vortex or intersection to be at. 

As you think about business development, it was always my view that some people felt being a female was an impediment to business development. I didn't see it that way for female or male lawyers because you are a helpful adjunct to the companies and a necessary one. Sometimes, they didn't wish they would be in litigation or have issues. You're not trying to take over the CEO's job. We are a service industry. I have to remember that, but I saw it as an opportunity. I put together seminars on business development for women and lawyers within the firm. I enjoyed that. One of my mottos at the time is you've got to get out from behind your desk. 

That's something I try to impress on newer lawyers as well. I provide them opportunities to do that where they can sit their interests, different leadership positions, writing, some speaking, or something in bar association so they can get their feet wet with getting out there. It is a long game. It takes time for people to get to know you. If you start doing that when you're up for partner, it's going to be a tough road. 

It is a long game. Some things work and some things don't work. If you can win a big case as one of the things I was fortunate to do, it helps put you on the map both regionally and nationally. It's amazing how one big case can make you an expert in something. Mine was anti-trust and trade secrets, a case I did for the Boeing Company. You also have to think about leveraging those opportunities. The other thing is that I had a group of lawyers that I worked with and particularly one partner with whom I tried a number of cases. I loved the collaborative aspect of practicing law. 

With the appellate work, there are some people who are solo practitioners. I wouldn't enjoy that because I like to discuss things, work things out, and have that collaborative aspect. That would be missing. That gets a better end resolve or better product because of that. I thought your attitude is interesting. You can take it either way. You said, “I finished the White House Fellowship and came back. Our fear is, “There's nothing on the desk. What do I do now?” 

You took a strategic approach to that and said, “I'm not going to get one thing on my desk. I’m going to think about how I am going to position the practice and where the opportunities are.” A lot of these companies were in the Seattle area as well. You can either say, “I’m in trouble. I don't know what I'm going to do,” or you can take the approach you did.  That says a lot about your character and personality. 

You have to do something. Initially, I was willing to take any case from anybody that needed to go to trial or when they needed somebody at the last minute. As I was doing that, I was also trying to think down the road of what I would develop. I didn't want to have zero cases while I sat around and thought about this. That was the other thing. I've never been picky about working with other people, collaborating, and taking cases that are in trouble that need to go to trial. That was also fun. I did a series of cases on sex abuse and the educational setting in schools. That has become a very important topic down the road. I did some volunteer work in that area. It certainly wasn't something I thought I would specialize in, but I learned a lot about it. I learned a lot from the people involved in it. 

Having that wide variety in practice is good. When you're a judge, you have a wide variety of cases too. Being comfortable in moving back and forth between different kinds of areas and getting up to speed quickly on them are good skills for joining the bench later on. I know you enjoyed being a litigator, but you also have this interest in service because of your White House Fellowship and working with a number of congresses. What caused you to think this is a good time to serve on the bench? 

I wasn't thinking about it, but one of the federal judges came to me and said there had been an opening on the Ninth Circuit and my name seemed to be in the mix. Both of those points were news to me because apparently, a judge had taken senior status some years before. That had never gotten filled, and then all of a sudden, there was some activity around it. 

I thought about it and part of it sounded exciting to be in the court of appeals. I loved writing. I loved when I did appeals, but it also seemed daunting. I was like, “Would I be chosen? Would I not be chosen?” Ultimately, I have this little plaque on my desk. It says, “When you're out on the limb, the world is at your feet.” I thought, “That is true. Unless I say want to be considered and I go out on the limb, I'll never know.” 

It's amazing how one big case can make you an expert in something. 

It began as a three-and-a-half-year process, which was not easy, not expected. The politics intervened between the precedent and Congress. I was caught in the middle of that, but ultimately, after three and a half years was confirmed, one of my friends on the bench said, “You'll never look back.” He was right. I didn't know it at the time for sure, but it was a very exciting proposition to go directly from practicing law to being on the bench. I suppose that's true of any judge. You go from something to being a judge. I had not been a trial judge, but I had done a number of trials and had done a lot of trial work. 

The political process is quite daunting. It can be quite challenging during that time, especially in a case like yours where it went on for a long time. 

