TRANSCRIPT: JIM SESSIONS - Virginia Appellate Court History



TRANSCRIPT: CHARLES S. RUSSELL

Interviewee: Justice Charles S. Russell, Senior Justice, Supreme Court of Virginia

Interviewer: Hon. Joanne F. Alper, Judge, Arlington Circuit Court

Interview Date: April 23, 2007

Location: Supreme Court Building, Richmond, Virginia

Length: Approximately 65 minutes

START OF INTERVIEW

JA: On behalf of the Virginia Supreme Court Historical Commission we are pleased to have with us today Senior Justice Charles S. Russell. Justice Russell served as a justice of the Virginia Supreme Court from 1982 through 1991 and prior to that served as a judge of the circuit court for the 17th judicial circuit in Arlington from 1967 until 1982. Justice Russell, welcome.

Charles S. Russell: Thank you.

JA: We’re going to start out this morning talking about your background. You were first elected to the Virginia Supreme Court in 1982, is that correct?

CR: Correct.

JA: How old were you?

CR: Well I have to stop and think. [Laughs] I was born in 1926, so I’m eighty—.

JA: You’re not going to make me do the math. [Laughs]

CR: [Laughs] That’s right.

JA: So when you went on the bench you had been a trial judge for a number of years.

CR: Yes, from 1967 until ’82.

JA: Before you were a judge on the circuit court what was your legal practice, your background? When did you come to Arlington and start practicing?

CR: Well I had grown up in Arlington and I began to practice as soon as I got out of the in 1951. I was on active duty in the Navy at the tail end of World War II and through the interim between that and the Korean War and then into the Korean War for a couple of years. In ’51 I came up there and began to practice with the firm of Jesse, Phillips, Klinge, and Kendrick, which later changed its name several times but always started off with Jesse, Phillips, and I was with that firm all the time I was in practice. At first I pulled deed books in the record room and examined titles for about a year and a half, then after that general litigation. Principally toward the end I was taking up most of my time representing the state of Virginia Department of Highways, as it was then called, now the Department of Transportation, condemning rights of way for Route 66, the beltway, all the great highway projects that were lacing through northern Virginia at that time.

JA: Tell me about your election to the Virginia circuit court, the court in Arlington. Who was your opponent, were there any interesting stories surrounding that?

CR: Well in those grand old days the bar really picked the judges, so we had, as we used to laughingly call it, a beauty contest where any number of people who were interested allowed their names to go before the Arlington County Bar Association, and the members of the general assembly from Arlington had a long record of adhering pretty much to the choices made by the bar association. So I got a rather close nod there from the Arlington Bar Association and that went down to the members of the General Assembly and they, I guess, in turn spoke to Gov. Godwin [Mills E. Godwin] and he appointed me. That was the way things then worked.

JA: Was it an interim appointment?

CR: It was. It was an interim appointment because Judge Medley [William D. Medley] had just died and I was filling out his unexpired term, then later I was elected by the General Assembly.

JA: And so you served on that court until I guess the early 1980s and you decided you wanted to try for the Virginia Supreme Court. Tell me about how that happened?

CR: Well that was a very interesting thing. There was a vacancy in 1981 at the time of the retirement of Justice Harman, Alex Harman [Alexander M. Harman]. There was an effort in those days to have geographical balance. They tried to get justices from all corners of the state as best they could. So my supporters put my name up in the General Assembly but also a gentleman who was a circuit judge in Alleghany County, which was not all that far from where Justice Harman had been from, was put up and he was one who has later become one of my very closest friends on the court, Roscoe Stephenson. Justice Stephenson, now still a senior justice with me, and I, found ourselves in a situation of a virtual tie in support in the General Assembly, and so without either one of us being consulted in the matter our various supporters got together and made a deal. My supporters would support Justice Stephenson for that vacancy, so he was elected overwhelmingly, and then the next year his supporters would get behind me because it was then known that Gov. Harrison, Albertis Harrison, former governor of Virginia, then a justice, was going to retire the next year. So that’s the way it worked, although in my case it wasn’t an overwhelming support at all because at the last moment a former member of the state senate who was very well liked announced his candidacy too, so it came down to a one vote majority for me in the state senate over Judge Hodges [William H. Hodges], who was my opponent at that time.

05:18

JA: So one vote’s all you needed.

CR: That’s all you needed.

JA: So you took Justice Harrison’s—

CR: I did.

JA: —seat on the Supreme Court of Virginia. Tell us about the judge who took your seat in Arlington, because it was an interesting story there too.

CR: Tom Monroe [Thomas R. Monroe]. Judge Monroe had served with great distinction on the general district court and was very well regarded, and he was certainly the first African American ever to become a circuit judge in northern Virginia and only the second one to become a judge in the whole state. Judge Sheffield [James Sheffield], I think, was a few years ahead of him in Richmond Circuit Court. The fact that Judge Monroe was to be my successor—and the bar was very much for him; I’m not sure that he had any substantial opposition at all—that swung a group of African American members of the General Assembly behind me to create that vacancy so that he could step into it in Arlington, which helped. One of the great leaders of that movement was Doug Wilder [Douglas L. Wilder], later to become the first African American governor in the United States, but he mustered a lot of support for me.

JA: And certainly Judge Monroe served well in your seat for the years that followed.

CR: Indeed he did.

JA: In terms of the Virginia Supreme Court, you got there and you had whole different kinds of cases you were looking at now, not from the perspective of the trial court but from the perspective of the appellate court. Were there either any particular cases over the course of your years on the supreme court that stood out as particularly important or any types of cases that were particularly important in your mind, or particularly difficult to decide?

