Gates Public Service Law Speaker Series
Hon. Richard Paez
U.S. Court of Appeals for the Ninth Court
October 27, 2008
Well, good afternoon, everyone. My name is Michele Storms. I'm the
director of the Gates Public Service Law Program, and I'm so glad that
so many of you were able to join us for our speakers series this
afternoon. We are very pleased to be welcoming Judge Richard Paez from
the Ninth Circuit in California, and I think we're going to have a
really good time hearing about some of the really interesting and
amazing things he's done over a very rich public service related
But, I'm not the one doing the introduction, actually. As many of you
know, I love connections, either to be able to help facilitate them or
to just sort of celebrate them where they exist. And I first learned of
Judge Paez through Sarah Dunne, who's the litigation director at the
ACLU of Washington, because she clerked for him, and she told me about
him, and then, as I learned more about his career, I was really
interested in having him come to speak to our community.
So, since she is local, I am really happy to be able to introduce her. And she will introduce him.
just very briefly about Sarah: As I mentioned, she's the legal director
of the ACLU of Washington Foundation. And she supervises a legal docket
covering issues such as free speech, racial justice, religious freedom,
criminal justice, privacy, reproductive and women's rights, immigrant
rights, and gay rights. So, just a full panoply of those issues that
are really right out there out front that call for some effort.
did some private practice in Seattle before joining the ACLU of
Washington, and also was a trial attorney at the Educational
Opportunity section of the Civil Rights Division within the US
Department of Justice.
As I mentioned, she began her career
clerking for Judge Paez. And she's currently on the board of directors
for New Futures, a nonprofit organization serving families and children
in South King County, which is where she's from.
So, I'd like you to first welcome Sarah, who will help us to welcome Judge Paez. Thank you.
Good afternoon. And thank you, Michele, for that kind introduction.
I am thrilled to be here and absolutely honored to have the privilege
of introducing Judge Richard Paez to you all this afternoon. Given the
judge's commitment to public-interest lawyering and his long career in
public service, it's fitting and appropriate that he's here to talk as
part of the Gates Scholars Speakers Series.
Paez graduated from Brigham Young University back in 1969, and then
went on to Boalt Law School, where he graduated in 1972. And at that
time, he went to work immediately at California Rural Legal Assistance,
which was founded in 1966. So, at that time, it had only been in
existence for six years. And CRLA is a nonprofit organization that's
dedicated to providing free legal assistance and conducts community
outreach to the rural poor in California.
And at the time, and
when I asked Judge about it during my clerkship, that was just simply
the place to be. He just didn't give it a second thought that of course
he was going to go work there as a staff attorney. He left there and
then became a staff attorney at the Western Center on Law and Poverty
in Los Angeles, where he continued to advocate and litigate on behalf
of the impoverished communities in Los Angeles.
In 1977, he
became senior counsel at the Legal Aid Foundation of Los Angeles. And
that foundation was actually formed in 1929. And the goal, or I should
say the mission of that foundation, they've been a leader in bringing
equal access to justice across Southern California, and of course
provide legal assistance and community outreach to impoverished
communities all across Southern California.
At the time, when he
left the Legal Aid Foundation in 1981, he was director of litigation,
and he was also the acting executive director of the foundation.
left in 1981 because then-governor Jerry Brown appointed him to the
municipal court in Los Angeles. And I won't go into the long, tortured
history that is the Los Angeles court system - you can click on their
website and see; they've got it all documented. But, for our purposes,
for you to understand the equivalent, essentially he was a King County
superior court judge, but in the second-largest city in the country.
served on the municipal court for 13 years and was presiding judge in
1987, and during those 13 years he presided over many complex civil
cases and criminal cases.
It was in 1994 when President Clinton
tapped him for the federal district court, and Judge Paez became the
first Mexican-American to sit on that bench. That bench is the United
States District Court for the Central District of California, serving,
essentially, the area of Los Angeles.
In 1996, President Clinton
again tapped him, for the Ninth Circuit US Court of Appeals. He was
nominated in 1996, and the Senate Judiciary Committee recommended him
for confirmation in 1998. And despite that recommendation in 1998, the
judge actually wasn't confirmed until March of 2000. He waited
approximately 1506 days, which I think still stands, to this day, is
the longest wait of any judicial nominee in the US history, I think in
part based on his public-interest background.
And so, I'm
actually not aware... I may be wrong. I'm not aware of any other
federal judge that actually has the same public-interest background of
Judge Paez. That, and for many other reasons as well, he has served as
a role model for lawyers and law students for decades.
me, I had the opportunity and the great pleasure to spend a year
clerking for Judge Paez in the Central District, where I witnessed
firsthand his respect for the rule of law, the courtroom, and the legal
profession. I like to say that he taught me my respect for the room.
