By Andrew Cohen
Growing court dockets. Increasingly complex cases. Mounting pressure and exposure from social media. The challenges facing today’s judges are sobering—and threaten to lower the number of talented people who want to serve on the bench.
On June 19, a diverse set of jurists described these challenges during a compelling event at Berkeley Law. Co-hosted by the school’s Berkeley Judicial Institute and the National Constitution Center, “The Human Side of Judging” will also soon air on C-Span.
BJI Executive Director Jeremy Fogel said such dialogue helps illuminate and demystify judges: “We’re trying to begin that conversation,” he said. “There’s this chatter going on and much of it is not informed. We need to do better job of explaining what we as judges are doing and why we’re doing it.”
Best-selling author Michael Lewis, who recently had Fogel on his Against the Rules podcast that explores fairness and those who arbitrate it, moderated a panel with Senior U.S. District Judge Charles Breyer ’66 (Northern District of California) and Texas Supreme Court Justice Eva Guzman.
Elected to her position by voters, Guzman is active on Twitter while Breyer self-effacingly calls himself “hopeless” with technology. Each, however, noted implications of widening political divisions and expanding social media.
“My greatest concern is that the judiciary will become polarized,” Breyer said. “It’s dangerous that courts start to take positions that appear to be partisan. That will be more destructive to judiciary and the rule of law that anything I can see. I’m alarmed by it.”
The explosion of media platforms, however, also offer a chance to “give the public insight and confidence into the judiciary,” Guzman said. “Many people’s idea of a judge is Judge Judy.” She added that the availability of oral arguments online “lets people see the process” and provides “an opportunity to see their courts at work.”
Each panelist displayed authentic humanity. At an airport the previous night, Guzman saw a bathroom custodian and noted how she was “one generation away from that life. My mom was a custodian.” She said she became a judge “to make a difference and engage with people who grew up like I did, who are invisible.”
Breyer wanted to be an actor and nearly dropped out of Berkeley Law after his first year, but that summer a new stage emerged while he worked for a personal injury lawyer.
“I went to depositions and trials and thought, ‘My goodness, this is fabulous—you write the play, you act the play, you produce the play, and generally there’s some kind of audience,” Breyer said. “That’s what I got as a judge. I got my audience.”
The judges also touted the importance of collegiality, diversity, and varied experience on the bench—and owning up to your mistakes. “Judges are not infallible and there are times you just got it wrong,” Guzman said. “The fact that you put on a black robe doesn’t mean you stop being human.”
Breyer explained how the judges’ oath to follow the law often reduces their public approval. Certain case outcomes “may seem unjust and out of touch with reality,” he said. “But if the law dictates it, the judge has a sworn duty to follow it and that’s not generally recognized by the public.”
Fogel, a former U.S. District Court judge, amplified that theme during the event’s second panel with fellow retired jurists Carlos Moreno (California Supreme Court) and Deanell Reece Tacha (U.S. 10th Circuit Court of Appeals).
Years ago, while presiding over a case about California’s drug protocol for lethal injections, Fogel had a narrow issue before him: whether the protocol caused suffering that violated the 8th Amendment’s prohibition of cruel and unusual punishment.
Nevertheless, “it was seen by the public as a case about whether the death penalty was a good idea or not and whether the defendant deserved to die or not,” Fogel said. “I’m so grateful it happened before anyone had heard of social media. … Today, there would have been millions of responses and probably even death threats. I was still afraid to leave my house for several days, and the level of trauma I experienced took me awhile to work through.”
Moreno was the lone dissenter in the decision validating California’s Proposition 8, the 2008 ballot initiative that reinstated a ban on same-sex marriage. Sharing concerns about the growing notion that judges are predisposed to certain outcomes, he said, “Perception seems to control the day. People think judges are partisan and come to cases predisposed to rule a certain way. It’s inaccurate.”
Tacha asserted that judges have a key role “in modeling for the rest of society what civilized discourse and civilized disagreement looks like.” She also urged judges to be active in civic affairs and volunteer roles—and not retreat into an insulated life that some perceive as part of the position.
“For me, maybe the most important thing a judge must do is remain in constant contact with the community,” Tacha said. “It’s one of the things that keep us rooted. We’ve got to be identified with our communities along with our courts.”