Tennessee Supreme Court Justice

00:55:35

Subscribe and listen on…

Apple Podcasts | Stitcher | Spotify | Google Podcasts | Amazon Music | PocketCasts | iHeartRadio | Player.FM Podcasts

Watch Full Interview | View Show Notes | View Transcript

Tennessee Supreme Court Justice Holly Kirby sits down with host MC Sungaila to share her path to the bench, including, prior to the state supreme court, becoming the first woman in Tennessee history to serve on the Tennessee Court of Appeals.

Relevant episode links:

Justice Holly Kirby, Rhonda Wood – Past episode

About Holly Kirby:

In 1995, at the age of 38, Justice Holly Kirby became the first woman in Tennessee history to serve on the Tennessee Court of Appeals. In 2014, after she had served on the intermediate appellate court for almost 19 years, Justice Kirby was appointed to the Tennessee Supreme Court.  

Justice Kirby received her undergraduate degree from the University of Memphis with high honors in mechanical engineering and then graduated from the University of Memphis School of Law with high honors.  After law school, she clerked for Judge Harry Wellford on the United States Court of Appeals for the Sixth Circuit. Justice Kirby then joined the Memphis law firm of Burch, Porter & Johnson, where she specialized in employment law and especially sexual harassment, and in 1990 she became the firm’s first female partner. Since her appointment to the bench, Justice Kirby has won 6 statewide retention elections. 

Justice Kirby is the first graduate of the University of Memphis to serve on the Tennessee Supreme Court. She has been recognized as an Outstanding Young Alumna by the University of Memphis, Outstanding Alumna by the University of Memphis College of Engineering, and Special Distinguished Alumna by the University of Memphis School of Law.  Justice Kirby has received the Marion Griffin-Frances Loring Award from the Memphis Association for Women Attorneys, the Distinguished Leadership Award from Women in Numbers, and was named Community Mother of the Year by the Tennessee Justice Center.  She and her family live in Memphis.

I’m very pleased to have joined the show by a wonderful State Supreme Court Justice Holly Kirby, from the Tennessee Supreme Court. Welcome.

I’m so pleased to be here and join your show, MC.

It's very kind of you to join and set some time aside to chat about your career, hopefully, to inspire others to aspire to the bench or whatever else they would like to do in the practice of law also. I wanted to start first with how did you get into the law? How did you decide that you wanted to go to law school or to be a lawyer?

I’m not sure where I originally got the idea. I don't have any lawyers or judges or anybody in my family or even in our circle of acquaintances growing up. I think it probably came from my father, who was a traveling salesman, and my mother was a secretary. I think he would've wanted to be a lawyer, so he planted that with me. By the time I got out of high school and entered college, I had already decided I wanted to go to law school. When I was in college, I even went further from that and thought, “I think I want to be a judge.”

It was pretty early on that I identified that. I made the mistake of confiding to my college boyfriend my thoughts about being a judge. He told all of his fraternity brothers, and they thought that was hilarious. They had a big laugh at my expense, which was embarrassing, but I can't say that I blame them too much because this was back before Sandra Day O'Connor was a justice on the US Supreme Court, before Margaret Thatcher was the prime minister of England. It was way back. To his credit, when I went on the bench many years later, he circled back and called me and said, “You did it. Congratulations.”

That's important to put it in context. I think that's one of the historical teachings of the show, which is how things have changed in a relatively short period of time for women in the profession. A lot of things that are open to women where at least they don't, in the beginning, say, “What? You women don't apply to that thing.” That has faded away, which is good.

To realize how it wasn't that long ago that that was the case. That pivotal time, which I hadn't realized either. I went to law school in the late 1980s and graduated in the early 1990s. If I had gone even 5 or 10 years earlier, the answer to a lot of things, “I’m considering applying to that,” would be like, “What are you talking about?”

It changed radically during that time period. I graduated from college in 1979 and law school in 1982, and Sandra Day O'Connor was appointed to the US Supreme Court while I was in law school. I remember vividly that day, and I was so proud. I thought about it all day and embraced it.

The downstream effect of her appointment on the courts across the country, whether you're talking about State Supreme Court appointments of women coming as a result of that, and of course, there were more federal court appointments of women as well. When you think about like, “Does one person make a difference?” They do this symbolically but also created a ground swell and movement forward.

Suddenly, the thought that I had, in visualizing myself, was embodied in a person and a quite impressive person, so that actually was very uplifting to me.