And also, I saw his belief put into practice of ensuring equal access
to justice for all, regardless of an individual's economic status.
was an important year for me in my development as a lawyer, and one
from which I took many lessons. And we are honored here today to have
Judge Paez to share some of those lessons with us. And so, without any
further ado, please welcome Judge Paez.
Honorable Judge Richard Paez:
Thank you, Sarah, for those kind remarks. It's very nice of you.
They're not all true, but I will gladly accept them. And Michelle,
thank you for inviting me to participate in the Gates Public Service
Speakers Series. It's a pleasure to be here.
I do visit Seattle every now and then, as part of my role in the Ninth
Circuit. We sit all over the western United States - in Alaska, Hawaii,
Seattle, Portland, Pasadena, San Francisco. We have cases from Arizona,
Nevada, Idaho, and Montana, not to mention Guam. So, we do get around.
Also, my wife is from the Northwest, and so we've had quite a
connection with the Seattle area. She's from about 100 miles north of
Seattle, up in Lindal.
with that, I'm glad to be here. It's a pleasure to be here. And I
admire the Gates Public Service Fellowship Program. It's terrific.
know how difficult it is for young graduating law students who are
interested in a career in public-interest law, or public law, to attain
a position. I know firsthand, from just talking with my law clerks and
my own family situation, that law students often leave law school with
a very substantial debt, and it's difficult to pursue a public-interest
career, where the salary, oftentimes, is less than inspiring. So, I do
admire the program, and I think it's a wonderful opportunity that the
Gates Foundation is providing.
With that, when I was asked to
participate in this series, I wasn't quite sure I wanted to do it. It's
difficult to find time to put together a lecture. And so when I said,
"Michelle, I'm really not interested in doing any kind of lecture," she
said, "Well, I really don't want you to do a lecture. That's really not
what I'm interested in." She said, "I'd like you to talk about... I'd
like you to share with the students a little bit about your career as a
Public Interest Lawyer, a Public Service Lawyer, both prior to becoming
a judge, and as a judge. Just to reflect on your experiences and to
share them with would-be lawyers who have a similar interest."
I told her again, I find it difficult to talk about my own personal
experience, my own background - nobody likes to really. I don't really
get a big kick out of tooting my own horn or anything like that. But, I
did think, after thinking about it and having several conversations
with her, I finally said, "OK. I'll do it." I do think that to the
extent you can learn from my past experience, and it can be some
prologue or some idea what the future might have for you, I'm happy to
share my experience with you. And I'll leave it at that.
question, though, is... The issue for me was, well, how should one
reflect back on their professional career? I don't consider my career
over yet, so I've got a ways to go. I may be in my 6th decade, but I
still have a ways to go and I plan on keeping busy for quite a long
time. But, to this point, I'm happy to look back and see what I can
share with you.
When I thought about what I might do this
afternoon, I sat down with my clerks. I have four law clerks and I meet
with them pretty regularly. I have lunch with them just about daily,
and I have an ongoing dialogue with them throughout the day. And I told
them what I wanted to do. I said, "Look, I'm about to meet with a group
of students, and they would like to hear a little bit about my
background. So, your task, I think, is to come up with a set of
questions that you would like to ask me, as if you were interviewing
When I interview law clerks every September, I have an
exchange with the law clerk applicant. Mainly I do all the questioning
at first, and then I give the applicant a chance to ask me questions
about my own professional experience, my own background. And Shawnt and
Sarah can talk about that, or... I don't remember if I asked them any
hard questions, or if they asked me hard questions. But, in any event,
I did ask my law clerks to put together a set of questions.
what's going to follow, what I'm going to do is go through those
questions with you. I think, that will touch fairly closely to what you
might be interested in. And I'll see if my own personal experience
might be of some help to you.
The typical question that I get,
and it comes very frequent when I give remarks - I sometimes go to high
schools and whatnot. The very first question I get is why did you want
to be a judge. It's a very basic kind of question. For this group, I
really can't answer that question without going back a few questions
earlier that I'm often asked.
And the first one is why did you
decide to go to Law School. Well, I don't come from a family of
lawyers. Not at all. I'm the only lawyer in my family, and I come from
a very large extended family. So, there was nothing in my family
background that suggested a law career might be something I might want
Growing up, we didn't have a lot, but we did have a
television. And there were two programs that I found absolutely
fascinating growing up as a kid. One, of course - I mean, I'm sure
you've seen and watched many time on late-night TV, but "Perry Mason."
Do you remember "Perry Mason?" Perry and Della and the DA and
everybody. It's a terrific show, and I just loved watching Perry Mason
work in the courtroom. And I just loved what he did. He saved... He
always got his client off in the courtroom with just drama unfolding
right in front of your eyes. In the courtroom, on the stands. It's a
terrific show. I found it particularly interesting.
That show ran
from about '57 to '66. And there was another program that was on about
the same time, and many of you probably don't remember this program,
but it was called "The Defenders." And it was a program that starred E.
