{"id":186355,"date":"2026-02-20T18:13:05","date_gmt":"2026-02-20T18:13:05","guid":{"rendered":"https:\/\/www.newsbeep.com\/us-ca\/186355\/"},"modified":"2026-02-20T18:13:05","modified_gmt":"2026-02-20T18:13:05","slug":"berkeley-talks-the-rule-of-law-depends-of-the-courage-of-judges","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us-ca\/186355\/","title":{"rendered":"Berkeley Talks: The rule of law depends of the courage of judges"},"content":{"rendered":"

(Music: \u201cNo One Is Perfect\u201d by HoliznaCC0<\/a>)<\/p>\n

Anne Brice (intro): This is Berkeley Talks, a UC Berkeley News podcast from the Office of Communications and Public Affairs that features lectures and conversations at Berkeley. You can follow Berkeley Talks wherever you listen to your podcasts. We\u2019re also on YouTube @BerkeleyNews. New episodes come out every other Friday. You can find all of our podcast episodes, with transcripts and photos, on UC Berkeley News at news.berkeley.edu\/podcasts<\/a>.<\/p>\n

(Music fades out)<\/p>\n

Richard Jolly: Right now let me express my great excitement in welcoming you to another episode of the Civil Justice Research Initiative\u2019s \u201cConversations in Civil Justice\u201d with me, Richard Jolly. I\u2019m a professor at Southwestern Law School in Los Angeles, California, and also serve as a fellow for the CJRI at UC Berkeley School of Law. The CJRI is an academic initiative that explores through interdisciplinary university-based research, how the civil justice system can be made more open and available to those seeking relief.\u00a0<\/p>\n

We\u2019ve been holding these webinars for nearly five years now and we are still going strong. But for those in the audience, if this is your first time attending one of our conversations, one of the things that makes these programs so interesting is that we invite and encourage audience participation. We want to foster a conversation. So please feel free to submit questions using the Q&A feature at the bottom of the Zoom whenever it strikes you, and we\u2019ll try to address it throughout the conversation.<\/p>\n

For today\u2019s episode, we will be continuing our discussion on profiles in legal courage. If you joined us a few weeks ago, you saw that we focused on lawyers standing up for the rule of law in the face of political and extra political pressure. Today we will be discussing and celebrating judges who have stood up for the rule of law.\u00a0<\/p>\n

And for this discussion, I am so pleased to welcome as our guest, Judge Bernice Bouie Donald, Judge Philip Pro and Professor Amrit Singh. The amazing credentials and accomplishments of these individuals are deserving of a program in and of itself, so I\u2019ll try to keep these introductions brief so we can move on to the conversation.<\/p>\n

Judge Bernice Donald is a former federal judge who served on the United States Court of Appeals for the Sixth Circuit from 2011 through 2023. But for her elevation, she served as a United States District Court judge for the Western District of Tennessee from \u201995 through 2011 and earlier as a judge for the United States Bankruptcy Court for the Western District of Tennessee, where she became the first Black woman in the nation to serve as a bankruptcy judge. Her judicial career began in 1982 when she was elected to the General Sessions Criminal Court in Shelby County, becoming the first Black woman to serve as a judge in the history of the state of Tennessee. In 2024, she became a member of the law firm of Burch Porter & Johnson.<\/p>\n

Judge Pro is a former United States District judge for the District of Nevada, where he served for more than 27 years following his appointment by President Reagan in 1987, including service as Chief Judge. From 2002 to 2007. Before his elevation to the district court, he served as a United States Magistrate judge for the District of Nevada from 1980 to 1987, building on earlier roles as a deputy public defender and as an AUSA. Since retiring from the federal bench in 2015, Judge Pro has continued his commitment to public service and dispute resolution as an arbitrator and mediator with JAMS.<\/p>\n

Professor Singh is a human rights lawyer and leading expert on democracy in the rule of law, currently serving as Professor of Practice and founding director of the Rule of Law Lab at NYU School of Law. Before joining NYU, she founded and directed the Rule of Law Impact Lab at Stanford Law School, and previously led the accountability division at the Open Society Justice Initiative. Her work focuses on using legal tools to resist contemporary authoritarianism, defend judicial independence, and promote government accountability in the United States and around the world.<\/p>\n

And finally, I\u2019m pleased to welcome as our co-host for today\u2019s conversation, Judge Jeremy Fogel. Judge Fogel is a former United States district judge for the Northern District of California and a nationally recognized leader in judicial education and judicial ethics. Appointed to the federal bench in 1998, he served as a district judge until taking senior status in 2014 and retiring in 2018. <\/p>\n

Since 2018, he has served as the executive director of the Berkeley Judicial Institute here at UC Berkeley School of Law, where his work focuses on judicial independence, resilience, and the human dimensions of judging. I really can\u2019t say what an incredible panel this is and how lucky we are to have all of you here today. And Judge Fogel serving as a co-moderator is just such a thrill. Thank you so much.<\/p>\n

Jeremy Fogel: Thank you, Richard. Thank you so much and welcome everyone. And I just want to say how truly pleased I am to be sharing the platform with the people that Richard just introduced. All of us have worked together. I admire each one of these people enormously. They\u2019ve contributed so much to where we are in our efforts to preserve judicial independence in the rule of law. And in addition to that, they\u2019re just really good people. They\u2019re just very thoughtful and ethical and oriented to very good values. And it\u2019s just a real honor to be with all of you, and so thank you so much.<\/p>\n

