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Supremely Just: Two Minnesota Chief Judges

 
eP Article: Extra Story Photo

Russell A. Anderson ('68) and James M. Rosenbaum ('69)

 
 

The University of Minnesota counts many distinguished jurists among its alumni. Chiefs among them are Russell A. Anderson ('68) and James M. Rosenbaum ('69). Anderson served 10 years on the Minnesota Supreme Court and retired as Chief Justice in 2008. Rosenbaum, a U.S. District Court judge from 1985 to 2010, served seven years as Chief Judge.

It was not uncommon for the two chiefs to cross paths professionally over the years, including as volunteer members of Law School boards. But rarely did they have one-on-one time to enjoy each other's wit and wisdom, intellect and opinions. Until they had both retired.

In 2008 I interviewed them individually for separate feature stories in Minnesota Law & Politics (Anderson in the August/September issue and Rosenbaum in the October/November issue). On September 24, 2010, in the Law School's Riesenfeld Rare Books Research Center, they interviewed each other.

As they discussed serious judicial issues and bantered about the interview topics, they showed the true colors and concerns of their courts. Sifting through the stack of questions I wrote to seed the conversation, Anderson quipped, "I'm looking for a good one. I get to choose the question. I'm an appellate judge." Rosenbaum rebutted, "I'm a trial judge. I just take them in the order they come." (Freed from the rules of order, Rosenbaum did dismiss at least one question.)

Tackling Technology Sans Accoutrements

As they establish solo offices—Anderson at home in Hopkins and Rosenbaum at JAMS in Minneapolis—they joke about their foibles with new cell phones and computers. Nonetheless, both led transformations of their courts' technological systems. Anderson got wired in when, as a new member of the Supreme Court, he was appointed liaison to the state court system's technology committee. He went on to lead implementation of an accessible, accurate courtwide information system. Likewise, Rosenbaum drew technology duty when he was the new kid on the block and later led the building of the state-of-the-art federal court building in Minneapolis.

ANDERSON: I'm on my own now and think, "Where's my IT department?"

ROSENBAUM: My cubby is six foot by six foot, and people say, "How do you feel about that?" As Chief Justice and Chief Judge, we were splendidly accoutered. It was always nice, but it was never a big deal. So far the biggest thing I miss is a geek—the ability to pick up a phone and say, "Can you help me?" Here I can't even make the phone work!

ANDERSON: The technology that you brought to the federal court is a wonderful legacy.

ROSENBAUM: A week into my career on the court, I got the case of Mead v. West. Everybody else on our court had been to West's plant and recused. That led me to an interest in technology and in law and information. When it came to building the courthouse, the idea of transmitting a body of information structurally—incorporated into the actual structure of the building—seemed sensible to me. And we built a courthouse where this was integral.

ANDERSON: We were interested in this at the state court level and very much aware of what you were doing. It was a model for the district court judges of the state of Minnesota.

Missing the Work, Rediscovering Friends

Geeks and chambers aside, what the judges really miss is the work and collegial colleagues. At the same time, they welcome the lifting of strictures inherent in a judge's life.

ANDERSON: What do you miss about being a judge?

ROSENBAUM: I was a trial lawyer for 16 years before I became a judge. Until the day I left, when I'd hear someone say "judge," I'd stand up straight and snap my head. And I realized, "Of course, stupid, it's you!" I never really felt that kind of distancing, and so I don't miss that in particular. We both could have stayed on a good deal longer. We both decided there's something other in the world. I took my shot, and it's time to go onto something else.

ANDERSON: I feel much the same. When I went on the appellate bench, we were waiting to go in for the first session, and I joked, "Why don't we give them 15 minutes to try to settle this?" It doesn't work that way at the appellate level!

I was on the bench nearly 26 years, 16 of those as a trial judge. I do miss the work. What I don't miss is the constancy. Sitting in the car waiting for a church service to begin on a Sunday morning, I was reading a brief. That's when my wife, Kristin, told me I needed to get a life.

ROSENBAUM: As you know better than most, I was reading between 400 and 600 pages of stuff a week, which made reading for pleasure and education difficult. I got a Kindle, and on an airplane flight I didn't have to read a brief. I just read a whole book, and it was like heaven.