I think that it's important to put the timing in context for this and to think that. People might be a little surprised to have someone think about even verbalizing about wanting to become a judge in college, but it wouldn't be the same reaction now. That's progress. I have the same experience that I didn't know any lawyers. I can't point my interest in going to law school or becoming a lawyer to any particular incident. It was like one day, I was like, “That's what I’m going to do.” I don't know how I came up with it. How did you move from law to, “I think I'd also like to be a judge or I'd be good at that?”

I think that I have always had the mindset that I gravitate toward being the decision-maker rather than the advocate. I enjoy being an advocate. I loved being a lawyer and loved the relationship with the clients. At the end of the day, I’ve always felt that I’m good at making decisions and wanted that role where I’m not trying to figure out trying to advocate for the result that's best for my client, but the result that I think is Truly the best, the best result that has always appealed to me.

I think, at least when I was coming up, women shied away from the thought of embracing power. They don't shy away from responsibility, but they would shy away from power. I felt that I’m someone who would use it responsibly and for the right reasons. I think the more you see in the world, the more you see how important it is to have people in a position of power who use it in the right way for the right reasons. That has always been an impetus too.

That is an important point of, as you said, as you see in the world who the individuals are and both their comfort level and the purpose through which they exercise the power that they have, that's so important to how things go.

I think it's changing some now, but women have not always embraced the word power. I think it's important to inhibit the power you have and use it in the right way.

I think there's still a discomfort level with that a little bit. Definitely before, you wouldn't put those two things together in that way. I think for that reason too it's important to see women in leading roles doing things so that you can have culturally a comfort with that. Your point about the difference between a judicial role and a lawyerly advocate role, you're making decisions, especially if you're on the trial bench. You’re it. You're the one that's making that decision.

Once you get on the Court of Appeals or the Supreme Court, you have a number of people that you're working with in making those decisions too. That's a little different set of skills and a different way of operating. Unless you have a majority vote, whatever you think is right is not going to be the rule.

Even then, there's a lot of negotiating and trying to reach a consensus position for sure.

I think that's one thing. Sometimes, people who are on the bench as trial judges, they enjoy that because they're very comfortable with the buck stops here, and I’m comfortable making those decisions, being the decision maker. They struggle a little bit with more than one decision-maker and the consensus building. That's a different set of skills.

When I envisioned myself being a judge, it was the trial judge. I would have loved that. I never got that chance. I was on the Court of Appeals for almost nineteen years and then on the Supreme Court. It's always a team environment, and you have to persuade other people. I miss not having been a trial judge. I would've loved it, but that's not the way it played.

I think you have to follow the opportunities that come up and to go with it. There's so much serendipity and timing that are involved.

There are many good people for whom the sun and the moon and the stars never aligned. You take the opportunities that present.

I don’t know if that's unusual in Tennessee, but it's certainly unusual here in California for someone to be appointed to even an intermediate appellate bench first and then to the Supreme Court. Usually, folks start in the trial court. Although that's changing here too as people are more interested. We want diverse experiences coming to the bench. One of those is maybe not all of us need to have been in the trial court first. Tell me about your practice then prior to joining the bench. What did you do when you got out of law school, and what was your practice like?

I did a Federal clerkship for a year for a judge who was elevated to the appellate court while I was clerking for him.

You’ve got a twofer. You’ve got a court and an appellate.

I’ve got a twofer in one year. That was a great experience to go with him from being an experienced, confident trial judge to being in an appellate court and learning how to do that. After I did that, I went to work for a law firm in Memphis that had a very wide-ranging civil practice. I did a good bit of everything for several years and then ended up working in employment law, which at that point was a pretty new field.

I worked some with the partner who was doing that work for a few months, and then he moved to Florida. I became the senior person, i.e. the only person who knew anything about employment law. I embraced it and got a lot of responsibility very early on because I was the only one. I carved out a subspecialty in sexual harassment, which was very new at that time. I started with my law firm in 1983 at Burch, Porter, and Johnson Law Firm. If you recall, Clarence Thomas and the whole Anita Hill flap came up in 1990, 1991.

That was very early that you were involved in this.

Nobody was very aware of it, and I got to help figure things out. It turned out to be a great field because there was so much variety to it. Litigation, of course, there was an administrative aspect with the EEOC. I took it upon myself to do training for my clients, who very much needed it. That field, in particular, turns out that clients' legal exposure is much reduced if women employees are treated with respect. I got to be in a position to train them and get them accustomed to exactly how to do it. For some of them, it was a new concept, and they had to listen to me. It was great.