So we have a lot to cover. We have less than an hour, and we\u2019re definitely living at a time when the judiciary is facing some unique challenges. And so I want to start with a question for everyone, which is why is it important that we\u2019re talking about judicial courage? Why does it matter that we\u2019re talking about judicial courage? Why should people care? So I\u2019m going to start with Judge Donald.<\/p>\n

Bernice Bouie Donald: Thank you so very much. And let me join others who\u2019ve said how wonderful it is to be here. Judicial courage is something that I think most of us probably as citizens don\u2019t really think much about. Judges have a job, they take an oath and people just expect them to do that job. But judicial courage really is a moral and institutional virtue that arises in many instances. The law doesn\u2019t always afford judges the opportunity to take the convenient path. <\/p>\n

Sometimes when there are difficult issues, where there are unpopular people who are standing before the court, where judges are elected, where judges are having to make decisions that go against the public will or the community, where judges have to sometimes make rulings that powerful people do not agree with, that takes some courage to really give fidelity to that oath that we all take. And that\u2019s so important because every individual, whether they are in the South, North, wherever, no matter what their religion, no matter what their race or gender, have a right to have an expectation that justice will be done.<\/p>\n

Now, they may not always agree with that, but in times when individual judges face sometimes real repercussions, they become almost outcasts in their communities because of the decisions that they make, which really are ordered by the law, but people don\u2019t necessarily understand or appreciate that. So that\u2019s why it\u2019s so important that we talk about judicial courage because we are really the gatekeepers. We are here to preserve and protect the rule of law for every individual, those who are popular and those who are unpopular. <\/p>\n

As somebody growing up in the South, I am intimately familiar and grateful to those judges we\u2019ll talk about later on who did take their oath very seriously and who exercised extreme moral courage so that the rule of law, the letter of the law, the ideals contained in the law could be there to protect each and every individual and to really make this notion of a quality inclusion a reality in the lives of people who otherwise had no voice and no access. And that\u2019s why I treasure it. And I think we need to talk about that because it\u2019s something that many people just take for granted.<\/p>\n

Jeremy Fogel: And we will also talk about what happens when you don\u2019t have it. When you are in a system where judges aren\u2019t courageous or can\u2019t be, or they\u2019re afraid to be, the alternative is pretty grim. And we\u2019ll say more about this in a minute or two, but let me just ask Judge Pro the same question. I mean, why does it matter? I mean, why is this so important?<\/p>\n

Philip Pro: Well, I think it\u2019s important at this time, not only for the reasons that Judge Donald just mentioned, but because the judiciary, the separation of powers, the independence of the judiciary, the very rule of law, which is the key foundational element for our constitutional republic are under such attack. <\/p>\n

At the end of last year, the Chief Justice issued his annual report of the judiciary, and he called for calm. He called for people to tone down the rhetoric because of the escalating levels of attacks against the judiciary, violent attacks in some cases, unfortunately fatal. And it doesn\u2019t appear anybody was listening because by February, with the issuance of a flurry of executive orders that provoked a lot of litigation throughout the country, judges were called upon to do their job, which we do every day. And in response, the number of attacks, the severity of attacks against the judiciary has escalated tenfold. It\u2019s just been kind of a remarkable thing, and that\u2019s why many of us have become involved in activities such as what we do with the Article III Judges Coalition.<\/p>\n

Courage is a relative thing. I\u2019ve never thought of my life on the bench as being courageous. It\u2019s hard, it\u2019s difficult, and you do your job and you do it clear-eyed. We have protections under Article III that make it easier for us to do our job without fear or favor, but what\u2019s going on right now threatens the security of judges so much that there\u2019s a risk of influencing, I think, the judiciary in a negative way that just shouldn\u2019t exist in this country. And so it\u2019s important that we talk about it and encourage others, whoever\u2019s in the audience, they\u2019re advocates, they can get out and talk to people about it and spread the word that this is \u2026 The sky is not falling, but we\u2019re faced with some real severe threats right now.<\/p>\n

Jeremy Fogel: Yeah, I mean, what both of you are saying in a way is that we\u2019re not talking about judges acting any differently than judges have ever acted. It\u2019s not like \u2026 There was a judge who we may talk about a little bit later who has been severely attacked. And I wrote to him the other day and just was letting him know I was thinking about him. I said, \u201cYou just probably think, you\u2019re just doing your job. I mean, it\u2019s not like you\u2019re being brave or anything, you\u2019re just doing your job.\u201d <\/p>\n

And so judges are doing what they\u2019ve always done, but the amount of heat that is coming at them, and we\u2019ll talk about some of that specifically, means you have to be a lot more committed, a lot harder-nosed about it perhaps than you might\u2019ve been at a different point in time. And it\u2019s not like all of a sudden we have judges who are getting out of line or doing crazy things, judges are doing what judges do, but the heat has really been turned up and that\u2019s the challenge that we\u2019re facing. And I think both of you are saying that.<\/p>\n

Let me ask \u2026<\/p>\n

Bernice Bouie Donald: But Jeremy, if I could just \u2026<\/p>\n

Jeremy Fogel: Go ahead.<\/p>\n

Bernice Bouie Donald: If I could just say \u2026<\/p>\n

Jeremy Fogel: Please.<\/p>\n

Bernice Bouie Donald: \u2026 a quick thing before you go to the next person.<\/p>\n