CR: One of my earliest cases here, and one of the most difficult, was a murder case that occurred out in the Radford area in which the body of the deceased was never found. The state police had a theory, and it might be a very good one, that the murderer had carried the victim’s body out over a railroad trestle and dropped it off into a gondola car that was carrying coal to Norfolk where coal is dumped out of the gondola cars right into the holds of ships and was then being shipped overseas. Most of our coal at that time, I understand, was going to France and some was even going to Egypt. There was no way to trace it. A tracking dog was brought down by a Pennsylvania state trooper that followed the tracks of the accused, who was thought to have walked out on this trestle. The dog walked out on the trestle, stopped in the middle of the trestle, looked down at this great chasm below where railroad tracks went through, and then turned and came back. So the theory was that that is what the accused had done, that he’d walked halfway out onto the trestle, disposed of the body by dropping it into a moving train, and then come back. So it required a great deal of examination of the old precedent on what is a corpus delicti, for instance, which a lot of people think means the body of the deceased but does not, as you know.

JA: And so that’s one that stood out in your mind—

CR: It did indeed.

JA: —as a difficult case—

CR: Yeah.

JA: —or significant case. Were murder cases the most difficult in terms of dealing with them on appeal?

CR: Generally not. Very few of them raise very novel issues. The issues that are raised more commonly nowadays are purely legal, usually constitutional questions, which other courts around the country have been wrestling with so the ground has been pretty well broken on most of those. I would say the civil cases are more difficult.

JA: Do you think there’s been a change in the types of civil cases that the court is seeing from the time you went on up through today, since you’re still hearing cases today?

CR: I would say they have become steadily more complex and as you know from what you see in the trial courts questions are presented now that we would not have dreamed of twenty years ago.

JA: And the records are also a lot more voluminous.

CR: Indeed they are.

JA: Court reporters are doing well.

CR: [Laughs]

JA: We hear a lot nowadays about judges and their personal beliefs and the role that their personal beliefs should or do play in deciding cases. Were there any times in the course of your tenure as a justice or as a judge where your personal beliefs contradicted the way or contrasted with the way you believe the law required you to rule?

10:08

CR: Many times. Many times I have—and I think all judges are confronted with this. The law is pretty clear. You wish it were not. You wish you could go off in a different direction and you simply can’t, particularly when this is a matter where there’s abundant precedent and you’re not having to carve out something brand new. But I think we all feel we’re bound by the law whether we like it or not. [Sound drops out from 10:37 to 10:44]

JA: —where you actually had to write about that in any of your opinions and write about the conflict between what either the law says and what the popular opinion is of what the law says and your own personal beliefs?

CR: I have never to my knowledge mentioned my personal beliefs. Perhaps sometimes things I’ve written have indicated a certain distaste for the result, but a flat statement that it can’t be avoided, the law is clear on this subject. Occasionally we’ll see some judge—. I’ve not seen much of that on this court though, but you will see opinions from elsewhere that will say that I wish the law said something else but it doesn’t.

JA: But the justices of the Virginia Supreme Court generally tend not to interject, because I know they’ll see appellate opinions from other parts of the country and from the federal courts that do get into judges’ opinions about the way things should be as opposed to the way they are.

CR: I really cannot recall having seen that here.

JA: In your career did you have any judicial role models or judicial mentors?

CR: Well, Harry Carrico was here throughout my tenure and I thought he was the model of what a chief justice ought to be. He was chief throughout my entire active service. He did a splendid job as a writer too. Basically I would say that my earliest role model and perhaps the one who has had the most affect on me was Judge McCarthy [Walter T. McCarthy] of the Circuit Court of Arlington County. He was the chief judge there when I went on that bench and I had observed him literally back to childhood and I thought he was a towering figure, just everything that a judge should be.

JA: He had a big influence on your deciding to become a lawyer, didn’t he?

CR: He certainly did.

JA: Do you want to tell us about that?

CR: [Laughs] You have heard this story before, Joanne. I went to a school that was near the courthouse, and of course I’d met Judge McCarthy socially when I was just a little boy. When I was in about the sixth grade there was a big murder trial going on in Arlington and I used to take my little bag lunch up and sit in the back of the courtroom and surreptitiously nibble, hoping no one would notice me because it was a big crowd, and spend my lunch time watching this trial. Judge McCarthy presided over it and there were two splendid lawyers in it too, Frank Ball, former state senator for the defendant in the murder case, and Lawrence Douglas, who was the commonwealth attorney, and those three put on such an impressive performance as far as I was concerned that I knew that’s what I wanted to do.

JA: Good inspiration for you.

CR: It was.

JA: And of course back then in the ’30s Judge McCarthy was the only judge to cover Arlington, Alexandria, Fairfax.

CR: Yes, Prince William.

JA: I think there are probably forty judges now that cover that same territory.

CR: That’s right.

JA: In fact Justice Carrico just mentioned to us that it was Judge McCarthy who appointed him a judge of the lower court back in the mid ’40s, when he was—

CR: It was.

JA: —a year out of law school.

CR: That’s right. [Laughs]

JA: There are a lot of lawyers today that wish they could follow that kind of a rocket docket track. One of the things I think that’s talked about in terms of appellate courts generally is relationships among the justices. Who were the justices on the court when you began here in 1982?

CR: At that time the retired justices came back and sat with us sort of like senior justices do now. That’s no longer the case. So Gov. Harrison came and sat frequently while I was sitting and it was a great delight to have him here. Not only was he my predecessor but he had been through all of the ranks. He’d been a state senator, he’d been commonwealth attorney, he’d been the attorney general of Virginia, and he’d been governor, and then he came here. Other members of the court at that time, Chief Justice Carrico, of course; next in seniority would be Justice Cochran, George Cochran, who’s still living and doing fine at the age of about ninety-seven; Justice Poff [Richard H. Poff], who’d been my law school classmate, and who’d been a member of the House of Representatives in Washington for many, many terms. I think he served something like twelve or fourteen terms up there.

15:18

JA: From Roanoke, right?

CR: From Roanoke, or Radford. There was Justice Compton [A. Christian Compton], who I’d known as a circuit judge for many, many years, came from Richmond. Justice Stephenson, already mentioned. Now have I gotten up to seven?

JA: I think so, with you.

CR: I think perhaps with me, yes.

JA: What was the nature of the relationship among—? You know, as a new justice coming in, how were you welcomed? How were you mentored and brought into the fold?

