Fly The Plane

Reflections on the late Judge Gilbert S. Merritt, and on life.

[This is my contribution, The Judge as Teacher, to a symposium in memory of the judge I clerked for, Gilbert S. Merritt of the U.S. Court of Appeals for the Sixth Circuit.]

Gilbert S. Merritt wore a lot of hats: prosecutor, failed Congressional candidate (he always added the word “failed” when discussing his candidacy), pilot, yacht captain, and, of course, father under difficult circumstances. But in discussing his biography, it’s easy to forget that he also spent time as a legal academic. Well, it’s easy to do so unless you were his clerk.

My own image of him is very much that of a teacher. Upon arriving at his chambers, I was proud of my skills in legal analysis, and especially writing. Despite that, Judge Merritt went a long way toward teaching me how to think, and how to write, much more deeply and skillfully than Yale Law School did. And he did it, characteristically, through a mixture of example and explanation.

Usually, he would give us an outline of the opinion he wanted to write, mention some points from the panel’s discussion, and have us produce a first draft. Depending on the intricacy and difficulty of the case, the first draft might come back largely untouched, or substantially revised. When the revisions were substantial, he would always talk me through them to explain not only what he wanted done, but why. Every revision was a learning opportunity, and he made sure they weren’t wasted.^[1] 

Sometimes the reasons were stylistic, and sometimes they were substantive.  On the stylistic side, he favored brevity and clarity. (Almost enough to disqualify him from the Supreme Court right there!). As many clerks over the years remember, he liked to say that if you couldn’t explain what you were doing with a case in eight pages or less, you didn’t really understand it yourself.^[2] And he felt that the law should be as understandable as possible.

One point that I’ve always remembered, and used in both legal and non-legal writing, is the value of quotation. Judge Merritt recommended quotation rather than summarization to lawyers, noting that judges might believe that a lawyer would twist or slant the holding of a case in a paraphrase or a description, but that few lawyers would be bold enough to fake a quoted passage (this was before ChatGPT).  He added that it wasn’t a bad idea for judges to do the same, relying on quotation rather than summary, since some people might share a similar distrust for the bench.

I’ve followed this advice ever since, to the occasional annoyance of newspaper editors, who would usually prefer to avoid quoting other papers. But I was recently at dinner with a couple of eminent lawyers and one very eminent U.S. Court of Appeals judge, and they entirely agreed.  If a case supports your position, it’s better to let that court do the talking for you. Then it is said with a voice of authority, not the voice of a paid advocate.

Judge Merritt was also a deep thinker, who often looked beyond the four corners of a case.  Sometimes this was because there wasn’t clear law on the subject, such as in the question of whether Elvis Presley’s rights of publicity were heritable, leading him to draw on his favorite philosopher, John Rawls.^[3] But he also liked to think about the judicial system as a whole. When I was clerking, he requested research for a piece examining the judicial system overall as an institution, itself made up of sub-institutions like the Supreme Court and the Courts of Appeals and interacting with other institutions in society in a back-and-forth fashion. I don’t think he ever completed and published that article, but it inspired a career’s worth of thought in me.^[4]

The Judge always thought of courts as embedded in politics. He had a strong sense of judicial duty, and fairness, and was quite attentive to the black letter aspects of the law. But he was also keenly aware that the courts didn’t exist as isolated temples of law. They were made up of people, their decisions were applied and interpreted by people, and they were reacted to by people.  He felt the fact that so many judges were, like him, failed politicians was a plus, as it meant that the administration of justice was in the hands of people with some sense of how the real world works. He admired academic theories of law, but often found them—especially the more modern ones—insufficiently sensitive to human realities. Talking about one of my professors from Yale, a famous worshipper of the federal bench, Judge Merritt remarked, “I don’t have quite as high an opinion of judges as he does, maybe because I know so many.”

