A Judge, on Judging


Hi, I'm Noah of the daily show with Trevor Noah, which is also a pod cost. Did you miss last night's episode catch up with the daily show with Trevor Noah is dishing? You'll also get extended interviews with our guests in case you missed its conversations with people like Barack Obama and Jennifer Lopez and special episodes of between the scenes where I have candid conversations with audience members during commercial breaks. It's everything you love about the daily show except for the dimples, but we are working on technology to make an audio version of those two you can listen to the podcast Monday to Friday, mornings everywhere podcasts costs are available daily show with Trevor Noah addition subscribe now. How many federal judges does it take to change a lightbulb? There's two answers one is just one he holds up the light full and the entire world revolves around him. But the other one I think is more spot on is change change who said anything about change. Hi, and welcome to Anika slates podcast about the law. The supreme court and the rule of law in America. I'm quick I cover some of those things for slate. And thank you up front to slates own. Mark Joseph stern for guest hosting our last episode. Where shall we begin at the supreme court this week? The justices continue their long quiet March to June and their final opinion. No more oral arguments from them until October. Former Justice John Paul Stevens who is nineteen nine unveiled a new auto biography and mad ping pong skills on NPR and vice president Pence claims the president will be asking the court to do something about broad nationwide injunctions from lone district court judges, stay tuned the country. Meanwhile, finds itself on the brink of what Nancy Pelosi and Jerry Nadler are calling eight quote constitutional crisis over the White House's blanket refusal to comply with pretty much any congressional oversight in the next few weeks. This huge impasse is going to have to get resolved likely in court, and we. We at Magus will be there to bear witness. Also, there are states like Alabama and Georgia that are now passing all out abortion bans in the hopes of forcing the high court to overturn Roe in Alabama. The legislature is just full out gambling on the hope that fifth Justice is waiting to strike road down sooner rather than later. We will be on that as well. It's a lot. But we're going to try to cut through the noise and do something that I have wanted to do on the show for a very long time. Every show I tell you that amicus is sleep podcast about the courts and the law and the rule of law, right? And most shows we will then talk to lawyers and law professors and writers and journalists, and we even hear recordings of the justices themselves at oral argument, but I never get a chance to talk to real judges. We wanted to hear from federal Jewish for a long time on the show. We've known how constrained they are by the Jewish. Canons that don't allow them to discuss their specific cases or national politics and this week in an amicus. I we have somehow persuaded judge Robert last week to come on the show to talk about judges and judging injustice, and that's awesome. Judge last week is a federal judge on senior status with the US district court for the western district of Washington. He sits in the sunny city of Seattle Washington, he joined that court in nineteen ninety eight he was nominated by former President Bill Clinton judge last Nick served as chief judge of that court from two thousand four to twenty eleven and judge Robert last Nick, welcome is such a joy to have you on the show. Glad to be here. And thank you for being our first sitting judge. I wanna be clear that there are so many ethical rules that really cabin what you're allowed to talk about. So you when judges are quiet. It's not because they're grumpy or taciturn it's that they're really not meant to comment. And I think my first question is doesn't that just massively disadvantaged the whole bunch of you not being able to talk think most of the time, we are kinda grumpy. That's why we don't talk. And I think it's fair to say that we're better off with some of the judges not talking, but other judges, I think really could present a very human. But also, very enlightening exposure to the public. I'm really proud of what federal judges do. And I wish people could see us doing what we do on the bench more, for instance, cameras in the. Courtroom. I wish they could see and hear from us. Speaking about those areas that we can't talk about what is it. That makes the third branch different. What is it? What does it mean? To have a lifetime appointment, what does it mean to be a district judge or an appellate judge or supreme court Justice? How is it different? Why? Article three written the way it is those are things we can talk about. And I wish we would more often and thinking of before she came on the supreme court bench Justice, only, then Elena Kagan said I wish people could watch or arguments even at the court because they've fallen love with what the court does. And then when she got on the bench, she kind of changed her mind, but I do think that. The fact that what the public sees is confirmation hearings, which are the most toxic pernicious version of what a judge does. And then they shut off the cameras, and we don't get to see everything that happens after the addition, it has to be bad that that bargain seems like it's the worst of both worlds agree with you completely on that. And part of it may be is my journalism background. But I answer questions when I can I say what I can't answer. I'm make myself available to members of the media to who just wanna bounce something off me. Did I get this right to understand it? You know, we have a lot of things that we do procedurally that are very difficult to figure out you haven't clerked for the ninth, circuit know that the in Bonk system makes people's eyes roll, and they misunderstand you're gonna have to explain what the bunk. This is for our listeners love, I'll take the rest. You know, we have three judge panels. And then the if the aggrieved party that didn't win before the three judge panel thinks it's such an important issue. It could should go to a larger group of ninth circuit judges eleven only drawn out of a bingo container with the chief judge. Now, sit Thomas from Montana, and then ten other of the act of judges, and they rehear the case there, it's not an appeal from three judge panel, the three judge panels opinion goes away, and it's reheard by the in Bank and a lot of times the media thinks that the unban is an appellate stop after the three judge panel. And that all the judges are on the environment. Not just ten and the chief, but the entire court. And so you get a lot of misunderstanding in there. How