Will Kamin:
Welcome, everyone. We will start, as we always do, with our on-campus CIT events in the name of the Father, Son, and the Holy Spirit, amen. Hail Mary, full of grace, the Lord is with thee. Blessed art thou among women, and blessed is the fruit of thy womb, Jesus. Holy Mary, mother of God, pray for sinners now and at the hour of our debt. Amen. And the Father, Son, Holy Spirit, amen. Well, thank you all for being here for today’s CIT panel discussion on the Catholic intellectual tradition, a jurist’s perspective. I’m Will Kamin. I’m a professor here at the Catholic University of America’s Columbus School of Law, and I am also the managing director of what we call for short CIT, the longer official title of which is the Center for the Constitution and the Catholic Intellectual Tradition.
So, today, we are blessed and immensely, immensely honored to have with us three of the stars of the federal bench, whom I am thrilled to be able to introduce to you all. So, today’s moderator, Judge Kyle Duncan, was appointed to the US Court of Appeals for the Fifth Circuit in 2018. Prior to his appointment to the bench, Judge Duncan practiced here in Washington at Shaerr Duncan LLP, a firm of which he was a founding partner. Before that, he served as appellate chief in the Louisiana Attorney General’s office, as Assistant Solicitor General of Texas, as general counsel to the Becket Fund for Religious Liberty, and as assistant professor of law at the University of Mississippi School of Law. Judge Duncan received both his BA Summa cum laude and his JD Order of the Coif from Louisiana State University. Go Tigers. I would request that the AV folks in the back note for the record that go was spelled with an X, not an O there.
Judge Duncan also holds an LLM from Columbia Law School. And after completing his JD, he clerked on the very court upon which he now sits, the fifth circuit, for Judge John Malcolm Duhé Jr. This year and last, we at CIT have been immensely lucky to have Judge Duncan as our visiting jurist in residence, a capacity in which he has moderated panels like this one, co-taught classes with several members of our faculty, and joined us for some wonderful dinners with our Ex Corde student fellows.
Sitting to Judge Duncan’s right, left from your perspective in the audience, is Judge Joseph Bianco, who is joining us from the US Court of Appeals for the Second Circuit in New York, to which he was appointed in 2019. Prior to that, he had served on the US District Court for the Eastern District of New York since 2006. Before his judicial service, Judge Bianco served in a number of positions in the US Department of Justice. He was an assistant US attorney for the EDNY, then senior counsel, and eventually Deputy Assistant Attorney General for the DOJ’s Criminal Division. He also has spent time in private practice with the New York firms of Debevoise & Plimpton and Simpson Thacher & Bartlett. Judge Bianco earned his BA from Georgetown University magna cum laude and his JD from Columbia Law School, after which he clerked on the Southern District of New York for Judge Peter K. Leisure. He also holds an MA from the Seminary of the Immaculate Conception and is an ordained deacon of the Roman Catholic Church serving in the Diocese of Rockville Center. Likewise, he’s taught at the law schools of Columbia, Fordham, St. John’s, Hofstra, and Touro.
And on the right, from your perspective, we have Judge Martha Pacold, who was appointed to the US District Court for the Northern District of Illinois in Chicago in 2019. Immediately before being appointed to the bench, she had served as deputy general counsel for the US Department of the Treasury. Earlier in her career, Judge Pacold was a partner in the renowned Chicago law firm of Bartlit Beck Herman Palenchar & Scott. She was a lecturer in law at the University of Chicago Law School, a special assistant US attorney for the Eastern District of Virginia, and a counsel to the Attorney General at the Justice Department.
Judge Pacold holds a BA, Phi Beta Kappa, and with highest distinction from Indiana University, and she holds a JD with honors from the University of Chicago Law School, where she was inducted into the Order of the COIF and served as editor-in-chief of the Law Review. After law school, she corked on the Ninth Circuit for Judge Jay S. Bybee, on the D.C. Circuit for Judge Raymond Randolph, and on the US Supreme Court for Justice Clarence Thomas. So, thank you so much to all three of our speakers for being here. And with that, Judge Duncan, I will hand it over to you. Thank you.
Judge Duncan:
Great to be with you. I was reminded this is the third panel of this nature I have moderated. I’m delighted to be here, and believe me, it’s more a privilege for me than for you to be a visiting jurist here at Catholic University Law School. These panels have gone in different directions depending upon the judges and what they wanted to talk about. My sense from this panel from talking to them beforehand is that they want to address, I’d say, less philosophical and more of a personal view on how their Catholic faith informs their approach to being federal judges. And that’s a great topic. I’d say we should be grateful for judges, or really anybody, but especially federal judges, talking about how their own Catholic faith informs their view of their judicial duties. It’s certainly something that I’ve asked myself.
I was out of the church for many years. I came back into the church in 2005, and I was a law professor at the time. And I’ve always asked myself in whatever job I’ve had, how does my Catholic faith, which is, of course, integral to who I am as a human being, the most important thing in my life, how does that inform my approach to being a law professor or being a lawyer? Obviously, it informs my approach to being a parent or a husband. So, how does it inform one’s approach to being a federal judge? And I find it, as I’ve thought about it, it’s a tricky question. Certainly, it is for me because judges in America, in the United States of America, we don’t apply, as you know, we don’t apply religious law. We don’t apply Catholic law.
