Episode 16: Therese M. Stewart
Presiding Justice, California Court of Appeal, First Appellate District, Division Two
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Show Notes
Therese M. Stewart, former Associate Justice and now Presiding Justice of the California Court of Appeal, First Appellate District, Division Two, chats with MC Sungaila about moving from a high-profile advocacy career to the bench, efforts to diversify the courts, and collaborating with her judicial colleagues. She provides an in-depth exploration of her work prior to the bench in the area of LGBT rights, both in private practice and at the City Attorney's Office. Tune in for an enlightening and inspiring discussion with valuable insights you can use in your practice.
Relevant episode links:
California Court of Appeal First Appellate District, National Center for Lesbian Rights, GLAD, The Gift of Rain, The Garden of Evening Mists, All the Light We Cannot See, The US Supreme Court About Justice Therese M. Stewart:
Justice Therese Stewart
Justice Stewart was appointed to the First Appellate District in June 2014 by Governor Edmund G. Brown, Jr. She serves as an Associate Justice in Division Two.
Before joining the Court, Justice Stewart served for 12 years as the Chief Deputy City Attorney for the City and County of San Francisco where she oversaw the City’s diverse litigation practice. In that capacity, she managed, under the City Attorney, a law office of about 300 employees, including about 200 attorneys. During her tenure as Chief Deputy, she also litigated a number of groundbreaking cases on behalf of the City, including In re Marriage Cases and Perry v. Brown.
Justice Stewart began her career as an associate at the San Francisco law firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, where she litigated a wide range of business cases at the trial and appellate level. She spent the first 20 years of her career at Howard, Rice, becoming a partner in 1988.
Justice Stewart also served on the Board and ultimately as President of the Bar Association of San Francisco in the 1990s, co-founding the School-To-College program, which mentors San Francisco youth with the goal of enabling them to obtain a college education. She has served as well on the Board of Directors of the Legal Aid Society-Employment Law Center, Bay Area Lawyers for Individual Freedom, the Historical Society of the U.S. District Court for the Northern District of California, the American Bar Association’s Sexual Orientation and Gender Identity Commission, the Northern District of California Delegation to the Ninth Circuit, and various Bar Association of San Francisco and California State Bar Committees. From 2007 through 2009, she served on the Public Information and Education Task Force of the Judicial Council’s Commission on Impartial Courts.
The professional and community activities Justice Stewart has engaged in since joining the bench including serving as a member of the CJER Appellate Practice Curriculum Committee, and chair of its Appellate Justice Orientation (AJO) workgroup; an AJO faculty member; co-chair of the California Judges Association’s LGBT Judges Committee, aiding the Governor’s appointments secretary in identifying and vetting LGBT candidates for judicial office; a liaison for the First Appellate District to the American Bar Association’s Judicial Intern Opportunity Program; a liaison for the First Appellate District to the Bar Association of San Francisco Appellate Practice Committee, organizing and serving as faculty for educational and bench-bar events. Justice Stewart has also been a speaker at events sponsored by the California Judges Association, the Litigation Section of the American Bar Association, the California Academy of Appellate Lawyers, the Bar Association of San Francisco and the Alameda County Bar Association.
Justice Stewart received her B.A. with distinction from Cornell University in 1978, and graduated Order of the Coif at Boalt, U.C. Berkeley School of Law in 1981. She clerked for Judge Phyllis A. Kravitch on the Eleventh Circuit from 1981 to 1982. Justice Stewart is a third generation San Franciscan and lives with her wife Carole Scagnetti in San Francisco. Their daughter, Natasha, is a public relations professional and independent filmmaker.
Transcript
I am pleased to have join the show Justice Therese Stewart from the California Court of Appeal First Appellate District in San Francisco. Justice Stewart, welcome.
Thank you for having me.
Thank you so much for joining. You have such a fascinating career prior to the bench and also such a strong reputation on the bench. I wanted to start first with how you came to be interested in practicing law, going to law school, or thinking that was something you would want to do.
I didn't have lawyers in my family. I don't know exactly how I came up with it. I do remember being young. I was in first grade when President Kennedy was killed. Somewhere around that time, a teacher asked what I wanted to be when I grew up. I said a congressman. I had this picture of myself in a suit with a briefcase. I don't know whether that was the origin of the concept but it is the closest that I can come to when I first thought of the idea. When I got a little older, I was acting in school. I liked the performance. I did a lot of singing as well.
When I was in high school, my father used to take me backpacking. I was interested in the preservation of the environment and I thought, “I'm going to be an environmental lawyer.” It grew from there. I never became an environmental lawyer because, first of all, it was very tough to get on the pro-environment side. It also was pretty dry stuff. I decided I would go practice at a law firm, learn how to practice, and then figure out what exactly I wanted to do. That is how it unfolded.
