Episode 60: Rosemary Pooler
Senior Judge of the United States Court of Appeals for the Second Circuit
00:30:35
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Show Notes
Judge Rosemary Pooler was passionate about helping people, especially those we call the underdogs. Initially, she planned to make this happen through elected office. But then a friend suggested she consider running for judge because her name was now well known to many since she had run for other types of elected office. From there, her judicial career started, and she was appointed and elected to different positions in the state and federal judicial systems. Listen to her story and her current role as a Senior United States Circuit Judge of the United States Court of Appeals for the Second Circuit.
Relevant episode links:
Judge Rosemary Pooler, Magpie Murders, Slow Horses, American Friends Service
About Rosemary Pooler:
Rosemary Pooler
On June 9, 1998, Judge Rosemary S. Pooler took her oath of office as a judge of the United States Court of Appeals for the Second Circuit. Previously she had served both as a United States District Court judge for the Northern District of New York (1994-1998) and a New York State Supreme Court justice (1991 to 1994).
Judge Pooler practiced law with two firms in Syracuse before joining the corporation counsel’s office of the City of Syracuse. She was elected to the City Council of Syracuse and served there before entering state government.
Much of Judge Pooler’s career has been devoted to public service. She served as director of the Syracuse Consumer Affairs Unit, chair and executive director of the New York State Consumer Protection Board, and commissioner of the New York State Public Service Commission. In addition, Judge Pooler taught law at the Syracuse University College of Law from 1981 to 1986 as an adjunct professor and during the 1987-88 academic year as a full-time visiting professor. She served as the vice-president for legal affairs of the Atlantic States Legal Foundation from 1989 through 1990.
Judge Pooler's memberships in professional associations include the Central New York Women’s Bar Association and New York State Bar Association. She also served on the Board of Trustees and Executive Board of the Loretto Geriatric Center. For twelve years, she was an elected member of the Board of Consumers Union, publishers of Consumer Reports. She is a past member of the Board of Trustees of the YWCA.
Judge Pooler graduated from Brooklyn College and the University of Michigan Law School. She received a Masters of Arts in History from the University of Connecticut and a certificate in regulatory economics from the State University of New York at Albany.
Judge Pooler resides in Syracuse, New York. Her late husband, William, was a retired Professor of Sociology at Syracuse University. She has two grown children and two grandchildren.
Transcript
I’m very pleased to welcome Judge Rosemary Pooler from the Second Circuit Court of Appeals. Welcome, Judge.
Thank you. I'm pleased to be here.
Thank you so much for joining. I want to talk about your distinguished career on the bench, both on the Court of Appeals and on the trial court. First, I wanted to just start fundamentally with how did you decide that you wanted to enter the legal profession and go to law school? What was appealing to you about the law?
I don't know what started, but since I was a child, I have always wanted to be a lawyer. I remember having a conversation in high school with a guidance counselor and I said, “I'm going to be a lawyer,” and I just knew it.
I had a similar thing. I just knew. I thought about it for a while. At first, I thought I wanted to be a writer or a poet, and then I thought, “Poets have a little trouble maybe paying their rent, so maybe I'll do something else.” Whatever came to my mind was like, “I'm going to be a lawyer.” I didn't know any lawyers. I didn't even know where I got that idea.
There are no lawyers in my family. Now we do, but I was the first one.
Did you have some idea of something you wanted to do with the law or some practice that you might be interested in or just the law, generally?
I had no idea, especially when I was much younger. In law school, I developed a sincere worry about poor people and people who were deprived of their rights. That has kept up with me throughout my career. I worry about the underdog.
The law is good for that. At least we like to hope that it is.
Once in a while, it gives me the ability even on the playing field.
Before you joined the bench, what kinds of things did you do?