Jeremy Fogel: No, go ahead.<\/p>\n

Bernice Bouie Donald: Because these judges are just doing their job, as I said before, but there could be really intense scrutiny and pushback and that pushback, it\u2019s focused on the judge, but it\u2019s kind of like when you turn on a flashlight, there\u2019s an area around there that is affected by that light. And here the judge\u2019s family, clerks, other people, all of those individuals are also affected by that. And I know that it puts families at risk, but it also, the intense scrutiny and criticism by powerful press and all those kinds of things that affects \u2026 And what you don\u2019t want is ever to have a judge who is so chilled by that kind of intense opposition, criticism, tax, so that they veer from that rule of law. Just wanted to add that.<\/p>\n

Jeremy Fogel: No, no, you\u2019re absolutely right and absolutely fair. So let me just turn to Professor Singh. So you, you\u2019re a human rights advocate. You\u2019ve been working now at two very, very good universities about these topics. I mean, what perspective do you have as somebody who\u2019s looked at this?<\/p>\n

Amrit Singh: Thank you, Judge Fogel. It\u2019s such an honor to be part of this discussion. Well, we know that democracy and the rule of law are in severe decline around the world. According to the latest figures which relate to 2024, about 72% of the world\u2019s population lived in some form of autocracy, that\u2019s from the Varieties of Democracy Institute. And the World Justice Project has estimated that there was a severe decline in the rule of law in many of the countries around the world between 2016 and 2023, there was about 78% of countries declined with respect to the rule of law.<\/p>\n

And so there is a global problem here, it\u2019s not just in the United States, but it\u2019s happened in other parts of the world. And judicial courage is important because judicial courage is the basis for judicial independence. And judicial independence is what stands in between autocracy and democracy. Judicial independence is composed of human beings who are judges who resist a pressure from outside, political or otherwise, to do something other than decide cases impartially on the basis of law, in fact. <\/p>\n

And so what we are seeing around the world is as autocratic leaders try to erode democracy and try to erode the rule of law, the first thing that they typically tend to do is to destabilize the judicial independence, destabilize judicial courage. But oftentimes, as we are seeing in the United States, judges are resolute, they follow what they\u2019ve always done as the other judges have said, and they can withstand that pressure, but that should not be taken for granted.<\/p>\n

Jeremy Fogel: Right. I think that\u2019s, if you were going to sum up in one sentence why we\u2019re here is what you just said is that judicial courage is so critical in maintaining our democratic institutions and we can\u2019t take it for granted and we can talk a little bit about why that\u2019s so.<\/p>\n

So as several of you have said, I mean the number of threats and the nature of threats has intensified. So the judges being called out in very harsh terms for decisions they make, having threats delivered to their homes, to their families, to their chamber staff. And then you have, and I think in one of our preparation calls, Judge Donald used the phrase, accelerant. You have the accelerant of social media that, so it\u2019s not just that you get a threat, but that the threat goes viral and hundreds of thousands of people see it or millions of people see it, and you don\u2019t even know where it came from. And you have things like the pizza deliveries which have been publicized, where judges who have made rulings that someone doesn\u2019t like get pizzas delivered to them in the name of the deceased son of a federal judge whose son was killed by a litigant.<\/p>\n

And these are unprecedented. I mean, I have told the story often that I had a case 20 years ago that was highly controversial. A lot of people were unhappy with my ruling, and I got maybe over the course of a month I got 2 or 300 angry emails, that was about it. It seemed like a lot at the time. You\u2019d get 2 or 300 angry emails in about 10 seconds today. And I think the intensity of the criticism, the intensity of the threats is something we\u2019ve never had to deal with before. And just wondering whether anyone wants to comment on that before we move on.<\/p>\n

Philip Pro: Well, if I could say on, as Judge Donald pointed out, this social media accelerates in an incendiary way some of these criticisms and when the attacks come, which has not been typical from the highest levels of the executive branch, for example, whether it\u2019s the president, the attorney general, someone that holds high political office, they\u2019re using that bully pulpit that they have and spreading it via social media gives it 10 times the attention or more than it would\u2019ve received 10, 15, 20 years ago and it has a corrosive effect.<\/p>\n

And as the professor said, we\u2019re we\u2019re fortunate in the United States, we have a history of judicial independence, that does make it easier for us. I mean, it\u2019s a cultural matter almost within the judiciary and within the government in this country. Our three branches of government have stood for 237, 238 years. They depend upon the mutual respect of each branch, the co-equal, but codependent branches, but the checks and balances. <\/p>\n

But the judiciary particularly also depends, because it\u2019s not the political branch where we\u2019re elected and can be voted out of office and so forth, we depend upon the confidence of the public to sustain us to support and help enforce rulings we make and the corrosive impact of these attacks that gives license to people to act out and send pizzas or other nefarious activities and just generally tries to discredit the image and the quality of the judiciary overall has a very, very corrosive impact, I think on the rule of law in terms of the public support,<\/p>\n

Richard Jolly: We have a question actually from the audience that is dealing with this idea of modern attacks on judges through various means. We mentioned the idea of the accelerant. They mentioned that a couple of days ago, the Washington Post editorial referred to a judge as an activist judge specifically in relation to the Planned Parenthood decision that was at issue there. And so these attacks seem to be coming and perhaps more common from all angles, not just new media, but what we might\u2019ve considered traditional media as well. And I wonder if that is part of an atmosphere in which people feel more comfortable making these attacks, whereas perhaps before they wouldn\u2019t have.<\/p>\n

