From Powerline blog dot com and produced by Ricochet dot Com. This is the
Powerline Show with your host Steve Hayward. So, how many federal judges do
you know who played for the Cuban Olympic national basketball team? How many federal
judges do you know who are legendary for driving around in a nineteen sixties era
convertible Rolls Royce? And how many federal judges do you know who are nearly
deported from the United States. Well, statisticians would say that is an end
of one, and that one is Judge Carlos Baya, who recently decided to
take senior status from the Ninth Circuit Court of Appeals. Now, the San
Francisco Chapter of the Federalist Society decided to throw a little reception in his honor
for his long and distinguished and very colorful legal career and kindly invited me to
be an interlocutor with Judge Baya to have him tell his life story and also
talk about some key cases he has participated in and some of his favorite decisions.
And so, without further ado, let's talk to the man who the
Los Angeles Daily Journal called the most interesting judge on the Ninth Circuit, and
that's saying something since the Ninth Circuit is legendary for having a lot of colorable
jurists over the years. Thanks very much. So we thought tonight we would
do this kind of Tonight Show style, a little bit with a conversation,
but just to get people settled in and in the right mood, I thought
i'd give you There is an element to judge Beaia's story that involves immigrations.
I wanted to give you bit of immigration news and law that you may not
be aware of. I don't know. I'm doubting many people here came here
from a foreign country on a visa, maybe one or two of you.
But if you do come here on a visa of any kind of visa to
urist, student, whatever, you have to fill out the State Department's form
DS one sixty. Have anybody ever seen this? The website says, plan
to take ninety minutes to fill it out and ask the whole series of questions.
So here are just a few of the questions they ask you to answer
to get a visa to come to the United States. And I'm quoting here,
do you seek to engage in terrorist activities? While in the United States?
Or have you ever engaged in terrorist activities? Do they define terrorists?
No, but I'm guessing the nine to eleven hijackers may be lied about this
question when they apply just to hunt, or maybe they changed their mind when
they got here and went to a Middle Eastern studies department in university. I
don't know. There are more. Are you a member or representative of a
terrorist organization? Have you ever ordered inside it, committed, assistant, or
otherwise participated in genocide? And there's a whole lot of other questions. You
know, are you come in United States to engage in human trafficking and drug
dealing and money laundering? And does he ester no? You take a box.
Older versions of the DS one sixty had a question have you ever been
associated with anyone involved with the Nazi Party of Germany. That question has been
dropped because I think all the old Nazis in Brazil and Argentine have died.
But here's the best part. At the end of several pages of questions of
like this, the form says, and I am quoting here. While a
yes answer does not automatically signify ineligibility for a visa, you may be required
to personally appear before a consular officer. So your tax dollars at work keeping
America safe. Judge Bay will come to your immigration story. And due course,
Judge Bay is, as I think most of you know, has recently
taken senior status on the Ninth Circuit Court of Appeals. We're gonna we're gonna
have a conversation that's going to come in three parts tonight. First, I
don't know how many of you know this. The LA Daily Journal, which
is, you know, the legal trade journal of the industry in Los Angeles,
calls Judge Bay the most interesting man on the Ninth Circuit, so that
obviously goes beyond just jurisprudence. And he has a fascinating personal story. I've
been looking around and not only is I believe, the only federal judge who
ever played on an Olympic basketball team, but he did so for the nation
of Cuba. He's also been awarded three medals by the King of Spain.
So you begin to get the impression this is not your ordinary a jurist.
So Judge, let's for part one. Started at the beginning. You were
born in Spain and the family left in the late nineteen thirties. Lots of
problem in Spain, lots of problem in Europe. So take it from there
and tell us a little bit about that. Thank you very much, Steve.
Is really a pleasure to be here and to see a good turnout,
as we're having such a pleasant place, and I see some old friends and
some old faces, and I love very happy to be here. Okay,
Yeah, I was born in Spain, but my father had been born in
Cuba when Cuba was still a Spanish colony, and in nineteen thirty one,
when the Spanish Republic came into power, my father could see that there might
be some difficulties in Spain. He was before saw what became the Spanish Civil
War, and so he made us all Cubans. He took out a Cuban
citizenship, and so when I was born, I was a Cuban citizen.
And that's why when I wanted to go to play in the Olympic Games,
I was part of the Cuban team. But before all that, my father
had died in nineteen thirty seven, when my mother and my brother and I
were living in France in Buretz in nineteen thirty nine, of course, I
was five years old. But at that time the war broke out. Germany
invaded Poland, and my mother had seen at firsthand the Germans at work in
the Spanish Civil War, and she thought that the Germans would eat the French
in six weeks, which was absolutely what happened. So she said it would
be a good idea to get out of France. And then she thought,
and it's probably a good idea to get out of Spain, because Hitler might
not just stop in France, might want to go through Spain to Portugal and
take over Portugal. It was now Britain. And so we got in a
ship in Lisbon and went to Havana. It took sixteen days to get there.
