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 StatesSupreme 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, bu