ANDERSON: At the appellate court you really are isolated, and that tends to be your circle of acquaintances and friends. I miss the collegiality of my colleagues from the trial court and the appellate courts. Good lawyers do not let judges get too familiar. When I went on the bench, I had friends in the trial court; I would say "hello" to them and I could tell immediately that their response was, "Good morning, Judge, and we'll talk about the weather." In the small communities where I sat [Ninth District], if there were Christmas parties and the host was a lawyer in the midst of a trial or about to start a trial, I was very sensitive about my social relations with that attorney. In that setting and at the appellate, there were social events that I chose not to attend.

ROSENBAUM: One of the things that goes along with that is, trial lawyers are great company. They tend to be raconteurs. Lawyers' war stories—you know how much fun that is. But I had the same thing. There were two couples with whom Marilyn and I had New Year's Eve dinner for 17, 18 years. When they were engaged in a very large matter in front of me, for three years we had no contact socially. It's a matter of a certain kind of professionalism and ethics, but it does bite into your life a little bit.

Tough Calls and Hard Choices

During their careers, both judges decided family law cases and sent people to prison. Neither can shake the memories of cases that shook them.

ANDERSON: There is no experience, from a state trial court perspective, like matters of child custody. It's not necessarily intellectually challenging, but it certainly is emotionally challenging and of such significance in the lives of these children. I don't want to wear my emotions on my sleeve here, but I still remember a case some years after I had become a trial judge. At the time, there was a factor in child custody that we would consider the preferences of the children if they were of a certain age. I was interviewing in chambers a 12- and a 14-year-old whose parents both loved them but could not get along or agree on custody. In that very rural setting, where there wasn't much privacy out of chambers, I had to get up and leave chambers because I needed to cry.

ROSENBAUM: It forces Sophie's Choice on children. There's just nobody built for that.

ANDERSON: How about you, Jim?

ROSENBAUM: From the first to the last, I could not do more than two sentencings a week. I found it excruciating. Both of us dealt with large amounts of money, captains of industry, big business, corporate issues … I'd go home and sleep like a baby. When you send somebody away for 25 years, and you're going to shatter whatever life they had on the outside, and you see the breakdown in the family … I found it very difficult. At the end of my judicial career I had a backlog of sentencing. I had to do a lot of them, and I was just a wreck. Some people were really bad people, and there you're doing the community a service by putting them away where they can't hurt anybody. But there's an awful lot of people who don't have anything like the breaks we've gotten in our lives, and that's where I got crossways with the sentencing system, too. I said, "Don't give me a cookbook on this. I've got to work this out."

ANDERSON: There is an anguish to sentencing. I remember when then-Chief Justice Amdahl set up our sentencing guideline system in Minnesota many years ago, I had somewhat the same reaction: What are they attempting to do, telling judges how they should sentence? On reflection I did agree with the underlying rationale of the guidelines, and that is in the law we require most decisions to be based on law and reason, and it is not offensive to require that a decision to deprive a citizen [of liberty]—albeit convicted of a crime—be a reasoned decision. And I think on the state court the guidelines have had somewhat that emphasis. Federal guidelines and state guidelines are two different things, I realize.

ROSENBAUM: First of all, I think mandatory minimums just take away all discretion from the judge. The second area that concerns me is that they're built on the notion that the same event taking place in different places ought to be dealt with the same way. Philosophically, I have no particular problem with that. In practice, the world doesn't always work like that. My favorite example is a kilo of cocaine in south Florida will be a state prosecution and probably a small one. A kilo of cocaine in Thief River Falls is a whole different crime in my view, and those kinds of issues become more complex.

When you think about sentencing someone to jail: food, clothing, shelter and 100% medical. How many jobs are offering that this week? At the same time you impoverish their spouse, their children, and family. What are we doing here? How are we structuring this?

ANDERSON: These are very good questions.

ROSENBAUM: These are hard questions.

ANDERSON: I agree with your comment on mandatory sentencing. It always troubled me that a congressional committee or state legislative committee thought that, before the actual incident that gave rise to the charge and the conviction, they could in their wisdom decide what the sentence should be, when the facts and circumstances, as you suggested, are so completely different.

ROSENBAUM: There develops a relationship, not an intimate relationship, but you know the person who's in front of you either through the plea or through the trial, and then you get a 15- or 20-page, single-spaced report on him or her and the spouse, the children, the issues in their life. And that is what really makes it hard to do the work.

