Judge Thomas Meskill

A second former Chief Judge of the Second Circuit has died, Thomas Meskill. Judge Meskill had been the mayor of New Britain, Connecticut, a Congressman, and governor from 1971 to 1975, before, like Judge Oakes, he was nominated to the bench by President Nixon. Unlike Judge Oakes, he was not a Nixon appointee, because his nomination died: in part from opposition from the ABA who thought he had too little actual legal experience, and in part because his nomination was one of the last acts of President Nixon before he resigned. Meskill was re-nominated by President Ford, and with the support of Senator Lowell Weicker, he was confirmed. Also unlike Judge Oakes, Judge Meskill was quite conservative, and had the nickname "Tough Tommy," mostly for his courage in putting the state on a solid financial footing after having inherited a state on the verge of bankruptcy. He was though, personally unflappable: In 1970, when both Meskill and Weicker were Congressmen, their two engine prop plane lost both engines over New York City. While Weicker was about to faint, Meskill calmly kept working on a speech and joked that they were riding in the most expensive glider in the world. The pilot fortunately was able to restart the engines and land safely.

Judge Meskill was of a time when career politicians were regularly appointed to the bench (when I worked for Congress, my boss, a moderate Democrat in a Republican district, was repeatedly offered a Third Circuit judgeship by Republican Presidents as a way to get his seat; he declined). Once on the bench, Judge Meskill worked hard at becoming a respected judge. Although he was not a copyright maven like Judge Oakes, he nevertheless wrote a number of very well known opinions which were excellent in every respect. Reyher v. Children's Television Workshop, 533 F.2d 87 (2d Cir. 1976), issued the year after he joined the circuit is the foundational opinion on the scenes a faire doctrine. Warner Brothers, Inc. v. ABC opinion, 654 F.2d 204 (2d Cir. 1981), is an oft-cited opinion on parody and protection for characters (Judge Newman then wrote a second opinion in a later appeal). Durham Industries, Inc. v. Tomy Corp., 630 F.2d 908 (2d Cir. 1980) is a foundational opinion on the scope of the derivative right. Wright v. Warner Books, 953 F.2d 721 (2d Cir. 1991), was a critical opinion in ending a huge fight within the circuit on application of fair use to unpublished works, a fight that began with the Salinger opinion, continued with the New Era opinion, and which saw three members of the circuit testify before Congress. Judge Meskill's sober and sensible approach eliminated the need for any legislation; the insistence by book publishers that an amendment to Section 107 be enacted anyway backfired when the amendment was carefully crafted to do nothing since in light of Judge Meskill's Wright opinion, nothing was needed.

Judge Meskill continued to work until his death, joining in Judge Newman's excellent GATT opinion of April 13th, Troll Doll Co. v. Uneeda Doll Co., 483 F.3d 140 (2d Cir. 2007). He also wrote a famous dissent in the Harper & Row v. Nation to Judge Irving Kaufman's majority opinion which the Supreme Court reversed and wrote a compelling dissent in the circuit's en banc reversal of his panel opinion in the famous L. Batlin & Sons, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976), with Judge Oakes writing the en banc majority opinion.