We were talking earlier about does one think of oneself as a Catholic judge or as a judge who is a Catholic, and I’m in the latter group that I don’t think there’s a specifically Catholic approach to being a federal judge. Also, being a judge makes the question tricky because if I were a legislator and someone said, “How does your Catholic faith inform your approach to being a legislator,” There might be a much more straightforward answer about certain policies that I want to pursue or my certain views on certain subjects. With a judge, it’s trickier, again, because we don’t apply religious law. We apply human law. And so, with that rambling and unfocused introduction, I would like to first turn it over to Judge Bianco, and I’m delighted to see you again. And you have the floor.
Judge Bianco:
Thanks. And I’m so happy to be here. I want to thank Catholic University Professor Alessia, Professor Kamin for inviting me. I couldn’t wait to come. It’s a real privilege to speak to all of you, and it’s wonderful to be on a panel with Judges Duncan and Pacold. What I just want to spend my 10 or 15 minutes up front discussing is how my Christian faith became the foundation of my life in college and law school when I was sitting out there like you were at Columbia and then how I’ve tried to live out that faith in my vocation as an attorney and now as a judge. And I emphasize vocation because, in my view, it is a vocation, and I hope through our talk you’ll be excited that you are here because you have that vocation, and you’re being equipped at a great law school to be able to fulfill it in such wonderful ways that you’ll choose, that you’ll choose once you have your degree.
So, I went to another Catholic university a little bit away. Georgetown. I met two people at Georgetown that changed my life. During freshman orientation, I met my wife Melissa, and I thank God for that blessing. We’re now married 30 years. We have six kids, and certainly, that was a key to everything. It’s the most important thing that has happened in my life. The other thing that happened was I met a priest called Father Thomas Cain, and he had decided in the Vietnam War that every day, every night at 11:15 P.M., he was going to have daily mass in the Dalton Chapel. As a freshman, I went to that mass, and it was like no mass I had ever been to, even though I had grown up Catholic and gone to mass every Sunday. It was only about 15 of us at 11:15 at night. We would pray the Psalms in the beginning, and when it came time for him to consecrate Holy Communion, he would turn down the lights. He had all these different candles with different colors on the altar, and the 15 of us would stand around the altar during that part of the mass. And it was, to me, like being at the Last Supper.
He was so spiritual. He was so close to Jesus Christ. And I never stopped going to that mass. And I was like, “I know I can’t be him, but I want to live out my life like he’s living it. How did he get that close to Jesus?” And I listened to him for four years preach, and he talked about prayer. He talked about staying close to the Eucharist, and he talked about serving, serving the world in some way, and I took that with me. The funny thing was, there’s no lawyers in my family. My father is a retired air airline pilot for Eastern Airlines. Actually, when I’m on the flight from New York, he used to fly me back and forth on the 727s. I had my own personal pilot because they had the shuttle back then. But I decided to go to law school, which is kind of crazy because my two fears at Georgetown, even though I didn’t know what I wanted to be, was public speaking and test-taking. So, it’s like the dumbest thing ever to go to law school, and not shockingly, I hated Columbia.
Columbia is a great law school. It had nothing to do with the school, but I just found myself in the 1L year thinking I had made a terrible mistake, and I immediately went to the foundation. There was a church, the Church of Notre Dame, about four blocks from Columbia, and I spent hundreds of hours at that church every day. I went to mass, and I would sit there saying, “God, I think I made a terrible mistake. I don’t know what I was thinking.” I really thought I was going to quit. I really just said, “This is crazy.” But I just had this sense that I was supposed to be there. I should stick it out. Trust in God’s plan. And my father told me whenever he paid the tuition, “Don’t quit.”
I got interested in criminal law. I decided I wanted be a prosecutor. That was a way to serve. Again, harking back to Father King, I’m going to serve the public as a prosecutor. I had to get over the public speaking fear, but people told me that that could happen. I went to US Attorney’s Office in the Southern District of New York, and I wanted to do mafia cases. My last name was Bianco. They were giving us a bad name. So, I went to the Organized Crime and Terrorism Union, and I did rest in organized crime and prosecuted the acting boss of the Lucchese family. But this just shows you how you never know how your life’s going to play out as you sit here because I never thought this was going to happen. But it was the Organized Crime and Terrorism unit in the mid-nineties. Bin Laden, unfortunately, started blowing things up around the world, and the decision was made to funnel all those cases around the world through that unit of about 20 of us, and we all became terrorism prosecutors, all of a sudden, using those skills from law school to protect the country.
And I became the deputy chief of the unit during that time. It’s funny. The US Attorney’s Office is located at One St. Andrew’s Plaza, and that’s because St. Andrew’s Church is about 15 feet from our office. So, it couldn’t be better for me. I would stop in there all the time, especially when I had to give an opening or closing statement because I was terrified. I still had that public speaking fear going on, and I would go in there, “God help give me strength. Give me the grace to do this well.” And then, 9/11 happened. I was the deputy chief of the unit the night of 9/11. I came down to D.C. with FBI agents. We were working out of a command post. We were shocked. We thought we were going to get hit again. It was the most intense period of my life working around the clock. And I was thinking. I went back to Georgetown last night to go back to Dalton Chapel to think about Father King, and I was thinking about Holy Trinity Church was a few blocks from Georgetown, where President Kennedy used to go to mass. I went there on that Sunday after 9/11, and I just remember that was the most powerful mass I’ve ever been at because the emotions, the fear, it was just God giving me the strength to get through that period.
I then left the US Attorney’s Office. I did go to Debevoise & Plimpton for like one year as counsel. This is funny because my kids … I have six kids. The kids around then say it was the year we were rich.
Judge Duncan:
I remember that too.
