The Federal Bench

By Deborah Cupples (JD 05)

Privacy rights. Free speech rights. Property rights. Civil rights.

The list is long and the work profound for the federal judges who hear and decide cases involving the fundamental rights and protections of the American people.

Thirty-four of the men and women now holding these crucial appointments are UF Law graduates. UF Law is fourth among public law schools in the country—ninth among private and public universities—to send graduates to fill the federal bench. In total, 39 have served. In February, U.S. Magistrate Judge Marcia Morales Howard (90) became No. 34 as she moved up to become a U.S. District Judge for the Middle District of Florida.

Appointed by the president and confirmed by the U.S. Senate, federal judges exercise wide authority and discretion in the cases over which they preside in the U.S. District Courts, U.S. Circuit Courts and U.S. Courts of Appeals. Many federal judges devote time to public service and educational activities through writing, speaking and teaching. Most, if not all, as evidenced by the three UF Law graduates profiled here, realize the tremendous impact their decisions have on American lives and in upholding of the Constitution.

Judge Susan Harrell Black (JD 67) 11th Circuit Court Of Appeals

She broke much ground and opened many doors.

When George H.W. Bush appointed Susan Harrell Black to the 11th Circuit Court of Appeals in 1992, Black became the first Florida woman to sit on the 11th circuit.

When Jimmy Carter appointed her to the federal bench in 1979, Black became the first woman to sit on a federal district court in Florida. In 1990, she was the first woman in the 11th Circuit to become chief judge of a district court.

Black was one of two women in her UF Law graduating class of 100—and one of five women enrolled at UF Law at that time.

“It was the norm for women to get through college early and get married shortly after they graduated,” Black said. “I was so anxious to get through law school, I even went through the summer. At 23, I actually felt old to be in school.”

Though her heart was set on doing trial work, Black started her career practicing commercial law in the late ʼ60s.

“At that time, the belief was that women wouldnʼt be good litigators,” Black said. “So it was difficult to join a litigation practice.”

After practicing commercial law for a few years, Black managed to find work with a newly elected state attorney, Ed Austin. That was 1969, and Black was the first woman to become an assistant state attorney in Floridaʼs 4th judicial circuit.

“Trial work didnʼt seem strange to me,” Black said. “Iʼd debated all through college. I was used to arguing in front of people.”

The 1970s had a few more firsts in store for Black. She became the first woman county judge in Duval County. In 1975, she became the first woman circuit judge in Florida.

Though it was outside the norm in the ʼ60s for women to become lawyers, Blackʼs father, William H. Harrell, a lawyer and later a judge, was supportive of her desire to go to law school. His views were traditional and reflected the times, but he also believed in education. His son, William H. Harrell Jr. (JD 74), also went to UF Law.

“During World War II my father was a B17 pilot. His plane was shot down and he was captured by the Germans,” Black said. “If he hadnʼt made it home, my mother would have had to raise me alone. I think that experience enabled my father to see the benefits of a womanʼs self-sufficiency.”

Black still remembers some of her UF law professors. “I didnʼt like Tax, but Jack Freeland was a great teacher and made it interesting,” Black said. “And I had Constitutional Law with Fletcher Baldwin. He was so enthusiastic and made the subject fascinating.”

Beyond the education she received, Black sees her law school experience as crucial to her professional accomplishments.

“Almost every job I got was because a UF lawyer helped me get it,” she said. “I met a lot of people, fine people, in law school.”

After more than three decades, Black still enjoys being a judge.

“A friend of mine calls being a federal judge the best job in law land, and I agree,” said Black. “Itʼs everything great about being a lawyer. Itʼs intellectually challenging and fun. Also, I get to be a generalist. As a judge, I see many lawyers who are great specialists, and they teach me about their fields.”

Black has been married for 40 years. Her daughter, age 20, is not presently interested in a legal career, but that door will be open to her—as it is to so many women—partly because of the paths taken by Judge Susan Harrell Black.

