Skip to main content

tv   UC Berkeley Law School - The Human Side of Judging  CSPAN  July 1, 2019 8:01pm-9:33pm EDT

8:01 pm
i would not provide information beyond that which is already public. >> robert mueller is expected to appear before the house judiciary committee on wednesday, july 17 at 9:00 a.m. eastern. he will testify on his report on russian interference in the 2016 election. current and former barrel state judges including trials brier, the brother of stephen breyer caulk about the human side of their jobs. the 90 minute event took place at the university of california berkeley law school. my name is terminally --
8:02 pm
jeremy. i have been here for a little and a proudyear member of the bench of the northern district of california. this program is something that jeff rosen and i have been thinking about and dreaming about for some time. we worked together on a number discussion and the in ourcial independence society was missing a piece, a lot of focus on constitutional vision powers and the role of judges and all that. what has been missing is who are judges? what is the human side of judging? what we are trying to do this evening is begin that conversation and shed some light on it. i will introduce the panelists
8:03 pm
and jeff for introduce our co-moderator. you're on stage, we have judge charles breyer and been a judge on that bench since 1998. to the left is justice guzman. ary well regarded and successful member of that court. , we willcond panel hear from two individuals .itting down in the front i will be joining the panel as well, but to get right to the business, this is my friend, jeffrey rosen. >> thank you so much.
8:04 pm
welcome, ladies and gentlemen to the national constitution center on the road. centerional constitution is the only institution in america rated by the u.s. congress to educate americans about the constitution on a nine -- a nonpartisan basis. today, bringing together judges of different perspectives to educate people. i must put in a plug for the interactive constitution which brings together the top liberal and conservative scholars to write about every quality of the constitution describing areas of agreement and disagreement. we were here last week for the we the people podcast and around
8:05 pm
the country. this mission of bringing together citizens, judges, scholars and students from different perspectives for education and debate is a meaningful one and by participating, i'm thrilled you are part of it. this is a remarkable group of judges and a special honor for all of us that it will be michaeld by the great lewis. and he isback america's leading storyteller and there is no one who is better able to reveal the human stories behind the most complicated and meaningful political dramas of our time. he is recently the hosts of the best-selling umpire contest.
8:06 pm
you as well cannot wait to with the human side of judging. please welcome michael lewis. >> thank you. can you hear us? here because i met jeremy one of this podcast and the episodes was about judges and examining the judges that might undermine the authority that might make their lives difficult. otherwise, i know very little about the law except to run from it. . would like to start i would like you to introduce yourselves and what you do.
8:07 pm
the federal judges making me to first. i had the great privilege and pleasure serving on the supreme court of texas. it is the highest civil court in texas. i have been on the court since 2009. i started on an appellate court and initially entered the judiciary as a judge appointed by then governor bush. my journey has been marked as the first latina in harris and first latina elected to statewide office in texas and it is a job i enjoy. more votes than anyone has in the history of
8:08 pm
texas. >> texas elects judges that are riddled with all con and a few pros. go-getterhe highest in the history and the state of texas for any office at any time. chuck. for you, .> i thank my lucky stars my first case was one that who had a rosenthal what was called the oakland cannabis club and it ultimately went to the united states supreme court today prosecuted people who had manufactured and distributed marijuana. hadurned out that rosenthal been authorized by the city of oakland to be the official grower of marijuana.
8:09 pm
he oughtdecided that to be prosecuted for this thing called the supremacy clause and he was prosecuted in my court. it was the first case that i had ,s a trial judge and believe me i thank my lucky stars that i was not up for election. it turns out he was convicted to one day inhim .ail, credit for time served that was that. me and theted for aboutating discussion what does the independence of the judiciary do for the judge who does not have to be concerned about being popular? the most that you got
8:10 pm
votes, that is the best thing i heard about the election process, but i would be concerned and there are a lot of examples that we can give, even california. who renders unpopular decisions and then are voted out not because that judge did not do his or her job, but because that judge rendered it unpopular. stress.l give you do what i did with jeremy. obvious how a person becomes a judge and the social role is so powerful, once you are the judge, that is all you are, but once upon a time you were little kids with other ambitions in life.
8:11 pm
could you just start by explaining how you become a judge, how this happens and is there anything in your past that has led up to it where it made a lot of sense? >> everybody has different paths indians, i, but think there are people sitting in the audience that know they are wanting to be a judge and that is their goal. it really wasn't my goal. i did not see myself in the judiciary. there was a lot of hard work and indian, public service. as a young lawyer, i started on an agreement committee and there were a lot of ways i engaged with the community. i have four or five people come to me and say you ought to apply
8:12 pm
for this job. they already had 30 applicants for this particular vacancy, so i thought why not go ahead and do it? do it because it was an opportunity and you have to take those risks and so i did. i think any lawyer sitting into , he said he could do that better. >> that is what they say my court all the time. forward to what you're doing, i grew up in a house and my father told me to run as fast as possible. how did you get interested in the law? >> that is a great question.
