Judicial temperament. It’s been in the news a lot lately, and not always in a good way.
On Thursday, the Northern District bench and bar paid tribute to one of the bench’s most positive role models for judicial temperament: U.S. District Judge Jeremy Fogel.
Judicial ethics, integrity and humanity—and Fogel’s work throughout the federal judiciary to study and improve it—were the themes of a Stanford Law School and Federal Bar Association symposium reflecting on Fogel’s judicial career, followed by the unveiling of his official portrait which will hang in the San Jose courthouse.
“Judge Fogel’s great legacy will be embracing the humanity of judging,” said Vanderbilt law professor Terry Maroney, whose studies include judicial behavior and decision-making.
Fogel was a judge for 37 years, starting in the Santa Clara County courts. He spent his last 20 on the Northern District bench, including a seven-year stint as director of the Federal Judicial Center. He retired last month to become the first director of the Berkeley Judicial Institute.
From his early days in state court, Fogel developed a reputation for an even keel, even in a challenging Family Court assignment. Santa Clara County Superior Court Judge Erica Yew said a litigant might yell, “I’m gonna sue you! I’m gonna appeal you!” and Fogel would very calmly say, “That’s fine. You have 60 days to file your appeal.”
Yew sits on California’s Commission on Judicial Performance. A while ago the commission organized a group of judicial mentors around the state to work with low-level offenders in lieu of judicial discipline. But the commission needed one “supermentor” to supervise the work of the mentors. “Who better than Judge Fogel?” Yew said. He gladly accepted the role.
U.S. District Judge Edward Davila, who like Fogel began in state court, remembered Fogel’s advice to him for preparing for the switch: take a family law assignment. Davila said he was perplexed at first. “I didn’t know we did family cases” in federal court, he joked.
Retired U.S. District Judge Ronald Whyte explained that dealing with someone like Steve Jobs in a high-stakes business case could feel less challenging after dealing with the everyday pressures and tempers in Family Court.
Morales v. Tilton, a 2006 case challenging the state’s administration of a three-drug lethal injection cocktail to condemned inmates, put Fogel’s temperament to the test.
The judge had denied two similar challenges, resulting in one execution. But by the time of Morales, evidence was mounting about the reliability of one of the drugs, sodium thiopental, and the state’s procedures for administering it.
U.S. District Judge Lucy Koh said just reading about the case stressed her out—Fogel having to decide on 2 a.m. phone calls whether an execution should proceed and the hate mail arriving at the court on “creepy postcards.”
Fogel’s approach was to be as thorough and transparent as possible, Koh said. Instead of accepting the assertions of one side or the other, he held five days of hearings and organized a visit to San Quentin. “He did the hard investigative work to figure out what was really happening,” Koh said.
After issuing the ruling that, to this day, has put executions on hold in California, Fogel wrote a law review article about the challenges of the experience.
Fogel’s former law clerk Christian Delaney said the judge had good instincts for cases that would benefit from a public and transparent trial, and those where parties would be better served by resolution outside the spotlight. She recalled Fogel one day shuttling between two parties in a mammoth business dispute on the eve of trial, rubbing his hands together and saying, “Only a half-billion to go!” The case settled, Delaney said.
But even routine criminal sentencing can take a toll on judges emotionally over time, Fogel learned. The removal of mandatory sentencing guidelines added to the pressure judges feel, said U.S. District Judge Charles Breyer, a member of the U.S. Sentencing Commission. For judges, “there is no right answer” in sentencing, Breyer said. “There are a lot of wrong answers, but there is no right answer.”
Until Fogel took over as head of the Federal Judicial Center in 2011, coping with the pressures of sentencing was never examined in a systematic way. Fogel organized trainings and traveled around the country to address the issue at judicial conferences.
Breyer and former U.S. Magistrate Judge Paul Grewal said that if they ever had to be sentenced by a Northern District judge, they would have chosen Fogel. Whyte dissented: “I’d want the easiest judge,” he cracked.
“State court is better,” added Koh, who also began her judicial career in the Santa Clara County courts.
Fogel’s deputy director at the Federal Judicial Center, John Cooke, who will now succeed him as director, said Fogel overhauled the center’s approach to judicial education, putting less emphasis on “the sage on the stage” and more on the interaction between judges, plus encouraging judges to become teachers themselves.
They also restructured “baby judge school,” the standard two-week introductory course for new judges. The center added a 16-month follow-up course, and a midcareer refresher for judges five to 10 years into their careers—what Maroney described as “that magic moment of competence and malleability.”
Judges use the sessions to share frustrations and strategies for dealing with them. The idea was “how you can help each other become the judges you wanted to be when you started,” Maroney said. The midcareer sessions have been so popular, the judicial center created specialized versions for circuit judges, bankruptcy judges and magistrate judges.
Berkeley Law Dean Erwin Chemerinsky called Fogel a giant in judicial education, and said he’ll be a natural to run the school’s new judicial institute. Chemerinsky said no other law school focuses intensely on courts and judging. There’s no school of court administration that he’s aware of, for example.
With faculty adviser Peter Menell, the institute will tackle issues such as judicial integrity, ethics, wellness and judges “who are on the bench after perhaps they should be,” Chemerinsky said.
Northern District Chief Judge Phyllis Hamilton said she learned much about managing people when serving on the court’s personnel committee with Fogel, whom she described as “inspirational, motivational and kind.” Even after relocating to Washington and the judicial center, Fogel maintained his local ND-Cal email address and remained “a full participant in the governance of our court.”
Fogel was characteristically measured in his own remarks, quickly pointing out and thanking his family, and event organizers Grewal and Weil Gotshal & Manges partner Edward Reines. “I’ve been choked up a number of times today,” he added.
He said he’ll miss being a judge but is looking forward to building on and expanding his judicial education work at Berkeley.
Correction: A previous version of this article incorrectly attributed Professor Maroney’s comment about “competence and malleability” and becoming “the judge you wanted to be when you started” to U.S. District Judge Kimberly Mueller. We regret the error.