James Robertson (judge)

{{Infobox judge

| honorific-prefix =

| name = James Robertson

| honorific-suffix =

| image = Judge Robertson.jpg

| alt =

| caption =

| office = Senior Judge of the United States District Court for the District of Columbia

| term_start = December 31, 2008

| term_end = June 1, 2010

| office1 = Judge of the United States District Court for the District of Columbia

| term_start1 = October 11, 1994

| term_end1 = December 31, 2008

| nominator1 =

| appointer1 = Bill Clinton

| predecessor1 = George Hughes Revercomb

| successor1 = Robert L. Wilkins

| pronunciation =

| birth_name =

| birth_date = {{Birth date|1938|05|18}}

| birth_place = Cleveland, Ohio

| death_date = {{Death date and age|2019|09|07|1938|05|18}}

| death_place = Washington, D.C.

| education = Princeton University (B.A.)
George Washington University Law School (LL.B.)

| spouse = Berit Persson (m. 1959)

| footnotes =

}}

James Robertson (May 18, 1938 – September 7, 2019) was a United States district judge of the United States District Court for the District of Columbia from 1994 until his retirement in June 2010. Robertson also served on the Foreign Intelligence Surveillance Court from 2002 until December 2005, when he resigned from that court in protest against warrantless wiretapping.Bart Barnes, [https://beta.washingtonpost.com/local/obituaries/james-robertson-federal-judge-who-took-stand-against-warrantless-surveillance-dies-at-81/2019/09/16/aabf4db8-d64b-11e9-9343-40db57cf6abd_story.html James Robertson, federal judge who took stand against warrantless surveillance, dies at 81], Washington Post (September 16, 2019).

Early life, education, and Navy service

Robertson was born in Cleveland, Ohio, on May 18, 1938; his father was a banker, his mother a social worker. Robertson had a twin sister. He was raised in Oberlin, Ohio, and Dayton, Ohio. He attended his freshman year of high school in the public schools and then transferred to Western Reserve Academy in Hudson, Ohio.John Murph, [https://www.dcbar.org/about-the-bar/news/Judge-James-Robertson-Former-DC-Bar-President-Passes-Away.cfm Judge James Robertson, Former D.C. Bar President, Passes Away] {{Webarchive|url=https://web.archive.org/web/20190927082633/https://www.dcbar.org/about-the-bar/news/Judge-James-Robertson-Former-DC-Bar-President-Passes-Away.cfm |date=September 27, 2019 }}, D.C. Bar (September 10, 2019). He received a B.A. cum laude from Princeton University in 1959,{{cite web|url=https://www.fjc.gov/history/judges/robertson-james|work=History of the Federal Judiciary|title=Robertson, James|publisher=Federal Judicial Center}} on a Navy ROTC scholarship. Robertson was a member of the American Whig–Cliosophic Society at Princeton.[https://dcchs.org/wp-content/uploads/2019/04/James-Robertson-Complete-oral-history.pdf James Robertson Oral History], Historical Society of the District of Columbia Circuit, p. 12.

Robertson served in the United States Navy from 1959 to 1964, achieving the rank of lieutenant. He served on a radar picket destroyer with a home port in Jacksonville, Florida, first in the position of deck officer, then as anti-submarine warfare officer, and then as gunnery officer.[https://dcchs.org/wp-content/uploads/2019/04/James-Robertson-Complete-oral-history.pdf James Robertson Oral History], Historical Society of the District of Columbia Circuit, pp. 14-15. Robertson spent his last two years in the navy on desk duty at the Office of Naval Intelligence at The Pentagon and simultaneously attended the George Washington University Law School as a night student.[https://dcchs.org/wp-content/uploads/2019/04/James-Robertson-Complete-oral-history.pdf James Robertson Oral History], Historical Society of the District of Columbia Circuit, pp. 20-21; 141. After leaving the navy, he finished his third year as a day student, and was editor-in-chief of The George Washington Law Review. He received his LL.B in 1965.

Legal career

With the exception of a three-year gap from 1969 to 1972, Robertson was in private practice in Washington, D.C., from 1965 to 1994 at the law firm of Wilmer, Cutler & Pickering. While at Wilmer, Cutler & Pickering, Robertson worked under Louis F. Oberdorfer and later represented the Automobile Manufacturers Association in connection with the development of Federal Motor Vehicle Safety Standards.[https://dcchs.org/wp-content/uploads/2019/04/James-Robertson-Complete-oral-history.pdf James Robertson Oral History], Historical Society of the District of Columbia Circuit, pp. 27-29. From 1969 to 1972, when Robertson served with the Lawyers' Committee for Civil Rights Under Law, as chief counsel at the organization's offices in Jackson, Mississippi (1969–1970) and as national director in Washington, D.C. (1970–1972).

