WEBVTT 1 00:00:15.519 --> 00:00:20.960 From Powerline blog dot com and produced by Ricochet dot Com. This is the 2 00:00:21.039 --> 00:00:36.159 Powerline Show with your host Steve Hayward. So, how many federal judges do 3 00:00:36.240 --> 00:00:41.479 you know who played for the Cuban Olympic national basketball team? How many federal 4 00:00:41.600 --> 00:00:46.119 judges do you know who are legendary for driving around in a nineteen sixties era 5 00:00:46.240 --> 00:00:51.240 convertible Rolls Royce? And how many federal judges do you know who are nearly 6 00:00:51.280 --> 00:00:56.719 deported from the United States. Well, statisticians would say that is an end 7 00:00:56.799 --> 00:01:00.439 of one, and that one is Judge Carlos Baya, who recently decided to 8 00:01:00.439 --> 00:01:04.799 take senior status from the Ninth Circuit Court of Appeals. Now, the San 9 00:01:04.799 --> 00:01:10.599 Francisco Chapter of the Federalist Society decided to throw a little reception in his honor 10 00:01:10.959 --> 00:01:15.079 for his long and distinguished and very colorful legal career and kindly invited me to 11 00:01:15.159 --> 00:01:19.280 be an interlocutor with Judge Baya to have him tell his life story and also 12 00:01:19.359 --> 00:01:25.680 talk about some key cases he has participated in and some of his favorite decisions. 13 00:01:25.719 --> 00:01:29.359 And so, without further ado, let's talk to the man who the 14 00:01:29.480 --> 00:01:33.920 Los Angeles Daily Journal called the most interesting judge on the Ninth Circuit, and 15 00:01:33.920 --> 00:01:38.760 that's saying something since the Ninth Circuit is legendary for having a lot of colorable 16 00:01:38.840 --> 00:01:47.400 jurists over the years. Thanks very much. So we thought tonight we would 17 00:01:47.400 --> 00:01:49.439 do this kind of Tonight Show style, a little bit with a conversation, 18 00:01:51.319 --> 00:01:55.560 but just to get people settled in and in the right mood, I thought 19 00:01:55.560 --> 00:01:59.319 i'd give you There is an element to judge Beaia's story that involves immigrations. 20 00:01:59.359 --> 00:02:01.159 I wanted to give you bit of immigration news and law that you may not 21 00:02:01.280 --> 00:02:07.519 be aware of. I don't know. I'm doubting many people here came here 22 00:02:07.680 --> 00:02:08.919 from a foreign country on a visa, maybe one or two of you. 23 00:02:09.960 --> 00:02:14.560 But if you do come here on a visa of any kind of visa to 24 00:02:14.599 --> 00:02:17.639 urist, student, whatever, you have to fill out the State Department's form 25 00:02:17.800 --> 00:02:23.680 DS one sixty. Have anybody ever seen this? The website says, plan 26 00:02:23.759 --> 00:02:29.919 to take ninety minutes to fill it out and ask the whole series of questions. 27 00:02:30.800 --> 00:02:32.639 So here are just a few of the questions they ask you to answer 28 00:02:32.719 --> 00:02:37.319 to get a visa to come to the United States. And I'm quoting here, 29 00:02:38.599 --> 00:02:43.039 do you seek to engage in terrorist activities? While in the United States? 30 00:02:44.280 --> 00:02:47.360 Or have you ever engaged in terrorist activities? Do they define terrorists? 31 00:02:47.439 --> 00:02:53.719 No, but I'm guessing the nine to eleven hijackers may be lied about this 32 00:02:53.800 --> 00:02:57.879 question when they apply just to hunt, or maybe they changed their mind when 33 00:02:57.879 --> 00:03:00.800 they got here and went to a Middle Eastern studies department in university. I 34 00:03:00.800 --> 00:03:06.520 don't know. There are more. Are you a member or representative of a 35 00:03:06.639 --> 00:03:12.879 terrorist organization? Have you ever ordered inside it, committed, assistant, or 36 00:03:12.919 --> 00:03:17.719 otherwise participated in genocide? And there's a whole lot of other questions. You 37 00:03:17.719 --> 00:03:22.400 know, are you come in United States to engage in human trafficking and drug 38 00:03:22.439 --> 00:03:24.879 dealing and money laundering? And does he ester no? You take a box. 39 00:03:27.199 --> 00:03:30.039 Older versions of the DS one sixty had a question have you ever been 40 00:03:30.439 --> 00:03:38.199 associated with anyone involved with the Nazi Party of Germany. That question has been 41 00:03:38.319 --> 00:03:40.639 dropped because I think all the old Nazis in Brazil and Argentine have died. 42 00:03:43.360 --> 00:03:46.120 But here's the best part. At the end of several pages of questions of 43 00:03:46.520 --> 00:03:52.240 like this, the form says, and I am quoting here. While a 44 00:03:52.479 --> 00:04:00.680 yes answer does not automatically signify ineligibility for a visa, you may be required 45 00:04:00.719 --> 00:04:05.759 to personally appear before a consular officer. So your tax dollars at work keeping 46 00:04:05.759 --> 00:04:11.800 America safe. Judge Bay will come to your immigration story. And due course, 47 00:04:12.240 --> 00:04:15.280 Judge Bay is, as I think most of you know, has recently 48 00:04:15.280 --> 00:04:19.879 taken senior status on the Ninth Circuit Court of Appeals. We're gonna we're gonna 49 00:04:19.920 --> 00:04:26.279 have a conversation that's going to come in three parts tonight. First, I 50 00:04:26.319 --> 00:04:28.639 don't know how many of you know this. The LA Daily Journal, which 51 00:04:28.639 --> 00:04:31.439 is, you know, the legal trade journal of the industry in Los Angeles, 52 00:04:31.959 --> 00:04:36.839 calls Judge Bay the most interesting man on the Ninth Circuit, so that 53 00:04:36.920 --> 00:04:45.199 obviously goes beyond just jurisprudence. And he has a fascinating personal story. I've 54 00:04:45.199 --> 00:04:48.120 been looking around and not only is I believe, the only federal judge who 55 00:04:48.160 --> 00:04:53.399 ever played on an Olympic basketball team, but he did so for the nation 56 00:04:53.439 --> 00:04:58.399 of Cuba. He's also been awarded three medals by the King of Spain. 57 00:04:58.680 --> 00:05:02.360 So you begin to get the impression this is not your ordinary a jurist. 58 00:05:02.839 --> 00:05:06.439 So Judge, let's for part one. Started at the beginning. You were 59 00:05:06.519 --> 00:05:12.560 born in Spain and the family left in the late nineteen thirties. Lots of 60 00:05:12.560 --> 00:05:15.160 problem in Spain, lots of problem in Europe. So take it from there 61 00:05:15.160 --> 00:05:18.000 and tell us a little bit about that. Thank you very much, Steve. 62 00:05:18.759 --> 00:05:21.319 Is really a pleasure to be here and to see a good turnout, 63 00:05:21.639 --> 00:05:26.800 as we're having such a pleasant place, and I see some old friends and 64 00:05:26.839 --> 00:05:30.879 some old faces, and I love very happy to be here. Okay, 65 00:05:30.680 --> 00:05:34.360 Yeah, I was born in Spain, but my father had been born in 66 00:05:34.439 --> 00:05:40.879 Cuba when Cuba was still a Spanish colony, and in nineteen thirty one, 67 00:05:41.160 --> 00:05:46.279 when the Spanish Republic came into power, my father could see that there might 68 00:05:46.319 --> 00:05:53.920 be some difficulties in Spain. He was before saw what became the Spanish Civil 69 00:05:53.959 --> 00:05:57.800 War, and so he made us all Cubans. He took out a Cuban 70 00:05:57.839 --> 00:06:00.480 citizenship, and so when I was born, I was a Cuban citizen. 71 00:06:01.040 --> 00:06:09.240 And that's why when I wanted to go to play in the Olympic Games, 72 00:06:09.240 --> 00:06:15.600 I was part of the Cuban team. But before all that, my father 73 00:06:15.680 --> 00:06:18.120 had died in nineteen thirty seven, when my mother and my brother and I 74 00:06:18.160 --> 00:06:25.160 were living in France in Buretz in nineteen thirty nine, of course, I 75 00:06:25.240 --> 00:06:30.920 was five years old. But at that time the war broke out. Germany 76 00:06:30.959 --> 00:06:36.959 invaded Poland, and my mother had seen at firsthand the Germans at work in 77 00:06:38.000 --> 00:06:43.079 the Spanish Civil War, and she thought that the Germans would eat the French 78 00:06:43.120 --> 00:06:48.360 in six weeks, which was absolutely what happened. So she said it would 79 00:06:48.399 --> 00:06:53.079 be a good idea to get out of France. And then she thought, 80 00:06:53.480 --> 00:06:57.680 and it's probably a good idea to get out of Spain, because Hitler might 81 00:06:57.759 --> 00:07:01.600 not just stop in France, might want to go through Spain to Portugal and 82 00:07:01.680 --> 00:07:06.519 take over Portugal. It was now Britain. And so we got in a 83 00:07:06.600 --> 00:07:13.759 ship in Lisbon and went to Havana. It took sixteen days to get there. 