Judicial Profile: Hon. Jane A. Restani

Chief Judge, U.S. Court of International Trade
Reprinted from The Federal Lawyer (February 2007)

The temperature of the water in San Francisco Bay is a chilly 52 to 64 degrees in the warmest of times; it drops into the 40s in January. Whenever she returns to her hometown of San Francisco to sit by designation on the U.S. Court of Appeals for the Ninth Circuit, Chief Judge Jane Restani of the U.S. Court of International Trade swims in the waters of the bay. Even though she left California in the 1970s, she has maintained her membership in the South End Rowing Club near Fisherman’s Wharf. She has swum the 1.5 miles from Alcatraz Island to the Presidio several times. When she is unable to get to the bay, she makes do with the chilly waters off Long Island Sound. “It tells you a bit about her level of energy,” says a judicial colleague.

There can be no dispute that Chief Judge Restani has energy to spare. According to Marc Levinson, a former law school study partner and now a partner at Orrick Herrington & Sutcliffe LLP in Sacramento, her motto could be “Why sit around?” Tamila Jensen, then the managing editor of the Law Review and now an appellate specialist in Granada Hills, says that “Jane has bicycled all over Europe, and when she takes a vacation, it’s in the mountains.” Indeed, Judge Restani has climbed all 35 peaks in the Catskill Mountains over 3,500 feet, traveled the Himalayas, recently hiked the demanding Inca Trail in Peru, and declared her intention to climb Mount Kilimanjaro before she turns 60.

And her outside interests are not limited to athletic pursuits. According to her husband, Ira Bloom, a professor of political science at the City University of New York’s Lehman College, Chief Judge Restani has an abiding interest in art and art history—her mother was an art teacher—and is a regular visitor to museums. She speaks fluent Italian and good Spanish and is an energetic and eclectic reader with a special interest in engineering topics. Chief Judge Restani and Professor Bloom (who was named Lehman College’s 2006 Teacher of the Year) frequently collaborate on Law Review articles on such topics as the continuing vitality of Chief Justice John Marshall’s 1804 Charming Betsy doctrine, which states that a federal statute should be construed consistent with international law when “fairly possible.” Judge Restani also gives an annual lecture on judicial decision-making for Professor Bloom’s class on the judiciary.

Judge Restani is still youthful and fit, and it is hard to believe that she has been on the bench for almost a quarter-century, having been appointed by President Ronald Reagan to the U.S. Court of International Trade in 1983, after 10 years in government practice. This makes her the second longest sitting judge on the court, appointed only six months or so after Judge Gregory Carman’s appointment. (Judge Leo Gordon probably bests both of them in breadth of institutional knowledge, even though he was appointed this year,because he helped write the act that created the court and has worked for the court continuously since 1981.) Judge Restani was elevated to the position of chief judge in 2003. “I can’t say I came to the court with any formed philosophy of judging,” says the judge, “I had only been an attorney for 10 years when I was appointed. I was very academic, and conservative in the sense that I don’t believe in reaching out for issues to decide, but otherwise I was not as attentive to the process as I am now. I have become more aware of the mechanics of dispute resolution, and I think that I have developed better people-sense and listening skills over time.”

Although appointed by a Republican president, she is an independent for purposes of the statute that created the court, which requires that it be politically balanced. Some of her friends from law school considered her an unlikely Reagan appointee, not because the qualifications she had to sit on the court, but because the law school was part of the frequent and publicized student sit-ins against then Gov. Reagan in the politically active early 1970s. Chief Judge Restani does not recall being involved in the protests, but she won’t disagree if others remember that she had been. As the saying goes, too clear a memory of the 1970s is proof that you weren’t there. Judge Restani’s judicial philosophy is conservative in the traditional sense: “I believe in deciding cases on the narrowest reasonable ground. It is easier to reach consensus that way.” She has no problem deciding hard cases, but she believes that a court should move cautiously and, above all, fully explain its reasoning. In her opinion, some recent examples of good judicial craftsmanship—not from her court— are the various decisions concerning the recent Terry Schiavo case in Florida. “These decisions are great,” she says, “they are written with care, and take a hot button political issue and try to explain the basis for decision.”

In her time on the bench, she has developed a reputation as a ferociously smart, well-prepared, plain-speaking judge who goes straight to the heart of the matters before her. “Jane can be very intense when she is focusing on legal issues,” says Levinson. “Nobody can drill down like her. In law school, Jane always wanted to understand everything and didn’t leave any stone unturned until she did. … This quality made her an ideal study partner,” he explains, adding that he is confident that Judge Restani doesn’t write an opinion until she is satisfied that she has mastered the subject matter before her. Judge Restani “is very direct and very to-the-point,” says Judge Tom Aquilino, a fellow judge on the U.S. Court of International Trade. “She is not afraid to let you know how she feels,” says Eric Rubel, a former law clerk to the judge.

Chief Judge Restani’s intensity and ability to bore in on the central issues in a case can be off-putting to advocates who are not fully prepared. These traits may be the source of an anecdote that is floating around: that she was once accosted in the New York City subway system and beat up her mugger. The story contains more than a kernel of truth. A man tried to take her purse as she was walking across the Brooklyn Bridge on her way to the court. She fought back, and the would-be robber lost his coat. Judge Restani cautions that she is not counseling that people should fight back against muggers, but in such situations “one doesn’t think, one just reacts,” she says.