Jeremy Fogel: Well, I mean, I\u2019ll take a stab at that. I\u2019m sure others would like to as well. I mean, I think judges have been called activists for a long time. I remember when I was sitting, there were people I sat with who were called activists, and sometimes the activists were liberal and sometimes the activists were conservative. And it\u2019s actually sort of a term of art in the sense that you decide cases based on the way you want the law to be rather than the way the law is. I think that\u2019s probably the 50 cent definition of an activist.<\/p>\n

But I mean that criticism has been out there for a long time. I think what\u2019s different about it is it\u2019s been used in a much more nefarious way. It\u2019s been, to use a word I don\u2019t like, but I think it\u2019s appropriate here, it\u2019s been weaponized, it\u2019s an epithet you can throw at somebody as a way of not only discrediting them but dehumanizing them. And I think you\u2019re right that I think the atmosphere has gotten a lot worse. Calling somebody an activist 20 years ago just didn\u2019t have the same valence. I don\u2019t know \u2026<\/p>\n

Bernice Bouie Donald: One of the unfortunate things too is that when it comes to the judiciary \u2026 Now, there are many people out there who don\u2019t know what they don\u2019t know. I mean, education, ideas about the judiciary are being shaped in these cultural silos, and people are in an echo chamber oftentimes. And so if an idea or an allegation is thrown out sometimes about the judiciary, writ large, people rally around that and that becomes a defining concept. <\/p>\n

It can also anger people who may then have a genuine belief that judges are out to get a particular entity or a particular ideology or a particular person. And it\u2019s hard to break through that once people get that idea. Because we judges who are still active and sitting cannot go out there and explain particular opinions, particular actions, we depend on our opinions to articulate our rationale, our reasoning for taking certain action.<\/p>\n

And as I think Judge Pro said earlier, because it has gotten so corrosive now, it is important for those of us who are no longer bound by the strict code of not talking about what\u2019s going on, it\u2019s important for us to go out there and explain to people in a fair and balanced way about the judiciary.<\/p>\n

And think about this, John Marshall took political courage back in his day to actually carve out the role of the judiciary and how important that role is and to establish that principle of judicial review. If he had done that in an era of social media, my gosh, I don\u2019t know what would\u2019ve happened, whether we even have this notion right now ensconced up in our judicial ethos, I don\u2019t know. But a lot of things can happen. And I think it\u2019s important though, that we make certain that the judiciary cues to its role and that whether we are elected judges at the state level, county level, or whether we are federal and or state appointed judges, that we maintain fidelity to our oath, whether that requires us to act courageously, but to be fearless in doing our jobs as we are sworn to do.<\/p>\n

Jeremy Fogel: Professor Singh, do you have a perspective on this from the academic side?<\/p>\n

Amrit Singh: Well, I think you\u2019re right that judges have been called activist judges for a long time, but that the epithets that now accompany descriptions of judges have become much more disturbing, vile, virulent, and viral because of social media. So I do think that while in the press people have opinions, there is a right to free speech in the United States. People can disagree with judges\u2019 decisions, but it has gone too far. The kinds of personal attacks on judges that we\u2019ve been seeing for a number of years now has gone way too far.<\/p>\n

Jeremy Fogel: Yeah, I think you can \u2026<\/p>\n

Philip Pro: I\u2019m just glad we\u2019re not reporters. Who knows what we\u2019d be called.<\/p>\n

Jeremy Fogel: Right? I mean, I think it\u2019s fine to call somebody an activist kind of in a reasonable conversation, what\u2019s somebody\u2019s judicial philosophy? Well, they don\u2019t like the way the law is, and they try to decide cases in a way that pushes it in a particular direction. I mean, that\u2019s how I think of it. And I would describe some of the judges I\u2019ve known of all political stripes as having that inclination that\u2019s, not calling them names. It\u2019s not saying that they\u2019re unhinged and crazy and hate America or things like that. I mean, it\u2019s just trying to think about different ways people think about the law. But the term is embedded in all of this other stuff, and I think that\u2019s really kind of unprecedented and unusual.<\/p>\n

Philip Pro: I think it\u2019s like the context in which things are said. It\u2019s fair to comment, as Judge Donald said, to criticize a decision that a judge makes. I mean, that is actually healthy. The system is designed to allow that even to encourage it. And that\u2019s the way we progress. It\u2019s when it goes, as the professor said, to the vile ad hominem attacks and repeated and repeated and calls for impeachment, for doing your job reductions or not giving the funding that\u2019s required to support the security of the judiciary, which means the public because they\u2019re the ones in the courts along with our staffs. <\/p>\n

That\u2019s when the words have a different meaning and tenor. And again, from where they come, the source, the people that are uttering these things as opposed to just some critic who has every right to make their commentary, but it\u2019s not someone who threatens to actually take action that they think they can take.<\/p>\n

Jeremy Fogel: Yeah. We will just mention in passing, and then I want to talk about some specific instances of courage, but several people have commented that we\u2019ve seen kind of a worldwide pattern of decline of judicial independence. And I got to work in a couple of countries that were directly impacted, Turkey and Hungary, both were countries that were considerably more democratic not that long ago, and I would not say either of them as a democratic country now. And one of the first things that happened was they went after the judiciary. And in Hungary, President Orban got the legislature to enact a mandatory retirement age, which is actually quite low and a bunch of people had to resign. And then he appointed people who were loyal to him. And in Turkey, they just fired a bunch of people and actually put some of the leaders of the judiciary in prison for, their crime essentially was ruling against the government.<\/p>\n