I initially had a dream that I was going to be an international lawyer. I was not sure what that was but I thought that would be pretty cool. I never ended up doing anything like that because when I went to law school, I realized it was not what I thought it was. There are a bunch of treaties and things like that. I did end up doing some human rights work internationally so there was something there. Sometimes, the thing that gets you into the law turns out in reality to be, “Maybe that is not something for me.”
I was the Editor in Chief of Ecology Law Quarterly at Berkeley when I was there. I edited a lot of articles on international whaling and agricultural land preservation. While the editing was fun, there is a lot of administrative law and fairly tedious aspects of environmental law. I still thought about it a number of times in my career. On the firm side, it would be on the wrong side so I certainly didn't want to go, or at least in my view then.
You went into private practice with quite a broader view or thought of what litigation you might do.
I went to the firm with the idea of learning to be a lawyer and litigator. I tried some cases. It was a business law firm and that is what I did. I didn't think I would stay all that long. I thought it was the beginning of a career but I ended up enjoying litigation. I did that for about twenty years before I went into public practice. I was learning and enjoying what I was doing. The firm was progressive. They asked you before you had to work on something that might be hard for you because of your beliefs. I never had clients that were people I couldn't sympathize with.
I'm assuming you had some good mentors who helped you get opportunities and training when you were at the firm. It sounds like a lot of people go to law firms and say, “I will do this for a few years.” Often, that is what people end up doing instead of staying. I'm trying to figure out partly what made you say that you kept learning, and there was that.
I did have great mentors. A couple of them, in particular, are Jerry Falk and Ken Hausman, who had different practices. They were encouraging and eager to have me succeed. They supported me in all the ways that you would hope. Early on, I remember thinking, “I would rather be a bike messenger.” That was early on when you are getting used to being in an office all day, doing a lot of research and writing, and feeling like you are not getting in the courtroom.
Mostly, it was later in my career where I started thinking about, “Is this what I want to do?” Exploring working for what was then called the Sierra Club Legal Defense Fund and the Antitrust Division of the DOJ. I had opportunities but I ended up weighing them against the pros and cons and being happy to stay where I was, which is something worth doing in your career. Rather than be frustrated with the things you don't like and feel stuck, if you explore something else, you realize, “Sometimes, something else has attractive qualities but it also has its downsides.” It makes you go through a process where you make a choice if you are staying where you are staying.
That can enhance how you feel about it, even with the frustrations that go with it, like the long hours and all of that stuff. It was not until shy of twenty years that I left the firm and went to the City Attorney's Office to be the Chief Deputy. At that point, I felt like I needed to re-pot. It was a great opportunity. I had worked with the office pro bono on some significant cases. There was a new City Attorney coming in. I made that transition but it took me a while.
That is good advice to tangibly and practically consider options. Sometimes you say, “Nothing is perfect. There is something going on here that is not perfect. I'm disgruntled at some point. I start imagining other things that I could do.” As long as those things are imaginary or in your imagination, they are going to be perfect. When you start balancing them and saying, “If I had the choice, would I make that choice?” Sometimes in doing that, you realize, “There are pros and cons with everything but I'm balanced. This works.” You have a little less resentment of the things that you don't like about it when you do that.
I thought about DOJ. They made me an offer. I was so grateful but you couldn't send a letter out without somebody else approving it and file a complaint without it going to Washington. I have been a partner at a law firm for all these years, and I was like, “My autonomy means a whole lot to me.” Sometimes, we hear that attrition is much greater and people have shorter gigs. I don't know that it will necessarily go back the other way because, like other kinds of businesses, law firms are not as loyal to their people and the people, therefore, are not as loyal to them. That is life in the world.
That said, I still wonder when somebody hops around every couple of years, whether they are carefully looking at their options or jumping from one thing to the next because of some dissatisfaction without realizing that every gig has its downsides. There is some value to looking at the part of yourself that is frustrated, why, and not attributing the dissatisfaction entirely to things and people outside yourself.
You can make some bad choices or choices that are equally short-lived if you just keep focusing outward.
You can make some bad choices or some choices that are equally short-lived if you keep focusing outward. The truth is I have never been anywhere that didn't have somebody annoying or difficult. Human beings are human beings no matter where you go. I also recognize that I have my shortcomings and can be annoying. It is good to take your time about those things.
In the process, prioritize what is important to you. I don't think you can do that until you think about all of the processes or aspects of the job like that autonomy point with regard to being a partner in a law firm. There is a lot over which you have control without needing to pass it through a whole phalanx of review. Some people like that.
Some people get used to it.
After weighing the pros and cons of other opportunities, you chose to go to the City Attorney's office. What made that a good fit for you at that point?