One of the senators told me politics is a contact sport. I laughed at the time, but as each year went by and I was waiting for my confirmation, I thought he was right about that. You have to have a fair amount of fortitude to make a decision. You don't want to abandon the opportunity to take some slings and arrows that will be thrown at you. I was fortunate to join the Ninth Circuit and an amazing group of colleagues. 

It’s such a great group of judges. I can say having clerked there, I know a few who are very inspiring to me as well. You're known for your judicial writing. I know that you got an award from Green Bag or something like that organization with regard to legal writing. Maybe you can talk about some of the philosophies we were talking about before in terms of how you write your opinions, keeping in mind what you know clients and advocates would like to see first in the opinion. 

First and foremost, litigants and their counsel want to know that they've been given fair consideration of their arguments and their points. In writing an opinion, you want to leave the parties with that feeling. You're also writing for the public and writing precedent because so few cases go to the Supreme Court. When I was in practice, my pet peeve was when I would start reading an opinion, I had no idea how it was going to turn out. Some of those could be my cases that were on appeal, but others could be cases in F.2d, F.3d, and F.4d. I vowed after I got on the bench to have an introductory paragraph that grabs them as to, “Here's what this case is about. Here's the central issue. Here's the nerve center of this case, and here's how it's going to come out.” By laying that groundwork, I’m moving forward in terms of writing. 

Another important aspect of opinion writing is that clients, lawyers, and others want to get an opinion in a reasonable amount of time. It's important to be able to turn opinions around in a reasonable amount of time. Hence, not make it a law review article and maybe not go down every rabbit hole. You have to think about the opinion and how should it get structured. You have to take all of these things I've talked about it and make it come alive in the opinion in terms of listening to the parties, articulating the law, and trying to squeeze it out so what you're holding is not ambiguous. 

We know as lawyers that somebody will also come back to try to drive a truck through that opening. If you meant to do that, that’s fine, but if you didn't, you better close that opening. All of that goes into the strategy of an opinion. I enjoy laying out the evidence the parties have given us, seeing to the extent you can find what the truth in the evidence is, and looking at how the trial court approached it. If it is a summary judgment, it's one thing. If it's been a trial, it's another. 

We’re digging through, for example, the trial transcript and seeing what happened at trial and recognizing that in some ways, we're like archeologists. We’re looking backward at what happened and then putting all that in a package. I enjoy working with the clerks in this process and coming out then with an opinion that I feel has met these objectives, but also an opinion that I can be proud of. I would say that usually, everyone focuses on an opinion that a judge writes, but we also join opinions. Our name is on there. That's important too if you need to concur separately or you need to dissent in some cases. In any event and every case that we hear, our name is on there, whether we write the opinion or not. 

There's a similarity between what you enjoyed in practice with the collaborative aspect because when you're on the court of appeals, you don't get to decide. There's a group of you. There's a panel. You have to have that back and forth. Also, you’re signing onto or concurring, or dissenting from a colleague's opinion. 

I enjoy the [00:25:25] process. You have eleven judges, so navigating all that and coming up with a majority opinion is a challenge, but also very gratifying. Writing in that way and also getting comments from your colleagues is important and insightful. It's like everything. When you sit down and write, you're seeing things from your perspective. It's refreshing to have somebody else say, “What about that? Do you mean this?” I appreciate being on a collaborative court. 

When I'm preparing for an argument, I like to have people who don't know the case as well, but who are smart. They read the briefs and come up with questions for me. After a while, you do realize, “I have my perspective on this case now.” While you can pull out of that and be somewhat objective, having those, “What about that?” questions, you're then like, “I didn't concern that, but that's important. That's something we need to address.” It's helpful, especially in your case because the court is writing precedential opinions in many cases. It's this case that you're deciding, but also so many others, “How is the law going to be received and applied?” You want to make sure that you haven't done something untoward that you didn't intend to do. 

You have to look at the downstream consequences of the opinion and other cases that it would affect. You also have to look at how it would fit into the jurisprudence of the circuit and also be consistent with what the Supreme Court has said if they have said something in the council. 