CR: It was amazing to me. When I first came down to pay a courtesy call, just after I’d been elected, I dropped in to see the chief justice and I addressed him as Mr. Chief Justice and he said, “From the very first day it’s on a first name basis, so I’m going to call you Charlie,” and I said, “Thank you, Mr. Chief Justice.” [Laughs] It was very hard to call him Harry for quite awhile but we all did. We were all on a first name basis immediately. When the court was in session we ate lunch together every day, all seven of us. Those who resided in Richmond, we all gathered in the chief’s office and marched down the street and had lunch at a little cafeteria during working days when the court was not in session. And there were a lot of social contacts. Our wives got to know each other and became good friends. Every Sunday night before the session of court began on Monday morning we had a big dinner together somewhere. We’d alternate going to different places around Richmond for that. We were so close that that got some criticism because there were very few dissents in the court. We were a rather likeminded group, I suppose. There was a big joke over in the General Assembly one time and some member said he was introducing a bill to keep the members of the Virginia Supreme Court from having lunch together [Laughs] because he thought we were all too much in lockstep.

JA: Did you move down to Richmond when you were elected to the supreme court?

CR: I stayed in Arlington for four years and kept an office there in the courthouse, the old courthouse, on the first floor, and that was great. The trouble was the commuting got me down. It seemed that I was always driving up Route 95, in the dark, in the rain, while it was under construction, and then went on year after year. Finally we gave up on it and moved to Richmond with great reluctance.

JA: Well it was always a great treat to have you in the courthouse during those years and I can remember a few trials where you’d be in the back behind the courtroom, listening to what was going on in the trial.

CR: [Laughs]

JA: At least one that I was involved in when I was a lawyer. You talked about the fact that the justices of the court when you came on were very similar. Not long after that there began to be some new faces that came on. Can you tell me about that, some of the firsts that happened?

CR: Well the first blast of fresh air to come in the window was the appointment of John Charles Thomas by Gov. Robb [Charles S. Robb], who was the first African American ever appointed to the court. John Charles was, and is, a real character, absolutely delightful person. Everybody warmed up to him very quickly. He was outspoken, humorous, colorful. He was as different from some of these old time Virginia gentlemen that it’s hard to imagine, and yet everybody became so fond of him that when he retired—. He had some serious health problems and he got off the court after a few years and it was a great loss to us. Then, not too long thereafter, along came Elizabeth Lacy, the first woman on the court, still here and working very, very hard. That made us change our language. [Laughs] We no longer told the same kind of jokes. Justice Lacy is very tolerant and very nice to us all but at first we sort of tiptoed around, thinking we had to treat her with the greatest of delicacy, and after that it turned out that she was very understanding of us and the relationship went well. Now, of course, we have three women and the chief justice is African American, so all of those barriers were broken many years ago, but I was here to see them all broken.

19:55

JA: How did that change the court? How do you think that changed dynamics of the court?

CR: I can’t say it changed it except in the superficial ways about what kind of signs we put on the bathrooms and that sort of thing. I would say the justices behaved toward each other just the same as they had before. There is certainly a change in the way the court addresses its work now, but I don’t think it has anything to do with that. I think it has to do with the increasing complexity of the work we get and the fact that the justices coming along are younger and not quite so deferential to age as probably we did. When I came on the court I was very much the youngest one and I felt like I ought to think twice before I take issue with some of my elders on the court and it took me awhile to get over that, and I don’t think that those who come on at an earlier age now feel that diffidence, and it’s a good thing they don’t.

JA: So you think there’s a difference in terms of—. When you say a change in the way they approach the cases, are there more divided opinions or fewer unanimous opinions now?

CR: Yes, both. There are more dissents now than there ever used to be. It used to be thought that a dissent was a weakening factor to the opinion, and of course sometimes it is and sometimes it’s intended to be, and sometimes dissents are felt so strongly that they do point out weaknesses in the majority opinion, but we didn’t have many of them. Now there is seldom a term of court goes by without one, two, or three dissents coming down in the various opinions that are handed down. One thing I’ll say about that is that who is going to be a dissenter is as unpredictable as anything I’ve ever seen. There are no factions on this court, and I’m glad of it. If you know the court’s going to be divided on a subject you don’t know who’s going to be on which side. There are no predictable groups that vote together.

JA: No voting blocs.

CR: No voting blocs and I’m profoundly thankful for that. As a matter of fact you can’t—. [Laughs] As anyone listening to the oral arguments would know, you can’t tell from the questions the judges ask from the bench which side they’re going to be on. Somebody fires off a bunch of questions to a lawyer that sound rather hostile and you think, there’s going to be a lost vote; not so. That person might be about to write the majority opinion in favor of the lawyer he or she was grilling.

JA: Have you noticed that there’s more of that questioning, more of that involvement by the court now than there was when you first went on?

CR: A great deal more. It is, as we say, a much more live bench than it was. I thought it was a particularly quiet bench when I went on and I perhaps asked more questions than most, but as time went on I asked less and it became a very quiet sort of a thing. As younger members came on the court though they began questioning more and now there’s a great deal of questioning.

JA: Do you think that’s a good thing?

CR: It’s good up to a point. It can certainly be overdone and sometimes is, I think. I remember what it was like when I argued cases before this court and questions threw you off the rails and you couldn’t quite get back on the track before the end. You couldn’t make all the points you wanted to make. I see a lot of that now. Lawyers simply cannot get through their arguments. Their time is very brief, usually fifteen minutes, and it’s completely taken up with questions, most hostile, some friendly, and frequently diverting which take the lawyer away from his or her train of thought and planned argument. It’s very hard to come here with a planned argument and be able to deliver it intact.

JA: How important do you think oral argument is to the ultimate success on the merits?

CR: It’s very important, and I say that because I myself have had my mind changed. We prepare a great deal in advance of those arguments. We not only read the briefs but we read the cases cited in the briefs, and in a great many of the cases law clerks are told to go out and write up a little memo in advance of the argument to get a justice up to speed on some legal point that’s much developed in the briefs, and we get law clerks’ memoranda that we looked over before we even heard the petition for appeal, the writ panels, as we call them. So there’s a lot of advance reading, and even with all of that I’ve had my mind changed in that oral argument and I’ve heard others sitting around this conference table. In fact a remark like that was made at the very last conference we had just a week ago, that I went into that argument thinking I knew how I was going to vote but my mind was changed in there.

