Judge Robert Lasnick (3:29)

Thank you very much, Talia. Glad to be here.

Host/Interviewer (possibly June Thomas or Sara Burningham) (3:31)

And thank you for being our first sitting judge. I wanna be clear that there are so many ethical rules that really cab in what you're allowed to talk about. So when judges are quiet, it's not because they're grumpy or taciturn, it's that they're really not meant to comment. And I think my first question is, doesn't that just massively disadvantage the whole bunch of you not being able to talk?

Judge Robert Lasnick (3:57)

I think most of the time we are kind grumpy and that's why we don't talk. And I think it's fair to say that we're better off with some of the judges not talking. But other judges, I think, really could present a very human, but also a very enlightening exposure to the public. I'm really proud of what federal judges do. And I wish people could see us doing what we do on the bench more. For instance, cameras in the courtroom. I wish they could see and hear from us speaking about those areas that we can talk about. What is it that makes the third branch different? What is it? What does it mean to have a lifetime appointment? What does it mean to be a district judge or an appellate judge or a Supreme Court justice? How is it different? Why is Article three written the way it is? Those are things we can talk about, and I wish we would.

Host/Interviewer (possibly June Thomas or Sara Burningham) (4:53)

More often, I'm thinking of before she came on the Supreme Court bench, Justice Elena, then Elena Kagan said, I wish people could watch oral arguments, even at the court, because they'd fall in love with what the court does. And then when she got on the bench, she kind of changed her mind. But I do think that the fact that what the public sees is confirmation hearings, which are the most toxic, pernicious version of what a judge does, and then they shut off the camera and we don't get to see everything that happens after the audition. It has to be bad. That bargain seems like it's the worst of both worlds.

Judge Robert Lasnick (5:35)

I agree with you completely on that. And part of it maybe is my journalism background. But I answer questions when I can. I say what I can't answer. I make myself available to members of the media who just want to bounce something off me. Did I get this right? Do I understand it? You know, we have a lot of things that we do procedurally that are very difficult to figure out. You having clerked for the ninth Circuit, know that the en banc system makes people's eyes roll and they misunderstand it.

Host/Interviewer (possibly June Thomas or Sara Burningham) (6:07)

Now you're going to have to explain what the en banc system is for our listeners.

Judge Robert Lasnick (6:10)

Well, that'll take the rest of the hour. You know, we have three judge panels and then if the aggrieved party that didn't win before the three judge panel thinks it's such an important issue, it should go to a larger group of 9th Circuit judges. 11 Only drawn out of a bingo container with the chief judge. Now Sid Thomas from Montana, and then 10 other of the active judges. And they rehear the case. It's not an appeal from the three judge panel. The three judge panel's opinion goes away and it's reheard by the en banc. And a lot of times the media thinks that the en banc is an appellate stop after the three judge panel and that all the judges are on the en banc, not just 10 and the chief, but the entire court. And so you get a lot of misunderstanding in there. How do we pick the chief judge? That's a complete mystery to a lot of people. And it's a formula. The most senior of the active judges who is not yet 65 and has not yet been chief judge. And it's different than the Supreme Court where the chief justice is appointed and stays as chief justice. Parenthetically, because when you pick the chief judge of a district or a circuit the way I just described, you could end up with somebody who really isn't best suited to be chief judge. And that's happened. So the, the federal judiciary looked at maybe we should change the way we pick chief judges. And they looked at how popes are selected and how deans are selected and how CEOs are selected. And the RAND report came back and said there's no consensus on what's the best way, but what you do is the worst way. So we decided to keep it.

Host/Interviewer (possibly June Thomas or Sara Burningham) (8:03)

Ah, okay. I was going to say which did you pick, the pope method or no, you went with same old, same old.

Judge Robert Lasnick (8:09)

No chimney and smoke, just same old formula.

Host/Interviewer (possibly June Thomas or Sara Burningham) (8:12)

I want to talk about every single thing you just said, but I want to explain senior status because you took senior status.

Judge Robert Lasnick (8:19)

Another formula.

Host/Interviewer (possibly June Thomas or Sara Burningham) (8:20)

Right. And folks I think don't know what that means. And I think when we're in a very overheated climate about judicial vacancies. Can you explain what the process is? You're a full time sitting judge and then you take senior status. How does that work?

Judge Robert Lasnick (8:37)

The formula is you can go on senior status when you are 65 or older and your years of service as A federal Article 3 judge added to your age of 65 equals 80. The rule of 80. So if I'm 65 and I have 15 years of service, I can go on senior status because 65 plus 15 is 80. But if I'm 65 and I only have 10 years of service, I can't go on senior status for another three years because 66, I'll only have 11.

Judge Robert Lasnick (continuation or clarification) (9:13)

67, I'll only have 12, but by 68 I have 13. And now I reach the rule of 80. When you go on senior status, it allows the President to appoint someone to.

Judge Robert Lasnick (9:25)

Take your active position.

Judge Robert Lasnick (continuation or clarification) (9:27)

And so I went on senior status in January 27th on my birthday, and 2016 when I turned 65, because I had 16 years of service and therefore actually 17 years of service and I added up to the rule of 80. But three and a half years later, I'm still not replaced yet because either the President nominated someone who didn't receive a hearing or someone has been talked about for nomination but also didn't get a hearing. And when Congress, the Congress where that nomination is made, expires, we go back to square one. And so right now, my position and three others in the Western District of Washington are open where the judge is on senior status but without a replacement. And that's very difficult for a court because senior judges tend to want to cut back their caseload, but only want to do so when someone has been appointed to take over that position.

Host/Interviewer (possibly June Thomas or Sara Burningham) (10:30)

So you're not still going at 100% of your former caseload, are you?