G. Marshall. And it was a story about two lawyers, a father and a son.
And they took on all the difficult cases that you could possibly
imagine, everything that was contemporary at the time - abortion,
back-alley abortion, murders, every social issue of the day.
they always had difficult cases, and they lost many times. But
nevertheless, I found that program particularly interesting and
motivating. And I used to think, when I watched that program, boy,
those lawyers really have an interesting job. It's really fascinating
what they do. And they were helping the underdog. Always the loser they
And I was attracted to that. And I thought to
myself, "Gosh. Some day I might like to be a lawyer." And that thought
stayed with me all the way through high school. I left high school with
the idea of pursuing a law career. Went to college, and in college I
thought, "What am I going to do?" But, in the back of my mind, I always
thought about a law career. Fortunately, when I applied to Law School,
I did pretty well, and I got into Boalt, and I was very fortunate.
TV, for what it's worth - I know many of you don't like it, but I did
find that very motivating in my own sort of world looking at things.
And I thought a legal career would be it.
So, the question, then,
is what does that have to do with being a judge? I never thought about
being a judge when I was in high school. That was the furthest thing
from my mind as possible. It was a lawyer, I wanted to be a lawyer. I
wanted to work with people and I wanted to help people, and I wanted to
do good things.
My interest in becoming a judge occurred while I
was in Law School. Like many of you, I read the case books, and all
these case books that are on the tables, here. I read all those cases
with a those judges, their names in the case book. And I used to think
to myself, as I just read endless cases, it was amazing. Who is that
judge? Where does he come from? How did he get to this position? How
did he get there? What makes him think?
At that time, it was a
'him.' There were no, probably very few, I don't know if there were any
female judges at that time. This would have been in the early '70s, and
we were reading cases that were ancient at that time. And I used to
think who are these people? And in the back of my mind, I began to
think, "Well, you know. Some day. Maybe at the end of my profession as
a lawyer I might want to be a judge. That might be a good way to end my
career." And I thought that it would be a very good way to participate
in Public Service, and to do public good and to perform a vital role in
But, in Law School, it was the furthest... It was
way out there. I never really thought about it ever happening. I put it
aside. And my goal then, was what am I going to do when I graduate from
Law School. One of the questions that I always get is why did you
choose a career in pubic service law, Public Interest law? And at that
time, it wasn't called Public Interest law. We didn't... I never
heard... Public Interest law sort of emerged over time. But in 1972,
when I left Law School, there weren't many opportunities to pursue a
Public Interest career. You sort of had to go with Legal Aid programs,
which then became the Legal Services Corporation sponsored programs.
And they still exist today. But, at that time, the ACLU, Legal Aid,
Legal Services, a few other programs were about the only thing that was
And I thought after spending three years in Law
School, and I was trying to figure out what to do after Law School. The
only thing I really wanted to do was to pursue that idea that I had
acquired early on in my desire to go to Law School that I wanted to do
Public Service work. I sought out a position with California Rural
Legal Assistance. If I were successful in getting it, it would allow me
to take a job in rural California to with poor people in rural
California, primarily farm workers, which is a group of individuals I
was interested in working with at the time.
As luck would have
it, I got an offer to work for CRLA. They have offices throughout the
state of California from Marysville in the north to El Centro in the
south - Delano, Madera, Santa Maria, and other places. And you get a
choice. You could put in your bid for a particular office. They are
staffed by four attorneys at the time, a couple of Community Workers.
And I had a good friend who also wanted to work for CRLA, and we put in
a bid, of all places, for Delano, California. Does anybody know where
Delano, California is? There are a few people who know where Delano,
The office is actually in McFarland, California,
which is outside of Delano, California. This is in the San Joaquin
Valley off Highway 99. There was nobody there. It was a very rural spot
in California. And our office was, you opened the door and you went
outside, and right across the road was a rose farm. Just have lots of
rose farms in McFarland, California. It was amazing.
out in 1972 working in McFarland, California. It was a fascinating
experience. There were four of us that worked there. We had a Directing
Attorney and three Staff Attorneys. Our Directing Attorney had about
two years experience. And somehow or other we struggled along, but we
did some very interesting work. And I found the work very enjoyable. I
had terrific clients, people who needed help. Who needed Legal
Services, needed the assistance of a lawyer. They couldn't afford to
pay for a lawyer at that time.
And Pro Bono, firm was not very
extensive at the time. It existed, but it was not as organized as it is
today. So, what we did was very important for a lot of people, and we
helped a lot of people. I enjoyed the work very much, and I decided I
was going to pursue it. So, I moved on after about two years, a little
over two years, we moved on.
By that time I was married, and we
moved on to Los Angeles, and I took a job with the Western Center of
Law and Poverty, which is a backup program providing Legal Services for
what then we called impact cases. And I guess that term is still around
today. I guess, you hear a lot of talk about law reform or impact
litigation that took place. Western Center did a lot of that. They
worked with Staff Attorneys in Field Programs, and worked on
complicated cases and did a lot of Federal Court work and Appellate
work, and that's where I got my taste for the Federal Courts, was
working at the Western Center of Law and Poverty.
