Sitting by Designation: Retired Justice Tom C. Clark’s Federal Court Service

Abstract

Sitting by Designation: Retired Justice Tom C. Clark’s Federal Court Service CRAIG ALAN SMITH Introduction In March 1967, Associate Justice Tom C. Clark announced his Supreme Court retire­ ment soon after his son, Ramsey, was nominated to become U.S. Attorney General. Clark planned to retire at the end of the term to avoid any appearance of impropriety. He was sixty-seven years old, he had served on the Court for eighteen years, and he could continue judging on any other federal court with the ChiefJustice’s approval.1 Like other retired Justices, Clark brought a certain distinction when he sat “by designation,” but the impact of his decisions was—and continues to be—far greater. Over the course of ten years, literally until the day he died, Clark set a remarkable pace for himself: making over sixty visits to different Circuit Courts ofAppeals and participating in around 575 appellate cases. In addition to sitting on every geographic circuit (at the time, there were ten circuits plus the D.C. Circuit) and presiding over several district court trials, Clark also served as Special Master and on the Court of Customs and Patent Appeals (CCPA), the Court of Claims, and the Customs Court.2 Most accounts ofClark’s retirement have focused on his efforts to improve judicial administration, so much so that historian Michael Belknap concluded, “Reflecting the intensity of Clark’s interest in judicial administration and the importance of his efforts to reform it, more articles can be found on this subject than on any aspect of his work on the bench.”3 As a result, Clark’s lower court service has received scant scholarly attention. Without examining his rulings, two purported biographies mentioned some of his district court trials as well as three of his appellate opinions facing Supreme Court review.4 Other accounts of Clark’s lower court service counted his record rather than analyzing it. At times, even counting Clark’s opinions came up short.5 Therefore, Clark’s 322 JOURNAL OF SUPREME COURT HISTORY lower court judging was usually lauded for one remarkable feat—that he judged on every geographic circuit.6 However, that failed to address larger questions, for example, how he influenced opinion assignments, whether his position on lower federal courts was consis­ tent with his Supreme Court service, how he made use of Supreme Court decisions, and how his district and appellate opinions fared under circuit or Supreme Court review.7 These larger questions, including whether his appellate opinions addressed significant con­ temporary issues, are the subject of this article, which offers the first comprehensive analysis of Clark’s role and influence as a lower court federal judge. His judgments had greater impact than the geographic extent of his judging and the sheer number of his opinions. What he decided, how he reached his conclusions, and whether those rulings made a lasting difference deserve greater attention.8 Clark’s Lower Court Service and Influence Clark began his lower federal court service soon after his Supreme Court retire­ ment—in fact, much sooner than previously recognized. He sat first with the CCPA in December 1967, releasing his first opinion six months later.9 Next, he had his one and only sitting with the Court of Claims, but he authored no opinions there.10 One year later, he sat with the Second Circuit Court of Appeals, where he spent more time but did not write more opinions than in other circuits. He returned to the CCPA in June 1969 and sat with the Seventh Circuit in May 1970 before making his first appearance as a district court judge in San Francisco." Initially, Clark was hesitant to accept Chief Judge George Harris’s invitation to serve on the Northern District of California. He had never judged a jury trial; in fact, the last time he even participated in a jury trial was twenty-six years earlier as an assistant attorney general in the prosecution of two Nazi spies before a military commission. “What disturbed me,” Clark later said, “were the rules of evidence. They change from time to time.... [but] I soon found that you become accustomed to it. Instead of getting butterflies, I looked...