Transcripts For CSPAN UC Berkeley Law School - The Human Side Of Judging 20240714

We worked together on a number of projects and the discussion of Judicial Independence in the role of judiciary in our 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 and jeff will introduce our comoderator. Here on stage, we have judge breyer from the Northern District of california and has been a judge on that bench since 1998. To his left is Justice Eva Guzman from the Supreme Court of texas, and she has been on that edge for nine years. Correct . Yes. She is very well regarded and a successful member of that court. In the second panel, we will hear from two individuals sitting down in the front. Retired Justice Carlos m oreno, and the former chief judge of the second quarter. I will be joining that panel, as well. But to get right to the business, this is my friend, jeffrey rosen, the ceo of the National Constitution center, and he will speak or about the program. Jeff thank you, judge fogel. Welcome, ladies and gentlemen, to the National Constitution center on the road. I say that because the National Constitution center is the only institution in america rated by created by the u. S. Congress to educate americans about the constitution on a nonpartisan basis. Part of our mission is to hold programs like the one we are honored to hold with judge fogel and the berkeley Judicial Center today, bringing together judges of different perspectives to educate people about the constitution. 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 every clause of the constitution, describing areas of agreement and disagreement. This remarkable tool is a model for the kind of dialogue we are having on the road. We were here at wrigley last year for the we the people podcast and around the country. This mission of bringing together citizens, judges, scholars and students from different perspectives for constitutional education and debate is a meaningful one and by participating, im thrilled you are part of it. This is a Remarkable Group of judges and a special honor for all of us that the first panel will be moderated by the great michael lewis. [applause] [laughter] michael is an old friend. We go way back in journalism days, and is americas leading narrative storyteller. There is no one who is better able to reveal the human stories behind the most complicated and meaningful financial, political, and judicial dramas of our time. He is recently the host of the podcast,ing empire where he has been interviewing judge fogel and other judges on what it means to be a judge. , as well,ow you cannot wait to hear him with the human side of judging. Please welcome michael lewis. [applause] michael thank you. Can you hear us . This is good . All right. I am here because i met jeremy through this podcast and one of the episodes was about judges and examining the various forces coming and that might undermine their authority and make their lives difficult. Otherwise, i know very little about the law except to run from it. [laughter] start by just i would like you to introduce yourselves and what you do. Where you are. Go ahead. The federal judge is me go first, so you heard, i am eva guzman. I have the great privilege and pleasure of serving the Supreme Court of texas. It is the highest civil court in texas. I have been on the court since 2009. I served on an intermediate Appellate Court before that for about a decade, and initially entered the judiciary as a Trial Court Judge appointed by then governor bush. My journey has been marked as the first latina on the trial court in Harris County and first latina in the intermediate Appellate Court and first latina elected to statewide office in texas, and it is a job i enjoy. Michael and he received more votes than anyone has in the history of texas. Judge guzman since you brought it up, texas elects judges riddled with all sorts of cons and a few pros, but the last election, 2016, i did come the highest votegetter in the history of the state of texas for any office. [applause] michael who voted for you . Fortunately, we did not have an election. I thank my lucky stars. When the first case that i had, rosenthal,volving ed who had what is called the oaks and cannabis club, and it was a case that ultimately went to the United States Supreme Court, where they prosecuted people who had manufactured and distributed marijuana. Hadurned out that rosenthal been authorized by the city of oakton to be the official grower of marijuana, ok . Fine, but the feds decided tr to be prosecuted because of the supremacy clause. He was prosecuted in my court. It was the first case that i had as a trial judge. I thank mye me, lucky stars that i was not up for election. It turned out that he was convicted ultimately and i sentenced him when i thought was appropriately one day in jail, credit for time served and that was that case, but it is highlighted to me, and it would be a fascinating discussion about what does the independence of the judiciary due to the individual judge who doesnt n t have to be concerned about being popular . The fact that you got the most votes is the best thing i have heard about the election process. But i would be concerned i would be concerned, and there are a lot of examples we can give, even in california. About judgesornia who render an unpopular decision and then are voted out, not because that judge did not do his or her job, but because that judge rendered an unpopular decision. Since we are talking about stress, that will give you stress. I will tell you that. Michael what i want to do with both of you, which is what i did with jeremy when i first sat down with him, it is not obvious how a person becomes a judge. 