The prevention part is helpful. You're helping women in that regard but also helping the clients not get into trouble in that way. Rhonda Wood on the Arkansas Supreme Court talked about something similar, which I think is a good point to emphasize for newer lawyers. When the new HIPAA laws and the privacy laws and the medical context came up, it was a new area that nobody knew anything about. She could be an expert as well as anyone else with a few months' experience. She parlayed that into a very specialized practice.

You're talking about the same thing, which is it happened that you got all this experience very quickly because the partner left, but then it was a great opportunity because it wasn't where somebody else has ten years of experience in this. No, it's a developing area that you can grow with, and you can grow your practice. I think that's an important reminder or takeaway to people when they're thinking about what they want to practice or maybe even if they're looking for a new area of practice to think about that.

I do think that it's important for anybody but women especially, to be alert to opportunities that present themselves. Hopefully, it's a situation where preparation meets opportunity, and move toward it and lean into it.

It’s important to be alert to opportunities, especially in a position or situation where preparation meets opportunity. Move toward it and lean into it. 

I wanted to call that out because I think that's important in terms of people thinking about their own careers.

It sounds like Justice Wood may have been more intentional about it than I was. It fell into my lap, but I did advantage of it.

She was pretty intentional. She also talked about her husband was a doctor in the medical profession, so she understood the business part and how the offices worked. She had an advantage there too. She also understood that when they would prefer to meet or they wanted to see all their patients and then have meetings at the end of the day so she adjusted her schedule and offered to meet with them, knowing what was more convenient for them, like being more client-centric in her approach to them. That helped in her developing the practice too. She's a pretty interesting lady. More intentional, perhaps, at the outset.

In my situation, the fact that I’m a woman suddenly became an advantage. I was able to capitalize on that.

That's a positive in that area, in that situation, representing the employers, for sure. How did your long-term vision of wanting to become a judge, and what tangibly were you doing along the way that you thought would help that come to fruition? Were you doing anything like that? I suppose the next question is, how did the Court of Appeal opportunity come to be?

I did act with intention on that. I mentioned to you that I clerked for a federal judge who was elevated to the appellate court. The person who took his place on the trial bench became a role model for me, Judge Julia Smith Gibbons.

She is so wonderful. I interviewed her. She's an amazing person.

She is an amazing person. You can imagine the year that I was looking for my judge, Judge Harry Wellford, was her first year on the district court bench. I immediately beat a path to her door, and she was good enough to go to lunch with me. I said, “How do I get your life?” She gave me great advice. She said something along the lines of what you said, MC, which was it doesn't always happen because things have to line up, so you can think that it's going to happen and go for it, but you have to realize that it might not.

She gave me some other advice that I found to be invaluable. She said, “Cultivate your career as a lawyer because, number one, it doesn't always happen, but number two, it will put you in a much better position once you are on the bench because you can be more fearless about your decision-making. If you're not desperate to keep your job because you need a paycheck, if you're confident that you could go back to law practice and be able to support yourself and your family, then you can make good decisions.” I took that seriously and joined the law firm and carved out a very satisfying path as a lawyer.

Along the way, I was careful about who I talked to about it. There were only a few people I trusted. I did confide that ambition to a few people. What I have found is that if you do that, then, number one, you hold yourself accountable. It’s like telling everybody you're going to exercise. They notice if you are not holding yourself accountable. Number two, people want to help. An opportunity came up later that I was not aware of for our state's appellate court nominating commission. The Blue Ribbon Commission would recommend to the governor who to appoint to the appellate courts, and somebody recommended me for that spot.

I got to see from the inside how judges were selected for those jobs. It was such a cool experience. I ended up chairing that commission to actually see what people looked for and people auditioned for the job and what worked and what didn't. Later, when an opening on the court appeals actually came up, somebody told me, a judge who had become aware that I was interested in being a judge, said, “This is coming open. Somebody is going to be retiring. I think you'd be good at this.” I did act with intention on it but also knowing that it doesn't always happen. I wouldn’t have had a great life and a great career if it didn't happen. I’ve prepared myself so that if an opportunity came up, I'd be in a good position for it.

I think that's the fine balance between that because you don't want to give up on your dream and not do anything to it's not going to land in your lap usually, so you need to be doing something in support of that dream. However, there are so many other factors involved in whether you do get an appointment. If that's your only goal over time, you might be disappointed. You need to have both tracks going.

There are two things in your story. First is being part of the nominating commission, so you could see what is involved in the process. How is the thinking about the process? What are they interested in, and how could you put your best foot forward when you're coming in front of them in the future? That's some good advice. I think that people think about having a natural interest in serving or serving their communities, which tends to flow next into serving on the bench for some people.

