Robert Henry, Chief Judge of the Tenth Circuit Court of Appeals, reflects on the developments in the Russian legal system following the fall of the Soviet Union.

In January 2008, Robert Henry became Chief Judge of the U.S. Court of Appeals for the Tenth Circuit, which includes the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Judge Henry served in the Oklahoma House of Representatives from 1976 to 1986 and was the state’s attorney general from 1987 to 1992. He was in private practice from 1977 to 1987. U.S. Supreme Court Justice Stephen Breyer and retired Justice Sandra Day O’Connor participated in Judge Henry’s investiture ceremony.

– When in your life did you know for certain that you would become a lawyer?

– My father was a lawyer, and my uncle, who is the father of Oklahoma’s governor Brad Henry, also was a lawyer. It was always sort of assumed that I would be a lawyer. I liked to debate. I liked to write, and was a good student. When I enrolled in the University of Oklahoma, I thought I would be a lawyer. Then, I started taking Political Science classes, and I loved Political Science. When I graduated, I was in equipoise – do I want to become a graduate student in Political Science, or do I want to become a lawyer. That summer I went to Japan to work on a business venture, and that caused me to lay the debate aside. When I came back, I had not made up my mind yet, so I decided to go to law school. It was a very close decision.

Since that time, I was elected to the state legislature, I became chairman of the Judiciary Committee. I also became chairman of the Appropriations Committee that makes judicial appropriations. I became a member and then a life member of the Uniform Law Commission representing Oklahoma. I was elected attorney general of the state of Oklahoma. I then became dean of a law school. Then I became judge, and then chief judge on the second highest court in the country.

It is doubtful that I would have been that lucky in the Political Science realm.

– President Medvedev, a law professor for most of his life, recently said in an interview to Financial Times that for every person studying to become an attorney the position of judge is the absolute pinnacle of career advancement and a lifetime achievement. In your case, was there any kind of a master plan for entering the federal judiciary?

– There was no master plan. I thought that I would be in politics for a while. While I was attorney general, I thought I might run for governor or run for a U.S. senator. And then, very frankly, I had a divorce, and that was a difficult situation.

I was invited by the faculty of the Oklahoma City University to become the law dean. It was a unanimous request, and I don’t think the faculty unanimously agreed on anything again. It was when I was law dean that some people came to me and said that there was an opening on the tenth circuit. I was asked whether I would consider applying. At an earlier point in my life, I did not want to be a judge, as I thought that it would be too confining. I liked to be with people. Judges, of necessity, have to be cloistered. The reading is so much and the ethical concerns are important. But as I’ve gotten older, I became interested in the law and the development of the law. I said, yes, I would like to do that.

It’s an amazing situation how you become a federal judge in America. There is no guaranteed way. Eventually, you need to get some help from a United States senator, and the President has to make the appointment. I had once sued Bill Clinton when he was governor of Arkansas, but he forgave me for that and nominated me. 

– Lawyers – and judges especially – are thought to be very conservative people. At the same time, to be substantially just, the law must reflect the general values of ordinary people. How do you reach a balance between adhering to traditional principles and discovering innovative approaches to old issues?    

– You’ve hit on one of the great problems of the law. American legal scholar Roscoe Pound has a phrase that captures what you said. He said: “The law must be stable, yet it cannot stand still.” This is a remarkable thing about the law, and it does not always do it well. The law, in many ways is a very conservative enterprise because radical changes are very disruptive to business and personal relationships. The law tends to move slowly, debate, and deliberate.

In common-law countries, we have developed a unique system that allows the courts themselves to have some flexibility – they don’t need to go through the legislature. Some of the legal doctrines can evolve through the courts. You don’t have to run down to the legislature every time you want to make a minor adjustment. 

I think, now, federal law in America is in a more conservative mode. There used to be more of a willingness to try to help Congress out. If Congress would write a statute and, perhaps, not draft it very clearly, judges usually said “We think we know what they meant, and the purpose of the statute is this, so we’re going to interpret it that way.” There is less of that now, and more people are saying: “It does not make too much sense, but they wrote it that way, so we’ll do it that way. If they want, they can fix it.” Right now, I think that American federal law is not innovative. States have more leeway.