84 00:07:15.399 --> 00:07:21.360 We were alarmed from time to time by sightings of periscopes and German submarines, 85 00:07:23.680 --> 00:07:28.920 which may or might now have been true, depending on what my brother 86 00:07:28.959 --> 00:07:36.040 wanted to yell and scream. But we got to Havana and a mother made 87 00:07:36.079 --> 00:07:43.680 the discovery that in Havana it was hot and there were mosquitoes. Ship being 88 00:07:43.759 --> 00:07:47.759 brought up in a convent in Granada, and so she said, let's go 89 00:07:47.800 --> 00:07:51.759 to Let's go to the United States. So we were Cuban citizens and Cuban's 90 00:07:51.800 --> 00:07:58.800 had very easy access to the United States in those days, and we went 91 00:07:58.839 --> 00:08:03.800 to Florida, to the great disappointment of my mother, not everybody then spoke 92 00:08:03.839 --> 00:08:09.920 Spanish in Florida, and she said, let's go to California. Everybody must 93 00:08:09.959 --> 00:08:16.600 be Spanish there because all the cities are named in Spanish. So she bought 94 00:08:16.600 --> 00:08:22.839 a used nineteen thirty eight Bwick and piled us in and we drove to California. 95 00:08:22.879 --> 00:08:28.879 And that's how I got here. So here in California, the next 96 00:08:28.879 --> 00:08:33.039 part is, I mean, I'm a failed ex athlete, and so I'm 97 00:08:33.240 --> 00:08:39.440 hugely charmed by the fact that you set a scoring record at Menlo Park Community 98 00:08:39.440 --> 00:08:43.080 College thirty eight points in one game. That's a lot of points. Even 99 00:08:43.120 --> 00:08:46.440 today, that's a lot of points. Back then, that was unbelievable amount 100 00:08:46.480 --> 00:08:50.480 of points. Whereupon you were recruited by, among others, to play college 101 00:08:50.480 --> 00:08:52.679 ball, the famous John Wooden of even Cla. All right, but you 102 00:08:52.759 --> 00:08:58.440 owned up picking Stanford. So I mean, I'm sure everybody we must have 103 00:08:58.519 --> 00:09:01.480 a brewin graduate here. I'm sure people sometimes ask you, do you regret 104 00:09:01.600 --> 00:09:05.759 not having played for John Wooden? Or maybe you want to skip over that 105 00:09:05.759 --> 00:09:09.120 and just go to decide to come for Stanford, and then I'll follow up 106 00:09:09.120 --> 00:09:13.080 from there. Okay, Yeah, I had a pretty good year at Memo 107 00:09:13.200 --> 00:09:18.960 JC my freshman year. And it's true that I got a letter from mister 108 00:09:18.000 --> 00:09:24.559 Wooden that he'd like to see me. And mister Wooden's daughter, Peggy, 109 00:09:24.919 --> 00:09:28.840 was going to high school that I just graduated from, so we knew each 110 00:09:28.879 --> 00:09:33.240 other. And so I went to see mister Wooden and who was an extremely 111 00:09:33.320 --> 00:09:37.240 impressive person. I mean, he was not only a great basketball coach, 112 00:09:37.279 --> 00:09:43.799 but he was a man of impressive character. And everything you said made me 113 00:09:43.840 --> 00:09:50.639 feel like I wanted to go to UCLA. And then I promised to go 114 00:09:50.720 --> 00:09:56.799 to Stanford and interview at Stanford and the coach then Everard Dean, and Bob 115 00:09:56.840 --> 00:10:01.879 Burnett with assistant coach, said well, you know, Carlos, you you 116 00:10:01.000 --> 00:10:05.600 really ought to come to school at Stanford rather than UCLA. And I said, 117 00:10:05.600 --> 00:10:09.039 well why, and they said, well, first of all, you 118 00:10:09.159 --> 00:10:15.879 probably got a better education at Stanford and you will UCLA, and frankly, 119 00:10:15.919 --> 00:10:22.200 you'll have more playing time here. That convinced me. So I went to 120 00:10:22.240 --> 00:10:30.480 Stanford for a couple of quarters, and then that was when I went down 121 00:10:30.480 --> 00:10:37.240 to Cuba to train with the Cuban Olympic team. The qualifying for the Cuban 122 00:10:37.240 --> 00:10:43.000 Olympic team wasn't all that difficult. I had, as I said, a 123 00:10:43.000 --> 00:10:48.279 pretty good season at Menlo JC and I had some clippings, so I sent 124 00:10:48.360 --> 00:10:52.919 them down to the Cuban Olympic basketball coach and I said when can I try 125 00:10:52.960 --> 00:10:56.000 out for the Cuban team and he said, you don't have to try out. 126 00:10:56.000 --> 00:11:03.399 You around the team so well that I drove down to New Orleans and 127 00:11:03.440 --> 00:11:09.919 took a ship over to uh to Havannah. We started playing, started training, 128 00:11:11.679 --> 00:11:13.720 but then we found out that we had no money to go to the 129 00:11:13.720 --> 00:11:20.960 Olympic Games because the Olympic committee that had the money was under the previous president, 130 00:11:20.960 --> 00:11:28.200 Brio Soras and when they when Bautista took over, the Olympic Committee took 131 00:11:28.200 --> 00:11:37.279 the money and went to Miami. So the till was empty. We had 132 00:11:37.320 --> 00:11:43.879 a television show and that didn't bring in any money. But we finally found 133 00:11:43.120 --> 00:11:50.080 a very attractive blonde who was a friend of General Battista and he had made 134 00:11:50.120 --> 00:11:56.919 her the directrics of feminine sports in Cuba, and we said we need fifteen 135 00:11:56.960 --> 00:12:01.279 thousand dollars nineteen fifty two, alves a lot of money to go to Helsinki, 136 00:12:03.080 --> 00:12:09.639 and she went to see the as you called him to general and called 137 00:12:09.720 --> 00:12:13.600 us up and she said, I've got your check for you, and it 138 00:12:13.679 --> 00:12:16.600 was seventeen thousand, five hundred. She says, my commission's twenty five hundred. 139 00:12:20.120 --> 00:12:28.440 Whatever's right. As she said, there's one other condition. You have 140 00:12:28.480 --> 00:12:33.320 to take my husband as your assistant coach. We said, my dear Lisa, 141 00:12:33.559 --> 00:12:37.320 he doesn't know a basketball from a kasaba melody. She said, yeah, 142 00:12:37.320 --> 00:12:43.039 but I want him out of town for other reasons. Sot's. So 143 00:12:43.080 --> 00:12:48.480 then we got to Helsinki. But I've always refer to myself as our family's 144 00:12:48.960 --> 00:12:54.080 Olympic tourist, because when we got to Helsinki, we had a very good 145 00:12:54.120 --> 00:12:58.919 time, but we only won two out of seven games. So I was 146 00:12:58.960 --> 00:13:05.600 the Olympic tourist. Sun Sebastian in two thousand roads for the United States as 147 00:13:05.679 --> 00:13:11.120 the stroke and the two men without without cox and one of silver medal. 148 00:13:11.480 --> 00:13:18.480 So he is the Olympic athlete. I'm the Olympic tourist. So one more 149 00:13:18.480 --> 00:13:22.480 sports question. Then back to Stanford and ultimately the law. But you came 150 00:13:22.519 --> 00:13:28.919 back to Stanford to finish up on a student visa, and I want to 151 00:13:28.919 --> 00:13:33.120 ask about then why choosing law as a professional field. But this is where 152 00:13:33.159 --> 00:13:35.519 the story. I think. Another interesting wrinkle to your personal story is that 153 00:13:35.919 --> 00:13:41.720 to stay in the country, ironically, you had to instigate a deportation process 154 00:13:43.120 --> 00:13:46.559 because otherwise, formerly speaking, we're going to deport you for not being American 155 00:13:46.639 --> 00:13:52.200 or something. YEA, When I was a I guess, the first year 156 00:13:52.000 --> 00:13:56.679 law student of Stanford, I was pretty busy. I was playing by on 157 00:13:56.720 --> 00:14:00.720 the basketball team at Stanford and going to first year of law school, which 158 00:14:00.759 --> 00:14:03.840 wasn't really very good for the team and wasn't very good for my grades. 159 00:14:03.159 --> 00:14:13.759 But after that, what happened was that when I came back from the Olympic 160 00:14:13.840 --> 00:14:16.440 Games, I played one more year in Europe. I played with the Real 161 00:14:16.559 --> 00:14:20.639 Madrid for a year when I came back. After that, when I was 162 00:14:20.960 --> 00:14:24.279 going to come back, I went to the American embassy with my Cuban passport 163 00:14:24.279 --> 00:14:28.399 and I said I wanted us to get my make sure my papers are in 164 00:14:28.559 --> 00:14:35.039 order, and they gave me a student visa at one and unbeknownst to me, 165 00:14:35.480 --> 00:14:41.639 I was eighteen at a time. That terminated my residency, and you 166 00:14:41.720 --> 00:14:46.559 can't be a lawyer at that time unless you're an American citizen. You can't 167 00:14:46.559 --> 00:14:50.200 be an American citizen unless you're a resident. So I didn't have a chance 168 00:14:50.279 --> 00:14:56.799 to become an American citizen. And so I went to an attorney and he 169 00:14:56.840 --> 00:15:01.080 said, what we have to do is start a deep portation proceeding. It 170 00:15:01.240 --> 00:15:07.399 didn't sound so good to me, but that's that's what we did. And 171 00:15:09.279 --> 00:15:13.720 the deportation hearing was held and I had witnesses said I was always meant to 172 00:15:13.759 --> 00:15:20.159 come back and this was a mistake, et cetera. But the hearing officer 173 00:15:20.200 --> 00:15:22.919 didn't believe me, and he thought I was trying to avoid the draft. 