We were alarmed from time to time by sightings of periscopes and German submarines,
which may or might now have been true, depending on what my brother
wanted to yell and scream. But we got to Havana and a mother made
the discovery that in Havana it was hot and there were mosquitoes. Ship being
brought up in a convent in Granada, and so she said, let's go
to Let's go to the United States. So we were Cuban citizens and Cuban's
had very easy access to the United States in those days, and we went
to Florida, to the great disappointment of my mother, not everybody then spoke
Spanish in Florida, and she said, let's go to California. Everybody must
be Spanish there because all the cities are named in Spanish. So she bought
a used nineteen thirty eight Bwick and piled us in and we drove to California.
And that's how I got here. So here in California, the next
part is, I mean, I'm a failed ex athlete, and so I'm
hugely charmed by the fact that you set a scoring record at Menlo Park Community
College thirty eight points in one game. That's a lot of points. Even
today, that's a lot of points. Back then, that was unbelievable amount
of points. Whereupon you were recruited by, among others, to play college
ball, the famous John Wooden of even Cla. All right, but you
owned up picking Stanford. So I mean, I'm sure everybody we must have
a brewin graduate here. I'm sure people sometimes ask you, do you regret
not having played for John Wooden? Or maybe you want to skip over that
and just go to decide to come for Stanford, and then I'll follow up
from there. Okay, Yeah, I had a pretty good year at Memo
JC my freshman year. And it's true that I got a letter from mister
Wooden that he'd like to see me. And mister Wooden's daughter, Peggy,
was going to high school that I just graduated from, so we knew each
other. And so I went to see mister Wooden and who was an extremely
impressive person. I mean, he was not only a great basketball coach,
but he was a man of impressive character. And everything you said made me
feel like I wanted to go to UCLA. And then I promised to go
to Stanford and interview at Stanford and the coach then Everard Dean, and Bob
Burnett with assistant coach, said well, you know, Carlos, you you
really ought to come to school at Stanford rather than UCLA. And I said,
well why, and they said, well, first of all, you
probably got a better education at Stanford and you will UCLA, and frankly,
you'll have more playing time here. That convinced me. So I went to
Stanford for a couple of quarters, and then that was when I went down
to Cuba to train with the Cuban Olympic team. The qualifying for the Cuban
Olympic team wasn't all that difficult. I had, as I said, a
pretty good season at Menlo JC and I had some clippings, so I sent
them down to the Cuban Olympic basketball coach and I said when can I try
out for the Cuban team and he said, you don't have to try out.
You around the team so well that I drove down to New Orleans and
took a ship over to uh to Havannah. We started playing, started training,
but then we found out that we had no money to go to the
Olympic Games because the Olympic committee that had the money was under the previous president,
Brio Soras and when they when Bautista took over, the Olympic Committee took
the money and went to Miami. So the till was empty. We had
a television show and that didn't bring in any money. But we finally found
a very attractive blonde who was a friend of General Battista and he had made
her the directrics of feminine sports in Cuba, and we said we need fifteen
thousand dollars nineteen fifty two, alves a lot of money to go to Helsinki,
and she went to see the as you called him to general and called
us up and she said, I've got your check for you, and it
was seventeen thousand, five hundred. She says, my commission's twenty five hundred.
Whatever's right. As she said, there's one other condition. You have
to take my husband as your assistant coach. We said, my dear Lisa,
he doesn't know a basketball from a kasaba melody. She said, yeah,
but I want him out of town for other reasons. Sot's. So
then we got to Helsinki. But I've always refer to myself as our family's
Olympic tourist, because when we got to Helsinki, we had a very good
time, but we only won two out of seven games. So I was
the Olympic tourist. Sun Sebastian in two thousand roads for the United States as
the stroke and the two men without without cox and one of silver medal.
So he is the Olympic athlete. I'm the Olympic tourist. So one more
sports question. Then back to Stanford and ultimately the law. But you came
back to Stanford to finish up on a student visa, and I want to
ask about then why choosing law as a professional field. But this is where
the story. I think. Another interesting wrinkle to your personal story is that
to stay in the country, ironically, you had to instigate a deportation process
because otherwise, formerly speaking, we're going to deport you for not being American
or something. YEA, When I was a I guess, the first year
law student of Stanford, I was pretty busy. I was playing by on
the basketball team at Stanford and going to first year of law school, which
wasn't really very good for the team and wasn't very good for my grades.
But after that, what happened was that when I came back from the Olympic
Games, I played one more year in Europe. I played with the Real
Madrid for a year when I came back. After that, when I was
going to come back, I went to the American embassy with my Cuban passport
and I said I wanted us to get my make sure my papers are in
order, and they gave me a student visa at one and unbeknownst to me,
I was eighteen at a time. That terminated my residency, and you
can't be a lawyer at that time unless you're an American citizen. You can't
be an American citizen unless you're a resident. So I didn't have a chance
to become an American citizen. And so I went to an attorney and he
said, what we have to do is start a deep portation proceeding. It
didn't sound so good to me, but that's that's what we did. And
the deportation hearing was held and I had witnesses said I was always meant to
come back and this was a mistake, et cetera. But the hearing officer
didn't believe me, and he thought I was trying to avoid the draft.
