To James A. Garfield\u27s aphorism that the best education would be found with the student on one end of a bench and Mark Hopkins at the other I would add that the best education for a new member of the Washington Supreme Court is to have had Charles Horowitz at one end of the bench and the new member on the other. During the 42 years I have been a member of the court, through the implacable rules of seniority, he occupied one end of the bench and I the other. In the conference room, however, I always sat directly across from him. To have seen Charlie Horowitz in action from either perspective was one of those experiences which transforms one\u27s life

Dolliver, James M.

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 56 Number 2 3-1-1981 Charles Horowitz: A Memoir James M. Dolliver Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Digital Commons Network Logo  Part of the Legal Biography Commons Recommended Citation James M. Dolliver, Dedication, Charles Horowitz: A Memoir, 56 Wash. L. Rev. 167 (1981). Available at: https://digitalcommons.law.uw.edu/wlr/vol56/iss2/16 This Dedication is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. CHARLES HOROWITZ: A MemoirJames M. Dolliver*To James A. Garfield's aphorism that the best education would befound with the student on one end of a bench and Mark Hopkins at theother I would add that the best education for a new member of the Wash-ington Supreme Court is to have had Charles Horowitz at one end of thebench and the new member on the other. During the 42 years I havebeen a member of the court, through the implacable rules of seniority, heoccupied one end of the bench and I the other. In the conference room,however, I always sat directly across from him. To have seen CharlieHorowitz in action from either perspective was one of those experienceswhich transforms one's life.I did not really know Justice Horowitz before coming to the court. Myrecollection is that while I was assistant to Governor Evans I called him tosee if he would accept appointment to the court of appeals in 1969. Al-though his outstanding qualities had filtered even into the office of theGovernor, I cannot claim to have had any real acquaintance with Charlieuntil I became a member of the court in 1976.Probably anyone who comes to the supreme court does so with con-siderable apprehension. You are cast into the midst of persons whosepublic life is guarded, whose decisionmaking tends toward secrecy andwhose method of operation is mysterious even to veterans at the bar. Therituals which accompany the black robe, the dealing with the members ofthe court as your intellectual and personal peers, the understanding thatyour words printed in the Washington Reports will receive the unblinkingscrutiny of litigants and the bar, not to mention irreverent law students,and the doubts and fears as to your capacity to do a good job make for afairly high level of both excitement and anxiety. So you seek a mentor.Mine was Charles Horowitz.My first lessons were on the bench. A new judge is diffident, at leastinitially, about asking questions. That soon disappears and the challengethen becomes not to ask questions but to ask the right questions in such away as to get useful answers from counsel. The style of questioning fromthe members of the court tends to differ. I will leave it to the practicingbar as to which current member is most effective. The skill of JusticeHorowitz in asking questions became legendary. In any case which ap-peared to have an intellectual puzzle or- a question on public policy some-what beyond the ordinary, at some time during the argument counsel* Justice, Supreme Court of Washington; B.A., 1949, Swathmore College; LL.B., 1952, Uni-versity of Washington.Washington Law Reviewwould hear the soft but persistent voice of Justice Horowitz. His voicewas never loud; it was sometimes difficult for those of us at the other endof the bench to hear. The tone was kindly. The inflection sounded help-ful, even confiding, and to the uninitiated the question sounded innocentenough. I have seen counsel answer the first inquiry with what seemed tobe a certain inner smile of triumph and then confidently turn to the othermembers of the court to continue argument.But the first question would be followed by a second-still