Remembering Robert A. Katzmann

The Honorable Robert A. Katzmann

Former Chief Judge, U.S. Second Circuit Court of Appeals

Along with so many others, we mourn the passing of Robert A. Katzmann, senior judge of the United States Court of Appeals for the Second Circuit. Bob’s accomplishments as a scholar, a federal judge, and an institution-builder are likely to have a lasting impact. His personal characteristics—as a warm, caring, gentle, human being—fill us with both deep appreciation and a profound sense of loss.

Bob was the first political scientist to be appointed to the federal bench. He went on to become the Chief Judge of the prestigious Second Circuit Court of Appeals, based in New York City. Prior to that time, at the Brookings Institution and at Georgetown University, he wrote important books on the courts, Congress, and bureaucracy in which a central theme was the need for better cooperation between different branches of government and, more broadly, for mutual understanding and respect. How prescient he was, and how important that message is today!

Robert Katzmann was born on April 22, 1953 in New York City. His mother was born in Brooklyn; His father, an electrical engineer, escaped from Nazi Germany three years after Bob’s grandfather was killed by the Nazis during Kristallnacht.

Bob earned a B.A. degree with summa cum laude honors from Columbia University. He then earned a PhD in Government from Harvard University, where he studied with two legends: Daniel Patrick Moynihan and James Q. Wilson. He also received a law degree from Yale University.

After clerking for Judge Hugh H. Bownes on the First Circuit Court of Appeals in Boston, Bob accepted a job at the Brookings Institution as a Fellow in the Governmental Studies Program. While at Brookings, he founded and headed the Governance Institute, an organization devoted to exploring, understanding, and ameliorating challenges associated with the separation of powers and federalism. After teaching part-time, he joined the Georgetown University faculty in 1992 as the Walsh Professor of Government and as a member of the Public Policy and Law faculties.

As a scholar, Bob was seldom content to focus on one branch of government at a time. For example, in Institutional Disability: The Saga of Transportation Policy for the Disabled (Brookings, 1986), he discussed flaws in each branch’s decision making processes which were exacerbated by limited understanding and cooperation. These misunderstandings, encompassing all three branches of government, led to numerous zigs and zags as the federal government tried to decide the relative importance of equity and efficiency in strategies for improving transportation access for disabled citizens.

In Courts and Congress (Brookings, 1997), Bob focused on problematic communications and understandings between the legislative and judicial branches and wrestled with the challenge of achieving “judicial independence in a system of interdependent responsibilities” (p. 3). His suggestions for improving the Senate’s “advice and consent” role are thoughtful and balanced. His critiques of leading theories of statutory construction, including the “textualist” approach and public choice theory, are trenchant, yet never mean-spirited. His recommendations for improving communications between the two branches are rooted in some original empirical research. He found that members of Congress are woefully unfamiliar with leading decisions made by the D.C. Circuit Court of Appeals. Bob makes a compelling case that this extreme separation is neither required nor salutary. A key conclusion is that direct communication between judges and legislators need not compromise judicial independence.

While writing books and articles, Bob was actively engaged in reforming the policymaking process. Over a period of years, he worked closely with the US Judicial Conference, the Administrative Office of the US Courts, the Federal Judicial Center, and other groups to strengthen communication and understanding across branches of government. Later, as a judge, Bob would serve as chair of the Judicial Conference’s Committee on the Judicial Branch. For his many scholarly achievements and for his practical efforts to actually improve government functions, Bob received the APSA’s prestigious Charles Merriam Award in 2001.

In 1999, President Bill Clinton nominated Bob to be a federal judge in the US Circuit Court of Appeals for the Second Circuit. Bob was the first federal court nominee who had both a PhD in political science and a law degree. At his Senate confirmation hearing, Sen. Daniel P. Moynihan (D-NY)—Bob’s mentor—praised Bob as “the finest lawyer/scholar of his generation.”

As a federal judge, Bob was wise, conscientious, collegial, and productive. He wrote many important opinions over the years, including two recent seminal cases: Zarda v. Altitude Express (2018) and Trump v. Vance (2020). In Zarda, the court confronted the question of whether discrimination based on sexual orientation violated Title VII’s prohibition on discrimination “because of… sex.” In the majority opinion for the en banc court, Bob wrote that discrimination based on sexual orientation does indeed violate Title VII. Two years later, in Bostock v. Clayton County, Georgia (2020), the US Supreme Court upheld the Second Circuit’s ruling in Zarda, with Justice Gorsuch writing the majority opinion.

In Trump v. Vance, the Second Circuit had to address an issue that had become highly politicized—access to President Trump’s tax returns. At issue was whether the Manhattan District Attorney, Cyrus Vance, had the right to subpoena Donald Trump’s accounting firm for tax returns in connection with a grand jury investigation. In a carefully drafted opinion that explores the history and origins of the concept of executive privilege, Bob concluded that presidential immunity does not preclude a county prosecutor from subpoenaing documents held by a third party. In 2020, the Supreme Court upheld the Second Circuit, with Chief Justice Roberts writing the opinion of the Court.

Somehow, despite the many duties of a federal judge, Bob found the time to write an important book, Judging Statutes (Oxford University Press, 2014). In this book, Bob weighs key arguments in favor of and against the use of legislative history by judges. This book, now in its 7th edition, is Bob’s most precious gift to future generations of law students, lawyers, and judges who must somehow try to grasp and operationalize statutory meaning.