Judge Bruce Kasold (JD 79) U.S. Court of Appeals for Veterans Claims

“Duty, honor, country”—it is the famous motto of the U.S. Military Academy at West Point. This motto still guides Judge Bruce Kasold of the U.S. Court of Appeals for Veterans Claims more than 30 years after his West Point graduation in 1973.

“Judges have a duty to their country,” Kasold said. “A duty to apply the law.”

Kasold was a public servant from the beginning and retired from the Army as a lieutenant colonel after more than 20 years of service. Before the Army sent him to law school, Kasold was an air defense artillery officer. After graduating from UF Law, Kasold served in the JAG corps.

In 1994, he joined Holland & Knight law firm and worked in commercial and government contracts litigation.

A few years into private practice, Kasold again heard the call of public service, which led him to the position of chief counsel for the U.S. Senate Committee on Rules and Administration. In that position, during the 1990s, Kasold marshaled the Senateʼs largest series of campaign finance hearings in a decade and conducted an investigation into allegations of election fraud for a Senate seat. It was the first time since the 1950s the U.S. Senate conducted a full investigation into an election.

“The election-fraud investigation created major turmoil in the Senate,” Kasold said. “But the chairman of the committee, Sen. John Warner, treated all cordially and fairly throughout the investigation, and I held frequent staff meetings to ensure all parties understood the scope, complications and progress of the investigation. After it was over, both sides were still talking to me because, I believe, people perceived my handling of the investigation as fair. Thatʼs when I began thinking about becoming a judge.”

In 1998 Kasold became chief counsel for the secretary of the Senate and sergeant at arms. In that non-partisan position, he advised Senate leaders on general legal matters and political issues. He held that position until 2003, when President George W. Bush appointed him to the federal bench.

In part, it was encouragement from Chesterfield Smith (JD 48) a few years earlier that compelled Kasold to take steps toward the judicial appointment process. Smith was overseeing the expansion of the Washington, D.C., branch of Holland & Knight when Kasold was leaving service and seeking to join the firm. Smith conducted Kasoldʼs interview and became a friend and mentor, and eventually encouraged him to look toward the judiciary.

Hearing roughly 3,000 cases each year, the Veterans Appeals Court is different from other U.S. appellate courts, in that most cases are decided by individual judges instead of panels. Individually, Kasold hears roughly 275 cases annually.

“I enjoy serving on this court,” Kasold said. “I appreciate our veterans. Our court provides the procedural due process they deserve.”

Not having practiced in the area of veteransʼ benefits before joining the court, Kasoldʼs adjustment to the bench involved a few months of intensely studying applicable law.

“The APA doesnʼt apply, but the concepts are similar,” he said. “And lessons from my old Constitutional Law class at UF were also helpful—actually, those lessons have been helpful throughout my career.”

Another adjustment involved the robe itself. “When I first sat down, it was tight around my back and body, causing me to rise and lift the robe,” Kasold said.

“It was obvious from the bench and beyond, which compelled some laughter in the court.”

Kasold finds nothing negative about being a judge. He enjoys preparing for cases and finds oral arguments stimulating.

“Judges are very well prepared to hear oral argument, but each judge in a panel may view the issues from a different angle,” he said. “It is quite interesting to listen to the questions other judges have and the answers provided by counsel.”

Like many judges, one thing troubles Kasold: unprepared lawyers.

“It happens more than you might think,” Kasold said. “Itʼs a waste of the courtʼs time. What do you do with a 1,000-page record that has no references, for example? Whether your client is pro bono or paying a million dollars, a lawyerʼs service should be professional. Period.”

Judge S. Jay Plager (JD 58)

Some remember him as a young professor at UF, where he began teaching fresh out of law school in 1958. That was a few years after Sheldon Jay Plager took part in the Korean conflict as a Navy ensign—and a few decades before his 1989 appointment to the U.S. Court of Appeals for the Federal Circuit.

“Essentially, I had three careers before becoming a judge,” Plager said. “Originally, I wanted to be a Navy admiral, but thatʼs not a family friendly job, so I went landside to become a trial lawyer. UF prepared me well to practice and then preempted my plans.”