That leads to a new kind of writing that you're engaged in. It's pretty exciting. Your book is out in some stores, and you could probably pre-order it. It's out in September 2022 in the usual fall round of book publishing. The title is Citizen Justice: The Environmental Legacy of William O. Douglas—Public Advocate and Conservation Champion. How did you come on to this particular topic? In one sense, it seems like a good combination of a lot of things in your background in terms of your interest in nature, the environment, and your judicial background being in the west. There are a lot of things that overlap, but it doesn't necessarily mean you would have written this book. 

That's true. One day, I was out snowshoeing and Grand Teton Park and I saw this homestead. I didn't know that homestead. I was snowshoeing in there and was wondering, “Where am I?” A guy came out, so I said, “Where am I?” He said, “You're at the Murie Ranch.” I said, “I know John Muir.” He said, “It’s Murie. He is a very well-known conservationist and biologist.” I said, “That's interesting.” 

I learned that the chair of the board lived in DC and had been one of my hiking partners years earlier. One thing led to another. Somebody showed me a letter from William O. Douglas to Murie suggesting that they take their homestead and put it into National Historic Park status, which ultimately, that’s what happened. I got curious because these conservationists who did a lot in Alaska and Wyoming seem pretty humble. I was like, “How do they hook up with this Supreme Court Justice?” 

It turned out that when Justice Douglas did a hike on the C&O Canal to save it from being paved over, Olaus Murie, who had been the President of The Wilderness Society, was on the hike with him. That was their friendship. I thought, “That's interesting.” I began to do a little exploring for fun. I did some more exploring and I’d go to the library of Congress where Justice Douglas’ papers are. I have a friend in Denver. I stopped in and looked at the Wilderness Society papers. Pretty soon, it was like a Lark that turned into a book. 

I first did a couple of articles, one for the Supreme Court Journal and one for the Seattle Times magazine. It began to create itself that there was so much material there. While the Murie's are very interesting and important, I realized that this story of Douglas and his conservation advocacy at the same time he was on the Supreme Court was something to be explored. That's how I ended up when somebody said, “You should write a book.” I thought about it. Finally, I sat down, did all the things you need to do, and wrote the book. 

With the way you're describing the initial research and the articles, it is as if you're painting. They're studies. They’re some larger paintings that you're going to end up working on. You saw a larger thread the more you looked at it, and that was worth exploring. 

Douglas was a total pack rat. He kept every scrap of paper and all of his draft opinions. We're all familiar with Sierra Club v. Morton and his famous dissent on the value of nature and whether trees have standing. When you go to the archives, you can see his drafts. You can see his correspondence on that case. I discovered a number of things that hadn't been written before about Sierra Club v. Morton. That's probably the most legal chapter because the other chapters talk about the whole conservation movement and where Douglas fit in. They talk about his politicking with Roosevelt who appointed him, and then later, Kennedy and Johnson, and his lobbying in Congress at the White House. He was an unabashed conservationist. 

Politics is a contact sport. 

He was the first person to use the word environmental as we think of it in the Supreme Court, and that wasn't until the 1970s. In some ways, he was like a Canary in the coal mine. He talked about pollutants. He talked about pesticides. He abhorred the Army Corps of Engineers because they built dams. He raised all these issues. I found it very interesting to figure out how that fits in with his Supreme Court work and how he fits in with this conservation movement, which was then turning into what we call the environmental movement. 

I interviewed a lot of his former clerks and many other people. That, too, was a very fun part of the process. In some ways, as we do on the court, we're looking at documents. I looked at documents all over the country, not only from Douglas but some of his colleagues on the court. I also had the chance to talk to so many people including his wife who is still living and was very gracious, Cathy Douglas. 

That's amazing. I hadn't thought about that part. I think about the writing and the corollaries of the writing that you do as a judge, but there is a lot of research, and it's on-the-ground research. You’re reviewing the documents, but also doing the interviews. You're very well-respected as a judge yourself I wonder whether that allowed you to have more access to people that maybe wouldn't have said yes to the interview. 

