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An Interview With Judge James Wynn 

Judge James A. Wynn Jr. of the U.S. Court of Appeals for the Fourth Circuit graciously agreed to be interviewed by Jonathan Marx of McGuireWoods for the NCBA’s Appellate Practice section. That interview on April 24, 2015, has been edited for length and clarity. Judge Wynn was also given an opportunity to review and clarify his remarks prior to publication.

Jonathan Marx: Judge Wynn, thank you for agreeing to be interviewed. The theme of this NCBA newsletter is judicial decision-making. You can tell a lot about how a judge approaches decision-making by who he patterns himself after. Is there another judge – living or dead, active or inactive – that you try to emulate?

Judge Wynn:  As a young, working-class fellow growing up in eastern North Carolina, I didn’t have a model of a judge or even a lawyer to look up to. I was in awe of judges and lawyers in general. What I’ve come to realize is that there has never been a perfect judge, but there have been some very good judges. There are many that I admire.

Certainly Thurgood Marshall comes to mind as someone who stands out as being courageous, both as a lawyer and a judge. He sought to put justice at the forefront of his decision-making process. And one of the most courageous judges in history was Judge Julius Waites Waring of South Carolina. There were others who during the civil rights era did what their duties required – that is, to be fair and impartial and carry out the ends of justice.

More personally, as the youngest judge when I got on the state Court of Appeals, I was in awe of all the judges there. The judge who influenced me the most was Clifton Johnston, first because he was the model of an ethical judge; he carried himself with fairness and impartiality. Second, he was greatly admired by his peers. He also happened to have grown up within 10 miles of where I grew up in Martin County, and I knew his family before I got on the Court. He stood out as the model for what I should emulate.

There are a few others: Gene Phillips and Hugh Wells were giants in my opinion. On the Supreme Court, Burley Mitchell and Henry Frye were outstanding, as was Jim Exum. Justice Marshall and Judge Waring set great examples, and I’ve learned so much from my colleagues over the years. But I couldn’t pinpoint just one judge as a model. Each one has contributed in some way to forming the ideals I aspire to as a judge.

JM: Do you have an “ism”? What I mean by that is, do you consider yourself a pragmatist or a textualist or any of the other terms that are used as a shorthand for different ways of interpreting legal texts or judging?

Judge Wynn: I try to not allow others to put me in a box, whether it be as a textualist, an originalist, or a pragmatist. At the end of the day, judges ought to be fair and impartial. You are supposed to carry out your duties in a manner that reflects an understanding of the law and apply that law to the facts presented to you. When you start putting yourself in a box, you find that those kinds of mechanistic and formalistic ways of decision-making may not always lead to the ends of justice. My polestar is to reflect the ends of justice as defined by the existing laws.

The press and the public want to put you in a box. They want you to be a liberal or a conservative. Yet I doubt any judge is always conservative or liberal on every topic. That’s not a judge’s role. A judge should not be moved by the political leanings of the subject matter, but on a fair reading of the law.

These subjects can’t be reduced to sound bites. I’m not a sound bite judge. Being a judge is serious business. It’s not about what I would do personally if I were making up the law. Judging has to be done in a way that maintains public confidence in the judiciary.

JM: Well, even though these aren’t sound bite answers it will certainly give people insight into how you approach the law. Do you have an opinion that you are the most proud of having written in your years on the bench, state and federal?

Judge Wynn: There are a few that I’m proud of. On the state level, the one that stands out is Nelson v. Freeland, [349 N.C. 615, 507 S.E.2d. 882 (N.C. 1998),] a Supreme Court case in which I wrote an opinion that abolished the distinction between licensee and invitee in premises liability.

There are probably more dissents that I am prouder of. I wrote many dissents on the state Court of Appeals that touched on a lot of different issues. One that comes to mind is the Owens[v. W.K. Deal Printing Inc., 438 S.E.2d 440 (N.C. Ct. App. 1994)] case, which dealt with whether a release agreement applied to tort claims was not covered by workers’ compensation. The state Supreme Court ended up following that dissent on appeal.

But perhaps the shining moment for me was an opinion I took great criticism for. It was my concurrence in the Affordable Care Act case [Liberty Univ. v. Geithner, 671 F.3d 391 (4th Cir. 2011)], which is unquestionably the biggest case I’ve sat on to date, in terms of notoriety. Judge [Diana] Motz and Judge [Andre] Davis were also on the panel. Judge Davis became convinced that the Act was constitutional under the Commerce Clause. Judge Motz decided that the Anti-Injunction Act prohibited us from doing anything. I was in the middle.

In my view, the Affordable Care Act was constitutional as a tax under the Tax and Spending Clause. We went around and around, and I wrote a concurrence to Judge Motz’s opinion. Having concluded that it was a tax, it was very difficult for me to articulate why the Anti-Injunction Act wouldn’t apply. So I ended up joining on that point, concurring with Judge Motz but indicating that it was a tax.