There's that, but also having an inside understanding of what the process is like and what's going on. You can both feel somewhat more comfortable because you see who's applying and you say, “That person is a person.” Everybody has clay feet kind of thing. I think you have in your mind that only the most extraordinary perfect people can apply for these things. No, we're, we're all human. There are all kinds of things to our background and experience. It can put you in that frame of mind that I can apply to.

It could give me a little more confidence. Even though I was quite young at the time, I thought, “I might be able to do this. I might be able to pull it off.”

That's what some of my friends who have served on those kinds of commissions and then have joined the bench said, “Give me that.” It’s that certain sense of like, “I can get in the ring too. It's not as big of a stretch as I might think it would be.” Also, the second part of that is having people who support you, like you said, who tell you about openings, who suggest that you apply for certain things.

That's what I’m after with a show a little bit too. Even if somebody doesn't tap someone on a shoulder specifically to suggest that they apply for a particular opening. I hope that these interviews have that same impact on someone who might hear something that resonates with them in the interviews and encourages them to apply when they might not have otherwise.

I think the encouragers in the world are hugely significant. They've been important to me. I think it's something that does need to be highlighted, the importance of it. I think it's especially important for women.

Encouragers in the world are hugely significant. It’s something that needs to be highlighted.

Most of my friends who are on the bench had that. They had some nudge at the right time, and I think that's important to us. It's important to us to have someone see that. It makes a difference. If they didn't have that, I don't know if they would have. They're great judges, so we would've missed out on them.

The world would've missed them.

Let's talk a little bit about the selection process in Tennessee then. You're talking about there's this nominated commission that happens. Some states have that. Some have direct governor appointments. This would be one where you go through the commission, the commission chooses a few people, and then the governor ultimately chooses from among those for the position.

Tennessee has a bit of a split system. The trial judges are in contested elections. If there's an opening during the term, then there's a trial court commission. It makes recommendations to the governor, and the governor does appoint. After the elections, anybody can apply and can run. The appellate judge positions are different. They are always appointed by the governor, and the governor uses a nominating commission that screens applicants and generally gives him three names to choose from. After that, they have to run in a retention election to either be retained or replaced.

The voters have a say so. I think that it's an excellent system that protects especially appellate judges who run statewide from being in contested elections where you have to raise millions of dollars and yet voters do have a say if the governor appoints somebody that they don't like or later on we have to run in periodic retention elections. If a judge, not like a Federal judge, who goes off the rails, there's not much anybody can do about it. In Tennessee, the voters can do something about it. I think it hits the sweet spot in terms of the best systems.

It's a good mixture of different that members of the public still have a say and also have the vetting process prior to the governor's choosing. You're talking about qualifications and ability to do the job also. That's helpful to have that vetting done upfront also. I’ve had members of the Texas Supreme Court. They are elected and then they're elected again. It's not the same as that appointment and retention. It's a different beast when you're purely being elected at the appellate level.

We've had a couple of retention elections where appellate judges were targeted, and they had to run all on campaigns and raise money. Trial judges are one thing where they're elected in a smaller area, and they have an opportunity to get out and get to know people. In a statewide race, people pay attention to gubernatorial races. They get to know the gubernatorial candidates from the media and so forth. Judicial races, it's harder for voters to get to know them. It depends so much on money.

People might give to gubernatorial candidates. It ends up with a lot of special interest money. It's deeply uncomfortable and creates real issues. A gubernatorial candidate, a legislative candidate, are campaigning based on their views. Here's how I’m going to vote on this particular issue. Judges can't and shouldn't do that. I feel very strongly about it. Actually, while I’ve been on the bench, we passed a constitutional amendment, and I worked very hard to get Tennessee to enact the constitutional amendment to put that system into our constitution.

It was not an easy task. I feel very proud and feel that at least with our legislature, it was a very close question for a number of years. I was in a position to be working on it actively. It was close enough that a lot of people can claim they made a difference. I’m one of those. I feel like I made a difference in whether appellate judges would be in contested big-money elections or the current system, which I think is a great system.

That's important work. That's something to touch on and talk about with you. The difference, of course, deciding cases is an important part of the job of being on the bench, but there's also convening power, soft power, and other roles that, particularly in the State Supreme Court that you have in assisting the larger court system or judicial system around the state.

That's another important role that you play, especially on the state Supreme Court. I don't think that people think about that. They always think about making the decisions in cases and choosing which cases to hear, but also this oversight role in terms of the court system overall, and then having that interaction between the different branches of the government. That's another important role.