I also moved on
from there on to the Legal Aid Foundation of Los Angeles. And again, we
provided a lot of day to day service for a lot of people. By that time,
I had moved into more of an administrative role, and had worked a lot,
worked with younger lawyers helping them get started and handling their
But, the sum and substance of all of it is that I started
out with the idea that I wanted to do Legal Services work. I wasn't
sure how I was going to like it, I wasn't sure how many years I would
spend doing it, but it turned out that I found it quite rewarding on a
personal level. And I can't imagine doing anything different than what
I did. It was very interesting; it was very challenging, and very
rewarding in a lot of ways. And I wanted to continue with that.
of the other questions that comes up is after so many years working in
a Legal Aid environment, essentially working as a poverty law lawyer
for about eight and a half years, the question is why did you leave if
you liked it so much. Why did you bail out, leave it behind? And this
has to do a little with personal circumstances, and also with the fact
that at that time Ronald Regan had become President of the United
Ronald Regan didn't like the Legal Services Corporation.
And President Regan wanted to defund it. And we knew when President
Regan took office, that there was going to be an effort to defund Legal
Services. And sure enough, when President Regan took office, his
recommendation was to cut the entire budget for the Legal Services
At that time, I was the Acting Executive Director, and I
didn't want to have any part in dismantling what we had built up. I had
decided that it was time to let somebody else run the place, and I just
did not want to participate in the difficult task of cutting back our
regional offices, laying off lawyers and doing all that you have to do
in order to meet your budget.
I wanted to continue on with a
Public Service career, and I wanted to do something meaningful and
helpful. There were several options that were available - 1) The Pubic
Defender's office, 2) The DA's office, 3) The Attorney General's
office, and 4) Judgeship.
The latter seemed the best opportunity
for me, and the most interesting of all of them. I didn't really have
much of a background in Criminal Law, I never had had any real - Other
than watching "Perry Mason," I really had no experience with Criminal
Law, didn't know quite what to happen. Just wasn't there.
Judgeship sounded like a pretty interesting opportunity. You're going
to find, when you leave Law School and you meet people along the way,
you don't know. Later on in their career they may come back, either to
help you, or make life difficult for you.
Fortunately, I met a few good people who, when I thought it was time to
leave Legal Services, I had some good friends who were willing to help
me. They just happened to be in the right position at the right time.
One was the Legal Affairs Secretary for then Governor Jerry Brown. When
I made it known that I was interested in a Judgeship, it took a while,
but eventually it happened. So when I was 33, I was given an
appointment to the Los Angeles Municipal Court.
I consider myself very fortunate to have received that appointment, and
as I said earlier, opportunity comes at different times in your life.
And you have to decide are you going to take this opportunity or are
you wait. Are you going to wait for a better opportunity? And for me,
it was an opportunity that I really couldn't turn down because I had
made a decision that I needed to leave. And it was something I had
aspired to, but much later in my career. So I took it. And I've never
looked back, really. It's been an opportunity to be part of the public
service. I consider being a judge to be just part of that. It is to
some extent, from my perspective after all theses years, it's sort of
like the quintessential part of performing public services.
when you stop and think about the role of a judge, judge, especially at
the trial court level, and especially at the level when I started out,
you actually have the litigants right there in front of you. And they
get your full attention for however much time it takes to resolve their
case. And what a better form to resolve disputes, than to have people
come into court and to have somebody who cares about them to deal with
their problem and to resolve their problem right there in the courtroom.
I thought that would be... And I thought that I had the capability, and
the interest, and the desire to be fair and impartial. So, I have not
really looked back. And I've served as a state court judge for 13
years, doing everything that a state court judge does - preliminary
hearings, or misdemeanor arraignments, superior court trials. I sat on
assignment with the State Court of Appeal - was my first exposure to
appellate court work.
And I remained on the state court bench for
13 years. I had a great time. It was a wonderful experience. I did
trial, one trial after another, after another. That's all we did was
trials. All right, one case, take it to jury, finish the case in a
couple of days - three or four days - and put them in to deliberate.
And they'd send you another trial. The same thing and it's just all you
did in Los Angeles is one trial after another, after another.
I had to start out doing criminal law. I had no experience doing
criminal law. So, I had to learn criminal law. So, the whole experience
getting started as a judge was very interesting, challenging,
enlightening, never a dull day. And I thought it was terrific.
question then becomes - Well, if you like being a state court judge so
much, why did you leave the state court bench and move on to the
federal court bench? Well, a lawyer - I thought that working at the
federal court and watching the federal court judges work, was just
absolutely fascinating. I couldn't get over the quality of the work
produced by federal judges. I just thought it was amazing and how well
prepared they were, when you appeared in front of a federal judge.
