39529-mem_47-4 Sheet No. 129 Side A 10/02/2017 12:47:34 Kay * , Judge—then-Tenth Circuit (CO-MODERATOR): like to I’d ISCUSSION 1 1249 D The Fragile Fortress: Judicial Independence in The Fragile Fortress: Judicial Independence Practice ANEL P ) 10/1/17) 6:51 PM ELETE D OT N O , on April 7, 2017. The transcript has been edited for clarity and to , on April 7, 2017. The transcript has been (D DOCX What I’m about are—well, curious to hear your thoughts is an PROF. JOHN NEWMAN JOHN PROF. (1). ANEL Judicial Independence: Theory and Theory and Independence: Judicial M K Judge Gorsuch wrote: “Our lot as a lower court isn’t to choose be- “Our lot as a lower court Judge Gorsuch wrote: tween the Supreme them.” Court’s holdings, but to apply So, we’ve threats to the judicial fortress, heard a lot today, I think, about external threats posed by the executive to judicial independence. Possible branch, or by the legislature. I think about this from idea I’d like to call intrajudicial independence. and professor. In antitrust, par- the perspective of an antitrust attorney ticularly—and maybe this is unusual—you often see intermediate, ap- the Supreme Court has said on a pellate judges kind of ignoring what given topic. So my question is this: Do we, as attorneys, as scholars, as judges, do we and do we truly value precedent truly obey it and follow it, or do we pay it lip service? Or is it somewhere in the middle? start us off with one question, then we’ll open it up to all of you. But question, then we’ll open it up start us off with one with a quote from, that question, I’d like to start before I launch into presumably, our newest Supreme Gorsuch—the Court Justice, Neil Senate confirmed his nomination this morning.In a case called City of Newkirk v. Electric Cooperative Memphis Review Symposium, Law * the 21st Century last session of the University of The panel discussion was held as the avoid repetition. Judge Donald and Professor DiPippa were in unable to participate the panel discussion. School of Law; B.A., Iowa State University of Science and Technology, 2007; J.D., 1. University of Iowa College of Law, 2011. Assistant Professor of Law, University of Memphis Cecil C. Humphreys 13. P C Y 39529-mem_47-4 Sheet No. 129 Side A 10/02/2017 12:47:34 10/02/2017 A No. 129 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 129 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. : In part it depends on the it depends on the : In part : This is a decision of the 3 4 . You don’t go that far. But the ques- . You don’t go that (CO-MODERATOR): takers? Any 2 ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O Marbury v. Madison (D DOCX HON. MICHAEL B. MUKASEY B. MICHAEL HON. PROF. ALENA ALLEN PROF. That’s not to say that if someThat’s not to say came graduate student running in takers? Any other ALLEN: PROF. ZARELA VILLANUEVA HON. (1). ANEL system. In the Costa Rican system, jurisprudence—that’s to say case law—is not binding. Clearly, is typically followed, it juris- because foundation in law. And what mustprudence is based on right, on the for that reason, the jurisprudence prevail is the foundation in law. And will be followed other courts, because the decision was in based on the law. However, the decision of a court that in possible it is also quite there will minority be opinions which,of time, in the course may well become majority opinions. School of Law; B.A., Loyola University, J.D., Yale Law School, 2003. 1999; 2. Associate Professor of Law, University of Memphis Cecil C. Humphreys Columbia University, 1963; J.D., Yale mer United States Attorney General; B.A., 3. Law School, 1967. for- of New York; Former United States District Judge, Southern District Derecho, Universidad de Costa Rica, 1977; Especialista en Derecho Agrario, 4. Universidad de Costa Rica, 1984; Master en Violencia Social y Familiar, Universidad Chief Justice, Supreme Costa Rica; Licenciada en Court of Justice of Estatal a Distancia, 2003. Chief Justice Villanueva spoke in Spanish through an in- terpreter, Symposium Certified Court Interpreter for the Lan- Pablo J. Davis, Editor guage of Spanish (Tennessee Administrative Office of the Courts). 1250 Normatively, question. a descriptive that’s Now, place we should more less value? on precedent, or value 13. P nature of the issue. If it’s something the issue. If it’s nature of interpreta- involves, say, the that time, it wrong the last Court got the the statute, and you think tion of a legislature can always are decisions that can’t correct that. But if there for believing that it turns out you have a good reason be corrected, and somebody then there may got it wrong, with be a better reason to break mightprecedent than there be otherwise. note fromwith a newly discovered James Madison he really that said that we judges to review acts of the legislature, never intended for would scrap tion is whether you—nonetheless a good and suffi- if there is whether cient reason for breaking from precedent that can’t be remedied in any other way—whetherdoing it judicially. you should consider 39529-mem_47-4 Sheet No. 129 Side B 10/02/2017 12:47:34 10/02/2017 B No. 129 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 130 Side A 10/02/2017 12:47:34 . Sigour- when you’re say- Ghostbusters Sealy 1251 1251 and If you’re not an antitrust afi- : Let me: Let weigh We in. expect 5 Topco nk they’d appreciate it. Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX PROF. NEWMAN: Over a stiff drink. drink. a stiff Over NEWMAN: PROF. Shy group? audience? from the Any questions ALLEN: PROF. PARTICIPANT 1: Can you treat us as a Torts class? [Laughter] ALLEN: I don’t thi PROF. PROF. NEWMAN: cases I had in mind. Those were the JUDGE PROCTOR: Yes. OK. for being here. I have a ques- PARTICIPANT 2: Thank you all [Laughter] are judges sometimes that I’m afraid So, JUDGE PROCTOR: HON. R. DAVID PROCTOR DAVID R. HON. (1). ANEL M K cionado, he’ll explain those later. ing that sometimes we follow the law and sometimes we don’t but— tion. As a former law clerk myself and it’s related to the first question about precedent. In terms of being judicially independent and prece- dent, where do you feel that—and I think that this came up too—with the truck driver/Justice Gorsuch situation and I think it’s an interesting ney Weaver’s coming on to Bill Murray “As and he tells her, a general involved with womenrule, I don’t get who are possessed by an evil him,spirit.” She grabs throws him the bed and he says, “Well, on come moreto think of it, it’s of a guideline than a rule.” humans. We treat the rule of law as a guideline sometimes, and steer away from it. We wear for a reason and that is so that we black robes biases. When’sblock out our personal views and the last time some- one at a nominationthe United States Senate Judiciary hearing before Committee “I will said, follow the law so long as it comports with my law ought to be”? That just doesn’t personal views and what I think the happen. So, I emphatically say you have to follow the rule of law. I don’t know if you’re talking about people outside the judiciary to follow the judiciary people outside of law. the rule one of That’s our hallmarks: tremendously laws. I think it’s we are a nation of crit- and we a nation of laws that we’re the judiciary recognize ical that law and, therefore, by the rule of controlled a judiciary that’s should be And, It’s the rule. or guideline. is not a suggestion precedent of the difference if you’ve seen course, you know Newman College, 1983; J.D., University of Tennessee College of Law, 1986. 