Kevin Walsh:
Welcome. I’m Kevin Walsh, Knights of Columbus Professor of Law and the Catholic Tradition at the Catholic University of America, Columbus School of Law. I’m pleased to host a discussion today with Reynolds Holding, a research scholar at Columbia Law School and the author of Better Judgment: How Three Judges Are Bringing Justice Back to the Courts, which was published earlier this year by University of California Press. This virtual event is being held as part of the Project on Judicial Virtues at the Catholic University of America, Columbus School of Law, which is housed within the Center for the Constitution and the Catholic Intellectual Tradition or CIT. Now, for our CIT events on campus, we typically open with a prayer and let’s do the same for this virtual event. In the name of Father, Son, Holy Spirit. Lead us, Lord, in your path that we may enter into your truth. Glad in our hearts that we may fear your name. Amen.
Well, welcome and thank you for taking the time to talk about your book. I have it here and really enjoyed reading it. Before we get into the book itself, I think it would be helpful if you can describe how this particular book arose out of your day job or jobs.
Reynolds Holding:
Yeah. Well, thanks, Kevin, first of all, for having me on. I really appreciate it. That’s a good question because I had to change my day job just to be able to get this book done. I mean, there are many people who I, or at least I’ve heard of people who have a full-time job and they get up at four in the morning and write for two hours and then go to work. I was pretty clearly that was not going to be something that I was going to be able to do. So at the time the book idea came to me, I was an editor at Reuters and the job now, as you mentioned, I’m a research scholar at Columbia Law School, which gives me a lot more time to write on my own. At the time that I thought of this book, it was shortly after the financial crisis, so 2011, 2012, I was an editor at Reuters.
Reuters, I did a lot of the legal topics. And I remember being in a story meeting in the morning and hearing about this judge in New York, Jed Rakoff, who had gotten a number of the cases involving the banks, the SEC, the Securities and Exchange Commission, was suing banks, Citigroup, Bank of America, others. And Rakoff had a lot of these cases and the SEC would settle these cases fairly quickly and then go to the judge for approval. Rakoff said, “I’m not going to approve these settlements because they’re done on the basis of neither admit nor deny. The bank is not admitting nor denying.” The charges and I don’t know, you’re asking me to approve the settlement on the basis that they’re good for the public in the public interest. If I don’t know what happened, how can I do that? And I remember someone saying, and this was really extraordinary at the time.
It’s extraordinary still. And Rakoff was considered kind of a hero at the time for this. I don’t know if you remember that, but I remember somebody at the story meeting saying, “Somebody should write a book about this.” And I’d always wanted to write a book because as a journalist, I always thought of it as sort of the most accomplished, highest form of thing of writing that I could do. So I thought maybe this is a good topic. In any event, I found out more about Rakoff and I found out he does this sort of thing all the time. This sort of thing being, as one clerk told me, his superpower is to ask why, why should I prove the settlement? Why should I not strike down the death penalty when we know innocent people are being put to death? Which is a totally different story.
But in a number of cases, he’s really known for digging deep and not taking no simple yes or no as an answer without finding what’s behind it. Pretty soon it became clear to me that it had to be broadened beyond Rakoff. So I identified these three other judges that in very different ways do sort of the same thing, really make an effort to dig into the cases, to dig into finding out who the people are that come before them, and also to show that this is not just a unique thing. It’s not just with Rakoff. It applies to a variety of federal district court judges. So I found one in Jackson, Mississippi, a Black man, Carlton Reeves, who grew up in the 1960s and has that whole experience of the civil rights movement and growing up in Yazoo City, Mississippi. And the third judge is Martha Vazquez, who is Mexican American, has that whole immigrant experience.
Her father was an undocumented immigrant. She literally worked in the orange groves of Southern California with her parents as a child, has a very great sensitivity and capacity and understanding for her fellow immigrants. And each of these judges does what I first identified, I think, with Rakoff is really try and find out who the people are who come before you and how to best address their issues. So that’s how it all got started.
Kevin Walsh:
Well, so that explains the three judges, right? The subtitle is How Three Judges Are Bringing Justice Back to the Courts. And on the book cover, you have a kind of series of gavels and there’s three that are different colors. And I suppose that’s because these three judges stood out in some respect and yet you’re also, it seems like you are also telling some broader stories. So part is to tell the stories of these judges as judges. You’re also telling a story in some ways of their times, which are our times, but not all. And then, but the title is Better Judgment and with the subtitle, How Three Judges Are Bringing Justice Back. And of course, since this is part of the project on judicial virtues, I guess I have to ask about, not have to, I’ve been waiting to ask about this better judgment idea, right?