I have found that people are most surprised. I’m not sure who they think runs the judicial government. I think they don't think about it a whole lot. It's a big job. After having served on the court appeals for many years, that was not part of the job description there. It’s a big part of the job on the Supreme Court. It’s one that I’ve had to get my arms around a bit. It's a huge job. Also, on the Supreme Court, you are more the face of the judiciary.

I guess you could call it a ceremonial aspect of the job, but it’s showing up and talking to people about the judicial system. When I went to the Court of Appeals in 1995 at the age of 38, I had no idea that it would end up like that and/or that I would be doing that. Most of my time on the Court of Appeals was spent working on cases, which I loved, but this job on the Supreme Court was much more expansive.

It’s a good thing when you were on the Court of Appeals first, so you had experience with the judicial decision-making aspect of it, and the opinion writing and then coming to the Supreme Court. The different mandate of the court in terms of deciding which cases to take, having discretion there, and then also issues of statewide importance, and on top of that, all the other I think of it as ambassador roles for the court that you would play on the Supreme Court.

It was a much different environment too. When I was appointed to Tennessee's Court of Appeals, I was the first woman ever.

I’m glad you mentioned that.

I was the only woman for a good while. Our State Supreme Court, it's majority female. It was that way before I came on. It was a radically different environment in a number of ways.

That's so interesting that that was the case at the Supreme Court level and has been for a while, but it wasn't at the Intermediate Court of Appeals. You think of it as funneling up right from the trial bench up to the Supreme Court. That's why I think that's interesting.

Certainly, other women later joined the intermediate-level court, but for a number of years in my tenure, it didn't happen for a while.

I think of that in 1995, that seems late for that to have happened and then to have such a gap.

I thought so too. I was very surprised to find that I was the first one in Tennessee to be appointed. I think some of the men did not. I’m not only a woman, but I was twenty years younger.

I was going to say you were young being appointed to the bench.

Most people on the court didn't quite know what to make of it. They treated me with great respect. For example, when we were talking about moving up, making earlier the time for court to start, and I had to say, “I have school-aged children. I have to get them to school.” They were like, “What?”

It wasn't part of their life at that point. Their life is at different stage. That's so funny. From your time on the appellate bench and on the Supreme Court, I wonder if you have any good tips for appellate advocates in terms of brief writing and presenting an argument.

I would say that it's most helpful for lawyers to realize where they are in the process. The whole process, from trial to the Supreme Court, is distilling a case down smaller to its essence. If you think about it, a trial lawyer gets a massive amount of information from their client. They assemble all of the evidence and the witnesses into a coherent narrative to tell a story at trial. You can't appeal everything, yet the lawyer has to make a decision about what issues to bring to the Court of Appeals and hopefully identify a very limited universe of issues. I usually tell them, “Limit it to 3 to 4.” If I tell them 3, then they'll do 4.

That's better. Three, and then there could be one extra.

To realize the difference between an intermediate appellate court and a Supreme Court, Supreme Court is very much a policy-making body. They're looking even more at number one, they're more in a position to take on issues of first impression, and we’ll be looking at how things will play out in different factual situations. Lawyers often are surprised in an oral argument when they're asked about this other factual situation. They'll say, “That's not the facts. That's not our facts.”

We know, but we're worried about the impact on other cases that we're asking about.

We have to think about that. I tell lawyers, for example, in oral argument, “I’ve been on a cold bench, and I’ve been on a hot bench, so you have to have your whole soliloquy prepared in case. I guess you don't get questions.” The better result is that it will be a conversation with the justices. I had a lawyer who was a friend who argued in front of us one time, and I saw him in church after his argument.

He was like, “You didn't even let me talk. You were asking me questions the whole time.” I said, “Your brief is your opportunity for an uninterrupted soliloquy, but oral argument is mine.” I got him straight on that. If things go well, you will get a lot of questions and will know what the judges are thinking, and you'll be able to address them directly. That might be a long answer to your question.

No, it was good. I appreciated the distinction between the different courts and figuring out where you are in that process. I think that informs both how you're writing the brief, who you're writing the brief to, and the context in which the decision-making is happening. The questions about the impact on other cases are much more significant and more likely to occur at the Supreme Court level because you're not deciding the case in front of you, but you're deciding this is the rule for the state. It might seem like it's the right rule because of the facts of this case, but we don't want to create a rule that creates other problems that we can't foresee because those facts aren't in front of us.

That's something that's very more likely to be at the Supreme Court level to be aware of that. That distilling point, I think, is a beautiful way of describing what happens throughout the process, both from facts to the law, but then distilling what the key legal questions are on the record, the key errors that made a difference in the case. Ultimately, the key errors that make a difference to the law overall beyond the case. That's the Supreme Court level.