Judge Robert Lasnick (10:33)

I'm not 100%, but I'm higher than.

Host/Interviewer (possibly June Thomas or Sara Burningham) (10:37)

Than you wanted to be?

Judge Robert Lasnick (10:38)

Yes. I'm up in like 3/4 and such.

Host/Interviewer (possibly June Thomas or Sara Burningham) (10:41)

And you're saying this very civilly and politely, but it's in fact, I think a cause of huge frustration that there are enormous number of judges who would like to be playing with their grandchildren who are still sitting for the indefinite future.

Dahlia Lithwick (10:57)

Right.

Host/Interviewer (possibly June Thomas or Sara Burningham) (10:58)

I mean, this is a problem.

Judge Robert Lasnick (10:59)

It is a problem. And we've tended to go through peaks and valleys in getting judges confirmed. But if you have senators from one party, as we do in Washington State, and a President from the other party, there needs to be a mechanism for reaching consensus. We have had a bipartisan merit selection panel in our district since 1998. I was the first one that came out of that process. And I can honestly say, Dalia, that if you look at the judges who were appointed by Ronald Reagan and George W. Bush and the judges who were appointed by Bill Clinton and Jimmy Carter, there's no difference in what we do. We are judges. There's no adjective in front of our name as to who appointed us, or you're the black judge or the Jewish judge or the woman judge. We are judges, and in the best sense of the word, we're federal judges who, as I say, we would generally handle each case almost exactly as our colleagues would. And I think this move to politicize who judges are so that you're a Republican appointed judge or you're a Democratic appointed judge or you're a woman judge or a minority judge is very bad for the federal judiciary. And I think that was behind Chief Justice Roberts finally speaking out to say we don't have Obama judges and Bush judges, we just have Article 3 federal judges.

Host/Interviewer (possibly June Thomas or Sara Burningham) (12:32)

Now a cynic is going to challenge you on that, the same way most people challenged Chief Justice Roberts when he said it. And the pushback was, oh, of course there are different judges. And of course, you know, you are reflective of the president who appointed you. You just have to say this to try to look oracular and magical.

Judge Robert Lasnick (12:55)

Yeah. And notice I didn't say it was true everywhere. I said it was true in our district. But unfortunately, it has changed on the US Supreme Court, where everyone is totally predictable. You've lost the David Souters, Sandra Day o' Connors and John Paul Stevenses, and they've been replaced by people who have been vetted to work into a certain philosophy. And I think that's very unfortunate. But I think it's there at the US Supreme Court, to a lesser degree at the circuit court, but still at the district court. I think we have more no adjective judge.

Host/Interviewer (possibly June Thomas or Sara Burningham) (13:34)

And I just want to ask journalistically, because I know one of the things I've heard a lot from judges, from federal judges when they give me their laundry list of complaints about journalism ranking far higher than not understanding the en banc system is the complaint that we throw in appointed by Clinton after their names. And my editor would say that's really useful and important information.

Judge Robert Lasnick (14:00)

Judge Lasnack, I couldn't argue with your editor. It is important information, unfortunately, and I fought that for a long time. But the reality is there, it is necessary. And when you have the President of the United States Criticizing somebody as who appointed them, that's an Obama appointee. So therefore it sends a message, I think that he wouldn't necessarily do that as a Clinton appointee, since it was his Clinton who appointed his sister to the circuit court after she had been appointed by a Republican president. You used to see that a lot more where a person would get to the district court appointed by a president of one party and the circuit court appointed by a president of the other party. So based on their body of work, not based on who they were loyal to.

Host/Interviewer (possibly June Thomas or Sara Burningham) (14:51)

So you're. I know I don't want to go round and round on this, but I think that you're describing when Chief Justice Roberts says, we don't have Obama judges and Bush judges, we have judges, to me, that's very lovely and aspirational. To you, it's still, as a predicate.

Judge Robert Lasnick (15:10)

Largely true at the district court level. Yes.

Host/Interviewer (possibly June Thomas or Sara Burningham) (15:13)

Okay. Can you just talk a little bit about how long you wanted to be a judge? Did you have little black robes when you were a kid or did you. I know you. You meandered your way even to the law. I know you were. We have to talk about your background in journalism, but I know this wasn't a straight line, but when did you say, I want to be a judge?

Judge Robert Lasnick (15:33)

I think it was when I was trying cases in the 1980s as a deputy prosecuting attorney in King county, and I saw how important it was to have a trial judge who could control the courtroom, but make sure that everyone got a fair shake, the defendant, the prosecution, the victims, the jurors, the witnesses, and the like. One of the great things about being a general assignment reporter is you learn something almost every day because you're assigned to work on this story or that story. Well, in the trial court, you learn something on almost every case you get because you're dealing with a patent for running shoes one day, and you're dealing with an employment discrimination case in a field you never thought about in another case, and you have a criminal case that involves the Internet and people from Ukraine. So I love the fact that I'm still learning every day about something very interesting while I'm also trying to control the courtroom, deal with jurors and witnesses, and give everybody a really fair trial. And when you've, you know, when you do that, and you kind of know it yourself. But, you know, I've had people say to me at the end of long cases, a couple of criminal cases where the defendants who had been through the system so many times said, you know, judge you did a really good job. And I said, well, coming from you, that means something because I know you've seen a lot of trials and a lot of judges, so the winners always compliment you. But when somebody who's lost and been convicted says, you did a great job, that makes you feel good.

Host/Interviewer (possibly June Thomas or Sara Burningham) (17:09)

What proportion of your time, if you had to lay out the pie chart, is trying cases? What proportion is reading and writing? What proportion is going around and giving. You do a lot of speaking and a lot of panels and a lot.