International law continues to have a growing effect on all countries. Russia, for example, joined the Council of Europe. All of the sudden, by signing that document, you get a whole body of law.

I think Americans do not understand just how much international law governs us right now, for example the regulations of the World Trade Organization. Those treaties have a dramatic effect on our day-to-day law. Many Americans are afraid of that, but we signed these treaties, and they are hugely beneficial.

In the modern world, you have to give a little to get a little.  

– You have worked in all three branches of the U.S. government. On the state level, you served as an Oklahoma legislator and as attorney general. Right now you are the chief judge of the Tenth Circuit Court of Appeals. In your assessment, which of the governmental departments has the highest and the longest-lasting effect on defining the way people live in society? 

– I tend to think that the legislative branch is the most important… For the past few years, opinion organizations have take polls of what branch of government people trust more, and the courts always win, which is intriguing because at least half of the people that come into court leave irritated. Yet, Americans understand the independence, impartiality, and integrity of our judiciary. We really are the oldest independent judiciary in the world. I think people know that we are trying to find the right answer. Because of life tenure and adequate resources, it is not possible really to lobby judges. People feel good about our system, and I think that’s why we score the highest.  

At the same time, I think that the legislature is the most important branch of government, and I worry that campaigning is so expensive and vicious these days that talented and young people could give up and not run for office. I was 23 when I was elected, and really feel that the things I accomplished in the legislature made Oklahoma better. It’s really important for the legislative branch to attract good people. 

– Judge Henry, you visited Russia and the countries of the former Soviet Union on multiple occasions. Why so? Do you have a special interest in Russia?

– I have not been as much as I would like. Growing up during the Cold War was an amazing experience, and my parents always had a lot of books around. I remember they bought a Time-Life series of countries, and the two countries that I remember the most are Russia and Japan. I have no idea why those two particularly attracted me. I remember looking through this book and seeing the photograph of the Patriarch. I remember seeing the May 1 parade and decorated politburo members looking over the balcony. We don’t do that in America so much, and that was a little scary.

I remember looking at the pictures of the Kremlin, and for some reason, it was so interesting to me. When I finally got to tour the Kremlin, it was a moving experience. I could hear the dirge-like music that I find so beautiful. I could sense the history, I could smell the incense. Over here is Ivan the Terrible… In St. Petersburg, I visited St. Peter and Paul’s Fortress. You go there, and there are other leaders of church and state. There is a sort of mystical attraction for me. I just do not know where it comes from, but it just always has been so interesting. I think Peter the Great was interesting, I think Catherine was interesting. Russia is such a huge country. How it has existed and remains so vast with so many different cultures is very amazing. Of course, I tend to live in the past. Some people say that I’m a Renaissance man. My associate dean said “You are not a Renaissance man. You’re a fifth-century Athenian with a multiple personality disorder.” Maybe some of the Greek connection is part of it. I think the Greeks really made the West, and there is a great deal of influence of Greece in Russia, in religion and in art.

I also think that the world would be a better place if Russia and the United States would be good friends. I think we share some values, and I think that the stability of the world would be enhanced.     

– If I remember correctly, the first speech you gave while traveling in Eastern Europe was in 1996 at the Constitutional Court of Belarus. You have obviously been tracking the changes that have taken place in the legal systems of former U.S.S.R. states. How would you describe the progress in the case of Russia?

– One of the things that I find interesting is, as the Russian President noted in a recent speech, that the modern Russian judiciary is only fifteen years old. I think it deserves more credit than it has been getting. It has been very innovative. Russian courts are experimenting with jury trials. Many European countries don’t use jury trials.

Alexis de Tocqueville loved jury trials. He was really impressed with that system and said that France needed to do it. It teaches people about their government. All of the sudden, the state says to people “You are the government, here are the rules, you decide.” I think it is remarkable and wonderful. I do not know whether jury trials would work in Russia, but I think that it’s wonderful that the courts are trying to use them.