24:55

JA: So, as I understand it, once the lawyers have made their arguments and you’ve heard a group of arguments then you retire to talk about what your rulings are going to be. Is that correct?

CR: Immediately. We hear the arguments in the morning and they’re getting so numerous now that we seldom break for lunch until about 1:00, and then we go out and we have about forty-five minutes of lunch and we come back and we try to discuss all those cases that day. Sometimes you won’t get out of this room until 6:00, 7:00 at night, and during all that time we’re thrashing out, everybody’s voting on the cases and discussing them, and when we go home from there we pretty well know who’s going to write the opinion—of course we already know that, but how he’s going to write it [Sound drops out from 25:43 to 25:45]—and who’s going to dissent and it’s all thrashed out pretty much that afternoon.

JA: How is it decided, because I understand it’s decided before you all hear the oral argument who’s going to write the opinion, unlike what happens at the U.S. Supreme Court?

CR: Yes, we have a docket draw, as we call it. All the cases are put on little slips of paper and thrown into an ancient hat. This hat, there used to be a hat that was said to have belonged to Chief Justice Eggleston [John W. Eggleston] that I think literally had moss growing on it, and the clerk would put all these little slips of paper in the hat and he’d pass it around this table and we’d draw little slips of paper out and that’s how we drew the cases. Now a number of the justices don’t live in Richmond so they participate by conference call, so I’ll reach into the hat and pull out a slip of paper and say, “I am now drawing for Justice Koontz [Lawrence L. Koontz],” who’s listening on his telephone in Salem, and draw a case for him. But we watch each other like hawks and draw these little cases out, but it’s completely a luck of the draw thing.

JA: So what happens if you’ve drawn a particular opinion to write and after the vote you’re not in the majority, you don’t agree with the decision that the majority’s going to do? How do you write that opinion?

CR: Well, that’s interesting too. The person who drew the case and to whom it is assigned, the designated author, when you get into this conference room that person is the last person to speak. The rotation around the table begins with the justice sitting to his or her right and it goes all the way around and finally comes back to the designated author. By that time he’s heard what everyone else has to say and he’ll either say I can write it the way you want it or I cannot: Chief, appoint somebody else to write this; I’m in the minority. I’m going to write a dissent or join a dissent, I can’t do that, and the chief justice will appoint somebody who—. By then you know who the majority people are and he will appoint one of them to write it. I wrote all my opinions longhand, standing up. [Laughs] A couple of us here had these stand-up desks like Bob Cratchit, you know, in A Christmas Carol [Laughs] They were made over in the penitentiary by a lifer who was an expert cabinet maker, and he made one for Justice Compton. Everybody admired that so another one was made for Justice Poff and another one was made for me and was sent to my office up in Arlington when I had it there. The object of that was that if you write it standing up the theory was you wouldn’t get too wordy. You would write succinctly.

JA: That’s an interesting theory.

CR: Your opinions would be shorter and you’d say it just once instead of four times, which is a tendency, particularly when you’re dictating. The worst way to write an opinion, in my judgment, was the old way of dictating onto a tape, or dictating live to a secretary who took it down in shorthand. You’d fall in love with the sound of your own voice and you say everything three times three different ways. [Laughs] Then when you saw it typed that looked so good you just couldn’t bear to strike anything out. So to avoid that problem I used to write them longhand and several of us did that.

JA: And did you circulate the longhand?

CR: Oh, no, no. Our secretary would then have the unenviable task of trying to decipher the scribbling and put it in type and then we’d send it out in the mail.

JA: Do you now do it yourself on the computer?

CR: I hunt and peck. I never learned to type and it’s very—

JA: That’s great.

CR: —painful for me, but I still do it.

JA: It’s much more efficient in the technology age. You can erase things.

CR: Oh, yeah, the word processor’s a marvelous thing and I just wish that I’d learned to type as a teenager but my generation just didn’t do that.

JA: How about law clerks? Did the legislature provide law clerks and how many?

CR: Recently the active members of the court each have two and the chief has an administrative aide in addition to that so he actually has three in his chambers, just to take care of his numerous administrative details. When I was active on the court I just had one. Now I don’t have any assigned to me, although the other senior justices do, but I’m in the fortunate position of being located here where I can—. When Justice Compton was living I employed his law clerk, another senior justice, and then also I used one of the chief justice’s two law clerks, so I’m still doing that. I’m using the law clerks of others. And the chief staff attorney has a staff of lawyers, and they’re real good ones, and we can call on those any time for help, and I do that too.

30:05

JA: So you don’t find the need to have a specific law clerk?

CR: I have not needed it up to this time. I don’t think I will.

JA: All right, you’ve talked variably about retired justices and senior justices and I take it the senior justice system is something new?

CR: Senior justices were authorized by statute that was enacted sometime in the very late ’80s or early ’90s and up until my case, justices, when they came to the end of their active service, would either take retirement or senior status. If they took senior status they would keep on working with a reduced workload and that was a great help to the court. At one time they were up to five of those but with attrition it’s gotten down to three and I’m the only person who ever retired. My wife and I went off sailing in the Caribbean for nine years and lived on the boat and we were out of town, just gone. When we returned to Richmond I started going around playing circuit judge and I took designations to sit as a circuit judge, and I just loved that. I particularly enjoyed going to rural courthouses and presiding for one case and then going back home, when some circuit judge was ill or recused in a case. At one point we had had some losses of our senior justices and Chief Justice Hassell [Leroy R. Hassell] got a hold of me one day and said, “How would you like to come back and be a senior justice?” I didn’t realize that one could retire and then come back, but after looking at the statute it says the court may elect any active justice or retired justice to serve as a senior justice. So the court elects you as a senior justice for a one-year term and they must renew it every year if they wish to keep you in that status and the senior justices are helping to pick up some of the load. The load has increased greatly on the actives.