I am working on some pro bono matters that were interesting. It was pre-marriage equality efforts but the city had this fairly groundbreaking ordinance that said if you did business with the city, you had to provide domestic partner benefits to employees. They were promptly sued and I volunteered to work on that because it was something I cared about. It was pro bono. I got to know folks in the office and saw the quality of work that they did was very high.
The number of cases they had that went to appellate courts and even the US Supreme Court far exceeded what you would typically see in private practice. I didn't completely realize that until after I was there but the breadth of the practice was so much greater. I thought my business litigation practice was quite broad but towards civil rights. It is on the usually wrong side, according to my view at that time, meaning defending public officials, police officers, and everything in between like lease disputes. The city is a city and county in San Francisco.
There are both traditional government things but also a whole lot else. It was a great expansion because I went in some number twos. It is the two of us. I saw everything and it was super interesting. Also, one of the craziest things was when you are in business practice, you think of everything in economic terms even though clients sometimes have feelings more than we like to acknowledge and even corporate clients. It is not the entity but the people.
At least as a lawyer, you are largely evaluating the pros and cons from a risk assessment economics-based thinking, whereas, at the city, it is politics. Many things are about money but many things are not. You can advise the client, “We should do something different if you want to push this policy than the way you are framing it because it is not likely to survive.” They can proceed to ignore you and do what they want to do. You will defend it anyway. You never know what you are going to come into. One day, we come in. Late in the day, a tiger kills a teenager.
It was alleged that these three teenagers had gone and taunted the tiger and the tiger got out of its enclosure. We have this lawsuit, although it was mostly being handled by insurance defense counsel. At the same time, the politicals are having a hearing on the safety of the zoo. You are dealing with clients who have political interests wanting to explore and legitimately so at the same time. If you were in private practice, you would be like, “Be quiet. Let's not talk about it. Let's defend this lawsuit.” It is a different world. I got a different, broader, and further education.
That is in terms of the interests at stake and what the client is interested in on litigation and doing their job, which is through elected politicians. There are certain things they have to do.
Sometimes, the employees who are responsible for things that result in a lawsuit or at least allegedly responsible are not as cooperative. In private practice, you tell the general counsel or whoever it is you are dealing with at the high level, “I want to witness who is going to be cooperative. Money is at stake. The person is getting paid and they are going to cooperate.” It doesn't mean they will always testify the way you want them to because the facts are the facts. They are not going to refuse to meet with you and pop off in a deposition without any preparation. In certain cases, that can happen.
In those ways, it was a challenge after so many years in practice. It is different and it changed. In the category of saying you want to always be learning, you are learning new things from that position.
I never specialized, even when I was doing business litigation. I did a broad range of things. Part of it is my personal interest has always been learning new things and getting exposed to new things, which interests me more than spending a lot of time on one fairly narrow area. I remember after I had worked at the firm for a while, I was doing a lot of securities litigation.
This was a long time ago before some of the more recent legislation. One of the partners came in and said, “You are good at this. Would you like to do more of it?” I said no. Later, I thought that was not so smart from a strategic standpoint because it was a somewhat powerful partner. That is how I felt in the moment and that was reflective of, “I want to mix it up.”
There are two types of folks in practice. I like to mix it up as well. I bet there are others who like to focus and be an expert in this particular area. Personally, I don’t think I would still be practicing law if that were the case and I was just doing one thing. It is not interesting enough for me. I want to try out different things. I understand that. That interest fits well for your position on the Court of Appeal as well because you get something different every day.
I had never touched criminal law. I have learned a whole lot and I'm still learning on every case. There are new issues that I have not dealt with before. It has been three somewhat different experiences. This job as a Justice on the Court of Appeal is very much similar to the other two in the sense that it is a diverse universe and a different one. You get a lot of dependency cases, other kinds of cases, and criminal cases. Those are things I knew nothing about. The city and county did have a dependency practice but it is not exactly traditional litigation. I didn't have a whole lot to do with it.
I had to learn that pretty much from scratch, coming here along with the criminal. The civil stuff can be interesting but it is not as diverse as what I saw in practice partly because it is only a portion of our docket. I don't know if this is accurate or not but we see fewer civil cases than we once did partly because of the US Supreme Court's holdings on arbitration and The Federal Arbitration Act. A lot of employment litigation goes by, consumer cases, and other things. I was surprised that there is not greater diversity in the civil docket than there is.
That is an interesting observation. I would have thought that it would be eclectic across the board.
I have seen bigger contracts where the parties negotiate. We do get some employment disputes. Not every employer requires people to sign an arbitration but increasingly, they do. It is fewer than I'm sure at one time the courts were seeing. There are tort cases or things where there is not an agreement and a lot of government cases. I would never let the city sign an arbitration agreement if the issue came to me when I was there. I didn't want the city to be disadvantaged by having an arbitrator from a private entity. It is not that we didn't use them for mediation a lot. We did but that is a different story.