One of the things we do well in this country is our intellectual technology – computers and case management. Chief Justice Ivanov of the Arbitrazh Court has been working with us and seeing the progress we’ve made. He is rapidly increasing the publication of cases in the Arbitrazh court. I think it is essential for business that these things are published and disseminated.

Even in a civil law country, even if you don’t have the attention to precedent that we have, precedent is alive and well. If you decide a bankruptcy matter a certain way, it just makes sense to decide a similar matter that way again. Once you resolve some business disputes a certain way, unless things change, or unless there are reasons to revisit those decisions, it makes great sense to apply the same standards. But if you don’t have it in writing, how do you know? I think that is also a great step forward. I noted in the Russian President’s recent address, he even touched on a no-no issue, corruption. I think he is absolutely right – the problems were inherited from the XVIII and the XIX centuries. The polls still show that the Russian people do not have a great deal of confidence in the courts. President Putin increased judicial compensation, and that is essential. If judges do not make a living wage, there may be temptations… Not all of them are overtly corrupt. They may have to take a side job, or a secret side job.

In Chief Justice Robert’s report on the judiciary, there is an amazing story about Justice Sidorenko. The Russian court system, looking at the American system, decided to get an independent budget from the Ministry of Justice, and it happened. In America, we would say that of course you would have an independent budget from the Department of Justice, but we only did it sixty years ago. It took us 150 years to figure that out. Of course, you don’t want the Department of Justice to make your budget, they are the prosecutors. They are going to give in tight dollars.

Given the fifteen-year existence, I think there has been some remarkable progress.     

– You are closely acquainted with Chief Justice Anton Ivanov of the Supreme Arbitrazh Court of the Russian Federation, whom you hosted in Washington. You also know well Justice Yuriy Sidorenko, Chairman of Russia’s Council of Judges. To what extent do the individual qualities of the people in leadership influence the course of reforms?

– I think hugely. I think there is a division in the reform movement. A lot of people say that you’ve got to work from the bottom up. You’ve got to get good judges, and you’ve got to develop confidence in the local communities. That is true. Maybe there needs to be an increased emphasis on that. But I cannot get over in this country what would have happened to our judiciary without John Marshall. He was not the first chief justice, but the first great chief justice, and chief justice for a long time. He got our courts started in the right direction.

There are opportunities now in Russia. You’ve got a fifteen-year-old system and the reformers are Russia’s John Marshalls. Key leadership at the top can play a huge role. Probably, I am a little bit biased because I know these two people, but I have been really impressed by them. Justice Sidorenko has been chairman of the Council of Judges for three terms. We don’t have an elected Council of Judges position, but if we did, I can’t imagine anyone would be elected three times. I noted that Chief Justice Ivanov was at a major address with President Medvedev.

When I was dean of the Oklahoma City University College of Law, St. Petersburg mayor Sobchak came and gave a wonderful speech.

The address that the Russian President recently made sets out all the right things. The law needs to have priority over administrative regulations. We still battle that here. The agencies have all this law, and we have to review it whether it is arbitrary and capricious. Mr. Medvedev also said “Our citizens should not fear the courts and should go to court whenever necessary.” It seems to me that he is saying all the right things. The initial actions have been the increase of judicial salaries and the implementation of anti-corruption measures.

I think that the law is like science in that regard: science rarely prevails in rigid societies. Societies where church and state are merged, where there are rigid guidelines – “we’ll all think that way” – it’s a disaster when that happens. If there is no room for independent thought, if you don’t have free press, you’re not going to have science either.

Right now, things are going to be good in Russia whatever anybody does, when oil is 130 dollars a barrel. But it will not last… I think that people have come to understand that. You’ve got to develop structures that welcome international business and international ideas.

The communist state was lucky that it did as well in science as it did. Genetics, for example, were a disaster in Russian science, because no one bought into Mendelian genetics. Rocket science and physics nobody tried to impose upon Russian scientists… I think it is important to develop an open society for ideas to flourish.