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. So could you just start by explaining how, and eva, you start, how do you become a judge . How this happens. Is there anything in your past that sort of led up to it where you said, this all made sense . It made a lot of sense i ended up here. Judge guzman everybody has a different path and journey, but and people they do, are sitting in the audience right now that know they want to be a judge, and that is their goal. There really wasnt that really wasnt my goal. I did not see myself in the judiciary, but it was a little serendipity, a lot of hard work, and in the end, it is public service. I served on the Grievance Committee as a young lawyer, community work, and i engaged with the community. A judge passed away, and i had four or five people come to me and say, do you want to apply for this job . It is political in texas. Itical and they already had 30 applicants, so i thought, well, why not go ahead and do it . The odds are really against you, what i did. Michael did they reject you . Itge guzman yes, but you do because it is an opportunity and you have to take those risks. Think any lawyer sitting in the courtroom, you are watching the judge, and you are thinking, i could do that job so much better. [laughter] judge breyer that is what they say in my court all the time. Michael 12 to back up a little more before we jump forward i want you to back up a little before we jump to the bench. Jump and told me to run as far as possible from the lawyer. He was a lawyer and had wished he was something else. How did you get interested in the law . Judge guzman that is a great question. I am from a very workingclass background, but yesterday i was in the airport, it was late, and i walk in the ladies room and i see the custodian. Is cleaning, and im thinking about coming up here to be interviewed by the michael lewis. Michael there are lots of them. Judge guzman i thought about my mother. I am one generation away from that life, and she was a custodian at the university of houston, where all her kids went to college. So that just kind of came back to me, so 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. Andas to really go back engage with people that grew up like i did, who are invisible. Them, as a see lawyer, in ways that other people wouldnt. Michael so it was social justice that interested you . Judge guzman yes, it was making a difference. Michael chuck . Judge breyer that is a top story to follow. [laughter] michael no. Judge breyer because one it to be an actor. Michael [laughter] judge breyer and i failed at that. Well, it was during vietnam. Succeeded in i that, and then i wanted to go out and see whether i could actually make it as an actor. That you would be drafted, so my father, who was conservative in that regard, said, you better go to law school. So i ended up here. At the end of the first year, i was really unhappy at law school. I did not like it. I did not like what they did. I did not find it particularly interesting, and i said, im quitting. Thats it. Im quitting and i will figure out what im going to do. He said, before you do that, why dont you work as a law clerk to a personal injury lawyer by the name of marvin lewis in San Francisco . And just follow him around. That is what i did. I went to depositions. I went to trials. I thought, my goodness, this is fabulous. You write the play, you act in the play, you direct the play, you produce the play, you know . And there is generally some kind of audience. That is actually what i got as a judge, my audience. [laughter] you indeed, i have to tell what i would say to people, and i think really answer your question, what does it take to be a judge . Luck, among other things, and it should never be downplayed. A federal judge always says, what does it take to be the judge . You have to know a United States senator. Actually, it takes luck, among other things. So how does it luck play with me . I will tell you that i think that because i had so many different experiences as a prosecutor, a watergate prosecutor, i was a defense lawyer for 25 years, i did all sorts of Different Things, and those experiences that i had i actually think i was able to bring to being a judge. Look, you students, will have a lot of opportunities, take the path not traveled or take the difficult path because it will make you a different person. If what you want to be as a judge, it is great to have different experiences and your experiences. It is great to be able to relate to people, especially as a Trial Court Judge. The only way youre going to relate to people is if you had great experiences. That is what i think qualifies a person to be a judge. Michael which ear did each of you become judges . Judge guzman when we first came judges . 1999. Judge breyer that is great, 1998. Michael so have the pressures on you changed as the environment in which you are judging has changed, has it changed noticeably to you in the past 20 years . Judge breyer absolutely. Michael how so . Judge breyer my greatest concern is that the judiciary becomes pulverized. Polarized. It is very, very dangerous. The courts start to take positions that appear to be partisan positions. That would be more destructive of the judiciary and rule of law than anything i can see, so im alarmed by it. Some of my colleagues here, i know my colleagues. My colleagues will not do that. Calllleagues will try to the cases as they see them, called the balls and strikes. Michael when you walk in to get a job and you sit in the chair, are there different pressures on you now than there were 20 years ago . Do feel watched in different ways, scrutinized, it is sized . Are you criticized . Are you worried about Different Things . Judge breyer i think the dialogue and conversation judge guzman i think the dialogues and conversations have changed. I became an appellate judge in 2001. I wrote an opinion, it may be the houston newspaper picked it up, and they rarely praise, occasionally, but they want to do size it. Now, i wake up they want to criticize it. Now, i wake up and go to twitter the first thing in the morning and there it is. So that brings stress, so im being criticized in kentucky or wherever. Michael so you tweet . Judge guzman yes, justiceguz man, just in case. Michael do you . Judge breyer no, no social media, and i have no social media skills. Michael how do you know if you have not done it . Judge breyer i would not even know how to do it. Son toto hone my connect the telephone or something. It is terrible what i am. Skills. Rted this anti so i cannot really do anything. I will tell you that i do tell that judges are really discouraged from engaging in social media. Weeksjust a way for four just traveling, having a great time and so forth, and we decided as a group not to read the paper, not to watch television. I felt better. Because there is nothing you can do about what you see. It is a good idea to detach yourself from all of this. Michael but there is also the arguments for not being too detached. It isid judges are frowned upon, but you do it. It is a different situation because you are an elected official. You have to be political. It is political malpractice if you dont engage i with your audience. What is the argument for . Judge guzman i think it gives the public and insight into the judiciary. When you think about the Public Confidence in the