Judge Bianco:
Because there was a nice flat screen TV under the tree that year, and they noticed the quality of the presents were different. But we weren’t really rich because what happened was … and again, most people would have never made this decision. I was about to be a partner. We had just had our fourth kid. We had just bought our first house. And Chris Ray, who was head of the criminal division, asked me to come down to Washington to be a deputy assistant attorney general in charge of terrorism for the country, working directly with the attorney general, the FBI director on all terrorism, everything. And that call to serve, I had a lot of talk with my wife about it. And he said it was only going to be for a couple of months. You can go back to Debevoise and keep that house.
So, I didn’t move my family for a couple of months. I was coming back and forth in my little Honda Accord that ended up with 335,000 miles on it because it turned out to be 15 months of commuting back and forth Friday and Monday, living with my wife’s Aunt Mary, who was in her 80s. I loved Aunt Mary. And that was, again, an opportunity, a privilege to be able to work on those matters. I would brief them. They would go down and brief the president in the Oval Office, and I felt like it was an honor to be able to use my legal skills in that capacity, especially as a government major at Georgetown, to be operating at that level above the bureaucracy. It was really an amazing, amazing opportunity.
I did think I was going to go back to Debevoise so I can put my kids through college, but God had a different plan. Out of the blue, President Bush nominated me. There was an opening on Long Island, where I was from, to be a judge. There’s only three seats out there. They sometimes don’t open for 10, 15 years. They happened to open. Everybody knew me down here from my terrorism work, and I was 38. I had no political connections. And they’re like, “We’re putting you on the court over the other picks,” which was shocking to everybody, including me. And there I was as a district judge at 39 and thinking I was going to-
Judge Duncan:
Was that an easy or a hard decision to say yes to that?
Judge Bianco:
Financially, it wasn’t a great move, but it was a dream. I never thought when I clerked that it could ever happen to me because I had no political connections. It was the farthest thing from my mind. So, I was like, “Oh, my gosh. I can’t believe this is happening.” So, it was an easy decision in that way. I figured the money thing could work itself out. They’ll get scholarships. Right? So, I thought I was going to do that for my whole life.
Judge Duncan:
I’m still telling myself that.
Judge Bianco:
Yeah, exactly. I’m telling my fifth kid that right now. He’s a senior in high school. And just six years ago, I was sitting in my chambers, and they said, “There’s a call. It’s the White House.” I was shocked. I wasn’t lobbying to be on the circuit. I couldn’t be happier to be a district court judge. And they said, “There’s an opening on the Second Circuit. Do you want to come down to the White House and be interviewed?” I had some trepidation about that because I was so happy. But again, I just trust that these things are happening for a reason. I went down there, and I thought I wasn’t … it’s similar to district court. I’m like, “I’m not going to get this. There’s a lot smarter and more well-connected people who are being interviewed.”
And it was crazy. By two weeks later, I got a call, “President Trump’s going to nominate you.” And so here I am on the circuit, which has been fantastic. I still have district court cases that I kept, but it’s been amazing. It shows you all things are possible. God has a sense of humor when you think you have your plan. And I’ll just quickly just pivot for a moment of how I live out that faith in my role as a judge because, as Judge Duncan said, and I gave a talk a few months ago, they gave the name of the talk to try to get people to come, The Two Robes of Judge Bianco because I am a deacon. People think I just like wearing robes. It’s not really true. They are two different robes, although I did look on Amazon for a reversible one, but they don’t … it’s not a big-
Judge Duncan:
When were you ordained as a deacon?
Judge Bianco:
I was ordained as deacon about 11 years ago. I was a district court judge. I went into the seminary on every Saturday for four years and got a master’s degree all day. I couldn’t believe it. I thought I was out of law school. I was never going to see a blue book again. And I’m like, “I’m in my 40s. And funny enough, the test-taking fear came back. My wife’s like, “They’re not going to fire you from the seminary. You’re not going to fail out.” But it’s just funny how there’s these things inside of you, fears. But yeah, so they are two separate roles, and I emphasize that if a judge were ever to decide a case based upon his or her religious beliefs, that would be against the oath. It would be poison to our system. So, in court, I look to the constitutional laws in the United States of America. In my life, I look to the Bible for everything.
But that’s not to say that, as a judge, who I am as a Christian doesn’t inform how I treat people. I think if people were to come into my courtroom, both as a district court judge and now as a circuit judge … I’ll just give you a few quick examples of how it plays itself out. I’ll start with the district court. I mean, I believe everybody … and I want to emphasize you don’t have to be Christian to have these values. For me, they derive from my faith, but you could have an atheist who could be doing these same things. But for me, it’s all based upon Jesus Christ and his teachings and my unity with him. And as the district court judge, everybody who comes into my courtroom got treated with the same dignity, respect, kindness no matter what the situation, big firm, small firm, pro se, exactly the same.
In fact, I came out with a practice. When I got to the bench, I was only 39 at the time. By the time I was appointed. I would come out and shake everybody’s hands at every proceeding, every civil proceeding. And I did that just to try to show a little … I’m here to serve. Judges are public servants. I’m here to serve. And I was trying to find ways to convey that in little things that I did. And I would come out on the bench. I would come out. The lawyers would stand up. I would come out to shake their hand. They’re like, “He’s so young, he doesn’t know where to sit. What is he doing? He’s coming at us.” They didn’t know what to do. And then, I put out my hand, and they were like, “Oh, well, he’s just going to shake our hands.” But that was just one way of conveying that I’m a servant. I’m a servant to the public.
