The Role of the Judiciary in a Democracy

– Good evening I’m Julia Wrigley, the Interim Provost to The Graduate Center It is my pleasure to welcome you here tonight We are nearing the end of a semester of extraordinary public programs at The Graduate Center We like to say that we put you at the center of the discussion on the most timely issues of the day This spring, for example, we focused on subjects from inequality to immigration to biodiversity Public programs are vital for our mission as a public institution of advanced research and learning in New York City The program tonight is part of The Graduate Center’s two-year initiative called The Promise and Perils of Democracy We’re examining the state of democracy here and around the world, what democracy looks like now and where it may be in the future I want to acknowledge the Carnegie Corporation, New York, for its ongoing support of this important project We started this spring by looking at the definition of democracy through the bedrock institutions that make it work Earlier this semester, we heard from a renowned panel of journalists about the role of the free press Two weeks ago, noted political analyst Fareed Zakaria offered his perspective on the health of democracies around the world He observed that the healthiest democracies have the sturdiest judiciaries Tonight we focus on our country’s judiciary, our third branch of government When we talk about putting you in the center of the conversation, tonight’s speakers bring a central, firsthand experience to understanding the role of the judiciary in democracy Judge Robert Katzmann is the Chief Judge of the US Court of Appeals for the 2nd Circuit In addition to a law degree, he has a PhD in Government from Harvard, and has recently published a book called “Judging Statutes” Before joining the Bench he was a Professor of Law and Public Policy at Georgetown University He has been active in promoting access to justice, especially for immigrants, and sparked the creation of the Immigrant Justice Corps to meet the need for high quality legal assistance for immigrants (audience claps) Nice to see the enthusiasm! (audience laughs) Judge Jenny Rivera is Associate Judge of the New York Court of Appeals, the highest court for the State of New York She was previously Professor of Law at the CUNY School of Law, where she founded the Center on Latino and Latina Rights and Equality She clerked for now, Supreme Court Justice, Sonia Sotomayor, when Sotomayor was on the Federal District Court in the Southern District of New York Before becoming a professor at CUNY and joining the Bench, she had a distinguished career as a public interest and government attorney (audience claps) The Honorable Shira Scheindlin served as a Federal Judge of the US District Court, the Southern District of New York, for 22 years She retired from the Bench in 2016 Before joining the Bench, she worked as a prosecutor and commercial lawyer, and is currently an arbitrator Her rulings in a sex discrimination lawsuit shaped the field of electronic discovery in civil litigation In 2013, I think many of you will know this, she issued a 195 page decision holding that the New York Police Departments stop and frisk practices were unconstitutional (audience claps and cheers) Our moderator for tonight’s discussion is Dean for our Masters Programs and Professor of Sociology here at The Graduate Center, Julie Suk Before coming to The Graduate Center, Dean Suk was a Law Professor at the Cardozo Law School of Yeshiva University and has taught as a visiting professor at Harvard, Columbia, the University of Chicago, and UCLA She is a leading scholar of comparative law and society with a focus on discrimination and inequality and also on women, work, and family Please join me in welcoming this distinguished panel (audience claps) Thank you – Great, thank you so much, to Interim Provost Julia Wrigley, I’m thrilled to be here this evening I’ve recently joined The Graduate Center, and I’m very excited to welcome three distinguished judges

for our program this evening on the judiciary We’re going to begin where some of our conversations left off, about democracy, because one theme in the series has been whether or not democracy is in crisis So, I thought we could begin by asking the judges to comment on this idea of democracy being in crisis in the United States today, and perhaps identifying what the greatest threats are to democracy in the world we now inhabit Perhaps we could start with you, Judge Katzmann? – First, it’s great to be here, and, I think in terms of threats to democracy, I think one threat to democracy is political apathy The very low very turnout is a concern because you need an active and engaged citizenry otherwise a concern that I think that we should all have is that you have elections in which such a small percentage of people vote that it’s hard to know whether the voters are representative of our polity I think that that is a concern I think another threat to democracy is an erosion of trust in our institutions and to the extend that there is a lack of trust in our institutions that bodes ill for the democracy Related to all that is just a lack of knowledge among our citizens and non-citizens, actually non-citizens know more about our democracy than anyone else, as statistics show Most Americans, unfortunately, have a very dim understanding of our system of government Only a third of our citizens can identify a single first amendment right, and that should be a concern 10% of college graduates, and this is of course not true of any graduate of CUNY, (audience laughs) but 10% of college graduates think that Judge Judy is a Supreme Court Justice (audience groans and laughs sadly) I don’t mean to suggest that she is a threat to democracy (audience laughs) I’m saying that when we don’t know about how our system works and who’s running things, then that’s a concern – [Suk] Judge Scheindlin? – Well, I thought about this question, too, and I have a different list, but that just shows how many threats there might be out there (audience laughs) So the first threat to me is the attacks on the press, this notion of being the enemy of the people is very, very frightening to me because it’s the press that does the very educating that you were talking about We count on the press to investigate and report and teach, in its way, so without a press that’s free to do that and unintimidated, our democracy is at risk Another threat I think to our democracy is the delegitimization of the judiciary We have had so many attacks on judges, directly We’ve had the phrase “so-called judges”, we’ve had judges identified as Bush judges, or Obama judges, or Trump judges That’s not the way it is and that’s not the way it should be Whenever there’s an adverse decision, somebody comes out and says that’s because that judge thought that he or she knew what to do but they didn’t know what to do, so this delegitimization of the third branch of government is very troubling to me The third threat, to me, is what I would call voter suppression Now, that picks up a little bit, I don’t think you meant suppression, but I’m worried about voter suppression Laws and rules that are passed that prevent people from voting is the last thing we wanna do We want to encourage voting, we want it to become easier and easier, not harder and harder, and I’m very concerned that voter suppression is a threat to our democracy