8:13 pm
i'm from a very working-class background, but yesterday i was at the airport and it was late and i walked in the ladies room and i see the custodian. andis on her knees cleaning i'm thinking about coming to be interviewed by the michael lewis. andought about my mother one generation away from that life and she was a custodian at the university of houston where all her kids went to college so it kind of came back to me. that is my background, so when i thought about the law, why do i want to be a lawyer? for me, it was to make a difference, to really go back and engage with people that grew up like i did who are invisible.
8:14 pm
lawyer ine them as a ways that other people wouldn't. >> so it was social justice that interest you. >> trucks, how did you get into this -- chart, how did you get chuck, how do you you get into this? [no audio] out and i wanted to go see if i could actually make it as an actor in the problem was, you would be drafted, so my father who was conservative in that regard said you better [indiscernible] at the end of the first year, i
8:15 pm
was really unhappy. did not like it, did not like what they did will stop did not find it interesting and said i'm quitting -- they did. did not find it interesting and said i'm quitting. [no audio] clerk to a work as a personal injury lawyer? lawyer? depositions and trials and i thought this is fabulous. you write the play, act in the play, produce the plate and there is generally some kind of audience. indeed, i have to tell you what i would say to people and i think to really answer your question, what does it take to be a judge?
8:16 pm
it takes a lot. it cannot be downplayed. look amongtakes a other things. among other things. i think i had somebody different experiences, i was watergate prosecutor, a defense lawyer for 25 years. of things ands those experiences that i had, i greatly think i was able to be a judge. i told all students you will have a lot of opportunities, take the path not traveled because it will make you a different person and what you want to be as a judge, it is great to have different experiences. it is great to have your
8:17 pm
experience. it is great to be able to relate to people, especially as a trial the only waynd you're going to relate to people is different experiences. >> what year did you get into it? [no audio] has the environment in which you are judging changed notice note -- noted this noticeably? [no audio] that would be more
8:18 pm
destructive of the rule of law than that, so i'm alarmed by. my click here, they will not do that. my colleagues will try -- my colleagues, they will not do .hat sto >> are there different pressures ?n you there an you worried about different things? the conversations have changed. i became an appellate judge in about 2001. i wrote an opinion, maybe the newspaper picked it up in houston and that was it. it, itnted to criticize
8:19 pm
is there. twitterake up and go to and there it is. stress,ge, that great so i'm being criticized in kentucky or wherever. tweet?you >> yes. >> do you? >> i have no social media skills. >i would not even know how to do it. i have told my son to connect the telephone. it is terrible. anything, but do i will tell you that the justices are really discouraged from engaging in social media.
8:20 pm
weeks just for four traveling, having a great time and we decided as a group not to read the paper, not to watch tv. it is a good idea to detach yourself. >> also an argument for being to -- too -- two detached detached. it is frowned upon. it is a different tuition. that means you are an elected official. what is the argument for? >> it gives the public and insight into the judiciary.
8:21 pm
it may be at an all-time low, it certainly is among minority communities. civics education, people just don't know who is on the supreme court, how many judges. their idea of judging is judge judy and so when you were on twitter, when you are accessible, the public gives an insight that they otherwise would not have. they see the process, hear your voice. all of the arguments are on the web. you can tune in live. there's a t-shirt that says if my math doesn't say it, then my face will. face,ly work on the stoic but again, it is the public
8:22 pm
having an opportunity to see their courts at work and understand what kind of questions we asked. we've had issues coming up involving gay marriage or religious issues. the public gets to see what they are asking. that, do you feel about chuck? >> i'm in favor of cameras in the courtroom. very disappointed that the prop broadcast.was not that was the greatest the americanhat public could have had. regrettably, it wasn't broadcast. the ninth circuit
8:23 pm
broadcast argument. i think it is a good idea. there are concerns, privacy concerns or concerns about protecting witnesses, but you address it on a case-by-case basis. you don't have an ironclad rule. saying -- how is that effecting or lives? are you from the receiving end of hostility and pressure that you wouldn't have been? is part of the job and the public the right to this the agreement. in fact, we should listen to voices that are different. i wish as a society we engaged in more conversation with people but onet think like us, thing that came from this idea
8:24 pm
that the public doesn't have a lot of confidence in the judiciary was a summit on together in texas and it is a summit, the theme was the imprisoned bias and so i invited the professor to come down. -- it was a supreme court initiative. we had about 400 or 500 stakeholders, prosecutors, judges right after the seven police officers had been killed in dallas. of thosee wife of one police officers there had some of the folks that had experienced the police brutality, a man who spent 20 convicted, soly that is how the judiciary can respond to concerns about confidence in the justice system
8:25 pm
and so that was one thing i did in texas. we are out of an earlier era where the judge could hide and no one paid attention to who he was as a person and you can't do that anymore. specifically,e this is one of the things we explored on the podcast which is everyone is aware of human error . everyone is aware that they are cognitive bias. have you had to adapt to your own ability? have you had training in cognitive bias? >> jeremy fogel was a great emphasis on put an
8:26 pm
making judges aware of and we now have videos that we show jurors and give them examples of implicit bias so they are aware of it. [no audio] so that people are aware. , duirony of implicit virus believe in implicit bias? of course not. the problem is it is implicit and you have to make people problems and i think that is something that the court is now very aware of and
8:27 pm
want to be honest. >> what kind of training do you get for being a judge? what do people do? how do you learn how to do it? are you given the rope and you just sit in the chair and start doing it? >> most judges you go away for a week and you do that. i went back to try to the a better apologize -- better appellate judge. i think judges have to work at it and part of every state has been mandatory training, continuing education that you do . if you are a smart judge, you recognize what you don't know and you ask the right people, do and continued to