JA: How has it increased; just in numbers or complexity or both?

CR: Both. The numbers have been increasing slowly but steadily. For awhile they were increasing at about ten percent a year. Now that’s dropped down to where it’s now increasing three or four percent per year, the number of petitions for appeal, and as a result of that more petitions are granted so there are more cases on the docket. You would think that we could winnow them out better than we do but we grant and still affirm a great many that are granted. Turns out the trial court was right and we need not have granted it but you don’t know until you hear it all thrashed out. But the caseload has grown and certainly, as we said earlier, the complexity of things has increased.

JA: So as a senior justice, what does that involve? What kinds of cases do you sit on and how often do you sit?

CR: I sit at every session, we all do, and the typical caseload for the active justices is to draw four opinions each. If one of them is an extremely heavy one—we give them weights, weight them a one, two, three, or four. Weight one is the least complex, the least lengthy, and typically an active justice will draw four of those. I will draw three. If it’s a more complex case it might get a weight of two, and that counts for two other lighter cases, and occasionally a three, which will just about fill up that justice’s workload for that whole session of court.

JA: And do you also sit on writ panels on a regular basis?

CR: Yes, sit on those on a regular basis.

JA: So once you’re a senior justice you can’t then go back and sit as a trial judge, I take it.

CR: No, because those cases are coming to this court.

JA: Because we certainly enjoyed having you come back to Arlington to sit as a trial judge.

CR: Well it was great fun. [Laughs] I liked coming home.

JA: It was a treat for everyone. But in terms of the work, you’ve talked a lot about the work of writing opinions and coming up with decisions and hearing cases. There’s an administrative side to the supreme court in running the judiciary and working with the bar. What kind of involvement and what kind of particular projects did you work on while you were on the supreme court in that area?

CR: Well Chief Justice Carrico got a lot of input from every one of us, so when I was active on the court I inserted myself, or was inserted at the chief’s request, into a number of those things. The rules of court, we had a massive overhaul of the rules of court then and I did a lot of work on that. There were of course matters coming up from the bar. The rules of practice, the canons of judicial conduct, the canons of judicial ethics; those things come to the court all the time, so I did work on that as did everyone else. One of the nicest things about being a senior justice is that I’m excused from all of that. All I’m dealing with now are cases being argued and writing opinions on the cases that I draw, so I’ve left that to my juniors. [Laughs] And there’s more of that then ever too, I think.

35:17

JA: Well obviously the administrative staff of the supreme court alone has increased dramatically I take it, over the time that—and the complexity of issues that they deal with.

CR: Yeah.

JA: What about continuing judicial education? Have you seen anything changing in that area? I know that there are obviously mandatory judicial conferences every year since the time you were a circuit judge and obviously when you were on the supreme court. Have you seen that change in terms of the type of education of the type of things that the judges need to hear about now as opposed to what they did twenty years ago?

JA: Oh, I think there’s a lot more going on now with professionalism, professional responsibility. As far as the education of the judges, judicial education, is concerned, I receive a lot of stuff from all over the country where seminars are being given. Some of these I look at with a raised eyebrow because I know they’re coming from pressure groups. There are people who wish to indoctrinate judges, particularly state supreme court judges all over the United States, and federal judges too. But I was very active when I was on active duty on the court. I continued to teach out at Reno, the trial judges’ college out there, the National Judicial College, and I taught there for years after I went on this court. Then I later began teaching up at NYU [New York University] at the appellate judges’ conference, run by the ABA [American Bar Association], and I’ve stayed active on that. Both those organizations are still going strong. I don’t think there’s been much change in format of either one.

JA: What kinds of courses did you teach at the judicial college in Reno?

CR: Well I taught evidence most of the time.

JA: That was for trial judges.

CR: For trial judges. I taught a course out there called “The Judicial Process,” which covered a multitude of sins, and it seems to me for a couple of years I was embroiled in a course on judicial ethics too, and up in New York I taught “Evidence and Judicial Process” almost exclusively.

JA: And that was for appellate judges.

CR: For appellate judges.

JA: You also taught in law school, didn’t you, when you were in Arlington?

CR: I did. I taught at George Mason law school and when I came to Richmond I taught in the law school here at the University of Richmond, T.C. Williams.

JA: Did you enjoy your teaching experiences?

CR: Very much. That was a lot of fun. I really enjoyed it. The great thing about law students is that they want to be there. How different from teaching in a school where the students are there because they have to be there. Even the judges sometimes, I think, attended some of those courses because they felt it was something they had to do but it was not something that they really were anxious to be doing, but the law students were so eager and anxious to learn and they were so happy to be in law school.

JA: Do you do any teaching now?

CR: No I don’t.

JA: When you were sitting here in the supreme court and you talked about so many different things in terms of the cases, and reviewing the record, and doing the research, and reading all the things you needed to read, both for writ panels and opinions, what was your typical court schedule like? What time did you get here? What was your typical schedule like?

CR: Well now Joanne, you know I don’t get up early in the morning. [Laughs] When the court was not in session I usually, as I still do, come in around 9:00 and work in the office, and in the old days, as I said before, we all trooped out to lunch together at about 12:00 and then came back at 1:00. But I have always had a habit of staying rather late, and sometimes things quiet down nicely and the phone doesn’t ring and nobody comes in, so that’s a good time to be writing, between 5:00 and 6:00 and that sort of thing.

JA: In addition to the work you did and everything else, what did you do when you were trying to relax, other than sailing for nine years?

CR: [Laughs] That’s about it. We always kept a sailboat. I always envied the golfers because if they had a case settled they could get away and be out on the golf course in twenty minutes and call up the starter and get a starting time. Well mounting a sailing expedition is more like a safari and you have to plan that ahead so I couldn’t do that as fast, but that was basically my outlet, that and running home and gardening and that sort of thing.

40:09

JA: Well you’ve always been known as an intrepid sailor, anyone who can sail for as long as you did too, really. It’s amazing that you’ve done that and you’ve passed that on to your sons as well.