I was a practicing lawyer in a small firm in the City of Syracuse, New York. I had nothing extraordinary in terms of cases. I did do work for the American Friends Service, keeping a string of young men out of the Army. I ran for office. The practice wasn't very compelling, and I may have gone to halftime when I was elected to the Syracuse City Council, and then I was appointed by the governor to a state position called the Consumer Protection Board. I worried about consumers. I learned a lot about how consumers are ripped off in the marketplace. That's been a continuing theme of mine as well.
Katrina Foley, who's elected here to Orange County, California Board of Supervisors had a similar story in terms of her practice of wanting to make a difference in her case for women and girls, but then finding that public service was the way to make that difference. There's something in that in terms of we like to have a set path somewhere. It's good to have a plan, but sometimes there are things along the way that you're like, “This serves what I want to serve. It has more meaning and helps me accomplish what I wanted to accomplish with my legal training.” Running for office is challenging.
In the early days of the women’s movement, we used to say, “We’re fighting for the right to be as mediocre as some of the men we see around us.” . . .I don't see that we’ve achieved that yet.
My plan was much more political than legal. I went to law school. I moved to Syracuse, New York with my husband because he got a job there. In those days, he didn't say, “I’ve got a job tour. I just went along.” Those were the days. I ran for the city council. I was very involved in politics. From there, the governor, who was Hugh Carey at the time, appointed me to the State Consumer Protection Board.
I still wasn't interested so much in practicing law or being a judge, but one thing led to another, and I did run a couple more times. It does take a different kind of stamina, but not so much intellectual as physical. I ran for a state senate that I lost and then ran for congress. In a very big race, I got a lot of support from people in Washington and those old folks, which I loved and people hate as if they give you money and I ran the fifth closest race in the nation, but I lost.
Because it was so close, all of the people around me said, “You have to do it again.” That was the real mistake of my life because the second time, I was doomed to lose. They dropped the candidate that I came so close to because the other party is unsentimental about people. I was running a race against someone who fits a district much more than I did.
After I lost, I was sad for a while. One of my friends took me out to lunch and said, “You could be a judge.” I said, “Why would I want to?” We went through all of that. He explained to me that so many people knew my name from the congressional races. I had spent so much money getting my name around.
This is in New York when you get elected. He said, “Judge races are not on too much substance. They're name recognition.” I would have been the first woman to the Fifth Judicial District, which is six counties in Upstate New York. A lot of people like that idea. I was elected in 1990 to State Supreme Court Fifth Judicial District, and did trial work, real blood and guts stuff in the State Supreme where accidents and divorces are tough.
Getting elected to the bench is political. You had that experience.
I never just stayed with my political background. I've left it behind. I got elected. I had an advisor who was shrewd about how to use what money we had. I gave a lot of my money to the race because he didn't want to be owing all the lawyers in town. After I won, they were very anxious to help me relieve my debt, but I didn't take any money from them. I paid it off myself. It was unseemly to me to take money from people who are going to appear before you.
I did that for four years as a state judge. I loved it. I didn't learn as much as I needed to but learned a lot, and then there’s vacancy opened up in the Northern District of New York. At that time, I was the only Democrat between Buffalo and Yonkers, and the only female judge. I figured this vacancy had my name on it. I knew Senator Moynihan from politics. He suggested my name to the person who nominated me, and I was confirmed by the senate. That's how I got to be a Northern District trial judge.
How is that compared to the State Supreme Court trial work?
How does it differ? I was doing the same cases, but not so much State Law cases, although State Law keeps everything we do. It was a different kind of judging, less blood and guts, but lots of fun. It turned out that I had a skill in managing a courtroom, that I couldn't have imagined in advance. I thought that anyone who raised kids knows how to manage a courtroom.
I have friends who have joined the bench as well, and found skills that they did not imagine would be usefully translated to that role. They're like, “This was good.” Even in the substantive realm, there were some of them who maybe did US attorneys’ work or a lot of expert work with finances or accounting. They said that's helpful for Family Law cases in state court because there are a lot of financial aspects to it.