And so I said, well, I'm not trying to avoid the draft of
draft me yet, I'm still a draft of all age. And he said,
oh no, he said, you you can't. You can't do that
because you avoided the draft during the Korean War and there won't ever be another
war. So we went through the immigration hearing and I lost at at the
trial level, and then we went back to Washington for a Board of Immigration
hearing, and that's when I got lucky because the chairman of the Chief Justice
of the Board of Immigration Appeal. The chairman then, after the oral argument,
leaned over toward my attorney and said, mister Kidder, would you mind
if I asked your client a couple of questions. Now you're all lawyers,
you're in an appellate courtroom. You haven't prepared your your client for any sort
of examination. You don't know where the judge is coming from, you don't
know what issues he's going to bring up. But what can you say?
Of course, yes, at which point he asked me what position did you
play in Stanford? And did you ever know Johnny Wooden? And I said,
yeah, I told him what I've told you, and he said,
oh, that's terrific. And as we and as we left, my attorney
turned to me and he said, that son of a bitch ain't going to
deport you. So you're studied the political science as an undergraduate at Stanford and
then decided to go into law. So tell a little bit about the decision
process. What attracted you to the law? First political science and then the
law and yeah, I'll stop there. Well, I guess I was always
interested in politics, and I took a course an undergraduate on the Supreme Court
cases and probably side Department of Stanford, and the professor, Professor Mason,
was just a terrific teacher, and he taught us all about Marbury versus Madison,
of important cases, and I thought, Gee, this is truly stuff.
So I applied to go to law school. And in those days,
you could do three years of undergraduate of Stanford and your fourth year you could
go to law school and get credit for undergraduate and for law school at the
same time, so you save a year. And since I was playing basketball
and that of my senior year, that all fitted very well. So that's
what I did. So after you graduated from law school. This is part
two. Now we're going to draw into private practice. Became an attorney here
in San Francisco, working generally on torts and contracts. A couple of particular
cases I want to ask you about, but let's do the fun one.
First, your brother had a construction company for whom you did some legal work,
and rather than paying you the normal fee, he bought you a rolls
Wiste convertible. True, he got in a lot of trouble with the La
County flood control and I was in Europe at the time of enjoying Europe,
and he called me up and he said, come on back here. You've
got to help me out. And so I spent about five months doing nothing
but working on his case and we got a good result, and so he
asked me to send him a bill. I said, I'm not going to
send you a bill because you're my brother. And he said, well,
you don't have a car. You sold your car and I said, yeah,
I don't. He said, well again, I'll buy your car.
So I said that that sounds pretty good. What kind? He said,
don't worry, you'll like it. And you said, you want a convertible,
didn't I wanted a convertible and I said, and I don't want red
leather seat covers. I didn't like that. There were two brash. So
I went back to Europe to do what I had to do, which was
some family business there, and he called me up and he said to go
to London and pick up your car. And I said, well, what
kind of car is it going to be? In Austin? Heale? Or
is it an MG or what? He said, Just go up to London,
don't worry about it. And that's when I went up there, and
I went into the showroom and a man came out dressed exactly like the penguin
in The Batman, with striped pants and cut away handkerchiefs in his sleeve.
Look at me, very fancy, and he said, here's your car.
And he pushed a button and the floor went down and the floor came up,
and it was a silver colored Rose Royce convertible. And I still have
it. I came. I came to work on Monday with it. Oh
really, I was gonna. I mean, this was if I remember the
timeline, this is the early sixties, sixty nineteen sixty three, so I
mean that's that's still a novelty today. But it hadn't really be a novelty
then. What was it like driving that around town? Well, it was
in those days. It was less notice than it is now. If if
I drive it around town now, I get some strange chance, let's say,
So, I've got to be careful where I drive it. Right,
there were areas in the Tenderloin where it's not a good idea to drive look
at. So there's one case in particular that are right about, which was
i'll just call the Avis case involving Avis rent a car and the reason it's
interesting is, you know, why would a case with Avis be interesting all
these years later, except it involved issues that today get wrapped up in current
controversies about hate speech. And talk to talk us through the case of because
I think it's interesting, and then reflect on the distinctions to be made between
what you observed there and some of the tangles of hate speech today. Well,
at that time, the case involved several workers at the Avis plant at
San Francisco Airport, and these were all Latins, all Hispanics, and I
don't think anybody was really checking their immigration status, at least of Alibis.