So because you pick judges who are special in some respect, they stand out, and yet they’re also exemplary. And I guess the question is, what character traits does your book, having kind of studied these judges further, learn more about their approach to their job, what character traits does your book end up associating with why some judges exercise better judgment than others?
Reynolds Holding:
Well, the character traits, I think, as each of these judges has, include certainly compassion and real curiosity about the people who come before them and the patience to find out who they are and get to the truth. So certainly compassion, curiosity, patience, and persistence. Look, the backdrop of this book and really sort of the intellectual purpose behind it is beginning just in the aftermath of the Brown v. Board of Education decisions. So in 1956, a bunch of Southern senators came up with the Southern Manifesto, which was in many ways essentially a declaration of war on the courts. I mean, the perception, look, the Supreme Court is going way past its remit. It does not have the constitutional right to make law in desegregating the schools. And this started a period that really lasted up till it’s still going on in a way, of trying to restrict the authority of the courts, trying to use a so called litigation explosion or soft on crime sentencing to take power away from, not only take power away from judges, but restrict the ability of people to get into the court.
So we’re talking about higher pleading standards. We’re talking about sending things to mandatory arbitration. We’re talking about sentencing guidelines. We’re talking about narrowing habeas corpus and on and on and on. And these three judges, and I admire them for doing that, and this is really the biggest reason probably I picked them, is they pushed back against this. They pushed back against restrictions on people’s ability to get into court about, they pushed back on their ability to address the issues that came before them. So I think the most admirable in my mind trait is this ability… I think of it as the desire to do the job. I mean, there’s so much pressure as a result of this restriction of authority and restriction of access, so much pressure to move cases along, to push them into settlement, to not hold trials, to move the docket.
Because I mean, let’s face it, judges are overworked and their dockets are huge and it’s easier to move along the cases. And these are three judges that don’t certainly in an extraordinary way don’t do that, are willing to take the time to do, and this is what I mean by bringing justice back to the courts, the desire to actually get into the cases, to find out who the people are that come before them. And in my mind, that’s doing justice. It’s not a particular result. It’s not liberal, it’s not conservative, it’s just doing the work and getting to a result that the judge and the parties believe is fair, at least in some sense, and that they’ve been heard, that their case has been heard. So I think that’s what I think of as the characters.
Kevin Walsh:
Thank you. That’s clarifying. As you were talking, I was thinking about the judicial oath, right? Because sometimes judges will say, “Well, I just apply the law.” So what you’re talking about is personal judgment, personal characteristics, and my job is just to apply the law. And a lot of times when I hear that, I think, “Well, your job is defined by your oath and your oath says you will administer justice without respect to persons, you will do equal right to poor and rich and you will apply the law, constitution laws faithfully to the duties of your office.” So I do think this self-understanding of judges matters to their understanding of what the job is. Now, there is though a sense in which this is countercultural, an idea of judgment because you can have… One thing that’s bad in our culture is being judgmental, right? Who are you to judge? Who am I to judge? We don’t have that problem as much with judges because that’s their job.
Reynolds Holding:
That’s their job.
Kevin Walsh:
But then on the other side, it’s, well, that job is just applying the law. Now, how does your book respond or having articulated the judges doing their job and described and say, “How do I convey this in a book?” What’s the answer or what are some things from your book that would say, “Well, it isn’t just applying the law,” or, “Here’s what’s involved in applying the law,” that we can fill in this job description.
Reynolds Holding:
Yeah. Well, I mean, let’s be clear, their job is to interpret and apply the law, and none of these justice judges would disagree with that. I mean, these are not judges that sort of go off the rails and do what they want to do because they think it’s the right thing to do. I mean, these are judges that are very smart and very committed to the law, but the law probably is usually not necessarily clear in a given circumstance with given facts. And there’s a lot the law just doesn’t address. We’re talking fairly, even when in specific laws, I mean, you always get the sense that there are broad principles that come into play. Certain facts, certain circumstances, certain people that make applying the law not so easy.