5. of Alabama; United States District Judge, Northern District B.A., Carson- 2017 13. P C Y 39529-mem_47-4 Sheet No. 130 Side A 10/02/2017 12:47:34 10/02/2017 A No. 130 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 130 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. : Well, just speaking for my- 6 ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX Now, oftentimes, there’s not clear precedent or there is some don’t have—ifBut, as Judge Proctor said, if you you’re not When that see precedent at a case and you are looking you CORRIGAN J. TIMOTHY HON. (1). ANEL self, I think under our system—andself, I think under Proctor was alluding I think Judge to this as well—I think that oftentimes judges make that, if decisions the opposite be way they wanted to do it, it would they could do it the mean probably what we by the rule of law. that’s decision. And I think says this or if the Eleventh Circuit,That is, if the statute in my case, which is my governing circuit, or the Supreme says this is the Court way it ought to be, then I have to rule that way. ability to make an interpretation or—anddon’t think we I have to be the justice of a situation in certain so hidebound that we can’t look at circumstances because that’s what we’re about, too. But, I mean, I that doesn’t on a weekly basis don’t think there’s any judge around have to make prefer not to—whetherwould a decision that they it’s to impose a minimum mandatory have sentence that they wish they didn’t to imposewhether it’s to apply a circuit precedent that they wish or had come out the other way. the lawbound by precedent or bound by then you really are kind of lost. You can even—and do it I do this every once in a while, I don’t very often—you admit can even in your opinion of your doubt or your hope or your wish that it could come out in another way because, as maybeJudge Donald said [in her presentation], someday somebody will think you’re right. Maybe, someday, somebody in authority will at That’s the way I would look come to that way of thinking. around it. of Notre Dame, 1978; J.D., Duke University School of Law, 1981. 6. United States District Judge, Middle District of Florida; B.A., University 1252 came that discussion madeup and it mewould you about how curious react to something similar. seemsthat that’s not feelings say your gut or one thing but your to say outcomethe right different outcome. and there’s a In terms of the in- system, or, in the federal of your court dependence independence the that that independ- part of the court, how do you feel of your particular judge—asence for you as a a jurist—playsinto precedent that you may wrong with a certain set of facts. feel is incorrect or 13. P 39529-mem_47-4 Sheet No. 130 Side B 10/02/2017 12:47:34 10/02/2017 B No. 130 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 131 Side A 10/02/2017 12:47:34 1253 1253 Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX decision and sometimes what the rule is at the time you’re im- HON. MICHAEL B. MUKASEY: Along the lines of Judge Judge of lines the Along MUKASEY: MICHAEL B. HON. sen- the in especially And precedent, JUDGE CORRIGAN: PARTICIPANT 3: I have a question.eve- This is actually for order valid you have a facially if JUDGE MUKASEY: I think PARTICIPANTnot just newspaper reports. I 3: Well, they’re com- President’s the they’re JUDGE MUKASEY: I understand PARTICIPANT 3: So the President’s intent or motive is com- Yes. MUKASEY: JUDGE (1). ANEL M K 2017 13. P Corrigan, in connection with the sentencing, I wrote a decision saying I wrote a decision the sentencing, in connection with Corrigan, imposing,is the sentence I was that this longer I felt that it was but that than was When necessary. the case went the court of appeals up to “Well,they said, you could this is the way felt that way then if you they remanded to less.” And have sentenced So, it and I resentenced. someyes, occasionally good can be achieved. been very dynamictencing area, has in the federal system since the Booker posing it isn’t the rule by the timeposing it isn’t the to the court of appeals. it gets up Sometimes to know what you thought about the court of appeals wants see if you said somethingit. They’ll look to like, “If I had the oppor- somethingtunity I would do That can sometimes different.” have an they view it. influence on how ryone—but directed first at Judge Mukasey. Thank you for coming, Judge Mukasey. I was curious about your And all of you, of course. comments You seemed the so-called travel ban. about to indicate that the President’s comments—his motivation or intent—weren’t relevant right? I was confused why this to interpreting the order. Is that wouldn’t be relevant. You seemed to put blame on the courts rather than the President for making the comments. be put in place, then you apply that recites reasons for why it should them. reports about what some- You don’t start reading newspaper body said on a nighttimecommentary television program and apply them more to the executive order. Any than you would an act of Con- gress. mean,they’re the President’s comments. ments. you can have comments And by members Congress about of what statutes mean. don’t Those are interesting for historians. They mean anything when it comes to what’s on the face of the statute. pletely irrelevant to interpreting it? C Y 39529-mem_47-4 Sheet No. 131 Side A 10/02/2017 12:47:34 10/02/2017 A No. 131 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 131 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. gh in. And I have to be be to have I And gh in. ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX [Laughter] cite to be important would it Do you think PROCTOR: JUDGE PARTICIPANT who 3: For to cite? court. The JUDGE PROCTOR: indeed. Yes, 3: PARTICIPANT none that out find you to surprise Would it JUDGE PROCTOR: PARTICIPANT 3: It would surprise me,my but question is But I’mJUDGE PROCTOR: getting to your question. So, let PARTICIPANT 3: I’m not sure about a preliminary injunction a TRO. Or PROCTOR: JUDGE PARTICIPANT 3: Employer comments that show their motive ques- the but evidence, They’re relevant JUDGE PROCTOR: We have to make sure that we put forth opinions that do not JUDGE PROCTOR: Well, let me wei let Well, PROCTOR: JUDGE (1). ANEL 1254 13. P more than Judge Mukasey careful graze in I do not currently because practice. fields of private the green on whichthe statute was executive order the based? the statute under 8 that we’re dealing with analyzed of the three courts U.S.C. § 1182(f)? really— mean executive order involving President do that. Let’s say, instead of Trump,action in which the case involves a Title VII the plaintiff wishes of egregious discrimination. to be reinstated to the job because And on day one, the plaintiff comes in and presents extra-judicial com- ments that are of public record, made by the employer, and says, “On to work today.” How manythat basis, I deserve to be put back cases a preliminaryin the history of our courts have granted injunction under those circumstances? but I think— in treating employees evidence in Title in a certain way are relevant VII— to other, alternative evidence on tion is, do you credit those as opposed day one? All I’m saying is this. Weapproach have a very interesting to how we’ve taken on this whole travel ban issue, in my view. And I’m coming to Judge Mukasey’s defense a little bit here, and being devil’s advocate a little bit here at the same time. I think that this points to an issue where the judiciary can sometimes shoot themselves in the foot when it comes to judicial independence. appear to be politically—what was the term, political functionaries? 