For prepared attorneys, however, arguing in front of Judge Restani can be an exhilarating, albeit demanding, experience. For one thing, Judge Restani will have reviewed the briefs. “Judge Restani is always prepared,” says fellow Court of International Trade Judge Timothy Stanceu, who appeared before her while in private practice. “She will not only have read your briefs, she will have mastered them.” For another, Judge Restani has keen understanding of the precedents. “Judge Restani has an almost encyclopedic knowledge of the court’s prior cases and the operative statutes,” says Judge Stanceu. “Judge Restani has a fully formed vision of the court and how the antidumping statute works,” says Judge Richard Eaton, a fellow Court of International Trade judge. Finally, Judge Restani is scrupulously fair. According to says Michael Shor, a partner at Arnold & Porter, who frequently practices before the court, “Judge Restani has a professional reputation for being fair and evenhanded, …” Says Judge Stanceu, “If you’re before Judge Restani, you know you’ll be heard. She’s fair, analytical, and thorough. He adds that “the key at oral argument before her is to consider her questions carefully and do your best in responding to them.”

An essential part of Judge Restani’s job satisfaction is the high caliber of her fellow judges. The court is collegial, and the judges frequently join on another for lunch. “I am most fortunate to have wonderful colleagues,” she says. Another important consideration is the intellectual challenge the court offers. “Our cases are hard,” says Judge Eaton, quoting Judge Aquilino. The cases are hard, explains Judge Aquilino, because they involve intricate, overlapping statutes and the enormously complex trade markets. “One of the joys of our court,” says Chief Judge Restani, is that “you get a great variety of challenging factual backgrounds.” Chief Judge Restani relishes the opportunity to learn about the diverse industries in the trade cases before her—even areas that others might find imponderably arcane or dull. “We get cases involving such things as chemistry and aluminum smelting,” she says. Her interest in engineering dates back to her career before she assumed the bench. “When I was at the Department of Justice,” laughs Chief Judge Restani, “I always got the machinery cases—broken turbines, air compressors, whatever.”

Chief Judge Restani has nothing but praise for the bar of the court. The financial consequences of the court’s decisions can be substantial, so parties “can afford to put the best lawyering into the cases.” The lawyers who appear before her are first-rate advocates, who understand the complicated fact patterns and statutes, she says. According to Judith Wise, a professor at Willamette University College of Law and a former law clerk, this mutual respect allowed Judge Restani to work closely with the bar to fashion the claim and refund procedure when the Supreme Court affirmed the decisions of a three-judge panel of the Court of International Trade and of the Court of Appeals for the Federal Circuit and ruled that the harbor maintenance taxes that had been passed by Congress were unconstitutional. The vast number of claimants—more than 7,000—rendered ordinary court procedures unworkable, says Professor Wise, so Judge Restani held public hearings to determine procedures that would satisfy the needs of the Court, the claimants, and the trade bar.

Judge Restani draws law clerks from national law schools. Her current crop is from the University of Michigan, the University of Southern California, and Columbia University, but she strives to maintain a broad mix. The work is demanding but satisfying, according to Professor Wise. “The learning curve is very serious,” the judge’s former law clerk says, “I have great respect for the trade bar.” “I loved clerking for her,” says Eric Rubel, another former clerk, “she was fantastic.” Judge Restani permits her clerks to be “very active in the deliberative process,” he adds, and she “welcomes [the clerk’s] thoughts.” Judge Restani maintains a warm relationship with many of her former clerks and invites them for a picnic once a year.

Judge Restani clearly enjoys being a judge, and she goes outside her own court to practice her craft. As Article III judges, members of the Court of International Trade are eligible to sit throughout the country, by designation—an eligibility that Judge Restani has accepted with energy and enthusiasm. She has sat as a judge on the U.S. Court of Appeals for the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Eleventh, Federal, and District of Columbia Circuits, and has sat as a U.S. district judge in New York, Connecticut, Florida, and Texas. When the court’s Web site says that potential clerks “must be willing to travel for circuit court work,” it isn’t a joke. Travel is also part of the regular business of the court, which as has nationwide jurisdiction and is authorized to hear cases in any judicial district in the country.

Her already considerable obligations were increased in 2003, when she was elevated to the position of chief judge and accepted the additional burdens of administering the court. According to her colleagues, she has handled the added responsibilities without missing a beat. “Her management style is to delegate,” says fellow Court of International Trade Judge Richard Eaton. “She is not a micromanager in any way, shape or form. She is a very good manager.”

One of Judge Restani’s additional tasks is putting up with requests for interviews and speaking engagements. She bears the burden with patience and humor, which would not surprise her intimates, who regard her sense of humor as highly as they value her energy and intelligence. “Jane has a raucous sense of humor and is terrifically good company,” says her former colleague, Marc Levinson. In our final interview for this profile, Judge Restani remarked that her public duties involved regular and repeated opportunities for the predictable praise of profiles like this one. She shared the time she attended a bar association dinner with a lawyer against whom she had just ruled. “Throughout the dinner all I heard was what an idiot I am,” she said with easy laughter. However much her public duties have forced her to curb her mischievous side, it is still there—and still vibrant.

Phil Schatz is a member of Wrobel & Schatz LLP and practices commercial litigation in federal and state courts in New York City. He has walked by the Court of International Trade hundreds of times and did not have a clue about what it did until he got this assignment.