And the last one, because we all have to be pretty quick here, there’s so much to cover, is I’m worried about our concept of checks and balances, which is our history as a democracy We don’t seem to have three co-equal branches at the moment The Executive Branch is very muscular and thinks that it in some way should control the Legislative Branch and the Judicial Branch, and of course, that’s not the way we’re structured So we need to have three co-equal branches, because that’s what has made our democracy unique and successful (audience claps) – [Suk] Judge Rivera? – Haven’t left me much, those are both really great lists (audience laughs) But, I have a couple of things to add I think I had at the top of my list the threat of violence I really see this increase in hate crimes, this emboldened sense of resolving any disagreements through violence as troubling, it puts fear into not only individuals but actual discrete communities who then won’t go and vote, or are afraid to have their voices heard So, I’m deeply, deeply concerned about the increase in violence and the way that it is being viewed as an appropriate response to what people disagree with or what people see as troubling As well, of course, is targeting individuals from vulnerable communities as a source of all ails for the United States of America Once having been seen as the strength of various immigrant communities, we are now told that immigrants are terrible, they are what cause all our problems, they are bringing down our economy, the United States is closed New York is not closed, by the way (audience laughs) But, that’s the message that’s sent, and I find this all deeply troubling and definitely undermines our democracy Along the lines of what’s already been said, that independence of the judiciary To me it’s also suggesting that this branch, the judiciary should conduct itself in the same way that the other two branches do, you know, the politics of the winner-take-all mentality, that that’s the way we decide decisions, it’s just whatever the majority rule is, whatever party was the one that successfully pushed through your appointment or helped you in your election, that’s the party you’re loyal to, not the rule of law Not the rule of law, but the politics, that somehow our particular branch should function that way I find deeply troubling I think this is tied to what’s already been mentioned about the lack of understanding and education about the way our government proceeds, about what are the strengths of our democracy, tied again into what’s already been mentioned about the attacks on the media and the distrust of the media and what could ever be true There are some facts (audience laughs) I know people tell us there are no such things as facts, but there really are facts, and judges of all people understand that there really are facts You may not like them, you may wish they were otherwise, but there are some things that truly are facts So, those are the kinds of things that I would add to this terrific list that my co-panelists today have come up with – [Suk] Great, thank you So, this brings us to how we might think of these threats in relation to the judicial role, and we can begin by asking what are the core features of judicial independence? What are we talking about when we say that the judiciary has to remain independent in the context of these threats? Sometimes judges can be described as protectors of democratic institutions, and the democratic process, and I wondered if you had some thoughts about how we should understand judicial independence? We could actually, yeah, go back to Judge Katzmann – I think judicial independence has at least two components to it One is decisional independence, and the other is institutional independence, institutional autonomy Decisional independence refers to what judges should be able to do, and that is to render decisions according to the law as they see it without fear of retribution In other words, the ability to call it as they see it, grounded in the law, and, without fear of political blowback So I think that that’s a very important part of decisional independence

The other part of judicial independence is autonomy as an institution In other words, having the resources that are necessary for the branch of government, the judiciary, to do its job That means having adequate budgets, adequate appropriations, adequate security, ensuring that the courthouses are welcoming places and places that are open for business We saw, in recent months, when there was a threat of a government shutdown affecting the judiciary, that would’ve meant closing jury trials, shutting down jury trials, our employees not having salaries, all of which would’ve had a corrosive effect on the institutional independence So I think those are the two components that I would focus on when I think about independence – [Scheindlin] If we’re allowed to go in the same order twice – [Suk] Of course – Again, those thoughts are exactly right, and I have a couple more that I would add to that First of all, in the Federal Judiciary we are extremely lucky because we have life tenure, and you need to think about that, we can’t be fired You go around the world and you will see judges fired in other countries literally fired, sometimes jailed, and if we look historically when dictators took over, they basically got rid of the judges, that’s the first thing they did So, an independent judiciary is one that is in place, and safe Now, as I know Judge Rivera will talk about the State Courts are different In some states judges are elected and some they’re appointed, but in many, even when they’re appointed, there are recall elections So, judges have to run for office in many states, they have to run for retention When that happens, you have to look at the funding Judges are attacked and there’s millions of dollars of what’s called dark money that get involved in those elections, and many judges have been turned out of office because of decisions they have made, sometimes very brave decisions, but whole courts, whole State Courts have been wiped out in retention elections So we need to think about that The third thing that I would say about the independence of the judiciary is the selection process I’m concerned about the selection process It has become very, very politicized, and I think you kind of eluded to that, that the parties sort of strive to appoint judges that they believe will carry out their agenda With that in mind, you