COURT: Ninth Circuit U.S. Court of Appeals
APPOINTED: 2003 by President George W. Bush
LAW SCHOOL: Stanford Law School
PREVIOUS JUDICIAL EXPERIENCE: San Francisco Superior Court (1990 to 2003)
PREVIOUS EMPLOYMENT: Dunne, Dunne & Phelps (later Dunne, Phelps & Mills) (1959 to 1975); Carlos Bea Law Corp. (1975 to 1990)
POLITICAL OFFICES HELD: Member of Republican State Central Committee (1964 to 1965)
PLACE OF BIRTH: San Sebastian, Spain
POLITICAL AFFILIATION: Republican
CLE: Evidence, civil litigation, trial matters and advocacy
Q: What is your procedure for choosing a clerk?
A: Well, right now I’m a member of — I don’t know what it stands for but it’s called OSCAR. I get applications all year long, but I tell them I’m involved in OSCAR — unless they have been out of law school and in practice — and then you can interview them if you are a member of the OSCAR group. But generally, for instance, the four we have here now came through OSCAR. This chambers gets a thousand applications, and I give instructions to the clerks to winnow them down to between 20 or 30 persons that we call for interviews. Then we interview all the clerks whom we call on one hour centers through two or three days. Very long. We start at 7 o’clock in the morning and go until 7 o’clock at night.
The clerks are interviewed first for 30 minutes by the other clerks that I have here, and they ask all the questions about how clerks work, and what chambers is like, and do they like it, do they not like it. It also serves the purpose of making them less nervous when they come in and see me because they’ve been talking in chambers for half an hour, so they’re not as tight and bouncy. Then they come in and talk to me and my head clerk. I have a career clerk; I don’t have a secretary. I have one career clerk — a head clerk — and four term clerks. And then I decide during those interviews which ones are the best. I make them an offer, and then they agree.
Q: What do you like most about being a judge?
A: Well, I think the kind of cases that I get are interesting cases and they engage my attention and mind. It’s really easy because they are important cases and they’re not easy cases. The system here at court winnows out the very obvious cases through the oral screening process, which is sort of summary adjudication, where three judges are informed of the case by staff attorneys and make a decision based on that information in cases where the appeal is quite clear — who’s right and who’s wrong. But the remainder of the cases, say the 15 to 20 percent, are extremely interesting and some of them are very complex, and take a great deal of time to think through. And I like that. I like to read the cases and I like to think about them. And I like to write about them. So that’s what I like most of the job, the position, is the interesting nature of the work.
Q: What do you like least about being a judge?
A: The low salary.
Q: What is your judicial philosophy? How do you think that comes across in your opinions?
A: Well, I think that that question has to be asked to lawyers and law professors, and other judges who read my opinions. I guess I’m not in the best position to judge my own judicial philosophy. I tell you what I think a judge should do, and that is, I’m very conscious of the fact that the judiciary is a separate branch of the federal government. We are Article III judges. We are independent of the executive and of Congress and the Constitution sets us up that way. I think this is very important to keep in mind and that we should function not only independently, but with a great regard to the limited scope of the power that we have been given as the only un-democratic position branch of government. We can’t be voted out. We can be impeached, convicted and removed, but that’s a tedious process and very seldom employed. So we have a great deal of staying power that can be misused. It isn’t usually. I think the behavior of the federal judiciary is really to be marveled at — how there’s not the corruption that you find in other countries in the judiciary. There’s not the abuses you see in Dickens’ "Bleak House." So my judicial philosophy, I suppose, is to be conscious of the power that is given us by the Constitution and limitations in which we should exercise it.
Q: For your life experiences, I’ve read that you were born in Spain, immigrated to Cuba, played on the Cuban basketball team in the 1952 Olympics?
A: I went to the Olympic games, I played in the Olympic Games, but I always classify myself as an Olympic tourist compared to our son. My wife, Louise, and I have a son, Sebastian, who won a silver medal in the Olympic Games in 2000, at the Sydney games in Australia. He was the stroke of the American coxless pair. And they got the silver medal in Australia, which made us very, very happy, as you can imagine. He’s a real athlete.
Q: These life experiences before you became an appellate judge, how do you think they shape how you decide cases? Or does it?