39529-mem_47-4 Sheet No. 131 Side B 10/02/2017 12:47:34 10/02/2017 B No. 131 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 132 Side A 10/02/2017 12:47:34 that Title VII protects 1255 1255 Hively Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX PARTICIPANT 3: And I’m advocate, too, just playing devil’s far on that comment shouldn’t I probably JUDGE PROCTOR: commentsPARTICIPANT 4: Judge Proctor’s segue nicely into (1). ANEL M K homosexuals from discrimination under sex clauses as [inaudible]. homosexuals from discrimination under sex clauses as [inaudible]. And Judge Posner wrote a separate concurrence—I can’t remember the specific words that he uses, but basically stating that judges should look to how things have changed in the United States since the enact- ment of Title VII in interpreting it. I’m wondering whether all you 2017 I’mNow what I am But did that. courts of the any saying that not this. If mysaying is mehad brought opinion without that law clerk it and with of 1182(f) in any analysis only—in opinions, one of the likelihood a substantial said “I find there’s sentence that only a single have a discussion probably on the merits,”of success we would about employment. going to continue that law clerk was whether So my po- judiciary not to be we have to be very careful in the sition would be, said too much force and I probably have pulled into the political al- that, I do think that it’s an importantready. Having said discussion about where the limitsthat we need to have authority are. of judicial So with that said, I’m questions. sure I’ll get a couple to get some questions going so—with all due respect to Judge Mukasey. let me So ask you this same is, question then. The question President’s commentsdo you consider the the executive order— about that motivatedhe signed to be irrelevant, the executive order that which Judge Mukasey, was saying? I think, analogy that I think takes someit, but I’ll say this. I gave you an of a real life application of a TROthe politics out of it and puts into set- think, under those circumstances,ting. And I’m the suggesting that I TRO based upon an employer’scourt probably would not grant a ex- tra-judicial comments motive. that tend to suggest Bear in mind, the Ninth Circuit did not grant the TRO—did not uphold the TRO based it was Due Process. The Hawaii on Establishment Clause grounds; based on Due Process, as I under- district judge did not grant the TRO stand it, but Establishment Clause. So there’s not exactly a huge con- how it was decided. All I’msistency about what was decided and say- to be very careful to behave as ing is this: I think we judges have judges and not something else. to Judge Mukaseya question I’d like to ask. Specifically, but hope- fully to all of the panel. I imagine or heard that you’ve either read about the Seventh Circuit’s decision in 13. P C Y 39529-mem_47-4 Sheet No. 132 Side A 10/02/2017 12:47:34 10/02/2017 A No. 132 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 132 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. National Review Obergefell v. Hodges : Somebody up there. 7 ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX PARTICIPANT 5: I’m all a second year student. Thank you PROF. ALLEN: Don’t jump all at once. at all jump Don’t ALLEN: PROF. JUDGE PROCTOR: Well, take a constitu- I take it that would [Laughter] way up on the a great sure that’s I’m not JUDGE PROCTOR: JUDGE MUKASEY: That was addressed to me? I don’t think think me? I don’t to was addressed MUKASEY:JUDGE That [Laughter] far too he went he—I think JUDGE MUKASEY: don’t I think takers? other Any ALLEN: PROF. JR. JOHNSON, STERLING HON. (1). ANEL for being here. I think it was in his dissent in for being here. I think it was in that Justice Scalia said something of, “If wethe effect to nine unelected judges continue to make we go along, the people may this up as remind us how truly irrelevant we are.” He seemed to be inviting a complete— not a revolution, but some sort of reform of the court, and that after- had a piece in the noon, Senator Ted Cruz, I think, proposing a system then, other proposals of judicial retention. Since have emerged for, sort of, hard-cap term limits And I’m for judges. curious how—what members of the panel think, I guess, if you had to to judicial independence, whererate the threat level of these proposals would you place those? tional amendment a health care bill— and given that we can’t get threat level. I think Justice Scalia intended that as, kind of, rhetorical argument as an unnecessary or inadvisable step as to what he viewed LL.B., Brooklyn Law School, 1966. lyn College, 1963; 7. United States District Judge, Eastern District of New York; B.A., Brook- 1256 been have candor might that his think might That he too far. gone have too candid. mindset kind of a different candid. I have he was too it comes when can being statutes, a constitution. Statutes, as opposed to to statutes damaging as potentially It’s in the large not be changed. change and because the to decide that a statute has changed to the political fabric it is to decide the it’s being applied has changed, as setting in which same that Judge Posner about a constitution. So, I understand thing quite a lot of stuff. Sometends to produce think it’s prolific; people some think it’s incontinent. people in that case. 13. P 39529-mem_47-4 Sheet No. 132 Side B 10/02/2017 12:47:34 10/02/2017 B No. 132 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 133 Side A 10/02/2017 12:47:34 , buenas tardes proactive branches of 1257 1257 are Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D the travel ban, thank you—gavethe travel ban, thank service, much even lip less DOCX JUDGE JOHNSON: I think the Constitution details the func- PARTICIPANT 6: And yet, though, it seems—in some of the Let me read 8 U.S.C. see if you think to you and you § 1182(f) Seems like an important to part of the discussion if we’re going [Laughter] ma’am. Yes, ALLEN: PROF. to all, and PARTICIPANT 6: Good afternoon (1). ANEL M K Dr. Villanueva. [Inaudible] It was interesting [Inaudible] earlier pan- elists discussed the—I angst with guess the the concept of legislatures independence by perhapswanting to intrude on the judiciary’s enact- And yet, there’s decisions. judicial ing ways to legislatively overturn to invade the legislative process. not that equal angst for the judiciary And I’m that imbalance, trying to understand that seeming imbalance, that somehowOK it’s and invade legislative [judiciary] to lead for the the independence, but it’s not OK for legislature to invade and disrupt judicial independence. [Inaudible] is to create policy tion of each branch of government. The executive and execute laws. The legislature is to pass laws. And it is the judici- ary to interpret the laws. I don’t think that the judiciary is a proactive branch of government; and the other two government. opinions that we have just discussed, there has been some proactive 2017 majority.by the want I just I don’t And I’d said. to one thing return to to misunderstandwant anyone what I’m suggesting. discussion. “Whenever the President ban to a travel this is significant aliens into or of any class of of any aliens that the entry finds evidence the United States would be detrimental of the United to the interests States, he may by proclamation, period as he shall deem and for such of aliens as im- the entry of all aliens or any class necessary, suspend migrants or non-immigrants, impose or of aliens any re- on the entry strictions he may deem to be appropriate.” or acted un- the President overstepped authority be analyzing whether lawfully. And I’m that out that none of the three courts only pointing ban gave even lip service, muchupheld the travel less—I’m that sorry, overturned And I’many analytical discussion, to that provision. just simply say- as the judiciary to makeing that I think we have to be careful sure that of law. So, I felt like I left the hula we ground our decisions in the rule hoop out too far out from myto pull it back. hips; I was trying 13. P C Y 39529-mem_47-4 Sheet No. 133 Side A 10/02/2017 12:47:34 10/02/2017 A No. 133 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 133 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX JUDGE JOHNSON: The courts can tell you that a law you pass a law you that can tell The courts JUDGE JOHNSON: you’re talking unless of course, And, JUDGE CORRIGAN: beauty of a constitution—JUDGE JOHNSON: That’s the remindJUDGE PROCTOR: And I would us that Hamilton, you. support JUDGE MUKASEY: And that he Also, Exactly. me. support And that JUDGE PROCTOR: pru- I’m course, of Well, VILLANUEVA: JUSTICE CHIEF (1). ANEL 1258 can one [Inaudible] discussed panelist as one in a sense, and, activity, see some part. work on the judiciary’s