Bolch Judicial Institute
Duke Law School
by David F. Levi, M. Margaret McKeown, David G. Campbell, D. Todd Christofferson, Manuel Sager and J. Clifford WallaceVol. 106 No. 2 (2022) | Losing faith? | Download PDF Version of Article
Through more than 50 years of service on the federal bench, Judge J. Clifford Wallace, chief judge emeritus of the U.S. Court of Appeals for the Ninth Circuit, has led multiple efforts to improve the administration of justice in his circuit and in the federal courts, served his community and church through a wide variety of leadership roles, and advised judiciaries around the world on the development of the rule of law and the administration of justice. He has traveled to more than 70 countries, often at his own expense, to work with judges and governments to strengthen judicial processes, improve court structures, and develop innovative solutions to logistical and legal challenges.
For his tireless efforts and extraordinary dedication to making courts work better for the people they serve, Judge Wallace was honored with the 2022 Susan and Carl Bolch Jr. Prize for the Rule of Law during a ceremony in San Diego earlier this year.
The prize is awarded annually by the Bolch Judicial Institute of Duke Law School to an individual or organization demonstrating extraordinary dedication to the rule of law and advancing rule-of-law principles around the world. By honoring those who do this work, the Bolch Prize draws attention to the ideals of justice and judicial independence and to the constitutional structures and safeguards that undergird a free society.
During this year’s prize ceremony, several distinguished speakers paid tribute to Judge Wallace’s service to the courts and the rule of law, and to his seemingly boundless energy. Susan Bass Bolch, co-founder of the Bolch Judicial Institute, opened the prize ceremony by congratulating Judge Wallace and thanking him for a remarkable life and career dedicated to preserving and advancing the rule of law.
“Through teaching and listening, collaboration and partnership, Judge Wallace has helped judges and judiciaries across the globe improve the administration of justice and ensure the efficient and fair resolution of disputes,” she said. “And when courts work effectively, fairly, and dependably, they earn the faith of the citizens upon whom the rule of law depends. Judge Wallace’s work is the very sort of work we hoped our Institute would support. By honoring you, Judge Wallace, we not only thank you and celebrate your many achievements, but we also lift you up as a shining example. You show us the difference that one very dedicated person can make.”
The following are excerpts from remarks offered during the program by Judge M. Margaret Mckeown of the U.S. Court of Appeals for the Ninth Circuit; D. Todd Christofferson, a leader of The Church of Jesus Christ of Latter-day Saints, which has helped to support Judge Wallace’s international work; Judge David Campbell of the U.S. District Court for the District of Arizona, a former clerk to Judge Wallace; Manuel Sager, a former ambassador to the United States from Switzerland and a member of the Bolch Judicial Institute’s advisory board; David F. Levi, director of the Bolch Judicial Institute and a former chief judge of the U.S. District Court for the Eastern District of California, where he was a colleague of Judge Wallace’s; and Judge J. Clifford Wallace. A video of the full ceremony is available at youtu.be/wln9ak90G3c.
It is a great honor for me to be here today, to speak about J. Clifford Wallace and this amazing prize. I am here, along with all of the other federal judges, as the beneficiary of his path-making role in judicial administration. I am also here as a co-conspirator with him in the rule-of-law arena. And I’m here as a colleague and a friend.
It was as a senior scholar at the Woodrow Wilson International Center for Scholars that Judge Wallace was bitten by the administration-of-justice bug. In the Wallace way, he dreamed up innovations, and then he set out to work with the chief justice to make them happen. One of the key innovations that he initiated was to have an executive committee of the United States Judicial Conference. He also led the Conference of Chief Circuit Judges. And he was the first to regularize the International Judicial Relations Committee, a national committee of federal judges focused on the rule of law and international judicial education.
At the behest of Chief Justice Warren Burger, Judge Wallace led a 1982 study on the future of the judiciary, a daunting task. He was asked to actually figure out what would be the future of the judiciary. An important concept that came out of that is the network of the American Inns of Court. This staple of the legal profession embraces one of Judge Wallace’s chief values — civility.
Judge Wallace became chief judge of the Ninth Circuit in 1991. He served in that role until 1996. As chief, he initiated a strategic plan for our circuit, bringing it into a new era. He also established task forces to study gender and racial bias in the federal courts and recognized the need to make access to justice a reality, not something we just talk about. He created an appellate lawyer program that provided pro bono services for litigants in our court. Now we have an experienced panel of lawyers who are available to represent clients who are indigent. This guarantees the lawyer an oral argument, which in this day of thousands of cases is something of a feat.