So we\u2019ve seen this in places. I think one of the saddest conversations I ever had actually was with a, when I was working in Uzbekistan, I met a prosecutor who had been there for a really long time and he\u2019d worked in the Soviet era and he said he had just hated coming to work because he had absolutely no leeway. He was just told what he needed to do and he had to do it and if he didn\u2019t do it, he would\u2019ve lost his job. So he had no independence whatsoever. And he said that over a 20, 25 year career, that was just the worst possible situation one could be in.<\/p>\n

And so apart from just the effects of the threats and the effects of the pizzas and the social media and all of that, I mean, it\u2019s just the idea that you couldn\u2019t do your job is really for people who are proud professionals, it\u2019s a very, very tough place to be. And we\u2019ve seen it happen around the world, and I think we\u2019re seeing some pushback on this here. And we talked in our preparation, there are some classic examples of people who were faced with that and didn\u2019t let it happen. And I\u2019m going to turn to Judge Donald again. I mean, there was a very, very well-known example of that in Alabama who we all revere. And maybe you could tell our audience a little bit about that.<\/p>\n

Bernice Bouie Donald: Sure. I want to start though with Judge J. Waties Waring who was from the district court \u2026<\/p>\n

Jeremy Fogel: In South Carolina, yeah.<\/p>\n

Bernice Bouie Donald: In South Carolina, yes. He was one of the earliest federal judges to strike down racial discrimination in the deep South. He dissented in a case in 1951, calling for the complete school desegregation three years before Brown versus the Board of Education. And he endured death threats, social ostracism, arson attempts, and ultimately had to leave South Carolina for safety reasons. He was a pivotal figure in the early judicial battles against Jim Crow.<\/p>\n

The one we most frequently talk about though is Judge Frank M. Johnson, who was from the middle district of Alabama. He was one of the most courageous civil rights judges in American history. He ordered integration of the Montgomery buses. He approved the Selma to Montgomery March and he desegregated Alabama schools, jails and public institutions, and he received constant death threats. There were crosses burned in his yard, his house was bombed. His family, of course, endured tremendous threats, and the threats were so severe and so sustained that I believe his wife ultimately had somewhat of a mental breakdown under the threat of all of these things going on. But he took an oath to obey the law.<\/p>\n

And I want to take this opportunity to say we live with the law, we take it for granted, but without men and women of conscience, men and women of courage, men and women of commitment, and men and women who are visionary, the law becomes simply words on a piece of paper because the law is not self-executing, as we know. And before we go further with the courage, I want to just tell you all, as I said before, this is personal to me because I was born after the first Brown case was filed, and we know that Brown was not just one case, but a series of them. And the Supreme Court in \u201954 when I was three years old, ruled that separate but equal is inherently unequal. And then they ruled on the [inaudible] in 1955.<\/p>\n

When I began school in 1957 as a first grader, and this was three years after Brown won, I began school in a two-room cinder block school for Black kids with grades one and two being in one room and grade three being in the other room and the rest of the kids going to school in a single room church across the cemetery. So there was one teacher at that church teaching grades four through eight, they would pull together church pews for grade four, some other church pews for grade five and on and on and on.<\/p>\n

That school that I started at had no indoor plumbing, no running water, no heat beyond a couple of gas stoves. And all of the books that we received came to us from our white counterparts with names already in them, already dog-eared, already highlighted. But it\u2019s these judges who exercise the kind of courage that I\u2019m talking about, made it possible for those of us who were really not protected by the blanket of justice, they made it a reality for our lives. And it took time because there was huge resistance by states. But those judges in the face of that opposition, in the face of that resistance, in the face of those threats held fast and firm to the law and making certain that these things became a reality, that the law became a reality in the lives of the unpopular and the underserved. There are other examples but I will give my colleagues time to say something.<\/p>\n

Jeremy Fogel: Well, that was pretty good. So Judge Pro, do you have others to share?<\/p>\n

Philip Pro: Well, I\u2019ll share one, and again, it\u2019s not \u2026 Within the United States. I think that all of our judges, as I said earlier, display a certain amount of courage. And because they do, because culturally within this country, our judiciary has been independent for so long when everybody has a certain amount of courage in the process, and I think this is true of many public service sectors, you don\u2019t need some giant or hero to step up. I mean, people do their jobs, they do it well, they do the right thing. Occasionally, a Frank Johnson or Judge Waring, as was mentioned, comes along.<\/p>\n

But I would suggest to people, and I think the professor touched upon this to a degree, we take things for granted and you have only, I visited like Judge Fogel, I visited more than 25 countries over a 20-year span when I was on the bench for rule of law programs in countries, a lot of former Soviet states and others. The Republic of Georgia is one I visited many times, and the judges were making tremendous strides. And due to the efforts of judges and young lawyers, the Rose Revolution took place in the early 2000s, I think 2004, maybe a little before that. It was a tremendous alteration and a restructuring was taking place of the judiciary at this time.<\/p>\n

Russia invaded South Ossetia and Abkhazia the regions in Northern Georgia, and they went to a city called Gori, which is where Joseph Stalin was born about 40 miles, 50 miles from the capital of Tbilisi, and they attacked that city. They basically took it over. They parked a tank right outside the courthouse. A woman had been killed at an apartment complex next door hanging laundry the day before, a new day starts and the judge, the only judge in Gori goes out in the morning and personally raised the Georgian flag on the flag post right in front of that tank.<\/p>\n

Now, that\u2019s a display of courage, human courage, I don\u2019t know about judicial courage, but my point is we do take things for granted. If you visit countries that don\u2019t have a culture, a history of independent judiciaries rule of law, but desperately want to develop it, and that you\u2019ll find young lawyers and young judges in every country desperately want to have that. It was something I could proudly go and talk about how it works in our system, and they could adapt things to fit their culture, their history, and so forth.<\/p>\n

