I was saddened to hear about the passing of Judge William Bauer of the Seventh Circuit.
I was saddened to hear about the passing of Judge William Bauer of the Seventh Circuit. He was 99 years old and was still hearing cases until three years ago.
While I only talked to him a few times, he frequently sat on the panels I was assigned to while clerking. (He was something like 88 at the time.) My judge, Diane Sykes, was notoriously tough on crime — the guards jokingly named a wing of Wisconsin’s maximum-security prison after her — but next to Judge Bauer she was Chesa Boudin. Judge Bauer’s jurisprudence was best described as “Harry Callahan.”
For example, in the 2014 case U.S. v. Mayfield, Judge Sykes wrote for the en banc court a long, scholarly treatment of the entrapment defense in an effort to clean up disjointed circuit doctrine on the subject in the midst of Chicago law enforcement’s “stash house” scandal. Judge Bauer dissented, concluding, “The record shows the defendant was salivating to commit the crime. The fact that he was exceptionally greedy should not entitle him to an entrapment defense.” Ouch.
This came as no surprise given that Judge Bauer was a bona fide Nixon judge. Appointed first as U.S. Attorney and then district judge in the Northern District of Illinois by President Nixon, Judge Bauer exemplified his tough-on-crime, nuts-to-Earl-Warren approach to the bench. He started his career as a DuPage County prosecutor before President Eisenhower had even put Warren on the Supreme Court, eventually becoming First Assistant State’s Attorney, then State’s Attorney, and then a state judge. DuPage County was, at the time, Illinois’s suburban-Republican stronghold (Goldwater won it by almost 20 points), and just as Judge Bauer’s career in DuPage advanced, so did the Warren Court. No wonder he took a contrary view of the criminal law.
He was later elevated to the Seventh Circuit by President Ford and began his term as Chief Judge in the mid-1980s, as a sign of just how long-lasting his service was.
In proper Nixon-judge fashion he wasn’t a down-the-line judicial conservative. I don’t recall him being particularly staunch on social issues, for example, although even he could only tolerate so much, joining my judge’s dissent in the Bostock precursor case Hively v. Ivy Tech. Also on Title VII, Judge Bauer authored an important opinion on race preferences, holding that South Bend, Indiana’s affirmative-action plan for its police and fire departments violated the law because it pegged its demographics to the general population and not that of “the relevant qualified labor pool.”
At the same time Bauer was no particular friend to gun owners. He joined Judges Easterbrook and Posner in upholding Chicago’s handgun ban after Heller, switched his vote en banc in the early post-Heller interpretive case, U.S. v. Skoien, and remained a Second Amendment skeptic well into the future. A certain generation of crime fighter is uneasy with widespread private gun ownership.
Bauer’s was a common-sense, temperamental conservatism. In one antitrust appeal (involving processed-cheese futures, as I recall) he exasperatedly interjected, “You know the definition of an economist? It’s a guy who talks about things he doesn’t know anything about and then makes you think it’s your fault.”
In the last 40 years of originalists and textualists, law clerks and intellectuals, Republicans have moved away from the no-nonsense hanging judge of the Nixon years. While “the Sage of DuPage” was still handing out hard justice a half-century later, he may have been the last of his breed. R.I.P.