[Orin Kerr] Judge Leonard I. Garth, 1921-2016

After law school, I was a law clerk for Judge Leonard I. Garth of the U.S. Court of Appeals for the 3rd Circuit. Judge Garth died Thursday at the age of 95. I was very fortunate to know him as a boss, mentor and good friend. In this post, I’d like to celebrate his life on the event of his passing.

Judge Garth was in both attitude and demeanor a model judge. He wanted to get every case right, no matter how obscure it was, and he did cases by the book. If you listen to Richard Posner, you’ll hear that judges reach decisions that seem sensible on pragmatic grounds and then reason backwards to get there. Not Judge Garth. He was obsessed over the record and the standard of review. He checked and double-checked whether jurisdiction was proper, because if there was no jurisdiction the court had no authority to decide the case.

He also insisted that his clerks give as much attention to hand-written pro se cases as to appeals by lawyers from big firms, on the thinking that every case was equal no matter whether the party was rich or poor. Clarence Earl Gideon wrote his cert petition in pencil, the judge would remind his clerks. You never know which pro se case might be the next Gideon.

Of course, like every judge, Judge Garth would get instincts about which side was right. But he had an impressive ability to put that aside if he came across caselaw or something in the record that pointed in a different direction. He saw room for case-by-case equity. And he was carefully attuned to the human side of the cases he decided. But more than any judge I have met, he saw the role of judges as being to follow the law and play it straight. (An aside: When I was in law school, shortly after accepting the clerkship, Judge Garth came to Harvard to judge the moot court competition. We met for coffee, and on our way to the local Starbucks a panhandler approached us and asked for money. Judge Garth stopped, pulled out his wallet, and gave the man a dollar or two. An interesting signal to send a future clerk.)

I spoke about the experience clerking for Judge Garth in an interview at SCOTUSBlog in 2014. Here’s what I said, which you can watch starting at the 13:20 mark, slightly cleaned up to make it more readable:

I applied for clerkships and accepted a position with Judge Leonard Garth on the Third Circuit Court of Appeals, who at the age of, I think, 93 now, is still hearing cases. I just spoke with him a few days ago. It was a wonderful experience. After clerking I remember speaking with other law clerks, and one of the issues we talked about is to what extent is the law political. To what extent do judges’ political views impact their decisions. And I remember speaking to a law school friend who clerked on another circuit. And his response was that it was all political. The liberal judges voted the liberal way, and the conservative judges voted the conservative way. My experience was just completely different. Judge Garth would go where the cases took him, and that’s how he decides cases. It was all on the record. It was very much the way things are supposed to be. That’s the sunny version of how law is supposed to work, and it was was how it worked. It was wonderful. He’s intensely involved in the cases, and is looking at the cases and is looking at the record and is active at oral argument. It was a great experience.

While I’m thinking back to that year, here’s picture of the Judge and me at the end of my clerkship in the summer of 1998.

Judge Garth and the author in 1998. (Courtesy of Orin Kerr)

Leonard Garth was also remarkable for his passion about the law throughout his long life. Although he became a senior judge in 1986, he never stopped working. In his late 80s, he and his wife, Sarah, moved from New Jersey to a retirement community in Connecticut to be near his grandchildren. But that didn’t mean the judge stopped working. The 3rd Circuit agreed to have an office of the court installed in the Garths’ retirement community. It was a little outpost of the 3rd Circuit inside the 2nd Circuit, located in a small apartment across the hall from the Garths.

Into his 90s, Judge Garth would work all day at the retirement community with the help of a law clerk. When I would meet him for lunch — usually around once a year, when I could finagle an invitation to speak at Yale nearby — he would express astonishment that a circuit panel had done this or deli