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

This program is something that jeff rosen and i have been thinking about and dreaming about for some time. We worked together on a number discussion and the in ourcial Independence Society was missing a piece, a lot of focus on constitutional vision powers and the role of judges and all that. What has been missing is who are judges . What is the human side of judging . What we are trying to do this evening is begin that conversation and shed some light on it. I will introduce the panelists 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. Ary well regarded and successful member of that court. , we willcond panel hear from two individuals. Itting down in the front i will be joining the panel as well, but to get right to the business, this is my friend, jeffrey rosen. Thank you so much. Welcome, ladies and gentlemen to the National Constitution center on the road. Centerional constitution is the only institution in america rated by the u. S. Congress to educate americans about the constitution on a nine a nonpartisan basis. Today, bringing together judges of different perspectives to educate people. I must put in a plug for the interactive constitution which brings together the top liberal and conservative scholars to write about every quality of the constitution describing areas of agreement and disagreement. We were here last week for the we the people podcast and around 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 michaeld by the great lewis. And he isback 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. You as well cannot wait to with the human side of judging. Please welcome michael lewis. Thank you. Can you hear us . Here because i met jeremy one of this podcast and the episodes was about judges and examining the judges that might undermine the authority that might make their lives difficult. Otherwise, i know very little about the law except to run from it. Would like to start i would like you to introduce yourselves and what you do. The federal judges making me to first. I had the great privilege and pleasure serving on the Supreme Court of texas. It is the highest civil court in texas. I have been on the court since 2009. I started on an Appellate Court and initially entered the judiciary as a judge appointed by then governor bush. My journey has been marked as the first latina in harris and first latina elected to statewide office in texas and it is a job i enjoy. More votes than anyone has in the history of texas. Texas elects judges that are riddled with all con and a few pros. Gogetterhe highest in the history and the state of texas for any office at any time. Chuck. For you,. I thank my lucky stars my first case was one that who had a rosenthal what was called the Oakland Cannabis club and it ultimately went to the United States Supreme Court today prosecuted people who had manufactured and distributed marijuana. Hadurned out that rosenthal been authorized by the city of oakland to be the official grower of marijuana. He oughtdecided that to be prosecuted for this thing called the supremacy clause and he was prosecuted in my court. It was the first case that i had ,s a trial judge and believe me i thank my lucky stars that i was not up for election. It turns out he was convicted to one day inhim. Ail, credit for time served that was that. Me and theted for aboutating discussion what does the independence of the judiciary do for the judge who does not have to be concerned about being popular . The fact that you got the most votes is the best thing i have heard about the election process. [laughter] but i would be concerned i would , be concerned, and there are a lot of examples we can give, even in california. Even in california, about judges 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 what i did with jeremy when i first sat down with him, because 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. And 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 in the end, they do, and people are sitting in the audience right now that our law students that no that know they want to be a judge, and that is their goal. 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. As a young lawyer i served on a grievance committee, i did a lot of community and their i did a lot of Community Work and there were a lot of ways in which i engaged with the community. A judge passed away, and i had four or five people come to me and say, you ought to apply for this job . It is political in texas. I was apolitical and they already had 30 applicants, so i thought, well, why not go ahead and do it . The odds are really against you, but i did. Michael did they reject you . Judge guzman yes, but you do it because it is an opportunity and you have to take those risks. So i did, and i 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 i want you to back up a little before we jump to the bench. My father was a lawyer and told me to run as fast as possible away from that profession 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. And she is on her knees cleaning, and im thinking about coming up here to be interviewed by the michael lewis. Michael there are lots of them. [laughter] 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. It was to really go back and engage with people that grew up like i did, who are invisible. And i would see them, as a 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 . How did you get into this . Judge breyer that is a tough 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. And you had to i succeeded in college in that, and then i wanted to go out and see whether i could actually make it as an actor. And the problem was that you would drafted so my father, who was conservative in that regard, said, you better go to law school. So i ended up here. And 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. I am just quitting and i will figure out what im going to do. And 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. Well that is what i did. I went to depositions and i went to trials and 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 . [laughter] and there is generally some kind of audience. That is actually what i got as a judge. I got my audience. [laughter] but, indeed, i have to tell you what i would say to people, and i think really answer your question, what does it take to be a judge . It takes luck, among other things, and it should never be downplayed. Federal judges always says, what does it take to be the judge . You have to know a United States senator. That is what it takes to be a judge. But i think actually, it takes , luck, among other things. So how does it luck play with so how does 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. I tell law students, look, you will have a lot of opportunities, take the path not traveled or take the difficult path, because it will make you a different person. And if what you want to be as a judge, it is great to have different experiences. It is great to have your experiences. 