Deciding on Resolution

Curiously—or perhaps predictably—judges who spend their careers ruling on cases take satisfaction in settling disputes, and they don't stop when they "retire."

ANDERSON: What memories remain most satisfying from your work as a judge?

ROSENBAUM: I think it's the really interesting cases, the hard ones, and there are some funny ones. I had a really interesting case involving public housing in Minneapolis. There wound up being almost 30 stakeholders. And we were able to resolve it, really much to the benefit of a lot of people. That's stuff you don't get in the private sector. To have those problems come before you is a rare opportunity and a chance to maybe have an impact on your times and on your community, and that's gratifying.

ANDERSON: I agree. It was very satisfying to be able to resolve disputes. The evolution of the law toward alternative dispute resolution is a good thing. Combat is not the best way to resolve many things. I can recall making every effort to resolve a case of two older people entangled in very complex litigation. It did strike me while presiding at the trial, "They've locked horns like elk in the wilderness. There is not going to be a victor. This is going to be death to both, but they insist on continuing the battle."

ROSENBAUM: They did not know how to untangle themselves. You were a Supreme Court justice. It's your job to make those kinds of decisions. The hard ones are the ones you sit up nights over, and you don't know what the right answer is. I always get a kick out of it when people say, "A bitterly divided Supreme Court, divided 5:4 or Minnesota 3:4." One of the reasons is they're just hard questions.

ANDERSON: Many retired judges go into alternative dispute resolution work. Why?

ROSENBAUM: First of all, it's something that you know. I don't see much of a future for myself, for example, as a pole vaulter or writing the great American novel. One of the reasons they do it is that they are recognized, and you certainly are, as a person of sound judgment who has had experience in resolving difficult questions, dealing with people who are in tense and deeply entrenched situations and need help.

ANDERSON: I agree. If you've been a judge for the length of time you've been a judge and I've been a judge, you bring experience and a skill set to resolving cases that is hard to acquire elsewhere.

In and Out of the Spotlight

While being in the media spotlight or at contretemps with politicians occasionally drew public attention to the chiefs' opinions and actions, much of their work went unnoticed and unsung, especially administration of the court systems.

ROSENBAUM: What do chief justices and chief judges experience that others do not?

ANDERSON: As chief justice at the conferencing of cases, I generally got to give my view last, and it was good. It was good because I got to hear the wisdom of others.

ROSENBAUM: I didn't know if you'd concluded your answer when you said, "I got to speak last, and it was good"!

ANDERSON: In both of those leadership positions you have the responsibility for ultimately making the decision in administrative matters. That is vitally important to keep the courts up and running: seeking funds from the legislature and making certain that our priorities and our goals were appropriate and doable.

ROSENBAUM: You had a particularly important responsibility. The state judiciary was heavily dependent on how you did your work, not just in terms of deciding cases, but you had to have a relationship with the governor and the legislature. It was your job to get the ship properly funded and under some kind of control, and that is lofty and important, and stunningly, one for which neither one of us is trained.

ANDERSON: In fact our training in resolving the cases and moving on to the next doesn't lend itself to acquiring skills to be at the legislature presenting information on the budget. Of course there are many others to help with that.

ROSENBAUM: I much commend you for your work. That is hard work and lobbying and horse-trading is exactly not what judges do. The job of protecting about one-third of the structure of the government was uniquely under your hand. And you did a very good job.

ANDERSON: Well, you're kind.

ROSENBAUM: On the district court we assign everything on a computer, so it's a nice easy way that everybody gets either great cases or lousy ones, and it keeps the judges happy. Somebody said that as chief judge "you're not the first among equals; you're an equal among firsts." I couldn't give anybody a raise, I couldn't improve their office or their conditions. I couldn't change their case load. I couldn't employ their spouse or their kids. How do you run an organization where the organizational structure is flat? It's sort of suasion, discussion … It's an interesting job where everybody understands somebody's got to do it. But if you want to be ineffective as chief judge, start thinking you're the chief judge!