So they had a straw boss who was the teamster business agent, and he
was not Hispanic. He was from Irish descent, and he would abuse them
by calling them wet backs and some adjectives before the term went back. And
they complained about this, and they brought an action for about eight or ten
of them, and not all of them recovered, but they brought an action
based on harassment in the workplace, harassment at work, and the evidence was
pretty strong and pretty good against the straw boss, especially when he took the
stand. He was very credible. So I allowed the jury to determine damages
in the case, and the damages were pretty modest, but Avis wanted to
take the case up, and they took the case up to the Court of
Appeal and the California Supreme Court, and the petitioned for sarciaria to the United
States Supreme Court. And the theory was that the racial epithets, which had
been stated to all the workers, was free speech, and the unreact or
the Workplace Non Harassment Act was trumped by notions of the free speech. And
it was my view that the use of these epithets was not for the purpose
of discussing whether they were accurate and whether the people really were blank way backs,
but we're used solely for the purpose of harassment and hate at the workplace.
And the judgment was affirmed by the Court of Appeal two to one and
by the California Supreme Court four to three. And when I went to Supreme
Court, there were two to send some denial of social one of which was
Justice Thomas. Oh. Interesting, yeah, he he probably would have been
on your side, though actually, I mean, well today hate speech he
has defined as anything that offends me, which is distinct, isn't it from
from the kind of speech you describe, which really is meant to be harassment,
intimidating, so forth. This was the speech that the straw boss of
the teamster guy used was anything but persuasive. Right, yeah, right,
Okay, I know I think you did a lot of work with railroads,
but you know people want a railroads these days. But do you have any
others from that period that you want to bring to mind or Well? When
I came to San Francisco, I didn't have a job, and so I
asked the Standford Placement office what jobs were available. They said, go see
the done firm on Montgomery Street. I had no idea what they did.
I thought I was going to be a tax lawyer, and it turned out
that they offered me a job. I took the first job I was offered,
and they said, we do railroad defense work, personal injury work,
we do insurance defense work, and we'll get you ready to go to trial.
And I was trying cases within a year of going there. First first
chair in federal and state court, which is probably doesn't isn't done anymore now,
but I was trying a lot of cases, probably going trial six or
seven times year in cases also doing construction cases. I was representing contract was
against municipalities, and I love the work. I thought that trying cases,
getting ready for cases, I'm going to travel with jury cases with really very
interesting and a lot of fun. So in to move ahead to nineteen eighty
nine, Governor George Duke Majon comes calling and he wants to point you to
the Superior Court here in San Francisco. And two things at least are interesting
about that. One is no doubt it was difficult even in the late eighties
to find a Republican lawyer of any experience in San Francisco, where even then
Republicans met in a phone booth in this town. But in second so how
about you? And but then, of course sup your court. You have
to stand for election on the next cycle, which was only a year later,
and you did so with the i think across the board support of San
Francisco Democrats, most particularly then Speaker Willie Brown. I was at Phil Burton
John one of the Burton brothers, and tell us a little bit about that,
because I think that's interesting that you were able to appeal to support of
the democratic establishment and take it from there. Well, what happened was I
went to lunch with a classmate from Stanford Law School who was a friend of
the governors, and he had a list of names of people who wanted to
be appointed to the Superior Court in San Francisco, and he asked me my
opinion of these people. And I looked at the list and I said to
him, I'm sure that all of these people when they come home at night
are recognized by the dog. But I've never heard of these people before.
Who are there? Who are these bozos? So he said, well,
wise guy, what about you, at which point I said, well,
let me think about it. And I called my wife and I said,
there's this possible offer of a Superior court judge ship, and she's asked me
to Superior court judges work on Saturdays and Sundays and preparing for trial. I
said, no, they don't. She said, take the job. We
had four boys at that time, and we had a lot of little games
to go to, right, So I took the job, and within eight
days I found that I was being run against by a woman who was a
self proclaimed lesbian and was against me because I belonged to the Olympic Club,
and that was the reason that she was running against me. But I had
been careful enough when I talked to the Governor's Appointment secretary to ask if there
would be an election challenge stability before I took the job, and he said
there would be. And I said, well, then I can't take the
job until I can talk to somebody else. And he said, you don't
have to talk to anybody else. I've got the authority to offer you the
job. I said, yes, I have to talk to somebody else.
He said who too. I said, Willy Brown and Willie and I we're
friends and we'd represented Will's Bashford together in the past, and so I asked
him, Willy, will you back me against the field and he said yes.
So with that I went back down. I said, okay, I'll
take the job, and sure enough, right after I got the call,
I called Willie and he said, come on down, let's talk about the
campaign, and he gave me some terrific hints and I ran a campaign for
four months from February to June, and we won fifty eight to forty two.
Yeah. Just the folks in the backing here just pointed like that,
yeah, and maybe as a turn up somewhere. So then we fast forward
to at night, sorry two thousand and three, the White House comes calling.
There was some young fellow in the Council's office name Brett Kavanaugh, I
think, calls you up and says, what would you think about being a
point of the Ninth Circuit Court of Appeals? And then history repeats you again
had the support of the San Francisco Democratic establishment, including the two senators from
here. And I guess the two part question is tell us a little bit
more about how that came about, because that's not automatic at all anymore.