Plager embarked on a 30-year career as a legal scholar, focusing on property and environmental law, with teaching stints first at UF, the University of Illinois, and then a deanship at Indiana University School of Law in Bloomington. His numerous publications include a book about Florida water law that he co-authored with UF Law Professor Fletcher Baldwin and then-UF Dean Frank Maloney.

Along the way he spent time at Columbia University, the University of Wisconsin, Stanford University, and Cambridge University in England. Somehow, Plager managed to stay active in the U.S. Navy Reserves, from which he was honorably discharged as a commander in 1971.

“I never could keep the same job very long, so I had to get used to new challenges. Of all the careers I thought about, becoming a judge, particularly on a federal court of appeals, was not one of them,” Plager said. “It was purely serendipitous—being at the right place at the right time.”

The “right place” was the Executive Office of the President of the United States, through positions at the Office of Management and Budget (OMB) under presidents Ronald Reagan and George H. W. Bush. In one of two positions he held at OMB, Plagerʼs office oversaw about half a trillion dollars a year in federal spending.

“For someone who struggles to balance his checkbook, that was a real challenge,” said Plager.“Typically, there are two routes to a federal court appointment,” Plager said. “One is to be politically active.

The other is to come to the attention of the president in some other way. In my case, during the time I worked at OMB I worked closely with the presidentʼs legal staff, and in addition assisted then-Vice President Bush in his regulatory review role. When he became president, I was asked to stay on to help get through the transition, and then I guess they had to find something else for me to do. A federal court appointment is one of those offers you canʼt refuse.”

Even his stints at the OMB came about serendipitously. President Reagan chose Indianaʼs former governor, Otis “Doc” Bowen, as secretary of Health and Human Services (HHS). Bowen needed staff that understood Washington. Plager was just retiring after seven years as dean of the Indiana Law School. Having worked in the regulatory field for years, and having served as an adviser to the U.S.
Environment Protection Agency, Plager fit the bill to become counselor to the under-secretary of HHS.

“At HHS, I regularly negotiated with the White House staff on behalf of the secretary,” Plager said. “I was older than most of them, which seemed to give me an advantage. During the Reagan era, White House staff were not always enamored of HHSʼs social programs, but I was pretty relentless and had some success pushing the HHS secretaryʼs program. After awhile, the OMB guys said, ʻHey, why donʼt you come work for us.ʼ That sounded like fun, so I did.”

During his years on the bench, Plager has seen considerable change, not only in the cases, but in the way judges work.

“The technology is amazing,” he said. “I can work at home and still have access to my office files, and work by computer and fax and phone with my law clerk and administrative assistant. It wasnʼt that easy when I first took the bench.

“Another change is that law is more of a business than it used to be. Because of that, not all lawyers who enter the practice these days choose to stay with it. That has a side advantage for us judges—we can attract some top notch young lawyers as law clerks. Of course, the fact that they can leave clerking and command salaries that are higher than their judges doesnʼt hurt either … at least it doesnʼt hurt the law clerks.”

Plager took senior judge status in 2000, which allows him to have a part-time hearing schedule. His enjoyment of the job prevents him from fully retiring.

“Being on the bench is a constant learning experience. Much of our work involves the application of federal legislation, including some pretty convoluted statutory programs. Statutory drafting and interpretation are not always given the emphasis they deserve in law school. Other cases we hear are often fascinating insights into the latest cutting-edge technology,” he said.

Two things that Plager encounters as a judge particularly frustrate him: poorly prepared lawyers and badly drafted legislation. “We get our share of each. When they combine in the same case, finding the right answer to a dispute can be harder than it should be,” he said. Though he doesnʼt teach classes regularly any more, the quality of legal education is a subject that still concerns Plager.

“I graduated from law school nearly 50 years ago, but I still refer back to basics I learned in my first year of law school, and I can still hear my first year law professors, like Professor Day, talking to me. Sometimes I worry about the education that law students are getting these days. Itʼs crucial for lawyers to get the foundation in basics, like the big three—Property, Contract, Torts—that I was fortunate enough to get at UF.”