do we pick the chief judge that's a complete mystery to a lot of people, and it's a form. Bula the most senior of the active judges who has not yet sixty five and has not yet been chief judge, and it's different than the supreme court where the chief Justice is appointed and stays as chief Justice parenthetically because when you pick the chief judge of a district or circuit the way, I just described you could end up with somebody who really isn't best suited to beat chief judge, and that's happened. So the the federal judiciary looked at maybe we should change the way we pick chief judges, and they looked at how popes are selected, and how deans are selected and how CEO's are selected and the ran report came back and said there's no consensus on what's the best way. But what you do is the worst way. So we decided to keep it. I was going to say, which did you pick the pope method or no you hit? When those same old same old, chimney and smoke. Just same old formula. I wanna talk about it every single thing. You just said, but I want to explain senior status because you took senior right? And folks, I don't know what that means. And I think we're we're in a very overheated climate about judicial vacancies. Can you explain what the process is? You're you're a fulltime sitting judge. And then you take senior status. How does that work? The formula is you can go on senior status when you are sixty five or older and your years of service as a federal article three judge added to your age of sixty five equals eighty the rule of eighty. So if I'm sixty five and I have fifteen years of service, I can go on senior status because sixty five plus fifteen is eighty but if I'm sixty five only have ten years of service. I can't go on senior status for another three years because sixty six. Only have eleven sixty seven I'll only twelve but by sixty eight I have thirteen and now I reached the rule of eighty when you go on senior status it allows the president to appoint someone to take your active position. And so I went on senior status in January twenty seventh on my birthday and twenty sixteen when I turned sixty five because I had sixteen years of service, and therefore we're actually seventeen years of service and added up to the rule of eighty but three and a half years later, I'm still not replaced yet. Because either the president nominates nominated someone who didn't receive a hearing or someone has been talked about for nomination. But also didn't get a hearing. And when congress the congress where that nomination has made expires we go back to square one. And so right now my position and three. Others in the western district. Washington are open where the judges on senior status, but without a replacement that's very difficult for court because senior judges tend to wanna cut back their caseload, but only wanna do. So when someone has been appointed to take over that position. So you're not still doing it. One hundred percent of your former caseload, are you? I'm not a hundred percent, but I'm higher than. Yes. Am up in like three quarters in such and you're saying this, very civilly politely. But it's in fact, I think a cause of huge frustration that there are normal number of judges who would like to be playing with their grandchildren who are still sitting for the indefinite future. Right. I mean, this is a problem. It is a problem and we've tended to go through peaks and valleys in getting judges confirmed. But if you have senators from one party as we do in Washington state and president from the other party there needs to be a mechanism for reaching consensus. We have had a bipartisan merit selection panel in our district since nineteen ninety eight. I was the first one that came out of that process. And I can honestly say Dalia that if you look at the judges who are appointed by Ronald Reagan, and George W Bush and the judges who are appointed. By Bill Clinton and Jimmy Carter. There's no difference in what we do. We are judges. There's no adjective in front of our name as to who appointed us, or you're the black judge of the Jewish judge or the woman judge we are judges. And in the best sense of the word where federal judges who as I say, we would generally handle each case almost exactly as our colleagues would. And I think this move to politicize who judges are. So that you're a a Republican appointed judge or you're a democratic pointed judge your woman judge or minority judge is very bad for the federal judiciary. And I think that's was behind chief Justice Roberts. Finally, speaking out to say, we don't have Obama judges and Bush just we just have article three federal judges cynic is going to challenge you on that the same way most people. Challenged chief Justice Roberts when he said it and the pushback was, oh, of course, there are different judges. And of course, you know, you are reflective of the president who appointed you you just have to say this to try to, you know, look Iraqi leader and magical and notice I didn't say it was true everywhere in our district. But I, unfortunately, it has changed on the US supreme court where everyone is totally predictable. You've lost the David suitors, Sandra Day O'Connor and John Paul Stevens. Yeah. And the been replaced by people who have been vetted to work into a certain of philosophy. And I think that's very unfortunate. But I think it's there the US supreme court to a lesser degree at the circuit court, but still at the district court. I think we have more no adjective judge, and I just want to ask journalistically because I know one of. The things I've heard a lot from judges from federal judges when they give me their laundry list of complaints about journalism ranking for higher than not understanding the bunk system is the complaint that we throw in appointed by Clinton after their names. And my editor would say that's really useful and important information, which last night couldn't argue with your editor is important information. Unfortunately, it and I fought that for a long time. But the reality is is there it is necessary. And when you have the president of the United States criticizing somebody is who appointed them, that's an Obama appointee. So therefore, it sends a message I think that he wouldn't necessarily do that as a Clinton appointees since it was his Clinton who appointed his sister to the circuit court after she had been appointed by a Republican president used to see that a lot more where person would get to the district court. Pointed by president of one party and the circuit court appointed by president of the the other party. Based on on on their body of work not based on who they were loyal to. So you're I I don't wanna go round and round on this. But I think that you're describing win win. Chief Justice Roberts says we don't have Obama