I mean, for example, you talk about money, the rich and the poor, and that’s certainly in the judicial oath and certainly the obligation of the judge is essentially to treat them, is to give them equal, I’m not sure what the words are, but to consider them on an equal basis. But that doesn’t mean that they are equal. I mean, certainly the experiences of someone without much money is different from someone who’s very wealthy. Certainly, their experiences are different, their needs are different. I mean, it’s part of who they are at the point when they come into court. And I think Judge Vazquez, Martha Vazquez, in Santa Fe, New Mexico is particularly cognizant of this. I mean, she lives in a… New Mexico is a very poor state. It has a lot of immigrants. It’s very near the Indian reservations, the Navajo nations, the Navajo Nation, a number of Pueblos.
And she really recognizes that these people, I mean, in some cases, for example, Natives, federal court is a very foreign experience to them. I mean, there’s no federal court near them. She made great efforts that we can talk about, if you want, to bring her court to them because she recognizes that they need this. And so there’s so much more involved than just the law. I mean, Jed Rakoff, he does a lot of cases involving Wall Street, involving large banks, large firms, large companies. And he recognizes that punishing a company is often ineffective because it’s a cost of doing business if they have to pay a fine or whatever it is.
Even if it’s what we would think of as an enormous fund, but he recognizes that it’s not companies that do things or that do wrong. It’s people. And he presses very hard in every case, “Well, don’t tell me the company did this. Who at the company did this? Who at the company is responsible?” So the law, as it applies to a corporation say, is often not enough in his mind if you don’t identify the people who are running the corporation and responsible for its behavior. So yeah, I mean, they have to follow the law and they know that, but the law is not clear in every circumstance. And so it requires… These are people. It requires, as it would require anyone, personal judgment, and everyone has an ideology. I mean, let’s admit that too. And different people are going to have different judgments and different conceptions of what’s right and wrong. So that’s, I know I’ve been kind of going on and on.
Kevin Walsh:
Well, it’s-
Reynolds Holding:
That’s how I think about it.
Kevin Walsh:
Yeah. And it’s interesting to think too as how you pick which cases to talk about. There’s a mixture of ones that are very fact specific and ones that are law specific. One of the things that I think there’s one, at least for all three judges, involves sentencing. Sentencing is one where the law is more open textured in the sense that they’re explicitly, they’re given a list of factors that need to be considered and it would be error to kind of bypass the factors, but the way those factors go, there’s not a sort of algorithm for that. And so it will be fact sensitive. I wonder, let’s go to a sentencing case by Judge Vazquez that you talk about. This one, and one of the reasons I like it is because the lawyer who is a federal public defender, I believe, plays a big role in this.
And so this, and you, of course, have already told the story better and can tell better than I can, but the gist of it, as I take away, is that someone went on what you might call a bender high on drugs, and there were multiple robberies that took place, and this triggered the Armed Career Criminal Act, which kind of defines separate occasions. And in some ways, this lawyer was able to develop a theory tying to the facts that said, “Well, this, what I call a bender, that maybe minimized a lot,” but just to convey that basically like what seemed like-
Reynolds Holding:
Yes, an extreme bender.
Kevin Walsh:
That seemed like multiple different occasions, at least for purposes of the Armed Career Criminal Act ought to be viewed as one occasion. And one of the interesting things about the way you describe the interaction between this lawyer and Judge Vazquez is that the judge, in some ways, invited this kind of argument and was receptive to it even while acknowledging that perhaps the 10th circuit, which had appellate jurisdiction, might reverse it. And I believe this one was reversed at first, ultimately vindicated because there was an intervening Supreme Court decision by the time, what, of the second re-sentencing? And I’m just wondering if you could take that case and talk a little bit about this relationship between the law and the facts and judicial judgment when it comes to kind of controlling precedent, but precedent that is interpreting perhaps something that might be subject to a different interpretation and kind of what it means to be faithful to the law and to do justice in a circumstance like that.
Reynolds Holding:
Yeah. Well, each judge I write about said to me, “Sentencing is the hardest thing that they do.” It’s the most important thing that they do because you’re in a position to ruin someone’s life in effect. And so they take it very seriously. I mean, as you know, during the period of the sentencing guidelines, when they were mandatory from the late 80s until what, 2004, when they became advisory, judges hated that because it was, if not an algorithm, it was a formula. You plug in this and that and the other thing, and the formula spits out a sentence, and you have to abide by that sentence. And for example, you mentioned the Armed Career Criminal Act, which is a mandatory sentence of 15 years, excuse me, I think it may still be. So the case you refer to involving this guy, Marc Dutch, who had a terrible, terrible childhood, terrible… His father would literally force him to drink beer with him, would force him to go out and buy cocaine, would force him into all this sort of horrific behavior.