It's hard to say. People like to talk. They were interested to tell me about their experience, whether it was with Justice Douglas, Senator Jackson, or Senator Magnuson from Washington. I was even talking to people at the LBJ library, for example. People are interested in the topic. He was well-known for being a civil libertarian. Some of his cases, for example, Griswold v. Connecticut and his privacy case, were well-known. It had been written about by scholars, but less written about this particular aspect. 

He had a couple of what I call models or principles. Number one, he felt that the wilderness was like a sanctuary and it was slowly slipping away. If it were not saved, once lost, it could never be regained. That was one of the things that came through in his work outside the court and on the court. The second theme was always that the constitution was intended to get the government off the backs of the little people and minorities. He got working on some of that in the Roosevelt administration. He was Chair of the Securities and Exchange Commission. 

He had these themes that do resonate. He wrote about 50 books. He wrote very fast. When you see his yellow legal pads, you imagine him dashing off various things. Some people called some of his opinion airplane specials because they imagined he was zipping them off as he was on the airplane. It's great to be able to go back and see drafts of opinions to see how an opinion was shaped to cease the correspondence among the justices. 

For Douglas, although he replaced Brandeis and he came around the time of Felix Frankfurter, he was not friends ultimately with Frankfurter. That was his nemesis, which was odd given how they had both worked in the Roosevelt administration. When Douglas was appointed, he was only 40 years old. He was fourteen years out of law school, which is amazing. 

That's a lot of time to produce a lot of work too. That helps also. The first point that you mentioned was about his sense that we need to do something. There's a sense of urgency that seems to propel that kind of work. 

I wonder whether a Supreme Court justice can have that kind of dual role. Would it be frowned upon? There's a special convening role that the judges can play around certain issues. They’re bringing people together to discuss and work towards some joint effort with regard to issues, and that certainly fits with, his interest. It seems like he went a little bit further beyond that in having a foot in both worlds, both in the executive branch and on the bench. That resonates with your experience in both of those branches and how you came to see that in the story early on. 

I am not going to comment on the Supreme Court. They could comment themselves, but in the book, I raised some of the ethical issues that I saw. That was an angle that I don't think had been written about particularly. I was the chair of the federal ethics committee for a number of years and on the committee for ten years, so I'm attuned to all of that. 

Douglas resisted some of those early efforts to introduce some of these ethical principles. What everyone forgets is that Section 455 applies to both judges and justices and requires us to recuse for both actual and appearance of impropriety. I raised some of that in the book. It was raised elliptically in the Supreme Court. For example, he had been on the Sierra Club board at one time. He had resigned, but he remained working with them. What surprised me is that he had all these protests hikes around the country from Washington State to Maine to Washington, DC to Texas. It was a different era. Also, there wasn't, during most of that time, a Freedom of Information Act. It’s not that it would have applied to the court, but it may have applied to some of the groups and agencies he was working with. 

In terms of the agencies, he would pick out agencies as his number 1, 2, and 3 enemies and then go after them. In one case, he wrote an article in Playboy going after the Army Corps of Engineers. You might “That is one unusual justice to write in Playboy.” He said, “That’s what young men read, and I want to get my message out to everyone.” He also wrote for Good Housekeeping, Ladies’ Home Journal, and National Geographic. It was a wide rage. That was when there were lots of magazines. He wrote for those. He wrote for the Wilderness Society and the Sierra Club as well. Since he was such a fast writer, he was forever doing book manuscripts and working on magazines. 

What surprised me, too, was in interviewing his clerks. They didn't know about the extent of all his activities. He took them hiking on the C&O Canal. By then, it had been saved, but they didn't know why he was flying off to Texas or why he was going to Kentucky to save the Red River Gorge. I thought that was interesting. They certainly knew his philosophy, but they were working day and night at the chambers. On the other hand, he said that his work on the court only took 3 or 4 days a week. That did not endear him to his colleagues, as you might imagine. 

I can understand that perspective. 

I don't think any of us would say that. It’s day and night, seven days a week given our caseload, but we do have some time to think and do other things. For me, this was written primarily during COVID. We quickly transitioned to video hearings, which was not fun for the Ninth Circuit because we had already our YouTube channel. We had all of that. We didn't lose any days of cases at work. 

