Transcripts For CSPAN UC Berkeley Law School - The Human Side Of Judging 20240713

Novels. Hosted at uc berkeley law school, this is about 90 minutes. I have been here for a little less than a year and a proud 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 of projects and the discussion of Judicial Independence 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 for introduce our comoderator. Youre on stage, we have judge Charles Breyer and been a judge on that bench since 1998. To the left is Justice Guzman. Very well regarded and a successful member of that court. In the second panel, we will hear from two will be joining the panel as well, but to get right to the business, this is my friend, jeffrey rosen. Thank you so much. Welcome, ladies and gentlemen to the National Constitution center on the road. The National Constitution center 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 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, im 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 moderated by the great michael lewis. We go way back and he is americas 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 bestselling umpire contest. I and you as well cannot wait to hear him with the human side of judging. Please welcome michael lewis. Thank you. Can you hear us . I am here because i met jeremy through this podcast and one of 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. I would like to start. I would like you to introduce yourselves and what you do. 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 County and first latina elected to statewide office in texas and it is a job i enjoy. You received more votes than anyone has in the history of texas. Texas elects judges that are riddled with all con and a few pros. I became the highest gogetter in the history and the state of texas for any office at any time. Good for you, chuck. I thank my lucky stars. My first case was one that involved a rosenthal who had 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. It turned out that rosenthal had been authorized by the city of oakland to be the official grower of marijuana. The feds decided that he ought 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 as a trial judge and believe me, i thank my lucky stars that i was not up for election. It turns out he was convicted and sentenced him to one day in jail, credit for time served. And the fascinating discussion about what does the independence of the judiciary do for the judge who does not have to be concerned about being popular . The fact that you got the most 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. About judges who render 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. That will give you stress. I want to do what i did with jeremy. It is not 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. 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 and journey, but indians, i think there are people sitting in the audience that know they are wanting to be a judge and that is their goal. It really wasnt 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 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 the courtroom, he said he could do that better. That is what they say my court all the time. Before we get forward to what youre 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. Im from a very workingclass background, but yesterday i was at the airport and it was late and i walked in the ladies room and i see the custodian. She is on her knees cleaning and im thinking about coming to be interviewed by the michael lewis. I thought about my mother and 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. I would see them as a lawyer in ways that other people wouldnt. So it was social justice that interest you. Trucks, how did you get into this chart, how did you get into this chuck, how do you get into did you get into this . [no audio] then, i wanted to go out and 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 was really unhappy. Did not like it, did not like what they did will stop did not find it interesting and said im quitting they did. Did not find it interesting and said im quitting. [no audio] why did you work as a clerk to a personal injury lawyer . Lawyer . I went to 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 . It takes a lot. It cannot be downplayed. I think it takes a look among other things. Luck among other things. I think i had somebody different experiences, i was watergate prosecutor, a defense lawyer for 25 years. I did all sorts of things and those experiences that i had, i actually think i was able great 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 experience. It is great to be able to relate to people, especially as a Trial Court Judge and the only way youre going to relate to people is different experiences. What year did you get into it . 1999 has the environment in which you are judging changed notice to flee noted this noted noticeably . That would be more destructive of the rule of law than that, so im alarmed by. My click here, they will not do that. My colleagues will try my colleagues, they will not do that stop. Are there different pressures on you there and . Are you worried about Different Things . I think 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. They wanted to criticize it, it is there. Now, i wake up and go to twitter and there it is. As a judge, that great stress, so im being criticized in kentucky or wherever. So, you tweet . 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. I cant really do anything, but i will tell you that the justices are really discouraged from engaging in social media. It is a way for four weeks just 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 do such two detached too 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. It may be at an alltime low, it certainly is among minority communities. Civics education, people just dont 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. Theres a tshirt that says if my math doesnt say it, then my face will. I really work on the stoic face, but again, it is the public having an opportunity to see their courts at work and understand what kind of questions we asked. Weve had issues coming up involving gay marriage or religious issues. The public gets to see what they are asking. How do you feel about that, chuck . Im in favor of cameras in the courtroom. Very disappointed that the prop eight came was not broadcast. That was the greatest performance that the American Public could have had. Regrettably, it wasnt broadcast. I think the ninth circuit 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 casebycase basis. You dont have an ironclad rule. You are saying how is that effecting or lives . Are you from the receiving end of hostility and pressure that you wouldnt have been . Wax i think it 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 