A: Well, I tried a lot of cases. A lot of civil cases. Only a couple of criminal cases, but a lot of civil cases to juries. And I was involved in businesses with my family. So I have some experience in the practical side of the law and I think that’s important. That’s helpful in making decisions because I’ve been in business situations and trial situations. And I tend to realize how limited our knowledge is of all the complexities of litigation and business. So that, it’s the evidence in the case that is extremely important and we should not try to make up our minds on what we think is the right result without knowing anything about what we are talking about. And I’ve tried to stay away from that. I’m very much a judge who will listen to the record to see whether there is evidence to sustain the assertions of the parties.
Q: For brief writing, what are some best practices for attorneys that you would want them to employ?
A: Well, these days, I think the term "brief" is a misnomer because they’re very long. But the most important thing that I can suggest to brief writers is that they realize how limited is the time which judges and their clerks can devote to reading the briefs. And the importance of an introductory statement or summary of argument, which doesn’t simply state the ultimate issue to be determined, but takes the judge and the clerk a little by the hand and tells them what area of the law this case arises in; the most important facts which led to the controversy; what the trial judge or jury did; why what they did was right or wrong. And then, reach the issue upon which the appellate argument will turn. Very often we see very complicated introduction or summary of argument. Very intense, focused. Ultimately that may well be the issue. But it doesn’t lead you into the question.
For instance, newspaper people: Good reporters know what a lead is. And they have a motto: Don’t bury the lead. So you start with a paragraph, you start with a lead, which informs the intelligent reader what the story is all about. Some good newspapers like the Wall Street Journal, New York Times, Washington Post, good newspapers — the British papers are very good at this also — they lead the reader who knows nothing about the story, into the story before they give him the nut of what’s happened. So a lead is very important and my advice to brief writers is, after you’ve written your brief, ask yourself, how would I lead an intelligent reader into the area in which I want him to decide? And that would be a lead.
Q: For your brief writers, are there any mistakes you think they should stay away from?
A: The fastest and surest way to have a judge toss a brief into the wastepaper basket is to misstate a fact from the record. The second fastest way is to make a personal attack on, take your choice: the opposing counsel, or even worse, the trial judge. That turns the appellate judge off completely. And I’m liable to say to the clerk, see if there’s anything in this brief, but I’m not going to read any more.
Q: What makes for effective oral argument?
A: Confidence. At oral argument if the attorney speaking can imbue a sense of confidence in what he’s saying. And that is based on the fact that he knows his case extremely well, knows his facts and his law extremely well. The best oral argument is an attorney who stands up, smiles at the panel and says, "Are there any questions?" and "I don’t have to really argue because you’ve read my brief, it’s all there, but are there any questions I could straighten out for you?" If there are none, he says, "Thank you very much" and sits down, and he’s won.
Again, the worst kind of oral argument is one that is imprecise as to the facts, or is misleading, or erroneous, or comes up with an argument that’s never been made in the briefs. So when that happens, you’ll see the three judges sort of shaking their heads and saying, "When did this ever come up? What are you talking about here?" And you lose them. But if you stand up and you say, "This is on what the case turns, I think the law is clearly set up in my brief, but are there any questions?" That is a very confident appellate argument.
Q: Are you the first to read the briefs in your chambers?
A: It depends how busy I am. I like to read the briefs briefly when they come in to see what the issue is and to write a little memo to the clerks saying, "Based on the summary of argument in the introduction, what I can get from the briefs, I think the issue is this. Don’t spend too much time on this one, this is the issue over here. If I’m missing something, let me know." But if I’m working on something else and time is tight, they will be the first ones to read the briefs. It depends on the volume of work, which is usually pretty great.
Q: How do you use the staff attorneys?
A: Well, the staff attorneys, we usually interact with them on the oral screening panel and on the motions panel. We’ll go down to a room down here which has a closed-circuit television installation. Last time I was there, it was a judge in Anchorage, a judge in Honolulu and me, and we were the three judges who were hearing cases that were presented by staff attorneys. The staff attorneys have seven to 10 cases to present to us that they’ve been working up. And they present the case reciting the facts and reciting the procedural history of the case. We have the briefs and we have whatever papers are necessary of the transcript in a big stack in front of us. If a question arises as to what a witness said, was there any evidence on this issue, or let me take a look at the instruction that was given, then we will ask the staff attorney to turn to that and show it to us and we will discuss it to the extent that is necessary to determine the case. But usually, the staff attorney’s action with us, with me, is limited to the oral screening panel and to the motions and certificates of appealability panels that I serve on, that all judges serve on at least once a year. And I find that they’re very well prepared. They’re quite dedicated. They’re totally fair and impartial and they present the cases very well.