174 00:15:22.679 --> 00:15:26.600 And so I said, well, I'm not trying to avoid the draft of 175 00:15:26.679 --> 00:15:31.240 draft me yet, I'm still a draft of all age. And he said, 176 00:15:31.240 --> 00:15:37.080 oh no, he said, you you can't. You can't do that 177 00:15:37.240 --> 00:15:43.240 because you avoided the draft during the Korean War and there won't ever be another 178 00:15:43.240 --> 00:15:54.679 war. So we went through the immigration hearing and I lost at at the 179 00:15:54.720 --> 00:15:58.559 trial level, and then we went back to Washington for a Board of Immigration 180 00:15:58.639 --> 00:16:07.720 hearing, and that's when I got lucky because the chairman of the Chief Justice 181 00:16:07.759 --> 00:16:11.559 of the Board of Immigration Appeal. The chairman then, after the oral argument, 182 00:16:11.799 --> 00:16:18.879 leaned over toward my attorney and said, mister Kidder, would you mind 183 00:16:18.919 --> 00:16:22.879 if I asked your client a couple of questions. Now you're all lawyers, 184 00:16:22.039 --> 00:16:27.799 you're in an appellate courtroom. You haven't prepared your your client for any sort 185 00:16:27.840 --> 00:16:33.960 of examination. You don't know where the judge is coming from, you don't 186 00:16:33.960 --> 00:16:37.159 know what issues he's going to bring up. But what can you say? 187 00:16:37.639 --> 00:16:45.679 Of course, yes, at which point he asked me what position did you 188 00:16:45.720 --> 00:16:49.840 play in Stanford? And did you ever know Johnny Wooden? And I said, 189 00:16:49.919 --> 00:16:52.679 yeah, I told him what I've told you, and he said, 190 00:16:52.759 --> 00:16:57.840 oh, that's terrific. And as we and as we left, my attorney 191 00:16:59.120 --> 00:17:02.960 turned to me and he said, that son of a bitch ain't going to 192 00:17:03.039 --> 00:17:14.160 deport you. So you're studied the political science as an undergraduate at Stanford and 193 00:17:14.200 --> 00:17:18.160 then decided to go into law. So tell a little bit about the decision 194 00:17:18.200 --> 00:17:21.319 process. What attracted you to the law? First political science and then the 195 00:17:21.440 --> 00:17:26.480 law and yeah, I'll stop there. Well, I guess I was always 196 00:17:26.039 --> 00:17:32.279 interested in politics, and I took a course an undergraduate on the Supreme Court 197 00:17:32.799 --> 00:17:37.279 cases and probably side Department of Stanford, and the professor, Professor Mason, 198 00:17:37.359 --> 00:17:41.880 was just a terrific teacher, and he taught us all about Marbury versus Madison, 199 00:17:41.880 --> 00:17:45.400 of important cases, and I thought, Gee, this is truly stuff. 200 00:17:45.880 --> 00:17:48.559 So I applied to go to law school. And in those days, 201 00:17:48.599 --> 00:17:53.599 you could do three years of undergraduate of Stanford and your fourth year you could 202 00:17:53.640 --> 00:18:00.440 go to law school and get credit for undergraduate and for law school at the 203 00:18:00.440 --> 00:18:03.839 same time, so you save a year. And since I was playing basketball 204 00:18:03.839 --> 00:18:07.720 and that of my senior year, that all fitted very well. So that's 205 00:18:07.759 --> 00:18:14.759 what I did. So after you graduated from law school. This is part 206 00:18:14.799 --> 00:18:18.400 two. Now we're going to draw into private practice. Became an attorney here 207 00:18:18.400 --> 00:18:23.920 in San Francisco, working generally on torts and contracts. A couple of particular 208 00:18:23.920 --> 00:18:26.319 cases I want to ask you about, but let's do the fun one. 209 00:18:26.400 --> 00:18:32.720 First, your brother had a construction company for whom you did some legal work, 210 00:18:32.880 --> 00:18:37.599 and rather than paying you the normal fee, he bought you a rolls 211 00:18:37.640 --> 00:18:45.599 Wiste convertible. True, he got in a lot of trouble with the La 212 00:18:45.640 --> 00:18:52.960 County flood control and I was in Europe at the time of enjoying Europe, 213 00:18:53.279 --> 00:18:57.160 and he called me up and he said, come on back here. You've 214 00:18:57.200 --> 00:19:02.039 got to help me out. And so I spent about five months doing nothing 215 00:19:02.079 --> 00:19:06.960 but working on his case and we got a good result, and so he 216 00:19:07.000 --> 00:19:07.960 asked me to send him a bill. I said, I'm not going to 217 00:19:08.039 --> 00:19:12.400 send you a bill because you're my brother. And he said, well, 218 00:19:12.440 --> 00:19:15.119 you don't have a car. You sold your car and I said, yeah, 219 00:19:15.119 --> 00:19:17.960 I don't. He said, well again, I'll buy your car. 220 00:19:18.000 --> 00:19:21.079 So I said that that sounds pretty good. What kind? He said, 221 00:19:21.079 --> 00:19:25.160 don't worry, you'll like it. And you said, you want a convertible, 222 00:19:25.200 --> 00:19:29.160 didn't I wanted a convertible and I said, and I don't want red 223 00:19:29.240 --> 00:19:34.599 leather seat covers. I didn't like that. There were two brash. So 224 00:19:36.839 --> 00:19:40.319 I went back to Europe to do what I had to do, which was 225 00:19:40.359 --> 00:19:42.839 some family business there, and he called me up and he said to go 226 00:19:42.880 --> 00:19:45.039 to London and pick up your car. And I said, well, what 227 00:19:45.079 --> 00:19:48.079 kind of car is it going to be? In Austin? Heale? Or 228 00:19:48.119 --> 00:19:52.480 is it an MG or what? He said, Just go up to London, 229 00:19:52.559 --> 00:19:55.440 don't worry about it. And that's when I went up there, and 230 00:19:56.160 --> 00:20:03.240 I went into the showroom and a man came out dressed exactly like the penguin 231 00:20:03.440 --> 00:20:11.039 in The Batman, with striped pants and cut away handkerchiefs in his sleeve. 232 00:20:11.599 --> 00:20:15.240 Look at me, very fancy, and he said, here's your car. 233 00:20:15.599 --> 00:20:19.200 And he pushed a button and the floor went down and the floor came up, 234 00:20:19.240 --> 00:20:27.920 and it was a silver colored Rose Royce convertible. And I still have 235 00:20:29.000 --> 00:20:30.839 it. I came. I came to work on Monday with it. Oh 236 00:20:30.880 --> 00:20:33.319 really, I was gonna. I mean, this was if I remember the 237 00:20:33.359 --> 00:20:37.720 timeline, this is the early sixties, sixty nineteen sixty three, so I 238 00:20:37.720 --> 00:20:42.440 mean that's that's still a novelty today. But it hadn't really be a novelty 239 00:20:42.480 --> 00:20:48.279 then. What was it like driving that around town? Well, it was 240 00:20:49.480 --> 00:20:55.359 in those days. It was less notice than it is now. If if 241 00:20:55.400 --> 00:21:00.720 I drive it around town now, I get some strange chance, let's say, 242 00:21:03.319 --> 00:21:06.279 So, I've got to be careful where I drive it. Right, 243 00:21:07.359 --> 00:21:11.599 there were areas in the Tenderloin where it's not a good idea to drive look 244 00:21:11.680 --> 00:21:18.519 at. So there's one case in particular that are right about, which was 245 00:21:18.680 --> 00:21:22.759 i'll just call the Avis case involving Avis rent a car and the reason it's 246 00:21:22.799 --> 00:21:25.319 interesting is, you know, why would a case with Avis be interesting all 247 00:21:25.359 --> 00:21:30.240 these years later, except it involved issues that today get wrapped up in current 248 00:21:30.240 --> 00:21:33.440 controversies about hate speech. And talk to talk us through the case of because 249 00:21:33.480 --> 00:21:37.960 I think it's interesting, and then reflect on the distinctions to be made between 250 00:21:37.079 --> 00:21:44.440 what you observed there and some of the tangles of hate speech today. Well, 251 00:21:45.839 --> 00:21:51.920 at that time, the case involved several workers at the Avis plant at 252 00:21:52.000 --> 00:22:00.039 San Francisco Airport, and these were all Latins, all Hispanics, and I 253 00:22:00.079 --> 00:22:03.799 don't think anybody was really checking their immigration status, at least of Alibis. 