Judge Zilly, 89, Defies Expectations as Seniors Forced Out (1)

When Washington-based Judge Thomas Zilly held the first federal jury trial-by-Zoom in 2020, his colleague Judge John Coughenour said the move would “cheapen” trials, urging a return to how things were “when Abraham Lincoln tried cases.”

Lincoln “would have applauded” the court’s innovation, Zilly hit back in a Seattle Times op-ed rebutting Coughenour’s.

Four years later, Coughenour allowed a witness to testify by video. “I hasten to say, I’m not sure I’m winning this debate,” Coughenour told Bloomberg Law. While he stands by his concerns, younger lawyers like the remote option, the judge said.

Zilly, turning 90 on Jan. 1, isn’t among the youngest of lawyers but he’s keeping up with them. In a climate where some of the highest-ranking senior citizens in public life have had to relinquish power, Zilly continues to defy stereotypes by breaking ground in new areas of law and embracing technology.

“Reagan would not be pleased with many of my rulings,” Zilly said in an interview with Bloomberg Law, referring to the Republican president who nominated him to the bench.

Zilly described himself as “a conservative person by nature,” but “there are times when the law needs to move,” he said. “To the extent we can help shape the law for the future, that’s one of the wonderful opportunities we have as judges.”

Zilly has tackled some of the most controversial topics of the past three decades: His rulings expanded gay rights in the military; handed free speech protections to anonymous online commenters; and blocked deportations under Donald Trump’s 2017 travel ban.

“It’s hard to envision a federal bench here without Judge Zilly,” said Todd Maybrown, an adjunct professor of law at the University of Washington School of Law. “He’s willing to say what he believes, after spending a lot of time analyzing and deciding the right outcome. He’s never trying to satisfy an agenda.”

‘Fox Watching the Henhouse’

Figures from President Joe Biden to the late Senator Dianne Feinstein to Federal Circuit Judge Pauline Newman have been ensnared in age-related controversies.

While states have mandatory retirement ages for judges—in Washington state, it’s 75—the US Constitution gives federal judges lifetime appointments.

Zilly’s older than nearly 95% of all federal judges, according to a Bloomberg Law data analysis of Federal Judicial Center data containing judges’ birth years. Looking only at federal judges with senior status, he’s older than roughly 88% of them, the analysis showed.

While federal judges, including Zilly, say they have a self-policing system for cognitive decline, Michigan State University political science professor Ryan C. Black compares it to “a fox watching the hen house.” Observing their own declines and those of their colleagues, Black says, “is a blind spot.”

Still, fellow Washington federal Judge Robert S. Lasnik says society wants to send people to pasture when they turn 65. But Zilly’s “still sharp,” Lasnik says. “The fact that he has the zest to keep doing this and still does it so well is a value to our court.”

Zilly’s Path to the Bench

Zilly’s made waves throughout his career, despite presenting as a mild-mannered and even-keeled conservative—he’s a grandpa of 12 who plays bridge and competitive squash in his free time. His wife, Jane Noland, is a glass artist who served on the Seattle City Council before losing a race for Seattle mayor in 1997.

Born and raised in the Detroit area, Zilly served as a naval officer on a destroyer during the Cold War before graduating from Cornell Law School. He worked summers in the Pacific Northwest, moved to Seattle to work for a law firm in 1962, and has lived in the city since.

A trial lawyer for 27 years, Zilly served as president of the King County Bar Association in 1986. He used the role to establish a bench-to-bar committee to foster communication between practitioners and judges, encouraged the use of mediation, set up a ratings system to vet judges, and tried to lower the courthouse caseload.

The role gave him new visibility, and late Washington Senator Daniel J. Evans (R) recommended Zilly to Reagan. He was confirmed to the Western District of Washington in 1988 and began receiving attention for decisions that cut against the grain.

Trump Travel Ban, Gay Rights

When then-President Trump signed a 2017 executive order restricting people from seven predominantly Muslim nations from immigrating and traveling to the US, Zilly issued a pause on deportations 24 hours later for two people entering the country from one of the restricted countries.

Zilly read the documents on his phone while at a grandchild’s soccer game, as he was the on-call judge that weekend. “I was told a plane would leave in an hour with them on it unless I did something,” he recalled. “I said, ‘Let’s take a time out.’”

The US Supreme Court upheld a subsequent iteration of Trump’s executive order.

When the 2000s ushered in new, web-related questions for lawyers, Zilly in 2001 wrote a decision that’s still the go-to roadmap for “unmasking” subpoenas. Online commenters have a right to anonymity and can only be subpoenaed to disclose their identities and testify where their identities are core to the case, Zilly ruled.

The decision was cited earlier this year in a case challenging the right to protect anonymous commenters on Reddit from a subpoena seeking their log-in information after they’d posted about illegally pirating movies.

When death row inmate Mitchell Rupe argued he was too overweight to be hanged—then the primary form of state execution in Washington—Zilly agreed. In a first-in-the-nation decision, Zilly said hanging a 400 lb person would be unconstitutionally cruel because of the decapitation risk.

After the Pentagon discharged Col. Margarethe Cammermeyer for coming out as gay, Zilly in 1994 ordered her reinstatement, finding the military’s then policy of discharging gay service members unconstitutional.

Zilly’s ruling led Cammermeyer to become a leading gay rights activist, she said in an interview with Bloomberg Law. She led the pledge of allegiance at President Barack Obama’s signing of the repeal of “Don’t Ask, Don’t Tell.”

‘Ever Cheated in a Video Game?’

Zilly took senior status in 2004, which made him eligible for a reduced caseload. But he effectively kept an active caseload until about five years ago, he said.

Zilly’s recent cases include examining whether the “CHOP” demonstrations—when protesters set up a so-called autonomous zone in Seattle’s Capitol Hill—were handled lawfully by the city in a suit from business owners in the area; considering if Zillow, in its partnership with a national real-estate agent association, broke antitrust laws; and he recently finished a trial over whether hacks for the video game Destiny 2 broke intellectual property laws.

During jury selection held via Zoom for the Destiny 2 trial, Zilly chatted about video games with a young crowd of potential jurors. “Have you ever cheated in a video game?” he asked the boxes on his screen, as the assembled jurors mulled it over.

During another recent remote trial—this one over the potential infringement of a video game patent—concerns were raised about how jurors could get a sense for a key piece of evidence, the video game controller. Zilly suggested mailing each juror the controller so they could take it out when it was entered into evidence by the defense—they didn’t get to keep it.

The US Supreme Court will soon weigh in on Zilly’s decision finding that a foreign corporation doesn’t need to have contacts in a state to be brought to court there. Oral argument before the high court is set for March 3.

Zilly said he’s starting to think about slowing down and spending more time with family.

While he’s cut back on his caseload, Zilly recently found himself asking a newer judge with a heavier load to send him some motions to decide.

“I would never retire,” Zilly told Bloomberg Law. “I want to go out being a judge.”

Data Editor Andrew Wallender contributed to the reporting of this story.

Updates fourth paragraph from bottom to include oral argument date.