October 8, 2015

A Tribute to Judge Richard Cudahy

J. Paul Oetken, Judge Richard Cudahy

by J. Paul Oetken, U.S. District Judge for the Southern District of New York

Judge Richard D. Cudahy, who served for 36 years on the United States Court of Appeals for the Seventh Circuit, died last month at the age of 89. He was beloved by his family and friends, his colleagues, and his many law clerks. He was also admired as a brilliant and influential jurist whose opinions shaped the development of the law in myriad ways.

I served as one of Judge Cudahy’s law clerks from 1991 to 1992, and that year was one of the most rewarding and interesting of my career. The judge was not only a kind and generous boss; he was also a great teacher and mentor. We discussed every case in detail, and through that process I gained great insight into how he thought about law and justice.

Judge Cudahy’s approach to the law was humanistic and pragmatic; he was neither formalistic nor result-oriented. He cared deeply about the judicial craft, taking great care to write opinions that were well-reasoned and principled, while always being particularly sensitive to how legal doctrine affects people’s lives. His sense of fairness and even-handedness pervaded his evaluation of every case, regardless of the background of the litigants involved.  In a prisoner’s appeal in a civil rights case, Judge Cudahy wrote (in response to a colleague’s economic analysis):  “Since the financial net worth of most prisoners is zero and their economic value while incarcerated perhaps less than zero, it is not surprising that efforts to take them seriously as human beings are sometimes scorned. They are not all Jean Valjean, but they are people.”

The judge was modest as a jurist, just as he was modest as a person. He did not pretend that an outcome was obvious when it was not, nor did he construct fancy theories to dictate results of cases.  He was an honest judge who practiced his craft straightforwardly.

He was also extraordinarily hard-working and well-prepared. Every night he would carry a heavy stack of briefs home with him.  When we discussed our cases, he had always read the briefs thoroughly and had his own views (and questions) about each of the issues presented.  He had high standards for his written opinions, going over drafts repeatedly until he was satisfied that an opinion was right, both in its result and in its explanation.

According to his colleague Judge Richard Posner, Judge Cudahy “established himself as one of the nation’s most productive and influential appellate judges, with particular interest and expertise in regulatory and commercial cases, and with a strong liberal voice.” The judge wrote nearly 2,000 published opinions as a judge, including many particularly important opinions in the fields of antitrust, administrative law, civil rights, constitutional law, and criminal procedure.  He was well known for his powerful dissenting and concurring opinions, and he wrote separately more often than most appellate judges.

For all his conscientiousness and passion for the law, the judge was courteous and respectful toward lawyers and litigants.  He was a gentleman in court and out of court. As law clerks, sometimes we would suggest what we thought was a clever metaphor or literary allusion or colorful phrase in an opinion (usually in a footnote). Judge Cudahy would occasionally adopt the suggestion, but only if two conditions were met:  (1) it was not gratuitous, but added to the substantive discussion in some way, and (2) it was not at the expense of a party or a lawyer in the case, who deserved respect.

Judge Cudahy graduated from West Point and Yale Law School, and he had a remarkably wide-ranging set of experiences before joining the bench: Air Force officer; State Department lawyer; CEO of a corporation; law firm partner; law professor; chairman of the Wisconsin public service commission; chairman of the Wisconsin Democratic Party. He authored many articles and speeches in the areas of energy law and administrative law. His interest and expertise in these areas led his law clerks and staff to found the Richard D. Cudahy Writing Competition on Regulatory and Administrative Law, which is run annually by ACS. The judge was very proud of that competition and pleased to be associated with ACS.

Judge Cudahy had 83 law clerks during his tenure on the bench, which began with his appointment by President Carter in 1979.  Of his 83 law clerks, five have become judges; eighteen have become professors; and dozens more have worked in public service and in the private sector throughout the country. As a judge, I find myself frequently thinking about how Judge Cudahy would approach a case or an issue.  I am reminded every day of what an extraordinary role model I had -- and continue to have -- in Judge Cudahy.

Judge Cudahy leaves a tremendous legacy in the hundreds of opinions that contributed to the development of the law, but also in the many law clerks, students, lawyers, and others who had the privilege of knowing him and being affected by his brilliance, his humanity, and his decency.