254 00:22:06.000 --> 00:22:11.960 So they had a straw boss who was the teamster business agent, and he 255 00:22:12.039 --> 00:22:18.359 was not Hispanic. He was from Irish descent, and he would abuse them 256 00:22:18.400 --> 00:22:30.200 by calling them wet backs and some adjectives before the term went back. And 257 00:22:30.359 --> 00:22:33.920 they complained about this, and they brought an action for about eight or ten 258 00:22:34.000 --> 00:22:41.359 of them, and not all of them recovered, but they brought an action 259 00:22:41.640 --> 00:22:51.119 based on harassment in the workplace, harassment at work, and the evidence was 260 00:22:51.279 --> 00:22:56.440 pretty strong and pretty good against the straw boss, especially when he took the 261 00:22:56.519 --> 00:23:06.519 stand. He was very credible. So I allowed the jury to determine damages 262 00:23:06.559 --> 00:23:11.440 in the case, and the damages were pretty modest, but Avis wanted to 263 00:23:11.440 --> 00:23:15.079 take the case up, and they took the case up to the Court of 264 00:23:15.119 --> 00:23:22.759 Appeal and the California Supreme Court, and the petitioned for sarciaria to the United 265 00:23:22.759 --> 00:23:29.480 States Supreme Court. And the theory was that the racial epithets, which had 266 00:23:29.519 --> 00:23:37.799 been stated to all the workers, was free speech, and the unreact or 267 00:23:37.000 --> 00:23:48.039 the Workplace Non Harassment Act was trumped by notions of the free speech. And 268 00:23:48.119 --> 00:23:52.680 it was my view that the use of these epithets was not for the purpose 269 00:23:52.759 --> 00:24:00.480 of discussing whether they were accurate and whether the people really were blank way backs, 270 00:24:00.720 --> 00:24:06.759 but we're used solely for the purpose of harassment and hate at the workplace. 271 00:24:07.759 --> 00:24:12.799 And the judgment was affirmed by the Court of Appeal two to one and 272 00:24:12.839 --> 00:24:18.160 by the California Supreme Court four to three. And when I went to Supreme 273 00:24:18.200 --> 00:24:23.440 Court, there were two to send some denial of social one of which was 274 00:24:23.519 --> 00:24:29.440 Justice Thomas. Oh. Interesting, yeah, he he probably would have been 275 00:24:29.440 --> 00:24:33.119 on your side, though actually, I mean, well today hate speech he 276 00:24:33.200 --> 00:24:37.480 has defined as anything that offends me, which is distinct, isn't it from 277 00:24:38.000 --> 00:24:41.480 from the kind of speech you describe, which really is meant to be harassment, 278 00:24:41.640 --> 00:24:47.559 intimidating, so forth. This was the speech that the straw boss of 279 00:24:47.559 --> 00:24:55.400 the teamster guy used was anything but persuasive. Right, yeah, right, 280 00:24:55.640 --> 00:24:59.759 Okay, I know I think you did a lot of work with railroads, 281 00:25:00.039 --> 00:25:03.039 but you know people want a railroads these days. But do you have any 282 00:25:03.079 --> 00:25:07.559 others from that period that you want to bring to mind or Well? When 283 00:25:07.559 --> 00:25:12.000 I came to San Francisco, I didn't have a job, and so I 284 00:25:12.039 --> 00:25:18.839 asked the Standford Placement office what jobs were available. They said, go see 285 00:25:18.160 --> 00:25:22.519 the done firm on Montgomery Street. I had no idea what they did. 286 00:25:22.559 --> 00:25:26.119 I thought I was going to be a tax lawyer, and it turned out 287 00:25:26.160 --> 00:25:30.279 that they offered me a job. I took the first job I was offered, 288 00:25:30.640 --> 00:25:37.400 and they said, we do railroad defense work, personal injury work, 289 00:25:37.200 --> 00:25:41.759 we do insurance defense work, and we'll get you ready to go to trial. 290 00:25:41.799 --> 00:25:47.599 And I was trying cases within a year of going there. First first 291 00:25:47.680 --> 00:25:52.640 chair in federal and state court, which is probably doesn't isn't done anymore now, 292 00:25:52.119 --> 00:25:59.000 but I was trying a lot of cases, probably going trial six or 293 00:25:59.039 --> 00:26:07.559 seven times year in cases also doing construction cases. I was representing contract was 294 00:26:07.559 --> 00:26:11.519 against municipalities, and I love the work. I thought that trying cases, 295 00:26:11.599 --> 00:26:15.920 getting ready for cases, I'm going to travel with jury cases with really very 296 00:26:15.960 --> 00:26:21.400 interesting and a lot of fun. So in to move ahead to nineteen eighty 297 00:26:21.480 --> 00:26:25.160 nine, Governor George Duke Majon comes calling and he wants to point you to 298 00:26:25.240 --> 00:26:29.960 the Superior Court here in San Francisco. And two things at least are interesting 299 00:26:29.960 --> 00:26:33.359 about that. One is no doubt it was difficult even in the late eighties 300 00:26:33.359 --> 00:26:40.440 to find a Republican lawyer of any experience in San Francisco, where even then 301 00:26:40.480 --> 00:26:44.599 Republicans met in a phone booth in this town. But in second so how 302 00:26:44.599 --> 00:26:47.839 about you? And but then, of course sup your court. You have 303 00:26:47.880 --> 00:26:51.160 to stand for election on the next cycle, which was only a year later, 304 00:26:51.799 --> 00:26:55.559 and you did so with the i think across the board support of San 305 00:26:55.559 --> 00:27:00.839 Francisco Democrats, most particularly then Speaker Willie Brown. I was at Phil Burton 306 00:27:00.920 --> 00:27:06.640 John one of the Burton brothers, and tell us a little bit about that, 307 00:27:06.680 --> 00:27:10.720 because I think that's interesting that you were able to appeal to support of 308 00:27:10.759 --> 00:27:15.960 the democratic establishment and take it from there. Well, what happened was I 309 00:27:17.000 --> 00:27:22.039 went to lunch with a classmate from Stanford Law School who was a friend of 310 00:27:22.119 --> 00:27:29.160 the governors, and he had a list of names of people who wanted to 311 00:27:29.200 --> 00:27:34.039 be appointed to the Superior Court in San Francisco, and he asked me my 312 00:27:34.160 --> 00:27:40.359 opinion of these people. And I looked at the list and I said to 313 00:27:40.440 --> 00:27:44.799 him, I'm sure that all of these people when they come home at night 314 00:27:45.079 --> 00:27:49.960 are recognized by the dog. But I've never heard of these people before. 315 00:27:51.359 --> 00:27:56.680 Who are there? Who are these bozos? So he said, well, 316 00:27:56.880 --> 00:28:03.160 wise guy, what about you, at which point I said, well, 317 00:28:03.240 --> 00:28:06.480 let me think about it. And I called my wife and I said, 318 00:28:07.200 --> 00:28:12.119 there's this possible offer of a Superior court judge ship, and she's asked me 319 00:28:12.160 --> 00:28:18.920 to Superior court judges work on Saturdays and Sundays and preparing for trial. I 320 00:28:18.960 --> 00:28:22.920 said, no, they don't. She said, take the job. We 321 00:28:22.000 --> 00:28:26.119 had four boys at that time, and we had a lot of little games 322 00:28:26.160 --> 00:28:30.519 to go to, right, So I took the job, and within eight 323 00:28:30.599 --> 00:28:38.559 days I found that I was being run against by a woman who was a 324 00:28:38.599 --> 00:28:44.759 self proclaimed lesbian and was against me because I belonged to the Olympic Club, 325 00:28:45.240 --> 00:28:49.640 and that was the reason that she was running against me. But I had 326 00:28:49.680 --> 00:28:56.440 been careful enough when I talked to the Governor's Appointment secretary to ask if there 327 00:28:56.480 --> 00:29:03.039 would be an election challenge stability before I took the job, and he said 328 00:29:03.079 --> 00:29:04.400 there would be. And I said, well, then I can't take the 329 00:29:04.519 --> 00:29:10.039 job until I can talk to somebody else. And he said, you don't 330 00:29:10.039 --> 00:29:12.039 have to talk to anybody else. I've got the authority to offer you the 331 00:29:12.119 --> 00:29:15.880 job. I said, yes, I have to talk to somebody else. 332 00:29:15.920 --> 00:29:21.839 He said who too. I said, Willy Brown and Willie and I we're 333 00:29:21.880 --> 00:29:29.440 friends and we'd represented Will's Bashford together in the past, and so I asked 334 00:29:29.480 --> 00:29:33.839 him, Willy, will you back me against the field and he said yes. 335 00:29:34.759 --> 00:29:37.759 So with that I went back down. I said, okay, I'll 336 00:29:37.759 --> 00:29:41.200 take the job, and sure enough, right after I got the call, 337 00:29:41.640 --> 00:29:45.640 I called Willie and he said, come on down, let's talk about the 338 00:29:45.680 --> 00:29:49.160 campaign, and he gave me some terrific hints and I ran a campaign for 339 00:29:49.200 --> 00:29:55.720 four months from February to June, and we won fifty eight to forty two. 340 00:29:56.559 --> 00:30:02.880 Yeah. Just the folks in the backing here just pointed like that, 341 00:30:03.279 --> 00:30:07.960 yeah, and maybe as a turn up somewhere. So then we fast forward 342 00:30:08.000 --> 00:30:12.960 to at night, sorry two thousand and three, the White House comes calling. 