judges and Bush judges we have judges to me, that's very lovely and aspirated melty, you it's it's still as a predicate largely true at the district court level. Yes. Okay. Can you just talk a little bit about how long you wanted to be a judge? Did you have little black robes when you were kid or did you? I know you meandered your way even to the law. No, you were I we have to talk about your background in journalism. But I know this wasn't a straight line. But when did you say, I wanna be judge? I think it was what I was trying cases in the nineteen eighties as deputy prosecuting attorney and King County, and I saw how important it was to have. Have a trial judge who could control the courtroom. But make sure that everyone got a fair shake the defendant, the prosecution the victims the jurors the witnesses and the like one of the great things about being general assignment. Reporter is you learn something almost every day because you're assigned to work on this story, or that story well in the trial court, you learn something on almost every case you get because you're dealing with a patent for running shoes one day, and you're dealing with an employment discrimination case in a field. You never thought about in another case, and you have a criminal case that involves the internet and people from Ukraine. So I love the fact that I'm still learning every day about something very interesting while I'm also trying to control the courtroom deal with jurors and witnesses and give everybody a really fair trial. And when you you know, when you do that, and you kind of know it yourself, but you know, I've. Had people say to me at the end of long cases, couple of criminal cases, where the defendants who had been through the system. So many times said judge did a really good job. And I said well coming from you that means something because I know you've seen a lot of trials and a lot of judges. So that the winners always complimentary. But when somebody who's lost and been convicted says, you did a great job that makes you feel good what proportion of your time. If you had to lay out the pie chart is trying cases what proportion is reading and writing what proportion is going around and giving you do a lot of speaking and a lot of panels and a lot of how does it in state court? I was state court judge for nine years before I was pointed to the federal bench was trying one case after another civil and criminal, and it was fun. But it was draining because your reward for finishing one as getting another in the federal court system. And it's changed over the twenty years. We're seeing the vanish. Shing civil jury trial for various reasons. Expensive discovery fear of what juries might do with damages awards. But also a diminishing bar. That's comfortable trying cases. They just don't have the experience and their little frayed of jury trials, whereas more comfortable doing mediations arbitrations or things like that. Then judges themselves are being trained not to the point that I actually went to a seminar once where the federal judge who was explaining how you deal with an employment scrimmage in case, basically said if you end up going to trial to a jury trial in this case, you are a failure. I don't think that's true. We need to have some cases go to trial. That's all the law evolves. That's how the common law develops. That's how courts get to look at it and say, you know, that it's time for policy change here. And if we push all these civil cases. Away from the courtroom and jury trials were doing a disservice to our Justice system, and that Twi I'm reason I'm here is this NYU civil jury project to try to get judges to think about ways we can bring back the jury trial in the criminal area. Because federal prosecutors have so much control over charging. We've really become a plea bargaining criminal Justice system, and it's the odd case that goes to to to a jury trial. So it's it's very much changed. And and I don't think it's a good thing. You just said something that struck me slightly astonishing. I've always thought the closing of the courthouse doors, and the decline of of cases going to trial was just a function of expediency and laziness and systems, you're saying young lawyers. Don't want to do this work. I don't think they get a chance to do it. And they're they're scared. You know, the first few years in a firm, they may be looking in a dark room at electronic discovery to read a bunch of emails and text messages, and they are not used to being in the courtroom, some of our judges like judge Pittman rewards people by granting role argument on motions, if they use a young lawyer, a woman lawyer, minority lawyer, and and Jack Weinstein's doing the same thing in eastern district in New York. And so we're trying to develop reasons for the younger lawyers to get their experience in the. It room even just arguing motions it's getting harder and harder. But you know, I think what we did is we we said that one point alternative dispute resolution should be utilized it and it offers great relief for way too expensive trials and for overworked federal judges. We're not overworked we can do more and that alternative dispute resolution still has a place. But we've promoted it, I think on unfortunately and unfairly to the right way for judges to almost coerce people into doing some sort of alternative dispute resolution. So I think we need to reclaim our role as people who preside over the Justice system, not just the resolution system, and where does the cost of the Justice system filter into all this m asking in part because a judge told me just this week that in her court parties. Can't get a court reporter unless they pay for it now. And I was like how would you have a record? Could you have an appeal and she said, yes, a problem? I mean, nothing is funded in the state system. That's very very true in the federal system. We've been very successful getting budgets from congress because of great advocacy from the judges and the administrative office to show what we do. And what resources we need to get the job done? I mean, we pay for federal defenders out of our budget, and that's a big ticket item. We do US probation and pretrial that's a big ticket item. And we do cases with case load. That is very challenging. Sometimes if we didn't have our senior judges to help out and in our district, we have judges in their eighties and seventies who are trying more than a half a case load and carrying more than half a caseload. If we didn't have those senior. Judges. We could not we'd be so backed up it would be a disaster. And I think the bar needs to step up more and say give the judges the resources they need to get the job done. So this tells into this thing that I know you've been thinking about and working on so hard, which is the