Despite his many official duties, Bob remained remarkably generous with his time. We are particularly grateful that he brokered numerous educational events at Georgetown University, where we both teach. He was the driving force behind both the Bernstein Symposium and the Mullen Visiting Professorship, and he somehow found the time to ensure that both initiatives flourished. Over the years, participants in the Bernstein Symposium included Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Representative Stephanie Herseth Sandlin—who was one of Bob’s many graduate students. Mullen Professors included former Solicitors General Paul Clement and Seth Waxman. Even while serving on the court, Bob continued to be the impresario for the Bernstein Symposium and work with the Mullen Professorship. His devotion to the exchange of ideas was legendary.

During his years as a federal judge, from 1999 to 2021, Bob hired close to 100 law clerks. These clerks became members of Bob’s extended family. Bob encouraged them, praised them, guided them, advised them, dined with them, joked with them, and generally looked out for them. He and his wife, Jennifer Callahan, hosted annual chamber dinners, and he officiated at many clerks’ weddings. He even attended a karaoke party with them and once joined them on a Bolt Bus ride, which he later vowed never to do again. As one former clerk (litigator Susannah Weaver) put it: “He had an amazingly deep interest in his law clerks and a remarkable lack of ego for someone as brilliant and accomplished as he was.” Another former clerk, Georgetown Law Professor Eloise Pasachoff, recalls: “Judge Katzmann was a giant in the law, but he was also the best mentor anyone could hope for. He helped each of his law clerks discern our own individual career paths and opened doors for us at each step of the way. He was always ready to offer wise counsel or encouragement as complexities or roadblocks emerged.”

In 2014, Bob launched a civic education initiative, “Justice for All: Civic Education and the Community.” As he explained in a PBS interview, “civic education has had less priority across the country than it should.” To rectify that, he proposed that the courts assist boards of education seeking civic material for textbooks, bring teachers and students into the courtroom for a first-hand look at the judicial process, and reenact classic trials to highlight how the courts handle sensitive issues. A hallmark of these civic initiatives was distance learning opportunities, which proved all too timely during COVID. But Bob also wanted teachers and students to actually visit the courts and established a “Bench in Your Backyard” program to accomplish that. In his words, it is important “to bring the communities to the courts, and to bring the courts to the communities.”

Bob was also the leading force behind the creation of the Immigrant Justice Corps (IJC), which trains, hires, and pairs recent law school graduates with immigrants facing complex immigration proceedings who cannot afford a lawyer. Bob was passionate about creating an equal playing field for all US residents, irrespective of where they came from or how they got here. The IJC grew out of a 2007 lecture Bob gave at the New York City Bar Association, in which he described the crisis in legal representation for immigrants, with which he was all too familiar in his courtroom. Years of careful collaborative work within New York’s legal community, spearheaded by Bob, followed, culminating in the IJC’s successful launch in 2014. IJC’s Justice Fellows, working for a nonprofit organization, with support from private foundations, have served more than 80,000 immigrants and their families, with a success rate of 93%. Many of the Fellows are children of immigrants or first-generation immigrants themselves. What an amazing legacy in pursuit of equal justice for all!

Over the course of his career, Bob made a special effort to aid in the elevation of two women to the Supreme Court—Judge Ruth Bader Ginsburg from the D.C. Circuit and Judge Sonia Sotomayor from his very own Second Circuit. In 1993, during the confirmation process, Bob served as Justice Ginsburg’s official chaperone and counselor, as she met with senators privately and testified before the Senate Judiciary Committee. He played the same role for Justice Sotomayor, his friend and colleague, in 2009. In one of many tributes to Bob, Justice Sotomayor said: “Bob has opened the doors to the courthouse to students, teachers, and the broader community with the goal of increasing public understanding of the courts and bringing the courts closer to the community.” In acknowledgments in her bestselling book, My Beloved World, Sotomayor expresses deep gratitude to three “brothers”—her birth brother, a lawyer friend who offered sage advice, and Bob Katzmann.

Greatness is an elusive concept, not easily defined. Yet, to paraphrase Justice Potter Stewart, we believe we know greatness when we see it. Bob Katzmann was a great scholar and a great public servant, who seemed equally comfortable in the world of ideas and the world of public action and who sought with considerable success to bridge the gap between the two. He was also a great human being—a mensch who really cared about people as individuals and as members of a broader social community. Privately and publicly, he was the consummate bridge-builder.

Attorney General Merrick Garland, a friend, put it this way: “Bob had extraordinary intellectual gifts, a profound commitment to the law, and a deep devotion to public service. He was a distinguished federal judge on the Second Circuit, a creative legal thinker, and a gifted teacher.” If you met Bob and got to know him, you were better for it. Many who never met him, including victims of discrimination, immigrants without legal representation, and schoolchildren, are better for it as well. His impact on legal thinking and on public policy has been profound.

Bob is survived by his beloved wife, Jennifer, whom he married in 2006; his siblings and in-laws, with whom he was very close; and numerous nephews, nieces, cousins, close friends, colleagues, clerks, and interns.

In an interview on PBS, in 2017, Bob was asked if he worried about our country’s future. He replied, “I’m not worried about the republic. I have faith in our institutions. More than that, I have faith in our people.” Bob’s optimism and can-do spirit were contagious. His wisdom and good judgment were inspiring. His humanity and compassion were heartening. He will be sorely missed.

—Bill Gormley and Tony Arend, Georgetown University