And in criminal cases, and we can talk more about this, but there’s all types of flashpoints where that can be displayed. There are little things. Whenever a defense is waiving his or her speedy trial rights, I always communicate with them directly. The lawyers are often speaking for them, and they’re almost treated just like they’re just in the courtroom. And they got there at 6:00 A.M. from the jail, and the proceeds like five minutes sometimes, but the status cop is like, “Oh, wait a second. I want to speak to your client. I know you’re saying he’s waiving speedy trial. Client, Mr. Smith, let me explain to you what’s going on, and I want to make sure you’re okay with that.” And they get a sense that they’re being treated with the humanity no matter what the charge is. And I had every MS-13 case on Long Island for a 10-year period, which was over 50 murders, and saw some unbelievably violent crimes pass through my courtroom. But it didn’t matter what the charges were, everybody got treated the same. That sentencing is the same way. We could talk more about sentencing later, but there’s a humanity I think that should always accompany sentencing someone, which is the most difficult thing to do.
I don’t refer to people as monsters. I certainly talk about their acts and the reasons for my sentence. But especially if they express remorse about what they did and desire to turn around their lives, I will talk to them about that and acknowledge that and talk about how important that is for them to say that to try to … again, if someone pours out their heart in that way, they’re crying, and you’re just like, “Okay, I’m now here from the government,” they’re like, “Wait a second, does this judge get it? This is a big thing for me and what I’ve done and acknowledgment.” So, I always acknowledge those types of things. I always give the reasons for my sentence because I think you owe it to the defendant, to the public, to explain how you came up with something that’s a highly discretionary thing.
So, there are all these flashpoints. I would classify them all in this idea of procedural justice, that everybody should be heard. They should be treated equally and with dignity and with respect. The circuit court’s a little harder because you’re removed from that. I have other judges with me. It’s more formal. But I do the best that I can, and I do other things off the bench to try to … civics, I’m very involved in civics, and we can talk about this. I think, again, as a public servant, you can’t just stay in your chambers. You have to be out there educating and inspiring the next generation, not just of law students but high school students. So, we do all sorts of things that I’m happy to be a part of with a big team to try to inspire kids and help them learn about our justice system in our country.
So, to me, even though it’s not the highest paying job in the law, it’s the best job you could possibly have in the law. I can’t wait to get to work every day, even though it’s hard work and it can be very challenging. I’ll just add one final note because this just shows you how your wife can go full circle. When I went to Columbia, I thought everybody was smarter than me. I didn’t belong. I wasn’t going to make it. I don’t know what I’m doing there. And just last week … I teach there now, which is kind of crazy. The school I didn’t thought I’d belong in, they pay me to teach. But the students there decided to form a Catholic students group for the first time at Columbia Law School. I was a little embarrassed that … if I had formed that in 1989, it would probably would’ve been a good idea, but I didn’t.
And they asked me, they knew I was a deacon, to come to their … they were going to do a red mass, which is literally 20 students. And there I was in that church of Notre Dame where I’d spent hundreds of hours questioning whether I was in the right place and asking God and the Blessed Virgin Mary to help get me through it. And there I was as a deacon on that altar in that grotto in the back of the church, and it was just one of those moments where I was like, “I cannot believe all the things that have happened that have gotten me back to this point as a judge and as a deacon.” And then, they asked me to talk afterwards where I was sharing with those students that life journey and how everybody has their own path. But if you stay close to Jesus Christ, it will work out for the good, and you will understand what your mission is with your law degree, even if you don’t know right now.
And I know students are always worried about that, but it could change over time. It can change over time, but you should be super excited about that vocation. There’s a lot of lawyer jokes, but the reality is, we’re a nation laws, and you can change people’s lives and change the lives of society if you know the law. And if you can advocate, you can be a voice for the voiceless. So, you can choose who you want to speak for, and that should be a really exciting thing.
Judge Duncan:
Thank you, Judge. Judge Pacold.
Judge Pacold:
Well, thank you, everybody, for being here. Thank you for taking the time to come and listen. Thank you for organizing the event and inviting me, Professor Alessia, Professor Kamin. And also, thank you to my co-panelists. I have to say, when I first found out that Judge Bianco was a deacon, I was like, “My work is done. Well, I’m going to prep for this.” And I appreciate, and I am really grateful for your remarks. It was so inspiring. We did talk a little bit beforehand about what we might want to talk about, and we thought this idea of vocation was a good one, especially for law students. And like Judge Bianco said, that’s different for everybody. Everyone’s path is different.
Maybe just to frame a little bit to spend a couple of minutes on my own faith, I was baptized Catholic, so I grew up Catholic. I was raised Catholic, and I would say that for many years, I think, normally, it was something that I did mainly out of habit. So, my parents would take us to church, and I’m really grateful to my parents for that gift of faith even though, for many years, I really was participating, I would say, out of habit. And that would be all the way through school, through high school, through college, law school, even after, just many years of pure habit. It is very important to me, ultimately. And my understanding of it, I hope, has grown over time. And now I just much more appreciate, than at any point as I was growing up, how important it is. And I think if it hadn’t been for that foundation that they gave to me, I could have learned it, but it was a huge thing that they gave me. So, I’m really grateful to them for passing that on to me so that when I was able to appreciate it, I had some foundation to begin to understand.
So, I went to Catholic high school, St. Ignatius, in Chicago, which is a great Jesuit school. And then, after that, I went to Indiana University for college and University of Chicago for law school. So, I guess formally being in Catholic school stopped after high school. And, like I said, I was Catholic. It was important to me, but I wasn’t really focused on it until … it’s hard to pin out exactly when. But I would just say gradually over time, I think, probably just sometime … like I said, it’s hard to pin down exactly when, and it was gradual, but I think it was when I was in practice sometime, which was a chunk of time. I was in practice at a law firm for around nine and a half years. And so, it was a while, and I think it was just probably, again, normal.