Judge Robert Lasnick (17:23)

Of how does it, you know, in state court? I was state court judge for nine years before I was appointed to the federal bench. Was trying one case after another, civil and criminal, and it was fun, but it was draining because your reward for finishing one is getting another in the federal court system. And it's changed over the 20 years. We're seeing the vanishing civil jury trial for various reasons. Expense of discovery, fear of what juries might do with damages awards, but also a diminishing bar that's comfortable trying cases. They just don't have the experience and they're a little afraid of jury trials, whereas they're more comfortable doing mediations or arbitrations or things like that. Then judges themselves are being trained. Not to the point that I actually went to a seminar once where the federal judge who was explaining how you deal with an employment discrimination case basically said, if you end up going to trial, to a jury trial, in this case, you are a failure. I don't think that's true. We need to have some cases go to trial. That's how the law evolves. That's how the common law develops. That's how courts get to look at it and say, you know, that it's time for a policy change here, and if we push all these civil cases away from the courtroom and jury trials, we're doing a disservice to our justice system. And that's why the reason I'm here is this NYU Civil Jury Project to try to get judges to think about ways we can bring back the jury trial in the criminal area. Because federal prosecutors have so much control over charging, we've really become a plea bargaining criminal justice system. And it's the odd case that goes to a jury trial. So it's very much changed, and I don't think it's a good thing.

Host/Interviewer (possibly June Thomas or Sara Burningham) (19:19)

You just said something that struck me as slightly astonishing. I've always thought the closing of the courthouse doors and the decline of cases going to trial was just a function of expediency and laziness. And systems. You're saying young lawyers don't want to do this work?

Judge Robert Lasnick (19:36)

Well, I don't think they get a chance to do it. And they're scared, you know, their first few years in a firm, they might be looking in a dark room at electronic discovery, read a bunch of emails and text messages, and they are not used to being in the courtroom. Some of our judges, like Judge Peckman, rewards people by granting oral argument on motions if they use a young lawyer, a woman lawyer, a minority lawyer. And Jack Weinstein's doing the same thing in Eastern District in New York. So we're trying to develop reasons for the younger lawyers to get their experience in the courtroom, even just arguing motions. It's getting harder and harder. But, you know, I think what we did is we. We said at one point, alternative dispute resolution should be utilized. It. And it offers great relief for way too expensive trials and for overworked federal judges. We're not overworked. We can do more. And that alternative dispute resolution still has a place, but we've promoted it, I think, unfortunately, and unfairly, to the right way for judges to almost coerce people into doing some sort of alternative dispute resolution. So I think we need to reclaim our role as people who preside over the justice system, not just the resolution system.

Host/Interviewer (possibly June Thomas or Sara Burningham) (21:06)

And where does the cost of the justice system filter into all this? And I'm asking in part because a judge told me just this week that in her court parties can't get a court reporter unless they pay for it now. And I was like, how would you have a record? How could you have an appeal? And she said, yeah, it's a problem.

Judge Robert Lasnick (21:26)

I mean, nothing is funded well in the state system. That's very, very true. In the federal system, you know, we've been very successful getting budgets from Congress because of great advocacy from the judges and the administrative office to show what we do and what resources we need to get the job done. I mean, we pay for federal defenders out of our budget, and that's a big ticket item. We do us probation and pretrial. That's a big ticket item. And we do cases with a caseload that is very challenging sometimes if we didn't have our senior judges to help out. And in our district, we have judges in their 80s and 70s who are trying more than a half a caseload and carrying more than half a caseload. If we didn't have those senior judges, we could not. We'd be so backed up, it would be a disaster. And I think the bar needs to step up more and say, give the judges the resources they need to get the job done.

Host/Interviewer (possibly June Thomas or Sara Burningham) (22:29)

So this dovetails into this thing that I know you've been thinking about and working on so hard, which is the relationship between race and the justice system. And I know you've done a ton on implicit bias and access to justice, but I think this is an issue that maybe has not surfaced in a while because there's so many other things going on. But this is a very, very real problem in the, in the, you know, both the state and federal justice systems.

Judge Robert Lasnick (22:59)

It is, and we've tended to want to ignore it in the federal judiciary. Frankly, you know, I was fortunate to be on the Judicial Conference U.S. which each circuit has a chief circuit judge and a district judge selected in various ways. And we meet twice a year in Washington, D.C. it's chaired by the chief justice and it's the policy making body for the federal judiciary. But in my time on the Judicial Conference and Chief Justice Roberts appointed me to the executive committee too, I wanted to try to get us to add a new committee on fairness, racial fairness. We have one in the 9th Circuit and I'm on it. And it really is looking at issues that are just not getting attention. Pretrial release, who gets it, who doesn't. What do the statistics say about minorities and the like? Sentencing? We know that there's unfairness in sentencing based on race. Where does it come from? What can we do about it? And I thought that for a while. My idea was being well received, but ultimately the decision was made. We're not going to have a separate committee, we're not going to have a separate task force, but we're going to ask each one of the standing committees to look at racial fairness within the context of what they were otherwise charged with. And frankly, I don't think that was a good decision. I respectfully disagree with that one. And I'm trying to do what I can in the 9th Circuit to bring back a concept of we have to deal with implicit bias. We have a video that was done developed in our district that from the bench and the bar and the academic community to deal with the issue of unconscious or implicit bias. And we now show it to every jury, civil and criminal. And we're getting wonderful feedback from the jurors about how it made them slow down, made them think if that person was a different race, would I be looking at this case differently? And I we need to break out of our reticence to ever change. And that's really what's behind it. It's not that there are overt and racist people. It's just that there's a discomfort in dealing with certain issues. But a little bit, the federal judiciary is kind of like the difference between state and federal states and the federal government in that the states are the labs. Right. For trying things out. Well, we have a lot of districts, federal U.S. districts, courts that are trying things out. And we tried out the video. It's now being used in Northern District, California. It's being used in state court, municipal court. We've had tons of interest in it, and it's getting a lot of attention. It might go from set it from the top down, it'll go from the bottom up. And there are many people. I just heard Judge Bob Conrad in North Carolina is having courtrooms built in the Jeffersonian style in a new annex where the jurors will be in front of the judge. So the jurors have their back to the judge looking out at the witness stand. The witness will be facing both the judge and the jury straight on, and then the lawyers will be on either side. This is how it was in Jefferson's time to emphasize that the judge and the jury are the ones who are making the decision. The judge on the law, the jurors on the facts. And they would have a different perspective and view. Now, I'm a Hamiltonian, not a Jeffersonian, so I don't want that in my courtroom. But there's an example of people thinking outside the box. Let's try it and see and see what their reactions are.