If I were to go back to the Republic of Georgia today, or to Malawi or to Kyrgyzstan or to many of other countries I went to and have that same discussion, I\u2019d be a little bit hard-pressed to say the same kinds of things because of what we\u2019re seeing right now in this country. And we could be perfectly well looked at and say, \u201cWell, you\u2019re not such a model, are you right now with what\u2019s going \u2026\u201d We still are. I believe firmly we still are, and our judges are being courageous, every one of our judges are being courageous by sticking to the principles that we hold so dear. But it can be gone very quickly with the kinds of incursions that we see and that\u2019s why I think it\u2019s so desperately important that everybody speak up on the matter.<\/p>\n

Jeremy Fogel: Professor Singh?<\/p>\n

Amrit Singh: Yes. It\u2019s so interesting, Judge Pro that you talked about Georgia, the Rule of Law Lab just issued a report on the massive autocratic takeover of Georgia in recent times.<\/p>\n

Philip Pro: Oh, the Georgian Dream Party has completely warped. They have not been able to succeed, which is really sad.<\/p>\n

Amrit Singh: Right, right. And of course, the capture of the judiciary was a centerpiece of the Georgian Dream regime. And of course, I agree with you completely that the United States is not there yet. And what separates the United States, I think a key factor that separates the United States from countries like Georgia is the fact that it has a very strong and independent judiciary that has been defending the rule of law, that has featured heroes and heroines in the form of judges who have been doggedly doing their jobs, following the rule of law, notwithstanding the systemic sets of intimidation tactics that they\u2019ve been experiencing.<\/p>\n

Jeremy Fogel: Yeah, a case that I really have thought about a lot, and in the pantheon of cases, it\u2019s actually a very routine case. It was the case of Kilmar \u00c1brego Garc\u00eda. It\u2019s a deportation case, and this was the man who was deported to El Salvador, even though he had no connection to El Salvador without any hearing whatsoever. He was just taken off the street and sent there.<\/p>\n

Bernice Bouie Donald: Jeremy, something has happened. I can\u2019t hear you.<\/p>\n

Jeremy Fogel: Oh, I\u2019m sorry. I\u2019m not muted.<\/p>\n

Philip Pro: I can hear you Judge Fogel.<\/p>\n

Bernice Bouie Donald: While you get your sound fixed, I\u2019ll just say that as you were talking about that and we were talking about courage, there have been times when we have not been courageous. And I think it\u2019s worth mentioning, think about the case of Korematsu where the wartime court largely deferred to the military and upheld the incarceration of U.S. citizens without evidence of disloyalty. Those cases marked a period of judicial failure for us. <\/p>\n

But then Judge Marilyn Hall Patel from your state later on, had some of those cases and she showed remarkable courage in implementing and effectuating remedies years hence, looking back on that as a time when the court could have dropped the ball. And I see your volume is back, so please continue.<\/p>\n

Jeremy Fogel: No, no. And that\u2019s a great example actually because Korematsu was hardly the finest hour of our independent judiciary. But it is interesting that Judge Patel, and who was my colleague, and I remember actually being there when that proceeding was taking place, went back and reviewed what had happened, and they actually set aside the determinations of the original court on behalf of the Korematsu family, which was quite remarkable.<\/p>\n

I was actually going to mention the \u00c1brego Garc\u00eda case, which as I said was a deportation of a undocumented alien who was suspected of being a gang member. He was not given a hearing and he was sent to El Salvador. And what I think is remarkable is that the system said, \u201cWhatever that guy\u2019s story is, whether he\u2019s a gang member or not, whether he\u2019s a good person or a bad person, he was entitled to have a hearing, and he didn\u2019t get it.\u201d<\/p>\n

And one of the judges I have just the deepest admiration for is J. Harvie Wilkinson, who\u2019s on the Fourth Circuit, and I think he\u2019s very widely revered in the judiciary as somebody who takes judging very seriously. And he wrote a very pithy opinion just saying, \u201cYou do not just take people off the street and stash them in a prison someplace. That is not us. That\u2019s not how we do things.\u201d <\/p>\n

And just putting labels on people, I think if you were going to say, \u201cWell, who\u2019s going to get criticized for being a crazy liberal activist?\u201d The person at the bottom of the list would be J. Harvie Wilkinson. And it\u2019s just that it\u2019s so basic to our how we do things that people get evidence-based decisions \u2014 they get hearings, due process and they get judges who apply the law honestly.<\/p>\n

And those three pillars, that\u2019s what we mean when we talk about the rule of law and judicial independence. And we\u2019ve been pretty darn resilient. But one of the things, we actually talked about it in a webinar that BJI did a couple months back. There was a judge, and he\u2019s been public about it, so I\u2019m not revealing anything I shouldn\u2019t, Judge McConnell in Rhode Island issued a temporary restraining order. That\u2019s all he did, just issued a temporary restraining order on a budget-related matter, and he got the full treatment \u2014 he got the phone calls and the pizzas and the people calling his chambers all day and all night.<\/p>\n

And so we\u2019re kind of in an atmosphere where even the basic acts of judging, you don\u2019t have to be Frank Johnson, you don\u2019t have to be anybody, you\u2019re just the judge coming to work and doing your job and that puts you in the crosshairs if the case is one that somebody cares about. And I don\u2019t think we\u2019ve ever been here before. I mean, maybe I\u2019m not a great historian, but I don\u2019t think we\u2019ve ever been here before. And I think it\u2019s really calling on the courage of the judiciary as an institution.<\/p>\n