judiciary, it may be at an alltime low. It certainly is among minority communities. Civics, as you know, civic education, people just dont know. They dont know who is on the Supreme Court, how many judges are in a court, what judges do. Their idea of judging is judge judy, that sort of thing. When you are on twitter and accessible, the public gets an insight that they would not otherwise have. They see the process, they see you, they hear your voice. At the Supreme Court, all of our oral arguments are on the web. You can tune in live and watch it later. It is scary when you are the judge and there is the tshirt that i think says, if my mouth doesnt say it, my face will, and that is sort of me on the video on the court. So i really work on that stoic face. Again, it is the public having an opportunity to see their and toout work understand a little bit more about what kind of questions do we ask . We have had issues come up involving religious issues or gay marriage. The public gets a chance to see what kind of questions the judges are asking. Michael how do you feel about that . Judge breyer i am in favor, actually, of cameras in the courtroom. In particular types of cases, very controversial, but i was very disappointed that the prop 8 case was not broadcast. That would have been the greatest learning experience that the American Public could and had about gay marriage myths that surrounded it and process to develop what is the evidence of this and that idea. Regrettably, it was not broadcasting. Court, like our supreme they do broadcast the argument. The ninth circuit broadcasts arguments. I think it is a good idea. , privacy concerns concerns, or concerns about protecting witnesses and so, but to address it on a casebycase basis. You just dont have an ironclad rule. Michael you are saying public approval of the judiciary is at an alltime low. How is that affecting your lives . End of on the receiving hostility, criticism, pressures that maybe would not have been . Judge guzman i think it is part of the job, and the public has a right to voice disagreement and we should listen to voices that are different from our own voices. I wish that as a society we engaged in more conversations with people who do not think like us, with people with different ideas. But one thing that came from this idea that the public does not have less confidence in the judiciary was a summit that i put together in texas. It is a summit that the thing was the implicit bias in the Justice System, so i invited a professor from cornell to come down. The court let it, the Supreme Court, and we had four or five stakeholders, prosecutors, defense attorneys, judges, right after the seven Police Officers had been killed in dallas. We had the wife of one of those Police Officers there. We also had some of the folks that had experienced police brutality. A man who spent 20 years in prison, wrongfully convicted. The system had failed him. So that is how the judiciary can respond to concerns about confidence in the Justice System. So that was one thing i did that im very proud of in texas. Michael it is interesting. You know, we are out of an earlier era where the judge can sit a hind the robes and hide and nobody paid too much attention to who he was as a person. You cannot do that anymore. You cannot hide anymore. You cannot hide, specifically, generally, and this is what we explored in the podcast, was everybody is aware of human error. Everybody is aware that human beings, that theres cognitive bias. Have you had to adapt to the growing awareness of your own fallibility . Have you had training, for example, in cognitive bias . Ge breyer well, what has greatjeremy vogel was a leader of a federal Judicial Center, which put an emphasis on making judges aware of implicit bias. We now have fashioned videos that we show jurors and we give them examples of implicit bias so that they are aware of it or you did we have fashioned instructions that i given my colleagues give aware of it. We have fashioned instructions that i give my colleagues before and after jury selection, about the evidence and the conclusion of the case so people are aware. The irony of implicit bias, do you believe in implicit bias . Of course not, of course i dont. I am not biased, just ask me. [laughter] the problem is it is implicit. You have to make people aware of these problems, and i think that is something that now the courts are very aware of. And i think it is to be honest. Michael will kind of training does one get to be a judge . When you get the job , how do you learn how to do it . What is required of you . Are you given the robe and just climbing to the chair and start doing it . Toge guzman most judges go baby judge school. You go away for a week and you do that. I went back to try to be a better appellate judge and i went to duke law school. They have a judicial lml. I spent 2. 5 years in that program, what i think judges have to work at it. Every state has mandatory training, and continuing education that you do. If you are a smart judge, you recognize what you dont know and you ask the right people, you do the research, and you continually work to improve yourself and one way to do that is to ask a lot of questions. Michael do you have feet back feedback the way referees have now, where you get your errors play back to you so you can see mistakes you made . So you can improve . Judge guzman the Appellate Court. [laughter] get to see your mistakes . Judge breyer well, there is a tendency to bury some of these mistakes. Michael [laughter] judge breyer i think there are a lot of types of feedback and a lot of types of instruction. Of course, you have baby judge school and so forth, but one of the great resources you have are the colleagues of your court. If you are lucky enough to be in a collegial court, and we are, where we will have lunch frequently four times or five times a week together, where we discussed problems, where you can walk down a hall and go into another judges chambers and say, what do you think about this . What do you think about that . It is that constant feedback from other people that give you an insight and change your behavior. It actually changes your behavior. So i think that is extraordinarily valuable, but it is only as valuable as having a bench that is diverse, that will make you aware of different blems because it is a fact in my life, i was not aware of all of it. It is a great contrast because i was not sensitive to all of these. I just had my 60th high school reunion, i just before i went to it, i