Part of the problem that lawyers have is that distilling down requires a lawyer to be confident in her own judgment. You have to be able to identify. For example, for oral argument, you want to identify the one point you want to get across. Even if you are barraged with questions, you want to get this across, which requires you to screen out other things and make a choice. Even if you're not right, I think it's important for lawyers to exercise their best judgment and focus on it. Otherwise, they may start sequentially, or if they look at it sequentially and I’m going through these issues, this one logically should come first. Forget all that. Go straight at it and to your more important issue.

I’m always endlessly surprised having even written briefs in a case, getting to oral argument. It's a whole different animal in terms of distilling it down further. Sometimes, after it's fully briefed and you've reread the record, and you've read all the cases, you still see something new, a different way of explaining something, a different way of looking at it. You can be like a lightning bolt like, “This is the key. This is the thing that's going to make a difference and matter.” As you said, keep coming back to that to make sure you make that point, even as you're responding to the questions on other points. That's the art.

We, as lawyers, see when that lightning bulb goes off for lawyers, it's so much fun. Sometimes they're a little dismayed because they think, “I would have written this brief a little differently if I’ve realized this earlier.” Occasionally, it's a little too late, but I love that iterative process. I see the lawyer wrote the brief, stepped away for a while, then got ready for oral argument and realized, “Rhis is the important point. I need to hammer this.” I love watching that process. Sometimes it's revelatory to me too. I’ll go into oral argument thinking this is the more important issue. When the lawyer leads with, “You need to pay attention to this, Judges,” then I’m going to do that.

I’ve seen that happen. I know that people can be skeptical about the oral argument on appeal and whether it makes a difference, but I think that sometimes it very tangibly does, depending on the framing of things, looking at it differently. Not a whole new argument, but framing the argument a little bit differently and the perspective a little bit differently. You can see both in council and on the bench, but everyone's going, “That's it. That's what makes a difference here.”

Couple that with the fact that at least for me, both the intermediate appellate court and the Supreme Court, we don't generally talk about the cases before oral argument.

I was going to ask about that too. It depends on the court.

At oral argument, you get not only the dynamic of the lawyer coming to you, having distilled the case down, you have the interaction with everybody else and how they're reacting to what the lawyer's saying or to what each other that we're making. It's a very cool process so that I may go into oral argument thinking one thing and come away thinking something significantly different.

I’m glad you mentioned that about the conferencing and discussions, whether they're before or after. I think that does make a difference in how oral argument proceeds. Even in cases where there is conferencing in some discussion of a tentative vote before argument, I’ve still seen it impact things, whether it's the reasoning or something else, the narrowing of the rule, maybe because someone's concerned about the impact on other cases. Oral argument is important. As you mentioned, the interaction between the members of the bench is important to you because you are talking to each other. You're learning from each other's questions. It's all one big dynamic together.

I love oral argument. It's the most fun and energizing part of the whole process.

For the advocate, it's the only time that we get to be in front of the appellate members of the appellate bench to have a discussion and to find out there is something that wasn't clear that we need to clarify. Is there some particular rule that we need to explore and to be in the room to be able to explore with the members of the bench? That's our only chance. I’m definitely in the camp of neverending argument if you have the choice as the advocate. You don't always get the choice if the court operates where they only seek arguments in particular cases.

I definitely agree with you on that.

Thanks for those tips. I love that overarching distilling of the court process that you gave too. I think that's right on. I hope it will be instructive to a lot of others too, in terms of understanding how all the different courts fit together in what they're doing in fact-finding to error correcting to policy at the Supreme Court level. You talked about mentors, people that you reached out to for help, and others who may have volunteered to help you. There was a good lesson in what you talked about in terms of talking to Judge Gibbons.

You didn't have a relationship directly with her. You hadn't known her previously, but you admired her, and you wanted to get some scoop from her. I think that some people would be shy about doing something like that. It's naturally from working for your judge. Obviously, I’m assuming there was a tight relationship with the judge that you clerked for.

There usually is, and it's one of the sweet benefits of clerking for a judge. It’s having that relationship throughout your career. What advice do you have for those who are either seeking mentoring or more information, maybe informational meetings that they might want to have with people who might know something about a position they might like to pursue? Any tips on overcoming any shyness?

I would tell you if somebody reached out to me and said, “Justice Kirby, I would like to meet with you to get your thoughts on the path that I’m thinking of for myself.” In fact, I have had both men and women do that and reach out to me. I’m always happy to do that. I think that would be a universal response, honestly. Young lawyers and especially women who are thinking about a particular path for themselves, I think it would behoove them to scan the horizon for somebody whose path approximates what they have in mind. Just cold call them.

