Oboe Judging

David Freeman Engstrom1Professor of Law, Associate Dean for Strategic Initiatives, and the Bernard D. Bergreen Faculty Scholar at Stanford Law School.

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This short Essay is one of a series of short remembrances of Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit in honor of her twenty-five years (and counting) on the bench.

Seventh Circuit clerks gathered each month for lunch with a rotating cast of judges—a get-to-know-you tour of the court’s Article III personalities.  Other judges discussed a recent case or talked about their pre-bench career, a surefire recipe for a forgettable session.  Judge Diane Wood took a different approach.  She played the oboe.  

Effortless as the performance seemed, this was no mean feat.  The room was small.  The ceiling was low.  The acoustics were terrible.  But the musicians in the audience—or, in my musically challenged case, those from musical families—knew just how hard it was.  Bennett Cerf (the publisher who won United States v. One Book Called Ulysses and brought James Joyce to the American masses) called the oboe, with its double reed and alternate fingerings, “an ill-wind that nobody blows good.”  Marcel Tabuteau, one of the great American oboists, added, “For forty years I have played the oboe, and still I never know what is coming out.  It is a perpetual anxiety.”  Only the hardy or the foolish, music cognoscenti know, dare to play the oboe. 

That lunch was nearly two decades ago.  In the years since, and as I have made my way in the world, Judge Wood’s recital at the clerks’ lunch has come to represent for me a wider approach to lawyering and living.  Do the hard things.  Never shrink from a challenge.  But find time to enjoy the music of life, even when you’re not sure what will come out.  And when the alternative is another dry rehearsal of careerist pursuits, play the oboe for everything it’s worth, even—perhaps especially—in a crowded conference room.

These oboe-based lessons were on clear display from the first oral argument of my clerkship, a sitting that also featured two of the court’s more distinctive judicial personalities.  Judge Wood used one of her first volleys from the bench to correct counsel on a fact in the record below—not appellate counsel, mind you, but a lawyer who had litigated the case throughout.  Her mastery of the facts exceeded his.  The contrast with the other judges on the panel was also stark.  One of them repeatedly Googled from his laptop, injecting on-the-fly facts into the proceedings and stretching judicial notice beyond all recognition.  The other mostly stayed safely within the confines of economic theory.  

I’m guessing the argument was not the first time Judge Wood had corrected a lawyer via record pincite, and it was not the last. I witnessed it many more times during my year in chambers. Each time it happened, the message, and the essence of “oboe judging,” was clear. Preparation matters. Facts matter, even if they’re hard to dig out. So read everything from a case you can get your hands on. And keep theory and assumptions and normative judgments at bay until you’ve done that hard work.

None of this is to say that Judge Wood was atheoretical, whether in chambers, at oral argument, or on the written page. No one who has spent significant time at the University of Chicago Law School could be that.  But sweat equity, her turn on the bench announced in my first weeks as a clerk, is the first and most important obligation of a lawyer and judge.  Also, leave the hard blowing to the oboe; never bring it to court. 

That lesson alone would be enough of a contribution to my professional development as a lawyer and law professor. But the demands of oboe judging were no less evident beyond the core work of forging consensus and writing opinions. Oboe judges are also ceaseless judicial ambassadors. To spend a year in chambers was to assist with a dizzying array of other activities. Talks to local bar groups. Research for NYU’s James Madison lecture. Law review symposia. Moot courts. Course prep for civil procedure class at the University of Chicago Law School or a summer teaching stint in Paris (in French!). And that was relatively early in Judge Wood’s time on the bench, before her tireless work with the American Law Institute, which I’ve now witnessed firsthand. And it was before her six-plus years as Chief Judge.