Host/Interviewer (possibly June Thomas or Sara Burningham) (26:54)

Does that mean that you're in perpetual conversation that we don't know about with the social scientists and with psychologists? I mean, is that a. Where do these notions, where are they born?

Judge Robert Lasnick (27:06)

I wish I could say yes to that question because I really think that we could learn a lot from social science. And in the area of implicit bias, that is absolutely true. And we were influenced by Song Richardson, who's now the dean at UC Irvine Law School, and Jennifer Eberhard at Stanford, and other writers on implicit bias. And we took that to heart, but we don't do that enough. You know, there's the federal judge joke. I don't know if you've heard it. How many federal judges does it take to change a light bulb? And there's two answers. One is just one. He holds up the light bulb and the entire world revolves around him. But the other one, I think is more spot on is change. Change? Who said anything about change? We just don't think we should change. And when you think about every other aspect of life, how much it has changed. We're trying cases basically the same way with a little bit of electronic display of evidence as was done 200 plus years ago.

Host/Interviewer (possibly June Thomas or Sara Burningham) (28:06)

Well, that's true of legal education. Right. We're still, you know, terrorizing people with Langdellian, you know, Socratic shouting. I mean, it's just true of this profession that we're so resistant to giving up old conventions and norms, even though they're for all the reasons that we could talk about, really, you know, no longer serve us. But I think that there's an awful lot of people in this profession that like it because it's a small c. Conservative profession.

Judge Robert Lasnick (28:33)

That's true. And there are definitely certain advantages to it. You want that predictability and consistency. And the chief justice, who is an institutionalist, looks back at other chief justices and sees steadiness and consistency and predictability and independence. And those are extraordinarily important parts of our lives as federal judges.

Host/Interviewer (possibly June Thomas or Sara Burningham) (28:54)

So it leads to my question about governance and transparency, which is a problem, I think.

Judge Robert Lasnick (29:01)

Yes, it is. And there's a couple of problems with the judicial conference. And I was on there and I loved it. It was a wonderful experience. I got to meet and know Merrick Garland and Bill Traxler and Joel Dabina. These are fabulous chief judges from circuits around. But remember how I told you how you become a chief judge? The most senior of the math.

Host/Interviewer (possibly June Thomas or Sara Burningham) (29:23)

Math all the way down.

Judge Robert Lasnick (29:25)

And so it means that when we're looking around the table, the judges are all, pardon the expression, on the old side. And so we don't get up and coming people on there for the most part. Now, district judges are chosen differently in different circuits. You know, they were. Some of them are elected, some of them are rotating by states and things like that. So we have some younger, but all the chief circuit judges are there because they're the longest serving in their circuit. And, you know, sometimes you get people who. Well, that's the way we've always done it. We don't want to change. Or you have people who are not really up on the technology and the ways that we could make things better because they just are of a different generation. I mean, we're still giving out notepads and pens to jurors who are 21 or 24 years old who haven't used a notepad and a pen in their lives. How about a laptop? How about letting them hold onto their electronic devices and trust that they're not going to Google search every witness we need to break out of the box. But then the other part is when we do meet in Washington D.C. in the beautiful United States Supreme Court, there's nobody watching what we do because we don't let anybody in. No journalists, no members of the public. There's no transcript. There's David Sellers, our wonderful press person will come out with the chair of the Executive Committee, usually a couple hours later with a one paragraph statement of this was the big highlight from the meeting. And it's of course crafted in a public relations sense, not in a news sense. You never see the debate. There aren't that many, frankly. And you never get a report on what's going on. We're driven by committees which also meet in private, except for certain ones that have public hearings on civil rules or criminal rules. There's very little that you ever get to know about that. I wish we would do things more in the light of day.

Host/Interviewer (possibly June Thomas or Sara Burningham) (31:32)

We know you value the journalism here.

Dahlia Lithwick (31:34)

At Slate, and now more than ever our work needs your support. And the very best way to support it is via our membership program, Slate Plus. With a Slate plus membership, you can enjoy this and all Slate podcasts ad free and you will be supporting our work at the same time. Now more than ever, that matters. There is a free trial to be found@slateplus.com amica now let's return to our conversation with Judge Robert Lasnick, senior U.S. district judge of the United States District Court for the Western District of Washington.

Host/Interviewer (possibly June Thomas or Sara Burningham) (32:06)

I know you and I have talked before about judicial misconduct and some of the ways in which the judiciary really wants to both signal that it's responsive and concerned. But also we're handling this and you can't see and it's the exact paradox we opened with Judge which is one needs to do those things in order to have public trust. And I absolutely am sympathetic to John Roberts impulse to say nothing to see here, no misconduct, it's being handled. And also the sense that, you know all these young women who want to come and tell their stories and be on every committee about sexual misconduct, that can't work, I suppose. But I don't understand why there isn't the next step of understanding, which is that utter lack of transparency doesn't foment public confidence. It foments really legitimate grousing about the fact that everything looks like a cover up.