Most notably in your time in the City Attorney's office was your work on some significant cases on marriage equality. Would you like to talk about those a little bit?
When I went to the city, I didn't think anything LGBT-related would come up, not through the law. We had prevailed in keeping the Equal Benefits Ordinance alive. I say that to mean there were political aspects and airlines competing with each other aspects for the gay business. When we won a little slice, they caved on the whole. Also, we kept the rulings that we got that were not so favorably limited to the airport context.
Those are totally legitimate strategy differences you have with people and if you want to work together. You have to be willing to put up with the fact that you don’t always control [all of the strategy].
That meant the ordinance still had an effect on everything else. It didn't mean it would necessarily withstand scrutiny. I went to the city thinking, “There is not going to be anything like the incredible case I got to work on.” About two years in was when then-Mayor Newsom decided to issue marriage licenses to same-sex couples and gave us a fairly short two-day opportunity to think about how we were going to deal with it.
We launched litigation that spanned all nine years for me. It started in the state superior court fairly quickly. We got pulled into the California Supreme Court on a rem proceeding that didn't decide the constitutional issue but rather looked at the mayor's power to do it and smack the city down. Meanwhile, the court had said in an early ruling it wasn't going to consider the constitutionality and all but invited a case in the superior court on that to come up.
We turned around that day and filed in the superior court. We are joined by the National Center for Lesbian Rights and other organizations. That case went up to the California Supreme Court in about the space of four years and we prevailed. In the space of a few months, it was taken away by Prop 8. We challenged Prop 8 on revision amendment grounds, which is this esoteric election law area.
I was pretty certain we wouldn't win because, in my view at that time, the courts were not enforcing those provisions of the California Constitution. That is how I saw it. We sat still for a bit, trying to think if there was any role for us going forward. We had steered completely away from Federal Court and Federal Constitutional issues up to that point because strategically, there was a lot of doubt even after Lawrence. It is the case that finally undid the criminalization of LGBT sexuality.
Ted Olson and David Boies decided to file the suit. There were clients but the clients came after they decided. It was Rob Reiner. They brought this case to Federal Court. A lot of the LGBT organizations were hostile to that both before and after they filed it in the press, which was not the wisest thing in my view because I was of the view, “If you can't beat them, join them.”
There is a difference between quietly saying, “We don't agree with this. We have been involved in these litigation challenges for a while. We don't recommend this. We disagree with it,” as opposed to coming out publicly.
We didn't even say it privately. We had concerns but one of the things we had learned even earlier was you can't control what people are going to do. The groups were often trying to do that.
It happens a lot. I see that a lot with so many different cases that raise important issues.
It is in all kinds of movements. It is not that it is bad to be strategic at all and it is not necessarily bad to try to dissuade people from a strategy you think won't work. At the end of the day, I always laugh because I wanted to have a trial in the California case. My friends at NCLR were like, “You are crazy. This is a stupid idea.” It ended up getting resolved for us by the trial judge who had wanted no part of the trial. He wanted to decide on legal grounds. That was shortsighted a little bit because he decided it on sex discrimination grounds.
The courts were not accepting that. In one case, they had. We didn't have a trial but in the Federal Court, we did have a trial. In the State Court, my colleagues thought I was too willing to take too much risk. When we got in the Federal Court, I was working with Olson and Boies, who had an outsider's view. It is not that they didn't care and were not committed. On the contrary but they had not lived through Bowers versus Hardwick and all the backlash and the horrible Federal Court precedent on every Equal Protection case that came out.
I was with the groups in the sense of, “Let's take this a little bit slowly and cast it narrowly as about California as opposed to nationwide.” They were furious at me because they thought I was too risk-averse. Those are legitimate strategy differences that you have with people. If you want to work together, you have to be willing to put up with the fact that you don't always control. We intervened in Ted and David's case, and because of that, I could voice my view and file a brief. That was different from what they filed but I didn't want to ever argue contrary to what they wanted.
You don't want to undermine their positions.
We did argue more narrowly in the Ninth Circuit than they did. They were not happy but they got over it and I got over their being mad at me.
Sometimes, as long as you are not undermining another position, you are giving the court another path to go. If the court feels more comfortable or you can get a consensus around one path that might be narrower, at least you are providing another option for the court. It is not all or nothing. It has value for everyone.
That is how I thought of it. They feared that the Ninth Circuit would go with my narrow view. They went broad, which was fine. That is why I went up. We won in the US Supreme Court on standing grounds. Interestingly, my friend Mary Bonauto was at GLAD on the East Coast doing this work. Her strategy, which was carefully thought through, was, “Let's challenge DOMA first or the Federal Defense of Marriage Act.” It is a pro-Federalism argument because the Federal government jumped in and tried to tell the states who could and could not marry. They have no business being there. The state should be able to do what they want.