8:28 pm
improve yourself and the one we do that is ask a lot of questions. have errors back to you so you can see the mistakes and improve?and to bury's a tendency some of these mistakes. i think there are a lot of types of feedback and instruction. one of the great resources you have are the college of your court and if you lucky enough to be in a collegiate court where we will have lunch frequently for five times a week together where we discuss problems where you can walk down a hall and go into another judge chambers and
8:29 pm
say what do you think about this? it is that constant feedback from other people that give you an insight and change your behavior. extraordinarily viable, but only as valuable as ,aving a bench that is diverse that will make you aware of the of myent problems because life. it is a great contrast because i stop -- because i want an incentive. story of howarks's she was arrested in birmingham. arrested in san francisco and i guarantee nobody
8:30 pm
in san francisco that i was aware of injustice, so you have to have a diverse bench. you have to have people that have different experiences because that is how you learn and it changes your behavior. >> getting back to the original has anyone ever pointed out a mistake you made where you went, that is a mistake? >> yes. i sentenced somebody, this may .e interesting, it may not be i sentenced somebody to whatever it was, it was a lengthy sentence. as soon as it came out of my andh, i knew it was mistake i walked off the bench and i got to the door and i turned to my courtroom deputy and said, bring him back tomorrow. i want to change the sentence. the law is, you have to look at
8:31 pm
the law. the law is, you can't change it after you have left the court. >> you are not allowed to change your mind? >> it is called sentencing remorse. you can't do it. but i did it anyway. this is terrible. theed in my courtroom was united states attorney at that time, bob mueller. you may have heard of him. he is sitting there and i am changing the sentence, right? just change it. i meant to say 38 months, not 48 months, whatever it was. and i walked off the bench. a week later i saw him in the elevator and he said, that was very interesting. very interesting. some question whether you had jurisdiction to do that. i said, i can understand reasonable minds might differ on
8:32 pm
that. you know what? we are not going to appeal you, he said, as you came out with the right answer. i made that mistake and bob my mistake.ected >> have you ever had a moment where you realized something you had done, you wished you hadn't done? >> there may be those moments that make him more frequently on the appellate court. we don't aside these cases in a vacuum. briefs, the oral arguments, lawyers presenting cases, you have your colleagues that way in, you have law clerks out of law school with great ideas about what the law is. conversationsave and you have an opportunity, you can issue an opinion. can file a measure for re-hearing.
8:33 pm
we don't have remorse about these things. you can actually change, and the court has in the past, and i have in the past changed my minds on rehearing. infallible.ot there are times when you got it wrong and that is when you see those re-hearings granted. >> we will open this up to the audience for questions. if you've got something you would like to ask, there are microphones on both sides and we will take questions. you are sitting down with someone who wanted to be a judge and you had to evaluate whether they were suited for this. what would you look for in a person? what makes someone good at it? >> in my view, a commitment to public service. andmmitment to fairness impartiality.
8:34 pm
there are certain skill sets, ideally if you would be a trial judge you want someone who has been in the courtroom. i think about the story because early different in the 1990's, my first jury trial by myself, i was so nervous. it was in a small rural county in texas and the judge says to the opposing counsel, mr. so and us backgoing to take and we are going to read some scripture and pray before closing arguments. you can join us or you can stay right here. the judge and i went back and we prayed and i won the jury trial. that is how different it was in the beginning. you couldn't do that now and you wouldn't want to do that now. you could back then. importante things are in addition to having the lord on your side. and i don't know much about that, to be truthful. have theou have to
8:35 pm
ability, and a willingness, to make decisions. i'm talking about basically a trial judge. if you don't like making decisions, if you are one of these people that says come on the one hand there is this end on the other hand is this and i don't know, we are paid to make decisions. we are there to make decisions. that is number one. number two, don't have an agenda. just listen to the evidence. i can't tell you how many times my mind has changed after listening to the evidence. it is just great. why i love my job, and i do love it, it is because it is exciting, because it is filled ish unknowns, because it intellectually interesting, because it can make a difference in people's lives. it really can. all of that fits as long as you have the temperament to make decisions and don't become so
8:36 pm
invested in your opinion that you are not going to listen to what the evidence is. >> we have someone here. judge in alameda superior court, retired. the name of the program is the human side of judging. i will ask each of you, what is it to be a humane judge? it to be ahat is humane judge? >> how do you define it? >> it is to understand what ever , real has consequences human consequences, and to appreciate those consequences. it doesn't mean you are guided by those consequences, it means you understand it. every case i have had, a defendant's family by and large has been severely impacted by the sentence i impose. frequentlynocent,
8:37 pm
just another set of victims. it is important to understand that. you can ask why, i think because it rounds out your sentencing. the hardest thing i have to do, and every trial judge has to do, is sentencing. the reason sentencing is hard is because there is no right answer . there may be a right answer to whether alfalfa is a genetically modified, whether it are to be accepted or not, but there is no right answer to what the right sentence is. i have done sentencing now various ways over 50 years and i cannot tell you what the right sentence is. i can tell you about a lot of wrong sentences but i can't tell you the right sentence. the problem for judges is, that is the one thing they don't have certainty on, sentencing. what is humane? i don't know. task as judgess
8:38 pm
of trying to balance all of the considerations. and not to forget that it has implications to the public. >> i think judges are human beings. robe,t on the rope -- the that doesn't mean you stop being a human but being a humane judge means you can identify your biases come up with those aside, and look -- your biases, put those aside, look at the statutes, look at the language and really, as the judge said, consider the decision in a way that is faithful to your oath that, thenderstands consequences and that is a real family in front of you.