343 00:30:15.759 --> 00:30:18.720 There was some young fellow in the Council's office name Brett Kavanaugh, I 344 00:30:18.759 --> 00:30:21.799 think, calls you up and says, what would you think about being a 345 00:30:21.880 --> 00:30:26.400 point of the Ninth Circuit Court of Appeals? And then history repeats you again 346 00:30:26.519 --> 00:30:30.839 had the support of the San Francisco Democratic establishment, including the two senators from 347 00:30:30.880 --> 00:30:37.000 here. And I guess the two part question is tell us a little bit 348 00:30:37.000 --> 00:30:38.920 more about how that came about, because that's not automatic at all anymore. 349 00:30:40.200 --> 00:30:44.599 And I wonder if that era of sort of mutual respect that you saw was 350 00:30:44.640 --> 00:30:48.079 someone like Willy Brown in nineteen ninety and in two thousand and three, if 351 00:30:48.079 --> 00:30:55.200 that's possible anymore. It seems like that has now almost made impossible. I'll 352 00:30:55.240 --> 00:30:57.599 stop there and let you tell it how you want to. Well, I 353 00:30:57.640 --> 00:31:02.920 was on the on the Superior Court for thirteen years, and I was getting 354 00:31:02.960 --> 00:31:08.839 ready to retire and looking around at jams and adr to do mediation arbitration work, 355 00:31:10.640 --> 00:31:15.519 and then I got a call from this gentleman named Kavanaugh, who had 356 00:31:15.559 --> 00:31:21.920 never met before, who said that he would like me to drop by some 357 00:31:22.160 --> 00:31:29.200 afternoon to discuss judicial appointments, and I said, mister Kavana, I'll look, 358 00:31:29.240 --> 00:31:33.279 I'll talk about anybody you want to talk about. But dropping by it's 359 00:31:33.319 --> 00:31:37.759 a little bit difficult because street cars don't run very often between San Francisco and 360 00:31:37.920 --> 00:31:41.799 Washington, d C. So he said, well, we're thinking about you 361 00:31:42.480 --> 00:31:47.000 to appoint you to the ninth Circuit. And I said, when's your next 362 00:31:47.000 --> 00:31:55.799 appointment? He said Wednesday at three forty five. So I went there and 363 00:31:55.880 --> 00:32:04.039 I was questioned by Kavanaugh, Flannagan and Barns and the deputy White House Counsel 364 00:32:04.160 --> 00:32:12.359 and also Gonzalez came in, and then after a while I got a call 365 00:32:13.359 --> 00:32:16.160 from Cavan. I was saying, we're ready to nominate you, which you've 366 00:32:16.200 --> 00:32:22.400 got a clear Boxer and Feinstein that said, well, Feinstein, I don't 367 00:32:22.440 --> 00:32:25.000 think I have any problem. I've known her for years. We went to 368 00:32:25.079 --> 00:32:34.039 Stanford together, and I've known her because I've went to a house with her 369 00:32:34.079 --> 00:32:38.319 former husband, Jack Burman, to pick up the child Kathy, and take 370 00:32:38.359 --> 00:32:43.720 her about for outings to play tennis and things like that, and so I 371 00:32:43.759 --> 00:32:46.119 don't think there's any problem there. But but Boxer I don't know at all. 372 00:32:46.640 --> 00:32:54.519 And so John Burton came to my aid and cleared Boxer for me, 373 00:32:55.200 --> 00:33:01.960 and I asked him once why because we agreed on politics about everything, and 374 00:33:02.079 --> 00:33:06.960 he said, you're the best at blank Bush is going to be able to 375 00:33:07.000 --> 00:33:12.240 give us and with more you've got one blanking foot in the grave. And 376 00:33:12.240 --> 00:33:20.559 well, and we'll get the seat back soon. That's what Europeans call real 377 00:33:20.599 --> 00:33:30.880 politique. All right. So, uh so, by the way, it's 378 00:33:30.920 --> 00:33:35.319 hard to believe, but I got past the Senate eighty six to zero. 379 00:33:35.720 --> 00:33:40.799 Yeah, yeah, that's uh that's also something we may not see again in 380 00:33:40.799 --> 00:33:45.759 our lifetimes. I don't know we'll see h So you're a trial judge for 381 00:33:45.799 --> 00:33:50.000 a first a trial lawyer, gonna trial judge, and then an appett judge. 382 00:33:50.519 --> 00:33:54.839 What were the differences that you observed or experienced between trial judging and a 383 00:33:54.920 --> 00:34:00.400 pellet judging. Were there any surprises for making that transition. Well, the 384 00:34:00.480 --> 00:34:06.200 big difference is trial you get to meet people, you get to know the 385 00:34:06.279 --> 00:34:12.960 attorneys, you get to know the witnesses, the jurors, and on appeal 386 00:34:13.000 --> 00:34:19.599 all you get to notice paper because yes, there are oral arguments. The 387 00:34:19.639 --> 00:34:22.960 attorneys come on for ten minutes or twenty minutes and then you never see them 388 00:34:23.079 --> 00:34:30.559 until maybe three years after that. And there are relatively few appellat attorneys who 389 00:34:30.559 --> 00:34:37.199 I could even recognize my name and face, Whereas as a trial judge, 390 00:34:37.239 --> 00:34:39.079 I knew a lot of attorneys because they'd be there for a week or two 391 00:34:39.199 --> 00:34:45.239 trying a case, get to know them. As a trial judge you have 392 00:34:45.280 --> 00:34:52.880 a great deal more flexibility what's sometimes called discretion, which is a nice genteel 393 00:34:52.960 --> 00:35:04.920 word for power as to what's are going to do um And on appeal you've 394 00:35:05.079 --> 00:35:08.400 got to follow the law of the Ninth Circuit, and that's why we have 395 00:35:08.920 --> 00:35:14.000 excellent clerks that tell us what the law is, and sometimes they're right. 396 00:35:16.000 --> 00:35:22.920 So the big difference is the difference between the human personal contact in trial courts 397 00:35:22.000 --> 00:35:34.880 and the more intellectual and formalized review of issues on the appellate court. And 398 00:35:34.920 --> 00:35:40.400 then you got to write opinions, and you have to I like to write 399 00:35:40.400 --> 00:35:47.280 opinions that sort of follow what I think, um not, rather than what 400 00:35:49.400 --> 00:35:57.320 chat eyebox or AI thinks. Right. By the way, I'm going to 401 00:35:57.400 --> 00:36:00.840 open up to some audience questions in a few minutes. But what I want 402 00:36:00.840 --> 00:36:04.320 to do is I want to ask the judge about three or four areas of 403 00:36:04.320 --> 00:36:07.679 the law and specific cases, and then we'll do the audience question. So 404 00:36:07.719 --> 00:36:10.480 I'll prepare you to think about your questions if you have some. So I 405 00:36:10.559 --> 00:36:14.800 say, I want to ask you about a couple of specific cases in a 406 00:36:14.840 --> 00:36:16.800 couple of general areas of the law. The first ones, I think is 407 00:36:16.880 --> 00:36:22.239 the case that I've heard you express an interviewers or reading articles that is either 408 00:36:22.280 --> 00:36:27.599 your favorite case or the opinion you're most proud of, whatever, whatever the 409 00:36:27.679 --> 00:36:30.800 characterization is, that's correct, And that's Hinkson versus United States. I didn't 410 00:36:30.840 --> 00:36:34.239 have a chance to read it, and I'm not sure I completely grasp it. 411 00:36:34.360 --> 00:36:37.920 So walk us through that and tell us why it's particularly important to you. 412 00:36:39.159 --> 00:36:47.079 Hinkson versity the United States was a very flamboyant case. Hinkson wanted to 413 00:36:47.199 --> 00:36:53.440 kill the district court judge who's presided over his tax fraud trial, and to 414 00:36:53.639 --> 00:37:01.800 do that he hired a person who represented himself at the Marine combat veteran who 415 00:37:02.079 --> 00:37:14.280 was expert in killing people. And so then the Marine combat veteran went to 416 00:37:14.320 --> 00:37:21.840 the FBI and spilled the beans and they indicted Hinkson, and so the trial 417 00:37:21.920 --> 00:37:29.960 got started on conspiracy and intend to commit a murder of a federal trial federal 418 00:37:29.960 --> 00:37:37.880 trial judge. And it turned out that the marine combat veteran was neither a 419 00:37:37.960 --> 00:37:42.320 marine, nor a combat veteran, nor killed anybody. It was a complete 420 00:37:42.320 --> 00:37:50.840 phone. And so Hanksen was convicted and made a motion for new trial. 