It does take some nerve, but you're not asking them for money. What's the worst that's going to happen? They'll say, “I’m too busy for you, kid.” Who's going to do that? Nobody is going to do that. I think that it is well worth it to try to look for somebody with integrity, hopefully, whose path you want to emulate, and see if you can meet with them and get their direct thoughts. I think that there's about a 99% chance that they will tell you something that you didn't already know. It will be something that is of value to you. That’s my number one tip.

I think that's the way to overcome the concern of doing it. You don't know unless you ask. Also, to know that a lot of people do want to help. It may not be the right time, they might be busy, whatever, but in many cases, people will agree to talk to you or meet with you and give you advice. I have a great story like that. Met a good friend of mine. When she came to town, she was junior to me in practicing law.

She sent letters to all women lawyers in the area who were doing things on behalf of women, somebody who she thought would be simpatico with her interests. There were two of us who responded to those letters. The first person, she got her first job with that lawyer. I’m the second one, and we've been friends ever since. Now, she's in elected office and is a supervisor of our county. She's like, “I will forever remember that MC answered my letter and sat down to have coffee with me when she had no idea who I was or anything.”

I felt about it the same way. I’m like, “Somebody bothered to contact me and thought I might have something useful to talk to them about. Sure. I’m happy to do that.” I think we forget. That story always reminds me people are happy to help, and you never know who you'll be helping in the end. Somebody who's a tremendous person and one of the hardest working public servants that we have in our local area.

If you can play some role in helping someone reach their potential in that way, it's rewarding. You might end up with lifelong friends. If I had not gone to her chambers, knocked on the door and said, “Would you meet with me?” I don't know that I would have gotten to know her, and we have been friends ever since.

If you can play some role in helping someone reach their potential, it’s rewarding. You might end up with a lifelong friend, too. 

She is a tremendous lady. I can't tell you what a role model she was because I remember very clearly because I was in the arena. I was clerking for my judge, Judge Wellford. The lawyers, who were largely male at that time, were so skeptical of her, “What is this creature?” She's never arrogant, but she manages to be both very confident and self-effacing at the same time. She is always the diplomat, but she will ask a question that goes right to the heart of it.

She totally won over the legal community. The most curmudgeonly set in stone-old lawyers came to respect her greatly. That did not come easy for her. Meanwhile, she forged a path and opened up doors for women. One of the things that I noticed about her I think is very significant is that she connected other women with each other. She has women law clerks. She knew women in private practice, and she would connect them with each other. She leveraged her own influence to build a community-wide network. I thought that was so creative on her part. I can't tell you how much I admire and respect her.

She's amazing. I think there's probably a lot because she does have a good sense of humility. Also, she wasn't revealing about how she conducted herself impacted how people accepted her, and then led to blaze the trial for others to follow because she's so very impressive. She's a special lady. I think that's important too in terms of creating a community, connecting people who will benefit from knowing each other but also can help each other in a community of women. I think that helps everyone overall and people individually.

It's a great thing. I hope that's partly what the show will do too. I know even some of the guests have said, “You have something in common with this other person. If you don't know each other, you need to know each other because I think you would resonate with each other, or you could support each other in various things you're doing.” That's what we should be doing for each other.

You're doing it too. That's great. You're leveraging your own influence.

I hadn't thought about it, but that's what you do. You try to help people accomplish what they want to accomplish, especially if it's a laudable mission. Thanks so much for talking about the mentoring component. They think a couple of things like, “What does that look like? How do I do that? How do I even reach out to someone if I haven't been matched with them in some way already?” I think having the courage to know that people are usually willing to help and won't treat it as an odd thing. If they do, that's okay. Somebody else will be willing to talk to you usually.

Somebody will come up with a mentoring app that's like a dating app.

What advice would you have for women who are maybe considering the bench, whether it's earlier in their career or later? Is there any advice you would give in terms of things that they might consider doing?

I think that you have to involve yourself in politics. The important jobs in public service are almost always touched by politics. You have to do it in a way that has integrity, but you have to get in there and work too. When I was in college, I volunteered for campaigns, and I didn't have any money, but I put shoe leather into it and door-to-door campaigning for people and did some organizing for candidates.

By the time I served on the appellate court nominating commission, I was known to some of the decision-makers. Not a huge amount. It's not like I was a power broker or anything. They know enough to get a feel for what your judicial philosophy might be, where your sympathies are, and also that you are interested in investing in your community in that way.