[laughs] Little did I know - at that time, as a lawyer - little did I
know what really went on in the back of the courtroom. I had no idea.
I was ready for a change. I thought if I had a opportunity, I would try
and go, move on to the federal bench. And again, as chance would have
it, and as luck would have it, Senator Feinstein was elected in 1992 -
I believe it was - a Democrat. And President Clinton was elected in
1994. And Senator Boxer was elected the same year in 1994.
they were very open to entertaining applications for people who are
interested. And I had served 13 years as a state court judge. And
again, you know, you need a few friends to help you out. And they came
through for me, so that I got a recommendation from Senator Barbara
Boxer to the President, President Clinton, for an appointment to the
United Stated District Court in Los Angeles.
Sarah was correct. I
was the first Mexican American appointed to that bench in all of its
history, which was a very significant honor for me. I served on the
District Court for six years. And then along the way, I got a call from
the President's office, and was asked if I'd be interested in serving
on the United Stated Court of Appeals for the Ninth Circuit. And, as
luck would have it, after four years - and that's a whole separate
topic of what the nomination appointment process - I was finally
confirmed in 2000.
The work as a circuit judge - one of the
questions I often get, the list of questions that the clerks put
together for me is, 'Well, how do you like working as an appellate
court judge as opposed to a trial court judge?' - Because, I was
basically a trial court judge for about 19 years - And it's different.
[laughs] I don't see people anymore. It's very isolating. And my daily
routine is I talk with my law clerks all day long. And we see lawyers
once a month when we hear argument.
But nonetheless, the work
that we do as appellate court judges is tremendously interesting. It's
varied, never any dull moments with the cases. Every case is important.
And, behind every case are real people with real problems that are
looking for the courts to solve their problems for them. And so, it's
an amazing opportunity to be part of that process and to be performing
a truly vital function in our political scheme that we have.
question that I get a lot is, 'Well, you were a legal services lawyer
for all those years. How do you deal with instances where you have to
reach a result in a case where you may disagree with it, maybe unhappy
with the outcome?' That's a good question. And, it's... No. There's no
question that many times we make a decision that we don't like. And you
wish you could do something different.
In today's world, there
are a lot of immigration cases that we see. The immigration law has
taken a turn at this time where with the reforms that were instituted
in 1996, the immigration format made really significant changes. And
the government really... the Congress really cracked down on
immigrants. And there's a big process that it's undertaken especially
after 9/11 to move people out of the country.
In that process,
though, in the government's desire to move a lot of people out, they
overlook the fact that there are many people who are here who, you
know, they came with their parents when they were little babies, the
children were born here. And they moved the parents out and returned
them back to their home country. And they break up families.
it's very frustrating to see these cases. But, when you're dealing
with... When you're reviewing administrative agency determinations,
there's only a certain standard. There are very tight standard that you
have to apply. So oftentimes, the result in these cases is not very
But, nonetheless, when you take on a position like I
have today, you take an oath to uphold the law and apply it. And you
may not like what you have to do. But, oftentimes, it's something that,
unfortunately, you just do what the law tells you, you have to do. And
that's about it.
And I've learned to live with that over the
years. I don't lose sleep over my cases. Work hard, try and read all
the cases, trying to make sure I understand the legal principles that
are involved, try to take the advice - the good advice - from my law
clerks. I keep pointing over here to two, I should mention that Shawn
Miller's here as well. He's one of my law clerks and now works up here
in the Seattle area.
The law clerks provide a tremendous amount
of ground work and advice that we are the beneficiaries of. Think about
working with the law clerks gives you an opportunity to discuss the
case and to think about all the issues that are involved. Make sure you
haven't missed something, make sure that we've covered all the cases
and we're on point and to try and reach a just result with all of that
I'm pretty confident when we dispose of a case that
we've considered everything and that we thought through all the
ramifications of what we're doing, both legally and as it impacts the
One other question that I often get is what are the most
memorable or disappointing cases, outcomes that I've worked on; there
are a couple. Today at lunch I talked about one case that stands out in
my mind when I was a district court judge. A case called Doe versus
Unical, which was an international human rights case involving The
Alien Tort Claims Act, where we held that Burmese refugees who were in
Thailand could bring a claim against Unical Corporation for it's
involvement in the construction of a pipeline across Burma from the
Andaman Sea into Thailand.
The claim was that the consortium that
was built, that was designed to build this pipeline included Slork,
which was the governing Junta in Burma. Allegation was that the Juntas
involvement was to basically remove the people who were in the path of
the pipeline by destroying their villages, enslaving the local people
to work on the pipeline. These lawyers brought this claim under the
Alien Tort Claims Act and filed a case in Los Angeles because that was
the headquarters of Unical.