CR: Well we were very lucky. Looking back on it there were so many opportunities for disaster and they all passed us by: no bad weather, no piracy; nothing like that.

JA: Piracy, in the twentieth century?

CR: Lots of piracy in the Caribbean, then and now.

JA: That’s interesting to know.

CR: Read about it all the time.

JA: That’s interesting to know, and no escape from the Bermuda Triangle?

CR: No problems like that.

JA: Tell me a little bit about when you made the decision that you wanted to retire, because obviously you were still young enough to remain. It wasn’t one of these mandatory things, was it?

CR: No.

JA: What made you decide that it was time to go, after such a relatively short period on the supreme court?

CR: Well, my wife had had a serious heart attack and had recovered very nicely, but it sort of impressed upon me that if one is going to go off and smell the roses this is a good time to do it. None of us are going to be here forever. So that seemed like a good time, and I’d reached the age of sixty-five and I’d been a judge for a long time so it just seemed the logical time to do that. My mother was still living but she was settled in a retirement community and seemed to be safe and well provided for, and it was an opportunity that I thought had presented itself at an opportune moment, and as it turned out it had.

JA: It was the right thing to do, and then you came back here and were still able to sit, as you are now, as a senior justice.

CR: That’s right. I had no idea I’d ever be doing that, but we were very fortunate. As I say, with all the hurricanes that blew through the Caribbean in those years we never got in the path of one. One can avoid that by going far enough south. If you get below latitude twelve even the insurance companies will insure you because they think you’re out of the hurricane belt. They’re wrong, because hurricanes occasionally go down and brush the north coast of South America, but we used to get down between Granada, Tobago, Trinidad, or Venezuela and consider ourselves pretty much out of the path of them. We’d try to be there during the worst months.

JA: It’s beautiful down there too.

CR: It is indeed.

JA: When you think back on your judicial career, not only on the supreme court but going back to Arlington, a lot of lawyers nowadays, at least in my generation, will talk about the characters in the law that existed back then, the judicial characters, and I always use the example of Judge Oren Lewis in Alexandria, who everyone knew was a great judge but a well known character as well. When you think back in your history as a lawyer and as a judge and a justice, who are the characters that you think about who are memorable to you?

CR: Well, there were quite a number of them. There was J. Foster Hagan in Arlington, who wrote a little publication called the Hornet, which was a monthly newsletter of the Arlington bar and it was absolutely hilarious. He was quite a poet and he wrote doggerel poetry that lampooned everyone, including the judges, and it was great fun. Oren Lewis was a character both on and off the bench, even before he became a judge. Hugh Reid, in the general district court. We had a—. Well, my senior partner, Tom Phillips, was a marvelous wit and very colorful guy. On the bench I would say that Judge Paul E.—no—Paul E. Brown, yes.

JA: In Fairfax.

CR: In Fairfax.

JA: Yes.

CR: [He] was a remarkably colorful fellow, mostly off the bench. He behaved very normally when he was in the courtroom. And we had lots of lawyers who were—. George P. Grove, an unforgettable character at the Arlington bar, long gone. Well, you know a great many of those characters in northern Virginia. The skits that the bar put on unearthed some of the greatest talents that you would ever see. Some of these people had real hidden talents as actors and singers and whatnot.

JA: Sometimes better than their legal talent.

CR: [Laughs] Indeed so. I won’t mention any of those.

JA: We won’t preserve them for posterity, although one of the great writers, I understand, of some of these skits was Griffin Garnett [Griffin T. Garnett, Jr.].

44:55

CR: Griffin Garnett and Bill Chadwick [William H. Chadwick] together. Griff, in his demeanor as a lawyer, seemed perfectly normal but when you got a pen in his hand he could write the most hilarious scripts, and Bill Chadwick was the same although Bill was a character in the courtroom and out. He was marvelously colorful.

JA: And Griff is now, what, ninety-two or so, ninety-three, and has written a number of novels.

CR: He has indeed.

JA: I think three now, he’s published three novels.

CR: I have read two of them and they’re very good.

JA: So, I understand that. He’s still going strong up in Arlington. What about as a lawyer? I hear there were stories about a very famous commonwealth attorney named Bill Hassan [William Hassan].

CR: Well, there was a real one. Bill was a fighting Irishman from Boston with a hair trigger temper, and he approached every case like a cavalry charge, but he was very good. Bill was an extremely capable prosecutor, bombastic but very well prepared, and another colorful character. As a matter of fact [Laughs] there was a lawyer that he particularly disliked who had a case against him personally. Bill didn’t handle all that many cases personally but he had this one, and Bill was bent over at a drinking fountain outside the courtroom taking a drink of water and this lawyer that he particularly disliked came and stood beside him and made some remark and Bill straightened right up and socked him right in the jaw, [Laughs] just outside the courtroom, without saying a word. So he was a peppery individual.

JA: That was back in the days when you could do that without getting hauled into court for contempt of court and the like.

CR: That’s right.

JA: Any of those experiences in terms of the lawyers that you saw once you were in the supreme court, or was it a little more dignified there and a little less personality in the lawyers appearing before the supreme court?

CR: It was a lot more dignified. Occasionally some real bursts of humor occurred. One time some hapless lawyer from southwest Virginia stood up to address the court and said, [Spoken with clenched teeth] “May it please the court, I would like to cover a few points—,” and at this point Justice Compton, who was sitting beside me, said, “Sir, would you please speak a little more distinctly. We can’t understand you.” He said, “I’ll try, your honor, but my jaw is wired shut. I tried to get a continuance and you all denied it.” [Laughs] He’d been a victim of some automobile accident, I think.

JA: Did that get him the sympathy vote?

CR: I guess it did. [Laughs]

JA: I asked you earlier about memorable cases that you had handled on the supreme court, but how about in terms of as a trial judge. You handled some fairly high visibility cases back in the ’60s in Arlington.