A lot of people in your 20s, 30s, you start to think more about these questions, like what’s the purpose? Why am I doing this? Those kind of big questions, and I think of them a little bit like the college freshman seminar questions. They come up to some degree in college, and I remember being in seminars talking about them, but they didn’t really start to sink in for me until, I think, sometime when I was in practice. And so, it’s really then that I started to appreciate more, tried to learn more about my faith because, over, time I realized that that’s the place that has just the best answers to those questions, better than any others that I could have found anywhere else. That’s really how I got into it. It was partly also, at some point in there, a friend of mine just, I think, would’ve told me about some podcasts like the Bishop Baron Word on Fire podcast. I started gradually listening to things like that, reading a little bit here and there.
I can’t pretend to have read a lot of the Catholic intellectual tradition. As you know, it’s huge. There’s so much of it. There’s so much out there. And as you know, people spend their lives studying it. You could do a PhD in theology, and I’m sure there are many people around here who have done that or are doing that. And so I, for my job, my job, job, I’ve always had to be reading a lot that’s not the Catholic intellectual tradition, but I tried to start reading a little bit here and there. And so, I guess my experience of reading … just, again, a handful of things. I’m not an expert, very far from it. I have a lot left to read, but a handful of things like some John Henry Newman sermons or Pope Benedict has this Jesus of Nazareth series. I’ve not read the full thing by any means, even that’s long. But just a handful of little things here and there with long gaps in between where I wasn’t reading anything, but those kinds of things, over time, I just really began to appreciate more and more how it’s such an important and life-changing and perspective-changing thing.
So, I guess that’s my just a little bit of background in terms of some, I guess … I wanted to give a couple of examples about what I’m talking about, some little excerpts of things that I read at one time or another that could just illustrate how changes your whole perspective. And I think that in order to catch these excerpts, you obviously have to read a lot. So, it’s not that just in any one time you pick up and read a book for 10 minutes, it’s always going to be some big eureka moment. But if you read gradually, over time, I think it can really help. And also, I just want to say what it does not mean, so what it does not mean to appreciate the Catholic intellectual tradition. I just want to be really clear. When I’m at work, I’m not applying the catechism in deciding legal issues. I am applying the Constitution and the laws of the United States. I’m looking to all the same sources that a judge does, and that would be, obviously, United States law and the US Constitution, the US statutes, case law from just going on Westlaw or Lexis doing legal research, reading the briefs, hearing the arguments, all of that. So, I just wanted to be really clear about that.
But in terms of some excerpts that I think helped me appreciate the significance of the Catholic intellectual tradition and also affected my perspective, let me just give a couple of examples. And one is, okay, so one is a meditation by Saint John Henry Newman, and you may have heard this, but it’s called The Mission of My Life. And I’ll just go ahead and read it. It’s a little bit long, so I don’t want to overwhelm you with the equivalent of block quotes, which you glaze over. But let me just read this because I think it’s actually very nice. It says, “God has created me to do him some definite service. He has committed some work to me, which he has not committed to another. I have my mission. I may never know it in this life, but I shall be told it in the next. I’m a link in a chain, a bond of connection between persons. He has not created me for naught. I shall do good. I shall do his work.”
“I shall be an angel of peace, a preacher of truth in my own place while not intending it if I do, but keep his commandments, therefore I will trust him. Whatever I am, I can never be thrown away. If I’m in sickness, my sickness may serve him. If I’m in sorrow, my sorrow may serve him. He does nothing in vain. He knows what he is about. He may take away my friends. He may throw me among strangers. He may make me feel desolate and make my spirit sink, hide my future from me. Still, He knows what he’s about.” So, I mean, you can hear in that meditation that St. John Henry Newman was no stranger to suffering, that he was going through a lot.
Judge Duncan:
Yeah, he lost everything by becoming a Catholic.
Judge Pacold:
Absolutely. And so, you can hear that in that meditation, and I don’t pretend I’ve gone through anything like that, but you can hear, I think, first of all, just the quality of the writing and just the quality of his … I mean, he was clearly just a great and brilliant person. So, just to have that gift of expression in that way, I think, is something that I really appreciate about the Catholic intellectual tradition is that it has these people who are very, very smart and able to express themselves well. But even more than that, ultimately, it’s the substance. It’s just a beautiful expression of his trust in God’s providence that God created each of us for a purpose and that even though the purpose may not be immediately apparent, it just provides a real sense of peace and also just motivation to be diligent and continue and do your best at whatever it is that you have been called to do. Another-
Judge Duncan:
I have to say, for me, Newman was very, very important to me coming back into the church, just reading, essentially, his autobiography about how he was very, very high in the Anglican church and one of the intellectual leaders in the Anglican church. And when he became Catholic, essentially, he gave up all the inherited traditions of the English church, which, of course, had broken away from the Catholic Church, but he was viewed almost as a second-class citizen by becoming Catholic. And I suspect it was extremely painful for him.
The other thing you’ve studied … Joe, you’ve studied at elite institutions. I finally got to an elite institution when I got to Columbia. But when you’re there, the caricature of the religious person is the person who doesn’t think deeply, the person who just does whatever the catechism says, or the person who doesn’t really engage the mind. I think that’s a silly caricature, but it’s powerfully there in some people’s minds in elite institutions. And then you read someone like Newman, who is obviously this incredibly deep thinker who knows more history than I could ever even conceive of knowing, who’s a beautiful writer. And I’d say the same thing for Pope Benedict the 16th. You read people like that and all this, it’s very comforting. It’s like, oh, smart people can also believe in God. Smart people can also believe in Jesus Christ. Smart people can believe in the church. So, I don’t know. It was very important to me too,
Judge Pacold:
And I absolutely agree about … So, with Pope Benedict, that was another excerpt I wanted to just share, which I saw in an interview with a journalist, Peter Seewald. And-
Judge Duncan:
It’s a great book. He has lots of great books, Peter Seewald. They are just powerful.