If you would ask them, “Do you think your Criminal Law experience would translate to Family Law?” they would have said, “No. I have to start from square one.” That's not true at all. That's valuable to consider and think about because women like to check off all the boxes sometimes for qualifications and things. If we don't have all of them, we might hesitate.
In the early days of the women's movement, we used to say, “We're fighting for the right to be as mediocre as some of the men we see around us. ” We always were so much smarter, better, and harder working. I don't see it yet though in all the women I know on the bench are so spectacular. I don't see that we've achieved that yet.
There’s more work to do.
As of this person’s next appointment, the Second Circuit will be majority female. The active judges, which is amazing. It hasn't happened yet. It has one more vacancy to nominate, and then it will be 7 women out of 13 active judges. I was the second woman on the court. The first one and everyone's favorite is Amalya Kearse. She was reported in the New York Law Journal as saying, “I love my brethren, but I'm waiting for our sister.” I was the second woman on the court, and now I revel in all the wonderful women that have been sent to us.
I remember years ago when I was arguing in the State Court of Appeal in Los Angeles. It was all women judges on the bench and women advocates. I was on one side, a woman was on the other side, and we were all excited about this.
We sometimes have panels now, especially of sweet women on an appellate panel. The world changed since I went to law school.
I remember I externed for Judge Dorothy Nelson on the Ninth Circuit. She had in her chambers, always the picture of the first all-women panel on the Ninth Circuit of which she was a part. She's very proud of that. She is an amazing person. I learned a lot working with her. How do you enjoy then the Court of Appeals? You learned you had great management skills in the trial courts. What about the Court of Appeals? What do you like about that?
It's entirely different work. What I love about the Appeals Court is I control my schedule. The work is so much more satisfying because it's deeper. In the trial court, I was a prisoner when I was doing trials and when this trial ended. I had one trial that took three months that went through several vacations and school holidays. You don't say, “I'm sorry. This is over.” You have to wait until it’s over. What I love about the appellate court in addition to the work, which is always stimulating, still challenging, and exciting to do is that I know my schedule for a year now. I can plan my life in a more reasonable way.
That is something that I don't think people think about. If you are a trial judge, you need to be there when the trial is happening. The control of your schedule is not there in the same way.
It’s important. I love the work. As an appellate judge for 24 years, you would think I would have heard every issue already, but that's not true. There are new issues that come all the time. We've done a lot of work with COVID on our court, compassionate release, and insurance coverage. It was a whole new area of law that we all have to be aware. The job has ever exciting.
One of the benefits of appellate practice is that our work moves where the laws change. We are constantly learning new areas and moving into new questions where the answers aren't clear. It makes it interesting.
If the answers are clear, they are not going to assume necessarily. These are open questions that continue to arise. That’s what makes it exciting.
The difference between trial and appellate is you're not the only one making the decision. You have your fellow judges on the panel and that's a different dynamic.
The best briefs are the ones that tell a story.
When I was a trial judge, you look around the courtroom and you are the queen of all you survey. It took a little while to get used to worrying about the guy on the left and right. I've come to appreciate and realize that the panel decision-making is much better. It’s better for the public, our judicial system, and individual judge decisions. It always makes me better. If I'm writing an opinion and I get comments from my colleagues, it always makes the opinion better. I discovered that early on in my years on the court. I loved this decision-making.
I love an appellate practice for that reason. I love to have the same thing. My little panel of folks was knocking ideas back and forth, brainstorming things, and working through things. The briefing and the analysis are always better when you have that back and forth.
I've been doing this for many years. What could I tell you?
For many years, what are the best tips for appellate advocates, either in an argument or in briefs that make your life easier?
The best briefs I ever read are the ones that tell me a story that I find compelling. I'm interested in the choice of words and the way it's put together. I'm going to read the brief. It doesn't engage me because that's my job. If you could tell me a story that engages me, I want to keep reading it and find out more, you're going to do better in front of me. That also includes oral arguments. Engage me early on.