relationship between race and the Justice system. And I know you've you done a ton on implicit bias and access to Justice. But I think this is an issue that maybe has not surfaced in a while because there's so many other things going on. But this is a very very real problem in the in the both the state and federal Justice systems, it is and we've tended to want to ignore it in the federal judiciary. Frankly, I was fortunate to be on the judicial conference US, which each circuit has chief Circuit Judge and district judge selected in various ways, and we meet twice a year. Here in Washington DC. It's chaired by the chief Justice, and it's the policy making body for the federal judiciary. But in my time on the traditional conference and chief Justice Roberts appointed me to the executive committee to I wanted to try to get us to add a new committee on fairness, racial, fairness, we have one in the ninth circuit. And I'm on it. And it really is looking at issues that are just not getting attention pretrial release who gets it who doesn't what are the statistics say about minorities and the like sentencing, we know that there's unfairness and sentencing based on race. Where does it come from? What can we do about it? And I thought that for a while my idea was being well received. But ultimately the decision was made. We're not gonna have a separate committee. We're not gonna have a separate task force. But we're going to ask each one of the standing committees. To look at racial fairness within the context of what they were otherwise charged with, and frankly, I I don't think that was a good decision. I respectfully disagree with that one. And I'm trying to do what I can in the ninth circuit to to bring back a concept of we have to deal with implicit bias. We have a video that was developed in in our district that from the bench and the bar and the academic community to deal with the issue of unconscious or implicit bias. And we now show it to every jury civil and criminal, and we're getting wonderful feedback from the jurors about how it made them slowdown made them think if that person was a different race would I be looking at this case differently. And I we need to to break out of our reticence to ever change. And that's really what's behind it. It's not that. There are. Over and and racist people. It's just that there's a discomfort dealing with certain issues, but you know, a little bit. The federal judiciary is kind of like the difference between state and federal states and the federal government in that the states are the the labs right for trying things out. Well, we have a lot of districts of federal US districts courts that are trying things out, and we tried out the video it's now being used in northern district, California. It's being used in state court municipal court. We've had tons of interest in it. And it's getting a lot of attention it Mike go from Senate from the top down. It'll go from the bottom up, and there are many people are just heard judge Bob Conrad in North Carolina is having courtrooms built in the jeffersonian style in a new annex where the jurors will be in front of the judge. So the jurors. They're back to the judge looking out at the witness stand. The witness will be facing both the judge and the jury straight on. And then the lawyers will be on either side. This is how it was in Jefferson's time to emphasize that the judge and the jury are the ones who are making the decision the judge on the law, the jurors on the facts, and they would have a different perspective in view. Now. I'm a Hamill Tonia, not a jeffersonian. So I don't want that in my courtroom. But there's an example of people thinking outside the box. Let's try it. And see and see what the reactions are does that mean that you're in perpetual conversation that we don't know about with the social scientists and with psychologists when I mean is that a where do these notions? Where are they born? I wish I could say yes to that question because I really think that we could learn a lot from social science and in the area of implicit bias. That is absolutely true. And we were influenced by. Song Richardson, who's now the dean at UC Irvine law school and Jennifer Eberhardt at Stanford and other writers on implicit bias. And we took that to heart. But we don't do that enough. You know, there's a the federal judge joke. I don't know if you've heard it how many federal judges does it take to change a light bulb? And there's two answers one is just one he holds up the light bulb and the entire world revolves around him. But the other one I think is more spot on is change change who said anything about change. We just don't think we should change. And when you think about every other aspect of life how much it has changed. We're trying cases basically the same way with a little bit of electronic display of evidence as was done two hundred plus years ago. Well, that's true of legal education. Right. We're still, you know, terrorizing people with Langdale, Ian, you know, Socratic shouting. I mean, it's just true of this profession that we're so. Resistant to giving up old conventions and norms. Even though there for all the reasons that we could talk about really, you know, no longer service. But I think that there's an awful lot of people in this profession that lake it because it's a small c conservative professional true. And there are definitely certain advantages to it you want that predictability and consistency. And I and the chief Justice who is 'institutionalised looks back at other chief justices and sees steadiness, and consistency and predictability and independence. And those are extraordinarily important parts of our lives as federal judges. So it leads to my question about governance and transparency, which is a problem. I think. And there's a couple of problems with the judicial conference, and I was on there, and I loved it. It was wonderful experience got to meet, no, Merrick garland, and Bill Traxler and Joel davina these fabulous chief judges from circuits around. But remember how I told you how you become a chief judge the most senior on the Nath. And so it means that when we're looking around the table, the judges are all pardon expression on the old side. And so we don't get up and coming people on there for the most part now district judges are chosen differently in in different circuits. You know, they were some them are elected some of them are rotating by states and things like that. So we have some younger, but all the chief circuit judges are there because there the longest serving in their circuit. And you know, sometimes you get people who well, that's the way we've always done it. We don't wanna. Change or you have people who are not really up on the technology and the ways that we could make things better because