who dont think like us, but one thing that came from this idea that the public doesnt 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. I had about 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. We had the wife of one of those Police Officers there had some of the folks that had experienced the police brutality, a man who spent 20 years wrongfully convicted, so that is how the judiciary can respond to concerns about confidence in the Justice System 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 cant do that anymore. You cannot hide specifically, 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. Byhave you had to adapt to your own ability . Have you had training in cognitive bias . Jeremy fogel was a great leader which put an emphasis on making judges aware of complacent bias and we now have videos that we show jurors and give them examples of implicit bias so they are aware of it. So that people are aware. The irony of implicit virus, du believe in implicit bias . Of course not. The problem is it is implicit and you have to make people aware of these problems and i think that is something that the court is now very aware of and want to be honest. What kind of training do you get for being a judge . 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 dont know and you ask the right people, do the research and continued to improve yourself and the one we do that is ask a lot of questions. You have errors back to you so you can see the mistakes and improve . S and improve . Theres a tendency to bury 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 say what do you think about this . It is that constant feedback from other people that give you an insight and change your behavior. I think that is extraordinarily viable, but only as valuable as having a bench that is diverse, that will make you aware of the different problems because of my life. It is a great contrast because i want answers stop because i want an incentive. I read rosa parkss story of how she was arrested in birmingham. She was arrested when i was in high school in San Francisco and i guarantee nobody in San Francisco that i was aware of 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 be 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 mouth, i knew it was 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. The law is, you have to look at the law. The law is, you cant change it after you have left the court. You are not allowed to change your mind . 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, 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. He said, some question whether you had jurisdiction to do that. I said, i can understand reasonable minds might differ on 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 mueller corrected my mistake. Have you ever had a moment where you realized something you had done, you wished you hadnt done . There may be those moments that make him more frequently on the Appellate Court. We dont aside these cases in a vacuum. You have the 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. You talk and have conversations and you have an opportunity, you can issue an opinion. You can file a measure for rehearing. We dont 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. Judges are not infallible. There are times when you got it wrong and that is when you see those rehearings granted. We will open this up to the audience for questions. If youve 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. A commitment to fairness and impartiality. 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 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 so, im going to take us 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. 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. 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 come on the one hand there is this end on the other hand is this and i dont 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. 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. We have someone here. I am a 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 . Was what is it to be a humane judge . How do you define it . It is to understand what ever 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. 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 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 to the public. I think judges are human beings. You put on the rope the robe, that doesnt 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 but also understands that, the consequences and that is a real family in front of you. Do we have somebody else . Here we go. In california, we have a 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 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 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. So the ninth circuit had this problem, the federal judiciary recently. There was an incident in which 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 problem 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 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 addressing it. 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. 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. 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 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 dont come to work that day, i think im going to do this because it is what i feel i should do. I should i have been in the 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 doesnt always see it that way. 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. 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 results 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 judges mind, the judge required it. The law required it, rather. I think that is a misconception. This courtroom is adjourned. Thank you. [applause] this court is now in session, and that was a tough act 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 werent able to reveal. The judicial code of conduct prescribes what a sitting judge can say, so i want to start with the toughest case each of you has decided and take us inside your decisionmaking process to reveal the human cost and the way you struggled with it. Jeremy, you described the 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 will i dont 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. 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 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. 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 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 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 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. 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. I got letters saying i was an 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 Threats, there wouldve 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. There were certainly 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 anchor myself to the reason why i did the job. 