That is a much more saleable thing. That case came up at the same time ours did. The court punted on requiring marriage nationwide at that point. Punted is not entirely fair. There was a serious standing issue. It was two years later that they decided on Obergefell. In the end, I admire Ted and David for being so convinced. David was a phenomenal part of the team, especially in the trial court. Ted was a true believer that Kennedy would make this happen. It turned out he was right. It took a little longer than he would have hoped but it was pretty quick.
It is an important legacy for Kennedy and all of his work in that area on the court. They were right to think that he would view it that way as well and that it was important to continue. That is pretty amazing, especially when you came into the position thinking, “It will all be interesting but it certainly won't be this area of work that I worked on before.” We should be done with that because that is in the category of you never know what could happen next.
I thought, “The city has done all it can do.” What I didn't account for was cities don't always, and ours, in particular, limit themselves to what they can do. That was unforeseen on my part.
That gets back to the point where you were saying different decisions are made. There are different factors that go into that and political factors that would urge that forward. You are looking at it purely from a legal standpoint. You are like, “I don't see someone doing that or wanting to expand that.”
I see people wanting to. It just didn't occur to me. Even at the time when Gavin [Newsom] did that, we got blamed for the election loss to Bush. It was not so popular. It took a lot of courage on his part. It was a movement even if it had gone down politically. It is his constituents versus the rest of the world. It is political in an interesting way.
What happened after that in terms of City Attorney? How long were you at the City Attorney?
I was appointed to the bench in 2014.
Interestingly, you went straight to the Appellate Court and not the Trial Court first. That is an unusual appointment order.
It is not at all conventional. It was at a completely right place at a right time situation because there were several vacancies on this court. There is a friend of mine who I had known for most of my career but not well until after the marriage cases were decided. We had become friends and he is on this court. He didn't say, “You should do this.” He said, “If you want to do this, now is the time to put in your name.”
I thought long and hard about it. I was torn but I decided to do it. I was not ready to retire at the earliest possible in the city. I also didn't know what my boss was going to do politically and whether he would stay there. There were a lot of uncertainties. I decided, “I will put my name in. If it happens, it happens. If it doesn't, that is my answer.”
That is often what I have heard from other judges. It is somebody, whether it is a judge on the court or somebody else they have known throughout their careers, who have either given them a heads up that this is a good time for them to apply or encouraged them to apply for a position more directly when it may not have been something they considered. That is a common thread. I'm not surprised to see that show up in your history as well.
Most people, when they go on the trial bench, that’s when they learn they’re not an advocate anymore. They’re listening to both sides and making calls as they see it.
One of the struggles that the governors, both Brown and Newsom, have faced in trying to diversify the courts has been that women and people of color don't always get the same mentoring or encouragement. Finding people and trying to persuade them is important. A lot more judges, including our court, have gotten involved in trying to provide some of that and get people who might not otherwise be encouraged.
That is an important thing that your court is doing and other courts in California are doing in terms of opening that up. That is a good outreach and initiative that the courts are doing. In part, that is my interest in having you talk about your journey and others as well. Sometimes, there is an image of what you have to do. You are either a DA, a public defender, this array of things, a US Attorney's office, or certain things that you think are the path to becoming a judge.
There are so many different paths, genuine life, and professional trajectories that people go through. They do become judges. Part of the mission of this show is to have people understand there are so many different ways to get here and do what you love at the highest level and the best. You can do it. It may not look in some cookie-cutter way of what you think your prejudicial would look like but so many others have different paths as well.
In their efforts to diversify the bench, both Brown and Newsom have been more willing to consider candidates without traditional paths. Quite frankly, it used to be almost always a lot of the judges were former prosecutors. There is nothing wrong with that but there were almost no public defenders. I don't want to say it tilted the bench because everybody comes on trying to be mindful of both sides. Your experience comes with you to a degree.
Both Newsom and Brown put more public defenders on. Our high court in California has three people who never served in a Trial Court or a Court of Appeal before. The ways to get here have increased. That is in part albeit not necessarily solely because of the desire to have more diversity.
It is in terms of professional experience, too, so that you are bringing all the different perspectives. You do have a wide variety of cases. If someone is more familiar with civil cases than criminal, that is great. That brings a different skillset to the bench, private practice versus government practice. All of that is part of the consideration, as far as I can tell, from the appointments.
That is my sense as well.
It was in 2014. I can't believe that it has been that long already. You have had some time on the bench. Do you enjoy it? How is it different from what you thought it would be?
It is not different from what I thought it would be, except I didn't know exactly what the mix of cases would look like. I'm enjoying it. It was the right thing for me at that time. Earlier in my career, I had thought about the trial bench and put my name in a couple of times. By the time I put my name in for this, I was no longer interested in the trial bench partly because I had been doing a job that involved quick decision-making and non-executive matters. I feared that I had lost my ability to focus, which used to be in private practice my mode a lot of the time. I didn't forget how to focus turned.