Judge Pacold:
This is an example of where I need to read more because I just saw this one excerpt in a compilation of Pope Benedict speeches and writings that Pope Benedict reader, but that’s a huge example of how I feel like there’s this huge body of fantastic material, and I’ve just barely even scratched the surface. But this-
Judge Duncan:
[inaudible 00:39:23]
Judge Pacold:
There’s a Q&A about Pope Benedict’s thoughts on Providence. And so the journalists asked him, Peter Seewald asked him, “You often use the word Providence. What meaning does it have for you?” And Pope Benedict said, “I am quite firmly convinced that God really sees us and that he leaves us freedom and nevertheless leads us. I can often see that things which, at first, seemed irksome, dangerous, unpleasant somehow, at some point, come together. Suddenly, one realizes that it was good thus, that this was the right way. For me, this means in a very practical way that my life is not made up of chance occurrences, but that someone foresees and also, so to speak, precedes me, whose thinking precedes mine, and who prepares my life. I can refuse this, but I can also accept it.
And then I realize that I’m really guided by providential light. Now, this does not mean that man is completely determined, but rather that what is preordained calls forth precisely man’s freedom. Just as we hear in the story of the talents, five are given, and the one who receives them has a definite task, but he can do it in this way or that. At any rate, he has his mission, his particular gift. No one is superfluous. No one is in vain. Everyone must try to recognize what his life’s call is and how he can best live up to the call that is waiting for him.” So, again, with that answer from Pope Benedict, which is not a written answer, it’s just his spoken answer, you can hear just gleaming off the page, his brilliance and his intellect. And so, again, that’s something I really appreciate about any time I’ve read even a little bit from this huge body of the Catholic intellectual tradition that’s very clear, but it also just has such sparkling insight.
And I would say right now, I’m incredibly fortunate to be in a job where the meaning and purpose of the job is evident. I feel very confident. It’s easy to appreciate the meaning and purpose of my job, and I’m very fortunate in that. I remember a more experienced judge when I was brand new, saying that this is a calling. It’s not just a job. And I was brand new, so I hadn’t been there long enough to know what that judge meant, but now I really see it. And over time, I see it more and more.
Judge Duncan:
What do you think it means?
Judge Pacold:
Well, okay, so there’s a couple of things. One is obviously upholding justice and the rule of law. And I took an oath that the oath is in a statute, 28 USC 455. And that oath says that I do solemnly swear or affirm that I will administer justice without respect to persons and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me, as, in my case, district judge, under the Constitution and laws of the United States, and so help me God. So, that’s the very basic and simple statement of what my duty is. It’s about justice, doing equal right to the poor and to the rich, faithfully and impartially discharging and perform my duties as a district judge under the Constitution and laws of the United States. So, that’s a very clear statement.
Also, what I think about too, though, is the rule of law. It is a public good. And I forget if I mentioned it. I may not have, but along the way, I wish I would’ve seen this earlier than I did, frankly. It’s a homily by Father Legg that’s about what makes a lawyer good. And if you haven’t seen it, I’d recommend looking that up because it discusses the vocation of a lawyer in a way that probably I could have used early on, but I only happen to run across it much later. But one of his points is that lawyers and judges are in the service of a very high and noble common good, which is the common good of justice. Justice is an attribute of God himself. It’s actually a higher good than bodily health, or financial gain, or material possessions. And that remains true.
The trick is it can be easy to lose sight of that when you’re in the daily tasks of, as a lawyer, reviewing documents, or as you’re doing studying or reading a case. You can lose sight of that. But that’s the bigger picture is you are contributing to this very high and noble common good. And it’s true. Having a reliable and stable rule of law makes things predictable as people go about their lives and their work. And it makes it possible for us to resolve disputes fairly and peacefully. So, it’s really helpful to think about that. I would say what also makes it, I think, much easier for me now to see as particularly a district judge is just not at all abstract. It’s extremely real. As Judge Bianco was saying, every day, we are seeing people in court from all different walks of life. It’s very real. You can go do legal research online, but that’s not what … I mean, and that’s an important thing, but there’s just this huge human component to it. In the criminal cases, we’re doing sentencings, and I think that’s the most important thing we do is the criminal sentencings.
Judge Duncan:
Yeah, we were talking about this. As a circuit judge, I don’t do that. I review sentences, but I don’t sentence people. I guess I could by designation if I wanted, but I don’t do that. And so, do you remember the first time you had to do that or the first times that you had to do that? What struck you about that?
Judge Pacold:
Well, absolutely. I mean, the first time and first times I had to do that, I would say I thought … I’ve never felt so underprepared for something in my life.
Judge Duncan:
Why is that?