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 to have had great experiences. That is what i think qualifies a person to be a judge. Michael which ear did each of michael which year 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 . Has the environment in which you are judging 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 polarized. It is very, very dangerous that 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. I have some of my colleagues here. I know my colleagues. My colleagues will not do that. My colleagues will try to call the cases, call them as they see them, called the balls and strikes. Michael when you walk into the job and you sit in the chair, are there different pressures on you now than there were 20 years ago . Do you feel watched in different ways, do you feel scrutinize, criticized . Are you worried about Different Things . Judge guzman i think the dialogues and conversations have changed. I became an appellate judge in 2001. I wrote an opinion, maybe the houston newspaper picked it up, and that was it. They rarely praise, occasionally, but if they do want to criticize it, it is there. 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, justiceguzman, just in case. [laughter] 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. I have to phone my son to connect the telephone or something. It is terrible, what i am, i am sort of antiskilled. So i cannot really do anything. I will tell you that i do tell that judges are really discouraged from engaging in social media. Awayestingly, i just was for four weeks, just traveling, bicycling, having a great time and so forth. And we decided as a group not to read the paper, not to watch tv. And you know, i felt better because there is nothing you can , do about what you see. It is a good idea to detach and yourself from all of this. Michael but there is also the arguments for not being too detached. Let me just stop you. So you said judges are it is frowned upon, but you do it. But it is a different situation because you are an elected official. You have to, it is political malpractice for you not to engage with your audience. What is the argument for . Judge guzman i think it gives the public an insight into the judiciary. When you think about the public s 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, when you are accessible, the public gets an insight that they would not otherwise have. They see the process, they see you, they hear your voice. And at the Supreme Court, all of our oral arguments are on the web. You can tune in live, you can 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 at work, and to 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 have had about gay marriage and myths that surrounded it, and process to develop what is the evidence of this and that idea. Notregrettably, it was broadcast. I think, like our Supreme Court, they do broadcast the argument. The ninth circuit broadcasts arguments. I think it is a good idea. There are concerns, privacy concerns, or concerns about protecting what, but you 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 . Are you on the receiving end of 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 in fact, 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 a lot of confidence in the judiciary was a summit that i put together in texas. And it is a summit that, the theme was the implicit bias in the Justice System. So i invited a professor from cornell to come down. The court let it, it was a Supreme Court initiative, and we had four or five stakeholders, prosecutors, defense attorneys, judges. That was 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. 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. And you cant do that anymore, you cant 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 . Jet prior well, jeremy vogel was a great leader of a federal judicial center, which put an emphasis on making judges aware of implicit bias. And we now have fashioned videos jurors, prospective 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 give and my colleagues give, both before jury instructions, after a jury has been selected but before the evidence, and finally at the end of the case. So that 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] and the problem is it is , implicit. And you have to make people aware of these problems, and i think that 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, what do people do to make you how do you , learn how to do it . What is required of you . Are you given the robe and just climb into to the chair and start doing it . Judgesuzman the baby 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, but 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 ever have 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] michael so you 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 s school and so forth, but one of the great resources you have are the judges 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 discuss 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 problems because 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, and 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 to you, 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 got 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 anybody ever pointed out a mistake you made where you went, oh, my god, that is a mistake . Judge breyer yes. I sentenced somebody, and i will tell you why, it may be interesting. Maybe not. Michael it is already interesting. R 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. [laughter] 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. [laughter] seated in my courtroom was the United States attorney at that time. A fellow named bob mueller. You may have heard of him. So he is sitting there, and i am changing the sentence, right . You dont just change it. Well, i meant to say 38 months, months, 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. He said very interesting. ,he said, there was some question whether you had jurisdiction to do that. I said, i can understand reasonable minds might differ on that issue. [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. [laughter] i made that mistake, and bob mueller has been correcting my mistake for years 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. You know, we do not decide these cases in a vacuum. You have the briefs, the oral arguments, lawyers presenting cases, you have your colleagues that weigh in, and then you have law clerks out of law school with great ideas about what the law is. So you dont decide in a vacuum, you talk and have these conversations. And you have an opportunity, you can issue an opinion. I have had very few that can file a measure for rehearing. And 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 just a little bit. 