read rosa parks story of how she was arrested in birmingham. She was arrested when i was a freshman in high school in San Francisco, and i guarantee nobody in San Francisco, that i was aware of, was aware of that injustice. So you have got to have a diverse bench. You have to have people that have different experiences because that is how you learn. That changes your behavior. Michael this is getting back to the original question, but has ever pointed out a mistake you made where you went, oh, my god, that is a mistake . Judge breyer yes. Ever pointed out a mistake you made where you wentl tell you a bit why. It may be interesting. Maybe not. I sentenced somebody to whatever it was, it was a lengthy sentence. As soon as it came out of my mouth, i knew it was a mistake, and 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. It was just terrible. The law is, every now and then you have to look at the law, the law is you cannot change it after you have left the court. Michael is that right . You cannot change your mind . Judge breyer you cant. It is called sentencing remorse. You cant do it. But i did it anyway. This is terrible. Seated in my courtroom was the United States attorney at that time. A fellow named bob mueller. You may have heard of him. He is sitting there, and i changing the sentence, right . Am just change it. Well, i meant to say 38 months, not 48 runs, whatever it was, and i walked off the bench. About a week later, i saw him in the elevator, and he said, that was very interesting. Very interesting. He said, some question whether you had jurisdiction to do that. I said, i can understand reasonable minds might differ on that. [laughter] he said, well, you know what . We are not going to appeal you, because we think you came out with the right answer. So that is called sentencing remorse. I made that mistake, and bob mueller corrected my mistake. Michael have you ever had a moment where you realized something you had done, you wished you hadnt done . Judge guzman you know, as the trial judge, there may be those moments that may come more frequently on the Appellate Court. It is a little different. We do not decide these cases in a vacuum. You have the briefs, the oral arguments, lawyers presenting cases, you have your colleagues eighin, and then you have law clerks out of law school with great ideas about what the law is. So we decided in the backend you talk and have conversations and you have an opportunity, you can issue an opinion. I have had very few that can file a measure for rehearing. We dont have remorse about these things. [laughter] you can actually change, and the court has in the past, and i have in the past changed my mind on rehearing. It does not happen often, but you realize you made a mistake. Judges are not infallible. There are times when you got it wrong, and that is when you see those rehearings granted. Michael we are going to open this up to the audience for questions for a little bit read we only have about 10 minutes left, but if you have something you would like to ask, there are microphones on both sides and we will start to take those 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 . Judge guzman in my view, a commitment to public service. A commitment to fairness and impartiality. There are certain skill sets, ideally if you would be a trial judge, you would want someone who has been in the courtroom. Thinking about this story because it was different in the early 1990s, 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 take ms. Guzman back 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. [laughter] that is how different it was in the beginning. You couldnt do that now and you wouldnt want to do that now. You could back then. Judge breyer i would say a couple things are important, in addition to having the lord on your side. And i dont know much about that, to be truthful. I think you have to have the ability, and a willingness, to make decisions. Im talking about basically a trial judge. If you dont like making decisions, if you are one of these people that says, well, on the one hand there is this end , and on the other hand, there is this and i dont know. Know, we are paid to make decisions. We are there to make decisions. That is number one. Number two, dont have an agenda. Just listen to the evidence. I cant tell you how many times my mind has changed after listening to the evidence. It is just great. And why i love my job, and i do love it, it is because it is exciting, because it is filled with unknowns, because it is intellectually interesting, because it can make a difference in peoples lives. It really can. All of that fits as long as you have the temperament to make decisions and dont become so invested in your opinion that you are not going to listen to what the evidence is. Michael we have someone here. Is this working . Greenberg,ron 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 humane judge . Judge guzman what is it to be a humane judge . How do you define being a humane judge . Judge breyer well, it is to understand whatever you do has consequences, real human consequences, and to appreciate those consequences. It doesnt mean you are guided by those consequences, it means you understand it. Every case i have had, a defendants family by and large has been severely impacted by the sentence i impose. They are innocent, frequently just another set of victims, so 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 to be accepted or not, but eight. 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 cant tell you the right sentence. The problem for judges is, that is the one thing they dont have certainty on, sentencing. What is humane . I dont know. We all have this task as judges of trying to balance all of the considerations. And not to forget that it has implications for the public. I think judges, we are human beings. You put on a black robe, that does not mean you stop being a human being, but being a humane judge means you can identify those aside,put and look at the case before you, look at the guiding testaments, the statutes, the language, and really, really, as the judge said, consider the decision in a way that is faithful to your oath but also understands that, the consequences and that is a real family and case in front of you. Do we have somebody else . Here we go. In california, we have a commission on Judicial Performance. Where 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 Auditors 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 crossreferencing of a complaint from one person against a judge with another. Essentially, it was an institutional failure and that became public through the 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 judicial collegiate feeling is a 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. Dont do anything. Just back off. Judge breyer the ninth circuit had this problem. And the federal judiciary recently, there was an incident in which the former chief judge basically resigned. Judge kaczynski. 