8:39 pm
>> do we have somebody else? here we go. have aalifornia, we commission on judicial performance. members of the public and attorneys can file reports on judges who may be impaired or may be committing on a regular basis judicial misconduct. a state ordered -- auditor's office just concluded an audit of the commission on judicial performance and concluded publicly that it was an institutional failure. complaints were not followed up on. there was no cross-referencing of a complaint from one person against a judge with another. essentially, it was an institutional failure and that became public through the
8:40 pm
newspapers, but i doubt many lawyers or the public even know about this. from my perspective as a trial lawyer over many years, i can give you one example of how this feeling is aegiate failure. i had a trial judge who came back from lunch totally drunk. i knew he was drunk. my clients knew he was drunk. i called a judge in the same court and i said, i have a problem. he is coming back from lunch drunk. that judge told me, look. we all know this. he is going to retire soon. don't do anything. just back off. so -- >> the ninth circuit had this problem, the federal judiciary recently. there was an incident in which
8:41 pm
the former chief judge basically resigned. it was a problem of harassment. as a result, the chief justice and -- and the ninth circuit judge employed a committee to -- address the problem. we set up a set of standards which are part of the code of conduct dealing with judges' harass, not not to a bully, not to do these sorts of things, to have training for it and make it a requirement that if a fellow judge, a colleague sees this type of conduct, that judge has a duty to report it. failing that, that judge has potentially violated the code of conduct. i think you identified a real problem. the federal judiciary i know is trying to deal with it. i assume states all over the united states are dressing --
8:42 pm
addressing it. >> judges aren't immune to some of the same problems that plague lawyers, alcoholism, health issues, secondary trauma, particularly judges in criminal systemor the foster care . they are not immune. we have a commission on judicial conduct and it is effective. it went through sunset and came out pretty well. observeink when you something, each state has a process and an avenue and sometimes you have to keep pushing. there are times when you raise something and nothing is done. you have to keep pushing because in the end, you know a justice system that is serving the public well requires that you are the one to keep pushing because that judge is coming to work drunk. toi would love for you both give me a sense of what the
8:43 pm
biggest misconceptions of your job is that you encounter. especially since you are on twitter every day. you probably are the world's authority. >> the conversations that take sometimes in our communities, on twitter, in the media, there aren't always black-and-white answers, particularly when you are looking at very complex legal issues, when you are considering the rights of both sides and that sort of thing. i think the public expects an answer. this is absolutely right or this is wrong. the conversations are much more new want than that. the process to arriving at a decision, judges don't come to work that day, i think i'm going to do this because it is what i feel i should do. i should -- i have been in the
8:44 pm
judiciary for a long time but that is something the public thinks we do emily come in and our mind is made up. maybe that happens, no profession is perfect, but by and large, the majority of judges want to get to the right answer. the public doesn't always see it that way. >> one of the great problems is what is not factored into public acceptance of a judge's decision is the fact that the judge took an oath to follow the law and the law dictates a particular result. unjust, itmay seem may seem out of touch with reality, it may seem to be the wrong result in a particular case, but if the law dictates it , a judge has a sworn duty to follow it. notink that is generally recognized by the public when a story is reported.
8:45 pm
the results as -- are always reported, the judge does this, the judge affirms that. but the reason frequently that the judge did those things is because at least in the judge's judge required it. the law required it, rather. is a misconception. >> this courtroom is adjourned. thank you. [applause] >> this court is now in session, and that was a tough fact to follow but we have a panel of extraordinarily distinguished former judges, and we are hoping all of you can reveal a side of judging that the sitting judges weren't able to reveal. the judicial code of conduct prescribes what a sitting judge can say, so i want to start with
8:46 pm
the toughest case each of you has decided and take us inside your decision-making process to reveal the human cost and the way you struggled with it. themy, you described california lethal injection case, morale us and tilton, as the most challenging case. you said it required, demanded the most intellectually, emotionally and spiritually of any matter that ever appeared on your docket. taken -- take us inside your thought process and describe what it was like to decide the case. -- i don't want to take up all the time, but i wrote that in a law review article years ago. i would adopt every word of it today. the protocololved that california was using at the time to carry out executions.