CR: Well I suppose one of those of the highest visibility was a case I had when I first arrived, which was when the head of the American Nazi party, George Lincoln Rockwell, was assassinated by one of his followers. That case was tried from just about Thanksgiving until Christmas in the circuit court of Arlington County. Bill Hassan prosecuted it brilliantly and he refused any assistance and did it all alone, he had no assistants at the counsel table with him, and it wore him out. He had serious uncontrolled diabetes at that time and I think it really almost ended his career. He held office and continued to work for sometime after that but he was never quite the same. It took a terrible toll on him.

JA: Was that one of the first cases you actually had to try?

CR: Yes, it was, well the first big case. I’d gone on the bench in the early part of 1967. This was tried, as I say, it started around Thanksgiving. I drew it in the normal course and Judge McCarthy very kindly offered to take it off my back and I thought, well no, it would be a cowardly thing to do, [Laughs] so I went ahead and tried it, but it was a battle royale.

JA: Was it a fairly high profile case for that time?

CR: For that time it was. All of the national press was there. Pews and pews were reserved for the press. The first time I ever saw a metal detector in a courtroom was set up to frisk the people who were coming in.

JA: Some of them dressed a little unusually, I understand.

CR: Yes. The Nazis would arrive with swastika armbands and give a Nazi salute and troop in, in military order and all sit down and glare at the court and the jury. Then there was a Jewish activist group which was violently anti-Nazi and they arrived, and as a matter of fact I think weapons were removed from the persons of people on both sides of this controversy trying to come into the courtroom.

50:07

JA: To you knowledge is that the first time metal detectors were used in the Arlington courthouse?

CR: To my knowledge it was.

JA: And the verdict came down and it proceeded uneventfully.

CR: It did. In those days you could get anywhere from—. For first degree murder— there was no capital murder statute—you could get from the death penalty down to twenty years, which was the minimum, and they found the defendant guilty of first degree murder but gave him the minimum, twenty years.

JA: Which obviously was a commentary on the victim’s activities, I presume.

CR: That’s right.

JA: Any others that you can think of, any other really significant cases that you can recall, because you were on the bench in a very turbulent time, right outside of Washington, D.C. in the late ’60s and early ’70s, when lots of demonstrations and lots of things were going on in the Capitol and the Pentagon?

CR: Well, that brings to mind the day of Martin Luther King’s assassination, and Washington literally burst into flames. There were fires set all over the place. I was presiding over a case in which later to be Judge Duff [Charles Duff] was counsel for the defendant, it was a personal injury case, and the jury was looking out the window. The old courthouse had a perfect view of downtown Washington. You could look right across at the cathedral and look downtown, panning to your right out of that view, and they could see all these flames and smoke. They didn’t know what was going on but they got so distracted by it that they finally—. It was on a Friday, and the foreman of the jury said, “Judge, my mother lives over there. I can look out the window and see that whole area of Washington burning and I just can’t concentrate. Could you let us go home?” so I did. The whole city of Washington was locked down until through the following Monday. I think it was the following Tuesday before we were able to reassemble that jury and get back to work. The whole area was dislocated.

Much more recently I was sitting in your court, during that interval when I’d come back from sailing, on 9/11/01, and when the airplane hit the Pentagon I was sitting in the chambers of your colleague, Judge Newman [William T. Newman], and the sheriff ran in and said, “May I look out your window?” and I said certainly, and he went over and looked. [I said,] “What’s going on?” He said, “Well we just got a call from one of the units on Columbia Pike that there’s been some big explosion down in Columbia Pike someplace,” and we both went over and stared out of the window. What we saw, the plane had just hit the Pentagon, and later photography, unlike the New York scene where the twin towers were seen immediately at the times of the crashes, the two building, later photography at the Pentagon, the fires were out but you saw the pall of smoke coming up, but we saw the fires because we were looking out just a few minutes after the impact, so we could see the flames down there when all this jet fuel was burning. It was a frightful sight.

JA: Speaking of 9/11, how do you think that’s changed the legal system in Virginia? Do you think it’s had an impact upon our perceptions of the system or our perceptions of what—? With all the talk about the Patriot Act and things of that nature, do we tend to give up more of our rights now because of our fear of attack?

CR: I would like to think that we don’t but I suspect that it’s a subliminal thing with everyone, that judges, jurors, lawyers and litigants are all thinking that anything could be terrorist related. Those are thoughts that never crossed our minds before that. We’d lived in this great isolation behind two great oceans and the rest of the world’s problems are far away, and now we know they’re not. Of course I guess we had bombings in Oklahoma and other places that we knew that terrorism can be quite domestic too, but this type of imported terrorism was something we weren’t thinking about and now we are and it probably colors everybody’s thinking to some degree. Some of the things that we hold dear to us are going to be looked at now very narrowly. I hate to see that but I don’t know how it can be entirely avoided, particularly if this kind of struggle goes on for many years as it’s likely to. I don’t know that we will be embroiled in the foreign adventures in which we are now embroiled all that long but I can foresee this kind of tension going on for many years, with things cropping up in different parts of the world and so much closer to us now because we know it can affect us domestically, so I think there’ll be assaults on deeply held constitutional freedoms all along.

55:05

JA: What do you think the role of the judiciary, both state and federal, is in those assaults?

CR: I think the judiciary has got to do its very best to find the golden mean. Some solutions can be seen, I think, but we cannot foresee all of them. But the judiciary has got an extremely tough road ahead of it in that respect, I think.

JA: When you began sitting as a judge in Arlington in 1967 it was a wide open courthouse, anybody could walk in, anybody could come into chambers, and now we have courthouses with metal detectors and x-ray machines and locked chambers. Do you think that’s affected the relationship between the judges in the various courts around the state and the lawyers and the public?

CR: Well it certainly would have affected it with respect to the public. I would hope lawyers could still find judges just as accessible. They might have to call up and get an appointment to see a judge or something like that instead of just walking in as they used to when I first started. I remember at a judicial conference a judge told a group of us sitting around that he was—. He was a judge down in Norfolk and they had a heavy criminal docket and the courthouse was in a pretty dangerous part of town, and he said toward evening anybody could walk into my office and just shoot me or anything. He said, “there’s no one there to protect me so I applied to the city for a peephole to put in the door so that I could lock the door and if somebody knocked I could see who it was before I open it. Not only that, I got a gun permit and I got a gun and kept it in my chambers.” [Sound drops out from 56:54 to 57:02] It wasn’t two years after that before the supreme court equipped every judge’s bench all over the state with steel bullet proof protection behind the bench so that somebody couldn’t shoot you through the bench itself, and also these alarm buttons that you could pull to summon the cavalry to—.