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 requirements not to harass, not tabbouleh, not to do these sorts of things, to have training for it, and to 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 addressing it. Judge guzman judges arent immune to some of the same problems that plague lawyers, alcoholism, health issues, secondary trauma, particularly judges in criminal courts or the foster care system. They are not immune. We have a commission on judicial conduct and it is effective. It went through sunset and came out pretty well. But i think when you observe 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. Michael we only have a couple of minutes, but i would love for you both to give me a sense of what the biggest misconceptions of your job is that you encounter. Especially since you are on twitter every day. You probably are the worlds authority. Judge guzman [laughter] so, you know, the conversations that take place sometimes in our communities, on twitter, in the media, there arent always blackandwhite answers, particularly when you are looking at 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 nuanced than that. And the process to arriving at a decision, judges dont come to work that day, i think im going to do this because it is what i feel i should do. Ive been in the judiciary for a long time, but that is something the public thinks we do, that come in and our mind is made up. One way or the other. Maybe that happens, no profession is perfect, but by and large, the majority of judges come in and they really want to get to the right answer. The public doesnt always see it that way. Judge breyer one of the great problems is what is not factored into Public Acceptance of a judges decision is the fact that the judge took an oath to follow the law and the law dictates a particular result. And the result may seem unjust, it 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. I think that is generally not recognized by the public when a story is reported. The result is always to report it. The judge does this, the judge overturns this, the judge affirms that. But the reason frequently that the judge did all those Different Things is because, at least in the judges mind, the judge required it. The law required it, rather. I think that is a misconception. Michael this courtroom is adjourned. Thank you. Judge breyer great. Judge guzman [laughter] michael thank you. [applause] this court is now in session, and that was a tough fact to follow, but we hope all of you can review a of what is a judge is code of conduct. One to start with the toughest case each of you has decided and take us inside your Decision Making process and the way you struggled with it. Jeremy, judge vogel, you have described the california lethal injection case as the most challenging case you have ever decided, morale is an morales said iton, and you required, demanded the most intellectually, emotionally and spiritually of any matter that ever appeared on your docket. Take us inside your thought process and describe what it was like to decide the case. Judge vogel i do not to take up not to take i do up all the time, but i wrote that in a law review article years ago. I would adopt every word of it today. This case involved the protocol that california was using at the time to carry out executions. The issue was quite narrow. The question was whether the protocol, the drugs used to carry out executions were performing properly. The showing that was made by the plaintiff was that it wasnt, there had been 13 executions and there had been problems in a majority of them that were demonstrated 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. The 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 appropriate, given the Death Penalty. I wont go into the moral issue now, but just the criteria in place at the time. But 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 wasnt a question of my beliefs, it was undisputed fact. So i stopped the execution. Then, there was proceedings for quite sometime after that trying to figure out what the remedy would be. A lot of other stuff happened and there havent been any executions since then. The point is, my job in that case was to decide a very 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 public as a case that had to do with whether the Death Penalty is a good thing or not, whether mr. Morales, the plaintiff, deserved to die, whether the victim, terry winchell, deserved retribution for what had happened to her. That is what everybody got excited about. There was a firestorm that was all about bad stuff and had nothing to do with the decision i made. I had to live with that. I was saying in the green room that im so grateful it happened before anybody had heard of social media. I got some nasty mail, no question about that. I got letters saying i was an idiot and so forth. I got some email, there was email then, i got some email saying essentially the same thing. But, you know, 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 Threats, there wouldve been, there were former colleagues of mine in federal courts have had that type of response to decisions they made in cases which were met much less incendiary than the case i decided. Even so, i was afraid to leave my house for several days. There certainly was a level of trauma that i experienced that, it took me a while to work through. Actually writing the article that jeff quoted helped me work 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 wasnt about how i feel about the Death Penalty. It wasnt about how i felt about mr. Morales. I had to come back and anger anchor myself to the reason why i did the job. And Justice Guzman and judge breyer said it perfectly, your job is to decide the case based on the facts and the law, not to stick your finger in the wind and figure out what the public wants, not to go off in directions that dont have anything to do with the case before you. I will finish by saying, a couple years later, somebody, a group of people who dont like the Death Penalty wanted to