He became a partner at Wilmer, Cutler & Pickering in 1973. While in private practice, he served as president of the District of Columbia Bar (1991–1992), and president of the Southern Africa Legal Services and Legal Education Project (1989–1994).

Federal judicial service

=Appointment and confirmation=

On September 14, 1994, Robertson was nominated by President Bill Clinton to a seat on the United States District Court for the District of Columbia vacated by George Hughes Revercomb. The American Bar Association's Standing Committee on the Federal Judiciary, which rates judicial nominees, unanimously rated Robertson as "well qualified" (the committee's highest rating).[https://www.americanbar.org/content/dam/aba/migrated/2011_build/federal_judiciary/ratings103.pdf Ratings of Article III Judicial Nominees, 103rd Congress (1993–1994)], American Bar Association Standing Committee on the Federal Judiciary. Robertson was confirmed by the United States Senate on October 7, 1994, by voice vote.[PN1749 — James Robertson — The Judiciary

103rd Congress (1993–1994)], Congress.gov. He received his commission four days later.

=Resignation from FISA Court=

Chief Justice William Rehnquist appointed Robertson to the Foreign Intelligence Surveillance Court (FISA Court) on May 19, 2002. On December 20, 2005, Robertson resigned from the FISA court, sending a letter to Chief Justice John G. Roberts announcing his resignation.{{cite news |last1=Leonnig |first1= Carol D.|authorlink=Carol D. Leonnig|first2= Dafna|last2= Linzer |title= Spy Court Judge Quits In Protest | newspaper=Washington Post |date= December 21, 2005 |url= https://www.washingtonpost.com/archive/politics/2005/12/21/spy-court-judge-quits-in-protest/9dfc1009-6854-4f13-aa34-2eac70c251d5/}} His resignation was in protest against the NSA warrantless surveillance that had occurred outside the FISA statute, a program revealed by the New York Times one week before Robertson's resignation. In 2013, following his retirement from the judiciary, Robertson testified before the Privacy and Civil Liberties Oversight Board (PCLOB) and said that he had resigned in protest of the George W. Bush administration's warrantless wiretaps, which bypassed the FISA Court. Robertson also criticized the 2008 amendments to the Foreign Intelligence Surveillance Act, in which Congress allowed the FISA Court to approve collection of data in bulk, in addition to warrants targeted at individuals.{{cite news|date=July 9, 2013|title=Former FISA Judge Questions Court's Approval of Surveillance|work=All Things Considered|publisher=NPR|author=Larry Abramson|url=https://www.npr.org/templates/story/story.php?storyId=200466984}} In Robertson's view, this change "turned the FISA court into something like an administrative agency, which makes and approves rules for others to follow," which he viewed as not being a proper role for the judiciary.

Robertson was an early and prominent advocate of the need for an institutional adversary process within the FISA Court, to allow FISA judges to hear arguments from counsel other than the government's counsel.[https://dcchs.org/wp-content/uploads/2019/04/James-Robertson-Complete-oral-history.pdf James Robertson Oral History], Historical Society of the District of Columbia Circuit, pp. 182-184. In an oral history, Robertson said:

{{quote|In the exercise of its quotidian warrant-issuing function, the FISA Court acts like a magistrate judge. Everything is ex parte, and there is no reason, no occasion, to have a defense lawyer there arguing that the warrant should not be issued. But when the FISA court is asked, as it was after the enactment of the Patriot Act, to approve not only individual warrants but also surveillance programs that would be carried on without a warrant, then the FISA Court was acting I thought like a court reviewing the work of an administrative agency. And when courts review the work of administrative agencies, they do it in an adversary context with somebody arguing the other side. I said to the PCLOB that a judge who hears one side of an argument may think that’s a pretty good argument until he hears the other side of the argument. Our system depends entirely on somebody pushing back and arguing the other side of any proposition. And I said that without that, courts are going to make mistakes.}}

A compromise provision in the 2015 USA Freedom Act adopted a form of adversary process within the FISA Court, allowing the court's judges to call upon a panel of attorneys as amicus curiae to offer adversary views; Robertson viewed this reform as a sufficient process to satisfy adversaries.

=Notable rulings=

Notable rulings by Robertson include:

Hamdan v. Rumsfeld: Yemeni prisoner Salim Ahmed Hamdan, a chauffeur for Osama bin Laden, was imprisoned by the U.S. military at Guantanamo Bay detainment camp without charge. A military tribunal declared Hamdan an enemy combatant. Hamdan sought a writ of habeas corpus. Robertson ruled in favor of Hamdan's favor, finding that the United States could not hold a military commission unless it was first shown that the detainee was not a prisoner of war. The U.S. Supreme Court upheld Robertson's ruling in 2006.

