U.S. District Senior Judge Ricardo Urbina is set to retire in March, after serving on the federal bench since 1994.
Urbina, who also served as a District of Columbia Superior Court judge from 1981 to 1994, is hailed as a pioneer of the city’s Hispanic bar — he was the first Hispanic judge on the D.C. Superior Court and is the first and only Hispanic judge on U.S. District Court for the District of Columbia.
His recent high-profile casework has included upholding the District’s gun laws banning assault weapons in Heller v. District of Columbia, known as “Heller II,” and presiding over the prosecution of former Blackwater guards accused of killing Iraqi civilians.
Urbina spoke with The National Law Journal on Nov. 28 about his time on the bench. The interview was edited for space.
Legal Times: How would you describe your approach to your work on the bench?
Ricardo Urbina: My approach has been this: I was an academic and a trial lawyer before I went on the bench, and I learned as an academic the skill of being able to suspend ideas. In other words [don't] be judgmental, let an idea just float and watch how other people relate. I was able to move that practice into the courtroom.
Not to suggest that it was easy, but I think I understood from the get-go what was important in terms of my innate skills. I tried to develop a mindset of neutrality, one where I could be as free as possible, though never free completely, from biases and prejudices, so that I can approach issues regardless of how they may personally impress me.
Legal Times: In that context, has there been any type of case or issue that you’ve struggled with?
Urbina: In the federal system, it’s been much easier. I hasten to add that one of the things I will not miss is sentencing people. The whole idea of putting someone in a cage for an extended period of time has never appealed to me.
However, I can think back on a couple of cases, one in particular, where, as a Superior Court judge, I was really put to the test. This involved a case with five boys, who were being sexually molested by a man who was HIV-positive.
The test came when I determined that the police had been too enthusiastic in the gathering of evidence. I had to struggle with the idea of suppressing this evidence, because it was very clear that the government’s evidence was very strong and incriminating. I did suppress the evidence and that eliminated another complainant.
I must admit this fellow and his conduct really impressed me in a way that threatened my objectivity. But as I said, one of the things I think many judges do, I know I do, is I spend some time every morning just getting centered. In my case I meditate.
Legal Times: Any decisions you regret?
Legal Times: Why do you say that?
Urbina: Well, there are decisions that I made that I wish I hadn’t had to make. For example, the sentencing guidelines, until a few years ago, were mandatory. Although the federal sentencing guidelines got it right in many instances, unfortunately, they also got it wrong in many instances.
In some instances, I found that [the] sentence I had to impose excessive. And a couple of other instances involving white-collar crime, I found the sentence I had to impose not aggressive enough. But I don’t regret those decisions because I was following the law and that’s what I’m here to do.
Legal Times: What about, as a federal judge, some of the decisions you’ve made, especially on questions of constitutionality, that have been reversed when they go up to the D.C. Circuit?
Urbina: I do not take issue with decisions of the court of appeals when I am reversed. My motto is, ‘Thank God for the court of appeals,’ because they act as the fail-safe. They’re there to make sure that a decision that a judge makes in two seconds, although it may take the court of appeals two years to review it, is made properly.
Now, in the case of Blackwater, I followed the law, the law established by this circuit. However, this circuit has spoken with respect to how the law should have been applied to this particular factual scenario. I have no regrets about the way I decided the case. I did not agree with the court of appeals’ decision in this case, but they may be right. And they’re right because they’re last, they’re not last because they’re right.
Legal Times: Any other big decisions or cases that stand out?
Urbina: The case against [former Secretary of Agriculture] Michael Espy was one of them. The case was a handful, because it had so much publicity, because it was, in some respects, politically driven, because it was controversial. He was the first African-American secretary of the Department of Agriculture, so there was a lot of racial tension around it.
I never developed an opinion one way or the other about it, of course. But it was a very exciting trial. This was kind of a case of first impression for me because I had never tried a case like this one before.
Legal Times: You’ve spoken about language access as one issue facing local courts. What do you think is needed?
Urbina: Well, fortunately we haven’t had all the challenges that some federal districts have with respect to the foreign-born. Most of the foreign-born we see here are Spanish speakers and Spanish-speaking interpreters are not that uncommon. But in some jurisdictions you have people being prosecuted who are from the Middle East, who speak different dialects from North Africa and they belong to different tribes that speak different dialects. I hope that this federal court will prepare itself someday soon to deal with the rigors of that type of a challenge.
There is a growing sensitivity to the need to create uniform rules. You have some jurisdictions that do extremely well, and you have other jurisdictions that all but ignore the necessities. The urban centers or courts that are near urban centers seem to fare better.
Legal Times: Any other issues in terms of how litigants, especially local residents, access the court?
Urbina: We have a system for pro se plaintiffs, people who have a grievance but can’t afford attorneys. Consequently, because they believe they’re right and because they believe that they have a moral obligation to pursue this matter, they do. And frequently their cases will be dismissed because of inadequacies in the way they have addressed the issue. Even if the judge has the most open mind, the judge cannot bend over backward for the plaintiff.
I would love to see a more comprehensive pro bono system where no civil plaintiff, no civil litigant, will be deprived of counsel.
Legal Times: You and other Hispanic judges in D.C. have spoken about the problem with being the “first and only” on the bench. How do you see this?
Urbina: [When I joined the bench] there were no Latinos on the Superior Court, although by that point in time there was a growing and evident Latino population in the District of Columbia. The courts were not sensitive at the outset. As a consequence, things were happening that did not meet, in my opinion, due process or equal protection.
I did not speak English until I was six years old. The absence of language in my life has put me in tune with what an isolating experience it can be. Maybe those moments prompted me to see something that other people didn’t see, or saw but didn’t think was significant.
When Latinos or any other minority groups speak up on this issue, they’re not asking that the system enlarge their demographic so that their constituency, so to speak, can be represented on the court. That’s the flaw. Judges are not there to represent anybody. Judges are there to reflect the community.
The ‘first and only,’ that theme, it has forced me to recognize that people need proof. If you have women in those positions and they’re doing well, if you have Latinos in those positions and they’re doing well — that’s an affirmation that yes, the court should be made up of the community it serves.
It’s going to [take] time, but there are things that can be done. This issue has to be pressed, it has to be given consistent visibility. It cannot be permitted to fizzle out or be swept under the rug, it cannot be permitted to settle in the back of people’s minds and it cannot be subjected continually to political priorities.
Legal Times: What have been the qualities of unsuccessful and successful lawyers who came before you?
Urbina: Lack of preparation. Many lawyers are very talented, especially when I see them in the courtroom. It’s [a very small percentage] of people who graduate from law school [who] ever see the inside of a courtroom. If they’ve gotten to the point where they’re in it, chances are they’ve got some real talent. But you cannot cruise on talent. Lack of preparation is the biggest cause for a failure, so to speak, and a tremendous irritant to judges, especially in criminal cases, where there is so much at stake.
Successful lawyers are usually extremely well-organized and they’re good teachers. To persuade a judge doesn’t mean that you have to change the judge’s beliefs, it means that you need to change the judge’s attitude. There’s a difference. If the lawyer can educate me, can teach me, that’s the same quality that applies to a lawyer at a jury trial.
Zoe Tillman can be contacted at email@example.com.