As a result I was excoriated by many politicians and others across the country, including one Attorney General who said something along the lines of, “So far, 16 different judges have addressed this subject and [Judge Wynn] is the ONLY judge in America to say he would uphold the federal health care law under the taxing power. This is truly an extraordinary position.” And then, as we know, it was upheld as a tax in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). You never hear anything back from your critics when something like that happens.

I don’t mention that as a victory, or to say, “Aha, I told you!” The case very well might have come out differently in the Supreme Court. My point is that being a judge puts you in a position where you have to make unpopular decisions. Your opinions will not always be embraced. That’s not to say that I write opinions that don’t receive support from anyone—there were scholars that agreed with me on the tax issue. But I was alone from a judicial perspective.

JM: What do you think is the optimal way of selecting judges?

Judge Wynn: There is no perfect way. I was on the original board of the Justice at Stake project out of Washington, D.C., which was influential in the initial Judicial Campaign Reform Act here

in North Carolina. And I was a spokesman for moving things in the direction of establishing non-partisan appellate-court elections and publicly financed campaigns.

On the one hand, some form of merit selection is probably the best, where you have a committee to vet candidates and submit names to the governor, followed by a retention election with the voters. On the other hand, I like to work with reality. The reality is that 38 states elect judges. The reality is that our state is not going to adopt merit selection. I supported the Judicial Campaign Reform Act because it was one of the better ways of electing judges; it made the election of judges non-partisan and helped reduce the role money played in the appellate elections by creating a public finance system. Most judges in the system, Republican and Democratic alike, supported it and used the public financing because they know what it is to have to beg for money from individuals who will come before you.

Those were vast improvements, but pending legislation may turn the clock back to partisan elections. I don’t mean to suggest that politics played no role in judicial elections after the Judicial Campaign Reform Act; you couldn’t win if you didn’t have support from one of the political parties. But at least that made the voters get to know something about you, even if it was just that you were a Democrat or Republican, as opposed to just pulling a lever for straight- ticket voting. It’s offensive to the idea of judging that the Democrats have their judges and the Republicans have their judges. Judges should be judges of the people and for everybody.

There are states that require judges to have no party affiliation. I don’t want to get into the First Amendment implications of that, but it’s an ideal. Judges shouldn’t be the voice of a political party, and that temptation is there when you have a partisan election.

JM: When you were an elected, state court judge, how did you go about making sure that you weren’t looking over your shoulder – to make sure that you were being fair in cases involving your donors or interests adverse to your donors?

Judge Wynn: You have to go back to where I came from. I’m from eastern North Carolina, from a working class background. I went into the Navy and then the private practice of law. When you become successful in the private practice of law, you don’t fear whether you can make a living. So I thought to myself, “Being a judge is a good job, but if I lose it, I’ll be able to make a living in private practice.” I didn’t have to have the job at all costs, and I did not expect to be re-elected. So I decided not to pander to people. I called things the way that I saw them. But I ran unopposed in the next election—it was one of the few times that has happened. So that made my judicial career.

Do I ever think about what the politicians and newspapers are saying? Of course. That’s human nature. But the challenge has always been to examine my decision-making process to make sure I’m not doing things for the newspapers or because a certain group of people wanted me to go one way or another. That’s being fair and impartial.

JM: Let me ask you a few questions about judicial administration, because that inevitably affects the way cases are framed for your decision as a judge. Seasoned appellate practitioners know that cases get triaged in the appellate courts – briefs will be read by law clerks and staff attorneys, and that those folks may have more time to spend with a case than the judge does. There’s a calibration of attention. Does it strike you that, with the volume of appeals in the system, cases are getting the attention they deserve?

Judge Wynn: To answer that question, you have to focus on the real issue. Is process important? Yes it is. But the real issue is whether the outcome and results are what they should be. It’s the outcome that’s most important. I saw the same problem in real estate practice. The bar provides standard forms for deeds, or you can draft your own deed and make it nice and pretty. When you think about what the client wants, they just want to transfer the property — it doesn’t matter about whether it’s pretty, just correct. If you use the bar form, there’s a presumption that it is correct and effective. It was done the way the client wanted it done. And to some extent judicial decision-making is similar: Ultimately, you want the judge to make the right decision about how the case is to be resolved. The nuances of the drafting of opinions, or whether it’s orally argued—those things concern lawyers and other judges more so than the public. The litigants care mostly about what the final result looks like.

JM: How has your decision-making grown or improved over the years you have served on the bench?

Judge Wynn: I came to the bench in 1990 with the idea that a lot of new judges have: “Anything that comes out of my chambers I write. Everything’s all mine. I do all the work.” In business, if you run a canning company, you can’t say, “I make all the cans and fill them myself.” Or if you run a car manufacturing company, you can’t say, “I turned every bolt on this car.” If that’s how you run your company, you won’t be the leader for long. It’s not a leadership situation for judges, but a recognition of what your job is and your responsibilities are: to ensure the decisions rendered from your chambers are well-reasoned and fair and impartial. So I pick law clerks based on their ability to articulate my way of doing things, and their work product reflects my thinking. Their job is to make sure their judge looks good, that there is strong legal support for my position.