It turned out this job gives you more opportunities to do that. It is still a juggle. You are trying to not build up a big backlog to move the cases through as quickly as feasible while still giving them the attention that they deserve. There are staff and other things that I would consider are executive functioning decisions. You do get to study things when you are working on a case. Some judges have their staff write a lot of their opinions and almost all. Some write more. I leaned towards writing more because that is what I enjoy doing. I also enjoy talking with my judicial staff attorneys about the cases they are working on and collaboratively figuring them out.
It is fun and interesting. It doesn't have a ton of frustrations. There was this issue focused on backlogs not long after I joined the bench. Our court was by no means the worst but we might have been the second-worst. In any event, the then-presiding APJ or Administrative Presiding Judge McGuiness got focused on it. We decided we would shorten our case lists dramatically by ramping up production. That was a little stressful because you don't want a shortcut in a way. That means you are not giving the arguments their due. What it meant was everybody was working harder. That is okay for a while but it wears on people. We got through it and got them way down, so it is all good.
I would say the difference between being a trial judge and being on the appellate court is you need one other vote at least to go with you to be a majority opinion as opposed to dissent. I wonder whether you've given thought to that [both before and after joining the bench].
Coming onto this court, when most people go on the trial bench, that is when they learn they are not an advocate anymore. They are listening to both sides and making calls as they see it. For me, that was what I dealt with first on the appellate bench. I realized early on in talking with my colleagues about cases that the voice with which I speak on legal issues has been an advocate voice for so long. Early on, I felt like they were almost taken aback. Occasionally, they would say, “You are thinking like an advocate.” I don't think I was thinking like an advocate necessarily but I express myself that way.
I stop when we have conferences. If one of my staff attorneys has worked on the case, I usually bring them and have them speak because I don't want my voice to get in the way of the other justices' ability to hear my point of view. I can't help the voice. It is what it is. Jurors are told at a trial to please keep an open mind until the end of the case when they start to deliberate. On a certain level, you need to keep an open mind as you are working on an appeal. You may read the briefs, have a take, and then read the record. That maybe changes things.
It is a process as well. It is not the same process but it is a process. One of the things is to learn to keep that open mind as you work your way through something. Be comfortable changing your mind, whether you reach that conclusion before you send the draft to your colleagues or they have a different view. It took a while for my colleagues to get used to me and the four of us. Justice Miller joined to get used to each other. Everybody has a little bit of a different process for how they think things through and what tends to stand out for them the most.
You do get used to that with your colleagues. It might affect the outcome if they disagree with you and you come around to their point of view. It may affect how you write an opinion even when it doesn't affect the outcome because you might think, “This issue tends to cause them agita.” We don't have to reach that issue. Why go there if there is another reason to dispose of the case in the way that you have decided it should be disposed of? It is a process with your colleagues, learning how to work with them, and being comfortable with each other.
We have a collegial group. They had never had a woman on the court in this division. I always used to tease Justice Kline because he first started noticing that we had a woman when Justice Miller came on. I said, “Tony, it is not the first time you have had a woman. It is the first time you have had two women. You didn't notice there was one until Justice Miller joined.” It is interesting. You have to become close to your colleagues. Not everyone does but I can't imagine being in a division where people didn't get along. I know they exist.
The other one is you don't get to choose. Everybody gets appointed. You don't get to choose your next colleague, the colleagues you join, or even what division you are going to. You get appointed and there you are. It is like family in that regard. You are like, “We are all here together. We didn't choose each other but here we are.” You can either choose to say, “We are going to work with that, be collegial, and be a good family, or fight against it if it is not a natural match.”
Certainly, your life and the work are a lot more pleasant when you can joke around, understand each other, and be sensitive to particular interests or concerns that other members of your division have. I thought it was interesting that you observed the differences. It is not that I'm necessarily an advocate because I do think that is right. You are fair-minded and I could not imagine you saying, “I'm going to be on the bench and be an advocate from the bench.” I don't see that at all but certainly, from so many years of being a strong advocate, how you say things could be perceived that you were advocating.
To allay those concerns or get the message across in the most effective way, you are like, “What if I step out and have my research attorneys relay this?” It is the same thing but they are not going to be relaying it in the voice I would or the way I would, which is much more of my advocacy training. That takes a lot of both being sensitive to the colleagues about what might be off-putting to them and also surveying the scene and saying, “We want the most effective decision-making. How can I achieve that?”
It is a change. I loved being an advocate but I made a choice. I knew I was leaving that behind. If that is how I was being perceived, I had to change something. I don't think it was about deciding too early which way a case should go and speaking without any restraint. I don't know what it is exactly. I just know that I would get a certain reaction if this isn't working.
