The State Bar Association of North Dakota Summer 2013 Gavel Magazine | Page 36

JUDGE MYRON H. BRIGHT
As I enter my 45th year as a federal judge in August of 2012, I say a few words about professionalism for judges. I take most of my text from the late Chief Judge Edward Devitt of the District of Minnesota, who served the United States Courts from December 1954 to March 1992 – 37 years until his death. Judge Devitt, in 1961, wrote an article for the ABA Journal entitled “Ten Commandments for the New Judge.” 47 A.B.A. J., pp. 1175-77 (December, 1961). Adapted from and based on Judge Devitt’s article, here are my 10 commandments of professionalism for judges and my comments. 1. Remember the Other Side of the Bench – Remember, Judge, you were or could have been on the other side of the bench, so give counsel the same courtesy as you would have desired for yourself. 2. Engage in Dialogue – It’s okay, Judge, to have a dialogue with counsel to help you and your colleagues clarify an issue.1 3. Listen carefully – Sometimes important information to the judge or any listener is heard in oral argument. 4. Be Kind – Judge Devitt said a key attribute of a judge should be “a kind and understanding heart.” That attribute is especially important when sentencing in criminal cases say, as in baseball parlance, a judge should not emulate the batter hitting for a high average but a pitcher keeping those averages down. 5. Be Patient – Judge Devitt described patience as a “cardinal virtue” and, quoted a colleague, “three requisites for a good judge: first, have patience; second, have patience; and third, have patience. 6. Be Dignified But Don’t Take Yourself Too Seriously – The public has a high regard for a judge and that regard imposes on a judge the obligation of acting fittingly for one in their position. But a judge need not be stuffy or acting superior to those around him or her. I’ve often said in my law teaching activities, particularly to law students, a judge is hu-

THE TEN COMMANDMENTS OF PROFESSIONALISM FOR A JUDGE
by Myron H. Bright, U.S. Senior Circuit Judge man–he or she puts on clothing one leg and one arm at a time. 7. Don’t Be Dismayed When Reversed – Judge Devitt commented from his position as a district judge who occasionally got reversed, that no judge likes to be reversed. Sometimes the judge will understand; oftentimes he or she will respond to a reversal like my late colleague, Judge Martin Van Oosterhout of Iowa did when asked about a Supreme Court reversal of a case he authored, “Well, they’ve got their opinion and I’ve got mine.” 8. Remember There Are No Unimportant Cases – When a case is before the judge, regardl ess of the amount in question or nature of the issue, the case is important to the litigant and requires due consideration by the court. An example is the landmark case of Gideon v. Wainwright.2 What began as a burglary case turned out to be one of the most significant of Supreme Court decisions, as the Court held that a right to have assistance of counsel for indigent litigants in criminal cases is fundamental under our Constitution. 9. Don’t Impose Long Sentences – In Judge Devitt’s day, the criminal code gave sentencing judges wide discretion and provided for indeterminate sentences subject to revision by a parole board. Since 1987, the procedure has changed with guideline sentencing being mandatory and now, under Booker,3 discretionary. Judge Devitt wrote this bit of fair judgment: “it is primarily the fact of incarceration, not the length of it, which best serves the ends of justice.” 10. As a Judge, Do What in Your Heart and Mind is Right – Many years ago, I faced a very difficult decision in which two persons, charged with kidnapping, had been sentenced to life in prison. The case was a case “celeb” in Minnesota where two masked men kidnapped Mrs. Virginia Piper of the Minneapolis area, and held her for a milliondollar ransom, which her husband paid. Mrs. Piper was released unharmed. A new witness surfaced after the close of evidence in the kidnapping case, but before the parties’ closing arguments and jury instructions, the district court denied a reopening of the case. 4 I was very uncertain on whether I should vote to affirm or reverse the conviction based on that issue. I telephoned an old friend and great senior federal judge with whom I had served on many Eighth Circuit appeals cases–Judge Talbot Smith of Michigan. I told Judge Smith about the case and my uncertainty as to what to do and asked for his advice. He said, “Myron, do what in your heart and mind is right!” I did. I voted to reverse and granted the defendants a new trial in an opinion I wrote, joined by one panel colleague and dissented on by the other. On retrial, the defendants gained an acquittal. I have tried to always follow that principle in my judging, keeping in mind that where a guiding precedent exists, a judge is bound thereby, regardless of any personal viewpoint. For either the new or older judge, trial or appellate judge, I submit these 10 commandments for your consideration.
1 Diversified Indus. Div. v. OSHA, 618 F.2d 30 (8th 2 Gideon v. Wainwright, 372 U.S. 335 (1963). 3 United States v. Booker, 543 U.S. 220 (2005). 4 United States v. Larson and Callahan, 596 F.2d

Cir. 1980).

759 (8th Cir. 1979).

Judge Myron Bright 2012 Eighth Circuit Professionalism Award Recipient Judge Myron H. Bright has received the American Inns of Court’s 2012 Professionalism Award for the Eighth Circuit. The award was presented to Bright by Chief Judge William Jay Riley of the U.S. Court of Appeals for the Eighth Circuit, in Kansas City, Missouri, on August 9, 2012. A senior judge of the U.S. Court of Appeals for the Eighth Circuit since 1985, Bright was appointed to the bench by President Lyndon B. Johnson in 1968. During a career spanning more than four decades, he has considered more than 6,000 cases.

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The Gavel Summer 2013