proactive that you committed the act is unconstitutional, was wrong. But they do—is tell you what to pass or they can’t you what law to can’t tell the interpret the laws—or Courts can only right act. when the laws tell you correctly. are not being done always interpretation, the legislature about constitutional retains the law.right to change the act, for a court invalidates a legislative So if a new law. And that happens legislature can pass some reason, the quite—a decent amount. And so, it’s only in a case in which a court holds a law unconstitutional and it can’t is be fixed that the legislature then, admittedly And then, of course, even bound by that decision. an unwieldy process—but amending there is a process for the constitu- tion. So, in the way the system is set up, there’s always a way to do something. it’s too hard to do it or it’s never going to Now, whether happen—that’s different question. a checks and balances. strong judiciary and favored lifetimewho was a staunch proponent of a tenure, favored non-reduction of compensation—favored all the things that I support personally— should be the least dangerous of predicted and said that the judiciary we—thethe three branches of government. judi- idea being that The ciary only deals with matters brought to us. And I think that this goes pro-active. We not to Judge Johnson’s view that we’re out. don’t reach We don’t make policy decisions unnecessarily. Having said that, we do, oftentimes,guardian between a problematic stand as the only gov- ernment and a citizen who initiative would by it. be endangered to mattersdent and I have no intention of referring that are internal to your country; I’m absolutely clear about that. What I would like to of cases, of jurisprudence, has underscore is that the binding character as its ultimate goal the certainty of the citizenry. So that the law, so that justice, may be predictable. But for us, the task of following the 13. P 39529-mem_47-4 Sheet No. 133 Side B 10/02/2017 12:47:34 10/02/2017 B No. 133 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 134 Side A 10/02/2017 12:47:34 1259 1259 Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX And I will I the idea that I have defended say that as a justice Costa Rican to another subject, too. The But I’d like to refer And there has been a problem America, throughout Latin with questions? Other ALLEN: PROF. PARTICIPANT 7: I’m Judge Donald a current law clerk. What have in those situations as far influences, I guess, do you (1). ANEL M K 2017 law, law the enforcing same at the but time the law adjusting to chang- system. task of the That is the ing times of our is part and conditions, withinjudiciary, framework the of law. the lawinterpret And I strive to do justice. and that’s why have al- I waysit’s not simply the belief that been of the parties who are the de- terminants role of the judge to discover of the truth. It is the active systemwhat is true. Our operates, then, that makes in a way it possible about very importantfor case law to bring changes. systemthe mechanism also has of the Su- of legislative consultation preme Court constitutionality of the measures as to the it is consider- ing. After but before it becomes a bill is passed, law, ten members of Congress consult with the Supreme Court’s Constitutional Chamber, of the bill. Anda decision as to the constitutionality so that it renders this has been a problem actually, because it has intro- for the judiciary, Andduced politics into the judiciary. it’s done it at a time whenthe two-party system has been breaking down in our country. in Congress. system The two-party the proliferation of political parties is now a thing of the past—in my country, that happened some time ago. Reaching agreement has become and that has seeped difficult, a series of problems,into the judiciary. And and a ques- this creates tioning of the judiciary. That’s what we’re in the midst of. and howspoke a little bit about judicial independence she sees that I amhaving to fit on a three-judge panel. interested in—the judges who probably don’t have that who are here as district court judges same situation. But I do wonder what kind of pressure that you kind of feel as single judges but—so about I think that Judge Corrigan talked this about how sometimes the law isn’t clear. And maybe there is a circuit split and you have to adopt—you have to decide an issue or first impression for the circuit in which you sit. as wanting to be unified with other district court judges on your court? Or pressure from not being overturned on appeal—which I know is a common concern? So, in what way do you think that—in a sense your own personal feelings when the law is unclear on a discretionary issue? 13. P C Y 39529-mem_47-4 Sheet No. 134 Side A 10/02/2017 12:47:34 10/02/2017 A No. 134 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 134 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. y been reading my deci- y been reading ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX But to be honest with you, one of the reasons I don’t worry with you, one of the reasons I But to be honest you can. I think you just have to do the best You have to write don’t worry about the appeals. I also—I JUDGE JOHNSON: [Laughter] you when satisfaction particular get I also JUDGE JOHNSON: [Laughter] judges— chief And I remember one of the JUDGE JOHNSON: JUDGE CORRIGAN: Well, no judge likes to get reversed, and get reversed, to likes no judge Well, CORRIGAN: JUDGE [Laughter] probabl You’ve JUDGE CORRIGAN: (1). ANEL sions. But, I’ll tell you truly, I don’t worry about it. And the reason I worry about you truly, I don’t sions. But, I’ll tell it is that it is not mydon’t worry about worry about it. It’s their job to do the best I can. I it when it gets up there. I just job to worry about apply the lawI try to If I have conflicting authorities, the best I can. reconcile them and if I am so, I take what able to do I consider to be result. Andthe best reasoned it does give you someit flexibility, but also imposes some burdens on you. to do. In going what the circuit’s about it is that you just don’t know or a case on point, to try to handicap the absence of a circuit precedent what you think they might to try to decide what you’re do as a way going to do is really kind of a fool’s far as I’merrand, as concerned. to apply either canons of statutory the best decision you can. You have you have, and try to come to the interpretation or whatever other tools that mostbest decision. Another reason is things don’t get appealed. So, if you worry so much to do, it may about what the circuit’s going be that the case doesn’t get appealed anyways. So that’s my answer. and there was this senior—chiefI recall going to several functions always introduce mejudge of the circuit and they would to him. And I would always give him the sameknow you, sir, and it’s story: “I been my privilege to have been by you several times.” reversed the Supremeare reversed by the circuit and then the Court reverses circuit. there was a decision that I had made in a case, and it was reversed by this judge. And he was a wonderful judge and a wonderful person. And I used to see him time at social functions all the and he’d always 1260 is more there I guess room to make ideals personal for your decisions whatthere. So, what influences, in those situa- external factors other tions where to follow? is no clear route there a common suggesting it’s if you were problem me, for I don’t know. 13. P 39529-mem_47-4 Sheet No. 134 Side B 10/02/2017 12:47:34 10/02/2017 B No. 134 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 135 Side A 10/02/2017 12:47:34 1261 1261 Any other questions? Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX PARTICIPANT 8: I’m a 3L, for a few more weeks. I had a a judicial not question, a political That’s JUDGE JOHNSON: [Laughter] [Laughter] You things. those worry about can’t You JOHNSON: JUDGE are certain there I’d add is thing The other JUDGE PROCTOR: [Laughter] an old That’s kidding. Just kidding. Just JUDGE PROCTOR: [Laughter] chambers. my in rule a had to—I used I MUKASEY: JUDGE [Laughter] PROFESSOR ALLEN: (1). ANEL M K question about yesterday’s news. And I apologize, because unfortu- nately, I missed the morning This is really for everyone, but speakers. I am that Professor particularly interested in the Poli Sci perspective Kasper might allows. I was just won- have, if his internet connection dering to what degree you all think that ending the filibuster for SCOTUS nominations will make the nominees more political—more been thinking Personally, I’ve susceptible to the political process. about it and I’m kind of back and forth. Formal confirmation hearings are relatively new, anyway. But I’m interested in what you all think about it. question. 2017 the family?” How’s Sterling? are you, “Hello, how say, men- He never went case. The case tioned that the Supreme to they reversed Court; you? How’s I’d say, “How are and see him, And I used to the circuit. the family?” is the right thing to do. do what you think Circuitpanels on the Eleventh that when they affirm me, I say, “I still think I was right.” district court joke. It was a firing offense for any of my law clerks to attend the oral argu- ment in an appeal of one of my decisions, for precisely that reason: don’t try to suggest that you are you don’t worry about it, and you worriedif some about it. Because circuit judge sees one of your law clerks in the court room, some or circuit clerk knows that one of your law clerks in the court room, that suggests that maybe you’re afraid about the result. And I will horses and tell you that circuit judges, like children, can smell fear. 13. P C Y 39529-mem_47-4 Sheet No. 135 Side A 10/02/2017 12:47:34 10/02/2017 A No. 135 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 135 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. : Yes. Well, what historically we have 8 ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX I mean, there is a possibility that we may see some more ideo- see what we have seen which I think we’re going to continue to PARTICIPANT 8: My 8: PARTICIPANT impactabout the is question on the PROF. NEWMAN: Professor Kasper, that ques- did you hear ERIC KASPER PROF. PROF. ALLEN: Any other questions? (1). ANEL with filibuster—I regards to the use of the mean, been relatively it’s somethingrare. It’s only been that’s come up in the last half-century. It’s only been employed Fortas in 1968. successfully once, with Abe seen the need seen a greater use of it, and we’ve And although we’ve votes in somefor these cloture of the more recent nominations with Chief Justice—forele- Rehnquist when he was being Chief Justice as wellvated to that position, as with Justice Alito—I think it is really is going to have an impactan open question as to whether this its or going to change the nature of who going to be appointed. is logically left- or right-of-center nominees because of that. But on the whole, because of its infrequent usage, I don’t know that going to it’s have a huge impact one way or the other. This will make certainly it easier to get nominees confirmed. we haven’t seen much But because of that—be a problem historically, and in most cases historically the the party in power in the Senate party in power in the presidency and when they’re the same, going to tend obviously that’s when you are a nomineesee the easiest position of getting confirmed. the President—oris that it is going to be difficult for more difficult— to get a nomineethe Senate is controlled by the other through when party. It’s similar what to we saw last year. The impact of the filibuster to be relatively minor.on that, I think, is probably going Claire; B.A., University of for Constitutional Studies, University of Wisconsin–Eau 8. Wisconsin–Eau 2000; M.A., Claire, University of Wisconsin–Madison; J.D., Univer- Associate Professor, Department of Political Science, and Director, Center sity of Wisconsin–Madison, 2007; Ph.D., University of Wisconsin–Madison, 2007. Prof. Kasper participated via remote video connection from Chicago. 1262 13. P judges—justices that are nominated to the Supreme I wonder Court. if it will more judges to author federal circuit encourage politically that they willopinions in the hopes charged for—by be picked what- time. is in office at the ever party tion? 39529-mem_47-4 Sheet No. 135 Side B 10/02/2017 12:47:34 10/02/2017 B No. 135 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 136 Side A 10/02/2017 12:47:34 1263 1263 activists. them Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX [Laughter] PARTICIPANT 10: It’s hard to tell on any of your colleagues. me? Who, JOHNSON: JUDGE [Laughter] PARTICIPANT 10: We hear that a lot. What’s your take on PARTICIPANT 9: I’mPARTICIPANT the entire input of invite the here. I a 3L of “activist”? your determination What is JUDGE JOHNSON: [Laughter]. so I and Democrats, Republican Both JUDGE JOHNSON: 9: WhatPARTICIPANT I mean is—obviously you all know Any- courts.” “inferior it call they Well, JOHNSON: JUDGE PARTICIPANT 10: Just a follow-up that. I hear this term to (1). ANEL M K “activist judge” used a lot, and I don’t know what that means, either. know what that means,“activist judge” used a lot, and I don’t either. [Inaudible] if somebody name could one. Are any of y’all activists? [Inaudible] I can tell from the look on your face, you’re not. it? 2017 13. P panel for this question, but I’m particularly keen on Judge Mukasey. I’m this question, but panel for on Judge Mukasey. particularly keen While and importance the necessity I appreciate of judicial independ- ence, mybecome when judges on what happens question focuses too Whatindependent. I mean become that is when judges by activists and bench to make position on the use their what the law law and say is. So, the question is, how of what the law actually should be instead do we address that? is whoseBecause it usually If the decision goes against ox is gored. you, you are an activist. don’t know what you mean “activist.” by this—but is based on the point of the judiciary is to say what the law thinks the law should be. And so I what it is, not on what the judge being in a position withdefine being an activist as a judge a red pen law and practically trying to change the they want. [Inaudible] that I both sides do it—I’mappreciate your opinion that to say that not trying it is one-sided. What I’m saying is that there is no [Inaudible] reason opinions to amendfor judges to take a red pen in their the laws that are in place. thing lower than the Supreme Court must follow law, the whatever the law is. And following the law—if that makesI guess, you an activist, then at all times, judges are activists. It’s the Supreme all Court who can—theyto follow the law too, but I guess they can change the have law. I guess you could call C Y 39529-mem_47-4 Sheet No. 136 Side A 10/02/2017 12:47:34 10/02/2017 A No. 136 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 136 Side B 10/02/2017 12:47:34 M K C Y decision, 1857 Vol. 47 Vol. Dred Scott called names all my whole my whole names all called : I’ll jump in just a little bit, and 9 ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX JUDGE JOHNSON: I have been have I JUDGE JOHNSON: [Laughter] But nonePARTICIPANT 10: of them are true. say that. wouldn’t I JUDGE JOHNSON: [Laughter] PROF. NEWMAN:does seem It sitting like a tough sell to get a JUSTIN WALKERPROF. So I’m not sure that the idea of activist judges, is—ISo I’m not sure that the idea of activist agree it can JUDGE JOHNSON: I don’t know. If you— know. I don’t JOHNSON: JUDGE PARTICIPANT 10: An judge, my activist it has of definition party. losing say—the I what That’s JOHNSON: JUDGE 10: So—butPARTICIPANT how you on a does that affect (1). ANEL daily basis, writing your opinions? Are you concerned you are going you are going Are you concerned opinions? writing your daily basis, or [Inaudible]? to be labeled that, life; there’s no name Many