In deciding what you want to do with your spare time, COVID had us pretty locked down too. We weren't traveling. It was an opportunity to sit down at night, think about the book, and think about how to tell the story. That's what it is. It's a story told not just about Douglas, but a larger construct of what was happening in the United States. What happened when cars became so prominent in cities and in going to national parks? What happened when the wilderness began disappearing? It's all a complete story. 

Douglas is such an unusual justice. He escaped impeachment. He is often remembered for his four wives. He was a very controversial justice, no doubt about it. He also relished that. He was a big dissenter. In about 40% of his dissents, he was the only dissenter to join his opinion. That's pretty remarkable. We think of who are the big dissenters in more contemporary times. Often, people might think, “Justice Scalia often dissent,” but when you look, although Scalia was not on the court quite as long, he still had fewer dissents on a relative basis than Douglas. Douglas was on the court from 1939 until 1975 making him the longest serving justice. He had a lot of time to write some opinions, a lot of dissents, and a lot of articles and books. 

As a judge, you’re writing an opinion for the public and you're writing precedent. 

That's interesting to think about. The court's work did carry on very quickly with COVID, but there was the time from not having to travel to those arguments, which you are doing every month. There is some time there. 

We do spend a fair amount of time traveling. During COVID, nobody's going out to eat. Nobody's taking little vacations. Nobody's going anywhere. My office at home became my own little sanctuary. At one point, they closed the forests, which was a disaster for me. Eventually, they opened the forest, so I could go out and do a little hiking. They also opened the beaches, but initially, even the forest and the beaches were closed. 

In California, I remember the beaches were closed and they were chasing the surfers off. That was hard for those of us who like to be in nature and find that to be a very comforting place to be. 

When all the restrictions were off on going to the forest, it was a happy day for me. I could at least get out on the trail. It doesn’t mean that you’re on the trail that you’re not working. You're still thinking about cases, opinions, and what you need to do. Although you can get into a reverie, which is fantastic, and feel like you're out in this amazing place, it doesn't mean that some of these things are not going through your mind. 

For me, it's always in the back of my mind. I don't realize it necessarily at the time, but it's processing. When you come back, you're like, “I know what to do with this particular problem they have.” It's very useful for that. Did writing the book impact how you look at writing judicial opinions? Did it have an impact back in terms of your legal writing in any way? Is there anything you would change, or were there any techniques in storytelling that you would use that you haven’t before? 

It's somewhat of a different craft when you're trying to tell a story for the general public and not one cabined by legal principles. There are a lot of the same principles. I always wanted to have something to capture the reader's attention. I used a technique, which I'm sure many people have used, and that was to have two quotes at the beginning of each chapter. Some were from Douglas. Some were from the Murie’s. One from Dr. Seuss. There was a variety of quotations to set the stage, and then to get an encapsulating paragraph. 

What I found also was very different from opinion writing is you needed to have some transition between chapters. You can’t just write a chapter and end it. You don't write a chapter and then it says affirmed, reversed, or remanded. It's going to another chapter. That was an interesting process to think about how you can link these into a story. In the same way with opinions, we look at what part of the deposition should we quote or what part of another case. The same is true here. We’re like, “What part do you want to work on?” 

We’re also cutting it down. We do the same with opinions if something seems too long. I kept a running tally once I had the chapters done. I’d be like, “How large are they?” If some are out of whack, I’d be like, “What does that mean?” It's like anything. There are things that seem interesting and important to you, but then you think, “Would anyone else like to read this? Is this interesting to anybody else?” 

I was very happy in the end because when we went out to seek blurbs for the book, I got a positive reaction. I have, for example, Richard Lazarus who's an environmental law and constitutional law professor at Harvard, Linda Greenhouse who is well-known in the New York Times, David Kennedy, a Pulitzer Prize-winning historian, Bill McKibben who is well-known in nature writing, Douglas Brinkley who is also a prize-winning writer on nature and the Roosevelts, etc., and the former head of the Wilderness Society who is a well-known climber and also an author. A range of individuals weighed in, and that was gratifying. 