Another of Judge Wallace’s lasting contributions as chief was establishing the first mediation program in a United States appellate court. There was a lot of skepticism about that. Today, we mediate some 1,000 to 1,500 cases every year. Out of a docket that ranges from 10,000 to 14,000, that is a significant number. This is a very tangible contribution to the rule of law and to the role of justice and access to justice in the United States.
As a colleague, Judge Wallace remains the high-water mark of what a judge should be. He is prepared, open-minded, dignified, and respectful. Even after 52 years on the bench, every case matters to him. Behind every case is a person, a company, an entity to whom that case matters the most. I have found Judge Wallace to be very flexible in his approach to cases. He’s always concerned about the court and the justice system. And he rightly understands that perceptions matter. So even when we disagree — and we have at times — he is very respectful, and we can agree to disagree. He doesn’t have a harsh or a mean pen. He embodies the principles that the Inns of Court movement embraces.
We also know that Judge Wallace is in amazing shape. He takes very good care of himself. His former passion for jogging is well-known around his chambers, around the court, and even among judges around the world. They will say, “Oh, you mean the jogging judge.” He recently circulated to the court a message that he labeled “great quote.” Here’s what it said: “You don’t need to feel good to get going; you need to get going to feel good.”
So, in closing, I salute Judge Wallace, chief judge emeritus, as the perfect honoree for this award. And I assure him that we are all going to get going — to play our parts to continue to make the rule of law a reality, both in the United States and around the world. Thank you. And congratulations, Judge Wallace.
You’re all well aware of Judge Wallace’s talent and legal scholarship, his exemplary judicial temperament, and his devotion to the effective administration of justice. These admirable qualities explain in part how he’s been able to achieve so much in so many places over so many years. But I believe there’s something even more fundamental that motivates and empowers Judge Wallace. Others have remarked about Cliff’s three great priorities: his family, his religion, and his profession. They’re obvious to anyone who knows him. And he’s not shy about sharing his enthusiasm for each of these cornerstones of his life.
I’d like to comment a bit further about the influence of his faith. I think most of you will be familiar with a New Testament story of the lawyer challenging Jesus with what he thought would be a difficult question. Despite having my own law degree, I don’t want to defend this lawyer because of his motives, but I am grateful that he asked the question that he did because it brought such an important response from Jesus. The lawyer asked, “Master, which is the great commandment in the law?” Jesus said to him, “Thou shalt love the Lord thy God with all thy heart, with all thy soul, with all thy mind. This is the first and great commandment. And the second is like unto it, Thou shalt love thy neighbor as thyself.” Not quite satisfied — the scripture says, “willing to justify himself” — this unnamed lawyer asked a follow-up question: “And who is my neighbor?” In the Lord’s response, we have the moving parable of the Good Samaritan.
It’s easy to discern in Cliff Wallace that he has fully internalized that parable and the call to love God and fellow man. He has an insatiable desire to make a difference for good in this world. He appreciates his own blessings and recognizes the ultimate source of those blessings. Consequently, he has a refined sense of accountability to God for his life and what he does with his life. I’ve been many places in the world, and in some of them crossed paths with Cliff and his wife, Jenee. And I have seen, as he has, the tremendous hardship visited upon those for whom justice is denied because justice is delayed and delayed and delayed. I remember visiting a jurist in New Delhi and wading through stacks of files lining the walls of his courtroom and the hallway to his office. I cringed to think of the many people represented by those interminable stacks of files gathering dust, people whose causes would likely never be resolved even if they could be found. At that moment, I wished again, that we could clone Clifford Wallace to establish his carefully thought-through docket management and mediation structures in every corner of the world.
Judge Wallace once said, “There is no rule of law until a litigant has a judgment from the highest court that the law allows.” His appellate-level case management and court mediation processes and his vision of effective judicial administration generally, always adapted to local circumstances, have decreased delays substantially and better implemented the rule of law in many parts of Asia, the Pacific, Africa, Central and Eastern Europe, Central America, and beyond. It’s truly amazing to consider what one man’s persistent efforts can yield. He gets more done than any one person has a right to accomplish at age 92, or at any age. Still, I’m grateful that he’s always thinking ahead, and that he’s bringing others into the ring to expand and carry on his efforts.
A significant part of Cliff’s success is his wife, Jenee. Her talent with the violin and her warm gracious personality have charmed and helped win over many of those whose consent and support are needed to adopt and move forward Cliff’s projects. When these prominent jurists and other leaders get acquainted with Jenee, they’re more willing to give Cliff some attention!