Keep an open mind as you work your way through something and be comfortable with changing your mind.
To have it work, you have to have the dialogue and you need more than one vote. You have to figure out, “How can I make this work and not be unintentionally off-putting about my views in a case?" That is amazing self-awareness on so many levels. It is good. That is partly why you were such a strong advocate too. It is understanding the human dimension of what you are dealing with, who you are advocating, and figuring out the strategy for that. That is what you bring to the court and that is how it comes out. You are not bringing the advocacy part but you are bringing the skills you got as an advocate to other people.
Even deciding cases involves strategy, not in the advocacy sense but thinking through, for example, “Is this an issue where there is a clear answer? Do I want to write a tome because I want to make myself seem grandiose? Do I want to focus on that which answers the case clearly and let these other thornier issues get expounded as they need to be?”
There are all kinds of things you have to do with being a judge, deciding things in a fairly restrained way, and also getting your colleagues on board. It is not strategic because you are seeking a certain outcome. It is more like, “What is the right way to get there for the system and your relationships with your colleagues?”
That is something that translates from advocacy skills too. You are thinking about the things we were talking about earlier in terms of, “There is a big blowout win. Are we going to do a narrow perspective on a case?” That thinking translates to what you are talking about but from the perspective of, “We are going to have some judicial restraint in terms of how we are deciding something. Do we need to? If we decide on this narrow ground, we don't need to reach all of these other interesting points, which may not be essential for this particular case.”
That is a learning process, too, figuring that stuff out. Everybody does it a little differently. We will suggest to each other from time to time, “Do we need to reach this issue?" Especially if it is something on which there is some tension or people are not all on board on that issue. I remember once talking to the Chief Justice and her saying, “I wish you published more opinions.” She has been on the high court long enough to have forgotten that it is not a fear of overruling it all. It is the volume, getting the work done efficiently, and also restraint.
I love it when you get to weigh in on an issue that is thorny. There has not been a lot written before. It is valuable. Sometimes it has not been written about a lot and you have a different view. It needs to be necessary most of the time before you are going to do that. When you are an advocate, you are like, “I should win it because of X.” In the alternative, I should win because of Y and Z. You don't need to have an opinion that says, “You win because of A, B, C, D, and E,” unless they are not alternative arguments, plus you need to involve them, in which case you are the plaintiff.
That is a succinct way of describing the differences between advocacy and the judicial realm.
Do you have any brief tips for lawyers in appeals in terms of brief writing or oral argument?
My main advice to people is if you can manage it, you should request and participate in oral argument, not because it is fun to do if you are an advocate. Our division has long been known as a hot bench, although we will see if it remains so. Justice Kline announced his retirement and officially had his last oral argument, although he is going to finish some cases up. It forces us to read our own and our colleagues’ cases with time in between. We will have circulated a draft and gotten others’ reactions to it before the argument.
Oftentimes, when we sit down to read those opinions again a couple of months or even a month later, we are looking at it with fresh eyes. The volume of our work is such that you forget the details. Sometimes because they are the second round of fairly fresh eyes, you see something you didn't see before or you look at it differently than you did before. That part of the process does not always mean we get to a different result. It means we tweak opinions but it sometimes does lead to a different result. It means you are getting an extra round of care.
Unfortunately, I remember speaking with Miguel Marquez when he was in the Sixth District at a Criminal Defense Lawyers Institute and learning from the interchange that the reason a lot of criminal cases are not argued is that they can't afford to the way appointed counsel is paid. I don't know exactly what will play out but I am hoping that we will offer people the right to have virtual arguments even if we get to a point where we are doing in-person arguments more generally for affordability. It is not only the time, traveling, and stuff.
For preparation, there is a lot of work in that.
At least it would reduce the cost and possibly make it more possible for folks to argue things.
That is how the Ninth Circuit started enhancing its technology. It was exactly for that reason. There are some remote public defenders or other public interest attorneys who don’t have a lot of resources and maybe far out in a small town in Montana, and they have to come to San Francisco for oral argument. We would rather not make them do that and have the option of remote argument. That is how the Ninth Circuit had used their technology prior to COVID.
It is a good way to make it more accessible.
If you have an opportunity to have the argument I agree, everything else being equal, ask for it as counsel because you never know. Also, there might be questions. Sometimes, there are questions about the record or you are able to explain something in a slightly different way. Maybe it tweaks the reasoning and the opinion but sometimes it can radically change a judge's view of the case. It is something that would not have come up if you hadn't had the dialogue. You explained the same thing 3 or 4 different ways. Sometimes, there is one way that clicks and the justices look at it differently.