Judge Robert Lasnick (33:06)

And especially I wish that when there was a major issue like the Judge Kaczynski thing, that the fact that a judge retires or resigns should not end the inquiry. To me, even if you're not going to discipline that judge because you don't have the ability anymore because he or she is not a judge. You need to know what went wrong, what levers were used by the judge to isolate, intimidate and harass, and how did the system fail and that. I don't think we ever came to a reckoning with that. A number of times when judges said, okay, I'll just resign and everybody was like, great, we got rid of that bad apple. Now we can move back to our draw the wagons in a circle state of mind.

Host/Interviewer (possibly June Thomas or Sara Burningham) (33:56)

So it sounds like you're saying that what at some point this entire top down governance system is going to require is exactly the kind of person that can never get to the top in this kind of governance system. Right. I mean, it would require somebody who is absolutely willing to say, fling open the doors, admit vulnerability and let it all hang out. And that can't happen for reasons that I guess I understand, but it's a little disparity.

Judge Robert Lasnick (34:27)

I wouldn't say it can happen. It's highly unlikely. And in many respects the Chief justice is such a charming and intelligent and really wonderful, delightful person to interact with, but he was not someone who was interested in opening the levers that you just talked about. If we had a Chief justice who was of the belief that allowing cameras in the US Supreme Court is not a terrible thing, in fact, it could be a really wonderful thing, you could see some change.

Host/Interviewer (possibly June Thomas or Sara Burningham) (35:00)

What's your best argument for cameras? I know mine as a journalist, my.

Judge Robert Lasnick (35:05)

Best argument for cameras is the more that people see what we do, the better we look and the more confidence they have in us. You know, I know that a number of justices who used to feel that way when they were circuit judges or academics, when they got there, they say, oh no, we can't do it, we can't do it. But I've not heard good arguments for that. To me, these are important policy issues. They are talked about in the most intelligent and civilized way. Nobody's screaming at each other like you get in Congress. Nobody's issuing decrees and proclamations and executive orders that are inexplicable. The idea of saying our opinions speak for themselves, not in this environment. We need to let them see what we do and how we do it. And Judge Robard handled the police case in Seattle and those were televised. They're not livestreamed.

Host/Interviewer (possibly June Thomas or Sara Burningham) (36:13)

Describe the case for one second. Just.

Judge Robert Lasnick (36:14)

Yeah, it was one of those ones where the Department of Justice and the Obama administration came forth and said the City of Seattle Police Department was Policing in ways that violated federal rights of individuals. And they needed a federal judge to oversee changes in the department. The city of Seattle agreed, but at a certain point, they disagreed about many of the other underlying issues. And Judge Robart, in addition to all his other cases, took that process on, and he's still dealing with it. But it's had a tremendous positive impact on our community. And it was good for people to see how a judge handles a very difficult case like that. And when I had my 3D gun case, too, which is still in front of me, but I did that preliminary injunction argument with the cooperation of the parties, so it could be seen. And I think those, the more people see what we do, the better it is for the federal judiciary in terms of public confidence in what we do.

Host/Interviewer (possibly June Thomas or Sara Burningham) (37:20)

I think that most of the sitting justices, when they testify to Congress, why, they don't want cameras, just make security arguments. I mean, I think the principal thing they say is some version of I'm not safe. What's the answer to that?

Judge Robert Lasnick (37:35)

The answer to that is you don't seem to worry about that when you go on the book tour.

Host/Interviewer (possibly June Thomas or Sara Burningham) (37:38)

Right, right, right, right.

Judge Robert Lasnick (37:41)

I just don't think that that's an issue. The other issue is, well, some people may not ask questions if the camera's on. Well, you already had that. Or some people may grandstand and ask a lot of questions with the camera on. Well, you already have that, too. So it's not really going to change the behavior, I think I remember once.

Host/Interviewer (possibly June Thomas or Sara Burningham) (37:59)

Hearing Justice Ginsburg at one of the circuit conferences when she was pressed on why the Canadian Supreme Court has had cameras since the 70s. And I think her adorably Ginsburgish answer was some version of, well, but those are Canadians. The implication being. But they don't grandstand. They barely speak. But I do remember hearing, at the time, I think, the Supreme Court, the chief justice of the Canadian Supreme Court saying, one lawyer tried to grandstand once.

Judge Robert Lasnick (38:27)

I stopped it.

Host/Interviewer (possibly June Thomas or Sara Burningham) (38:28)

And I think it's this notion that you can't control advocates in front of you. I mean, that's your job.

Judge Robert Lasnick (38:34)

That's our job. And the Washington State Supreme Court has been televising all their oral arguments for years and have not had any problems with security or any problems with grandstanding or any problems with shutting down justices who want to ask questions. So it's just. That's the way we do it. And it'll only change if you get a chief justice who really wants it to change.

Host/Interviewer (possibly June Thomas or Sara Burningham) (39:01)

I remember when the 9th Circuit argument, the first argument in the Travel ban case was beingthe audio was being streamed, watching people crashing the website in their eagerness to listen. And I thought, this has to be a teachable moment for the federal judiciary. Millions of Americans are listening to oral argument in a case, and yet it's seemed to move the needle.

Judge Robert Lasnick (39:25)

Right. And I thought that the judges did a great job and the lawyers did a great job. And why not let people see that? There's a lot of interest in it, isn't it? Look at the play on Broadway now about the Constitution, which is also from Washington state. And people are really excited about why do we have three branches of government? What does it mean with this separation of powers? And how do branches coexist with each other? And I think that's great to have people wanting to learn more about the government and how it operates, including the judiciary.

Host/Interviewer (possibly June Thomas or Sara Burningham) (40:03)

Do you let your jurors Google during trial?