One of our scriptures enjoins us to act by persuasion and with genuine love and regard for others, rather than by exercising whatever authority we may have to impose our will. This is Cliff’s modus operandi. There’s no question about his commitment or how much he cares, but he never tries to force a proposal or a solution. He knows that for anything good to endure, the beneficiaries or potential beneficiaries have to buy into it, and they have to own it. Therefore, he appeals to the innate goodness in all of us and — with a smile — persuades us that we can do better and follow a better path.
I had the privilege of serving as a law clerk to Judge Wallace when we were both much younger. And for the last few years, I have had the privilege of assisting him to a very small degree in some of his international work. The first trip that we made together was one that started in an airport, where we agreed to meet and then go through a series of flights to Southern Africa. He warned me: “Do not check a suitcase. Pack everything you need for more than a week in a carry-on.” So I crammed a suit and a bunch of dress shirts and ties and everything else into this carry-on and wore comfortable, warm clothes that I thought would be appropriate for a 22-hour flight.
I was surprised when I arrived at the gate and Judge Wallace was standing there in a blue suit, a white shirt, and a red tie, holding a very small suitcase. He looked at my bulging suitcase and said, “You know, I found if I wear my suit, I don’t have to pack it.” And I thought, “Well, yeah, but what will it look like when you get there?” And as if reading my mind, he said, “And if you buy a polyester suit, it won’t wrinkle.”
The next morning, when I was absolutely incapacitated with jet lag, Judge Wallace went running, at age 80, through the streets of Gaborone in a multicolored jogging suit. That’s what was packed in his little suitcase. He gave me other travel tips along the way. “If you bring a really small bottle of laundry detergent, you’ll only have to pack one pair of socks. You just wash your socks in the sink at night and you set them out to dry while you work the next day. On the third day, you’ve got a clean pair of socks. It works with other kinds of clothing as well.”
As we started work that day, I soon learned Judge Wallace was all business. We were not there to see sights. We were not there to take in new experiences. It was work from morning till night. He was looking. He was analyzing. He was making recommendations. He was explaining practices used in other parts of the world. He was developing relationships. And when we would finally get to the end of our day with the judges we were working with, he would open his briefcase and out would come his day job. And with his red felt pen, he’d start editing opinions — getting them done in time to get them into a Federal Express package to the front desk of the hotel to be sent off that night — before he fell into bed and got up to jog the next morning.
Judge Wallace’s experiences abroad are not a series of uninterrupted successes. It is very challenging and difficult work because there are setbacks, reverses, and regime changes. And yet he never gets discouraged. Much of his work involves exhortation, advocating for the rule of law, shoring up judicial independence, encouraging dedicated and public-minded judges around the world. As we all know, the rule of law and judicial independence are perishable. And we need people like Judge Wallace and the Bolch Judicial Institute to continue advocating for those, not only around the world, but here in our own country.
Sometimes his work produces remarkable change, and it has in a number of countries. As just one example: After he spoke at an international conference, he was asked by the chief justice of Botswana, who was in the audience, to come to Botswana and help them solve a problem they had not been able to solve for years. Their civil caseload was so backlogged that the citizens were losing faith in the courts as a way to find relief from problems. So Judge Wallace went there, diagnosed the problem, and recommended the solution, which they implemented. In five years, the backlog in the High Court of Botswana, which is the main large general-jurisdiction court, dropped from 11,000 cases per judge to less than 2,000 cases per judge. The country next door, Namibia, took note of what happened. Their high court adopted the same recommendations and, in two years, decreased their civil case processing time by 250 percent.
Yet when I think of Judge Wallace’s accomplishments, I don’t think of the accolades or the sights he’s seen. I think of him washing his socks in the sink at night, sleeping in uncomfortable beds, eating strange food, missing his family, and spending long hours on airplanes. Working from the start to the end of the trip. I think of persistent, untiring dedication to make the world a better place.
What I have learned about Judge Wallace is that he and I share a conviction that is very much at the heart of the Bolch Institute: It’s the conviction that the rule of law, access to justice, and the independence of the judiciary are not just tenets of personal ethics that are either upheld or violated behind the closed door of a courtroom. They are indicators of the values that prevail outside the courthouse.
The interdependence between prosperity, security, and human rights is at the center of the UN Agenda 2030, and one of the UN’s 17 Sustainable Development Goals, or SDGs. Now some may argue that for example, SDG 2, on zero hunger, is more important than SDG 8, on decent work and economic growth. Some might say both are more important than SDG 16, calling for just, peaceful, and inclusive societies. But I think that’s missing the point. The question is not whether one goal is more important than the other. The real question is can we achieve one without the others?
