SENATOR JOHN WARNER – THE APPELLATE CONNECTION

(Posted May 28, 2021) Virginians joined the nation this week in marking the passing of Senator John Warner, who died Tuesday at the age of 94. Other stories have marked the many waypoints of his life and career, and I won’t replow that field. I have only one memory to share, and because it has a connection with the appellate world, it’s appropriate to set it down here.

To the best of my knowledge, I was in the same room with the senator only once. It was a large room, so I can’t say that I met him. It was a meeting of a bar association of some sort, probably 30-35 years ago, back when I was a baby lawyer. The senator was the keynote speaker for the gathering.

Unfortunately, he was late; possibly gobbled up by some committee meeting in Washington. The hosts of the meeting periodically announced that he was on his way and would arrive shortly. We finished our salads and then our lunches and even desserts, and still waited.

Eventually he did arrive and was ushered to the front of the room where he sat at a table, listening to a slightly overlong introduction from what was probably the president of that bar association. I recall watching with fascination as he sat there, not eating the lunch set before him, but biting into several lemon wedges. It was almost as though lemon juice was his lunch, bringing to mind the song lyrics, “Lemon tree, very pretty, with the blossoms oh, so sweet; but the fruit of the poor lemon is impossible to eat.” I wondered how anyone could give a speech with the taste of lemon juice in his mouth.

Eventually he rose to speak. He was courtly, as always, and spoke engagingly for perhaps 30 minutes. He used no notes. I don’t know if he had delivered that speech a dozen times before in other venues, or if he merely made off-the-cuff remarks based on a profound repository of knowledge. Still, it was impressive to hear what seemed like a polished speech, delivered extemporaneously.

The only tidbit from the text of that speech that survives in my memory is his report that he wasn’t at the top of his law school class, so when he applied for clerkships afterward, he figured he was already a step or two behind those who had received higher grades than he did. He described his approach to his real target – a jurist I now know to have been Judge E. Barrett Prettyman of the prestigious DC Circuit. When Warner arrived for that interview and was shown into the judge’s presence, he acknowledged that his grades probably weren’t equal to the last candidate’s. “But I’ve studied your work, and I’ve read every decision that you’ve ever authored. If you ask me about any of them, I can tell you any details you want, right here and right now.”

It worked; Prettyman hired him and the young lawyer and Korean War veteran got his first exposure to the law in the world of appeals. He would go on to be an assistant US Attorney, the Secretary of the Navy, and … well, you know.

The senator’s admission about his grades resonated with me. Did you perceive that I was at the top of my class? Law review? Order of the Coif? Not even close. If you’ll permit me an oxymoron, I was an extraordinarily average law student. I think I know which hallway the law review’s office was on, but I’m not sure because I never walked down there; and I didn’t even know what a coif was back then, or how to pronounce it.

I learned from the senator that being an ordinary law student wasn’t a career-ender. It just meant that I had to work a bit harder to ensure that I wouldn’t be an ordinary lawyer. Whether I’ve succeeded or not isn’t up to me. But I got the roadmap from a courtly, silver-haired senator who didn’t know I was in the room. I’m still grateful to him for showing me the way.