Judge Robert Lasnick (40:07)

Not. I tell them not to do any research on their own. I don't want them Googling the defendant to see what his prior records are or things like that. So, yeah, no, I'd say what we're doing, everything you need to know about this case, you will get in the courtroom.

Host/Interviewer (possibly June Thomas or Sara Burningham) (40:24)

Can they tweet?

Judge Robert Lasnick (40:26)

No. Tweeting? No. Facebooking? No. Blogging? No.

Host/Interviewer (possibly June Thomas or Sara Burningham) (40:29)

And do they adhere to your rules?

Judge Robert Lasnick (40:31)

Yes, I believe so.

Dahlia Lithwick (40:32)

Yeah.

Host/Interviewer (possibly June Thomas or Sara Burningham) (40:32)

I guess you would find out if they were.

Judge Robert Lasnick (40:34)

I think we'd find out if there was a big problem. And sometimes there are. But I always tell them as soon as the case is over, you can bore your friends and relatives with every detail, but not until then.

Host/Interviewer (possibly June Thomas or Sara Burningham) (40:47)

What do you read?

Judge Robert Lasnick (40:49)

Well, I'm very proud to say that one of my colleagues from Edwin Markham Junior High School on Staten Island, Sigrid Nunes, just won the National Book Award for her book the Friend, which I think is a wonderful book, and I love her work. I am a big Stephen King fan. I think I read the Shining for the tenth time in the last three months.

Dahlia Lithwick (41:14)

Creepy.

Judge Robert Lasnick (41:15)

Creepy. But I like a good take me away story and the biography of Louis Brandeis. I went to Brandeis University by Jeff Rosen, and those are where I am right now.

Host/Interviewer (possibly June Thomas or Sara Burningham) (41:35)

I remember asking a federal judge if they read law reviews. It's not a trick question.

Judge Robert Lasnick (41:41)

I do not read law reviews.

Host/Interviewer (possibly June Thomas or Sara Burningham) (41:43)

Yeah, so this goes a little bit back to your initial point about legal. Academics still largely believe that that's where they are influencing the conversation. And not a ton of judges read the law reviews.

Judge Robert Lasnick (42:03)

That's very true. Now, maybe it's different at the Supreme Court with the clerks. I don't know, but for the most part it's pretty irrelevant to what we do. Unless it's a law review or article praising something I did, I would read it over and over and provide it to everyone.

Host/Interviewer (possibly June Thomas or Sara Burningham) (42:22)

I can talk about how you use your clerks.

Judge Robert Lasnick (42:26)

Well, I am so blessed to have a career law clerk, LB Creg now, who has been with me since day one and she is such an indispensable part. She recently told me that her doctor husband had given notice that he's going to step down from his job in hospice care in a year. And I mentioned it to my wife and she said, oh my God, don't tell me LB's going to leave too, because you won't be able to do your job without her. A lot of confidence there. But LB loves her job and she is not leaving, thank goodness. But she's an amazing lawyer and she does a tremendous amount of research for me. And in the best of all worlds, LB or any law clerk will give me a case that I have coming up for summary judgment, motion to dismiss, whatever the motion is and say, judge, here's the briefs, here's the cases you need to look at, and here's a proposed order. If I agree after reading the briefs and I agree with the decision, then I read the order, more like an editor to make it sound like it's my voice. What drives LB crazy is that she'll write a 30 page opinion and I'll add a paragraph that I know is going to be what the media picks up on because that's the journalism background. And then they quote the book. Little part of the opinion that I actually wrote, but that's part of the teamwork there. She's not in it for the glory like I am. And then on the other position, I have a term law clerk that turns over one or two years, depending on that person. And the greatest part of the job of being a federal judge is working with law clerks. They are so brilliant and they keep you young and keep you engaged. So that's really tremendous, tremendous part of the job.

Host/Interviewer (possibly June Thomas or Sara Burningham) (44:25)

Too many, in my humble opinion, law students in this are listening to this and they're thinking, how do I get a clerkship? How do I become a judge? How do I? I mean, they're so myopically obsessed with the judiciary.

Judge Robert Lasnick (44:39)

I don't hire clerks directly from law school. I want them to have at least a year of practice or clerking for a state Supreme Court or similar clerkship so that you come with the idea that you've been exposed to Some aspect of the real world. And, you know, we get such incredible people applying that it's okay. Judge Peckman does something similar, but she also requires that you traveled somewhere and did something in Africa or some, you know, something where you gave of yourself. And I think that encouraging people to become law clerks, not just to get a check on your resume so you can get a bonus and something later on, but to have experienced some part of the world and then bring that point of view to a chamber is a good thing.

Host/Interviewer (possibly June Thomas or Sara Burningham) (45:33)

I read that you. When you advise trial attorneys, one of the things that you tell them is stop saying the evidence will show. Right? The evidence will reveal that. That's a tick that we've all picked up from Law and Order that gets you nowhere.

Judge Robert Lasnick (45:51)

When you do an opening statement, you should tell a story, because the trial courtroom is all about telling stories. And you don't tell a story by saying, this book will show that that creepy hotel up there in Colorado is really haunted. You just say, get right into the story and use the characters that are your witnesses to tell a story. And then that's the way to bring a jury into what we're doing. So, yes, there are certain quirks that I have. No halftime motions. It's not a basketball game. And at mock trial, which occasionally I do in State of Washington, I'm already well known among the high school kids. Don't ever say halftime motion in front of Judge Lasnack.

Host/Interviewer (possibly June Thomas or Sara Burningham) (46:39)

What is your best advice for. We have so many law students who listen to this show. Many of them listen to the show instead of studying for the bar. What is your best advice about. And this is just gonna sound ridiculous and spiritual, but a life well lived in this profession because, boy, do we screw it up sometimes as lawyers.