honor me for making this decision. And i said, i wish you wouldnt do that. Because i didnt 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. Jeff justice moreno, you were the sole dissenter in the prop 8 case where the court upheld the antigay marriage proposition. You made that decision at a time when you were being considered for the Supreme Court by president obama, 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. Justice moreno it didnt impact how i felt about the case. The matter had been argued before some months before. That period of time and 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, and a principled way, to find that the measure, proposition 8 itself, was aunt unconstitutional. Together with my various law clerks, i had written earlier about the distinction between an amendment and a revision of the constitution. Judges are obligated to follow the constitution, and if you are recalling this case, the constitution had been amended by prop 8, 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 implicated in that proposition, whether it is the right to privacy in so many others, the right to marriage and so forth, that the only way that the constitution could properly be amended was by a constitutional convention. So i didnt 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. I probably participated in about 200 Death Penalty decisions, most of them were affirmances , so you do develop an attitude towards the cases. As jeremy pointed out, 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 rebuttal statement in one of the elections, i think it was 2012, and my position was that for the expense that these appeals and the role the and federal and state courts go through, and the lack of deterrence and the disproportionality of who you kill and where you live and that stuff, and the lack of trained attorneys who can really handle that specialty of Death Penalty even otherabeas judges have said the system was dysfunctional and broken so my opposition to the Death Penalty on the ballot state was basically addressed to that. In terms of another trial, and there may be trial defects, as well, but putting those aside, i had some concerns about certain trial defects. I dont 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 theuld appreciate this, cases i struggled with where the. Llegal entries there was predicate felonies and two sentencing someone who came to this country when they were twoyearsold, didnt speak spanish, no relatives in whatever latin American Country they were from, and here they are, they have a family that is in the audience, and the least ats require, at that time, we didnt really have an Early Disposition Program in the central district, i think san diego did, but to sentence someone to 18 years, i think you sentence someone 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. I couldnt depart in some rational way, not a lot to make a difference. To me, personally, those were the most difficult sentencing decisions i had to do. You had an extraordinary range of cases, secondhand smokers, to equal protection cases. What was the toughest, and was there a case in which you feared you are not separating your political from constitutional views, where you might be coming succumbing 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 biases because i would say no to the answer youre, to your question, but the original question you ask, and the eye into the process the judge follows, i will tell a story. Definitely a 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 learning to be a judge and there is a big difference. I had a very difficult Death Penalty case as the panel author, and i followed, the state involved was oklahoma, it was a matter of record. I followed the line of cases on 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 rehear the case to the point that was made earlier, and i changed my position. I wrote the bank opinion going the other way. Here is why. It is a matter of process. I took all of those cases, every single Death Penalty case from the state of oklahoma up to that moment, and we dissected the facts of those cases individually, casebycase, to see whether the state courts, this was a habeas, to see whether the state courts had uniformly applied the same standard to the same set of facts. For months, i 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 facts of these cases. The opinion came out the other way. To your original point, that is an example of how judges work behind the scene. It was because of the bank hearing process. A lot of discussion among the judges. I challenge anybody to be in a harder meeting of any group anywhere. I assume the Supreme Court. They are the most thoughtful, careful, nonemotional blog law related discussions there are. What the public does not see about the decisionmaking process is it is made better by the quality of the court and, 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. It is another example of how the court works together. Was a gardenvariety case. I wrote a really short opinion putting a smoker with a nonsmoker in a cell is not a violation of the constitution. At the time. One of my colleagues said lets look at this. There is some evidence out there. This is something you have to construe liberally and all of those things. Fastforward, 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. One of them was the warden at the prison saying would you prefer smoking or nonsmoking . 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. Great. I am 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. You had a birdseye view. Describe 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 media are polarizing judges, leading them to seek the approval of the crowd . May be making a popular decision instead of the wrong one. Give us a specific example of cases where you think this is happening. I do not think it is as linear as that. I dont 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 dont even have to be a twitter follower. I am. I do not tweet but i follow. 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. I need to mention a couple. 