And of course, Marc Dutch became an addict and ran into very hard times and committed crimes. And a very hard and in some ways, I mean, some people will say, “Well, he’s just a bad guy.” But in Martha Vazquez’s mind, this is a guy who had real, not even because of his own fault, a real problem, real problems in life, but it’s a tough case. I mean, it’s not obvious to me that Martha Vazquez did the right thing. I mean, ultimately she wins, so to speak, but she was so struck by what a hard life that this person has, as she is by many of the people who come before her, that sure, she was predisposed to not throw this person away like garbage, which is something she often says. “My job is not to throw people away like garbage. My job is to give them opportunities to heal, to become a productive member of the middle class in America, which is so important to democracy, and I believe this guy may have potential to heal.”
Now, this guy had a great lawyer who was creative and found ways, as you pointed out, to try and interpret the law so that this guy didn’t get a mandatory 15-year sentence. And initially Judge Vazquez says, “Look, I may agree with you, but there’s nothing I can do.” This is mandatory, but he presented a way that she could interpret the law so she was able not to give him a mandatory sentence.
Excuse me. The prosecutor’s appeal went up to 10th Circuit. 10th circuit says, “No, no, no, no. The law’s clear You got to sentence him.” Came back to her. She said, again, Dutch’s lawyer argued before her. And again, she said, “There’s nothing I can do.” But again, he persuaded her. This went on, I think it went up three times to the court of appeal.
Kevin Walsh:
And then in the meantime, by the time it gets to the end, the Supreme Court has essentially this issue and I believe it was a unanimous opinion defining occasion and saying that if it’s the same series that that may be, and of course it’ll be fact sensitive, but then the lawyer’s job is to make it seem as if this defendant’s case is similar enough to that one.
Reynolds Holding:
Yeah. And I should point out, I mean, the three, the prosecutors, their records of what had actually happened was not good.
Kevin Walsh:
Well, it does seem as if the interplay of governing precedent and then the facts of a case and the words of a statute, it’s going to be hard to generalize about for any given case. There is a case that you feature in talking about Judge Rakoff that I think it’s worth talking a little bit about. And this involves the insider trading laws. And the setup here is that the Second Circuit, which is the appellate court that reviews Judge Rakoff’s decisions when he’s in his New York District Court, the Second Circuit had given an interpretation to the insider trading laws that made it harder to show insider trading under certain circumstances involving gain to… Well, you’ll be able to explain it, but the short version is he was sitting by designation on the Ninth Circuit because this happens. Judges can sit by designation on courts of appeals and he ended up with the opinion for a Ninth Circuit panel that really was addressed, should we follow the Second Circuit’s opinion or not?
So here he had in some ways an option that he doesn’t have as a district court judge hierarchically inferior to the Second Circuit. Now, he’s on an equal level and he was able to write an opinion that says, “We’re not going to follow the Second Circuit. Here’s why.” And then that issue went up to the Supreme Court and I’m just wondering, and the Supreme Court followed his opinion or his interpretation of the Supreme Court’s precedent. And this was a sort of big case, even included in your book, Judge Rakoff’s wife calls him and says something like, “Good job.” And I wonder if you could address what that episode, what lessons might be drawn from the binding nature of precedent and how judges can interact with that at different levels and what sorts of freedom they do and don’t have as district court judges compared as appellate court judges.
Reynolds Holding:
Yeah. Well, Rakoff is unusual in this respect. Several times in his career, he has found a way within the law as he sought to buck against precedent. Most famously, he did it in striking down the federal death penalty. He read a Supreme Court case in a way that he thought he could find a majority for the proposition that it would be unconstitutional to put an innocent person to death. And he said, “Look, we know from DNA testing and the Innocence Project that it’s happening, that there are innocent, if not innocent, but not guilty people on death row.” And that was, shall we say, audacious. In this particular case, in his defense, the law was pretty clear that the Second Circuit just got it wrong. I mean, without going too much into the details, insider training, when the insider gives a tip to an outsider, there has to be some evidence of a benefit to the insider.