Richard Jolly: What can judges do as we go forward? And not just judges, but lawyers and the public as well. There\u2019s been a handful of questions coming from the audience thinking about how this conversation and looking to the past of courageous judging in our past, looking at courageous judging internationally, what can be done as we go forward, not just by judges, but by other actors in this system, which yes, includes attorneys, includes all of us.<\/p>\n

Jeremy Fogel: Let me turn to my colleagues. Go ahead.<\/p>\n

Bernice Bouie Donald: OK. I wanted to say I\u2019m just a firm believer in education and speaking up and speaking out, and I think that you don\u2019t start, or you don\u2019t do it just by engaging in the argument that\u2019s before this. I think you start beforehand preparing people. And so I would encourage members of the bar and judges to the extent they can to let\u2019s get out into communities and speak to students in schools, not just about the hot button issue of the day, but about what the rule of law is, how it\u2019s applied, what the role and function of the three branches of government are, and talk about some of these things that we\u2019ve talked about today.<\/p>\n

Because we\u2019re talking about these broad principles today and about judicial courage, but if you don\u2019t have an independent judiciary for that person who goes to court because maybe they\u2019re at risk of losing their home because of the landlord or the mortgage holder, or the person who goes to court on whatever the issue is, that person goes expecting that they as an individual will be able to go in and be heard and get a ruling on whatever the issue is based on law and facts. If we no longer have an independent judiciary, all of that is at risk and so who protects those basic rights that our statutes, laws and our constitution provides for us? And that\u2019s what it\u2019s all about. Everyone is affected, but we oftentimes don\u2019t make those connections.<\/p>\n

Jeremy Fogel: So we really need to make \u2026<\/p>\n

Philip Pro: I think it goes back \u2026<\/p>\n

Jeremy Fogel: Yeah, go ahead, Phil.<\/p>\n

Philip Pro: I think it goes back to basic civic responsibility, civic virtue. Everybody in this audience, everybody listening or anybody that might hear this discussion, has responsibilities as a citizen of this country, not just to inform themselves and act accordingly, but to encourage others to do the same. Civic education is fundamental. We need it so desperately, but we can take it much far beyond that. We\u2019re all members of different mini communities in which we may be opinion leaders. It could be social, professional, business, religious, family, pick a genre where you\u2019ve got a mini community where you hold a place of some respect and can speak out on things and take the time to educate your other members of that community on their responsibilities as citizens.<\/p>\n

We talked before about, it was Michael Kammen, A Machine That Would Go of Itself, the Constitution is not a perpetual motion machine. It requires the energy of an informed electorate, of a citizenry that\u2019s engaged and we can all do something. And if we can, we really should do something about it. So none of us are powerless. <\/p>\n

We need to support \u2026 Look, we rely as judges on the attorneys to present the cases before us fully on each side without fear or favor as well. And according to the law that applies in a case, they need our support, they\u2019re under attack. They also need the support of the public to respect what they\u2019re doing and not to allow them to be intimidated and fear losing their careers because they represent some interest that\u2019s adverse to someone with great power. That\u2019s the complete opposite of the rule of law where everybody has equal treatment theoretically under the law.<\/p>\n

Jeremy Fogel: Professor Singh.<\/p>\n

Amrit Singh: Yeah, I completely agree. I think that obviously there\u2019s an inherent tension between being a judge and speaking out to the public, but perhaps at least looking at how judges in Poland, for example, dealt with the rule of law crisis there, it might be time for judges and those associated with judges, including lawyers, to really take an affirmative step forward to communicate that the attacks on judges in the United States is ultimately an attack on access to justice for people who come to courts. It\u2019s not just about protecting those judges, although those judges are crucial for defending the rule of law, but ultimately it\u2019s everyday people on the street who need to ultimately go to court to vindicate their rights. They need those judges to be able to do their jobs.<\/p>\n

So I think that sometimes gets lost in translation because when we speak, because concepts like the rule of law and judicial independence can often seem very abstract to people. And I think there\u2019s a real kind of, there\u2019s a challenge of communicating, as Judge Donald said, to everyday people, to children when they\u2019re young and they need to learn about the separation of powers and the role of courts. There\u2019s a need to communicate to them that ultimately the beneficiaries of courageous judges is the people themselves<\/p>\n

Jeremy Fogel: Yeah, that\u2019s really \u2026<\/p>\n

Bernice Bouie Donald: Jeremy, can I just say one other quick thing? If you don\u2019t mind.<\/p>\n

Jeremy Fogel: Please, please go ahead. Yeah, no.<\/p>\n

Bernice Bouie Donald: One of the things I think we also need to do, and I think lawyers and the public and everybody can help us on this, and that is to reduce the intense tribalism that is at play these days. And we have to learn, and Jeremy can help us a lot with this, Judge Fogel rather, and that is we have to learn to talk across difference because we\u2019ve now become so siloed that we don\u2019t communicate past the ideology, don\u2019t communicate past all of these areas of difference that we have, and we\u2019ve got to be able to address that if we\u2019re going to really move forward.<\/p>\n

Jeremy Fogel: Yeah, I obviously completely agree with that. I think we are stuck in some ways because people do live in silos and they get their news from people who are already inclined to agree with them. But one of the ways you can cut through that, and I think Professor Singh actually identified a couple where you\u2019re just sort of talking about what the impact would be of not having an independent judiciary. <\/p>\n