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 is not. But he decided this case. He decided it against the administration. He got in a relatively short period of time, over one million hits on twitter. Suggesting 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 traumatic for him to have gone 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. To use, 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. We have not talked about the state courts. We have a federal heavy group. Then you talking about people who dont have that protection, they have to stand for election in most states. They are in smaller communities. Particularly, judges in small counties where you cant 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 dont understand what you are doing. It is a real problem. It is an added stress or, stress for state court judges. There is an added stresser for state court judges. It seems to me that there is a lot of his information and misinformation. Thisact is there is information and misinformation. This is not one of my cases, it was a case that happened in san jose. Which is where my wife was. Until i want to the federal Judicial Center where we had a judge on the superior court there. We 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. And being candid. I can be now. I would have get in a more severe sentence than the that than he did. That is relevant to the point i want to make. About how do you feel about Sexual Assault . Just like my case was how do you feel about the Death Penalty . We need to make a statement that the treatment of people is to enhance. We are going to hold the studs accountable for giving a sentence that was recommended by the probation officer, which was in the legal range. Theres nothing from a legal standpoint 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. A reactive on facebook. 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 judicial nature on any kind of social media, and the line of work that i am now in, if i were 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. For james madison, the idea of tweeting president s would be anathema. He said any direct representatives would encourage passion rather than reason. Is there a danger that tweeting 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 have never been a state judge or 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 in modeling for the rest of society what civilized discourse and civilized disagreement looks like. And allowing each side in a controlled environment, this to have its say is important and also this whole notion of judges being, because of who appointed them, being partisan politicians, it seems to me that it is encouraged by every modicum of a judge taking sides before he or she has heard 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. My friend, Justice Guzman does not tweet about the outcomes of cases i suspect. Although ill have to get some kid to show me how to look at her twitter thing. It is not that hard. I do have twitter on my phone. I never look at it for totally different reasons. I find it distracting. If anything verged in social media on calling into question by judges view, a judges 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. I dont think judges should be recluse or ciphers. Dispute. Ld we have an obligation to do Public Outreach to educate the community. Students, law students. The different clubs that exist. We are public figures and we have an obligation to educate the public on the legal system. I agree with that. Im not sure we are doing entirely the right way. I think the Civics Education part of it is necessary. It is important that people understand how judges are different than legislators. It is great when students come to court rooms and they see what judges are doing. I had a junior high Schools School class come years ago. The judges were interested in they were getting a sense of how things work. What we are not doing and 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 have. I was very grateful to michael for the podcast. I dont think it depends press and has values. A profession has values. Tend tos of judges emulate the value of the profession. I dont think the public understands what those values are. We dont do a good enough job of talking about what we do, how we do it. That is a missing link. This is your chance. You talk about the need not only you talked about your needs not only for spiritual integrity but mindfulness, tuning in during sentencing hearings. Not getting bored and distracted. Deep listening. Now, judges are confronted with new pressures that were polarizing our elected officials. Psychologically, emotionally, what can judges do in the ideals of impartial deliberation that are necessary . I will send you my check for asking that question. This is important. What are the three things we care about . One is ethics. One is independent send one is resiliency. It is what youre asking about. It is how you keep judges psychologically healthy so that when youre 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 people that come through the courtroom have a positive experience. They were respected and listened to. We want people to have this justice and the respected. We want to be able to take care room 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. Selfcare is part of it. Learning about active listening is part of it. It is doing the job and living up to the professional standard. Can i ask that . Some left the bench. Easy for me to say. I believe that in the name of being impartial and not having conflicts of interest and not violating the codes of ethics, to some extent, the judiciary, it has withdrawn a bit from the community. For me the most important thing that a judge must do is remain in Constant Contact with the community outside the courtroom. It might be a 4h club. It might be a sunday school group. It might be a local hospital. I do not care what it is. Seen numbers of judges who say i dont 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 that im going to run into somebody or the newspaper will be there. Wrong answer. One of the things that keeps us 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 believe i approached it as a solid 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. We have got to be identified with our communities along with our courts. The last word before the questions. I will note that you have talked to bury movingly about the support that the latina community, how deep is right with the community in a way that best interact with the community that involves being partisan but not partisan but still sensitive to their needs . A long time ago, a drum schoolteacher wrote in a book that i still have, i was going off to college, i think you said remember that you are a part of who you met. I come from a latino community. Workingclass 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. I heard additional appointments. Newsom whator other qualities he wanted in judges . He laid out courage, commitment to public service, intellectual capacity and other factors. 