Judge Robert Lasnick (47:04)

Well, it is important to keep track of what is it that makes you happy. And most of the lawyers who say they're unhappy, frankly, are working for big firms. They may be making decent salaries, but they're not happy with their work. Most of the lawyers who are happy with what they do are working for public defenders, prosecutors, immigration lawyers, environmental protection, doing something that enriches their life and makes them feel like they're making a difference in the world. It's hard to say you're making a difference in the world when you're toting somebody's briefcase for a big law firm, although you're making a lot of money doing it. And so it's always keeping your eye on what is the real reason I became a lawyer. If the real reason you became a Lawyer was to make a lot of money, fine, go ahead and do it. That's fine. But if the real reason you became a lawyer was because you were inspired by To Kill a Mockingbird or you were inspired by some lawyer who you saw stand up to injustice and take a real principled stand, be that lawyer. You can be that lawyer. There are people out there who are actually doing things like that and are enjoying their life and making a better impact for their community.

Host/Interviewer (possibly June Thomas or Sara Burningham) (48:26)

And what's the answer when they say, but my loans and big law and this entire system, Jerry, rigged to push me into carrying someone's briefcase. Is it just broken?

Judge Robert Lasnick (48:39)

Well, that is tough when you're talking about not just the loan, but six figures loans. My advice to them is change that damn system. That's just unfair.

Host/Interviewer (possibly June Thomas or Sara Burningham) (48:53)

I want to go back to talking about journalists for a minute. Only because we fault the current president for knocking journalists and journalism and fake news. And we can talk about that or not, but every single sitting member of the current Supreme Court has done the same in some context or other. They take their wax at the press, sometimes in very cartoonish ways, don't like how we're doing our job. And I know there's a healthy, good, systemic tension that should exist between the press and the courts. But I'm wondering where the line is between what you do and your need for us to not call you out by name, not misunderstand cases, do the things we do wrong, and us acting as a check on you, which we have to do. And I'm trying to figure out what, what's the right amount of checking.

Judge Robert Lasnick (49:55)

We are subject to criticism absolutely, as judges, and the media has a right to criticize us. I think they also have a right to try to get it accurate. But if they're accurate and they just have a different opinion about, that's a really stupid decision this judge made. I'm okay with that. Not everyone agrees with everything I do all the time. And I'm not right all the time. The appellate courts tell me that. But you don't want to personalize it in a way to say, you know, that judge is evil or that judge is a traitor and this judge is a patriot or things like that. So I think that if you're talking about criticism of the media by judges or criticism of judges by the media, as long as it's done in a respectful way, that's perfectly okay. And I don't have a problem with the President criticizing judges either, as long as he's doing it in the, you know, we disagree. I would prefer for him to say, we respectfully disagree with that and we're going to appeal it. But you know, when he says he's a Mexican judge or a so called judge, that's bad because that inspires the hatred and the danger factor, which is not fair. And I think Justice Gorsuch said it's disheartening and discouraging when anyone attacks judges for their race or their national origin or their gender or anything like that.

Host/Interviewer (possibly June Thomas or Sara Burningham) (51:24)

But this goes back again to your initial framing, which is when the President is out there saying the entire 9th Circuit sucks, or, you know, Judge Robart is a so called judge, and then in this kind of subsonic whisper, John Roberts, after months and months, responds, or really subsonic, almost inaudible whisper, Neil Gorsuch says that's disheartening. There's such a disparity in the tools, the rhetorical tools and the megaphone brought to this debate. And I wonder, is it just time for someone to say, and it doesn't have to be you and it doesn't have to be now, but someone to say, this is really. And I don't even think it's, you know, you're sort of flagging the danger issue. Right. That it's bad to whip up public fury at any one judge. And we know that that happens. I think the judiciary itself suffers. I mean, it's not.

Judge Robert Lasnick (52:20)

It does.

Host/Interviewer (possibly June Thomas or Sara Burningham) (52:20)

It's an institutional problem.

Judge Robert Lasnick (52:22)

It is. And you know, Judge Robart had to endure so many death threats and, you know, was under 247 martial protection. I happened to sit on the circuit with Judge Clifton from Hawaii, who had been on the appeal, and he was under 24 7. So when we went to lunch, you know, the marshals had to come with us. And of course, in that part of San Francisco, it's probably good to have marshal protection. And, you know, it's a serious, serious issue. There's no doubt about it. But also the number one thing that was said to Judge Robart in those emails and hate mails and everything was, I will never vote for you again for judge. So, you know, there's a little bit of. Okay, we see where it's coming from.

Host/Interviewer (possibly June Thomas or Sara Burningham) (53:09)

Can we talk about Bob Dylan?

Judge Robert Lasnick (53:10)

Sure.

Host/Interviewer (possibly June Thomas or Sara Burningham) (53:11)

Okay, so you are on record as being one of the biggest Dylan fans in the federal bench, if my data is correct, if it's still correct. Dylan is the most quoted songwriter, I think, still. Yeah, right.

Judge Robert Lasnick (53:27)

Mm. Many of them like really bad use of quotes, too, including one from the Justice Scalia.

Host/Interviewer (possibly June Thomas or Sara Burningham) (53:35)

Oh, I know. Well, I Feel that we need to unpack some of this. You quoted Dylan before. Quoting Dylan was cool, right?