Judge Pacold:
Well, because it draws on so many different … well, okay, so you have factors that you apply that come from a statute, 18 USA 3553, and there are factor … I’m sure you hear about these factors just in criminal law, but they’re fairly general, and they’re basically the purposes of sentencing. So, things like promoting respect for the law and deterrence, both specific and general, and incapacitation. And it’s just a long list of factors that are in the statute that are the purposes of punishment. You also have to consider the nature and circumstance of the offense and the history and characteristics of the offender. So, at the end of the day, what it’s requiring you to do is a very fact-specific individualized determination about what is a sentence that’s sufficient but not greater than necessary to accomplish these purposes. And it requires, I would think, gosh, in order to assess any one of these factors, I would need a whole lot of psychology training that I don’t have, psychiatry training I don’t have, sociology. It just goes on and on. Moral philosophy, there’s nature versus nurture. It’s raising all these questions about-
Judge Duncan:
My thoughts and [inaudible 00:47:26] about-
Judge Pacold:
Yes.
Judge Duncan:
… every conceivable circumstance of this person’s life. I mean, I review them on the cold page, and I’m looking at the pre-sentencing report on this person. I’m asking myself, “What led …” I often think this when I’m doing sentencing cases, “What led this person, who once was born, whose parents hopefully held this person as a baby, to do this thing?” So many of the cases, we see awful, this awful thing. It’s not a monster. It’s a human being. Christ died for this person, and yet here, he did this. That doesn’t particularly inform what I do in the case, but I think about it, and I can’t imagine. And I’m doing it just on the cold with a brief, and you’re looking at the person.
Judge Pacold:
Yes. No, absolutely. I mean, and how can I pass judgment on another person? It’s a hard, hard thing.
Judge Duncan:
I’ll say to the students, I don’t know if they know this. It’s not as if the district judge just says, “Here’s what I think a sentence should be.” Boom. Like Solomon, right? As you say, there’s the sentencing guidelines. There’s all these constraints, and yet you do have to make a judgment. I would imagine that’s extremely difficult.
Judge Pacold:
Yes, absolutely. But at the same time, very important. I would love to hear Judge Bianco’s-
Judge Bianco:
You have to do it. Yeah, I agree with everything you said in terms of how difficult it is and how you have to analyze it. The other thing that has struck me, having done hundreds of sentencings, is you’re sentencing everybody who loves that person too. And people can do terrible, terrible things and be a good father and a good husband. And as a deacon, I want to go down there, have them turn their lives around. I want to reunite them with their family, but I know that there are these other factors that that wouldn’t be the right thing to do in a lot of different cases. And you struggle with that because it is balancing a lot of different factors.
But I will say one thing that, as a Christian, and it happens all across the criminal justice system, but sentencing really is a crucible for this, our truths about our Christian faith get confirmed in criminal cases. And you see them at sentencings: forgiveness, the power of forgiveness. I’ve had MS-13, one case in particular, where the mother of the teenager was killed for no reason, completely innocent. She got up and explained the devastation, but at the end, she said, I forgive you. And I was floored. And I could see the weight off of her shoulder. She went back to her boyfriend and fell into his arms. And I could just see how she had been waiting for that moment and how there was a sense of freedom that she had been able to have the courage to be able to do that in that situation.
Rehabilitation and redemption, you see people with drug addictions, oxycodone, all types of abuse as a child, been in and out of criminal justice system multiple times, and somehow, often sometimes through religion, they’re able to turn their lives around. How inspiring is that to see that it’s always possible? There’s nobody who’s incapable of turning their lives around. So, you see these moments where the truths that Christ spoke of and died for come alive in your courtroom all the time. The gratitude … people were grateful for the blessings that they have, even though when they’re in jail. I mean, I’ve had defendants … you may have had this … “I want to thank the FBI for arresting me.” And I’m like, “What?”
And it’s just one of these moments. They know what path they were on. And the crosses of life in jury selection … the MS-13 cases, we bring in sometimes hundreds of jurors, 400 jurors to get 12. And when you tell them how long the case is going to be, and I say, “Anybody who can’t serve … if you have a hardship, people line up.” And it’s one of these things where people come in from all walks of life. They’re living out their lives. They have smiles on their faces. And they line up, and you hear about all the crosses of cancer, unemployment, all the different things in people’s lives, one after the other. The first time that happened, I’m like, “Oh, my gosh, everybody really has some cross in their life.” And I should always remember that when interacting with any people, on a bench, off the bench, that everybody has crosses in their life that they’re dealing with. So, it’s a powerful vocation where you can see these truths about our faith be revealed in all these different aspects of the law, especially criminal cases.
Judge Duncan:
Would we like to take a few questions from the students if we have … I think we have a few minutes, right?
Will Kamin:
That would be wonderful. Thank you, Judge.
Judge Duncan:
That’ll be okay with you?
Speaker 7:
Yep.
Will Kamin:
Yeah. So, let’s see. Our student worker, Joel Jarp has the mic, which is not for application, just for recording. So, if you raise your hand, he can come to you.
Judge Duncan:
Thank you.
Will Kamin:
Thank you, judges.
Speaker 8:
A question I have is how does your Catholic faith inform you when you feel … because you make it oath in front of God to the Constitution. How do you reconcile that when that same oath you make in front of God, and in order to stay true to God, you may have to make a decision that you feel actually would go against the teachings of the church or perhaps would not be the way the church would want something to handle. And so you have this dual obligation. How do you deal with that as judges?
Judge Bianco:
Yeah, I think you take an oath to follow the law, whether you agree with it or not as a Christian. So, the way you deal with that is you follow the law. If there was a situation where it was so fundamental that you just felt like, as a Christian, you could not make that decision, then you have to recuse yourself. If you can’t decide it according to your Christian faith, you have to recuse yourself. That’s never happened to me. But that would be the proper thing to do under the oath, is not to decide it according to what you think God would want the decision to be, but to recuse yourself because you were just so morally opposed to that particular decision. I have other issues because I’m a deacon, so I have perception issues where, if the Catholic Church, for example, has written an amicus brief on a certain issue, then, even though I’m going to decide the case according to the law and can be fair and impartial, I think the perception, my view, is that anytime the church is in the litigation or has taken a position in the litigation that I should recuse just because of the perception that could result from that. And that can be frustrating for me because I know-
Judge Duncan:
Yeah, I hadn’t thought about that.