I held in a motion, ruling on a
motion to dismiss under 12B6 that the case could go forward. I had no
idea at the time when I did that, when we handed down that ruling, that
it would have such a tremendous impact in the business community. I
just tried to do what I thought was the right thing. As it turned out,
the academics who study international law and international human
relations, human rights, just thought that was tremendous ruling
because it imposed a certain ethic, a sense of ethics for American
corporations working in foreign countries.
On the other hand, the
American business community thought it was outrageous because I had
handed down a decision that said an American company doing work in a
foreign country could be held liable by people in the foreign country
in an American court in the United States.
That case came, later
on became one of the issues in my nomination confirmation process as I
tried to move up to the Ninth Circuit.
Another case that I
consider to be one of my disappointments, and that's not so much what
we did, I think we did the right thing and I still believe that to this
day, but it was a case called Andradi versus Lockear. Now it was better
known today as Lockear versus Andradi, which was, and you may have some
exposure to this case if you're in fed courts or habeas law or criminal
sentencing I guess. It's a case where the Supreme Court held that a
sentence, Mr. Andradi received a sentence of 50 years under
California's three strikes law.
He had stolen, he had had two
prior serious felonies under California law, he then obtained two
misdemeanors convictions and he also had a prior misdemeanor
conviction. Under California law, they could elevate those two
misdemeanors with prior convictions into felonies. They became the
third strikes, the third and fourth strikes.
The superior court
judge in Los Angeles - no, I think it was in San Bernardino County,
imposed a 50 year sentence on Mr. Andradi who at the time was about 37
or 38 something like that.
We held that that sentence was cruel
and unusual under the eighth amendment. That it was extremely
disproportionate. The trouble is we were operating under the AEDPA, the
Anti Terrorism Effective Death Penalty Act, which imposed a new
standard of review for habeas proceedings. The case went to the United
States Supreme Court.
We were reversed five/four to my
disappointment, but the Supreme Court has the final say and we need to
accept what they say. Doesn't mean I can't believe, continue to believe
that we were right. The Supreme Court does have the last word and
that's the law.
They said that, the Supreme Court as I recall,
basically said that under AEDPA the law of eighth amendment
disproportionality analysis was not clearing established therefore,
because it was not clearly established at the time the state court
upheld Mr. Andradi's sentence, we had no business stepping in under
Anti Terrorism Death Penalty Act and setting aside that sentence.
was one that was a disappointment, but all my cases are important. I
just mention those two, two that stand out and I'm often asked about
those two cases.
Another question that I often get is about law
clerks. I talked a little bit this, I had some lunch this afternoon
with law clerks and I'm very fortunate to have two of my law clerks
here today. Working with law clerks has been one of the beneficial
things about being a federal judge.
I had no idea what law clerks
at the time I became a federal judge. I knew, I had heard about them.
When I mentioned earlier that I was always very impressed with what the
work of the federal district court judge is. I didn't really know that
they had this team of law clerks back in chambers who really helped
them pump out all that work that they do and really help look very good
when they come out there on the bench.
Though I have four law
clerks, they do a lot of the prep work. They do bench memorandum, they
work up the cases for me, they provide, they gather, they go through
all the material, they call it out, they present it to me in an easy
way to read. All the cases, relevant cases are digested and put
together for me.
I have the opportunity to sit and talk with them
about [laughs] their case. They do workups on the draft opinions, the
draft memos and am able to do so much with the help of the law clerks.
It's amazing and I'm amazed at the amount of work that they put in and
the hours that they devote to it. I'm told that the benefits are
invaluable at the end of that year.
My clerks are only with me
for a year. Every September, I go through the process all over again of
hiring and training, especially in the fall. Four new law clerks, it's
a fabulous... I find it to be a very interesting experience. A real
side benefit to being a federal judge.
The last question that I
often get, and this mainly comes from law clerks who are with me
throughout the year and the lunch sessions that I have with them. We
talk about their careers and their futures. I often get calls from them
about what they should do, what they might do. Thinking about doing
this, they thinking about doing that, do I have any advice?
question that my law clerks posed to me to try and answer for you is,
"What advice might I give to law student who's interested in pursuing a
public service career?" I might say this - I certainly don't think that
my own career is any model for anybody, I never really thought of
myself of being a role model to anybody.
But, based on my own experience, I would just offer this:
Don't be discouraged; there are opportunities out there. Be open and
think about it broadly. If you think about you only want to work in one
place, one organization in one city, it might be a little tough. You
have to be willing to think about broader opportunities, and be
2) Talk to people. There are a lot of people that have
been through this and have learned from their own experience about what
works and what might not work.
3) If you find yourself having to
go to a law firm, there certainly is nothing wrong with that, because
many students leave law school these days with a tremendous debt, and
yet they still want to do some public interest, public service work.
Many firms today - and I'm certainly no expert in the firm line,
because I've never participated in a firm, and I'm not quite sure how
they all do this.