they just are of a different generation. I mean, we're still giving out no pads and pens to jurors who are twenty one or twenty four years old who haven't used the notepad and a pen in their lives. How about a laptop how about letting them hold onto their electric devices and trust that they're not going to Google search every witness we need to to break out of the box. But then the other part is when we do meet in Washington DC in the beautiful United States Supreme court. There's nobody watching what we do because we don't let anybody in. No journalists. No members of the public. There's no transcript there's David sellers are wonderful press person will come out with the chair of the executive committee usually couple of hours later with a one paragraph statement of. This was the big highlight from the meeting, and it's of course, crafted in a public relations sense, not an an a new sense. You never see the debate to aren't that many frankly, and you never get a report on what's going on. We're driven by committees. Which also meet in private except for certain ones that have public hearings on civil rules or criminal rules. There's very little that you ever get to know about that. I wish we would do things more in the light of day. We're gonna pause now to hear from our great sponsor on this week's show. And that is the great courses we all need a break from the constant and relentless new cycle. And the great courses plus is a fantastic escape with the streaming service. You can pick up a new hobby or build your knowledge base on almost any topic. You would ever wanna know about like, maybe the great palaces of the ancient world or life lessons from the great books. And there are also how? Two courses on doing everything better from cooking to stargazing to taking photos. You can explore thousands of fascinating lectures, all presented by a ward winning experts who are passionate about what they teach. And with the great courses plus app, you can escape into this vast world of knowledge at anytime. You can watch listen whatever works best for you this week check out. 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And now more than ever our work needs your support and the very best way to support it is via our membership program slate plus with a slate plus membership you can enjoy this all sleep pud casts ad free. And you'll be supporting our work at the same time. Now more than ever that matters. There's a free trial to be found at slate plus dot com slash amicus. Now, let's return to our conversation with judge Robert last Nick senior US district. Judge of the United States district court for the western district of Washington. I know you and I have talked before about judicial misconduct in some of the ways in which the judiciary really wants to both signal that it's responsive in concern. But also, we're handling this. And you can't see and it's the exact paradox. We opened with judge which is one needs to do those things in order to have public trust. And I absolutely sympathetic to John. Rob Roberts impulse to say nothing to see here. No misconduct. It's being handled. And also the sense that, you know, all these young women who want to come and tell their stories and beyond every committee about sexual misconduct that can't work, I suppose, but I don't understand why there isn't the next step of understanding, which is that utter lack of transparency doesn't foment public confidence. It foments. Really legitimate grousing about the fact that everything looks like a cover of. Especially I wish that when there is a major issue like the judge Kozinski thing that the fact that a judge retires or resigns should not end the inquiry to me, even if you're not gonna discipline that judge because you don't have the ability anymore 'cause here she is not a judge you need to know. What went wrong what levers were used by the judge to isolate intimidate and harass and what how did the system fail, and that I don't think we ever came to a reckoning with that a number of times when judges said, okay, I'll just resign. And everybody was like great. We got rid of that bad apple now, we can move back to our draw the wagons circle state of mind. So so it sounds like you're saying that what at some point this entire top down. Governance system is going to require is exactly. Kind of person that can never get to the top in this kind of governance system. Right. I mean, it would require somebody who is absolutely willing to say. Fling open, the doors, admit vulnerability and little hang out. And that that can't happen for reasons that I guess I understand, but it's a little dispiriting wouldn't sit can happen. It's highly unlikely. Okay. And and in many respects, you know, the chief Justice is such a charming, and and telling really wonderful delightful person to interact with, but he was not someone who was interested in opening the levers that you just talked about if we had a chief Justice who was of the belief that allowing cameras in the US supreme court is not a terrible thing. In fact, it could be a really wonderful thing. You could see some change. What's your best argument for cameras? I I know mine is a journalist. My best argument for cameras is the more the people see what we do the better. We look and the more confidence they have in us, and you know. I know that. A number of justices who used to feel that way when they were circuit judges or academics. When they got there. They say, oh, we can't do it. We can't do it. But I'm not heard good arguments for that to me, these are important policy issues. They are talked about in the most intelligent and civilized way. Nobody screaming at each other. Like you get in congress. Nobody's issuing decrees and proclamations and executive orders that are inexplicable. The the the idea of saying our opinion speak for themselves. Not in this environment. We need to to let them see what we do. And how we do it and judge Robart handled the police case in Seattle and those were televised. They're not live stream the case for one second. It was one of those ones where department of Justice in the. The Obama administration came forth and said the city of Seattle police department was policing in ways that violated federal rights of individuals, and they needed a federal judge to oversee changes in the department. The city of Seattle agreed. But at a certain point they disagreed about many of the other other underlying issues and judge Robart. In addition to all his other cases at took that process on still dealing with it, but it's a tattoo tremendous positive impact on our community. And it was good for people to see how a judge handles very difficult case like that. And when I had my three D gun case to which is still in front of me. But I did that preliminary injunction argument with