First of all, they will almost certainly have a better awareness of the record than the other two but also the briefs. They will have read them more than one time. Given the volume, we are going through things fairly quickly. You never know whether you might pick up a justice or two who formerly headed the other way. There is value to it.
What about brief writing? Are there any tips on that for advocates?
People need to learn basic outlining skills if they don't have them and also use headings that give a roadmap. I learned this in the law firm practice. They are headings that are two words. It is one thing if it is the facts and the law but the subheadings should give a direction and make it clear. We used to say things like, “Even if this were not the case.”
I would never say, “Even if it is not the case,” because I didn't want to ever concede that I would be wrong and send the court a mixed message. It would be like, “Even if that were not so, we should still win because. The other side still loses because,” so that the court understands the way the arguments are structured and how much they do need to decide.
I think of it in terms of off-ramps and on-ramps like, “If you agree with me on Heading 1, be done.”
It helps to know those things. It is better advocacy too. The other thing is I'm not going to reread briefs for oral arguments unless I'm in the middle of a thorny case. If the table of contents gives me a good roadmap, it is going to trigger my memory of a lot more specifics than it would if it doesn't have that, “We were going to decide on this issue.” I'm going to read the draft opinion again. The argument headings matter a lot.
If you can manage it, you should request and participate in oral argument.
That is an interesting take on it. Usually, I think of it because it is what I do. I always read the headings first of the other side's brief and my brief. I'm trying to figure out where do we agree and disagree? How does it all fit together? How do my arguments fit together? I always start with the headings first and think, “It is important to have a good roadmap because many of the judges will start with the headings first.” You are raising another point, which is as you are getting back into the cases for argument even, it is helpful to have the headings because it will reorient, “These are the key points. Here is how this party sees the interaction of the arguments.”
That is what I had not thought of before but it makes a whole lot of sense. When you have people helping you prepare with moot courts, they will often start with the headings too to figure it out. Starting with a reply brief, where does everybody agree? Where is the actual dispute?
I would like to wrap up with a few lightning-round questions if you are up for it.
I'm going to start with which talent would you most like to have but don't?
I would love to be able to play an instrument well.
Have you ever studied an instrument or taken lessons?
I used to sing a lot in a choir but I don't have time.
Who are your favorite writers?
It goes from one book to another book and I mix it up quite a bit. There is a book called The Gift of Rain. He wrote another book. He is Malaysian because they are both set in Malaysia. The other is called The Garden of Evening Mists. He is one of the most beautiful writers I have ever read. The author of the book called All the Light We Cannot See is an amazing author. There are so many. I'm reading a book called The US Supreme Court by Linda Greenhouse. From a legal writer's standpoint, she is great. There is no one author that I love more than anyone else. I read a book that Obama recommended. He is an African descent author, but I don't have one.
All good writing teaches you how to write better as well in all different genres. Sometimes, it is a beautiful turn of phrase or how the sentences are put together that makes the writing stand out as well.
They draw you in.
For what in your life do you feel most grateful?
It is both my family of origin and my spouse and daughter. I was lucky.
Given the choice of anyone in the world, who would you invite as a dinner guest?
I have had a fun dinner with Kamala Harris. I adore her and she would be on my shortlist. There are so many people. Linda Greenhouse would be one. Joe Biden is an interesting guy and I would love to have dinner with him. He thinks differently than a lot of people. It is harder to know because he is more restrained in what he says. That would be fun.
That would be quite a combination of the three of them and an interesting dinner.
For Kamala, that would not be her favorite. It is not because she doesn't like Biden but because she is number two when he is around.
Linda knows so much about the court and has so much experience.
This book is about the court since Amy Coney Barrett joined that year following her appointment. I'm not deep into it yet. I'm teaching a constitutional cases seminar so I thought it would be helpful.
You are teaching as well. Where are you teaching?
At Hastings. I'm co-teaching with Judge Berzon from the Ninth Circuit so it is not all on me. It is all cases that are argued but not decided.
Is 2022 your first year teaching that or have you taught it previously as well?
I have taught it in the 2021 winter-spring semester with her and this will be our second time together.
You enjoyed it and you are doing it again. I enjoy teaching as well. It is fun. It keeps you in the mix with the next generation as well.
You learn a lot from the students and hope you impart some wisdom to them. It is not a lecture course. We conduct it like a courtroom and they are the judges. It is rather large with fifteen judges or so. They do most of the talking but we direct them on what they are going to be talking about.
It is an opportunity to work with your colleague on the Federal bench as well, which is nice. Finally, what is your motto if you have one?
Life is short. Enjoy it now.
That is a good admonition and a good takeaway for everyone reading this. I appreciate you taking the time to talk and share all of your insights and amazing experience prior to the bench as well.
Thank you. It is nice to see you. It has been quite a while.
It was 2014. I was thinking, “It has been a short time since then." Thank you so much.
Thank you for doing this project.