Now sometimes, depending on the judges, sometimes in the oral screening panel we’ll have a case that just doesn’t look all that clear. And the staff attorney may be saying, "Well, the appeal should be denied because of the statute of limitations." Well yes, but there are some facts here that might extend the statute of limitations, toll the statute of limitations. And when we start talking that way, what we’re saying is, we’re not truly convinced the presentation has removed all doubt as to how we should decide this case. And then what we have the option of doing is kicking the case, which means, the case will no longer be on the summary adjudication calendar but will be sent to a regular merits panel of three judges for full brief reading and transcript reading, etc., and become a case for oral argument. Happens every now and then.
Q: What is your opinion of technology in your courtroom?
A: When I was on the superior court, they were just starting out with a wonderful technology which allowed me to see what the court reporter was taking down in real time. And I had the screen. I could read the transcript. And I thought, "Oh wow, that’s sensational," because now I could read the transcript as it goes along. I could get exactly what was said by the witness or attorneys. And for about two days I was entranced. Then I thought, I don’t have to read all that, I just have to listen to what was said and take notes like I’ve always done. So I shut down this advanced technology. We don’t have that much technology in the courtroom. The technology in the courtroom is loudspeakers and cameras.
I think, by this time, we’ve agreed that a stationary camera is permissible and anybody who wants to videotape us can videotape an argument. I don’t think it’s tremendously educational. I mean, if people want to see what we’re doing, they can come to court. But if they can’t come to court for one reason or another, and they want to see us on television, on C-SPAN or educational television, I don’t have any objection to that. So long as the camera is not distracting. And if the camera is stationary and you don’t use flashbulbs or anything else, you soon forget it’s there. The reason I don’t think it’s educational is, oral arguments are only educational to people who’ve spent some time reading the briefs and thinking about the issues. I hope newspaper reporters do that when they go to oral arguments. I think generally they do. But members of the public who have no particular interest, unless they’ve read the briefs, unless they’re pumped up on what the issues are, it’s a show to them. And what they’re going to get is perhaps a wisecrack or a jolly remark, but they aren’t going to really learn much. Which is not really a reason for not allowing the public to waste its time. If they want to do that, it’s a free country.
Q: Do you have any advice for newer attorneys?
A: In writing a brief, remember that the reader knows nothing about your case until he picks up your brief. Lead him carefully into where you want him to be. Use everyday language. When you are writing a brief, take the phrase or sentence of which you are most proud, of which you’d say is the most insightful and the wittiest, and cross it out. Throw it away. Because it’s going to be distracting. Work hard on learning the facts of your case so that you have the record at your fingertips. There’s nothing more impressive than counsel during oral argument saying, "I’m sorry, I have to correct my friend opposite because as you’ll see on page ER 245 the answer to the question was not ‘yes,’ it was ‘no.’" The other fellow is dead at that point. And this one has gained a great deal of confidence. Why? Because he knows his record well. He knows his facts and he knows where to find them, put his finger on them. So know your facts very well.
Remember that we’re a very busy court and you have to make your points up front and immediately. If you like novelists, American novelists, and want to pattern yourself after some, with all the adoration I have for Henry James, don’t use him. Use Ernest Hemingway. Hemingway says it straight. Sometimes he doesn’t say it right, but he says it straight. James mostly right, but he says it so delicately and in such an involved manner, that you’re in danger of causing the reader that dread disease called MEGO — My Eyes Glaze Over.
Q: Are you involved in any community activities?
A: Less than I used to be because as a federal judge we’re very limited as to what we can do. But I support my parish, St. Vincent de Paul, and I’ve been on the board of, I guess, advisers, of the parish there. And I speak at legal meetings and conventions. … The Federalist Society invites me from time to time or the Nevada Justice Society, Nevada Bar Association. Stanford, I’ve spoken down there at the law school. But I sort of stay away from community activities such as the Cow Hollow Association because a federal judge shouldn’t use his office to influence people. My wife is very involved in those things. Louise is involved in saving the Presidio, the Cow Hollow Association, one thing or the other. But I tend to stay away from that because of certain ethical restraints.