8:47 pm
the issue was quite narrow. the question was whether the totocol, the drugs used carry out executions were performing properly. the showing that was made by the plaintiff was that it wasn't, there had been 13 executions and there had been problems in a majority of them that were demonstrated why -- by undisputed evidence. i was faced with this decision where i had to decide whether to allow an execution to proceed, and the defendant in the capital case, the plaintiff in my case, as most capital cases are, the crime was absolutely horrific. evidence was very strong. there is no question of whether he was guilty. nor was there any question as to whether the death sentence was
8:48 pm
appropriate, given the death penalty. i won't go into the moral issue but the criteria in place at the time. there were problems with the protocol. there was compelling evidence that there were problems with the protocol. i needed to do something about that because the problems in the protocol would have resulted in anybody being executed under it being exposed to a level of suffering that the state stipulated was unconstitutional. it wasn't a question of my beliefs, it was undisputed fact. so i stopped the execution. proceedings for quite sometime after that trying to figure out what the remedy would be. a lot of other stuff happened and there haven't been any executions since then. the point is, my job in that verywas to decide a
8:49 pm
discrete issue, was there an unconstitutionally great risk of suffering that violated the eighth amendment? what happened in the actual event was, it was seen by the to do as a case that had with whether the death penalty is a good thing or not, whether mr. morales, the plaintiff, deserved to die, whether the victim deserved retribution for what had happened to her. that is what everybody got excited about. there was a firestorm that was all about that stuff and had nothing to do with the decision i made. . had to live with that i was saying in the green room that i'm so grateful it happened before anybody had heard of social media. i got some nasty mail, no question. i got letters saying i was an
8:50 pm
idiot and so forth. i got some email, there was email back then, i got some email saying essentially the same thing. there were a couple hundred letters and emails. today, if i had made that decision, with social media, there would have been millions. i assure you, millions of responses. there would have been death ,hreats, there would've been former colleagues of mine in federal courts have had that type of response to decisions they made in cases that were much less incendiary than the case i decided. even so, i was afraid to leave my house for several days. level ofe certainly a trauma that i experienced that, it took me a while to work through. actually writing the article that jeff quoted helped me work
8:51 pm
through that because it was really reminding myself that that was my job. people could disagree with the decision i made or not, but it was from the beginning, about what the law required. it wasn't about how i feel about the death penalty. it wasn't about how i felt about i had to come back and anger myself -- anchor myself to the reason why i did the job. your job is to decide the case based on the facts and the law, theto stick your finger in wind and figure out what the public wants, not to go off in directions that don't have anything to do with the case before you. saying, aish by couple years later, somebody, a group of people who don't like the death penalty wanted to honor me for making this
8:52 pm
decision. and i said, i wish you wouldn't do that. because i didn't make my decision because of any feeling i have about the death penalty. it was a decision i made because i am a judge who is trying his best to follow the law. that was and still is the hardest case. >> justice, you were the sole dissenter in the prop eight case where the court upheld the anti-gay marriage proposition. you made that decision at a time when you were being considered for the supreme court by president obama come which made the decision especially courageous. describe whether that played any role in your decision and how you dealt with what you must have known would be considerable pushback. >> it didn't impact how i felt about the case. the matter had been argued thate, some months before
8:53 pm
time, when i was on the shortlist. i felt very strongly about affirming our earlier decision in the marriage cases, finding the family code statute to be unconstitutional. what was difficult about my position was not so much the public exposure, but to find a way, to a principled find that the measure, proposition eight itself, was aunt constitutional -- unconstitutional. together with my various law clerks, i had written earlier about the distinction between an amendment and a revision of the constitution. to follow obligated the constitution, and if you are colin this case, the constitution had been amended by
8:54 pm
proposition eight so i was required to follow the constitution. in that sense, my hands were tied. the device, if you want to call it that, that i used was that there were so many rights, constitutional rights that were proposition, that the right to privacy and so many other, the right to marriage and thatrth, that the only way the constitution could properly be amended was by a constitutional convention. so i didn't get any votes. but i think i had to stick with that decision because i thought the constellation of rights that were implicated by proposition 8 was not the right way to really fundamentally change that fundamental right. i want to say something about the death penalty.
8:55 pm
i probably participated in about 200 death penalty decisions, most of them affirmance is. it is easy to develop an attitude towards the cases. generally, you see the worst of the worst. there are disparities from county to county in california, but putting those aside, the main concern i had about the death penalty, and i can say this now because i joined a in one of thement elections, i think it was 2012, and my position was that for the andnse that these appeals and theous -- habeases lack of deterrence and the disproportionality of who you kill and where you live and that stuff, and the lack of trained
8:56 pm
can really handle that specialty of death penalty appeals and hay bs -- habeas, other judges have said the system was to functional -- dysfunctional and broken. my opposition to the death penalty on the ballot state was basically addressed to that. ,n terms of another trial putting those aside, i had some concerns about certain trial defects. i don't need to go into that but that was the principal reason i was against the death penalty. when you mentioned the most difficult case, i think some of the federal judges, trial judges would appreciate this, the cases where thed with predicatetries, the 2
8:57 pm
felonies and sentencing someone who came to this country when they were two years old, didn't speak spanish, no relatives in whatever latin american country they were from, and they have a family that is in the audience, and the guidelines require at least at that time, we didn't really have an early disposition program in the central district, i think san diego did. but to sentence someone to eight years, i think sends someone to eight years in federal custody only to be deported to a country they really had absolutely no memory, no connection to whatsoever, i had to follow the law. depart,'t the part -- not enough to make a difference. to me, those work the most difficult sentencing decisions i had to do.