that I haven’t been called. of them unmen- tionable. But I wonder if we can get our aca- judge to rat on their colleagues. demics to weigh on this. Has in activism become more or less preva- lent—if it exists? push back a little bit against a couple—maybe some of the assumptions the first questioner mentionedin the two questions. One of the things is that it seems like it’s a recent phenomenon, judges. And then activist activist judge. Whenyou asked for a kind of example of an I think of the most activist, the worst—one of the worst opinions in U.S. history is also one of the most opinions. The activist been on the books for 37 years, theor so, invalidated a statute that had Missouri Compromise, based on an extremely aggressive reading, not of someof the text of the Constitution, but inferences that the Court may arrived at for political reasons in order to achieve political have ends. be a problem. It certainly was a problem there. Notre- necessarily a cent problem. also push back a little bit on the I think, though, I’d judge who strikes down a statute as notion that an activist judge is a unconstitutional. Because judges have a choice-of-law decision to School of Law; B.A., Duke University, 2004; J.D., Harvard Law School, 2009. 9. Assistant Professor of Law, University of Louisville Louis D. Brandeis 1264 13. P always been that it’s the losing party. that it’s the losing always been 39529-mem_47-4 Sheet No. 136 Side B 10/02/2017 12:47:34 10/02/2017 B No. 136 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 137 Side A 10/02/2017 12:47:34 1265 1265 Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX You activism also hear being a kind of contrasted with as being creatively does this: what if the judge But what if the judge So I think these terms, “activist,” “minimalist,” these can be PARTICIPANT 10: So it isn’t a current problem? Or is it just WALKER:PROF. Is the problem—is activism? there are activist judges out PARTICIPANT 10: Do you see [Laughter] (1). ANEL M K 2017 make whensays an- statute and the thing says one the Constitution side withother. To an ac- is not to be over a statute the Constitution to maketivist; it’s because that is required, choice of law the correct one is supreme to the other. “minimalist” I think sometimes judge. And be abused, too. that can Someone can be a minimalist judge in a somewhat activist political, exampleway. To give an here, imagine a judge is presented with that whether or not. The judge a statute is constitutional it’s un- concludes wouldconstitutional. I that if the judge just strikes down suggest that an act of activism.statute, that is not changes the meaning in a wayinterprets the statute of the statute that question?but avoids a constitutional Is that judge being a minimalist? Well,I think the judge would are avoidingbecause they say so this big, antidemocratic, I think when constitutional question; but you start re- acting in a legislative way, not writing the meaning of a statute, that’s in a judicial way. And that’s a fairly activist approach. kind of misinterpreted mentioned, or thrown out, as Judge Johnson in a way that’s sometimes, “You’re you know, wrong if you disagree with me, you’re right if you agree with me.” I think—I say this from the cheap seats, as an amateur on a panel with a lot of people who have experience doing it—but, try to figure out whatConstitution the means; withis inconsistent that. If it is, try to figure out if the statute makestrike down the statute. That doesn’t you an activist; that just makes you a good judge. political? there? It appears to mehe’s an activist that a trial court federal judge, if get is he’s going to get reversed. It judge, the first thing he’s going to just doesn’t have—[Inaudible] appeal. I just, you it won’t withstand know—is it a real problem or is it just political spin that you hear about to in the last decade? I’ve heard it, I’ve just never seen anyone point one and say, “This person is an activist judge.” Other than Scalia. 13. P C Y 39529-mem_47-4 Sheet No. 137 Side A 10/02/2017 12:47:34 10/02/2017 A No. 137 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 137 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. A Matter of Inter- ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D talks about a brief he once read back before textualism talks about a brief he once read back was DOCX PROF. WALKER:PROF. me Let give is why it reasons a couple Someone mentioned never imagine that you would earlier a textual en- answer for a judge in today’s It is an inconceivable don’t think you see that now. To the extent that existed before, I [Laughter] PROF. WALKER: been There has since then. Jus- a revolution You had a question. ALLEN: PROF. PARTICIPANT 11: I’m alum a law school and current law (1). ANEL 1266 13. P something is improving that Then I’d invite getting worse. rather than disagree with me.anyone to a confirmationjudge at hearing admitting if I see a law that don’t that I like I’m went by hearsay, I never I like. This is going to do what just a judge who transcripts: several decades ago, back and read the is very talented in many of the Ninth Circuit was ways, Judge Pregerson out asked a similar question at a confirmationagain this is hearing and he said, actually, if it wasbased on hearsay, really, really, really, really, do really bad, I wouldn’t what that statute says. vironment to say. You know, don’t file a slander suit against me if this isn’t what Again, I haven’t in his confirmation he said hearing. checked the record. Here is another example, Justice Scalia in his book pretation as embraced When as it is now. it was more permissible for judges and you might call them activists to try to figure what the right policy is, of looking at the text. He sayswhat was Congress’s purpose instead this is what the brief said—because is unclear, the legislative history we are forced to turn to the text of the statute. tice Kagan has said to a degree we a degree we are all originalists, to are all textualists now. Now there’s still a spectrum. Not everyone ap- proaches everything the exactly same way. If you are concerned about judges ignoring texts and imposing I their politics and their policy. But, it was a generation ago. think it’s less of a problem in 2017 than again, I’ll be happy to invite disagreement. clerk for a district court judge. My more question is a little specific on an issue. There have been a lot of changes to the Sentencing Guide- lines and a lot of rulings on specific relief in the Sentencing Guidelines. [Inaudible] I’m of change and flux in law allow curious if those sorts you to have more low or up in the Guide- independence in sentencing lines. 39529-mem_47-4 Sheet No. 137 Side B 10/02/2017 12:47:34 10/02/2017 B No. 137 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 138 Side A 10/02/2017 12:47:34 1267 1267 Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX And how you address more address how you And of the section when one generally judges invite Guidelines the that think I JOHNSON: JUDGE rea- articulate supposed to JUDGE MUKASEY: You’re also on his today earlier Judge Johnson, Yes. JUDGE PROCTOR: discretion. I mean, it’s But before then, judges had unfettered that judges had, it turns out So with this unfettered discretion One of the factors in section 18 U.S.C. § 3553(a), the sentencing (1). ANEL M K statute, is that we want unwarranted disparities in sentences to avoid involving similar The Guidelines are, I think, a very strong defendants. 