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. If 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 to impartiality. There is a certain ill set. Ideally, if you want to 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 so, im going to take ms. Guzman back end we are going to pray. I am going to open the bible and we are going to read some scripture and pray before closing arguments. You can join us or you can stay right here. So 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. But 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. [laughter] 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, and on the other hand there is that, i dont know, and so forth. 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. So 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 whatever the evidence is. Michael we have someone here. Is this working . I am judge ron greenberg, 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. And 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. And 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 ought 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. So 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. Judge guzman 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, have a conversation with our with yourself, identify your biases, put those aside, and look at the case before you, look at the guiding testaments, look at the statutes, the language, and really, really, as the judge said, consider the decision in a way that is faithful to your also understands the consequences and that is a , real family and a real case in front of you. Michael 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. And 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. And that judge told me, look we , all know this. He is going to retire soon. Dont do anything. Just back off. And so there is judge breyer the ninth circuit had this problem. The ninth circuit of the United States, the federal judiciary, and recently there was an incident in which the former chief judge basically resigned. Judge kaczynski. It was a problem of harassment. And as a result, the chief justice and the ninth circuit judge appointed a committee to address the problem. We set up a set of standards, which are part of the code of dealing with judges harass,ements not to ly, 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 just went through sunset and came out pretty well. But i think when you observe something, each state has a process and avenue and sometimes , you have to keep pushing. There are times when you raise something and nothing is done. And you just have to keep thatng, because you know in the end, 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 very complex legal issues, when you are considering the rights of both sides and that sort of thing. And 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. And the public doesnt always see it that way. Judge breyer one of the great problems is that 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. And i think that that is generally not recognized by the public when a story is reported. The result is always reported, judge does this, judge overturns this, 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 one was a tough act to follow, but we have a panel of extraordinarily distinguished former judges, and are hoping all of you can reveal a side of judging that the sitting judges were not allowed to reveal. The judicial code of conduct guides what i judge can say. 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, judge vogel, you have described the california lethal morales andse, tilton, and you said it 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 emotionally, intellectually, and spiritually what it was like to decide the case. Judge fogel i do not to take up all the time, but i wrote that in a law review article years ago. And i would adopt every word of it today. This case involved the protocol that california was using at the time to carry out executions. And the issue was quite narrow. The question was whether the protocol, the drugs used to carry out executions were performing properly. And the showing that was made by the plaintiff was that it that there had been 13 executions and there had been problems in a majority of them that were demonstrated by basically undisputed evidence. So 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. And the evidence was very , 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. And there was compelling evidence that there were problems with the protocol. So i needed to do something 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. And then, there was proceedings for quite sometime after that trying to figure out what the remedy was going to be. And then a lot of other stuff happened, and there havent been any executions since then. But 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 . And what happened in the actual 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 dyer not, whether the victim, terry winchell, deserved retribution for what had happened to her. And that is what everybody got excited about. And there was a firestorm that was all about bad stuff and had nothing to do with the decision i made. And 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, it a couple hundred letters and emails. And today, if i had made that decision, if social media existed then, 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 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. And people could disagree with the decision i made or not, but was, from the beginning it was about what the law required. It