The Second Circuit said, “Yeah, it’s not only a benefit, there has to be actually a payment, something of value, a payment essentially, which was far too narrow than any other court had interpreted.” And in any case, so Rakoff gets to the Ninth Circuit, and of course the defendant says, “Hey, under the Second Circuit’s definition, I’m not guilty because it was my brother, but there was no money that changed hand or the tip went to my brother, so I can’t be guilty.” Now the full, in fairness as well, the full three judge panel believed that Rakoff’s view was correct and it was a unanimous decision. Now, here’s where I think it was at best in politic, Rakoff wrote the opinion. He didn’t have to write that opinion. He didn’t have to stick his finger in the eye, so to speak, of the Second Circuit judges. And I know that the judges on the Second Circuit were not happy with that.
And it could have easily happened that another judge wrote the opinion and Rakoff joined it, but he found himself in a circumstance that really put him on an equal footing with his bosses. And just to show how clear the law was, the Supreme Court was unanimous in agreeing with Rakoff’s point of view. I mean, that’s one. So Rakoff is freer than most judges, I think, certainly freer than most judges in his willingness to challenge precedent if he believes it’s supportable in the law, by the law. Carlton Reeves is another, he deals with precedent in a different way. I mean, his opinions are just incredibly elegant and persuasive and draw deeply on history. And his approach is to say, look, here’s what the law is. Law is qualified immunity. A police officer has qualified immunity. You can’t sue that police officer in almost any circumstance for violating the law or the constitution.
And Reese will go through in his written opinion to explain how that law came to be and why it’s wrong. And in one particular opinion, the Jamieson opinion, he said he addressed the Supreme Court directly and said, “Look, I can’t change this, but you really should change this.” And he’s not just writing for lawyers, he’s writing… I mean, this was picked up by journalists. It was a fairly big story in the legal journalism world. And actually in a later case, he did find for the plaintiff the liability of the police officer and did override qualified immunity. Martha Vazquez approaches us in a different way. I mean, she, again, is extraordinary, particularly on sentencing. I mean, that’s where she becomes really intent on doing what she believes is the right thing given the people that come before her. But she’s also, as the records show… Well, she appreciates, I mean, you talk about the relationship with the district court judge, between the district court judge and the court of appeals, she has great respect for the court of appeals from her case, the 10th circuit.
She tells a story of becoming a judge for… She’s a new judge. She gets a case. Her background was as a public defender. She gets a criminal case. The defendant’s lawyers essentially move to dismiss the case after a certain period of the trial. And she declines, even though she knows the evidence, she really thinks the evidence is not… The prosecutors have not really proven the guilt of the defendant, but she’s worried that her background as a public defender is making her biased, and maybe she should just let the case play out, which it does, the defendant is convicted, appealed to the defense circuit and said, “This case should have been dismissed.” In other words, she was so… And she says, she said, “I’m so glad to have that check on me above because I know sometimes I just get it wrong.” And that’s the example she likes to talk about. So there’s tension, but there’s also appreciation that there’s another level that will fix a mistake.
Kevin Walsh:
Well, and one of the tensions that I’m hearing is the particular case, right? So you talk about bringing justice back to the court, the particular case, and then the state of the law, right? So you mentioned the qualified immunity case, Jameson, Jameson versus McClendon, and the facts of that case really are what you used to open up the book and it involved the stop of a black motorist and his car was searched in violation of the Fourth Amendment. And as qualified immunity works, as you explain in the book, is that the court has the option to decide what exactly they’re going to decide. It used to be that they first had to decide was there a constitutional violation and then the second step was, was the law showing this was a constitutional violation, was it clearly established so that a police officer kind of should have known?
Reynolds Holding:
Right. Would a reasonable police officer have known that what he did was wrong, I think is essentially the standard.
Kevin Walsh:
Right. So you had those two things. Was it a violation and was the law clearly established? And then the Supreme Court said, “Well, you don’t have to follow a sequence. You can assume there was a violation. If the law wasn’t clearly established, then there can be summary judgment or dismissal against the plaintiff depending or it’s a question of law. Was it clearly established?” So in this case, Judge Reeves though first kind of went in and said there was a Fourth Amendment violation and then concluded, but the law wasn’t clearly established.