2017 13. P law is changing regularly—doeslaw is changing you more it allow in independence those things can when you know or in your sentencing your rulings the timechange by the court of appeals? they reach However, They invite you. the guidelines. above or below to sentence you mustwhen you do that and your reasons for doing that, articulate doing that mustyour reasons for with the law and with be consistent that. the authority to do have to consider up or down. I think that you also sons if you depart supposed to em- as originally crafted, were the fact that the Guidelines, eons, and there’s experience of judges going back body the collective a certain amount you depart. that’s due to that. That said, of deference talk had some very true statements came about why the Guidelines into on the Fourth Circuit in 1986–87. place in the first instance. I clerked Judge Wilkins, who was initial chair of the Sentencing, was the gone with other the Guidelines along basically the whole year drafting judges and members of the Commission. judges who are pre-Guidelines real interesting to talk to our older judges. Because what would happen is they’d take a guilty plea, they’d go back into chambers, they’d bring back in the prosecutor and the defense attorney and maybe And they’d sit the probation officer. announce the sentencing decision around and talk, and walk out and right after the plea was taken. There was no pre-sentencing report un- was a of the guilty plea or it less the judge asked for one in advance to delay sentencing. rare case where the judge decided we Not had sentencing disparities. only would a defendant with a sim- ilar criminal background and a similar conduct get a different offense sentence, perhaps, in Arkansas and Pennsylvania but maybe a differ- Bir- Hugo Black Court House in ence sentence on the sixth floor of mingham floor of Hugo Black Court House in Bir- and the seventh mingham. C Y 39529-mem_47-4 Sheet No. 138 Side A 10/02/2017 12:47:34 10/02/2017 A No. 138 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 138 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. , that were moreantag- lly always been against been against always lly Booker , and even post- , and even ) 10/1/17) 6:51 PM ELETE D Booker The University of Memphis University The Review Law OT N O (D DOCX I always—Isystem like the because it gives some now, sentenc- I think the Guidelines helps with are very healthy. So I think it nicely into the decision the PARTICIPANT 12: That segues have persona I JUDGE JOHNSON: Take for instance the disparity between sentencing with crack (1). ANEL onistic to the Guidelinesonistic to than others. it makesjudges, but as Judge Johnson said, ing discretion to us articu- we are varying or departing—andlate the reason why there’s many hopefully, starts us departures now. And it also, more variances than off on the same page because the Guidelinesjust that—a are starting Wepoint for sentencing. try to make determination a about sentenc- ing; at least we’re all starting at the same unique place. And then the a defendant or case mightcharacteristics of take over from there. it. judicial independence, it doesn’t hurt Supremeyou Court handed down this week that basically now gives think a mandatorydistrict judges the option, if you minimum, is enough of a penalty to impose basically, the mandatory minimum plus running themone day as a sentence rather than po- consecutively and years, but would—whattentially sentencing someone some to sixty people might consider to be—you know, a crime that doesn’t warrant such a long punishment. How does—so I’m curious to know if the min- panel—the think whether mandatory the panel district judges on imums have hamstrung more you, so than the Guidelines. mandatory minimums. That really ties a judge’s hands. The manda- tory minimums came judges were in because Congress thought that soft on crime, and crime and they wanted to punish the was rising, defendant. cocaine and powdered cocaine—there is a 100 to 1 differential. The as sentence that you get for, say, 5 ounces of crack would be as great cocaine. And there was no reason 5 kilos, or 10 pounds, of powdered for that, no logical reason I could think of, and I think the federal gov- ernment was the only jurisdiction that differentiated between pow- dered cocaine and crack cocaine. 1268 attemptNow, that. to do just I to independence, relates as it again, to acknowledge independence of judicial it’s a surrender don’t think that the same that we sentencing so to control their Guidelines ought avoidance of unwarrantedcan have are disparities. There sentencing some judges pre- 13. P 39529-mem_47-4 Sheet No. 138 Side B 10/02/2017 12:47:34 10/02/2017 B No. 138 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 139 Side A 10/02/2017 12:47:34 1269 1269 her panelists who want to weigh in? Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX When Commission, on the I was recommended we they that and by by statute was It Substantially. PROCTOR: JUDGE not It’s down. come did they but Yes, JUDGE JOHNSON: I believe PARTICIPANT 13: it’s either 9 or 18 to 1. for argument the but 1, 18 to it’s think I JUDGE MUKASEY: fact the was it against argument the And JUDGE JOHNSON: a couple Circuit Eleventh the with I sat JUDGE PROCTOR: But it was just to see the briefing on the change that interesting questions? other Any ALLEN: PROF. PROF. NEWMAN: Or ot (1). ANEL M K 2017 13. P equal the punishmentequal the least come and crack, or at for powdered down from they did come And eventually 100 to 1 ratio. the down. How much was it? amendmentretroactive to the Guidelines too. comeequal, but they did down. wasany disparity at all that crack—speaking up for the disparity—that crack was whereas instantly addictive, powdered cocaine was not. It was accompanied by enormous amounts violence in its distribution, of the instant addictive quality. largely because of have the powdered cocaine. And, that to get crack cocaine, you would in fact, I remember cases coming in to me where a police officer would ask for an ounce of cocaine, and when the seller would come back with would say, “No,an ounce of cocaine, and the cop I wanted crack.” And then the seller woulda little—you go back and put know, do his thing to make the crack cocaine, which is easy to do. And that really would comeincreased the penalty, and then they court. I’d to federal throw it out. of the Sentencing Commis-years ago, and we took up the propriety year of Amendmentsion’s delaying retroactivity by a 782 of the Sen- tencing Guidelines. I’m good friends with Bill on the Eleventh Pryor District of California—that’sCircuit and Chuck Pryor on the Northern who’s a district judge in San Fran- Justice Pryor’s younger brother, cisco. Both of them were then currently serving on the Commission. I relish the fact of reversing them. That’s a joke. was made, the decision to delay it by a year to allow for processing of a retroactive application of the Amendment, and all that went into the Sentencing Commission’s hearings and decisions about that. It was very impressive. C Y 39529-mem_47-4 Sheet No. 139 Side A 10/02/2017 12:47:34 10/02/2017 A No. 139 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 139 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. : Sure. Just to look at this from at this to look Just : Sure. the other 10 ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX JUDGE CORRIGAN: And I understand that, but the problem problem the but that, And I understand JUDGE CORRIGAN: PROF. WALSHPROF. Because that’s what mandatory minimums do: they give the again— side dark the taking Just JUDGE MUKASEY: [Laughter] is minimums mandatory of point —the MUKASEY: JUDGE The trouble, in my view, with the mandatory minimums is that (1). ANEL they drive the Guidelines. You can’t have a Guidelines computation that comes lower out than the mandatory minimum. That,think, is I the major flaw in the system. But so far as having mandatory mini- mums a responsibility for what at all, I think legislatures have kind of punishment people face for violating the laws that they pass, just as itself occasionally, in a mandatoryjudges do. And, for that to express minimum, I don’t—isn’t something offensive. I find with minimum mandatories is that one size doesn’t fit all. I have im- posed mandatory minimumconvinced that if sentences where I was the 535 members were in my sitting of Congress courtroom they would that muchsay, “No way. No way you’re giving time to this person, what the law was, and that’s what I they don’t deserve it.” But that’s Center; B.A., Loyola MarymountSecurity Federal Law Enforcement Training Uni- 10. United States Department of Homeland Senior Instructor, Legal Division, versity, 1995; J.D., University of California at Berkeley School of Law, 1998; LL.M., 2009; LL.M., University of The Judge Advocate General's Legal Center and School, Virginia School of Law, 2016. 