wasnt about how i feel about the Death Penalty. It wasnt about how i felt about michael morales. Andso i had to come back anchor myself to the reason why i was doing 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, and it is 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. So that was and still is the hardest case i have ever had. Jeff justice moreno, you were the sole dissenter in the prop 8 case, where the court upheld the antigay marriage proposition. And 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. I had actually, the matter had been argued before, some months before that period of time and i and i feltshortlist, 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 itself 8 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 are recall in this case, the constitution had been amended by 8, so i was obligated 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. And 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 habeases, the role the 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 appeals and habeas even other others havee and 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, would appreciate this, the cases i struggled with where struggled with were the illegal entries. There was two predicate felonies and 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 guidelines require, at least at that time, we didnt really have an Early Disposition Program in the central district, i think san diego did, but to sentence years, i thinkt i sentenced 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 enough to make a difference. To me, personally, those were the most difficult sentencing decisions i had to do. Jeff you had an extraordinary range of cases. What was the toughest . And was there a case where you feel you were not separating your political from the constitutional views, where you might come into public criticism and where you really struggled to make the right decision . This is where you are probably not aware of your own implicit biases. The answer to your question is no, but to the original question eye into, i think an the process a judge follows, i will tell a story on myself. Eighth amendment story, a Death Penalty story on our circuit, i was a very new judge. And it goes to what some of the panel before us said, there is baby judge school but there is wanting to be a judge, and there is a big difference. I had a very difficult Death Penalty case as the panel author. I followed the state of oklahoma, as a matter of record, i followed the line of cases on whether the Death Penalty was appropriate. Their standard was whether it was heinous, atrocious, and criminal. So i followed all the cases, and we did a really good compendium of the outcomes of all those cases. Opinion, ipanel affirmed and upheld the Death Penalty. Court my court voted to rehear the case and to the point that was made earlier, i changed my position and i wrote the opinion going the other way. And here is why. It is a matter of process. I took all those cases, every single Death Penalty case, from the state of oklahoma up to that moment, and we dissected the ,acts of those cases individually, casebycase, to see whether the state course, this was hey b is, to see whether the state courts had uniformly applied the same standards to the same set of facts. So for months i had a lock clerk and i who were working on this , soe of what the facts were it wasnt only a matter of following the cases. I finally decided in the end that we have got to delve into the facts of these cases, and the opinion came out the other way. So to your original point and that is an example of how judges work behind the scenes, it was because of the en banc hearing process, a lot of discussion , i challengeges anybody to be in a hardy meeting of any group anywhere that in en banc hearing that then en banc then an hearing at the court of appeals. They are the most thoughtful, careful, nonemotional, lawrelated discussions there are. 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. Sewas a gardenvariety, per case. I wrote a very short opinion smoker with ag 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. , long beforeds of 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 . Efer 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. 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 seek theeading them to approval of a crowd, sometimes making a popular decision instead of the right one . 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 harder to harder and 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. 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. He he decided this case and decided against the administration. And he got in a relatively short 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 and im for him, talking, hes a friend, and he said it was incredibly dramatic to have gone through that experience. And all he did, actually his in the was videotaped, 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 or, heavy groupie here,alheavy group 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. Weigh in ong to 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 how the case became about, 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. 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. I think mye, colleagues would agree. 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 or 15 years, there is the perception that judges predisposed based on who was the executive, the governing authority that appointed them. There was an election here in San Francisco. It did not matter if the judges were actual democrats or republicans. If they were appointed by a republican come a group from a thosen office opposed judges just on the basis of that perception. Perception seems to control the day and the general public looks at judge judy of course. They think the judges are partisan. And the they will come to cases predisposed to rule a certain way. I think that is not true. It is completely on accurate completely inaccurate. Should judges tweet . You said absolutely not. Is there a difference between the state and federal bench in that regard . At least in california, the code of conduct would ban judges tweeting. Even now that i am an arbitrator and one of the questions and the disqualification forms that we out ask our reactive on any social media . Lawyers will research the whole history of your views and so forth. That is all discoverable. I would eshoo 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, could claim that i was predisposed that reflected that bias. What you think about tweeting judges . I will note for james madison, tweeting president s would be crazy. Judges should be even more insulated. Is there a danger that tweeting judges will plate to the crowd and be susceptible . I fall into the judge prior category in 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 to have its say is really important. 