In my opinion, the answer is no. Where one is threatened, all the others are precarious at best. Equal access to justice and equal access to prosperity are of equal importance. One without the other is an empty slogan.
Now, what are judges like Judge Wallace supposed to do, recognizing this link? Are they supposed to go out and help farmers in Southern Africa in boosting their cassava production? Of course not. Judges are experts in the administration of justice — here, justice with a small “j.” That’s the knowledge they most sensibly pass on to those who are willing to take their advice. But in doing so they must be aware of what happens to the small farmer out in the cassava field, because what happens there is linked to what happens to the same farmer in the courthouse. If the farmer cannot enforce her contracts, she will be cheated by middlemen. If her land rights are not upheld in court, then she can’t mortgage her property to buy seeds and equipment. The injustice will crush her spirit. She will never trust a system that keeps her down. She will stay small, and she will stay under the radar.
Now, if one farmer does that, the system shrugs, but if 70 or 80 percent of farmers do that, like in so many informal economies of the world, then the system gasps for air. Institutions that are not trusted wither and sooner or later become irrelevant.
Judge Wallace has advised judiciaries in combating corruption — one of the big scourges of our day — in many parts of the world. He helped set up mediation programs. And in one case, he even staved off judicial interference by a military president.
I asked Judge Wallace over lunch which case in his career made him most pleased to be a judge. None seemed to stick out at that moment, but he did share with me that his greatest passion has always been helping to improve judicial systems in different parts of the world. I see behind all these efforts one overarching objective: to restore the broken bond between the governing and the governed — to restore trust by restoring justice. Justice and trust, two of the indispensable ingredients of a functional society and a viable democracy.
Justice Sandra Day O’Connor said of Judge Wallace: “No one has done what he has done in terms of improving the judicial system around the world.” I think that Judge Wallace had set his sights even higher than that. His aim has been to transform societies in their foundations, always with one eye on the courthouse and one eye on the main square.
The Bolch Prize was created by Carl and Susan Bolch when they first established the Bolch Judicial Institute in 2018. Our founding documents specify that the prize shall be given to recognize the achievement of an individual or organization in creating, promoting, or preserving the rule of law, nationally or internationally.
The award reminds us all that the rule of law does not come easily. Nor can we be confident that, once it has come, it will stay. It requires work, sacrifice, and constant care in order to flourish. A judicial system that does not deliver fair and lawful decisions in a timely and efficient manner will not earn the faith of the people that it serves. And if the people do not have confidence in the system, then they will not see any reason to support it or protect it. Public faith in the judiciary is the best guardrail against threats to the rule of law. Judges can nurture that faith by doing their work carefully and honorably, by doing whatever they can to make sure the justice system is both fair and as efficient as it can be. It’s up to all of us — judges, lawyers, and citizens — to tell the story to the people, in classrooms, courtrooms, and wherever we may gather, in person or online. This is the on-the-ground labor of strengthening the rule of law — making sure the system works for the people, and that the people understand that it works and how it works.
This is what Judge Wallace has dedicated his life to. He’s done it in over 70 countries and on countless law reform committees and initiatives. And it is clear that he has left not only a lasting mark on many of the world’s judiciaries, but he has also made a deep, personal impression on the many people he has worked with.
Justice Anthony Kennedy, the inaugural recipient of the Bolch Prize, is one of those people. He asked me to share some of his thoughts about Cliff this afternoon:
Cliff Wallace’s gifts to the legal profession and the rule of law will remain all but unrivaled, here and abroad, now and in the years to come. Those who may be honored by the Bolch Award as time progresses will be thrilled to be linked with Judge Wallace’s career and accomplishments. Cliff, your stature now becomes part of the meaning and purpose of the Bolch Award.
Some years ago, at the request of our State Department, it was important for me to call a conference for judges from countries in and near Southeast Asia. The meeting was in Bangkok. On my arrival, the car taking me from the airport entered the main part of the city. We passed a brick building, perhaps three stories high; responding to my comment that it was impressive and inviting, the driver said, “Oh, that is the Cliff Wallace Building for judicial training. Our judges go there to learn more about law and justice.” Cliff not only had preceded me to a place halfway around the world, in a real sense he was still there. Well, this was nothing new. It was neither the first nor the last time he was out ahead.
Cliff, the rest of us may not come close to your list of accomplishments and gifts to the law here and abroad. But this is clear: We who have had the honor of working with you over the years value your leadership and remarkable achievements. And we value, too, our warm, enriching, inspiring friendship that we will cherish in all the years to come.