But I think another one is to just tell stories. And I\u2019ve talked a lot to judges who\u2019ve been the targets of threats, and judges are very recalcitrant. I mean, as a group of people, they don\u2019t want to be out there. They don\u2019t want to attract criticism, they don\u2019t want to attract attention. And then the code of conduct really limits what they can say anyway, so it\u2019s a self-fulfilling bubble in some ways.<\/p>\n

But man, I was at home, I got a call from my daughter or my son, my young adult son or daughter, they just got this pizza delivered to their house that said Daniel Anderl, it was the name of Jed Salas\u2019s son. And they\u2019re freaking out. And, \u201cMom, what am I supposed to do?\u201d Or, \u201cDad, what am I supposed to do?\u201d <\/p>\n

And just sort of telling stories that resonate with people regardless of what their politics are. The kids didn\u2019t do anything, they just happened to be the children of a judge who is controversial and they\u2019re having things happen in their lives that are really, really bad and really upsetting and threatening. And what about the people who work in a judge\u2019s chambers and they pick up the phone and they get this unrelenting stream of obscenity directed at them.<\/p>\n

I mean, this is stuff that\u2019s happened. I mean, I\u2019m not making this up and I\u2019m not being hyperbolic. The judges can just tell these stories, or others can tell those stories. I think it does start to sink in, and I\u2019ll just give a shout-out to Esther Salas as the judge in New Jersey whose son was killed. One of the ways she\u2019s dealt with that loss in her life is to keep telling her story. And it\u2019s really made a difference. I mean, she\u2019s just said, \u201cWe need to provide for judicial security because the job can be dangerous.\u201d And it took a lot of courage for her to do that, and she\u2019s been out there doing that.<\/p>\n

So I think we need to humanize ourselves, we as an institution, and we need to tell our stories, and we need to bring this down to a level where our political differences don\u2019t matter because on this level, they don\u2019t. I mean, our political differences matter in some other way, but they don\u2019t matter around, you shouldn\u2019t be threatening people\u2019s kids. You shouldn\u2019t be threatening, you shouldn\u2019t be saying this unbelievably horrible stuff that\u2019s said to people, you don\u2019t need that to make your political points. And I think that\u2019s \u2026 We need to find a way to really paint that picture and figure out how to push back against it.<\/p>\n

Philip Pro: Jeremy, what you\u2019re doing here today by putting together with others this program is a perfect example. A lot of the audience might not know, but you and Bernice and I are three of about 55 now retired Article Three judges who\u2019ve come together and formed under the leadership of some of our other colleagues, what\u2019s called the Article Three Coalition, which is a group of retired Article Three judges who can do just that. <\/p>\n

We\u2019re able, and we are comprised of judges appointed from President Carter on down, at least through President Obama, probably evenly mixed between judges who were appointed during Republican and Democratic administrations, and yet we exist in exhibit exactly what you described. And if there are, I\u2019m not even sure there are really very many political differences of any kind amongst us at all, but on the issues that we\u2019re talking about, there\u2019s no daylight, there\u2019s no separation. It\u2019s not like group think, but we do speak with one voice.<\/p>\n

Jeremy Fogel: We\u2019re defending an institution \u2026<\/p>\n

Philip Pro: Absolutely. And principles \u2026<\/p>\n

Jeremy Fogel: It\u2019s an institution that matters to people, and I think that\u2019s our takeaway. I think we\u2019re just about out of time, aren\u2019t we, Richard?<\/p>\n

Richard Jolly: I was, I was going to \u2026 Unfortunately, this is with great disappointment that I have to shut down the conversation because this has been one of the most inspiring and illuminating, and I think that\u2019s really what we wanted to accomplish with this conversation is both to inspire through the acts of courage that judges bring even to the daily decisions that they make, but also to illuminate that courage because so often judges don\u2019t make that clear. People don\u2019t hear that. They don\u2019t know that, it\u2019s not widely known, and this idea of the work you guys are doing with the Article three Coalition is so incredibly important and the courage that you guys have all exhibited through your careers. I just want to say thank you, and I\u2019m sure many in our audience would like to say the same.<\/p>\n

So yes, please thank \u2026 I want to have everybody, thank everybody, all of our participants today in being a part of this conversation. I want to thank the executive director of the CJRI, Anne Bloom. I want to thank Berkeley Executive Education and everyone that helped make the logistics of today\u2019s program possible. I\u2019d also like to give a huge thing out to the generous gift of the Robert L. Habush Endowment, which has allowed us to continue these important conversations. Unfortunately, this is our last conversation of the year. We\u2019ll be taking time off going into next semester, though we will be returning with more important programs covering these and other topics. Thank you again everyone.<\/p>\n

Jeremy Fogel: Thanks for having us.<\/p>\n

Amrit Singh: Thank you.<\/p>\n

Jeremy Fogel: Thanks so much.<\/p>\n

Philip Pro: Thank you.<\/p>\n

Jeremy Fogel: Bye everybody. Everybody stay well.<\/p>\n

(Music: \u201cNo One Is Perfect\u201d by HoliznaCC0<\/a>)<\/p>\n

Anne Brice (outro): You\u2019ve been listening to Berkeley Talks, a UC Berkeley News podcast from the Office of Communications and Public Affairs that features lectures and conversations at Berkeley. Follow us wherever you listen to your podcasts. You can find all of our podcast episodes, with transcripts and photos, on UC Berkeley News at news.berkeley.edu\/podcasts<\/a>.<\/p>\n

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