I remember an oral argument of someone who stood up and said, “For ten years, my client was trying to buy peace and he couldn't figure out a way to buy labor peace.” This is an interesting story. I want to find out why he couldn't do it. I liked it very much. I like it if you tell me a story that interests me. I don't mean to suggest that if it's not scintillating, I won't be involved, but the more scintillating you could make it, the better off you'll be.
It's a true story based on the record, but it's still storytelling.
There’s a story in it. It's got to be based on the record, the record before, and what the district court did. You have to engage the court. You have to sit in five cases in a day, and you don't want them multiple and together. You want to stand out as the best appellate advocate that day.
That's our job to find that story that fits and is relevant, both for the law and the record. It's gratifying when you've done that and you see that reflected in the opinion. You go, “That was effective.” The way I saw the framework, that framework was effective in the advocacy. It's nice. It takes a long time to figure out sometimes what that story is.
If people don't do a lot of appellate work, they will say, “I'll just retool the trial court brief.” It's like, “That's not what's happening here. It's different.” The story for the law, that's an important thing. I wanted to get your thoughts on mentoring and sponsorship too, in terms of people who've helped you along in your career and those you've helped as well. What role has that played in where you've gone next?
When I went to law school, there were no female law professors at the University of Michigan. Now, there are many. I had some friends who were lawyers, but I didn't have what you would call a mentor. My husband was a sociologist. He's now deceased. He taught me a lot about life and how people interact with other people. That was very useful. He sat with me when we listened to the evidence tapes that I needed to listen to it before I took the bench for the first time. I went to a little class for baby judges in New York State.
Remember, I was in politics. I wasn't a full-time practitioner. They said, “We're going to teach you about evidence development for the past year.” I said, “Who's going to teach me about evidence development from the beginning of time to the past year?” We listened to these great tapes. My husband listened with me. We did a lot of back and forth.
The law clerk-judge relationship is very special. It also goes across the generations in that way because you have that in common when you're a clerk with someone who may clerk ten years prior or after you, but you still have that connection. You can meet everyone at these events, help each other out too, and give some pointers to each other. It's special.
I have been mentoring law clerks since I became a judge. They are like my extended family. I'm close to them. I had a brunch with them when we were in New York. Many of them from long ago, recently, and future come. I spend time with a lot of them. That’s the best mentoring I do with these law clerks. I've had a lot of female clerks, but I mentored the boys too.
It's good to mentor all.
I try to be non-discriminatory.
It flows naturally from that relationship because it's a very close working relationship for a short period of time. I credit learning how to be a lawyer and practice from my clerkships. I learned how to think from law school, but I got so much from the clerkships, especially both the trial court and the appellate level. When you went into practice, you could then use, “I've seen the summary judgment motion. I've looked at all the filings. I have a sense of what's effective and what's not effective.”
That's so much more than you had coming out of law school. I definitely recommend it for those who are reading, who is in law school, and maybe haven't considered a clerkship that it's something to consider in terms of training. I wanted to close by running through some of my lightning-round questions. Which talent would you most like to have but don't?
I wish I was more disciplined. I was a crammer in law school and all my life. I wish I could do the work at a more regular pace. I can't help it.
One of the 3L students in law school told me when I was a 1L, “You're going to study best the way you've always studied. Whatever you are got you here. Stick with it, recognize it, and go forward.” Sometimes we just can't change how we are. It's helpful to recognize it. You go, “This is how I roll.” You have to accommodate that. It's okay, and I'm sure your clerks know that too.
One of my law clerks told me, “I know you're a crammer. That's why I try to prepare you for the end.”
They have already figured that out and accommodated that too in their process. That naturally happens when you want the best for your judge. It flows like fish flowing through a stream. Who are your favorite writers?
I read not deep, but thriller, fiction and detective stories. I've been reading a lot of Anthony Horowitz, who I recommend to anyone, the Magpie Murders, and some others. It's great. I don't read heavy stuff because I have briefs all the time. When I read fiction, I want something that's pleasant and have a way to engage. I'm reading a book by Mick Herron, Slow Horses, about failed spies in Britain. I read a lot of British stuff.