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. That is a wonderful quality to show up. And humility right is a quality that is very elusive. When red and blue camps are so certain of promises. The constitution is made for people who have fundamentally different points of view. Ultimately, it is a Spiritual Task of setting aside your ego, being open to others and letting the light flow through you. I have a question. I am a trial lawyer. I have been for 36 years. Both in california and Justice Guzmans jurisdiction. I have been sitting here increasingly feeling that the model of judging that the panel is describing, it is pretty consistent. I think it is a vital thing in our rule of law. It has been my experience over the last several decades that it does not fully fit the judiciary. I would assume judges decided, in areas including texas and the fifth circuit, decades of very close sized selection processes. There are judges that i would not characterize that way. I worry greatly when i see all the normal checks and balances. My concern is you described the model of the best of judges but what you see what is happening now . It will cheer problems with the gas i do not think there is a culture so strong that it did not matter who gets pointed. Deco 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. For people who have an agenda and 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. , the liferage process experience of judges make the difference. You see it around the edges of their decisionmaking. Use their equitable powers. It is all within a framework of a legal culture. The fact that you have even significant differences between fifth circuit and ninth circuit thing. A bad the grimmest of your question concerns not because they are going to be good judges but they are going to be committed to a particular agenda and an unswerving way. That is happening to a degree that the strength of the , just theulture political process overtime will correct whatever tendencies are there. I cannot look into the future. It is something we need to be careful about. I do not think it is something about the current ministration. Starts tosident appoint judges solely because the president thinks the judges are going to vote certain ways alltime, then we are in trouble. It is a reasonable concern to. Ays i did maintenance at three and one reason i liked the f easy job so much as i got to go everywhere. I spent a lot of time in that circuit and there is a more conservative area in california and it is going to be reflective in a lot of decisions. Im 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 dont think it is only the executive. The legislative branch and the senate. Deco also modeling constitutional values, and the standing. The difference between the legislative process in the judicial ranch in this process. I think for every citizen out there voting, when you are thinking about your candidate and talking to them one of the , issues is whether you are talking to them directly, 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 3 branches work the way theyre supposed to. Fore have one time question. One 01 27 46 deco i am an immigration judge in San Francisco. I will be your new groupie if you have other conversations. The flipside is that i have a very undescribable he awarding job. I get to fulfill dreams for them and generations below them. During the Government Shutdown i was not able to work. I found myself paralyzed by depression. I realize how intertwined my during the government i myself not able to work. I realized how intertwined my sense of identity was, how invested i am in my job as a judge, so my question was change ,s turning transitioning which has put so much into rivieres was it difficult or is it . The transition from being a judge to a private sectoral judge . 202 7488002 yes. You were scurried ev for me. I was ready to move on. They have additional chapters in my life. I worked for a law firm. I liked that environment. The opportunity came up and i was approached by the Obama Administration as an ambassadorship position. And once the new administration came in, i checked my options and now i am a mediator and neutral evaluator. I just move on. Positions. A lot of my persona still is always of a judge. I am glad what im doing is judicial in nature and i bring that to the matter that provide over. And your question, the transition to me have not been difficult. I was going to not be cheap a request. I will tell you the downside is they do not judge anymore and it is nice. Stickod side is you can your mind and there we want to say. Give better the schoolmarm and we have a job to do out there. It is going to be the lawyers. Jeremy, i am grateful for this collaboration between the best center and the National Constitution center. Lets take this show on the road and continued to illuminate this human side of judging. Join me in thanking a panelists. [applause] announcer a look now at Live Programming coming up. Join us when the United Nations representative discusses the finding of jamal khashoggi. Theooklyn institution is host. Watch it live today at 12 00 eastern. Later, Ruth Bader Ginsburg will and her life, alert work on gender equality. Whats live Coverage Today at 5 30 eastern. 20 2020ht, president ial candidate beto. rourke ames iowa watch it on cspan. Thursday, President Trump was of July Celebration of the Lincoln Memorial in washington. Ask 15 eastern cspan. There has been discussion about an appearance before congress. It into the money from this office would not be it would not go beyond our report. It contains our findings and analysis and reasons for the decision we made. We chose the work carefully and the clerk speaks for itself. The third part of my body. I would not provide information that beyond which is already public. Announcer special Counsel Robert Mueller is set to appear before the scope members of congress and the House Intelligence Committee wednesday, july 17. He will testify in open session about russian interference in the 2016 election. Listen with the free cspan radio app. Remarks now, a Freedom Coalition luncheon in washington. Ted cruz stressed adjust the gathering. Taking place at noon eastern today. [applause] good afternoon. What i beautiful crowds. I love you. You are awesome. Today i have the pleasure of introducing one of my senators from theta