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2010] Oral History and the Study of the Judiciary 857 ducted, 54 and the depth of his preparation and the level of skill he brought to the task is evident from a review of the transcript. Similarly, letters to Judge Fairchild from the person who conducted the 1985 history provide some sense of his level of preparation, though getting copies of those required going through Judge Fairchild’s papers held by the Wisconsin Historical Society. 55 Materials available elsewhere similarly indicate that the 1998 history is part of a project in which the interviewers were advised by professional oral historians. 56 The resulting problem is not that the interviewers were in some general sense unprepared, but that the documents and tapes that ultimately became available to researchers provide no information that speaks to the point. There are other pieces of information relating to the manner in which the history was taken that would be helpful to an assessment of the validity of an interview that are likewise not provided. It would be helpful to know, for example, whether and to what extent there was a pre-interview discussion of the subjects that would be covered. Here again, there are clues. The correspondence leading up to the 1985 interview includes “an outline of the areas of discussion” that the interviewer anticipated covering. 57 One of the questions in the 1998 interview references a discussion between Judge Fairchild and the interviewer that took place the preceding week. 58 Beyond that, however, there is no indication of the extent to which Judge Fairchild was primed for each discussion. Another missing piece of contextual information concerns whether Judge Fairchild had an opportunity to review the transcripts of the 1992 and 1998 interviews. Without a sense of whether Judge Fairchild knew what the questions would be or had an opportunity to edit his answers, it is difficult to fully assess those answers. Of course, neither prior knowledge of the questions nor an ability to review an interview transcript necessarily make the product 54 DOMNARSKI, supra note 20, at 2–3. 55 Copies of these papers are on file with the author, obtained on October 15, 2009, from the Wisconsin Historical Society, located in Madison, Wisconsin. For more information on the Wisconsin Historical Society, visit http://www.wisconsinhistory.org/. 56 See WIS. COURT SYS., supra note 50, at 4 (“Wisconsin State Historical Society oral historians advised Court staff on the project and court reporters volunteered to transcribe the interviews.”). 57 Letter from James A. Cavanaugh to Judge Thomas E. Fairchild, U.S. Court of Appeals for the Seventh Circuit (Mar. 1, 1985) (on file with the Wisconsin Historical Society). The two topics relating to Judge Fairchild’s judicial career were labeled as “Supreme Court Election” and “Appointment to U.S. Court of Appeals.” Id. 58 1998 Interview, supra note 50, at 20 (“I know you and I talked about this last week, but I just want to get it down on the record . . . .”).
858 The George Washington Law Review [Vol. 78:846 of an interview more or less valuable. An interviewee who knows what topics will be explored will have more time to reflect on them, and in doing so may elicit memories and detail that would otherwise have remained buried. In similar fashion, an interviewee who reviews a transcript can pick out things that come across as incomplete or inaccurate, and can even provide supplemental detail. But there is value to spontaneity as well. Just as we are willing to admit hearsay evidence when the circumstances suggest that the declarant spoke spontaneously and without time to reflect (and thus without having the time to lie), we might imagine that an interviewee confronted with an unanticipated question might give a less practiced, and thus more accurate, response. Without an understanding of the parameters of the interview, however, it is difficult to know which is the better conclusion. Substantively, my sense is that the Fairchild histories are of limited value in terms of providing insights into the judicial process. Some of this may be a product of his career. Judge Fairchild had a relatively lengthy political career—among other things, he ran for and served as Attorney General of Wisconsin, and ran for the United States Senate twice—and it is accordingly unsurprising that significant portions of all three histories are devoted to the parts of his career that preceded his time on the bench. Still, Judge Fairchild makes four appearances in Federal Judges Revealed, which seems to make him roughly average among the judges considered in terms of the number of times that Domnarski refers to him. The first concerns his educational background. 59 The second relates to the circumstances of his appointment. 60 The third deals with an administrative issue that arose when Judge Fairchild was Chief Judge of the Seventh Circuit and that involved a pair of senior judges whose capacities had declined somewhat. 61 The fourth is a discussion of the processes of opinionwriting. 62 Only the first two of these topics appear in all three histories, and only the second relates directly to the study of judicial institutions. Because Judge Fairchild discusses his appointment to the Seventh Circuit in each of these histories, more detailed consideration of those 59 Judge Fairchild was unique among the judges Domnarski considered in that he attended Deep Springs College, which Domnarski characterizes as “an experimental college.” DOMNAR- SKI, supra note 20, at 21–22; see also 1992 Interview, supra note 49. 60 DOMNARSKI, supra note 20, at 99–100. 61 Id. at 173. 62 Id. at 183–84.
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