My year’s worth of lessons in the demands of being a judicial ambassador peaked a couple of years later with a chance meeting in Washington, D.C., when I was in private practice.  On Capitol Hill for meetings on behalf of a client, I nearly ran into Judge Wood in a sea of suit-wearing D.C. types as she rounded a corner on the sidewalk in front of the Library of Congress.  A warm hug gave way to warm conversation but then suddenly grew chillier, culminating in a nervous glance over my shoulder.  “I should probably catch up with the Russian Supreme Court,” she finally said.  All these activities come at nontrivial personal and professional cost.  The core work of judging is that much more difficult to complete, stacks of briefs regularly set aside to go home for the weekend.  

Of all the lessons learned, lawyering skills honed, and professionalism observed, there’s something still more important I absorbed in chambers now that I’m firmly middle-aged and a dad to two boys.  Time and again, the announcement of a phone call from Katy, David, or Jane would instantly kill dead a colloquy about a case and send me hustling out of the Judge’s office to return to mine.  Behind me came a radical transformation in timbre, from the serious, stern, and judicial to something higher-pitched, joyful, and (forgive the gendered term) schoolgirlish.  Judge Wood’s merry voice would carry all the way back to my office—the second in the row of clerk’s offices—as she delighted in whatever news her children relayed.  

This is both a testament to values, but also to raw talent and oboe-level grit.  One need not dig hard into statistics to see the trailblazing path Judge Wood has walked.  When she was born in 1950, women were just 4 percent of American lawyers—a measly 7,000 or so nationwide.2U.S. Census Bureau, Table 1—Detailed Occupation of the Experienced Civilian Labor Force and of Employed Persons, by Sex, for the United States, Urban and Rural: 1950.  When she entered the University of Texas School of Law in 1972, that percentage had barely ticked up to 5 percent nationwide,3U.S. Census Bureau, Table 223. Detailed Occupation of Employed Persons by Race and Sex: 1970. and women made up only a modestly higher 17 percent of her 1L class.4Review of Legal Education, 1973 Law Schools & Bar Admission Requirements in the United States 33 (1973) (reporting 108 women among 642 students in the 1972 entering class at the University of Texas School of Law).  When she joined Justice Harry Blackmun’s chambers as a law clerk in 1976, she was just one of four female clerks at a Court without a female Justice.5The other female clerks were Judith Miller, for Justice Potter Stewart, and Susan Low Bloch and Ellen Semonoff, for Justice Thurgood Marshall.  Upon her appointment to the University of Chicago Law School faculty in 1981, she was the sole female professor (and also eight-months pregnant), and only the third female professor the school had ever hired.  In 1992, she was the first woman awarded a named chair.  And upon her elevation to the Seventh Circuit in 1995, Judge Wood became only the second woman to serve on that court—a particularly stark “gavel gap”—and, even with the uptick during the Clinton administration, she stood out at the time as one of only thirty women across the entire United States Courts of Appeals.6Barry J. McMillion, U.S. Circuit and District Court Judges: Profile of Selection Characteristics, Congressional Research Service (Aug. 1, 2017) (link).  See also Federal Judicial Center, Biographical Directory of Article III Federal Judges, 1789–present (link).

Here, then, is the ultimate marker of oboe judging.  Judge Wood has accomplished all that she has—on the bench, at the Justice Department, in an influential canon of opinions that dots my Civil Procedure course and many others, in law review articles, and in her unflagging engagement with the ALI, judges both domestic and foreign, and moot court contestants—while at the same time raising three talented, kind, and devoted children.  That, I’ve learned since my year in chambers, is surely one of the few things more demanding than the oboe.  

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David Freeman Engstrom is Professor of Law, Associate Dean for Strategic Initiatives, and the Bernard D. Bergreen Faculty Scholar at Stanford Law School.

One thought on “Oboe Judging

  1. I came upon this article by chance, one of the delights of internet browsing. The title, Oboe Judging, intrigued me, and so I read. I was born in 1950, like Judge Wood, but I graduated from Chicago Law before she arrived. I later became aware of her as a prominent law professor and then as a widely admired Circuit Judge. I congratulate Professor Engstrom on a beautifully written, clever, and poignant profile of Judge Wood. It left me with a greater appreciation for the person and the instrument.

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