JM: Do you mind a few questions about advocacy? The last statistic I saw was that 13 percent or so of cases were orally argued in the Fourth Circuit. Do you think more cases should be getting oral argument than that?

Judge Wynn: I’m surprised it’s 13 percent. I thought it was less than that. You have to understand, oral argument is generally not where you win or lose the case.

JM: Can it shape the way an opinion is written?

Judge Wynn: It certainly can. If the briefs are outstanding on both sides and the issues are well understood, you have everything you need to decide the case. Sometimes the briefs aren’t giving me what I really need to decide the case. In other cases, the briefs on both sides are so good or the issues are so close that I don’t really know which way to go. In those circumstances, oral argument can definitely shape the way an opinion is written. But oral argument—we offer what, 15 or 20 minutes a side? What can you say in 20 minutes about a case you’ve been working on for years, to three judges who might let you get in five minutes of your own time because you will be mostly answering questions?

JM: About questioning at oral argument: Some judges express the view that briefs are the attorneys’ monologue, but oral argument is the judges’ time to get their questions ironed out and for the opinion to start taking shape. Do you subscribe to the view that oral argument time belongs to the judges, or do you try to let the advocates say their piece?

Judge Wynn: I believe it’s a dialogue. It is both the advocates’ and judges’ time. Lawyers who ignore the judges’ questions are not getting it. The decision-maker is asking you a question. You probably ought to listen to what the decision-maker is asking. It’s perfectly acceptable for you as the lawyer to have your own points of advocacy that you would like to get across, but you have to remember that you’re not the decision-maker. You may leave the podium feeling good about having made your points, but if you didn’t persuade the decision-maker, you haven’t done your job. Seasoned appellate lawyers don’t think that the judge is being antagonistic or trying to trick them by asking tough questions. What they see is an opportunity to deal with the areas that the judge needs some help on to write the decision. Anyone who views oral argument as “judges’ time” or “lawyers’ time” hasn’t picked up on the fact that it’s a time for dialogue, relaxed questioning, and ironing out rough spots.

JM: Do you use questioning at oral argument to try to influence your colleagues?

Judge Wynn: Yes, occasionally perhaps I do. On some courts, the judges share memos and so they know a little bit about each other’s views before argument. But I think my vote needs to be independent of my colleagues, so we rarely talk about a case before we go into oral argument. At oral argument, our questions often reflect how we are each looking at the case. If my colleagues are going a completely different direction from me, I listen intently because their questions may influence me. And if, after I listen intently, I’m not convinced, I speak up and try to get a back-and-forth going. So sometimes the questioning is intended to influence other judges.

JM: Do you have any pet peeves in written advocacy, aside from the obvious — don’t file a non-conforming brief, don’t berate the other side, don’t be unfaithful to the record? Are there any other pet peeves of Judge Wynn?

Judge Wynn: Those are good ones. I really don’t like discourtesies, even in writing opinions. Over the years, I have tried to be mature in the way I write opinions; I try to avoid saying anything negative or pejorative about my colleagues even if I’m on the other side.

Besides discourtesies, what bothers me most is when lawyers miss the real issue in the case. Sometimes the real issue isn’t briefed, or briefed poorly. That’s the most important part of an appeal, issue formulation. To paraphrase one of my favorite sayings from Bryan Garner, “If you let me give you the issue, I’ll give you the answer every time.” Sometimes the whole answer to a matter is in how the issue is formulated and from what perspective is it being viewed.

The bottom line is the brief needs to reflect integrity. You shouldn’t try to game the court. It’s a big mistake to assume the court won’t catch mistakes, or to avoid mentioning things because you hope the court won’t find out. There are too many eyes on the case for that. You have incredibly smart judges on this court, and they know they have to deal with their colleagues. And the judges hire smart clerks who realize their reputations depend on the job they do for their judge and making their judge look good. If they don’t, they are hurting themselves because their names are attached to the judge. These people are motivated to do the right thing and make their judge look good. So when a lawyer approaches briefing as if he’s before a jury and wants to ignore—or just barely mentions—weaknesses in a case, that’s irritating. It’s not only disrespectful, but it’s also not helping your cause. Courts pick up on those little things to indicate that you have a weak case. If you have a weakness, you have to be prepared to deal with it head on and aboveboard.

JM: If you could get only one point across to the appellate advocates that appear before you, what would it be?

Judge Wynn: Be courteous and be respectful. Conduct yourselves as officers of the court. Above all, have integrity. That will carry you today and in the future. Lawyers who are consistently honest and well-prepared are remembered. And if a lawyer does a bad job or something’s misstated, the court’s institutional memory is pretty strong on that, too.