421 00:37:51.679 --> 00:37:58.880 And the judge who was at that trial was Judge Tallman colleague, determined that 422 00:37:59.199 --> 00:38:04.480 Hinkson's attorn Nie and Hinkson had known about the man being a phony and hadn't 423 00:38:04.519 --> 00:38:12.679 brought it up in his case and defense right, and therefore they hadn't exercised 424 00:38:12.760 --> 00:38:17.840 due diligence in at the time of trial, and weren't entitled to a new 425 00:38:17.920 --> 00:38:23.400 trial because this man was such a phony. So the issue was to us 426 00:38:23.400 --> 00:38:30.079 in the Ninth Circuit, was Judge toomb and right in saying and making his 427 00:38:30.199 --> 00:38:36.320 finding of due diligence. Now, up to that time we had a rule 428 00:38:36.519 --> 00:38:43.199 that a court of appeal could overturn a finding a fact by a trial judge 429 00:38:43.199 --> 00:38:50.079 if if the panel had a definite and firm conviction that an error had been 430 00:38:50.079 --> 00:38:57.599 made. Now, I consider that to be totally subjective, and so I 431 00:38:57.639 --> 00:39:01.480 wrote an opinion saying, no, you can't overturn a finding a fact by 432 00:39:01.480 --> 00:39:09.360 a trial judge unless it's implausible, illogical, or can't be inferred from the 433 00:39:10.000 --> 00:39:16.079 from the facts and the record. Now, this was an example of separating 434 00:39:16.119 --> 00:39:23.280 the power discretion between the district court, the trial court, and the Court 435 00:39:23.320 --> 00:39:28.360 of Appeal. I have been a trial court judge, and I thought that 436 00:39:28.480 --> 00:39:32.599 determinations of issues of fact should be done by the trial court, not by 437 00:39:32.679 --> 00:39:38.840 the Court of Appeal on a cold record without having seen the witnesses. And 438 00:39:39.000 --> 00:39:44.360 that turned out to be the rule of decision on the Ninth Circuit ever since, 439 00:39:44.400 --> 00:39:46.880 I guess two thousand and five, the case have been cited over eight 440 00:39:46.960 --> 00:39:51.119 hundred times. Yes, so am i? Am I right? In a 441 00:39:51.159 --> 00:39:54.760 summarizing by saying that it is an act of judicial strength, rightly understood, 442 00:39:55.440 --> 00:40:00.880 right right on the part of the appellate court. Correct, That's what I 443 00:40:00.920 --> 00:40:04.920 mean. Yeah, that's right, Because I mean, all right, I'll 444 00:40:04.920 --> 00:40:09.599 just press on here because it's fascinating subject. Another domain of cases, several 445 00:40:09.639 --> 00:40:15.599 that came before the Ninth Circuit and that you sat on panels. That's cases 446 00:40:15.599 --> 00:40:17.920 involving the First Amendment, the Establishment Clause, and the free Exercise Clause, 447 00:40:19.039 --> 00:40:22.039 one of them which I remember vividly. I think I told you the story 448 00:40:22.079 --> 00:40:25.719 of Ganglish storming into my office after the Ninth Circuit said the Pledge of Allegiance 449 00:40:25.800 --> 00:40:30.800 was unconstitutional in high dudgeon. That's a funny story. I won't tell you 450 00:40:30.880 --> 00:40:35.239 now, but you were I think, involved in that particular case and several 451 00:40:35.280 --> 00:40:37.000 others like it. So talk a little bit about some of those, because 452 00:40:37.000 --> 00:40:43.360 I think that's a great highlight reel there. The Ninth Circuit had found that 453 00:40:45.679 --> 00:40:52.960 mister Newdau, doctor Nudau had a daughter going to a school in Real Vista, 454 00:40:52.079 --> 00:41:00.159 and doctor Nudao was a firm convinced, very articulate, very until was 455 00:41:00.199 --> 00:41:05.719 an atheist, and he didn't like the idea of his daughter listening to the 456 00:41:05.760 --> 00:41:09.920 Pledge of Allegiance which had the words under God inserted into Pledge of Allegiance in 457 00:41:10.039 --> 00:41:15.440 nineteen fifty four, and he claimed that this was an establishment of religion. 458 00:41:15.000 --> 00:41:21.199 And the Ninth Circuit found that doctor Newdow was absolutely correct, and in a 459 00:41:21.280 --> 00:41:28.519 decision written by Judge Goodwin with Judge Reinhardt joining him, that was a decision. 460 00:41:28.800 --> 00:41:31.159 He went to the Supreme Court. Something strange happened to the Supreme Court 461 00:41:31.840 --> 00:41:40.119 just as Kennedy determined an oral argument that mister Newdau didn't have custody of his 462 00:41:40.280 --> 00:41:46.039 daughter because he'd been divorced and the custody went to his wife, and therefore 463 00:41:46.119 --> 00:41:52.199 found that mister Newdou didn't have standing to bring the action so reversed on nine 464 00:41:52.280 --> 00:41:57.320 ground. It came back to the Ninth Circuit when doctor doctor Newdow, now 465 00:41:57.360 --> 00:42:04.960 an attorney, found a another parent withstanding with another atheist child, and the 466 00:42:05.000 --> 00:42:09.360 case came back, and strangely enough, just Judge Reinhardt was on the panel 467 00:42:09.400 --> 00:42:21.519 again, so Judge Brian Heart, Judge Betty Nelson, and myself were on 468 00:42:21.559 --> 00:42:25.440 the panel, and I took the position that the words under God were a 469 00:42:27.320 --> 00:42:35.519 simply an affirmation and enthusiastic affirmation of the pledge of allegiance, like very often 470 00:42:35.519 --> 00:42:37.840 you'll hear by God, I'll do this. You don't really want to invoke 471 00:42:37.920 --> 00:42:44.480 the deity, but but you want to emphasize what you're saying, right, 472 00:42:45.199 --> 00:42:51.239 And to my great surprise, Judge Betty Nelson, who was appointed by Judge 473 00:42:51.280 --> 00:42:55.400 Carter by President Carter, as was Judge Reinhart, agreed with me, to 474 00:42:55.639 --> 00:43:04.000 the great dislike of Judge Reinhardt, who who wrote a dissent that went one 475 00:43:04.079 --> 00:43:08.440 hundred and fifty three pages with a table of contents and forty four footnotes. 476 00:43:09.480 --> 00:43:16.280 But I won't get into all those things. But the Supreme Court denied Searcher 477 00:43:16.400 --> 00:43:20.800 Rarey, And so the rule of the Ninth Circuit is the same as it 478 00:43:20.840 --> 00:43:22.679 is in the Seventh Circuit, on the fourth Circuit and the first Circuit, 479 00:43:23.079 --> 00:43:30.199 that the pledge of allegiance is constitutional and is not an establishment of religion because 480 00:43:30.239 --> 00:43:34.039 of the words under God. But well, you know what I mean when 481 00:43:34.039 --> 00:43:37.719 I remember at the moment was I'm kind of surprised that Judge Reinhardt would extend 482 00:43:37.760 --> 00:43:40.800 himself at such great length. You may remember that the United States Senate, 483 00:43:40.840 --> 00:43:44.719 I think, the day after the ruling came out, voted a resolution I 484 00:43:44.719 --> 00:43:50.239 think ninety eight to zero denouncing the opinion. And I don't know, I 485 00:43:50.239 --> 00:43:52.800 mean, you don't go for the weeds. But the although the Constitution does 486 00:43:52.880 --> 00:43:59.719 not on the surface resemble the invocations of the deity like a declaration of independence, 487 00:44:00.559 --> 00:44:02.920 there is at the end that phrase that says in the year of our 488 00:44:04.039 --> 00:44:08.679 Lord seventeen eighty seven. So there it is, is that phrase of the 489 00:44:08.719 --> 00:44:14.159 Constitution unconstitutional that's a rhetorical question, right, But this is how crazy thinks 490 00:44:14.159 --> 00:44:19.440 of And you know, isn't it typical of Judge Conny to pick on that, 491 00:44:19.519 --> 00:44:24.639 to try and kick it out rather than grappling with the okay um uh. 492 00:44:25.519 --> 00:44:31.280 Next topic is racial discrimination. We're all waiting with bated breath for the 493 00:44:31.320 --> 00:44:36.760 Harvard and un Seat case decision coming in June. A lot of people are 494 00:44:37.039 --> 00:44:42.719 hanging on and mentioning the phrase that Chief Justice Roberts used in the Seattle Public 495 00:44:42.719 --> 00:44:45.000 School's case several years ago, that the way to stop discriminating by race is 496 00:44:45.039 --> 00:44:50.840 to stop discriminating by race, which turns out a phrase that came from you. 497 00:44:51.599 --> 00:44:55.360 That's right, two years before in the same case, I has said 498 00:44:55.400 --> 00:45:02.360 exactly that at the end of my opinion and partment might descend from denial of 499 00:45:02.400 --> 00:45:13.480 rehearing. And it was it turned out that somebody else noticed that Chief Justice 500 00:45:13.599 --> 00:45:21.800 Roberts had appropriated without attribution, that phrase, and that other person was Justice 501 00:45:21.880 --> 00:45:28.199 Brier in his descent, who repeated line for word for word what I had 502 00:45:28.239 --> 00:45:32.320 said in the descent, which is kind of changed strange if you think about 503 00:45:32.360 --> 00:45:38.719 it, because usually descents are read by the majority opinion before they go out 504 00:45:38.800 --> 00:45:45.119 to be printed, right, So I would think that Chief Justice read Justice 505 00:45:45.159 --> 00:45:52.199 Brier's reminding him that the phrase was mine. And I haven't changed in my 506 00:45:52.320 --> 00:45:59.280 view. I think that the way to stop racial discrimination is to stop discriminating 507 00:45:59.360 --> 00:46:07.480 by race. The one year, nineteen eighty five, I think it was 508 00:46:07.800 --> 00:46:15.719 the