My hope, in the end, is that people will take it for what it is. It's a story of one justice. It's not a biography. We set the stage, but there are other biographies. Hopefully, there's another big biography to come sometime down the road by Professor Emeritus at Stanford. I think it's an interesting story. It teaches us both the upside and the pitfalls of being a dissenter and a contrarian, and also how that fits with an ethical obligation. To me, as with many things, the timing worked out because the environment is so much in the news. The court is so much in the news, but it sometimes helps to take a look back on what happened in history. I love history. I love non-fiction in terms of my reading. It was a melding of all these things. 

The breadth of those who provided commentary about the book pre-publication shows the breadth of readers that might find it interesting because it covers so many areas. There's an interesting intersection of folks who might find the book of value. As to Douglas, there's a lot written about him, but this particular theme is something that hasn't been extensively covered. 

It's interesting thinking about your thought process or listening to your thought process about how you came to see broader themes in it. I saw parallels between what you're doing on the appellate bench. You're deciding the case in front of you, but you're also looking at the stream of the law. You’re like, “Where does this case fit in it? Where do we want that law to develop?” 

Starting from the letters that you first looked at and then bringing them out, you see so many things in it and so many different aspects to it. You're drawing those out in a way that someone with all of your different interests and experience is able to do so. This is an interesting book. I hope people will take a look at it and read what you've written. Do you think you have another book in you or are you resting? 

It's hard to know. I rattle around in my head with a few ideas, but I had not landed on anything yet. 

You did write this one. It's so exciting when you finally see it. You said, “I saw my book in print in the bookstore.” That’s such a satisfying thing to see when there were so many hours of work put into that. 

We see our opinions in print. They appear in the federal reporters and other places. That is my work. My first priority is the court, but I've always been interested in judicial history. I collect a lot of biographies, particularly of justices and trailblazers in the law. It’s such an interesting area. I love to read, so I'm always reading. You're always learning when you're reading from different authors. 

One of my favorite authors as well is Stegner. He is a beautiful writer. I learned in the process of this book that at one point, he'd been hired by the Department of the Interior to tell the story of things like the parks and other aspects that are under the Department of the Interior. I thought, “That is forward-thinking back then of how one might use a writer.” I find that his writing is beautiful writing. 

You have to look at the downstream consequences of the opinion and other cases that it would affect and how it would fit into the jurisprudence of the circuit and also be consistent with what the Supreme court has said, if they have said something.  

Someone from the Pacific Northwest that I like is appellate William Stafford. He also writes beautifully. Who and what are some of your other favorite authors or books? 

I am very interested in World War II, both fiction and nonfiction. In that regard, I'm interested in Hemingway. He's a very crisp writer. Not everybody loves him, but I love him. Often, I'll go back and read everything. I was in Spain, which caused me to re-read a number of his novels. That's somebody else that I read. When I'm in airports or otherwise, I'll pick up these legal thrillers that people like to write. That's like eating candy. They go in and they go out, but they're fun during the journey as well. 

There are a lot of other things. One of my favorite books was by the gentleman who wrote The Boys in the Boat. He wrote a book called Facing the Mountain, which is about Japanese internment. More specifically, he was using a small cast of characters both from Hawaii and from the mainland who went into the Military and fought in some incredible battles. He wheezed this fabric of a story that keeps you captivated. I'm always on the lookout for the next one of those. I'll throw out one other one that I love, which is A Gentlemen in Moscow. 

That's good too. I liked that one also. The Boys in the Boat, I love that. That has such great storytelling. I didn't realize he had written the other book you mentioned. 

That came out in 2021. I'm always interested when people tell me, “I'm reading this,” or, “Check this out.” I keep a running list of books because it seems like I'm reading all the time. 

I have a very large library as well. I also like short stories. Nancy Packer, who was a writing instructor at Stanford, only wrote two books of short stories in her life because she was doing a lot of teaching. Short stories are interesting. It's a different craft. It has some of that similarities with Hemingway. It has to be crisp, in a way, in your storytelling. She’s great because she was teaching so many other people that she, herself, didn't write that much, but what she wrote was good. 