But, my understanding, from what I'm told, from
the law clerks and from other people, is that there is a great deal of
interest these days by especially the big firms, to devote time and
resources to Pro Bono work.
And so, if you find yourselves in a
law firm, I would say this: Hold their feet to the fire. If they
offered you the opportunity to do Pro Bono work, make sure they give
you that opportunity. Take advantage of it. You can do a lot of good in
a firm. They have tremendous resources and they're willing to spend it.
And they're willing to help people in need.
There are many
different programs you can take advantage of through Pro Bono efforts
in the firms. In our own court, we are always looking for Pro Bono
lawyers to handle cases for us, especially habeas cases, immigration
cases, and civil rights cases. And what we do is for the lawyer who
litigates the case in front of us, we guarantee them an opportunity to
have an oral argument in front of the 9th Circuit Panel. We do not
submit the case. Through a Pro bono effort, if you take on the case,
you're guaranteed an oral argument in the 9th Circuit. And it's our way
of encouraging the firms to let their young lawyers, young associates,
do Pro Bono work, and at the same time, get some very good experience
both in doing the briefing and in appearing in front of the court.
with that, I wanted to leave some time for questions. There's about 10
minutes left and I just kind of want to make sure that you have a
chance to ask me anything you want that I haven't covered. I talked to
some students from lunch, and they may have some questions they would
like to ask me. But, with that, let's see. We've got a few questions.
Yeah. I have two questions. What's an impact case? And solutions...
[laughs] Well, it's a very... The first question, what's an impact
case. Back when I was working in legal services, we referred to that,
generally, as Class Action Litigation. There were a number of cases
that were litigated, and still litigated today, where you bring a case
on behalf of a number of people who are affected in the same way. So,
you bring a Class Action and you attempt to correct the problem that
you believe exists, that will have the benefit on number of people. So,
that's what I meant by impact litigation.
The social problems in Los Angeles haven't... I'm certainly in no
position to offer any solution to what goes on in Los Angeles. It's a
diverse community, it's a wonderful community. There are all kinds of
problems in Los Angeles, but it's home, and it's a good place.
other questions? Now's your chance. It can't be very often that you get
a Federal Judge here to visit with you. Ask anything.
Yes. In fact, it was my one... It was an immigration case, an alien
rights case. It was a case of a young fellow, he was an immigrant, a
lawful resident alien in Los Angeles, and he had applied for a position
as a Probation Officer with the LA County Probation Department. His
name was Chavez, his name was Jose Chavez Soledo. And he was turned
down because, as a Probation Officer, you had to be a United States
citizen, and he didn't think that was fair. He didn't think that was
right because he had attended school in Los Angeles, he had a degree
from one of the local colleges. He didn't understand why he should be
disqualified from serving as a Probation Officer in the Los Angeles
It turned out he wasn't the only one, there were others. So, back in, I
forget when it was, I was at the Western Center on Law and Poverty, and
we filed a law suit in Federal District Court. And at that time, there
were what we called Three-Judge District Courts. There was a Circuit
Judge, and then two District Court Judges. They did away with the
Three-Judge Courts years ago. They convened a Three-Judge District
Court if you were challenging a state statute, and it turned out Mr.
Chavez Soledo's exclusion from the Probation Department was based on
the state statute.
we filed a case in District Court in Los Angeles, and drew a
Three-Judge Pane, and the claim was that to deny him a position as a
Probation Officer on the ground that he was an alien, was a violation
of his equal protection rights. We took that case through the
Three-Judge Panel and we prevailed. It went to the Supreme Court and it
was reversed and remanded back in light of a decision the court had
made in a case out of New York, I forget, involving Social Workers, I
think. Came back to the Three-Judge Panel, we prevailed again, two to
one that time.
And Mr. Chaves Soledo was with us this whole way,
sort of participating in al the proceedings and watching with great
fascination his case work it's way through the Federal Court System.
The second time we prevailed before the Three-Judge Court, it was again
appealed to the US Supreme Court on direct review. In those days, you
had a direct review from the Three-Judge Panel. Went to the Supreme
Court, and about that same time I got my appointment to the mini court
bench, so I had to pass the case off to another lawyer from the Western
I think, unfortunately, there was a change in the Court.
Justice O' Connor took the bench. And we thought, at the time, when the
case first went to the Supreme Court that we would prevail. But, it
turned out that when Justice O'Connor got there, we lost 5-4, with
Justice O'Connor making the vote. I was extremely disappointed to tell
Mr. Chavez Soledo that all his willingness to stand up and be counted,
and to stick with the case all the way through the court system, all
the way to the US Supreme Court, that he couldn't, at least, until he
became a citizen, couldn't be a County Probation Officer.
know if any of you know what a County Probation Officer does. But, I
don't know, I still don't know why you have to be a citizen to be a
probation officer. The theory is that it's, their central functions,
the court functions of a probation officer really can't be performed by
anybody unless they have attained US citizenship status. I leave that
with you as a thought.