Destinations and Dreams

Topping both judges' dockets is more time for fun—especially international travel—with their wives, about whom they still wax romantic. Rosenbaum the theater buff and Anderson the pianist also look forward to attending even more concerts and plays—without the second-act naps induced by late nights and weekends spent reading briefs. Still passionate about particular legal matters, their work goes on. At least now it's on their schedule and terms.

ANDERSON: What's on your list of dreams and schemes?

ROSENBAUM: I'm a little like you. I'm absolutely nuts about my wife and the chance to do things together. Having fun together is really something we've been able to do, but will do more of.

ANDERSON: I am in the same situation. I have a wonderful wife that has been with me and sometimes even carried me through some things when I needed some carrying. It's a wonderful opportunity to spend time with her. I do want to use the skills I've acquired to give back to the community, improve the law, and improve the legal system. I'm also interested in trying to be a better neighbor and improve lives in some ways that are not legally related but are deeds of a good citizen, and to do it in a nonpublic way. I think it would be best if those that you are attempting to help are less aware of your presence and more aware of the deeds to help improve lives. I talk a better game in this area, but am focused on trying to do that.

ROSENBAUM: Don't we all?! What are you still working on?

ANDERSON: I still am working on making sure our state courts are fair and impartial. Most state judges are elected. Some, as in the federal system in Minnesota, are appointed. We have a system where judges are elected every six years, and when there's a vacancy, the governor appoints. There's been an effort of late to politicize the courts and bring in big money to these campaigns, and promise-making by judges, and really it infects the notion of impartiality of a court. I am concerned about where we're going in Minnesota with regard to preserving and maintaining fair and impartial courts. That continues to be my passion. How about you? You're probably passionate about many things.

ROSENBAUM: Judicial independence is of great concern to me. The ability and the power of judges to say what they believe and to express themselves fully and fairly is integral to a fair decision making process. This is an area that in some ways I will now feel freer to speak out about. I also expect I'll be speaking out more on judicial compensation. I'm terrified of what's going on.

The issue of how you protect and preserve the judiciary from the kinds of forces you were describing is an interesting one. My strong suspicion is that you and I would not completely agree on the means of resolving it. I believe that many of the proposals that are presently pending overemphasize the White case in Minnesota and have not entirely considered the Massey case out of the Supreme Court that said that if you have taken money from someone, you can't sit on their cases.

ANDERSON: This sets up the question: If we're going to permit promise making and the acceptance of money contributions from individuals, what does that mean with regard to future cases and your responsibility to recuse?

ROSENBAUM: And for how long and lots of other things.

ANDERSON: As the court noted in White, it is up to each state to decide the way that they select and retain judges. That's really what the conversation is about: what we should do now in view of White and in view of Massey.

ROSENBAUM: There's not much data on it yet. My guess is you're going to have a lot harder time raising $12 million to elect a chief justice now that Massey is also in the book. And we'll see. We may both be right, we may both be wrong, or both of us may be a nice combination.

ANDERSON: To put it rather graphically, if you tell potential litigants or lawyers, "Support me economically, and by the way, when your case comes before the court, I will not be there …"

ROSENBAUM: … "and I will not support whatever position I know you take." It's going to be a little dicey.

ANDERSON: Are you doing any teaching?

ROSENBAUM: I've taught at the other law schools and do a lot of teaching in two subject areas around the country. One is eDiscovery. The second is patent and intellectual property. I know you are teaching evidence at the Law School.

ANDERSON: I am teaching a four-credit course in evidence. We have wonderfully bright and attentive and hard-working students, very interested in learning the subject matter. When I was on the Supreme Court, we came here once a year and did an actual case and met with the students following that. Those conversations were always a delightful part of the teaching experience. The entire court looked forward to it.

In summation of the proceedings on September 24, 2010, the Chief Judge and Chief Justice issued unanimous opinions:

This was fun.

This is a really interesting discussion worthy of extension.

What began as a rare moment for two chiefs to converse about life, liberty, and the pursuit of retirement became engaged discussion of deeply held beliefs, trying experiences, and debate about the judicial issues that still concern them.

Should their tête-à-tête in the Rare Books room become a public discussion at the Law School, don't miss the rare opportunity, and pleasure, of being in the room when Justice Anderson and Judge Rosenbaum hold forth in their court of ideals.

Article and photos by Karen K. Hansen, a Minneapolis-based writer/photographer and clarinetist.