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 to the public that there is a third branch of government here. The third branch of government takes an oath 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. 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 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. Would challenge by understanding of the impartial judge. Let me add to that. Judges should be ciphers. I think you are hinting at this. We have an obligation to do Public Outreach to educate the community. In that sense, we are public figures. We have an obligation to educate the public on the legal system. 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. 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. To michaelgrateful for the podcast. The publicnk understands what those values are. Enough job ofgood talking about what we do, how we do it. That is a missing link. Your chance. You talk about the need not only for spiritual integrity but mindfulness, tuning in during sentencing hearings. Eep listening this is polarizing our elected officials. Emotionally,ly, what can judges do in the ideals of impartial deliberation that are necessary . I will send you my check for asking that question. We care about ethics, independence and resiliency. It is what you are asking about. It is how you keep judges psychologically healthy so that when 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. Ofelieve that in the name being impartial and not having conflicts of interest and not violating the codes of ethics, some extent, the judiciary it has withdrawn a bit from the community. One of the most important things that a judge must do is remain in Constant Contact with the community outside of the courtroom. A 4h club, the shelter, i 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. That keeps usngs rooted and one of the things that made me a better judge was burning the candle at both ends, working in schools, doing all kinds of philanthropic work in my community. As i refined to back on how i approached being a judge, i as ave i approached it fellow member of the community. When they saw me in the Grocery Store, they did not think federal judge. They thought he was on the board of the art center. Identified to be with our communities along with our courts. The last word before the question. I will note that you have talked to bury movingly about the support that the latina unity how deep is right with the community in a way that is partisan but still sensitive to their needs . Ago, a drumme schoolteacher wrote in a book that i still have, i was going off to college, i think you said you are a part of who you met. I come from a latino community. 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 that it is not right and that humility is a. Uality 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. 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 that thegly feeling model of judging that the panel is describing, it is pretty consistent. I think it is a vital thing in our rule of law. Has been my experience over the last several decades that it does not fully fit the judiciary. I would assume judges decided in areas including texas and the very circuit, decades of close sized selection processes. There are judges that i would not characterize that way. I worry greatly when i see all normal checks and balances. Described theyou model of the best of judges but what you see what is happening now . It will cheer problems with the appointed. I think that is a fair question. It is troubling question. I think the culture is strong. It is not so strong that it will get everybody. You can always try to find people. 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. Degreeintain a certain of optimism. One of the things i liked so much was i got to go everywhere. Just as you mentioned, i spent a lot of time in the circuit. There is a lot of strength 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. Judge inn immigration San Francisco. I will be your new groupie if you have other conversations. Ae flipside is that i have awardingscribable he job. I get to fulfill dreams for them and generations below them. During the Government Shutdown i was not able to work. I found myself paralyzed by depression. I realize how intertwined my sense of identity was. Transitioning off being a judge, was that difficult . Was at the transition from being a judge to the private that the transition from being a judge to the sector private sector . , ibefore becoming a judge would for a law firm. I like that environment. The opportunity came up where i was approached by the Obama Administration for a mastership 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. Do what iat you can have done today. You can say we have a job to do out there. It is not just the judges that will do it. It will be the lawyers and everybody threat the public. Jeremy, i am so grateful for this collaboration. Lets keep this conversation going and continue to eliminate the human side of judging. Please think join me in thanking our panelists. [applause] friends of mine a mail to said why do you want to tackle this issue. You are jumping into a culture war. Do you really want to do this . Indepth, sunday noon until 2 p. M. Eastern. His latest book is the divine plan. He also has books about the spiritual lives of robert reagan, George W Bush and hillary clinton. Join our live conversation with your phone calls, tweets, and facebook questions. Live sunday from noon until 2 p. M. Eastern on book tv. Author leemonth with edwards. Watch every weekend on cspan2. Over cspans three president ial leadership surveys between 2000 and 2017, entered jackson drops 13th 18 place. Dwight eisenhower rises. Where does your favorite president rank . Learned that and more about the lives and leadership skills in cspans the president s. Great vacation reading. At cspan. Org fee president s. Bill gates was the recent guest of the washington the economic club. Technological innovation and his work in philanthropy. This is just under an hour