Any other questions? Yes?
Well, there are several things. The nature of the work is such that it
tends to be self-selecting, because there is so much research and
writing that usually students who have that kind of interest are the
ones that apply for the job. So, we look for academic performance, and
usually you get students with that kind of background, who have an
interest in the academic side of the law. And who, maybe, have some
journal work. They don't have to have Law Review work, but at least
have worked with the Blue Book and know how to Blue Book and understand
all the citations rules and all of that.
Have good experience. Done some writing, doesn't necessarily have to be
a Law Review article, but have had an opportunity to do some heavy
thinking and writing. And then, I look for students that I think I
might like to work with, and students who might have kind of a broader
perspective on the world. And who might be interested in pursuing many
different things, other than just heading to the law firms. Certainly
not a requirement, and I have many law clerks today, former law clerks
today who are in part of the firms. But, I also have many others who
are doing different things.
kind of look for a broad variety of young people, who are going to
pursue different things. When I was going through the nomination
process, I was labeled at some point, somebody labeled me a
non-traditional judge. So, in some sense, I'm looking for
non-traditional law clerks. Any other questions?
Yes, I do.
Yeah. I really can't answer that directly. I do know they have the same
problems. There's greater community, there's greater stability in some
of the communities, so they're more focused. They're focused a lot on
the local communities, in helping the family settle, and take
educational opportunities and whatnot. There's less the iterant stream
that used to come all the way up here to Washington. But, I'm not
really in tune with what are their primary issues at CLRA these days.
It's great, yeah.
I don't have much direct contact with immigration judges. I've met them
and I know a few in Los Angeles. But I have very little contact with
them. In the court, after a Three-Judge Panel opinion is issued,
there's a process called the Unbound Process where an off-panel judge
can take issue with the opinion of the panel. And it's a way in which
we vet the case internally among ourselves, and there's an exchange of
memos and views about the Three-Judge Panel's opinion. And there is a
lot of debate on key issue that arise.
For example, we had a series of cases after ARRIVA was passed in order
to settle some of the key issues that were involved in ARRIVA. ARRIVA
was a jurisdictional stripping statute. It took away a lot of our
jurisdictional authority to review certain cases from the BIA. But,
there is a healthy debate. There is. The biggest problem with the
immigration field right now, and we're sort of working our way through
all these cases.
the Attorney General before Attorney General Gonzales, Ashcroft -
Ashcroft essentially did away with the BIA, the Board of Immigration
Appeals by downsizing it from about 21 to about 11 BIA Judges when they
had just a ton of cases. And they took all these cases, and what they
said, we need to move them through the system. We're going to chop off
about 10 or so BIA, Board of Immigration Appeal Judges, and we're going
to allow you to issue single decisions.
There's a term for it, I
forget. It's slipping my mind right now. But, one judge on the BIA
could affirm the IJA's decision. So, the result of that was that they
just passed through a ton of cases through the BIA, and they gave
virtually no filtering culling out the important issues. And they just
passed them on to the Ninth Circuit and other Courts of Appeals around
the country. And our docket of immigration appeals just went through
And we're coming out of that now, and one of the things
Attorney General Gonzales did was to bring some stability. He added a
few more immigration judges to the Board of Immigration Appeals. He
hired more immigration judges around the country. But, there is a real
need to take a hard look at the immigration system, and to figure out a
way to make it a much more neutral court and a more thorough process
for vetting the cases before they get to us. Yes?
[laughs] We just slot whatever case comes. And then if the outcome of
that case is one that's questionable, that some off-panel judge or
judges think is questionable, then we invoke the unbound process. And
then, we have what's called a limited unbound, where eleven judges will
then take a look at that case, and try to come up with a decision that
ideally or theoretically is representative of the whole court. So,
that's how that works. There was another question.
Well, yes and no. He added positions, and I gather that some of these
people who were put through that process were part of that. That's what
I've read in the paper. I have no idea. When he added positions to the
BIA, they just took existing immigration judges and elevated them. I
think, he added about three or four to the BIA, because the BIA
couldn't function. They had so many cases, they have so many cases to
move through the system. They can't, they just needed more resources.
It's a terrible situation. Any other?
Well, look. It was great to be here. Thank you so much for inviting me.
I do hope that some of you who might be interested in a Public Service
Career. And I think of public service as more than just working for the
Legal Aid Foundation of Los Angeles or the Northwest Immigrant Right
Project here in Seattle. They're a terrific organization, by the way.
They've appeared in front of us a number of times. It's a good thing.
It's good work.
There's good work out there, Public Interest, Public Service. Public
Defender, DA, US Attorney, Federal Public Defenders, County Council,
State Attorney General. The US Department of Justice back in DC. A
large, large, there are many opportunities out there, and you just have
to think creatively for what you want to do. Find something you'll be
passionate about, and have fun. You're in for a good ride.
Transcription by CastingWords