the cooperation of the parties. So it could be seen. And I think those the more people see what we do the better. It is for the federal judiciary in terms of public confidence. In what we do think that most of the sitting justices when they testified at congress why they don't want cameras up just make security arguments. I mean, I think the principle thing they say is some version of I'm not safe. What's the answer to that? Is that is you don't seem to worry about. That when you go in the book tour. So I just don't think that that's an issue. And the other issue is well, some people may not ask questions if the cameras on your ready had that or some people may grandstand and ask a lot of questions with the camera on your already have that too. So it it's not really going to change the behavior. I believe I remember once hearing Justice Ginsburg at one of the circuit conferences when she was pressed on why the Canadian supreme court has had cameras since the seventies. And I think her adore ably Ginsburg ish answer with some version of, but those are Canadians implication being what they don't grandstand. They barely speak. But I do remember hearing at the time. I think the supreme court the chief Justice of the Canadian supreme court saying one lawyer tried to get grants, Dan once I stopped. And and I think it's this notion that you can't control advocates in front of you. I mean, that's your job. That's our job in the the Washington state supreme court has been. Having televising all their oral arguments for years and not have not had any problems with security or any problems with grandstanding or any problems with shutting down justices who want to ask questions. So it's just that's the way we do it. And it'll it'll only change if you get a chief Justice who really wants to change. I remember when the ninth circuit argument, the first argument in the travel ban case was being the audio was being streamed watching people crashing the website in their eagerness to listen. And I thought this has to be teachable moment for the federal judiciary? Millions of Americans are Li listening to oral argument in a case. And yet it seemed to move the needle. And I thought that the judges did a great job and the lawyers did a great job. And why not let people see that? There's a lot of interest in it, isn't it look at the the play on Broadway now about the constitution, which is also from Washington state. And people are really excited about why do we have three branches of government? What does it mean with this separation of powers, and how do branches coexist with each other? And I think that's great to have people wanting to learn more about the government in how it operates including judiciary jurors Google during. During track. Not I tell them not to do any research on their own. I don't want them googling the defendant to see his prior records are things like that. So yeah. No. I say what we what we're everything you need to know about this case, you will get in the courtroom. And can they tweet tweeting? No Facebook ING. No blogging adhere to your roof. Yes. I believe. So I guess you would find out if they were I think we'd find out if there was a big problem. But you know, sometimes there there are, but I always tell them soon as cases over you, can bore your friends and relatives with every detail. But not until that, what do you read? Well, I'm I'm very proud to say that one of my colleagues from Edwin Markham junior high school on Staten Island Sigrid newness won the national book award for her book, the friend, which I think is a wonderful book. I love her work. I am a big Stephen King fan. I think I read the shining for the tenth time in the last three months a creepy. But I like a good take me away story and the biography of Louis Brandeis went to Brandeis university by Jeff Rosen, and those are where I am right now. I remember asking a federal judge if they read law reviews, it's not a trick question or do not read law. So this goes a little bit back to your initial point about. Legal academics still largely believed that that's where they are influencing the conversation and not a ton of judges read the law reviews. That's very true. No, maybe it's different at the supreme court with the clerks. I don't know. But for the most part, it's pretty irrelevant to what we do less. I it's a law review article praising something I. Read it over and over and provide it to everyone. I can't talk about how you use your clerks. Well, I am so blessed to have a career law clerk LB Craig no who has been with me since day one. And she is such a indispensable part. She recently told me that her doctor husband had given notice that he's going to step down from his job in hospice care in a year. And I mentioned it to my wife, and she said, oh my God. Don't tell me LB's gonna leave too because you won't be able to do your job without her confidence. But LB loves her job. And she is not leaving. Thank goodness. But she's in the mazing lawyer, and she does tremendous amount of research for me. And in the best of all worlds LB will or any law clerk will give me a case for that. I have coming up for summary. Judgment motion to dismiss whatever the motion is. And say judge, here's the briefs. Here's the cases you need to look at. And here's a proposed order if I agree after reading the briefs, and I agree with the decision than I read the order more like a editor to to make it sound. Like, it's my voice when drives LB crazy is a chill rite of thirty page opinion. And I'll add a paragraph that I know is going to be but the media picks up on because that's the journalism background. And then they quote, the little part of the opinion that I actually wrote, but that's part of the team work there. She's not in it for the glory. Like, I am. But and then on the other position, I have a long term law clerk that turns over one or two years depending on that person. And the grew the greatest part of the job of being a federal judge is working with law clerks. They are so brilliant. And they keep you young and keep you. Engaged. So that's really tremendous tremendous part of the job too, many in my humble opinion law students in this are listening to this. And they're thinking how do I get a clerkship? How do I become a judge? I mean, there's so myopically obsessed with the judiciary. I don't hire clerks directly from law school. I want them to have at least a year of practice or clerking for state supreme court or similar clerks clerkship. So that you come with the idea that you've been exposed to some aspect of the real world. And we get such incredible people applying that it's okay, judge pacman does something similar, but she also requires that, you traveled somewhere and did something in Africa or some, you know, something where you gave yourself. And