really no longer have an independent judiciary that’s committed to the rule of law If you feel beholden to that appointer to carry out his or her agenda, that’s not a good thing So those are just a few short points I wanted to add – I agree with all that has been said, and I think they’re excellent points, I don’t know that I can add much more I’ll say this, and, it is true that in the state system to the extent we don’t have life tenure, although some people get reelected through the electoral process and they feel like they have life tenure, but we do have a maximum age limit So, certainly judges don’t really get to decide when they want to leave in that sense So, yes, that life tenure makes a difference I would say that along the lines of what was mentioned regarding the budget and having enough resources to be able to do your job so that as long as politicians have that power of the purse that they attempt to use to control the judiciary that that is very troubling But salaries are not a small thing You know, the state judges went a very, very long time without a salary increase, and I know that it’s very easy to say judges are already well-paid, people are hungry, they’re starving, but the reality is that, I’ll just put it this way, you can’t do democracy on the cheap (audience laughs) You really have to pay enough to ensure that people feel there’s quality in their lives and they’re able to do their jobs So it’s really important that the numbers are supportive of the judiciary, and I will say again, pointing out any kind of effort to make our general public believe that this branch of government should function as politicized as the other branches function, undermines our democracy, it ensures that you don’t have an independent judiciary

no matter how much judges strive on the other side There will always be these kinds of push/pull situations, the demands to hire a particular person as your clerk, a particular person to be in your chambers that you want a particular project, has already been mentioned You expect a particular outcome, right, to be in an interview process and to be asked what would you decide on that issue? What would be your holding on that issue? Are you pro this or anti that? Those kinds of questions, I think really fail to understand the way that the judiciary and judges of course, all of us individually, see our role as not to necessarily make sure any political agenda is indeed protected, furthered, but to apply the rule of law as has already been mentioned, call it as we see it with the support of legal doctrine and analysis behind your decision – [Suk] Do you think there are institutional mechanisms that can be improved to promote the independence of the judiciary and to struggle against the politicization that we’re now seeing? – I really do think the budget is a very big issue, I really think it’s sort of independent budget that is not subject to the political clamor is really critical, whether or not we can ever achieve that goal, is a different story Certainly the protection that the salary cannot drop is significant and that constitutional protection is very important to us Other mechanisms to protect the judiciary, I am not gonna get into the debate about elections versus appointment, but to the extent that it has already been mentioned, elections are not only about the initial selection but recalling someone based on what that judge thinks is the right call in a case That, of course, that mechanism I think is very troubling – Another institutional mechanism that comes to my mind is the need for courts to have what’s called a Public Information Officer, a PIO Why’s that important? Because people don’t fully understand what goes on in court, what the rulings are made of, why their rulings are made the way they are The judges try to explain but they can’t speak directly with media, for example, but a Public Information Officer can help the media to understand the case and that’s very important The PIO can direct them to the documents, to the record, to defining terms, can help them out so that the media then can translate it to the public So, I think more interaction between the court and the public through a Public Information Officer would be a great help – [Suk] Great, so, yeah! – I think one institutional mechanism which is more of a political culture mechanism is that to the extent that judges are confirmed in a non-partisan way that only reinforces the sense that there are no Obama judges there are no Bush judges, there are no Trump judges To the extent that it becomes routine that every judge is voted on on partisan terms then that will, ultimately, I worry, undermine the judiciary and it used to be, not that long ago where all of us were confirmed by substantial majority votes and that was healthy for the system because nobody could say oh, that judge is a Republican or Democratic judge But that perception will change if we continue to have these votes – Oh, I really must say, it may have changed You know, I’m the only one of the three of us whose not on the Bench, so I have first amendment rights (audience laughs) They don’t They have to be very, very careful, as to what they say, but I don’t have any such constraint so I can tell you, (audience laughs) I can tell you that if you look at the first hundred appointments to the Federal Judiciary of the current administration, they came out of committee overwhelmingly on 12 to 10 votes in the Senate, which means the 12 Republicans voted yes, the 10 Democrats voted no The percentage of 12/10s are extremely high, and Judge Katzmann is entirely right that in the past we all went through with a full committee vote, we then were passed by the full Senate on a voice vote Now you see that vote being 52/48

So, it’s very, very partisan and we’re talking now solely about the federal side, I’m not commenting on the state side at all, but that’s the truth on the federal side at the moment – [Woman] Hear, hear! – Huh Well it seems like what I’m hearing is that there is also one thing that can happen as a result of the politicization of judicial appointments is that then there’s a perception of judges as political actors, and inevitably, there are many decisions issued by courts which even if not intended to be such the public then politicizes and reads as a political act and I was just wondering how judges can think through those partisan times, that is, if there are rulings that can be perceived to be partisan, whether that changes or should influence the way that a judge thinks about their cases? – [Katzmann] Who wants to start? – Should we start with the one who has– – Whose got the first amendment rights – I’ve got the first amendment rights, yes So, of course a judge is aware of the effect of the public’s perception of the rulings that they’re going to make, but the judge has to struggle not to take that into consideration The judge knows that there’s gonna be a reaction, some questions are very