8:58 pm
>> you had an extraordinary range of cases from eighth amendment cases, secondhand smoke as cruel and unusual punishment, to equal protection cases involving domestic violence. was there a case in which you feared you weren't separating your political from constitutional views, where you might be coming to fear public criticism and where you struggled to make the right decision? >> this is where you are probably not aware of your own implicit daises because i would say no to the answer you're -- to your question, but the original question you ask, and the process the judge follows, i will tell a story. eighth amendment story. in our circuit the states all have the death penalty. i was a very new judge. it goes to what some of the panel before us said, there is baby judge school but there is a
8:59 pm
big difference. i had a very difficult death penalty case as the panel theor, and i followed, state involved was oklahoma, it was a matter of record. onollowed the line of cases whether the death penalty was appropriate, and the standard was whether it was heinous, atrocious, and cruel. i followed all the cases, and we did a really good compendium of the outcomes of all of those cases, and in the panel opinion, i affirmed and upheld the death penalty. my court voted to re-hear the case to the point that was made earlier, and i changed my position. i wrote the them bank opinion going the other way.
9:00 pm
here is why. it is a matter of process. , everyall of those cases single death penalty case from the state of oklahoma up to that moment, and we dissected the facts of those cases individually, case-by-case, to see whether the state courts, this was a habeas, to see whether the state course -- courts had uniformly applied the same standard to the same set of fact. had a law clerk and i who were working on this table of what the facts were. it was only a matter of following the cases. i decided we have to delve into the effects of these cases. the opinion came out the other way. to your original point, that is an example of how judges work
9:01 pm
behind the scene. . challenge anybody i said -- i assume the supreme court. they are the most thoughtful, blogul, nonemotional related discussions there are. what the public does not see about the decision-making process is it is made better by andquality of of the court -- that one was hard. the secondhand smoke, i have to say i got reversed at the supreme court. that was before we knew how bad smoking was.
9:02 pm
this was garden-variety. it was a garden-variety case. i wrote a really short opinion putting a smoker with a non-smoker in a cell is not a violation of the constitution. said let'solleagues look at this. there is some evidence out there. this is something you have to construe liberally and all of those things. fast-forward, we continue to hold that it is not a violent -- violation of the constitution. it turned out to be a violation of the constitution. i got the funniest cartoons and letters.
9:03 pm
one of them was the warden at the present that said would you prefer smoking or non-smoking? the process itself worked very well when you work in a collegial court. you put your colleagues to the test. what the evidence is, all those things. surprised that since we picked the judges, so far, the audience has models of reason rather than passion. current and former judges resisting pressures and making the right decisions. he described the role of judges closer to a clergyman than anything else, the need to set aside your ego to be governed by the truth. what i want to ask you is if you believe the pressures of social judges,e polarizing
9:04 pm
leading them to seek the approval of the crowd? example ofpecific cases where you think this is happening. >> i don't think it is quite as many as that. i don't know of any judges that wake up and read twitter and believe that is how they will decide cases that day. i do think that what has happened is that it is harder and harder to insulate yourself from what is going on in the community. you don't even have to be a twitter follower. you see the stuff that people are saying. you see the ways people are perceiving things and i think somewhere it embeds itself in your consciousness. you see things happen to people.
9:05 pm
the travel ban cases of which there were several, the first one was decided by a judge in seattle. just because it seems relevant to say this, he was appointed by george w. bush. he was a republican. he was not somebody, he was always on of those liberal activist judges. he decided this case. he decided it against the administration. short in a relatively time frame, over $19 -- over one million hits on twitter. they suggested he was a traitor. there were people threatening his life. some of the death threats were credible enough that the marshals had to provide security for him. i talked to him, he is a friend. he said it was incredibly dramatic for him to have gone
9:06 pm
through that experience. all he did, his hearing was videotaped. the ninth circuit can have cameras in the courtroom. there was video available of it. you can watch it and from my perspective, i know i am looking at it as a former judge. -- he used a model of decorum, he was very careful, thoughtful, everybody had a chance to make their arguments. people should see this. this is what judges actually do. that did not stop people from coloring him on social media. it had an effect on him. he is a federal judge with life tenure. then you go to the state courts. then you talking about people who don't have that protection, they have to stand for election in most states. they are in smaller communities.