and I think that encouraging people to become law clerks, not just. To get a check on your resume. So you can get a bonus and something later on but to have experienced some part of the world, and then bring that point of view to chambers is a good thing. I read that you when you advise trial attorneys, one of the things that you tell them is stop saying the evidence will show right this. The the evidence will reveal that that's a tick that we've all picked up from law and order that gets, you know, where when you're doing opening statement, you should tell a story the trial courtroom is all about telling stories, and you don't tell the story, you know, by saying this book will show that that creepy hotel up there in Colorado is really haunted. You know, you just say. Get right into the story and used the characters that are your witnesses to tell a story. And then that's the way to bring jury to what we're doing. So yes, there certain quirks that I have no halftime motions not basketball game, and at mock trial, which occasionally I do in state of Washington, I'm already well known among the high school kids don't ever say halftime ocean frontage last night. What is your best advice for with so many law students who listen to this show, many of them listen to the show instead of studying for the bar? What is your best advice about and this is just gonna sound ridiculous spiritual? But a life well lived in this profession because boy, do we screwed up sometimes as lawyers it is important to keep track of what is it that makes you happy and most of the lawyers who say they're unhappy frankly are working for big firms. They may be making decent salaries, but they're not happy with their work. Most of the lawyers who are happy with what they do are working for public defenders. Prosecutors immigration lawyers environmental protection doing something that enriches their life and makes them feel like. They're making a difference in the world. It's hard to say you making a difference in the world when you're totally somebody's briefcase for a big law firm, although you're making a lot of money doing it. And so it's it's always keeping your eye on. What is it? What is the real reason I became a lawyer? If the real reason he became a lawyer was to make a lot of money fine. Go ahead and do it. That's fine. But if the real reason, you became a lawyer was because you were inspired by to kill a Mockingbird or you were inspired by some lawyer who you saw stand up to injustice and take a a real principled stand. Be that lawyer you can be that lawyer there are people out there who are actually doing things like that and are enjoying their life and making a better impact for their community. And what what's the answer when they say, but my loans and big law and this entire system Jerry rig to push me into carrying sons briefed. As what's is it just broken the is tough when you're talking about not just the loan but six figures. Yeah. Yeah. That's a wish. My revised to them has changed that damn system. That's just unfair. Yeah. I wanna go back to Tokyo journalists for minute only because. We fought the current president for knocking journalists in journalism and fake news. And we can talk about that or not. But every single sitting member of the current supreme court has done the same in some context or other. They they take their wax at the press sometimes in very cartoonish ways. Don't like how we're doing our job. And I know there's a healthy good systemic tension that should exist between the the press and the courts, but I'm wondering Where'd the line is between what you do in your need for us to not call you out by name. Not misunderstand cases. Do the things we do wrong and us acting as a check on you, which we have to do. And I'm trying to figure out what what's the right amount of checking. We're subject to criticism absolutely as judges. And the media has a right to criticize us, I think they also have a right to try to get it accurate. But if they're accurate, and they just have a different opinion about that's a really stupid decision. This judge made. I'm okay with that. Not everyone agrees with everything. I do all the time. And I'm not right all the time the appellate courts tell me that. But you don't want to personalize it in a way to say that judge is evil or that judge is is a traitor, and this judge is patriot things like that. So I think that if you're talking about criticism of the media by judges or criticism judges by the media as long as it's done in a respectful way. That's perfectly. Okay. And I don't have a problem with the president criticizing judges either as long as he's doing it in the you know, we disagree. I would prefer for. Him to say we respectfully disagree with that. And we're going to appeal it, but you know, when he says, he's a mexic- Mexican judge or so-called judge that's bad. And and because that inspires the the hatred and the danger factor, which is not fair. And I think Justice course, said it's disheartening and discouraging when anyone attacks judges for their race or their national origin or their gender or anything like that. But this goes back again to your initial framing which is when the president is out there saying the entire ninth circuits ox, or you know, judge Robart is a so called judge. And then in this kind of subsonic whisper John Roberts after months and months response or really subsonic almost inaudible whisper Neal Gorsuch says that's disheartening. There's such a disparity in the tools the rhetorical tools in the megaphone. To this debate. And I wonder is it just time for someone to say. And it doesn't have to be you. It doesn't have to be now. But someone to say, this is really, and I I don't even think it's you know, you're sort of flagging the the danger issue, right? That it's bad to whip up public fury at anyone judge. And we know that that happens. I think the judiciary itself suffers I mean, it's not it's an institutional problem and judge Roburt hood to endure so many death threats. And so it was under twenty four seven Marshall protection. I happened to sit on the circuit with judge Clifton from Hawaii who had been on the appeal and he was under twenty four seven. So when we went to lunch, you know, the marshalls had to come with us. And of course, in that part of San Francisco, it's probably good to have Marshall action. And you it's a serious serious issue. There's no doubt about it. But. Also, the number one thing that was said to judge Robart in those emails and hate mails. And everything was I will never vote for you again. So the pit up. Okay. We see where it's coming from. Can we talk about Bob Dylan? Sure. Okay. So so you are on record as being one of the biggest Dylan fans in the federal bench. If my data is correct. Is that still correct Dylan is