In all areas of Judge Wallace’s remarkable life lies a common thread: a sense of duty to serve. Cliff, I think one of the reasons you have been able to do so much good, and do it so effectively, is because of who you are and the way you carry yourself in the world. You are a collaborator, a helper, a listener. A judge should be a good listener. You share ideas, and you learn from others as much as they might learn from you.
Of course, not every country that you have worked in has embraced democracy or human rights in all the ways that you would’ve liked, but you meet these challenges with the same hope that you bring to all of your work: that your efforts may improve a process or a system that will better the experience of everyday people who are seeking solutions to problems. And this, in turn, will improve relationships in a community, increase public faith in the judicial process, and, ultimately, strengthen the social fabric. These are the building blocks, the ground game of the rule of law.
Judge Wallace, for your many contributions to our courts here in the United States and around the world, for your tireless efforts to improve the administration of justice, for your dedication to the rule of law, and for your inspirational example of leadership, civility, and humility, on behalf of the Bolch Judicial Institute, I am pleased to award you the 2022 Carl and Susan Bolch Prize for the Rule of Law.
Thank you so much for being here with me this day. These are the people who have interacted with me over the years who have given me confidence and a belief that more can be done. And I’m grateful for the inspiration that you have provided. I just want to say a word or two about the Bolch Prize and its focus on the rule of law.
There’s some difficulty, at times, in determining exactly what the rule of law is. For example, in Bush v. Gore, both the Supreme Court majority and dissent claimed they were following the rule of law. While this can be a problem, it generally is not — because the rule-of-law phrase refers to a principle, not its application. What is significant here is that the rule is one of law and not a rule of some other power. It is the starting place for judges to be reminded that their decision is not based upon what they would have the law be, but what the law currently is. That the rule is what they are to follow. The rule of law offers the hope of fundamental fairness, distinguished from a rule developed by an individual such as a political executive, or some other person with power. The rule of law provides a starting place with which we can all agree.
The United States Constitution is best understood as maintaining that the rule of law shall be the governing law for all its citizens. It is the role of the judiciary under Article III to make sure that the laws and actions of Congress in Article I, and the executive pursuant to Article II, are within the rule of law. Thus, the rule of law is a founding principle of our Constitution. The first Congress adopted the first ten amendments to the Constitution in order to make sure there would be a rule of law.
The rule of law was internationalized by the adoption of the Universal Declaration of Human Rights. This Declaration demonstrates that the rule of law has international implications, and it justifies working with all countries to develop and preserve the rule of law. This analysis has been a significant part of my interest in the work for over 50 years in 72 countries.
I’m grateful to The Asia Foundation, which supported me in furthering this interest in the beginning years. Indeed, the first country where I worked was the People’s Republic of China, just after the disastrous Cultural Revolution. I’m also grateful to The Church of Jesus Christ of Latter-day Saints for its encouragement and assistance over the last 20 years.
The rule of law cannot be effective in countries unless there is a separate and independent judicial system. This separation-of-powers-of-government idea was first initiated in the French Revolution, which resulted in separating the legislature from the executive. Having a separate judiciary to enforce the rule of law was an idea that was first initiated by the adoption of the Constitution of the United States of America. Consequently, the challenge of assisting all countries in the development of the rule of law is an important task. The Bolch Judicial Institute has developed and carried out programs to assist this implementation of the rule of law worldwide.
However well-intentioned each country’s constitution and declarations may be, the judiciary must be strong enough to implement the rule of law. With a weak judiciary, the result desired is unachievable. It was this realization that started me on the path 50 years ago of strengthening judiciaries worldwide, so that the rule of law could be implemented. Thus, constant attention to new ways for courts to operate, to provide prompt and effective decisions, is indispensable to achieve the implementation of the rule of law.
Yes, sometimes I feel like a legal plumber, fixing and improving the judicial systems. Indeed, this is an ongoing project. My five decades in this effort have taught me that we will never finish with this project. There will always be more to be done in some country, somewhere, to strengthen a judiciary so that the judiciary, in turn, can protect the rule of law.
I congratulate the Bolch Judicial Institute and its founders, Carl Bolch Jr. and Susan Bass Bolch, for focusing upon this fundamental and indispensable need to strengthen the rule of law, not only in our country but worldwide. With humility, and commitment, and thanks, I gratefully accept this most meaningful prize. And I pledge my continuing involvement to the principle for which it stands, as far as I can.