Stanford Law Review sent up a magazine writer to interview me, and I 509 00:46:15.760 --> 00:46:20.840 gave an interview, and then I asked the writer why she had picked me 510 00:46:21.719 --> 00:46:25.960 for the interview, and she said, well, you turned out to be 511 00:46:27.039 --> 00:46:32.280 the first Latino who graduated from Stanford Law School. I said, I don't 512 00:46:32.320 --> 00:46:37.320 think that's quite right, because Stanford Law School started in eighteen ninety one. 513 00:46:37.719 --> 00:46:43.920 I graduated nineteen fifty eight, and there had to be somebody in between who 514 00:46:44.000 --> 00:46:47.360 graduated who was a Latino or Hispanic. But I told her, I'll tell 515 00:46:47.400 --> 00:46:52.760 you one thing that's true. When I was at Stanford and Stanford Law School, 516 00:46:53.239 --> 00:47:00.400 I didn't know I was a Latino. Well, but you're not even 517 00:47:00.440 --> 00:47:07.199 now. But it's the tanks now, isn't it? Or something? All 518 00:47:07.280 --> 00:47:10.880 Right? So I'm close my part of this with two general questions about the 519 00:47:10.960 --> 00:47:15.079 legal scene today, and then we'll take some audience questions. The first is 520 00:47:15.800 --> 00:47:20.760 the preface is this What are some of the toughest areas of the law today 521 00:47:20.840 --> 00:47:23.960 and some specific examples that come to mind. Is the Chevron doctrine is suddenly 522 00:47:24.000 --> 00:47:28.159 up for grabs, and you've been saying for years that needed to be rethought. 523 00:47:28.920 --> 00:47:34.760 We now have the Major Questions Doctrine articulated last spring, and we're not 524 00:47:34.800 --> 00:47:37.320 sure that's going yet. So what are your reflections on that or any any 525 00:47:37.400 --> 00:47:43.400 other areas that you're looking at saying, boy, this needs some serious rethinking. 526 00:47:44.679 --> 00:47:50.280 Well, Steve, the Major Questions Doctrine and the Chevron Doctrine both involved 527 00:47:50.320 --> 00:47:55.159 the same fundamental issue, which is a separation of powers between the executive, 528 00:47:55.400 --> 00:48:02.960 those legislative and the judiciary. M I've been a great doubter of the Chevron 529 00:48:04.079 --> 00:48:07.679 doctrine for years. I gave a speech don a Heritage in twenty fifteen on 530 00:48:07.840 --> 00:48:12.800 it, and I sort of ended the speech by saying, let's junk Chevron, 531 00:48:13.920 --> 00:48:21.760 because Chevron is the idea that if Congress and acts legislation which the Court 532 00:48:21.840 --> 00:48:29.400 finds to be ambiguous, rather than try to noodle through the ambiguity with the 533 00:48:29.480 --> 00:48:37.000 rules of statutory construction and cannons a statuary construction, the Court should defer to 534 00:48:37.159 --> 00:48:44.920 the administrative agency's interpretation of Congress's Act. Now, it might come as a 535 00:48:44.960 --> 00:48:52.039 great surprise to you, but when you allow the agency to interpret the Congressional 536 00:48:52.079 --> 00:48:58.639 Act, it usually ends up with the agency ratifying its own actions. Strange 537 00:48:58.760 --> 00:49:06.639 enough, I always thought that that was a flagrant violation of the separation of 538 00:49:06.679 --> 00:49:13.840 powers, that the agency should not be telling the judiciary how to interpret Congress's 539 00:49:13.920 --> 00:49:17.280 Act. Congress can't even do that. They can't pass an act saying we 540 00:49:17.320 --> 00:49:22.119 really meant this. If you really meant this enacted and have it signed, 541 00:49:22.280 --> 00:49:27.239 presented to the President and signed, you just can't have a sort of an 542 00:49:27.239 --> 00:49:37.440 advisory opinion. And the major Questions doctrine is another separation of powers issue because 543 00:49:38.280 --> 00:49:45.360 in the West Virginia versus EPA case, building on the Brown and Williamson tobacco 544 00:49:45.440 --> 00:49:51.239 case of years before, the Court has said, if Congress really meant to 545 00:49:51.440 --> 00:49:59.679 make radical changes in industry and in finance, which these agencies want to make, 546 00:50:00.079 --> 00:50:04.000 it should say so clearly. If it doesn't say so clearly, we're 547 00:50:04.000 --> 00:50:09.360 going to find that there's no expressed intent in the in the statute. Yeah, 548 00:50:09.360 --> 00:50:15.239 I think we're looking ahead here. I think just today, or maybe 549 00:50:15.239 --> 00:50:16.480 it was late yesterday. I just saw the headline. I didn't read a 550 00:50:16.480 --> 00:50:19.360 story, and so I don't know if I've got this quite right. But 551 00:50:19.440 --> 00:50:22.880 a some federal court, i'm not sure what level, has said that the 552 00:50:22.880 --> 00:50:28.280 proposed new rules on the waters of the United States rules of the by DPA 553 00:50:28.440 --> 00:50:32.159 are unlawful. And then of course we're going to see what happens with these 554 00:50:32.159 --> 00:50:37.360 proposed rules on cars that we're all gonna have to drive electric cars in five 555 00:50:37.480 --> 00:50:40.239 years, six years. It's astonishing. So we'll see about all that. 556 00:50:42.320 --> 00:50:44.679 I mean this as a last question. Then we'll turn up the audience. 557 00:50:44.800 --> 00:50:49.000 I quote, I want to read a quote from you. I'm not sure 558 00:50:49.000 --> 00:50:52.880 when you said this, but it doesn't matter because it channels Alexander Hamilton. 559 00:50:53.079 --> 00:50:59.239 So you're a good company. Here's here's your comment. The legislature and the 560 00:50:59.280 --> 00:51:04.039 executive follow what we order. We don't have a budget, we don't have 561 00:51:04.079 --> 00:51:08.480 an army. What can we do accept issue decisions. But such is the 562 00:51:08.559 --> 00:51:15.000 respect in which the judiciary is held that there's a great deal of responsibility in 563 00:51:15.199 --> 00:51:21.199 exercising that power. Okay, Like I say, Hamilton's said something we don't 564 00:51:21.239 --> 00:51:23.159 have the power of the purse of the sword in one of the federal's papers. 565 00:51:23.920 --> 00:51:30.440 And yet just last week after the federal judge in Texas issued a ruling 566 00:51:30.480 --> 00:51:36.559 it's roiling the waters about the FDA's authority to authorize fist the prone or whatever 567 00:51:36.559 --> 00:51:38.800 it's called, and then of course stayed the effect of it for a week 568 00:51:38.840 --> 00:51:45.599 pending appeals. You had some leading political figures in another branch saying the administration, 569 00:51:45.679 --> 00:51:50.559 the executive branch, and states just ignore this ruling, just defy the 570 00:51:50.639 --> 00:51:53.559 court. I don't know this as an ioland example that will go away, 571 00:51:53.639 --> 00:52:00.440 or if that's a symptom of some rising would he say, disres back to 572 00:52:00.480 --> 00:52:04.920 contempt. The various ways you can slice this up, but I wonder what 573 00:52:05.000 --> 00:52:08.519 you make of all that. Well, first of all, it's nothing new. 574 00:52:10.880 --> 00:52:21.519 President Jackson didn't like the Supreme Court's decision headed down by Chief Justice Marshall 575 00:52:22.000 --> 00:52:27.920 in the Indian Tribes case, and he said, have Marshall enforced his own 576 00:52:28.000 --> 00:52:34.159 order? And this was eighteen h five or eighteen twelve or so. And 577 00:52:34.199 --> 00:52:42.119 then President Lincoln didn't like dred Scott and said it's only going to affect the 578 00:52:42.239 --> 00:52:47.960 parties to the action, so he tried to the cabinet, and Harry Truman 579 00:52:49.480 --> 00:52:52.119 didn't like the national labor relation to that all that much when he wanted to 580 00:52:52.119 --> 00:53:00.280 take over Jones and Laughlin. But the judiciary survived all these ex ecutive attempts 581 00:53:00.320 --> 00:53:07.960 to override the judiciary, and I think we'll survive the next one. All 582 00:53:07.039 --> 00:53:14.239 right, let's let's have some audience questions or comments, if you would. 583 00:53:14.599 --> 00:53:16.119 We do it this way on campus. Please get your name if you would, 584 00:53:16.280 --> 00:53:20.519 and we try to follow jeopardy rule, which is make your statement in 585 00:53:20.559 --> 00:53:22.199 the form of a question. So yes, ma'am. So, my name 586 00:53:22.320 --> 00:53:27.519 is Sarah Reese. I'm an attorney, a long time Federalist Society, a 587 00:53:27.559 --> 00:53:31.880 member. I'd love to hear about your wife and how your relationship with her 588 00:53:32.079 --> 00:53:37.719 contributed to the extraordinary career and life you've had. Well, as you've heard 589 00:53:38.719 --> 00:53:44.599 my wife's idea to get me into the judicial gig to begin with, right, 590 00:53:45.519 --> 00:53:52.159 she's been wonderfully supportive and well, I can't say enough about her help. 591 00:53:52.320 --> 00:53:59.119 She's been terrific and she's kept me on the straight and narrow. Someone 592 00:53:59.159 --> 00:54:04.719 else, Yes, sir, let me employ you Chevis, and what we're 593 00:54:04.800 --> 00:54:09.280 seeing at this Supreme Court level really upsets me recently because you don't have a 594 00:54:09.360 --> 00:54:15.280 Department of Justice. It's enforcing the protection necess or in the case of Justice 595 00:54:15.440 --> 00:54:22.480 Kavanaughs, and we haven't been able to resolve the issue of the league that 596 00:54:22.639 --> 00:54:27.880 has basically I think destroyed a good amount of the good wheel of a court. 