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. Justice, you were the sole dissenter in the prop eight 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 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 didnt impact how i felt about the case. The matter had been argued before, some months before that 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, and a principled way, to find that the measure, proposition eight itself, was 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 recall in this case, the constitution had been amended by 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 implicated in that proposition, the right to privacy and so many other, 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 are wanted to Say Something about the Death Penalty. Attitude asan jeremy pointed out. Generally, bestie the worst of the worst. You see the worst of the worst. Deterrence, theroportionality and then lack of trained attorneys who even ron george and said the system was dysfunctional. There might be trial detracts as well. I had some concerns about trial detracts. That was the principal reason i was against the Death Penalty. Think some of the trial judges would appreciate this. The cases i actually struggled entries ande legal who came toomeone the country whenever like two years old. Are, family and , you do not have an early disposition program. I think they sons someone to , he would be deported to a country with no connection whatsoever. To me personally, those were the sentencingult decisions. A case on whether cases involving domestic violence. Where you might be succumbing to beer of criticism and we struggle to make the right decision. , but the original and i think isked. Ill tell a story on myself i was a very new judge and there is a big difference. I had a very difficult Death Penalty case and i followed the state of oklahoma as a matter of record. I followed the line of cases on whether the Death Penalty was and so i followed so in the dietn the affirmed and upheld Death Penalty. I change my position and were of the opinion going the other way. Of process. Er cases from theo state of oklahoma and we to see whether the state court had to the the same standard facts and so it was not only a matter of following the cases, i decided we have to delve into the facts of these outs in the opinion came the other way, so to your original point, that is an example of how judges work behind the scenes. A lot of discussion among the judges. I challenge anyone to be in a harder meeting man in a rehearing and i assume the Supreme Court, they are the most thoughtful, careful not what the public what the public doesnt see about the decisionmaking process is, it is made better by the quality of a court of the quality of what is insisted upon before you come to a final decision. That was hard. The second one, i will just say i got reversed at the Supreme Court. This was really before we knew how bad smoking was, but it is another example of how the court works together. It was a gardenvariety, per se case. I wrote a very short opinion saying, putting a smoker with a nonsmoker in a cell is not a violation of the constitution. Well, one of my colleagues said, i think we better look at this. You know, there is some evidence out there, and this was a per se so you have to construe liberally and all those things, and so fast forward, we continued to hold it was not a violation of the constitution. Guess what . It turned out to be a violation of the constitution. I got all kinds of, long before social media, i got the funniest cartoons and letters. One of them was the warden at the prison with a napkin over his wrist saying, would you prefer smoking or nonsmoking . So the process works very well if you work in a Collegial Court and put your colleagues to the test, what the evidence is, what the law is. Those are two examples. Jeremy, so far the judge has examples of models of reason rather than passion, judges resisting pressure and making the right decisions. You have taught judges. Describe the role of a judge as 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 candidly is, do you believe the pressures of social media are polarizing judges, leading them to seek the approval of a crowd, sometimes making a popular decision instead of the right one . And at and give us an example we think that is happening. I dont think it is as linear as that. I dont know any judges who wake up, read twitter and decide how they are going to decide the cases that they. It doesnt work like that. What i do think 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 dont tweet, but i follow. And you see the stuff people are saying, and you see the ways people are perceiving things. And i think somewhere it embeds itself in your consciousness. And then you see things happen to people. The travel ban cases, of which there were several, but the first one was decided by judge robard in seattle. And it seems relevant to say this. Judge robard was appointed by george w. Bush, he is a republican, he wasnt a liberal, activist judge. And he is not. But he decided this case and he decided against the administration. And he got in a relatively short period of time, over one million hits on twitter and other social media, basically 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, and im talking, hes a friend, and he said it was incredibly dramatic to have gone through that experience. And all he did, actually his hearing was videotaped, in the ninth circuit you can have cameras in the courtroom, so his hearing, there is a video available of it and you can watch it, and at least from my perspective, and i know i am looking at it as a former judge, he was a model of decorum. He listened to everybody. He was very careful. He was very thoughtful. Everybody had a chance to make their arguments. Im watching this, this is great, people should see this because this is what judges actually do. And that didnt stop people from pillorying him on social media. And it had an effect on him. And he is a federal judge with life tenure. So then you go to the state courts, we havent talked about the state courts, we have a federalheavy groupie or, federalheavy group here, so they have to stand for b election, they are in small communities, frankly, judges in small counties where you cant go to the Grocery Store without running into somebody who knows you as a judge, and then you add social media to that, and there literally is nowhere to hide, and you have people who dont understand what you are doing. So it is a real problem, and i think that it is an added stressor for, particularly state court judges, but it is a stressor for federal judges too, to know that there is this chatter going