And I wonder if that era of sort of mutual respect that you saw was
someone like Willy Brown in nineteen ninety and in two thousand and three, if
that's possible anymore. It seems like that has now almost made impossible. I'll
stop there and let you tell it how you want to. Well, I
was on the on the Superior Court for thirteen years, and I was getting
ready to retire and looking around at jams and adr to do mediation arbitration work,
and then I got a call from this gentleman named Kavanaugh, who had
never met before, who said that he would like me to drop by some
afternoon to discuss judicial appointments, and I said, mister Kavana, I'll look,
I'll talk about anybody you want to talk about. But dropping by it's
a little bit difficult because street cars don't run very often between San Francisco and
Washington, d C. So he said, well, we're thinking about you
to appoint you to the ninth Circuit. And I said, when's your next
appointment? He said Wednesday at three forty five. So I went there and
I was questioned by Kavanaugh, Flannagan and Barns and the deputy White House Counsel
and also Gonzalez came in, and then after a while I got a call
from Cavan. I was saying, we're ready to nominate you, which you've
got a clear Boxer and Feinstein that said, well, Feinstein, I don't
think I have any problem. I've known her for years. We went to
Stanford together, and I've known her because I've went to a house with her
former husband, Jack Burman, to pick up the child Kathy, and take
her about for outings to play tennis and things like that, and so I
don't think there's any problem there. But but Boxer I don't know at all.
And so John Burton came to my aid and cleared Boxer for me,
and I asked him once why because we agreed on politics about everything, and
he said, you're the best at blank Bush is going to be able to
give us and with more you've got one blanking foot in the grave. And
well, and we'll get the seat back soon. That's what Europeans call real
politique. All right. So, uh so, by the way, it's
hard to believe, but I got past the Senate eighty six to zero.
Yeah, yeah, that's uh that's also something we may not see again in
our lifetimes. I don't know we'll see h So you're a trial judge for
a first a trial lawyer, gonna trial judge, and then an appett judge.
What were the differences that you observed or experienced between trial judging and a
pellet judging. Were there any surprises for making that transition. Well, the
big difference is trial you get to meet people, you get to know the
attorneys, you get to know the witnesses, the jurors, and on appeal
all you get to notice paper because yes, there are oral arguments. The
attorneys come on for ten minutes or twenty minutes and then you never see them
until maybe three years after that. And there are relatively few appellat attorneys who
I could even recognize my name and face, Whereas as a trial judge,
I knew a lot of attorneys because they'd be there for a week or two
trying a case, get to know them. As a trial judge you have
a great deal more flexibility what's sometimes called discretion, which is a nice genteel
word for power as to what's are going to do um And on appeal you've
got to follow the law of the Ninth Circuit, and that's why we have
excellent clerks that tell us what the law is, and sometimes they're right.
So the big difference is the difference between the human personal contact in trial courts
and the more intellectual and formalized review of issues on the appellate court. And
then you got to write opinions, and you have to I like to write
opinions that sort of follow what I think, um not, rather than what
chat eyebox or AI thinks. Right. By the way, I'm going to
open up to some audience questions in a few minutes. But what I want
to do is I want to ask the judge about three or four areas of
the law and specific cases, and then we'll do the audience question. So
I'll prepare you to think about your questions if you have some. So I
say, I want to ask you about a couple of specific cases in a
couple of general areas of the law. The first ones, I think is
the case that I've heard you express an interviewers or reading articles that is either
your favorite case or the opinion you're most proud of, whatever, whatever the
characterization is, that's correct, And that's Hinkson versus United States. I didn't
have a chance to read it, and I'm not sure I completely grasp it.
So walk us through that and tell us why it's particularly important to you.
Hinkson versity the United States was a very flamboyant case. Hinkson wanted to
kill the district court judge who's presided over his tax fraud trial, and to
do that he hired a person who represented himself at the Marine combat veteran who
was expert in killing people. And so then the Marine combat veteran went to
the FBI and spilled the beans and they indicted Hinkson, and so the trial
got started on conspiracy and intend to commit a murder of a federal trial federal
trial judge. And it turned out that the marine combat veteran was neither a
marine, nor a combat veteran, nor killed anybody. It was a complete
phone. And so Hanksen was convicted and made a motion for new trial.