And as you say, he did a lot more than a judge often does, a district court judge, often does in terms of explaining and criticizing qualified immunity. And I suppose though, how is that bringing justice back to the courts? I can see that that is, if we think about doing case-specific justice and helping the law develop in a different way, and thinking of those in some ways as intention sometimes, and because from the point of view of the plaintiff whose case is dismissed, if they had a legitimate violation and they should have received a remedy, well, what do they care about the development of the law overall?
Reynolds Holding:
Sure. Well, what I think they do care about, and again, this is my conception, this is what I mean by doing justice. I mean, I never unfortunately was able to speak with the plaintiff, although I tried very hard. I did speak with his lawyer and he came away feeling he had been heard. His case had been not just considered, but deeply considered. And that the person hearing it said in effect, “I understand what happened. I understand what you’re saying. I actually agree with you. My hands are tied. And look, here’s what I’m going to do. I’m going to explain that in a very, not just accessible, but compelling way in my opinion. And I’m not just speaking to lawyers. I’m speaking to the public.” I mean, that decision, as I mentioned, was written about quite widely in the press. It really galvanized an effort which is still going on to try and change the rules, to try and get rid of qualified immunity.
I mean, it’s become a big issue. I think this opinion had at least something to do with that and the attention that it got. So yeah, I think the plaintiff… I mean, again, by my definition of doing justice, I think the plaintiff felt that he got justice. He was heard and he was heard deeply and persuasively. And I’m sure that meant something to him.
Kevin Walsh:
Well, there can be a tension not just between the litigants and the court in terms of their particular case and the development of the law. This also can occur in movement lawyering, for example, where the lawyers might have some state of the law that they’re trying to reach and the plaintiff’s claim in some ways is a vehicle for that. So this is certainly, this is a complicated aspect of the relationship between law and justice. I wonder if we might look at it from the point of view then of the appellate courts. So there’s always going to be some tension between the people who are kind of on the front lines and then people sometimes that are kind of serving as a backstop or a check or… The kinds of cases that get appealed are only the ones typically where the lawyers think it’s worth having another look.
And that’s even more so when it comes to the Supreme Court of the United States. Generally, it’s true that they don’t engage in fact-bound error correction. However, the numbers show that of the small set of cases that they grant, it’s a very high proportion of those. I want to say two-thirds to 70% of those lately will end in reversals of then the appellate courts. And what do appellate courts owe the district court judges? So kind of look at it from the point of view, the judges you looked at, what do they appreciate from the appellate courts and what don’t they appreciate from the appellate courts?
Reynolds Holding:
Well, believe it or not, I’ve spoken to some court of appeals judges and I spoke to quite a number of them and a significant number appreciate being pushed from below. There are certain circumstances where reality has sort of moved beyond the law. I think qualified immunity is one example, I think. Perhaps the death penalty is another example. Those are big examples. I mean, there are much smaller examples, I mean, everyday examples where it just doesn’t… And I’m really sort of channeling Rakoff here because I know he believes this and he believes in… He says, “Look, this used to be the way the law was in the common law, you developed it below and pushed from below.” And some appellate court judges appreciate that and recognize that this is the way the law changes. I think others get annoyed. I mean, the case that we talked about with Judge Vazquez, the 10th Circuit, I think it’s fair to say the 10th circuit judges were annoyed that this case kept coming back to it when it was so clearly in their mind a loser from the point of view of the defendant.
And I think my point being that I think it’s a mixed reaction. I mean, some people resent district court judges when they seem to be going beyond the law, other peoples welcome it as a way as forcing them to think through the law and perhaps to agree that there is a way even within the law to create some room, so to speak. I mean, I will also point out that, as you know, I mean, the vast majority, hundreds of thousands of cases that district judges decide every year never go up on appeal. I mean, the federal district courts justice are the last word in those cases. And I think as I point out in my mind, they do the real work of the federal judiciary. I mean, those cases never come close to getting to the Supreme Court. And that was going back to why I wrote this book.
I mean, so many people talk about, write about, worry about what the Supreme Court does. And I wanted to bring forth what the people who do the real work of the judiciary, the Federal District Court judges do. What do they do? Who are they? What goes on in their chambers? How do they make decisions? Because they are the last word in the vast majority of cases.