contentious, and they have great impact on the public But you still have to say I have to follow the rule of law, I have to do what’s right, even though I know that there will be blowback by the public What worries me sometimes is that there’s so much room for misunderstanding the judicial decision, so I tried to think of some examples on that to give you, make it tangible So, one that always came to my mind, and I was a trial judge, was releasing people on bail Typically in a state court, somebody comes in and makes the bail decision, somebody’s released, and every once in a long while, the person released then kills somebody or hurts somebody and the judge is immediately attacked How could you let that person out? Look, he killed his spouse or partner, whatever it is Well, the answer is if you understood the considerations that go into making a bail decision, the judge probably made the right call, and the judge is not responsible for what then happened, but every judge is concerned about that type of thing The same thing with sentencing, and again, right, I imposed over 2,000 sentences So, sometimes you give a sentence that’s low and the public doesn’t understand, they say how could you give only 18 months to this person? Well, again, if you understood how the sentencing system works and the considerations that a judge takes into account you might understand that So, it has to be explained, what a judge does, what a judge takes into account in making decisions And that’s not always known by the public So, that’s a brief answer – Well, the crisis of democracy is sometimes described as a crisis of inequality, of course here at The Graduate Center we have many scholars of inequality in a center that studies the rise of socioeconomic inequality I wanted to turn our attention now to the role of judges in the context of inequality, particularly the way in which inequality affects access to legal representation, and access to justice We talked earlier about courts as institutions and we might even think of judges as institution builders, and initiators of institutional changes toward social justice, particularly when it comes to access to justice and access to courts I was wondering, perhaps we could start with Judge Katzmann again particularly in light of your experience of working towards access to justice for immigrants, what the judicial role is in these institution building efforts – So, just quickly by way of context, when I became a Federal Judge in 1999, the percentage of immigration cases in our court were at best about 3% That meant that I would see only a handful of cases every now and then, but then in the years after 9/11 when there was understandable concern about who was here legally, who was here not legally, the caseload of the 2nd Circuit in immigration cases ballooned to a point where in 2005/2006, 40% of our docket consisted of immigration cases In other words, the docket just about doubled because of immigration cases, and when you see lots of cases you begin to notice a pattern

What I noticed was that the cases were almost uniformly, although there are always exceptions, poorly argued That the quality of legal representation was abysmal This really bothered me because I had the sense if only there had been a good lawyer at the very outset of the case that the outcome could’ve been different The problem is that by the time a case gets to the Court of Appeals, because generally speaking, we are pretty much constrained, once findings of facts are made, that if the record is not developed at the very outset of the case, the chances for the non-citizen of prevailing are very, very low This troubled me, and so, to make a long story short, I started with some great people, the Study Group on Immigrant Representation, which brought together all the stakeholders Those in the Federal Government, in the Department of Homeland Security, in the Department of Justice, the immigration authorities, the non-profit clinics, the law firms, state and local government, with the idea of trying to find ways to improve the quality of representation for immigrants What I learned very early on was that the problem was much worse than I had even known, because I was seeing these cases where there were lawyers and the problem is that fundamentally, and Judge Scheindlin has been working on this from the private sector, the problem more fundamentally is the absence of lawyers at the very outset of the case So, we never even see those cases, because they never get to be appealed The statistics are dramatic 63% of non-citizens in deportation proceedings do not have a lawyer The difference between having a lawyer and not having a lawyer is stark So, if you have a lawyer in a deportation proceeding, in the New York area, you are going to prevail something like 25%, if you don’t have a lawyer it’s 3% If you don’t have a lawyer in an asylum case you’re only going to prevail 13% of the time If you have a lawyer from the Immigrant Justice Corps, you’re going to prevail 93% of the time – [Suk] Wow – Which shows you the difference between what having a lawyer is and not having a lawyer So, where I come at it as a judge is that I have a responsibility in terms of the fair and effective administration of justice to try to ensure that there is access to justice so that justice can be done It shouldn’t be that justice depends upon the income level of somebody whether he or she can afford to pay for a lawyer, and so, my role as a judge, I think, is to try to institutionally promote this, and, I’m always very careful not to talk about specific cases but to talk about the institutional issues I’ve worked two really basic initiatives One is the Immigrant Justice Corps, which provides young lawyers a chance to get fellowships to be trained and to devote themselves full time, their careers, to immigration law The other was the New York Immigrant Family Unity Project, which was a product of the study group on immigrant representation, lots of terrific people were involved in that The basically provided model, which other jurisdictions could emulate and that is the idea of representation paid for by the government in immigration cases, and New York doesn’t have it totally as in New York City