Everybody thinks politics is dirty. Some politics are dirty, but it is essential because that's how the people who make the important positions get into those positions. I think that’s necessary. You have to decide who you are so that you know what kind of candidates to volunteer for. I think it's important to pick candidates who have integrity. Beyond that, you’ve got to get in there and do it.

Everybody thinks politics is dirty. Some politics is dirty, but it is essential because that’s how the people who make the important decisions get into those positions.

There's always some political aspect, whether it's appointed or elected. I’ve seen some situations where the judicial officer was not very good or wasn't involved in politics, but someone who supported her was. Somebody has to be. If it's not you, somebody has to be good at the political aspects. That's good ammunition for people to think about. I do think that, especially for those who are interested in the bench, they think, “I’m not supposed to be political because we shouldn't decide cases that way,” but you're talking about something different in terms of the selection process.

That is a real discipline, and that's a discipline that is very important to me to compartmentalize. I have, in the past, been involved in working for candidates. I work very hard to make sure that none of that bleeds through in the decisions that I make. That is a skill that judges have to cultivate in order for citizens to have confidence in the courts. They have to feel with the results that judges are making decisions with integrity.

Also, focused on the law and not political considerations in that way. Nonetheless, the selection process has political aspects to it. To the point of people being familiar with you and being comfortable with you because of that, this isn't the first time they've seen you or seen your name or something like that. That helps. Sometimes people think, “If you know the governor or have some direct connection to the governor, then that will help in the selection.” I don't think that direct connection is necessary. If you don't have that, don't apply because you don't have that. There are other things that can assist you.

Don't let that stop you.

There are certain perceptions that are maybe true in some cases but aren't necessary and aren't a prerequisite to that. Don't take yourself out of the running because you don't see that box being checked or something. Thank you so much for chatting with me and sharing your journey, and giving some advice and tips for advocates in the appellate courts as well. If you have a few minutes, I usually have a few lightning-round questions to end with. The first question is, which talent would you most like to have but don't have?

I would like to be funny and creative. I’m very analytical. I can occasionally pull off a one-liner, but my daughter does stand-up as a hobby, and that is gobsmacking to me. I would love to be funny and creative, but sadly I don't have either of those. Those chips are missing.

Your daughter has them.

It skipped over me.

I was going to say, but it's carrying on. You've contributed that to the world. Who is your hero in real life?

I have to say my husband is because he has been such a rock for me. That is so important to anybody's success. If you are going to have a partner, they better be a darn good partner, and he is. I think that's my honest answer, that he is my hero.

It is important to be able to excel and to fly. You need to have good support in that regard. It’s an important choice who your partner is. It sounds like you made a good one for you. Given the choice of anyone in the world, who would you invite to a dinner party?

I’m a Tennessee girl, so the answer has to be the one and only Dolly Parton. Think about it. She's funny and creative, and she’s an encourager. She takes her position as a performer and leverages it beyond belief to encourage people who do any also all sorts of good in the world. I would be able to get everybody to come to my dinner party if I had Dolly Parton.

Everybody would come for that. She's such an amazing business person too. She's got super sharp mind about that. Also, like you said, she has done so many amazing things with her reading and books programs, so many things that she does. Also, many layers with her songwriting in addition to performing and collaborating with many other artists. She's amazing.

She talks often about being underestimated. As a young lawyer, fresh out of law school, I looked like I was about fourteen. People would underestimate me regularly and I love that. She talks about that too, that she likes it when people underestimate her cause she can take good advantage of that.

I always felt that way. I know that for some of us, there's an era when you would show up for a deposition with your litigation bag, everybody would think you were the court reporter every time. I was like, “Good. I like that.” They're not going to expect what's about to happen in that room. You can either take it and use it as fuel, or take it in a way that diminishes you. I think there's that Dolly Parton way which is, “Good, that's fine. I’m going to be me, and people will be surprised.” Last question is, what is your motto if you have one?

My motto is to embrace change. I’ve told my children that the only thing that will be with you your whole life is change. You might as well realize that. Oftentimes, changes feel unwelcomed, but you have to move toward them and not be afraid of them. Realize as soon as you get everything the way you want it, it's going to change, and lean into that.

That's good advice. There's the change we welcome at first, and there's change that we don't. That's the hard part to accept usually. Having that growth mindset approach to things and saying, “We'll move forward with a new set of circumstances,” that's a good attitude to have in life. Justice Kirby, thank you so much for joining the show and having this discussion. I enjoyed it.

I enjoyed it. Thank you.