the most quoted songwriter still? Many of them like really bad use of quotes to including one from the Justice. Oh, no. I feel that we need to unpack some of this. You quoted Dylan before quoting Dylan was cool. Right. About eighteen years ago in the nineteen years ago in a case where we were looking at what was the congressional intent for title seven when it was passed in the nineteen sixties. And I put a footnote in about context that this was at a time great turmoil in the country. And we're the lyrics of Bob Dylan about the times, they are a changing senators congressman, please hit the heed the call. Don't back up the doorways don't something the halls. See who gets hurt? We'll be he who has stalled and it made sense in that context. I don't do it just to show I know of Dylan quote or anything like that. But it actually the first time I used it was oral argument of very interesting immigration case where we sat sort of like in Bonn, which we never have done before. Or after all the act of judges heard this appeal because we all. Had similar cases and an involved. What do you do with a person who's been ordered deported? But the country won't take that person, Vietnam and Cambodia were big. And then they were bunch of year was nineteen ninety nine and we had the oral argument. I am the youngest judge on the court then by about twenty years, I was forty seven. And in the argument, I asked the government lawyer I talking about the chimes of freedom, and I talk about for each unharmful, gentle soul misplaced inside a jail you gaze upon the chimes of freedom flashing, and there was like almost an audible gasps from the public interest lawyer public defender community that oh my God. We now have a judge who quotes Dylan. And as I left the the bench with my colleagues who were as twenty or more years older than me one of them said now where is that from and what's that song? And you know, but he liked it. And he wanted to use it himself kind of thing. So that's how I kind of got that. And then later on when I did the advocate. They I talked about how I was considered scandals traditional star because I just dispense contraceptive. Save whales and quote Dylan. Is there something about and I just say this as like a person who forces my children to listen to Pete Seeger. And they have no idea why I'm doing this is is there something about Dylan beyond just the Bob Dylan of it. That speaks to you. Is there some through line? I mean, there's so much and maybe we'll put up on the show page because the article article all the lyrics is fantastic. And let me back up for one little minute and say for listeners that there was a encyclopedic article in the LA times in twenty eleven but Carol Williams about the massive grip of Bob Dylan lyrics on the federal court, and we can the link onto the show page. But is there some through line from the Dylan? You're listening to as a kid in New York. And and what you're still trying to say or think about wh why Dylan what he spoke to my. Ration-, and you know, look, he's won a Nobel prize for literature. So it isn't just that. He was speaking to this one kid in New York City who was listening to WBAI and and finding a whole new world opening up. But it it stayed with me again going back to my answer. The previous question is those songs are about Justice. Those songs are about being focused on trying to make this world a better place, whether it was civil rights or peace or things like that. And and I think Dylan provides a touchstone for me of remembering why I'm where I am doing what I'm doing. Now, my kids are like dad that is so lame. Can't you at least talk about somebody who Cardi B? Now, I will say this. I had Chris Nova Selleck from Nevada in my courtroom on a case, and we were talked to each other like a huge nirvana fan. So it isn't like I'm just stuck in the past or anything like that. But my daughter now works Spotify. And Amanda sends me play lists and things to listen to. So I'm trying. All right. Maybe we're gonna have to get hold of your player lists and put it up on the show instead of asking what books. I'm gonna ask you one last question. And it's it's the sober one. That I give that I ask guests when when I know that a lot of folks are listening to the show or just feeling rattled and worrying about the guardrails. So the question is essentially this. I think that you and I are both people who are the most conservative radicals in the world. Right. We believe in the rule of law and in systems, and in the words of the constitution. And that's that matters to us. It's not fanciful thinking. But I think we live in a time where a lot of folks are finding themselves very destabilized by truth has no meaning and everything's up for grabs. And what gives you hope young people give you real hope I see it in my own children. I see it in young people around the country and around the world. And you know, the path is never always up two steps forward. One step back once forward three steps back, but I believe in in this country. You know, I it is it is a country. Conceived in slavery, and dedicated to the proposition that only white men are created equal. So you gotta you gotta get past that conceived in liberty antenna. Kate is the proposition that all people are created equal. That is not what the country was started on. But the country has evolved in a way that never would have been predicted back in in seventeen seventy five or seventeen eighty seven. And for the most part, those advances have been from the people not from the courts sometimes from the courts, but it's much better. When it comes from the people themselves not imposed on the people by judges. And and I think that's a it's there's a give and take and a tug in an pool. But I think we're ultimately moving forward and the young people will make sure we continue to move forward in the federal judiciary will persevere and. We will be there to make sure justices done I'm not going to be able to get you to sing a little Bill. And now, you don't want that would be a really that's all it would be now we don't wanna do that. Judge Robert lessening is on senior status with the US district court for the western district of Washington. He joined us here in Brooklyn. Thank you judge. This has meant the world has been great for me too. Wonderful. And that's all there is for this episode of amicus. Thank you so much for listening if you'd like to get in touch. Our Email is amicus at slate dot com, and you can find us at Facebook dot com slash amicus podcast. Today's show was produced by the divine saw wearning him. Gabriel. Roth is editor director of sleep podcasts and June. Thomas is managing producer of sleep podcasts. We'll be back with another episode of amicus into short weeks.

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