but much greater than any other jurisdiction in the country – I wanna add, because he can’t say this, but, you’ve heard of the campaign called “Be a Hero”? This was really a hero in doing this work of getting New York to be number one in the country leading the way of getting representation for people caught up in the immigration system that couldn’t get lawyers, so, you know, it’s a really wonderful thing (audience claps) I also want to add that it’s not just immigrants that we have to deal with who don’t have counsel It’s little known that in our court, the Southern District of New York, which is a major commercial court, 25% of the trial court docket where I sat is pro se litigants, pro se means for yourself, they have no lawyer So, people come into court, plain people, who have a case and they try to articulate their own case Often they’re prisoners who are complaining about prison conditions or something very bad that happened to them in prison, and how do they bring their own case when they’re up against a lawyer for the state or the city defending that case? So, our court has also tried to help find counsel for pro ses who are prisoners, who are in employment cases, who are in disability rights cases, and help them by getting counsel So, it’s not just immigrants, it’s a lot of people who need access to justice and that means a lawyer – At the state level I would say there’s really three ways that we’ve tried to deal with what is a real problem of access to justice, inequality, and certainly the marginalization of various communities So, one is getting more money to institutional providers who can bring their resources, their training and lawyers to bear to assist people who can’t afford a lawyer It’s providing information to people who come into the court, whether that’s just having a information area where they can ask people some questions or whether we have it up on a computer that they can access themselves, whatever point of entry we can create for them Or, helping to train navigators who are non-lawyers there to assist someone who’ll come in pro se The last one is to try and bring more lawyers, I mean, it’s tied to the first two things, but try to really bring more lawyers in to the fold to really appreciate how important it is to do pro bono work, to put in a lot of hours, to support the organizations, whether it’s through money or your volunteerism, that are providing these services to low income communities and marginalized communities and some of that we’ve done through the 50 hour pro bono rule that requires everyone who’s admitted into New York to give in at least 50 hours of pro bono services The prior Chief Judge always felt that this was a helping profession It’s in our DNA, these are his words, it’s in our DNA, and when people go to law school they have to understand, this is part of their obligation to be licensed in the State of New York to not only give these 50 hours, but to have a different kind of mindset, that what we do is give and we assist We get great benefits from this license, and the work that we do, real professional satisfaction from being a lawyer, but it also means that we can’t turn a blind eye to the fact that there are people in desperate need of legal assistance who simply can’t afford a lawyer, and as has already been mentioned, that might be the one thing that makes a difference It’s not about the merits of the case, it may very well be about not having someone there who can really give voice to your issues – Well, one thing you said that I find very interesting is that you’ve also worked with non-lawyers and I wondered what the realistic prospects are, ’cause one of the problems of course is the rising cost of legal education, and the cost of legal representation, and in some states, scholars and even judges are exploring the prospects of training non-lawyers to provide support to pro se litigants, and to perform other functions that perhaps in the past lawyers might’ve performed I was wondering if you had a comment, or a thought about whether or not that’s a realistic solution to the justice gap – It’s a response to a problem I don’t think it is a solution I think the solution is to end income inequality, racism

(audience claps) Treating people differently just because of the fact they can roll the R when they pronounce their last name So, no, I don’t think it’s a solution in that way, that it’s gonna take care of all the problems, but in many ways we have to respond to what we see We can’t allow people to come in or not come in because they don’t have access to affordable legal assistance But, I just wanna say this It is an important response, but we cannot lose sight of the fact that we cannot be about the business It is not justice to say that someone who simply can’t afford a lawyer should only have access to something that’s anything less than high quality legal assistance So, if that can be provided in an appropriate case, by someone who is not licensed as a lawyer, but otherwise under the law is able to provide a particular type of assistance, that’s fine But, we shouldn’t think that it’s okay just because someone can’t afford a lawyer to be given something less than high quality legal assistance – And in the immigration context, for example, there are what are known as accredited representatives and these are paralegals types who are trained to help with things like input, screening, and that’s very useful I think more can be done along those lines At the same time, we have to be clear that there’s some things that are very complicated where you need a lawyer and you can’t substitute someone else for a lawyer, but more can be done I don’t know if it’s ever been published, but there was a very good speech given by Jed Rakoff about a year ago on the use of non-lawyers in the legal system If it’s published somewhere everyone should read it ’cause I think it’s very, very useful – I was gonna say something along those lines, that in medicine we now have physician’s assistants who can do so much and save the time of the doctor for the tasks that the PA shouldn’t be doing The same could very well be true in the legal area There are many things a paralegal could do to help get the case ready so that the volunteer lawyer’s time is saved and able to be used and spread around for more clients So, I think the legal profession has to think outside the box and say what tasks can the paralegal fairly do For example, in immigration you have to get a lot of documents, you often have to get them from abroad It takes an enormous effort to collect those affidavits and documents, but you don’t need to be a lawyer to do that You need to be intelligent, educated, smart, whatever, so I do think we could be creative and we could make more use of it and that’s what I think probably Judge Rakoff wrote about Even though I haven’t read his article (audience laughs) – Great, so I would like to open up the floor to questions, and they’ve been written on cards and will be brought– (several audience members chime in about asking questions) – [Woman] We have a few more minutes, while they write You were gonna go once they get them – Oh, okay, so this is the moment at which people can write their questions and hand them to the gentleman who’ll be collecting them from you In that case, I did wanna ask one additional question before we open it up to the floor I wanna think about the role of judgment and the fact that judges are human So, in my new role here as Dean for Masters Programs, we have several new programs on data, Data Science, Data Analysis and Visualization, Cognitive Neuroscience, which engages artificial intelligence But one thing that I think we have not suggested is using artificial intelligence to replace judging It’s because the fact that we are human, the fact that judges are human is actually important to what judges do That judges have social roles as perhaps, sons, daughters, family members, friends, and often judges live in communities I guess the question I wanted ask, particularly along the themes of judicial independence, is what does it mean for a judge to exercise judgment and be human, in the context of one’s relationship to the communities

