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 StatesSupreme 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 probl