And the judge who was at that trial was Judge Tallman colleague, determined that
Hinkson's attorn Nie and Hinkson had known about the man being a phony and hadn't
brought it up in his case and defense right, and therefore they hadn't exercised
due diligence in at the time of trial, and weren't entitled to a new
trial because this man was such a phony. So the issue was to us
in the Ninth Circuit, was Judge toomb and right in saying and making his
finding of due diligence. Now, up to that time we had a rule
that a court of appeal could overturn a finding a fact by a trial judge
if if the panel had a definite and firm conviction that an error had been
made. Now, I consider that to be totally subjective, and so I
wrote an opinion saying, no, you can't overturn a finding a fact by
a trial judge unless it's implausible, illogical, or can't be inferred from the
from the facts and the record. Now, this was an example of separating
the power discretion between the district court, the trial court, and the Court
of Appeal. I have been a trial court judge, and I thought that
determinations of issues of fact should be done by the trial court, not by
the Court of Appeal on a cold record without having seen the witnesses. And
that turned out to be the rule of decision on the Ninth Circuit ever since,
I guess two thousand and five, the case have been cited over eight
hundred times. Yes, so am i? Am I right? In a
summarizing by saying that it is an act of judicial strength, rightly understood,
right right on the part of the appellate court. Correct, That's what I
mean. Yeah, that's right, Because I mean, all right, I'll
just press on here because it's fascinating subject. Another domain of cases, several
that came before the Ninth Circuit and that you sat on panels. That's cases
involving the First Amendment, the Establishment Clause, and the free Exercise Clause,
one of them which I remember vividly. I think I told you the story
of Ganglish storming into my office after the Ninth Circuit said the Pledge of Allegiance
was unconstitutional in high dudgeon. That's a funny story. I won't tell you
now, but you were I think, involved in that particular case and several
others like it. So talk a little bit about some of those, because
I think that's a great highlight reel there. The Ninth Circuit had found that
mister Newdau, doctor Nudau had a daughter going to a school in Real Vista,
and doctor Nudao was a firm convinced, very articulate, very until was
an atheist, and he didn't like the idea of his daughter listening to the
Pledge of Allegiance which had the words under God inserted into Pledge of Allegiance in
nineteen fifty four, and he claimed that this was an establishment of religion.
And the Ninth Circuit found that doctor Newdow was absolutely correct, and in a
decision written by Judge Goodwin with Judge Reinhardt joining him, that was a decision.
He went to the Supreme Court. Something strange happened to the Supreme Court
just as Kennedy determined an oral argument that mister Newdau didn't have custody of his
daughter because he'd been divorced and the custody went to his wife, and therefore
found that mister Newdou didn't have standing to bring the action so reversed on nine
ground. It came back to the Ninth Circuit when doctor doctor Newdow, now
an attorney, found a another parent withstanding with another atheist child, and the
case came back, and strangely enough, just Judge Reinhardt was on the panel
again, so Judge Brian Heart, Judge Betty Nelson, and myself were on
the panel, and I took the position that the words under God were a
simply an affirmation and enthusiastic affirmation of the pledge of allegiance, like very often
you'll hear by God, I'll do this. You don't really want to invoke
the deity, but but you want to emphasize what you're saying, right,
And to my great surprise, Judge Betty Nelson, who was appointed by Judge
Carter by President Carter, as was Judge Reinhart, agreed with me, to
the great dislike of Judge Reinhardt, who who wrote a dissent that went one
hundred and fifty three pages with a table of contents and forty four footnotes.
But I won't get into all those things. But the Supreme Court denied Searcher
Rarey, And so the rule of the Ninth Circuit is the same as it
is in the Seventh Circuit, on the fourth Circuit and the first Circuit,
that the pledge of allegiance is constitutional and is not an establishment of religion because
of the words under God. But well, you know what I mean when
I remember at the moment was I'm kind of surprised that Judge Reinhardt would extend
himself at such great length. You may remember that the United States Senate,
I think, the day after the ruling came out, voted a resolution I
think ninety eight to zero denouncing the opinion. And I don't know, I
mean, you don't go for the weeds. But the although the Constitution does
not on the surface resemble the invocations of the deity like a declaration of independence,
there is at the end that phrase that says in the year of our
Lord seventeen eighty seven. So there it is, is that phrase of the
Constitution unconstitutional that's a rhetorical question, right, But this is how crazy thinks
of And you know, isn't it typical of Judge Conny to pick on that,
to try and kick it out rather than grappling with the okay um uh.
Next topic is racial discrimination. We're all waiting with bated breath for the
Harvard and un Seat case decision coming in June. A lot of people are
hanging on and mentioning the phrase that Chief Justice Roberts used in the Seattle Public
School's case several years ago, that the way to stop discriminating by race is
to stop discriminating by race, which turns out a phrase that came from you.
That's right, two years before in the same case, I has said
exactly that at the end of my opinion and partment might descend from denial of
rehearing. And it was it turned out that somebody else noticed that Chief Justice
Roberts had appropriated without attribution, that phrase, and that other person was Justice
Brier in his descent, who repeated line for word for word what I had
said in the descent, which is kind of changed strange if you think about
it, because usually descents are read by the majority opinion before they go out
to be printed, right, So I would think that Chief Justice read Justice
Brier's reminding him that the phrase was mine. And I haven't changed in my
view. I think that the way to stop racial discrimination is to stop discriminating
by race. The one year, nineteen eighty five, I think it was
the Stanford Law Review sent up a magazine writer to interview me, and I
gave an interview, and then I asked the writer why she had picked me
for the interview, and she said, well, you turned out to be
the first Latino who graduated from Stanford Law School. I said, I don't
think that's quite right, because Stanford Law School started in eighteen ninety one.