that one’s decisions can affect Is there an obligation to retain a certain distance from the social relationships in one’s community because of the norm and perception of judicial independence and neutrality? – You asked a lot of questions at once and if it’s okay with the other two I’d like to take this one first First of all I do not think judges will be replaced by AI or robots or anything like that and there’s a good reason for that, because the word judges means exercise of judgment and I don’t want an algorithm to tell me who to release on bail, because there is a human element There’s a judgment call You listen to somebody, you look at somebody, no algorithm can do that What algorithms do, which is dangerous, and we talk about that in terms of certain biases, such as race or economic status, the algorithm says, oh, this person may have not held a job for X numbers of years, this person has less education than that person, this person has family members in prison Suddenly you use that algorithm to say they shouldn’t be released on bail, but that’s not maybe right, you have to look at this individual, not a bunch of stats that might describe what categories you can put this in So, I’m against the idea that algorithms can replace judges; they can’t Now, to turn to the other part of your question No, of course a judge does not cut herself off from her family, and her community This is my chance to make a pitch about diversity on the Bench It is so important to have judges of all different backgrounds and all different types, gender, race, ethnicity, background, whatever you call it It’s really important that everybody brings a different background to the Bench If we had all one kind of people, that wouldn’t reflect the community that we serve So, we do come with our own backgrounds, we bring that to our judging Of course we follow the rule of law, but if we all came out with the same decision on every case then we would be a robot There’s often not one right answer That’s what judgment means So, we don’t cut ourselves off from the community Now, that said, I don’t think we consult the community when there’s a case to be had You don’t talk to your friend and family and say how do you think I should rule? (audience laughs) I actually think you alluded to that before, I think it was you, Judge Rivera, when you said something about we don’t take the political temperature out there and respond to that, what’s the public opinion polls tell us, that’s not how we rule But, we are human, as you said, we’re aware of our community and our family, and it’s something that we bring to our judging – [Suk] Judge Katzmann? – I fully agree, (audience laughs) with everything that Judge Scheindlin said – That’s called affirm (audience laughs) – Yeah, affirm, affirm Interestingly enough, though, I’ve heard that there is some research being done as to the use of AI– – [Suk] In law, yep – In law, and, for example, in administrative decisions Social Security decisions, there’s some projects underway as we speak about looking at how those kinds of decisions can be made through the use of artificial intelligence I worry about replacing judgment with robots, and I realize that’s a very simplistic statement, but, that’s really what you’re gonna be getting if you eliminate the human element from judging – We’ve come full circle on that other question you asked about income inequality It strikes me this is one of those areas where the well-heeled will not be looking for the latest technology To the extent that something becomes an algorithm and doesn’t really look at the individual behind those numbers, that strikes me as a response to mass justice, whether it’s in the administrative law context or some other context, and again, would just rarefy and reflect that income inequality, right, the ones who are well-resourced will aways ensure that they are having access to what they see as the best legal opportunity and the best legal outcome But, yeah, I don’t see that as a general matter judges are gonna be replaced, no matter how cute the robot may look – [Suk] (laughing) (audience laughs) – Or whatever robe the robot will be wearing

I do think that it is true that a more diverse Bench is important to democracy, it’s important to the confidence that the public has in our Judicial Branch, but it’s also true that we are indeed human beings We bring all of those experiences to bear and that can be very positive in the judicial, deliberative process It also means that you have to be, in this sense, using the vernacular of the day, very woke You have to be aware of where you’re biased You have to be aware that it’s one thing to bring an experience and to be aware of the way that has influenced you and what mark that has made on you, but it’s also important to be aware how that may influence a decision in a negative way That it renders you unable to be open to arguments, unable to really fully appreciate the record that’s in front of you, unable to really listen to a colleague’s alternative arguments and alternative views That’s where a judge has to be very, very cautious, which is why I do think at least from my perspective on a collegial appellate court, it’s really important that we hear one another and that we are different and that we bring that to the table, but that I can go back into my chambers and say you know, is there something else that’s driving my view in this case? Is there something here that I need to check myself on? Because that is not what I wanna bring to this table, that’s sort of the view that’s open and thinking analytically about this legal question What was the purpose of this statute? What’s the intent behind this constitutional provision? What are we trying to further in this democracy that I can add to in the way I think through the problem, as opposed to I only want one outcome, I’ve only got one agenda, because I see the world through a particular lens and I don’t care what anyone else brings to this table Those are the things that I think we have to be very cautious of – [Suk] Great. Thank you Okay, so, thank you very much for those who’ve written questions for the judges So we’ll begin with this one Are mandatory sentences a challenge to democracy? – Well, I don’t know if they’re a challenge to democracy but what they caused us to have was the highest prison population in the world Mandatory sentences filled up prisons in America like no other country, and so, at