Not that he was anti-judge; he just realized that judges are human. He often spoke about how the advantage of the incremental, common-law approach to judicial reasoning was that it let you attack a problem one piece at a time rather than trying to craft a solution out of whole cloth.  And it allowed for nuance, and retreat, when things didn’t work out as planned. In this regard he spoke highly of Guido Calabresi’s A Common Law for the Age of Statutes, which encouraged courts to push legislatures to reconsider outdated statutes, though he was perhaps a bit less enthusiastic than Guido.^[5] (Then again, how many people are more enthusiastic than Guido?  About anything? Especially about Guido’s ideas!).

As much as anything specific, the Judge taught a judicial attitude, or maybe a judicious one: Focus on the problem at hand, don’t get too full of yourself, know your limitations, but always try to do justice as well as simply interpreting the law. “Justice as Fairness” was the title of an article he wrote about John Rawls, and that’s as good a three-word summary of the Merritt judicial philosophy as I can imagine.^[6] Sometimes the law compelled him to rule in ways he thought unfair (see, e.g., the sentencing guidelines), but when it did, he often made what was happening very clear.

The judge taught me some non-legal things, too. His generally low-key method of running his chambers played into what became my management style. As a law professor, I don’t manage much—a secretary, a research assistant (maybe two or three if I’m busy on a big project) and that’s about it. Like the judge did with his chambers, I try to make clear that what we’re doing is important and must be done well, but that I’m chiefly interested in the results and not in a lot of pointless spit-and-polish or ceremony along the way.

I also learned from his parenting experience. Judge Merritt tragically lost his wife to suicide when his children were quite small, and he raised them as a single parent. The year that I clerked for him, his youngest, Eli, had just gone off to Yale, and he was an empty nester for the very first time. Though he had not been a monk in previous years, it was amusing to go out to dinner with him and see various Nashville society women eyeing him, and sometimes coming over to our table to address him, clearly viewing the single Judge as a catch. He talked sometimes about his experiences, and I acquired a good deal of understanding about life in middle age that was new to me at the time. I was delighted when he wound up in a long-term relationship with Martha Ingram, about whom he seemed to care very much.

I sometimes flew with the judge, himself an experienced pilot, and those were good times for conversation. Though some clerks like to disparage his piloting skills (perhaps based on an analogy to his admittedly unimpressive parking skills), he always struck me as careful and competent.  (And his airplane, a Beech King Air, was certainly better maintained than the cars he took over from his mother when they were mostly used up. Like many people with old money, he had a streak of frugality). But he described himself as a lazy pilot, letting the autopilot do most of the work except for takeoffs and landing. He may have been ahead of his time, as that’s how pretty much all commercial piloting is done nowadays. 

But I remember him saying that lesson one from pilot school was “fly the plane.” Strange noises? Fly the plane. Zero visibility? Keep flying the plane. Stomach bug kicking in? Fly the plane. Whatever was going on, first you had to fly the plane. Then you could try to address everything else. He saw that as something of a life lesson. Whatever is most important is what you have to do first, despite distractions, interference, or a powerful desire to be elsewhere at the moment. And while you can be on autopilot a lot of the time, when things demand your complete attention, they have to get 100% of your attention.

One of my old law professors, Charles Black, said that he didn’t think students retained a lot of the facts and rules and doctrines that they were taught in law school. Instead, they took away an image of how the professor’s mind attacked problems. Since, he said, most learning is imitative, it was important as a professor to show students not only the results of your thought, but also the process. As a law professor myself, I’m guided by that principle, and as a former Gilbert Merritt clerk, I’ve benefited from the example that he provided, in and out of court. I’ve tried to fly the plane.

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^[1]. Another lawyer I was fortunate to work under, a partner at Dewey, Ballantine named Gerald M. Rosberg, took a similar approach. He too was a former law professor, having left a tenured position at the University of Michigan Law School to go back to practice.

^[2]. Other clerks recall the page limit slowly creeping downwards.

^[3].  See Rawls, supra note 5.

^[4]. See Glenn Harlan Reynolds, Chaos and the Court, 91 Colum. L. Rev. 110 (1991).

^[5]. See generally Guido Calabresi, A Common Law for the Age of Statutes (1999).

^[6]. See Gilbert Merritt, Justice as Fairness: A Commentary on Rawls’s New Theory of Justice, 26 Vand. L. Rev. 665 (1973).