9:07 pm
particularly, judges in small counties where you can't go to the grocery store without somebody knowing you as a judge. then you add social media to that. there is nowhere to hide and you have people who don't understand what you are doing. problem.eal --is an added stress or stress or state court judges. sser for an added stre state court judges. it seems to me that there is a lot of his information and misinformation. this is not one of my cases, it
9:08 pm
was a case that happened in san jose. that is where my life was. federalwant to the judicial center where we had a judge on the superior court there. he decided the stanford swimmer case. he ended up being recalled because he had made his decision that was perceived as being too lenient. i am not going to weigh in on this. i would have given a different sentence. that is irrelevant to the point i want to make. the case became about how you feel about sexual assault. about how you go about sexual assault. we need to make a statement about the treatment of people who commit sexual song being too
9:09 pm
lenient. we have told this judge accountable for giving a sentence that was recommended by the probation officer, in the legal range. there was nothing legally wrong with what he did. it raises a question of what we are doing. where is the line between judges making decisions based on the facts and in the public desire, a given case for the particular outcome. i think that is an incredibly stressful place for judges. particularly those who have to stand for election. i think it has been amplified in honestly bike social media. >> i have served on both the state bench and the federal bench. one of my predecessors on the said itia supreme court is hard to ignore the crocodile in the bathtub while you are shaving. that was before social media. i think that by and large, my
9:10 pm
colleagues would agree that judges bring a degree of integrity to the law. oh: -- carlos moreno: i don't have any qualms about that. what has happened in the last 10 or 15 years, there is the perception that judges are predisposed. this was the governing authority that appointed them. if the judgester were actual democrats or republicans. perception seems to control the and the general public looks
9:11 pm
at judge judy of course. they think the judges are partisan. rosehat they will come to in a certain way. i think that is inaccurate. should judges tweet? you said absolutely not. >> even now that i am an arbitrator and the disqualification forms that we
9:12 pm
have -- lawyers will research the whole history of your views and so forth. that is all discoverable. i would assume any kind of activity of a political or oficial nature on any kind social media, and the line of if i werei am now in, presenting my views on social media, a creative lawyer that was unhappy with one of my rulings that could claim that i was predisposed that reflected that bias -- madison, the idea of tweaking residents would be crazy. he said any direct representatives would encourage passion rather than reason. is there a danger that tweeting
9:13 pm
judges will play to the crowd and be susceptible to being swayed by the passions of a crowd? i am sure that being of a certain age and not being able to do anything, i will have to say, it is easy for me to say, i ore never been a state judge run for election. i believe whether you are a current judge or a former judge, you have a role to play. in modeling for the rest of society what civilized discourse and civilized disagreement looks like. side in aach , thislled environment whole notion of judges being -- because of who appointed them, being partisan politicians, it isms to me that it
9:14 pm
encouraged by every modicum of a judge taking sides before he or the case, been involved in it, decided it. we have a job to do. it is to say that there is a third branch of government here. the third branch of government takes in of to follow the law. we do our best to come to the result. that does not answer the tweeting question. guzman doesustice not tweet about the outcomes of cases i suspect. i'll have to get some kid to show me how to look at her twitter thing. i do have twitter on my phone. i never look at it for totally different reasons. i find it distracting. anything verged in social
9:15 pm
media on calling into question -- a judge'sw view, anything that verged on the substance, it would be the kind of thing that would challenge by understanding of the impartial judge. >> let me add to that. judges should be ciphers. i think you are hinting at this. we have an obligation to do public outreach to educate the community. in that sense, we are public figures. we have an obligation to educate the public on the legal system.
9:16 pm
>> i'm not sure we are doing entirely the right way. the civics education part of it is necessary. it is important that people understand how judges are different than legislators. when students come to court rooms and they see what judges are doing. the judges were interested in the leg monitors that people were being given when they were put on supervisor release. i think what we are not doing, this has something to do with why we wanted to do this program. we are not really telling her story. we are trying to do this tonight. this is a profession that we
9:17 pm
have. to michaelgrateful for the podcast. the publicnk understands what those values are. enough job ofgood talking about what we do, how we do it. that is a missing link. your chance. you talk about the need not only for spiritual integrity but mindfulness, tuning in during sentencing hearings. .eep listening
9:18 pm
this is polarizing our elected officials. emotionally,ly, what can judges do in the ideals of impartial deliberation that are necessary? >> i will send you my check for asking that question. we care about ethics, independence and resiliency. it is what you are asking about. it is how you keep judges psychologically healthy so that when you're doing with these awesome responsibilities that they have, how do you keep them attentive enough and managing their stress and emotions and being present for people so that they can do the job right, the
9:19 pm
people that come through the courtroom have a positive experience. this is what we aspire to. we want people to have this justice and the respected. we want to be able to take care of ourselves and not burn out. i think this issue of resiliency and what judges need to be resilient is an enormously -- we are just starting to get a handle on it. mindfulness is part of it. self-care is part of it. it is doing the job and living up to the professional standard. >> this is from somebody who left the bench. easy for me to say. ofelieve that in the name being impartial and not having
9:20 pm
conflicts of interest and not violating the codes of ethics, --some extent, the judiciary it has withdrawn a bit from the community. one of the most important things that a judge must do is remain in constant contact with the community outside of the courtroom. a 4h club, the shelter, i don't care what it is. i have seen numbers of judges who say i don't think i better be on that board. the code of ethics allows us to be on the entropic boards. for sure, we can work in soup kitchens and whatever else it is. i have heard too many colleagues across the country say i worry