least on the federal side, we’ve had some relief from mandatory sentences in terms of what we call the sentencing guidelines, they’re no longer mandatory We still have mandatory sentences in some of our statutes where we have to give a certain sentence and the judge has no choice And, by the way that was one of the most painful experiences for me as a trial judge, a sentencing judge, that I had to give a sentence a few times that I didn’t believe was right I didn’t believe it was right and my choice was resign or impose it And, I thought about resigning, very early on, but then I realized it would just be another judge who had to give the same sentence to the same person so it didn’t make any sense to leave because then the bench would lose my particular voice, which I thought was a good voice to have on the Bench, so (audience laughs) So, I stayed, but the point is that mandatory sentencing really has this bad effect Now, in the state system also, at least in New York, there was a period of very draconian sentencing in drug cases, it was called the Rockefeller Drug Laws, and it filled our prisons again, and we moved away from that here in New York, too So, our prison population to some extent has been reduced, but I do think, I don’t know that I’d call it a threat to democracy but, frankly, to put it bluntly, it’s not a good thing We need to trust our judges to figure out an appropriate sentence and I don’t think it should be imposed by the political branch You see, mandatory sentencing is a statute, so it’s passed by the Legislative Branch, and remember the Legislative Branch are politicians, they’re elected, so of course they’re answering to their constituency, and if they wanna be tough on crime, and re-elected, they’re gonna pass these mandatory sentencing So, much better to leave it to judges, which is not a political branch, To impose the sentence that’s appropriate – Yeah, I think it is a threat to democracy in this sense, and you alluded to it, to the extent that mandatory sentences

fall harshest and most heavily on particular communities That’s about inequality, that’s not about justice If we really wanna say, well if you do the crime you do the time, but if that’s falling harshest on particular groups of individuals, if that’s resulting in the devastation of whole communities that means that we as a society are not really, fully appreciating that choice Right? And that’s just, again, ensuring that inequality will continue because we’re not gonna be able to have people talk across the aisle and really explain why a mandatory sentence may be, you think that means we’re gonna be tough on crime, or you think it’s gonna ensure consistency You may think that judges having certain discretion means that someone who goes into courtroom A is gonna get five years and someone who goes into courtroom B is gonna get 50 and that’s unfair Okay, well that’s an interesting argument to make, but when we don’t as a society, think through and observe the consequences of what, perhaps at one point was well-intentioned and see that indeed it has fallen heaviest on particular groups, particular communities, then I think it does put our democracy at peril – I think one of the few bright spots in the last year in Washington was that there seemed to be a consensus that at least we should begin to think about reducing some of these extraordinary disparities and the law has been changed in some important areas that will address some of the concerns that both Judge Scheindlin and Judge Rivera have mentioned The fact that you had Republicans and Democrats coming together to realize yes, there is a problem that there is a problem which disproportionately affects those who are poor and without resources, and that they actually did something about it is hopeful, in terms of the future – That’s true – [Suk] So here’s an interesting question, would cameras in the courtroom enable the public to understand what courts do and increase confidence in the courts, or might it have the opposite affect? – We have two appellate judges, I don’t think either of you were trial judges, that’s right? – Right – Right, so the trial courtroom and the appellate courtroom are different and, for example, I know that your court, Judge Rivera, it is live streamed, the appellate argument you can watch in New York, because there’s no witnesses, there’s no jury, it’s okay But the trial court is a different kind of court The question is whether the cameras would change the dynamic, in a sense, would the witness react differently because he or she knows she’s on camera? Would it affect her ability to be candid in her testimony? Would it influence the judge’s behavior? Would the judge be sort of speaking for the camera, so to speak, and wanting to appear to have said something clever, for example, and it would affect the behavior, it’s true Then jurors, jurors who don’t want their image on every news station every night might lose their anonymity So while in theory I do think that cameras in the courtroom gives the public access to the proceedings I think we have to weigh that question ’cause there are good things about it and not so good things about it at the trial level Now, it’s a public courtroom of course, the public has access, so we often have media in the courtroom, and the media can write every night and explain what happened in the courtroom, and members of the public do come to certain trials, anyway, that they’re interested in As was said in the introduction, my stop and frisk trial, which was a public trial, the courtroom was jammed every day, but with all different kinds of folks who really wanted to watch these proceedings, it meant a lot to them So, hundreds of people came in and watched However, I’m not so sure what I think of cameras during all public trials, particularly on the criminal side – It is true that the Court of Appeals, it is live streamed, it’s archived The briefs are also up, the opinions, of course, are accessible, so you can see from that argument from the lawyers on paper, in person, the questions the judges are asking and then the ultimate decision and I think that’s great for transparency and frankly,