I graduated nineteen fifty eight, and there had to be somebody in between who
graduated who was a Latino or Hispanic. But I told her, I'll tell
you one thing that's true. When I was at Stanford and Stanford Law School,
I didn't know I was a Latino. Well, but you're not even
now. But it's the tanks now, isn't it? Or something? All
Right? So I'm close my part of this with two general questions about the
legal scene today, and then we'll take some audience questions. The first is
the preface is this What are some of the toughest areas of the law today
and some specific examples that come to mind. Is the Chevron doctrine is suddenly
up for grabs, and you've been saying for years that needed to be rethought.
We now have the Major Questions Doctrine articulated last spring, and we're not
sure that's going yet. So what are your reflections on that or any any
other areas that you're looking at saying, boy, this needs some serious rethinking.
Well, Steve, the Major Questions Doctrine and the Chevron Doctrine both involved
the same fundamental issue, which is a separation of powers between the executive,
those legislative and the judiciary. M I've been a great doubter of the Chevron
doctrine for years. I gave a speech don a Heritage in twenty fifteen on
it, and I sort of ended the speech by saying, let's junk Chevron,
because Chevron is the idea that if Congress and acts legislation which the Court
finds to be ambiguous, rather than try to noodle through the ambiguity with the
rules of statutory construction and cannons a statuary construction, the Court should defer to
the administrative agency's interpretation of Congress's Act. Now, it might come as a
great surprise to you, but when you allow the agency to interpret the Congressional
Act, it usually ends up with the agency ratifying its own actions. Strange
enough, I always thought that that was a flagrant violation of the separation of
powers, that the agency should not be telling the judiciary how to interpret Congress's
Act. Congress can't even do that. They can't pass an act saying we
really meant this. If you really meant this enacted and have it signed,
presented to the President and signed, you just can't have a sort of an
advisory opinion. And the major Questions doctrine is another separation of powers issue because
in the West Virginia versus EPA case, building on the Brown and Williamson tobacco
case of years before, the Court has said, if Congress really meant to
make radical changes in industry and in finance, which these agencies want to make,
it should say so clearly. If it doesn't say so clearly, we're
going to find that there's no expressed intent in the in the statute. Yeah,
I think we're looking ahead here. I think just today, or maybe
it was late yesterday. I just saw the headline. I didn't read a
story, and so I don't know if I've got this quite right. But
a some federal court, i'm not sure what level, has said that the
proposed new rules on the waters of the United States rules of the by DPA
are unlawful. And then of course we're going to see what happens with these
proposed rules on cars that we're all gonna have to drive electric cars in five
years, six years. It's astonishing. So we'll see about all that.
I mean this as a last question. Then we'll turn up the audience.
I quote, I want to read a quote from you. I'm not sure
when you said this, but it doesn't matter because it channels Alexander Hamilton.
So you're a good company. Here's here's your comment. The legislature and the
executive follow what we order. We don't have a budget, we don't have
an army. What can we do accept issue decisions. But such is the
respect in which the judiciary is held that there's a great deal of responsibility in
exercising that power. Okay, Like I say, Hamilton's said something we don't
have the power of the purse of the sword in one of the federal's papers.
And yet just last week after the federal judge in Texas issued a ruling
it's roiling the waters about the FDA's authority to authorize fist the prone or whatever
it's called, and then of course stayed the effect of it for a week
pending appeals. You had some leading political figures in another branch saying the administration,
the executive branch, and states just ignore this ruling, just defy the
court. I don't know this as an ioland example that will go away,
or if that's a symptom of some rising would he say, disres back to
contempt. The various ways you can slice this up, but I wonder what
you make of all that. Well, first of all, it's nothing new.
President Jackson didn't like the Supreme Court's decision headed down by Chief Justice Marshall
in the Indian Tribes case, and he said, have Marshall enforced his own
order? And this was eighteen h five or eighteen twelve or so. And
then President Lincoln didn't like dred Scott and said it's only going to affect the
parties to the action, so he tried to the cabinet, and Harry Truman
didn't like the national labor relation to that all that much when he wanted to
take over Jones and Laughlin. But the judiciary survived all these ex ecutive attempts
to override the judiciary, and I think we'll survive the next one. All
right, let's let's have some audience questions or comments, if you would.
We do it this way on campus. Please get your name if you would,
and we try to follow jeopardy rule, which is make your statement in
the form of a question. So yes, ma'am. So, my name
is Sarah Reese. I'm an attorney, a long time Federalist Society, a
member. I'd love to hear about your wife and how your relationship with her
contributed to the extraordinary career and life you've had. Well, as you've heard
my wife's idea to get me into the judicial gig to begin with, right,
she's been wonderfully supportive and well, I can't say enough about her help.