The other Stanford professor I also like reading is Adam Johnson. He has written about this untold story of escapees from Korea going into China. He’s also a beautiful writer. There are so many. I learned through my experience that this whole book publishing world has changed so dramatically. The number of publishers has shrunk. The number of bookstores has shrunk. 

We have a fantastic bookstore here in La Jolla called Warwick's. In Seattle, we have Elliott Bay. In Portland, we have Powell’s Books. We Politics and Prose in DC. There are still some fantastic bookstores, but that world has changed. I also read my briefs primarily digitally. I read most of my books digitally because I'm often traveling. We often talk about, “Does that change how you see things?” The unfortunate part of digital books is if you have a lot of pictures, you don't get that same thrill. I was fortunate in my book. There are about 25 photos. Part of the fun, too, was finding and getting permission to use those photos because they do add to the texture. I love books with maps. 

It’s helpful, especially when you're talking about historical novels and books. It's so helpful because it puts you in the fleet. Publishing has changed so significantly that independently publishing or having your own press in many ways is a real, viable option. Since you can distribute it so many different ways, often, you have to do your own book promotion. The publishers are not interested in doing that so much anymore. 

A lot of people are going to that independent publishing route more than they would have been in the past. In your case, you have the university press, which is one of the last few gems. There are a few independent publishers themselves that are well-regarded, like Red Hand Press in LA and others. They’re disappearing in that regard. I like that you appreciate all the bookstores you mentioned and think that they're very special. I hope that some of those like Powell’s remain. I have a few lightning round questions to close. We talked about your favorite authors. What talent would you most like to have, but don't have? 

That is tough. The talent I'd love to be able to have is if I could magically wake up and be able to deliver grace, forgiveness, and happiness to people. 

That would be nice. The whole world would benefit from that. That would be good. Who is your hero in real life? 

Justice Ginsburg was a hero in terms of what she did in the law. She did that in combination with strategy, raising her family, and then going to court. I was fortunate to know her for much of her court life. When I was in law school, I wrote to her at the suggestion of a professor. She was a professor at the time. I needed information for one of the first-ever sex discrimination courses. There was no handbook or textbook for us, so I wrote to her and she wrote back. I thought that was so gracious of her because I was an unknown law student not from her law school. Over the years, we were fortunate to develop a friendship. We taught together in various locations. I would say she is my real-life hero. 

Jacqueline Schafer is a legal momentum. We've worked together in many cases and we're friends. She was on the show. I learned something. I didn't know that she was one of Justice Ginsburg's students in law school. It was Justice Ginsburg who instilled in her, “There's a women's movement in the law. Here's something important to do,” which she hadn't considered. To think that impact on Jacqueline who's had such a major impact on the law for girls in so many years, that is the outgrowth of Justice then Professor Ginsburg being very encouraging and having that relationship with individual students. 

Speaking of writing, I loved her writing. She did not have a mean pen. She was concise. She had a way to turn a phrase. I also admired her writing. 

That's a good way of describing that. She was certainly strong and strong in her views but wasn't ruthless. It was respectful. For what in life do you feel most grateful? 

I feel grateful for my family. I feel like we're a very blessed unit, and also for my colleagues. 

That comes across. You enjoy your colleagues on the court, which is nice. One of the things is you're selected. Everyone else's independently selected. You don't know who you're going to serve with. It’s nice when that's the case and you respect and enjoy your colleagues on the bench. Given the choice of anyone in the world, who would you invite to a dinner party? 

I would invite Gertrude Stein.   

That would be interesting. Here is the last question. What is your motto if you have one? 

My motto is what I shared earlier, and that is the importance of serendipity and taking chances. I go back to my little tile that's on my desk that says, “When you're out on a limb, the world is at your feet.” 

That's a good one. Certainly, you have taken a lot of opportunities that have come your way and have done amazing things. You even continue to do so with your non-judicial writings. You’re a good role model and inspiration to see that. Thank you so much for joining the show and talking about your career and also your new writing career. 

Thank you. Thanks for giving me the opportunity and also for doing this show. This is a new digital option in lieu of reading. Thank you so much. You’ve done a great job with these. 

Thank you so much. I appreciate it. 

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