my colleagues and I forget there’s a camera I mean, sometimes you look over and there’s a camera, but sometimes we do forget, because we are caught up in the arguments and we have to render a decision, so we can’t be about the business of spending our time looking at the camera So, in that way, I think that’s very important to transparency and for people to have access Of course we are located in Albany and not everyone can come to our court So the idea that one can just walk into the court at anytime is not something that is a real option for the majority of people, although it is a public courthouse and people can, of course, come I am concerned, though, although these are all really important issues that have been raised, that it does leave access to whatever organization is able to bring people in, so I very much advocate that it be a requirement in our public school system that every year classes go to the courts I know that in the 2nd Circuit there’s this wonderful educational room that now has been set up that’s phenomenal and kids are gonna learn a great deal from that and we’re trying to do similar things, of course, in New York But, it is a way to deal with that lack of information So, yes, you don’t necessarily have to have televised every trial, but if our communities have been exposed to trials, what real trials are, not what they see on Law and Order or whatever else is on TV, you know, where everything’s resolved in 48 minutes with commercials (audience laughs) Or, without commercials That’s really what people need to understand and then they can make their own choices about, you know, I have a free day, maybe I’ll go to a court, or maybe I know about a trial, or find out where there may be some trials, when there’s an oral argument and go in So, I do encourage all of you who are not regularly in a courtroom to go and observe judges as well as lawyers doing the business of ensuring that justice gets done in the courtroom – Or serve on a jury – Serve on a jury, yes, absolutely, although there are fewer and fewer juries, but yes, there is always a great need for jurors – [Suk] Judge Katzmann, I know the question was about cameras, but if you’d like to say a few words about civics education in the context of your court – We have an active program called Justice for All: Courts in the Community, and the idea is to bring courts closer to the communities we serve and for us to better understand the communities that we serve So, we have a learning center, the whole 5th floor of the courthouse at 40 Foley Square, Thurgood Marshall Courthouse is essentially a living learning center, and you can, for example, your classes can come We have instructions, we’ve got library labs, so you can learn how to sue your teachers and your parents (audience laughs) Just kidding We’ve got kiosks so that, for example, you can listen to Thurgood Marshall argue the case of Cooper v Aaron and for a student or for a citizen to be able to hear that is truly inspiring We have a create space that our library has created where students can create podcasts We have regular series of lunches with judges and moot courts, so, this is something that as Chief Judge I’ve really tried to promote and it’s, the philosopher, John Dewey, said that democracy has to be born anew every generation with education as its midwife, and that, I think, is something that we all, on this stage, would agree with – [Suk] We hear nearly every day that the US is on the verge of a constitutional crisis What exactly does that mean and how real is the risk? (audience laughs) – They can’t answer that because either one of them may get a case that raises some of these issues, so, I really do think I’m the only one who can, up here, up here, of course, who can respond to that question What a constitutional crisis would mean to me

is that there’s a clash between the co-equal branches, something I described earlier, and we are living with it right now as we’re seeing the war between the Legislative Branch and the Executive Branch The Legislative Branch has oversight power It’s in the Constitution They’re doing a constitutional job when they’d investigate, when they subpoena certain records, when they call people to testify, that’s their right But if the Executive Branch says no way, we’re gonna ignore your subpoenas, we’re not gonna respond to them, we’re not gonna show up, that creates a constitutional conflict, because one branch is not respecting another branch So, where’s that conflict gonna go? To the third branch, which is what the judiciary’s called, the third branch So these issues will end up in the courts and because of our system the courts will have the last word on this Now, there is precedent on some of these issues, for example, not responding to a subpoena was in the third article of impeachment against President Nixon So, you know, we know that the Executive has to respond to subpoenas because no one’s above the law But right now, we are on the verge of that particular constitutional crisis I’m sure there are others that I could think of if I had hours to do it but that’s the one that comes to mind because it’s today It’s right now They can’t comment (audience laughs) – [Suk] Okay – We want you free to be the judge on any case that comes up – [Suk] So, some commentators say that Justice Kavanaugh’s appointment to the Supreme Court signaled a new level of politicization Is that true? Was this confirmation really a break from the past? This ties into our earlier discussion, of course (Judge Scheindlin speaks quietly to Judge Katzmann) – Probably not – Okay (audience laughs) I consulted with at least one of my colleagues, and I was told go for it, I was told to go for it It was very political but it was certainly not unprecedented We have had previous confirmation hearings that were extremely contentious Some of you might recall Judge Bork when he was nominated for the Supreme Court and what happened during that confirmation process probably set the stage for the next 50 years It’s not the first time in our history that we’ve had what you might call a political problem in terms of the appointments to the highest court You might remember the Roosevelt court packing history event some of you who are historians will remember that that was a very conservative court when President Franklin Roosevelt became President, and he wasn’t happy because that court kept striking down the New Deal initiatives, so he just said well, there’s an easy way around it, we’ll just have a larger Supreme Court and I’ll appoint all the new justices But, believe it or not, both parties said no, you’re wrong, that’s not our system, you’ll get your turn when there’s a vacancy and sure enough, slowly, over time, the court shifted with his appointments and the New Deal initiatives went through So, it’s not unprecedented but I will say that the rancor this time was probably the worst I had seen in a confirmation hearing since Justice Thomas’ hearing and then before that Judge Bork’s hearing So it’s not all that new What surprised me about it, I guess, was how involved the public became The public was riveted, maybe because of social media, maybe because of television coverage, but we were all hanging on every word, so to speak, throughout that process and as you know, the vote was extremely close, going back to what we said before, about the 51/49 or 52/48 votes that we’ve seen in so many confirmations So, it wasn’t, let’s say, our brightest moment – Well, that brings us to the end of our program, and I wanna thank all three of you for taking the time out of your very busy schedules to join us this evening, and to talk honestly about some very important issues with regard to the role of judges in democracy Thank you (audience claps)