Art often shows us the way. If the artists are creative, you can see a society that is creative.        

– One of the worries of American companies that wish to do business with Russia is that, in the views of their executives, Russian law accords only few protections to intellectual property rights. Is this a well-founded fear?

– Intellectual property rights are in dispute all around the world. We’ve had the Copyright Term Extension Act here in America, we’ve had the Uruguay Rounds… I think that the world is moving towards consensus on this issue. I think Russia would be well-served to continue moving in that direction. It is the same point that we were talking about with the science analogy. If you don’t protect these property rights, people are not going to produce any intellectual creations there; they would go somewhere else.

Intriguingly, in a recent case that I had, one of the issues was whether some Russian music that had moved into the public domain would have to move out of the public domain because of international agreements on extending copyright protection. In America, these are sometimes called the Mickey Mouse and Minnie Mouse rules because Disney has lobbied Congress steadily to increase protection.

Some of the works of Shostakovich and Prokofiev were involved in this controversy. It was a very interesting case with a clash of copyright law and First Amendment law. We remanded the matter to the lower court. It was a big case, one of the hardest decisions I’ve ever written.     

– Serving as the chairman of the Committee on International Judicial Relations of the Judicial Conference of the United States, you have had the chance of visiting with judges from many different countries of the world.

Many of these jurists come to the U.S. to learn of how justice is done in one of the most democratic countries in the world. What elements of the American legal system do the foreign judges most frequently wish to emulate?

– Unquestionably, the most popular aspect of the American system is the independence that our judges have. People often misunderstand that phrase. When you say that a judge is independent, he does not get to do what he wants to do.

I love music, but only one time in my life did I get to conduct a symphony orchestra, and it was one of the most wonderful things. If I could come back again, I would be a conductor. One of the things I noticed is that when you pick up the baton, all the instruments come up. When you’re conducting, you often give the beat, and you give dynamics with your other hand. Conductors always know the beat and know the tempo that it all needs to go by. You can’t just go up there and do stuff. There are rules, and you feel them…

Judges are independent so they can be impartial, so they can be disinterested. It is not possible to be impartial without independence. You have to be disinterested in what side wins. It is an art. You have to work at it all your life as a judge. That is why we have appellate courts to take a second look. That is why there are three of us on an appellate panel, unless the matter goes on an en banc review or goes to the Supreme Court. Other judges look at what happened. The independence of the courts is by far the most popular American scheme.

– Many foreigners in the U.S. complain that under the rules in this country, the constitutionality of legislation may not be challenged until there is actual injury resulting from the application of that law. What are some aspects of the court systems of other nations that you found interesting and appealing?

– I like our case-in-controversy requirement. We are talking here about the inherent conservatism of the legal system… We are reluctant to give an opinion unless there is a real fact situation. We do sometimes give declaratory judgment, but even in that scenario, there tends to be a real case or controversy.

I do like that in some European systems, judges have better salaries, and I’m hopeful that America will do that. There is a bill before the Congress right now, but it is doubtful that it will pass.

In the U.S., we are very big on the old English cross-examination system. In the Australian system, the expert witnesses of both sides can talk to each other. I think that it would be great. You’d have to have a whistle at some point, but why not let them talk to each other.

Some foreign judiciaries encourage more judicial exchange than we do, and I think that’s good because all judges have the same problems. It is useful to talk to people who have dealt with similar concerns.

For example, terrorism is somewhat new to us, but it is not new to the legal systems of some other countries. Maybe we should be talking to them more. Chief Justice Barak of Israel’s Supreme Court wrote an opinion outlawing torture, but he wrote it prospectively. He said that, under the Israeli constitution and laws, torture is illegal, but that decision would not go into effect for a certain number of months. If the Knesset disagreed, it could change the law within that time period. It did not.

We cannot take the same approach in America, but I think that having the legislature and the judiciary communicate a little bit more is something that we should figure out how to do better.