597 00:54:28.960 --> 00:54:34.159 What can we do about that? Well, let me tell you in 598 00:54:34.480 --> 00:54:37.679 um, I guess it was in November there was a meeting of the Federal 599 00:54:37.800 --> 00:54:46.039 Usual Council in Washington, DC and the Attorney General, mister Garland, was 600 00:54:46.599 --> 00:54:53.880 asked by a judge of Circuit Court judge why he hadn't invoked federal protection for 601 00:54:54.119 --> 00:54:59.239 mister Cavanaugh. And his answer was, I turned it over to the state 602 00:54:59.280 --> 00:55:07.639 police and he wouldn't say another thing. So the provision of protection for judges, 603 00:55:08.400 --> 00:55:14.519 um, isn't the hands of the political branch of the executive And that's 604 00:55:14.559 --> 00:55:21.519 the only answer I can give you. Um, you had another issue we 605 00:55:21.639 --> 00:55:32.880 have been able to find out, Yeah, I think well, the Leaker 606 00:55:34.320 --> 00:55:43.880 investigation was carried out by a interior police person of the court without subpoena power 607 00:55:44.880 --> 00:55:52.719 and without any of the investigatory tools which the FBI for instance has so it's 608 00:55:52.760 --> 00:55:59.159 not a surprise to me that the leaguer has not been found. Yeah, 609 00:55:59.320 --> 00:56:01.239 yeah, that, Yeah, I have lots of thoughts that by someone else, 610 00:56:02.840 --> 00:56:07.639 anybody. Oh another one, I think you're you're a ringer, I 611 00:56:07.639 --> 00:56:14.400 think. But that's okay, okay, Yeah. Look, I didn't click 612 00:56:14.440 --> 00:56:16.960 for the Supreme Gurt. I clicked for United six District judge. But I 613 00:56:17.039 --> 00:56:22.199 gotta say that, um, I think it would be pretty hard to figure 614 00:56:22.239 --> 00:56:28.840 out who the leaker was when anybody can just print it out and pass it 615 00:56:28.880 --> 00:56:34.320 in a bar to some goud Um. So, I think it's a very 616 00:56:34.320 --> 00:56:37.599 bad thing that the league happened, But I don't think it would be that 617 00:56:37.760 --> 00:56:40.840 hard to effectuate a league if you wanted to. As a law clerd. 618 00:56:42.320 --> 00:56:45.559 Yeah, I agree with you. Don't put any ideas in the minds of 619 00:56:45.559 --> 00:56:51.960 the two law clive think about it. Yeah, I mean, I wasn't 620 00:56:52.000 --> 00:56:55.079 gonna get my own perspective. I'm thinking about the Reagan years. You know, 621 00:56:55.760 --> 00:57:01.559 as mentioned to, these two fat books about the Reagan presidency and leaks 622 00:57:01.599 --> 00:57:07.320 were driving Reagan crazy. And I think it was Attorney General Meese. By 623 00:57:07.320 --> 00:57:09.440 the way, we skipped over you arguing against law student and mee in a 624 00:57:09.480 --> 00:57:15.920 mood. Court, I ask you about that two one defending a labor union. 625 00:57:15.920 --> 00:57:21.519 That's the funniest part of the story, right, But it was at 626 00:57:21.519 --> 00:57:24.760 Berkeley is on home ground? Oh yeah, there we go. So you 627 00:57:24.760 --> 00:57:27.800 know, I think Mes had the I think it was me s a little 628 00:57:27.800 --> 00:57:30.239 fuzzy. Now. I had the idea that we already polygraph tests of everybody, 629 00:57:30.440 --> 00:57:34.400 you know, whoever might be the source of these national security leagues. 630 00:57:34.920 --> 00:57:37.199 And that's when George Schultz went into him and said, I hate leaks two, 631 00:57:37.760 --> 00:57:42.440 but if you make us all take polygraphs, I'm out of here in 632 00:57:42.480 --> 00:57:45.960 ten minutes. And Reagan rescinded the idea. I think a similar dynamic happens 633 00:57:45.960 --> 00:57:49.360 in the court, which is, yeah, you could have had the FBI 634 00:57:49.440 --> 00:57:52.199 command, you could have had polygraphs, which might have snared somebody who left 635 00:57:52.199 --> 00:57:55.159 it in a bar. But boy, what does that do to the culture. 636 00:57:55.400 --> 00:57:58.920 I'm not sure, but you can you can see the other side of 637 00:57:58.920 --> 00:58:01.159 the coin there, which is, do you really want to be tearing that 638 00:58:01.239 --> 00:58:05.920 much of the Court's culture apart to find this one leaker and this one extory. 639 00:58:06.159 --> 00:58:12.760 I don't know we'll see anyone else. Yes, sir, Yeah, 640 00:58:13.880 --> 00:58:23.119 is asked, what does THEE do if the has every tool and the ambiguity. 641 00:58:22.960 --> 00:58:29.159 Yeah, well, it's very simple. You take Chevron and Junket and 642 00:58:29.280 --> 00:58:34.800 you go back to Marbury versus Madison, and there it says it's the duty 643 00:58:34.840 --> 00:58:39.360 of the judiciary to determine what the law is. If the law is so 644 00:58:39.400 --> 00:58:45.000 ambiguous that you can't make out what Congress meant, you don't enforce it. 645 00:58:46.800 --> 00:58:52.840 Just say I can't understand what congressman say or meant, and therefore it's not 646 00:58:52.880 --> 00:58:59.960 applicable to the case. Next ye asking Congress to work a little harder than 647 00:59:00.320 --> 00:59:05.360 heavy. But yeah, someone else, especially a students are another student's got 648 00:59:05.360 --> 00:59:10.239 it all right, let's do students so right. I was talking to one 649 00:59:10.239 --> 00:59:14.519 of your clerks and he was saying that he wasn't gonna probably stay in San 650 00:59:14.559 --> 00:59:19.639 Francisco. And I think this applies all of the younger folks here. And 651 00:59:19.760 --> 00:59:24.400 with your wisdom of you know, decades of experience in these establishments in San 652 00:59:24.440 --> 00:59:30.800 Francisco, what is the one establishment you would recommend that these young folks go 653 00:59:30.880 --> 00:59:36.480 to before they leave town for a meal. And what would one saloon be 654 00:59:36.719 --> 00:59:43.000 that you would say, I've got to say you, I'm really out of 655 00:59:43.000 --> 00:59:47.039 the saloon league recently. I've been married for forty seven years. Right, 656 00:59:49.440 --> 00:59:53.760 the as far as restaurants go, we have a rule that we don't go 657 00:59:53.840 --> 00:59:59.519 to any restaurants. We can't walk to um and there are very few. 658 01:00:00.320 --> 01:00:07.119 Roses is one and dragonwell in Marina's two, and that's about all I can 659 01:00:07.159 --> 01:00:15.079 recommend. Plus Kapuros on Fisherman's Wharf because Luke Kapuro is a handball player and 660 01:00:15.000 --> 01:00:21.599 Louise as a handball player, and so therefore we're all friends. All right, 661 01:00:21.599 --> 01:00:23.039 Well, I'll pose a last question to draw us to an end, 662 01:00:23.320 --> 01:00:27.119 and it's going to be the earnest version of that question I was preparing to 663 01:00:27.159 --> 01:00:30.840 ask for the law students here. We should always ask someone like you this 664 01:00:30.920 --> 01:00:36.280 question for the law students here and people in the early years of their private 665 01:00:36.280 --> 01:00:39.599 practice or whatever they're doing. You know, what's next to what's one or 666 01:00:39.639 --> 01:00:44.719 two pieces of advice? What are things you wish you had known or been 667 01:00:44.760 --> 01:00:49.760 advised as a young lawyer in law students that you would now elect to pass 668 01:00:49.800 --> 01:00:52.760 on to someone. If that's a that's a very broad I know, but 669 01:00:52.920 --> 01:00:57.440 well, decide what kind of work you want to do. They're only two 670 01:00:57.519 --> 01:01:07.960 kinds of work, litigation and non litigation. And and then um, work 671 01:01:07.039 --> 01:01:17.039 hard because cream rises to the top. Yeah, Judge Bay, congratulations on 672 01:01:17.039 --> 01:01:21.960 a spectacular career and interesting life story. Thank you, thank you very much 673 01:01:21.960 --> 01:01:24.480 for coming tonight. And thank you all pladies and gentlemen. For now. 674 01:01:24.480 --> 01:01:27.400 We can have a drink. Right now, you can have a drink, 675 01:01:27.519 --> 01:02:24.920 yes, right, Comb the judge and comb the judge. Ricochet join the conversation.