in the softvoice, the kindly tone-but now a certain suggestion that all was not wellwith the argument had crept into the question. "Counsel, I want to makesure I understand your position." Counsel would betray a slight, nearlyunnoticeable flicker of apprehension. Then a third question. In a typicalcase at this juncture all but the dullest advocate could look behind and seenothing but a corner; ahead and see nothing but a rapidly approachingfloor of wet paint. Sometimes the questions would lead to a reluctant ad-mission. Sometimes to a worried pause, an anxious glance to the rest ofthe court, and an unspoken prayer that no questions would emanate fromthat end of the bench. Sometimes argument would continue on, out-wardly unbroken, but counsel would appear to be laboring under somegreat burden which, though invisible, was palpable to those of us who saton the bench. Secret smiles would be exchanged among the justices, anew perspective would have appeared in the case and a flash of lightwould come to the decisionmaking process.But it was in the conference room where the lesson really took place.As I mentioned, the iron law of seniority placed Justice Horowitz directlyacross from me at the conference table during our entire tenure together.Cases which are heard by the court are preassigned to a justice who hasthe responsibility for reporting on that case at the conference. A report ona case by Charlie Horowitz was a magisterial performance. What prepara-tion! While I have always tried to be prepared on my own cases and thoseof other judges, when I compare my degree and quality of preparation tothat of Charlie I am as the Grasshopper to the Ant. Notebooks bulgingwith information: the full text of cases, observations of textbook and lawreview writers, an ominous stack of reports and a step-by-step analysis ofthe matter before us.There are a variety of styles of reporting in conference, but one particu-lar characteristic should be noted. Some members stand to recite, somesit. Charlie always stood (so do I). So he would stand, sometimes in backof his chair, grasping the top of its high back, sometimes in front, takinghis glasses off and putting them on as he read a passage or made a point.These recitations were neither cursory nor brief. They were extended, de-tailed, scholarly-and simply marvelous. Whatever the subject, whateverVol156:167, 1981Charles Horowitzthe case, there was always the same careful preparation, the same mea-sured, articulate recitation. A scrupulously fair presentation was given inthe same low, unhurried voice as had asked the questions from the bench.To savor a recitation of Justice Horowitz was to understand what continu-ing judicial education is all about.I have deliberately chosen not to review his opinions. They will servethe bar for as long as the Washington Reports are written and need noexplication from me. But I would make two comments on opinions. First,to have Charles Horowitz on the opposite side on either a majority ordissent was a singularly exhilarating intellectual experience. You were upagainst the best and it called for every resource you had. Second, early inmy judicial career I was told by Charlie not to get mad or upset if a judgedisagreed with you, and most particularly not to doubt that judge's intel-lectual capacity or integrity. This has been good advice. Not only do Ifollow it, I believe it is followed by all of us on the court. We can and dograb each other around the throat intellectually, but always maintain re-spect and regard for each other on both the personal and professionallevel.Finally, Charlie taught me the importance of values for anyone whowanted to be a good judge. He helped me to understand not only the needfor and necessity of values in decisionmaking, but also that a judgeshould not be ashamed of or try to hide the importance of values. I shallalways treasure what now seem like the too few occasions when I wouldsit with Charlie and listen to him talk about what it meant to be a judgeand the art of decisionmaking. I shall miss his presence on the far end ofthe bench, across the conference table and as a colleague, but I and everyother member of the bar and the judiciary will continue to be served bythe work of this remarkable man, my friend Charles Horowitz.169