And I’m sure the appeals court judges appreciate that and respect the fact finding purpose of the trial court judge. And it’s always a question, do they adhere to the rule that they’re not fact finders, the appellate court judges? I mean, how much do they find excuses to sort of get into the facts and change the decision on the basis of different facts? But that’s another topic.
Kevin Walsh:
Well, we have just a little bit more time. I had one question that sort of prompted by that is it’s about the audience for the book. So I’ve been asking questions that are kind of like typical law professor kind of things, but it does seem that one audience for the book is an audience that is impatient with the judiciary, particularly in relation to democracy. So you talk about the relationship between justice and democracy, and one of the claims, and this is early in the book, sort of a theme in some ways of the book, is how judges can advance democracy. And you talk about particular things that you mean by democracy. And I guess how does that theme fit into the work of judges, right? I take it the judges shouldn’t self-consciously be thinking my goal is to advance democracy, but rather your claim is somehow that by administering justice faithfully in their cases, they are also advancing democracy in a way that answers or speaks to the concerns of some audience that you have in mind for this book.
And I’m wondering who that audience is and how to connect or how to describe that connection between justice and democracy that you talk about.
Reynolds Holding:
Yeah. Well, I like to retreat into the fiction. Hey, I’m just trying to tell a good story here. It’s like these big concepts are not really what I’m illuminating, but I think that’s… I like to think actually that I am illuminating to some extent. But the audience, I mean, I think to look at it, I mean, since we’re talking about democracy, let’s talk a little bit about politics and politician. I mean, there’s a, and I hate using these terms, but on the right among conservatives, there’s a tradition and still a strong feeling backing judicial restraint. Judges are not Democratic. They are too often activists. We can’t have an individual who is blocking economic development by corporations that’s penalized. The essential argument for judicial restraint on the right. But even on the left now, among Democrats, among the people that… The book that I cite for their conception of democracy, there’s a feeling that, look, judges are undemocratic.
We should be relying… We on the left got used to relying on the Warren Court, the Supreme Court under Earl Warren, to get to the policy results that we wanted. Well, we can’t do that anymore. And furthermore, we shouldn’t have ever done that because the real democratic branch of government is Congress and to some extent, the president, the executive. So we really ought to do things like impose term limits on judges. We ought to do things like take away some of their jurisdiction in to decide certain cases. And so I think it’s important to point out, look, I mean, to state, I think what is obvious, I mean, is Congress really doing its job now? Is the president really doing his job? Should we be relying on… I mean, in my mind, we’re left with judges and particularly district court judges to protect what I see as democracy, our democratic system.
So I want to make that point that judges can be good for democracy. I mean, you have Jed Rakoff in New York who deals with a lot of Wall Street and a lot of corporations, a lot of firms on Wall Street, which have been accused, I think correctly, as developing a sort of oligarchy. And his feeling is that it’s too easy for these institutions and these people who run these institutions to get away with wrongdoing, to not be held responsible, to view fines and judgments as a cost of doing business. And he just wants to make sure that… I mean, I don’t think he thinks of it this way because he doesn’t have any particular animosity towards against CEOs or heads of investment banks, but he thinks that too often these people are not held accountable in the way that they should, that everyone else is held accountable for the wrongdoing.
Judge Reeves, he’s very cognizant, and he does do this intentionally, that he wants people of all ethnicities, racist, genders, to be able to get what he believes is justice, to be able to come into his court and be heard. He loves to say, “You will be heard.” And that helps build inclusiveness, brings people into what he sees as a democratic system. And then Martha Vazquez in Santa Fe, she deals with a lot of very poor troubled people who have potential to be productive economically, as well as in other ways. And she very much concentrates on making sure these people are not thrown away, that they’re not treated like garbage, their lives are not just thrown away when there’s real potential that they can become with her help and with the help of people that of organizations see often sentence them to treatment in, can become productive members of, as I think of it, the middle class, to live lives of value.
So I guess in answer to your question, my audience for that argument is people on both the right and the left who believe judges should have less power because they’re undemocratic. And my argument is no, they can be very democratic. I mean, the court is the one place people can go to have the facts come out, proven facts, to find out what really happened and what the problems in society really are. And in that sense, also, it’s a democratic forum. So that’s what I would say.