Judge Robert Lasnick (53:44)

True. This would have been about 18 years ago or 19 years ago in a case where we were looking at what was the congressional intent for Title VII when it was passed in the 1960s. And I put a footnote in about context that this was at a time, you know, great turmoil in the country and where the lyrics of Bob Dylan about the times, they are a changing Senators, congressmen, please heed the call. Don't back up the doorways, don't something the halls see. Who gets hurt will be he who has stalled. And it made sense in that context. I don't do it just to show I know a Bob Dylan quote or anything like that. But it actually. The first time I used it was in oral argument of a very interesting immigration case where we sat sort of like en banc, which we never have done before or after. All the active judges heard this appeal because we all had similar cases. And it involved. What do you do with a person who's been ordered deported but the country won't take that person. Vietnam and Cambodia were big. And then there were a bunch of.

Host/Interviewer (possibly June Thomas or Sara Burningham) (54:58)

What year was this?

Judge Robert Lasnick (54:59)

This was 1999, I think. And we had the oral argument. I am the youngest judge on the court then by about 20 years. I was 47. And in the argument, I asked the government lawyer talking about the chimes of freedom. And I talk about. For each unharmful gentle soul misplaced inside a jail, you gaze upon the chimes of freedom flashing. And there was like almost an audible gasp from the public interest lawyers, public defender community that, oh, my God, we now have a judge who quotes Dylan. And as I left the bench with my colleagues who were, As I say, 20 or more years older than me, one of them said, now, where is that from? And what's that song? And, you know. But he liked it and he wanted to use it himself kind of thing. So that's how I kind of got that. And then later on, when I did the AVO case, I talked about how I was considered Seattle's judicial star because I dispense contraceptives, save Wales, and quote Dylan.

Host/Interviewer (possibly June Thomas or Sara Burningham) (56:16)

Right, right. Is there something about. And I just say this as a person who forces my children to listen to Pete Seeger, and they have no idea why I'm doing this. Is there something about Dylan beyond just the Bob Dylan ness of it that speaks to you? Is there some through line? I mean, there's so much. And maybe we'll put up on the show page, because the article with all the lyrics is fantastic.

Dahlia Lithwick (56:45)

And let me back up for one little minute and say for listeners that there was a encyclopedic article in the.

Host/Interviewer (possibly June Thomas or Sara Burningham) (56:52)

LA Times in 2011 by Carol Williams about the massive grip of Bob Dylan lyrics on the federal court. And we can plop the link onto the show page, but is there some through line from the Dylan you're listening to as a kid in New York and what you're still trying to say or think about why Dylan, he spoke.

Judge Robert Lasnick (57:18)

To my generation and, you know, look, he's won a Nobel Prize for literature. So it isn't just that he was speaking to this one kid in New York City who was listening to WBAI and finding a whole new world opening up. But it stayed with me. Again, going back to my answer to the previous question is those songs are about justice. Those songs are about being focused on trying to make this world a better place, whether it was civil rights or peace or things like that. And I think Dylan provides a touchstone for me of remembering why I'm where I am and doing what I'm doing. Now my kids are like, dad, that is so lame. Can't you at least talk about somebody who cardi B? Yeah, something like that. Now, I will say this. I had Chris Novoselic from Nirvana in my courtroom on a case, and we were talking to each other like, I'm a huge Nirvana fan, so it isn't like I'm just stuck in the past or anything like that. But my daughter now works at Spotify, and Amanda sends me playlists and things to listen to. So I'm trying.

Host/Interviewer (possibly June Thomas or Sara Burningham) (58:30)

All right, maybe we're going to have to get hold of your play lists and put it up on the show page.

Judge Robert Lasnick (58:34)

Yeah. Instead of asking what books I'm reading. Yes.

Host/Interviewer (possibly June Thomas or Sara Burningham) (58:37)

I'm going to ask you one last question, and it's the sober one that I give, that I ask guests, when I know that a lot of folks who are listening to the show are just feeling rattled and worrying about the guardrails. So the question is essentially this. I think that you and I are both people who are the most conservative radicals in the world. Right. We believe in the rule of law and in systems and in the words of the Constitution. And that matters to us. It's not fanciful thinking, but I think we live in a time where a lot of folks are finding themselves very destabilized by truth, has no meaning, and everything's up for grabs. And what gives you hope, young people?

Judge Robert Lasnick (59:27)

Give me a lot of hope. I see it in my own children. I see it in young people around the country and around the world. And, you know, the path is never always up. Two steps forward, one step back. One step forward, three steps back. But I believe in this country. It is a country conceived in slavery and dedicated to the proposition that only white men are created equal. So you got to get past that. Conceived in liberty and dedicated to the proposition that all people are created equal. That is not what the country was started on, but the country has evolved in a way that never would have been predicted back in 1775 or 1787. And for the most part, those advances have been from the people, not from the courts. Sometimes from the courts, but it's much better when it comes from the people themselves, not imposed on the people by judges. And I think there's a give and take and a tug and a pull, but I think we're ultimately moving forward and the young people will make sure we continue to move forward, and the federal judiciary will persevere and we will be there to make sure justice is done.

Host/Interviewer (possibly June Thomas or Sara Burningham) (60:56)

I'm not going to be able to get you to sing a little Dylan now, am I?

Judge Robert Lasnick (60:58)

You don't want to, Dalia, that would be a really good. That's all it would be. No, we don't want to do that.

Host/Interviewer (possibly June Thomas or Sara Burningham) (61:04)

Judge Robert Lasnick is on senior status with the U.S. district Court for the Western District of Washington. He joined us here in Brooklyn. Thank you, Judge. This has meant the world to me.

Judge Robert Lasnick (61:15)

It's been great for me, too, Dalia. Wonderful.

Dahlia Lithwick (61:19)

And that's all there is for this episode of Amicus. Thank you so much for listening. If you'd like to get in touch, our email is amicusatslate.com and you can find us@facebook.com Amicus Podcast. Today's show was produced by the divine Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is managing producer of Slate Podcasts. We'll be back with another episode of Amicus in two short weeks.