Charles Horowitz: A Memoir

Washington Law Review Volume 56 Number 2 3-1-1981 Charles Horowitz: A Memoir James M. Dolliver Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Legal Biography Commons Recommended Citation James M. Dolliver, Dedication, Charles Horowitz: A Memoir, 56 Wash. L. Rev. 167 (1981). Available at: https://digitalcommons.law.uw.edu/wlr/vol56/iss2/3 This Dedication is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. CHARLES HOROWITZ: A MemoirJames M. Dolliver*To James A. Garfield's aphorism that the best education would befound with the student on one end of a bench and Mark Hopkins at theother I would add that the best education for a new member of the Wash-ington Supreme Court is to have had Charles Horowitz at one end of thebench and the new member on the other. During the 42 years I havebeen a member of the court, through the implacable rules of seniority, heoccupied one end of the bench and I the other. In the conference room,however, I always sat directly across from him. To have seen CharlieHorowitz in action from either perspective was one of those experienceswhich transforms one's life.I did not really know Justice Horowitz before coming to the court. Myrecollection is that while I was assistant to Governor Evans I called him tosee if he would accept appointment to the court of appeals in 1969. Al-though his outstanding qualities had filtered even into the office of theGovernor, I cannot claim to have had any real acquaintance with Charlieuntil I became a member of the court in 1976.Probably anyone who comes to the supreme court does so with con-siderable apprehension. You are cast into the midst of persons whosepublic life is guarded, whose decisionmaking tends toward secrecy andwhose method of operation is mysterious even to veterans at the bar. Therituals which accompany the black robe, the dealing with the members ofthe court as your intellectual and personal peers, the understanding thatyour words printed in the Washington Reports will receive the unblinkingscrutiny of litigants and the bar, not to mention irreverent law students,and the doubts and fears as to your capacity to do a good job make for afairly high level of both excitement and anxiety. So you seek a mentor.Mine was Charles Horowitz.My first lessons were on the bench. A new judge is diffident, at leastinitially, about asking questions. That soon disappears and the challengethen becomes not to ask questions but to ask the right questions in such away as to get useful answers from counsel. The style of questioning fromthe members of the court tends to differ. I will leave it to the practicingbar as to which current member is most effective. The skill of JusticeHorowitz in asking questions became legendary. In any case which ap-peared to have an intellectual puzzle or- a question on public policy some-what beyond the ordinary, at some time during the argument counsel* Justice, Supreme Court of Washington; B.A., 1949, Swathmore College; LL.B., 1952, Uni-versity of Washington.Washington Law Reviewwould hear the soft but persistent voice of Justice Horowitz. His voicewas never loud; it was sometimes difficult for those of us at the other endof the bench to hear. The tone was kindly. The inflection sounded help-ful, even confiding, and to the uninitiated the question sounded innocentenough. I have seen counsel answer the first inquiry with what seemed tobe a certain inner smile of triumph and then confidently turn to the othermembers of the court to continue argument.But the first question would be followed by a second-still in the softvoice, the kindly tone-but now a certain suggestion that all was not wellwith the argument had crept into the question. "Counsel, I want to makesure I understand your position." Counsel would betray a slight, nearlyunnoticeable flicker of apprehension. Then a third question. In a typicalcase at this juncture all but the dullest advocate could look behind and seenothing but a corner; ahead and see nothing but a rapidly approachingfloor of wet paint. Sometimes the questions would lead to a reluctant ad-mission. Sometimes to a worried pause, an anxious glance to the rest ofthe court, and an unspoken prayer that no questions would emanate fromthat end of the bench. Sometimes argument would continue on, out-wardly unbroken, but counsel would appear to be laboring under somegreat burden which, though invisible, was palpable to those of us who saton the bench. Secret smiles would be exchanged among the justices, anew perspective would have appeared in the case and a flash of lightwould come to the decisionmaking process.But it was in the conference room where the lesson really took place.As I mentioned, the iron law of seniority placed Justice Horowitz directlyacross from me at the conference table during our entire tenure together.Cases which are heard by the court are preassigned to a justice who hasthe responsibility for reporting on that case at the conference. A report ona case by Charlie Horowitz was a magisterial performance. What prepara-tion! While I have always tried to be prepared on my own cases and thoseof other judges, when I compare my degree and quality of preparation tothat of Charlie I am as the Grasshopper to the Ant. Notebooks bulgingwith information: the full text of cases, observations of textbook and lawreview writers, an ominous stack of reports and a step-by-step analysis ofthe matter before us.There are a variety of styles of reporting in conference, but one particu-lar characteristic should be noted. Some members stand to recite, somesit. Charlie always stood (so do I). So he would stand, sometimes in backof his chair, grasping the top of its high back, sometimes in front, takinghis glasses off and putting them on as he read a passage or made a point.These recitations were neither cursory nor brief. They were extended, de-tailed, scholarly-and simply marvelous. Whatever the subject, whateverVol156:167, 1981Charles Horowitzthe case, there was always the same careful preparation, the same mea-sured, articulate recitation. A scrupulously fair presentation was given inthe same low, unhurried voice as had asked the questions from the bench.To savor a recitation of Justice Horowitz was to understand what continu-ing judicial education is all about.I have deliberately chosen not to review his opinions. They will servethe bar for as long as the Washington Reports are written and need noexplication from me. But I would make two comments on opinions. First,to have Charles Horowitz on the opposite side on either a majority ordissent was a singularly exhilarating intellectual experience. You were upagainst the best and it called for every resource you had. Second, early inmy judicial career I was told by Charlie not to get mad or upset if a judgedisagreed with you, and most particularly not to doubt that judge's intel-lectual capacity or integrity. This has been good advice. Not only do Ifollow it, I believe it is followed by all of us on the court. We can and dograb each other around the throat intellectually, but always maintain re-spect and regard for each other on both the personal and professionallevel.Finally, Charlie taught me the importance of values for anyone whowanted to be a good judge. He helped me to understand not only the needfor and necessity of values in decisionmaking, but also that a judgeshould not be ashamed of or try to hide the importance of values. I shallalways treasure what now seem like the too few occasions when I wouldsit with Charlie and listen to him talk about what it meant to be a judgeand the art of decisionmaking. I shall miss his presence on the far end ofthe bench, across the conference table and as a colleague, but I and everyother member of the bar and the judiciary will continue to be served bythe work of this remarkable man, my friend Charles Horowitz.169

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Charles Horowitz: A Memoir

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