Kevin Walsh:
In listening to those reflections, there is a quasi-Brandeisian feel, right? To some of it. And yet in his time, that a lot of what he was doing was limiting the role of federal courts in particular to interfere as he viewed it and Frankfurter with so called progressive legislation. So it is interesting to think how, and yet at the same time, he was a Brandeis brief and the facts matter and in some ways they speak for themselves. And it’s interesting to reflect how kind of judicial ideals are refracted in different circumstances. I think maybe my last question for you is this, and it comes from the end of your book where you end with a quotation from Judge Reeves, and he’s speaking, I believe, at UVA, his alma mater, and the quotation is this, “To fulfill the constitution’s promise to establish justice, we the people need to defend the judiciary.” That’s the quote.
And of course, as your book, it also demonstrates we need to criticize the judiciary and in some ways your discussion of your audience kind of keeps in mind that the judiciary needs defending in different ways. Do you come away from this believing that there are criteria that in some ways can transcend politics, can transcend a left-right divide, by which we can criticize or defend the judiciary?
And in particular, I’d say what would be criterion for defending the judiciary? Because so often, and as you know, particularly from a journalistic side of criticizing and reporting, rather than writing a book about it, doing all the work and writing the book, it’s easy to despair of politics kind of being subordinated to the rule of law. So are there criteria by which we should defend the judiciary?
Reynolds Holding:
Well, I mean, there are sort of the obvious things. I mean, we should not threaten judges and commit personal violence against judges and go to their houses or send pizza to their houses saying essentially, “I know where you live.” I mean, that’s a terrible problem has always existed, but I don’t know that it’s ever existed to this degree. And I think another obvious problem is the way that so many people in Congress, in the White House, attack judges. I mean, not on the basis of really anything. I mean, there was our Deputy Attorney General, Todd Blantz, not long ago, got up in front of the Federalist Society and said, “We’re at war. We’re at war with federal judges,” which was a terrible thing to say, but in their mind, he’s not wrong. And I just don’t think that has any place in our country, in the public discussion.
And as I say, it goes on in Congress, it goes on from the White House, and people are persuaded that I think a lot of people are persuaded that they should not trust judges. They should not believe, they lose faith in the ability of our judicial system to do justice, to address their problems in a fair way. I mean, what are the criteria for criticizing judges? I mean, obviously you can criticize… I think you need, if you’re going to criticize a judge, criticize the judge’s decision on the law. I mean, they’re trying to apply the law for the most part. I mean, I can think of at least a couple of judges that seem to be playing politics more than applying the law. And that’s always the answer. I mean, that’s always the valid criticism. But this idea that we’re at war with judges because they have done wrong without saying, “Well, what have they done wrong?” I mean, listen, the criticism is largely, as you know, federal district court judges are striking down in some sense these executive orders from the president and they’re not going off the reservation.
They’re not being creative. They’re applying the law and they make that clear because they’re coming out with 60, 70, 80, 100 page opinions that say, “Look, here’s what the law says.” And under the law, this executive order is illegal or is unconstitutional or whatever the basis for it is. And if they’re wrong, then sure, criticize how they’re wrong under the law, but don’t just say they’re a big problem and not say anything. And I haven’t heard anything from many of these people about what these judges are doing wrong. I think anything more than that, I think it’s fairly clear how you should criticize a judge, not with violence, not in a public forum, threatening them, but saying that these judges are wrong, here’s why. Here’s specifically why.
Kevin Walsh:
Well, one of the virtues of this book is to bring out the humanity of the process and all involved, right? That is what happens in part of our nature is, well, we don’t just follow the law, but this is what we need to do is to… This is absolutely essential that the judiciary be there to establish justice, that verb established, I always think is interesting in the Constitution, right? It should be something that you can count on and that there is a place. So thank you.
Reynolds Holding:
Yeah, consistency. I mean, we have to know what’s right and wrong. We have to know what’s legal and illegal. We have to know what to do and what not to do. And including the three judges, I mean, judges do get it wrong. I mean, Rakoff has gotten it wrong. Reeves has gotten it wrong. Vazquez has gotten it wrong and appellate courts have told them so. But I think what they’re trying to do, which is to do the job, as I put it, is quite admirable.
Kevin Walsh:
Well, the book, again, is Better Judgment: How Three Judges Are Bringing Justice Back to the Courts. And thank you for your time and your insight into the judicial virtues.
Reynolds Holding:
Well, thanks so much for having me, Kevin. Thank you again. It was fun. I’m glad to do it.
Kevin Walsh:
Thank you.