I was on a panel at the Appellate Judges Conference in 2021 with Illinois Court of Appeal Justice David Ellis, who writes legal thrillers.
My motto?: Don't take me on if you don't want all the results.
I would love to be able to do that. I read those.
He was an interesting guy. He co-authors with James Patterson sometimes, which is a great arrangement. Somebody will keep you disciplined and the books will do well. It's a neat arrangement that he has, but I don't know how he does that on top of doing all the work of reading the briefs and deciding. Who is your hero in real life?
I don't have many legal heroes. I love my colleagues. I love Amalya Kearse. She has been a role model for me on the court. My parents did a very good job. My father was born in Ukraine and came here as a child. He taught me a lot about working hard, as did my mother who never went beyond high school, but I never saw her without a book. I learned a lot from both of them.
It was hard work. My grandparents came from Lithuania. Grandpa worked in the steel mills in Chicago.
My mother was born in this country. I've figured I'm one and a half generations away from immigration. We were marked by that experience. That's how I feel.
It's part of who we are and what our family has passed on to us. Given the choice of anyone in the world, who would you invite to a dinner party? It could be more than one person.
I wouldn't mind sitting with Learned Hand. I have through several iterations. He was such a wonderful judge. I look at his statue when I'm sitting in the courtroom. Learned Hand and Henry Friendly stare at each other across the courtroom. I would love to have both of them for dinner. I wouldn't have to look at their sprung statues. It would be a wonderful experience.
It's like the courtroom coming to life there.
When we were redoing our courthouse a while ago, they took the statues and put them away. When we came back, we had a real procession putting them back in the places. It was very moving. It shows our continuity.
That's always what's about in the courts and also amazing judges. That's a good legacy.
I would invite a couple of my present colleagues also to share their bounty with me.
That would be great. It’s the living history of the court right there.
That would be wonderful. I'll tell you about living history. We have court dinners every once in a while. Certainly every three months or so, we have quarterly meetings. At one such dinner, we were talking about en bancs. The second circuit doesn't have a lot of en bancs, unlike some other courts. We use them sparingly because we think it destroys certain collegiality. I was sitting at the center. Jim Oakes, now deceased, one of my favorite colleagues said, “We didn't have en bancs in those days because LH didn't let us.” LH, Learned Hand. We all go by initials but I had never heard him refer to that intimately, so it was a wonderful moment.
It's still true though. In the Ninth Circuit, everybody has got their initials. People refer to each other that way, but somehow you went and put that together with Learned Hand.
That's how I felt when it dawned on me. We do initials so that the law clerks first and everyone else doesn't have to stumble over judge this, judge that.
It's a good equalizer of everything and makes people feel a little more comfortable. The last question is, what is your motto if you have one?
I saw this question on your list and I thought of telling you my real motto, which is a dish towel framed in my kitchen. I bought that in Scotland and it's about thistle. I can’t say it in Scottish but the motto is, “Disturb me at your peril,” because Danish came and invaded them. They won and scream. They view the thistle as lifesaving. I always viewed the motto as, “Don't take me on if you don't want all the results.” It's a little aggressive to be that way, and I do love my fellow men and women. I've always been protective of myself and the things I believe in. Maybe I should be nicer, but if that's the motto, don't screw with me.
I have a bit of the mama bear element, especially for things I believe in and for clients I'm fighting for. I'm cool but don't mess with me or who I care about.
I was a pioneer in so many positions, as a female at a time when it wasn't such a good idea to be in public, run for Congress, and do that stuff. You have to have tough skin.
You can't have done all of what you did especially in that timeframe, but at any time in terms of running for election. You’ve got to be a tough cookie. Thank you so much, Judge Pooler, for joining the show, for having this discussion, and for taking the time to do so. I appreciate it.
It was fun. Thank you for inviting me.