9:21 pm
that i'm going to run into somebody or the newspaper will be there. wrong answer. that keeps usngs rooted and one of the things that made me a better judge was burning the candle at both ends, working in schools, doing all kinds of philanthropic work in my community. as i refined to back on how i approached being a judge, i as ave i approached it fellow member of the community. when they saw me in the grocery store, they did not think federal judge. they thought he was on the board of the art center. identified to be with our communities along with our courts. >> the last word before the question. >> i will note that you have talked to bury movingly about the support that the latina
9:22 pm
-- unity how deep is right with the community in a way that is partisan but still sensitive to their needs? ago, a drumme schoolteacher wrote in a book that i still have, i was going off to college, i think you said you are a part of who you met. i come from a latino community. working-class background. that sort of phrase always sticks in my mind. that is part of who i am. that leads me to the question i wanted to answer. the additional points, marty jenkins, he asked government knew some -- governor knew some
9:23 pm
what were the qualities that he wanted. he lit up courage, commitment to public service. they were all important but that he said what is the most important factor of the judges that you want to appoint? he said humility. i think that is very telling. we are all human, we all have to be humble and you have to recognize where you came from, where you are and your obligation to do justice. >> we have noted that the spirit that it is not right and that humility is a .uality that is very elusive
9:24 pm
when red and blue camps are so certain of promises. the constitution is made for people who have fundamentally different points of view. is a spiritual task of setting aside your ego, being open to others and letting the light flow through you. i am a try lawyer. i have been for 36 years. both in california and justice guzman's jurisdiction. i have been sitting here that thegly feeling model of judging that the panel is describing, it is pretty consistent. i think it is a vital thing in our rule of law. has been my experience over the last several decades that it does not fully fit the judiciary. i would assume judges decided --
9:25 pm
in areas including texas and the very circuit, decades of close sized selection processes. there are judges that i would not characterize that way. i worry greatly when i see all normal checks and balances. described theyou model of the best of judges but what you see what is happening now? it will cheer problems with the appointed. >> i think that is a fair question. it is troubling question. i think the culture is strong. it is not so strong that it will get everybody. you can always try to find people.
9:26 pm
it goes back to what my friend judge breyer said, it is very important not to have an -- an agenda. we have to have life experience. this is best of the founding of the republic. the late experience, you see it around the edges of their decision-making. just how this effects, but they think it is important. you will get differences. it is all within a framework of a process we are all committed to. the fact that we have even significant differences, that fact is not a bad thing. i do think the premise of your question concerns me. when you start appointing people that because they are judges but because they are committed to a particular agenda, that concerns
9:27 pm
me. whether that is happening and whether that is happening to a degree that the judicial culture won't turn it around or if it is the political process over time, we will correct whatever tendencies are there, i don't know. i can't look into the future. i think it is something we need to be very careful about. this is not about the current administration or a future administration. when any president starts to appoint judges because the president things the judges will vote certain ways all the time, we really are in trouble. i think it is a reasonable concern to raise. degreeintain a certain of optimism. one of the things i liked so much was i got to go everywhere. just as you mentioned, i spent a lot of time in the circuit. there is a lot of strength
9:28 pm
there. it is a much more conservative it is -- conservative area than california. it will be reflected in a lot of decisions. i'm not ready to throw the whole thing out on that he -- theory that it is hyper partisan. i think it is a precaution. i am not ready to raise the red flag yet. >> i don't think it is only the executive. the legislative branch and the senate. this is understanding the difference between the legislative process and the judicial branch -- judicial branch and its process. for every citizen voting, when you're thinking about your candidates and talking to them, one of the issues is whether you are talking to them directly,
9:29 pm
not about the outcome of a judicial appointment but what judges should do and must do for the future regardless of whose administration is in. we only have checks and balances if all three branches work the way they're supposed to. >> we have one last brief question. judge inn immigration san francisco. i will be your new groupie if you have other conversations. ae flipside is that i have awardingscribable he job. i get to fulfill dreams for them and generations below them. during the government shutdown i was not able to work.
9:30 pm
i found myself paralyzed by depression. i realize how intertwined my sense of identity was. transitioning off being a judge, was that difficult? >> was at the transition from being a judge to the private -- that the transition from being a judge to the sector -- private sector? , ibefore becoming a judge would for a law firm. i like that environment. the opportunity came up where i was approached by the obama administration for a mastership
9:31 pm
position. that is good work if you can get it. once the new administration came, they checked my options. i am a media arbitrator and neutral evaluator if you will. i just moved on. i had a lot of different positions. someone said my persona is still that of a judge. i think i bring that to the matters i preside over to this day. to answer your question, the transition has not been difficult. >> a very quick westward. >> -- last word. >> the downside is you are not a federal judge anymore.
9:32 pm
it is nice to be a federal judge. you can say what you want to say. do what iat you can have done today. you can say we have a job to do out there. it is not just the judges that will do it. it will be the lawyers and everybody threat the public. >> jeremy, i am so grateful for this collaboration. let's keep this conversation going and continue to eliminate the human side of judging. please think -- join me in thanking our panelists. [applause] [applause] live on the c-span networks, the brookings institution hosts a discussion on the murder of jamal khasi.

15 Views

info Stream Only

Uploaded by TV Archive on