JA: Panic buttons.

CR: Panic buttons, yes. So that was done before the present situation. We were thinking of domestic criminals there, not foreign terrorists.

JA: Well they say that the most danger any judge faces is generally not domestic criminals or foreign terrorists but family court litigants.

CR: I only ever had one death threat in my life and it was in a domestic dispute, and I have known of three judges to be assassinated during my tenure; two were in domestic disputes and one in a dog case.

JA: A dog case?

CR: The judge ordered a dog destroyed; a vicious dog.

JA: Were those in Virginia?

CR: Yeah.

JA: When you look down at the judiciary now, and obviously you’re looking at the vantage point as a supreme court justice, when you look at the circuit court judiciary as it was when you first went on the supreme court and now, what do you see in terms of trends or the nature and character of the judiciary now as opposed to what it was in 1982?

CR: I think it is probably better at all levels. It amazes me that Virginia was a one-party state then, and it certainly is not now, and you would think that whichever party is in control would be picking its own political activists to put on the bench, but it hasn’t worked out that way. Some of the very best people who are politically inactive entirely but are very good lawyers, and whom the other lawyers want to be on the bench in the community, tend to get there, and there have been, I think, some excellent picks. We have some fine people, perhaps better than ever, I think.

JA: Do you think that’s because of the unique way Virginia selects its judges, by legislative election as opposed to popular election?

CR: Yes, I do, but I didn’t think it would work out this well because I thought that with the changeover of party control in the General Assembly there would be a systematic weeding out, people not reelected when their eight-year terms, six-year terms, twelve-year terms, whatever they were, expired, and that has not been the case. It’s true some judges have been dropped but for reasons other than political, entirely different from political, and Party A seems to reelect judges Party B put on the bench with great regularity. On this court there are people who’ve come on the court from disparate political backgrounds but they vote together. You don’t divide up the factions on the court according to somebody’s political background. I think that’s wonderful, and I would not really have predicted it to work out that way once we became a two-party state.

1:00:32

I remember I met Justice Rehnquist [William H. Rehnquist] for the first time at a cocktail party when he was not yet chief justice, in Arlington, and I had just been elected to this court. He said, “I understand you’ve been elected by the General Assembly, the legislature down in Richmond?” and I said, “Yes, that’s the way it works in Virginia.” He said, “That would be unthinkable in Arizona, where I come from.” He said the legislature there is dominated by real estate brokers and they wouldn’t know who to make a judge. I said well, for one thing, it has been a one-party state so there isn’t much political tension. For another thing it’s a lawyer-dominated legislature so the lawyers are trying to put the people on they think ought to be judges and they defer to the local bar associations in many cases, and they certainly have done so in northern Virginia traditionally. He said, “That would never work where I come from.” Well I didn’t think it would survive the two-party system, but it has, so some of those traditions still go on and I think it’s a good thing.

JA: And of course it survived the fact that it’s not a lawyer dominated legislature anymore.

CR: Exactly, both those things are gone.

JA: And they don’t necessarily always follow what the bar suggests either.

CR: No, they don’t.

JA: But you don’t think that has changed in any way the character of the people that have gone on the bench—

CR: I don’t think so.

JA: —or the quality, rather.

CR: I don’t think so. They look pretty good to me. I’m continually amazed at the quality of the work that the trial judges do that comes up here, and a lot more of them are writing difficult researched opinions now. I don’t know how they get the time to do it. I remember how it was being a trial judge and you don’t have an awful lot of time to do research. I know they have law clerks now and we didn’t in those days but still the product that they’re sending up here is excellent.

JA: So you think we’re doing a good job.

CR: Yes, I do.

JA: That’s good to know. When you see an increase in writing do you think that adds to the value of the work of the trial judges, because there are people that say trial judges shouldn’t be writing; they should be deciding cases right there on the spot without taking things under advisement.

CR: They’re making a lot of law so I think it is a valuable contribution. You know how circuit court cases are being cited everywhere all the time. They never were in my day. There were few of them and they weren’t of the quality that we’re getting today. So, yeah, I think it’s a valuable contribution, of course certainly not in every case. It takes a case that is so complex that it needs that for it to be a contribution.

JA: I’m kind of at the end of the areas of questioning but I have sort of a catchall question for you, which is what are your final thoughts or reminiscences about your years on the Supreme Court of Virginia?

CR: Every job I have had I have liked better than the one I had before. I loved being a circuit judge, I liked retirement, [Laughs] and now that I’ve come back out of retirement I like this even better. I have really enjoyed it. It’s been a wonderful opportunity for me. As you well know, being a judge generally is sort of like sitting in the grandstands watching a great parade go by. You see all of life going by and you don’t actually have to get out there and get stomped in the melee but you are an observer of what’s going on and the things that are going on are fascinating, and you have an opportunity to make a contribution to keeping the peace and order while you’re at it.

JA: You’ve made a significant contribution in the life of this commonwealth, as a lawyer, as a circuit judge and as a justice of the supreme court, both active and senior. How do you want to be remembered, if someone is looking at this a hundred years from now?

CR: [Laughs] You’re kind to say that. I would like to be remembered as somebody who worked hard at doing something he loved and who made a great many mistakes but tried to avoid them as best he could. It has been a great experience for me and I hope that that kind of shows through in what I’ve done, that I rather liked being here. It wasn’t drudgery, it was fascinating work, and I hope some of that shows through in things I’ve written, so I’m grateful for the opportunity I’ve had.

JA: Thank you, Justice Russell.

CR: Thank you.

END OF INTERVIEW

Transcriber: Deborah Mitchum

Date: October 14, 2011

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