United States v. Hubbell: In 1998, Robertson dismissed the indictment of Webster L. Hubbell on tax evasion charges. Robertson held that independent counsel Kenneth W. Starr exceeded his authority by charging Hubbell, and criticized Starr for going on a "quintessential fishing expedition."Ruth Marcus & Susan Schmidt, [https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/hubbell070298.htm Judge Dismisses Hubbell Tax Case], Washington Post (July 2, 1998).

American Council of the Blind v. Snow: In 2006, Robertson ruled in favor of the American Council of the Blind, holding that the U.S. Department of the Treasury's "failure to design and issue paper currency that is readily distinguishable to blind and visually impaired individuals violates section 504 of the Rehabilitation Act."Ned Mulcahy, [https://www.jurist.org/news/2006/11/federal-judge-rules-us-currency/ Federal judge rules US currency discriminates against blind], Jurist (November 28, 2006). Robertson noted that "Of the more than 180 countries that issue paper currency, only the United States prints bills that are identical in size and color in all their denominations."[https://www.courtlistener.com/opinion/2319465/american-council-of-blind-v-paulson/ American Council of Blind v. Paulson], 463 F. Supp. 2d 51 (D.D.C. 2006).Edmund L. Andrews, [https://www.nytimes.com/2006/11/29/washington/29blind.html U.S. Currency Discriminates Against Blind, Judge Rules], New York Times (November 29, 2006). The decision was affirmed by the D.C. Circuit on appeal.David Stout, [https://www.nytimes.com/2008/05/21/washington/21money.html Blind Win Court Ruling on U.S. Currency], New York Times (May 21, 2008).[https://www.courtlistener.com/opinion/187155/american-council-of-the-blind-v-paulson/ American Council of the Blind v. Paulson], 525 F.3d 1256 (D.C. Cir. 2008).

Schroer v. Billington: In a suit brought by a transgender employee against the Library of Congress, Robertson ruled in 2006 that employment discrimination against transgender persons may violate Title VII's prohibition on discrimination "because of ... sex."[https://www.leagle.com/decision/2006627424fsupp2d2031609 Schroer v. Billington], 424 F. Supp. 2d 203 (D.D.C. 2006). In 2008, following a trial, Robertson ruled that the employee's civil rights were violated.Bill Mears, [http://www.cnn.com/2008/US/09/19/transsexual.discrimination/ Transsexual wins lawsuit against Library of Congress], CNN (September 19, 2008).

Retirement and death

After serving for 14 years, Robertson assumed senior status on the District Court on December 31, 2008; he fully retired on June 1, 2010. After retiring from the bench, Robertson became a mediator and arbitrator with JAMS, deciding complex commercial cases.[https://dcchs.org/wp-content/uploads/2019/04/James-Robertson-Complete-oral-history.pdf James Robertson Oral History], Historical Society of the District of Columbia Circuit, pp. 195-99. He also wrote two op-eds published in the Washington Post.James Robertson, [https://www.washingtonpost.com/opinions/judges-shouldnt-decide-about-drone-strikes/2013/02/15/8dcd1c46-778c-11e2-aa12-e6cf1d31106b_story.html Judges shouldn't decide about drone strikes], Washington Post (February 15, 2013).James Robertson, [https://www.washingtonpost.com/opinions/the-judicial-nomination-war-started-with-bork-lets-end-it-with-gorsuch/2017/03/15/3effeb4e-0990-11e7-b77c-0047d15a24e0_story.html The judicial nomination war started with Bork. Let's end it with Gorsuch.], Washington Post (March 15, 2017).

Robertson died on September 7, 2019, at age 81,{{Cite web |url=https://www.law360.com/articles/1197443/former-dc-federal-judge-james-robertson-dies-at-81 |title=Former DC Federal Judge James Robertson Dies At 81 |date=September 11, 2019 |website=Law360 |access-date=September 11, 2019 |archive-url=https://web.archive.org/web/20191009133443/https://www.law360.com/articles/1197443/former-dc-federal-judge-james-robertson-dies-at-81 |archive-date=October 9, 2019 |url-status=dead }} in Washington, D.C., due to heart disease.

Personal life

Robertson married Berit Persson in 1959; they had three children and six grandchildren.

Robertson lived in North Bethesda, Maryland, and later Georgetown.[https://dcchs.org/wp-content/uploads/2019/04/James-Robertson-Complete-oral-history.pdf James Robertson Oral History], Historical Society of the District of Columbia Circuit, pp. 74, 169, 179.