on, and so much of it is not informed. That is not to take away the publics right to opinions. We need to explain what we are doing in a better way to do it. But it seems to me there is a lot of misinformation and disinformation. I will mention another controversial case. It was a case that happened in san jose, which is where my wife was where my life was until i went to the federal judicial center. We had a judge on the court there who decided the stanford swimmer case that got international attention, and who ended up being recalled because he had made this decision that was perceived as being too lenient. Im not going to weigh in on this, i will say, because i am being candid and i can beat now, i would have given a different sentence. I would have given a more severe sentence than he did. But that is irrelevant to the point to want to make, which is that the case became about, how do you feel about Sexual Assault . That is what the case became about. Just like my case was, how do you feel about the Death Penalty . It came about, how do you feel about Sexual Assault . We need to make a statement that people who treat Sexual Assault is too lenient then this is the way were going to make the statement, we are going to hold this judge accountable for failing to give a sentence that was recommended, was within legal range, it was nothing wrong with a legal standpoint from a legal standpoint with what he did, and it raises a question of what we are doing. Wheres the line between judges making decisions based on the law and the facts, and the publics desire in a given case for a particular outcome . That is an incredibly stressful place for judges these days, particularly the judges who have to stand for election. And i think it has been amplified enormously by social media. That is my answer. I served on both the state bench and federal bench. One of my predecessors on the california Supreme Court famously said, it is hard to ignore the crocodile in the bathtub while you are shaving. [laughter] and that was before social media. By and large, i think my colleagues would agree. Judges bring a degree of integrity and fidelity of the law, they decide on the basis of principles, legal principles and so forth, so i dont have any qualms about that. But i think what has happened in the last 10, 15 years, is that there is a perception now that judges are predisposed. Were not matter if they democrat or republican. Control theeems to day in the general public, they look at and think the judges are cases arend predisposed at a certain way. And i think that is completely inaccurate. Should judges tweet . You said absolutely not. Even now that i am an arbitrator and the disqualification forms that we 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 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 residents would be crazy. 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 society what civilized discourse and civilized disagreement looks like. Allowing each side in a controlled environment, 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. Ill 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. 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 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. Im 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. It is great 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 have. I was very grateful to michael for the podcast. 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 for spiritual integrity but mindfulness, tuning in during sentencing hearings. Deep listening. This is 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. Important. Really when we founded the institute on the order the things we care about . One of them is ethics, the other is independence and resiliency. It is what you are 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. 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. Selfcare 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. 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. One of the most important things that a judge must do is remain in Constant Contact with the community outside of the courtroom. It might be a 4h club, the homeless shelter, i dont care what it is. I have 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 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. We have got to be identified 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 Community how deep is right with the community in a way that is partisan but still sensitive to their needs . A long time ago, a drama 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. The additional points, marty jenkins, he asked government knew some governor knew some 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 of liberty is that it is not right and that humility 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 am a try 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 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. 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 decisionmaking. 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 me. Whether that is happening and whether that is happening to a degree that the judicial culture wont turn it around or if it is the political process over time, we will correct whatever tendencies are there, i dont know. I cant 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. I do maintain a certain degree 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 there. It is a much more conservative it is conservative area than california. It will be reflected 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. This is understanding the difference between the legislative process and the Judicial Branch Judicial Branch and its process. For every citizen voting, when youre thinking about your candidates 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 three branches work the way theyre supposed to. We have one last brief question. 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 sense of identity was. Transitioning off being a judge, was that difficult . Was the transition from being a judge to the private sector . Before becoming a judge, i would for a law firm. I like that environment. The opportunity came up where i was approached by the Obama Administration for a mastership 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. It is nice to be a federal judge. You can say what you want to say. I admit that you can do what i 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. Lets keep this conversation going and continue to eliminate the human side of judging. Journalns washington live every day it with policy issues that impact you. And newsrack correspondent will be on to talk about impeachment. The sure to watch live at 7 00. Astern thursday morning coming up, a look at first ladies decorating the white house. Then, christmas at the white house