She's been terrific and she's kept me on the straight and narrow. Someone
else, Yes, sir, let me employ you Chevis, and what we're
seeing at this Supreme Court level really upsets me recently because you don't have a
Department of Justice. It's enforcing the protection necess or in the case of Justice
Kavanaughs, and we haven't been able to resolve the issue of the league that
has basically I think destroyed a good amount of the good wheel of a court.
What can we do about that? Well, let me tell you in
um, I guess it was in November there was a meeting of the Federal
Usual Council in Washington, DC and the Attorney General, mister Garland, was
asked by a judge of Circuit Court judge why he hadn't invoked federal protection for
mister Cavanaugh. And his answer was, I turned it over to the state
police and he wouldn't say another thing. So the provision of protection for judges,
um, isn't the hands of the political branch of the executive And that's
the only answer I can give you. Um, you had another issue we
have been able to find out, Yeah, I think well, the Leaker
investigation was carried out by a interior police person of the court without subpoena power
and without any of the investigatory tools which the FBI for instance has so it's
not a surprise to me that the leaguer has not been found. Yeah,
yeah, that, Yeah, I have lots of thoughts that by someone else,
anybody. Oh another one, I think you're you're a ringer, I
think. But that's okay, okay, Yeah. Look, I didn't click
for the Supreme Gurt. I clicked for United six District judge. But I
gotta say that, um, I think it would be pretty hard to figure
out who the leaker was when anybody can just print it out and pass it
in a bar to some goud Um. So, I think it's a very
bad thing that the league happened, But I don't think it would be that
hard to effectuate a league if you wanted to. As a law clerd.
Yeah, I agree with you. Don't put any ideas in the minds of
the two law clive think about it. Yeah, I mean, I wasn't
gonna get my own perspective. I'm thinking about the Reagan years. You know,
as mentioned to, these two fat books about the Reagan presidency and leaks
were driving Reagan crazy. And I think it was Attorney General Meese. By
the way, we skipped over you arguing against law student and mee in a
mood. Court, I ask you about that two one defending a labor union.
That's the funniest part of the story, right, But it was at
Berkeley is on home ground? Oh yeah, there we go. So you
know, I think Mes had the I think it was me s a little
fuzzy. Now. I had the idea that we already polygraph tests of everybody,
you know, whoever might be the source of these national security leagues.
And that's when George Schultz went into him and said, I hate leaks two,
but if you make us all take polygraphs, I'm out of here in
ten minutes. And Reagan rescinded the idea. I think a similar dynamic happens
in the court, which is, yeah, you could have had the FBI
command, you could have had polygraphs, which might have snared somebody who left
it in a bar. But boy, what does that do to the culture.
I'm not sure, but you can you can see the other side of
the coin there, which is, do you really want to be tearing that
much of the Court's culture apart to find this one leaker and this one extory.
I don't know we'll see anyone else. Yes, sir, Yeah,
is asked, what does THEE do if the has every tool and the ambiguity.
Yeah, well, it's very simple. You take Chevron and Junket and
you go back to Marbury versus Madison, and there it says it's the duty
of the judiciary to determine what the law is. If the law is so
ambiguous that you can't make out what Congress meant, you don't enforce it.
Just say I can't understand what congressman say or meant, and therefore it's not
applicable to the case. Next ye asking Congress to work a little harder than
heavy. But yeah, someone else, especially a students are another student's got
it all right, let's do students so right. I was talking to one
of your clerks and he was saying that he wasn't gonna probably stay in San
Francisco. And I think this applies all of the younger folks here. And
with your wisdom of you know, decades of experience in these establishments in San
Francisco, what is the one establishment you would recommend that these young folks go
to before they leave town for a meal. And what would one saloon be
that you would say, I've got to say you, I'm really out of
the saloon league recently. I've been married for forty seven years. Right,
the as far as restaurants go, we have a rule that we don't go
to any restaurants. We can't walk to um and there are very few.
Roses is one and dragonwell in Marina's two, and that's about all I can
recommend. Plus Kapuros on Fisherman's Wharf because Luke Kapuro is a handball player and
Louise as a handball player, and so therefore we're all friends. All right,
Well, I'll pose a last question to draw us to an end,
and it's going to be the earnest version of that question I was preparing to
ask for the law students here. We should always ask someone like you this
question for the law students here and people in the early years of their private
practice or whatever they're doing. You know, what's next to what's one or
two pieces of advice? What are things you wish you had known or been
advised as a young lawyer in law students that you would now elect to pass
on to someone. If that's a that's a very broad I know, but
well, decide what kind of work you want to do. They're only two
kinds of work, litigation and non litigation. And and then um, work
hard because cream rises to the top. Yeah, Judge Bay, congratulations on
a spectacular career and interesting life story. Thank you, thank you very much
for coming tonight. And thank you all pladies and gentlemen. For now.
We can have a drink. Right now, you can have a drink,
yes, right, Comb the judge and comb the judge. Ricochet join the conversation.