Judge Bianco:
Yeah.
Judge Duncan:
I mean, I’m a practicing Roman Catholic. If the bishops or the USCCB or something took a position in a case where I was sitting, I would not feel an obligation to recuse. But you have a slightly more complex situation.
Judge Bianco:
Yeah, I’m a member of the clergy.
Judge Duncan:
A member of the clergy.
Judge Bianco:
So, during COVID, for example, there were mask issues in New York and church, and there were lawsuits related to that. And the Catholic Church put in an amicus brief, and I recused on that case. So, that’s the way you deal with those issues.
Judge Duncan:
Judge Pacold?
Judge Pacold:
I agree with Judge Bianco. I mean, the oath is to uphold the Constitution and the laws of the United States, and so that is my obligation. And so, I agree. You apply those laws.
Judge Duncan:
And so, I was telling the judges before, I often get that question. It’s a good question. It’s a hard question. The way I view it is I agree completely with what the judges have said. I have not found myself in that situation, although, believe me, I have all sorts of opinions about the subject matter of cases before me, and those opinions are informed by my Catholic faith. And I think it would be hypocritical for me to say otherwise. We do happen to have a system of government in this country that ensures there are no religious tests for federal office. So, it would be not just immoral but illegal to keep practicing Catholics or deacons off the federal bench. And I think it’s important to recognize that we should be grateful that we live in that country. There are other countries where we might not have that freedom or where the state might be recognized in some officially atheistic way.
We do not have an atheistic state in this country, despite what you might read in the media. We do not. If we did, I don’t see how I could serve in the government of that country, and I think that’s very important. We were talking beforehand. It’s important in a discussion about what your Catholic faith means to your ability to serve as a judge or a legislator, whatever, that the answer not only be, well, I put aside my Catholic faith when I go to work. That can’t be the answer. Right? Because if that were the answer, I would resign today. Not worth it. Right? Eternity much longer than this life. I know. If there’s any Dominican in the audience, I understand eternity doesn’t have a length. It seems to last much longer. Other questions? Whatever.
Speaker 9:
So, one of the benefits of our Catholic tradition is that it offers an armory, you could say, against temptation or the engagement with malice or things like that. As justices, what kind of temptations do you all think are particularly acute to your position, and how might the Catholic tradition help you in your formation against malice, right? Is your faith shaken? Is it affirmed? Things like that.
Judge Duncan:
That’s a great question. Who wants it?
Judge Bianco:
I would pick, in this particular position, I think, power. Judges have enormous power. It’s a lifetime appointment. Can’t get fired. The law gives you all sorts of power, including sentencing power. And that temptation is to think that you are God, and that would be the worst thing ever. You have to approach the job with the humility that Christ taught, and that is super important in anything we do in life. But when you have that much power, and it could so easily go to your head, and you’re isolated to really focus on that, am I serving? Am I recognizing I don’t have all the answers? And Judge Duncan, I pray all the time for wisdom. I go to church every single morning because I know that I’m weak. I can’t do anything without God. And I ask for his strength, his grace, his wisdom to make good decisions that day. So, in this particular job, that’s one that I would certainly pick.
Judge Duncan:
Yeah.
Judge Pacold:
I mean, I agree. I think it’s humility, remembering that we’re incredibly blessed, that everything I’m doing, I can’t do without the grace of God and without a ton of support from everyone around me, including the lawyers, who I’m relying on in our adversarial system to make the best argument they can for each of their clients. And we are fortunate to have great lawyers. My senior colleagues, who I call for advice all the time, my wonderful staff, my clerks, my wonderful clerks, and so I think that’s absolutely right.
Judge Duncan:
Yeah. I mean, look, talk about an invitation to arrogance and just thinking that any stray thought you might have needs to be expressed in an opinion, it’s a dangerous thing. That’s why the framers were leery of the federal judiciary. I mean, you read the anti-Federalist papers, and they’re talking about, “What? You’re going to give these people life tenure and all this power.” I believe one of them, I think it was Brutus, said, “They’ll come to think that they’re answerable to no one, not even heaven.” Sometimes, I think Brutus was onto something there, the arrogance of federal judges who think that they have some sort of special gift to do justice in society. No, they don’t. They apply the law, which is written down, and they should stay in their lanes.
I mean, when I became a federal judge, I was very much … I didn’t say this during my hearing because it wouldn’t have helped, but I felt very much like the kid who was running for student body president on the platform of abolishing the student body president’s office, which was to say, I mean, I don’t trust government generally, and I sure don’t trust federal judges. I know. I’m one of them. I find it … whenever I see judges who say, “Oh, no, no, no. We must have the …” this is why I don’t like multi-factor balancing tests. It’s a temptation to arrogance, and it should be resisted in all because, what do they call it, black robe-itis? I just think there’s a medical term for this. I just made that up. Sorry, go ahead. No, are we … no, questions? Don’t let me-
Will Kamin:
Yes. No, so I think-
Judge Duncan:
Oh, that’s right. The clock is spent.
Will Kamin:
… we’re at time. So, thank you so much, judges and everyone. Thank you for coming.
Judge Duncan:
Yes. Please thank our panelists, not me.
Will Kamin:
Judge Duncan, Bianco, Pacold, thank you so much.