1270 13. P perspective, I rememberperspective, Attorney re- Assistant U.S. being a young indictments and marveling and charging of law school, cently out to myself a system that we have created law school a young, recent where could make job by one person, who was given a graduate the decision whenon sentencing, would be gentlemen the alternative like the ones of the appointed by the President of us who were that we have in front vetted by the United States Senate. United States and version of me,decision to the young to the experienced as opposed an uncomfortable have, and even as an AUSA, that’s federal judges we society has made.decision that our that sentencing has a legislative component has a re- and a legislature sponsibility—Congress has a responsibility—to determine what max- imums are, and if necessary—if Congress deems it necessary—to de- termine what minimums are. 39529-mem_47-4 Sheet No. 139 Side B 10/02/2017 12:47:34 10/02/2017 B No. 139 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 140 Side A 10/02/2017 12:47:34 1271 1271 Panel Discussion Panel ) 10/1/17) 6:51 PM oo much. It just—it It oo much. account take into doesn’t ELETE D OT N O (D DOCX JUDGE PROCTOR: Judge Johnson, I’ve got a question for a question I’ve got Johnson, Judge JUDGE PROCTOR: true. not It’s JOHNSON: JUDGE [Laughter] who have those not—that —probably JUDGE PROCTOR: For example, through a minimum one way to bust mandatory is So, it’s—I’m I understand, of course bound by them, and I fol- a good example is minimums Mandatory JUDGE JOHNSON: JUDGE MUKASEY: Also, there’s a of bill that’s gained a lot was such there and if that, heard haven’t I JUDGE JOHNSON: (1). ANEL M K support in Congress—I don’t know if it is going to pass or not—but that lowers mandatory minimums properly. substantially, and I think So, there’s hope. you. I’ve heard through the grapevine— some influence on the sentencing commission in Congress have reduces or eliminates,floated a proposal where Congress reduces the number of mandatory minimums and judges agree to have a more rig- required to follow. Take away are orous guideline structure that they some discretion on the Guidelines. Curious if you have any sentencing views on that, since you used to sit on the Sentencing Commission. 2017 t It’s just to give. had circumstances,individual too many and there’s in it. vagaries government, with the if you cooperate but the government gets to de- can be all not, and there enough or you’ve cooperated cide whether problemskinds of that. with low them Mukasey have to, but I really do think, as Judge when I said, especially in a system to also where you have advisory Guidelines, with minimumhave to then deal mandatories, which put a floor on that, and—it just, to me, solution, but very often it just isn’t the right the law’s the law. But as a matter of policy, I wish we less of it. had to do, but is it the it, which Congress has the right of the right to do away an effort gradually to get And I think there’s right thing to do? from it, at least some mandatory minimums. They have a provision called the “safety valve.” When the defendant comes in and they prof- get a safety valve and they’re not fer and they tell the truth, they can exposed to the mandatory minimum. an agreement and I don’t I don’t think it is binding on individual judges know whether they would go along with it or not. Because when you individual before you with all of sentence an individual, you take that 13. P C Y 39529-mem_47-4 Sheet No. 140 Side A 10/02/2017 12:47:34 10/02/2017 A No. 140 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 140 Side B 10/02/2017 12:47:34 M K C Y Vol. 47 Vol. ) 10/1/17) 6:51 PM ELETE D The University of Memphis University The Review Law OT N O (D DOCX [Laughter] PROF. NEWMAN: So, maybe one question to close on—and JUDGE PROCTOR: Right. Well, the context of this was an was this of context the Well, Right. PROCTOR: JUDGE now? that They’ve done JUDGE JOHNSON: that. asked me about Someone’s JUDGE PROCTOR: it. me about Nobody asked JUDGE JOHNSON: [Laughter] know your answer. They might JUDGE PROCTOR: [Laughter] before we con- ask one question to I’d like JUDGE JOHNSON: I never did. but to, I heard I was going JUDGE CORRIGAN: a bit for quite I had a detail Interestingly, JUDGE MUKASEY: [Laughter] and received that like had details also I’ve JUDGE JOHNSON: [Laughter] heard Haven’t me.” sue it, “If you want JUDGE JOHNSON: (1). ANEL anything. this goes out to the whole panel. But it seems that one more existential to the entire governmentalthreat to the judiciary, and really system, is 1272 and mitigating factors the aggravating think a blan- I don’t so factors, ket agreement would—I bound by it. wouldn’t be agreement Congress rolls—gives in purpose. that was legislative up on some of the mandatory minimums, strengthens the Guidelines. but soliciting someThey were viewsand some of the judiciary others re- garding something that. like had your security floor. Judge Corrigan, when you clude, and I ask the a bill fromdetail for the 45 days, did you get the Marshals? So, I didn’t get a bill. income—thatlonger than that. I was given attributed is a chart, at- they took me back and forth to the tributed $3 a day to every day that courthouse, and we did a computation of the days I wentforth back and to the Administrativeto the courthouse, and I wrote a letter ask- Office ing whetherhad attributed income I based on that, and the Constitution provided that a Federal judge was was to receive a salary that not to be diminished his good behavior—did during that mean that I was going the rest of myto get driven to the courthouse for life? I got no re- sponse. a bill from, I don’t know if it was Marshals the or the IRS, and I said, “Hell, no!” 13. P 39529-mem_47-4 Sheet No. 140 Side B 10/02/2017 12:47:34 10/02/2017 B No. 140 Side Sheet 39529-mem_47-4 39529-mem_47-4 Sheet No. 141 Side A 10/02/2017 12:47:34 1273 1273 Panel Discussion Panel ) 10/1/17) 6:51 PM ELETE D OT N O (D DOCX JUDGE CORRIGAN: Well, I think we do try to hold lawyers lawyers hold to we do try think I Well, CORRIGAN: JUDGE So I think we have a role to play as well.So I think we have But I think it’s vitally (1). ANEL M K 2017 most I think discourse. in civil the breakdown has agree there would morebeen a lot maybe discord, in the ten or so years, than in the last past. Maybe not. But I’m wondering,and we all, as judges what can do in our courtrooms,professors, chambers, in our in our class- and rooms to attempt our own profession? divide, at least within to heal that of civility. I think that it’s importantand parties to a level because it justice necessary to have a civil is part of the temperature cooling that’s system. kind of the whole reason we It’s the system have is to resolve disputes in a calm, think it is important. So, I do dispassionate way. I sometimes,think that judges little carried in their opinions, can get a away. I’ve sometimes who said some- thought that if I had a lawyer I probably would in an opinion said mething in a brief to that a judge 13. P call him on it. out important that we maintain that. Unfortunately now,with the social media and the emailsand forth to each other, that people send back then say, and things they shouldn’t they say hateful things or they say lawyer looks bad and the systemit gets attached to a pleading and the focused on. we need to be looks bad. So, I think it’s really something Because if we lose that, we’re going to lose something really im- portant. C Y 39529-mem_47-4 Sheet No. 141 Side A 10/02/2017 12:47:34 10/02/2017 A No. 141 Side Sheet 39529-mem_47-4