 Bingo, we're back five o'clock rock. You know, we live in interesting times these days and It's wonderful to have a court of appeals judge judge Rick Clifton from the Ninth Circuit Court of Appeals on our show with us Welcome to the welcome to the show. It's good to be here you know we're talking before about so many things in the world have changed and You've been sitting since what 1992 on the Court of Appeals Court of Appeals since 2002 so this is my 15th year Yeah, it could be it could be more seems like forever, but and you have a heavy workload You sit and listen to many many arguments and I wonder if you could spend a few minutes and just tell us what it's like To be a judge on the Court of Appeals It's very engaging in terms of the intellectual challenge Realizing that we're being asked to make decisions that have a real-life impact on a good number of people Does somebody stay in jail? Does somebody get deported? It's There are a fair number of cases that might be described as routine But it's never routine to the people involved and there are always enough cases each month that Our challenging are engaging were asked to answer hard questions and to do it not simply in a hypothetical or academic Context but in a way that affects people's lives So the intellectual stimulation is is enormous and My wife observed that when I left private practice for the court I Wond up working substantially longer hours than I did when I was in private practice being paid more handsomely by the hour for my Services, but the engagement and the and the energy that comes out of the things that we work on is such that Simply what we have to do Judge Clifton worked for the law firm of Kate shuddy Fleming Wright for quite a while. He was a partner there handling what business matters, I guess mostly commercial civil litigation and Then he was appointed by President Bush to the Court of Appeals in what 2002 2002 I was nominated 2001 and there was no Opposition ultimately was confirmed 98 to nothing but the process just stretched out as these processes tend to do so it wound up being About a year and a half from beginning to end I was finally seated on the court and the Senate Judiciary Committee liked Judge Clifton because he knew a lot about the Chicago Cubs Am I right here? You're right. It was odd that It was I was tipped off their mind was an uneventful hearing Most of the senators didn't come and the people in the Justice Department said that's a good thing And after the first couple fairly standard questions Senator Spector then from Pennsylvania Republican at the time Had heard from somebody else in Congress who knew me from before But I was a fan of the Chicago Cubs and so he started posing questions about baseball Senator Leahy was in the chairman of the committee. He was there Senator Spector's a Phillies fan Senator Leahy a Red Sox fan and the only other senator who was there Senator Maria Cantwell from the state of Washington Probably not a baseball fan from her reaction seemed bewildered as to what was going on I took it to be a good sign. They were more interested in my baseball feelings than anything else So and you haven't changed your view of the Chicago Cubs And of course is everybody must know by now if only because they're glad that they don't have to keep hearing about 1908 The Chicago Cubs are the world series champions for a time in my lifetime. They were even in the world series I can't say that you'll learn that here on you've probably heard it before Well, so you know what things have changed and you know We're in a different administration or at least as of January 20th The way people deal with each other the way the First Amendment is handled the way our society in these 50 states You know has changed and I imagine since 2002 it's changed from your point of view as well How do you see the country evolving if I can ask? Well the country said President Obama said a couple weeks ago. It's it's not a straight line fits and starts and Sometimes the the jumps are a little further. It's not at all unusual to go back and forth if you look at political history Going back and forth between parties every eight years is is pretty common and even many of those who speculated that that Secretary Clinton would win the presidential election this year Would observe that that the Republicans probably had a good chance of winning if they'd nominated a more traditional Republican Of course few people saw what was going to come but that wouldn't have been unusual if you go back President Clinton was in office for eight years The second Bush was in office for eight years President Obama in office for eight years a little bit of an aberration before When the first president Bush followed President Reagan's it was 12 years But before that that was a Democrat in the parties in a two-party system will ordinarily gravitate toward a form of equipoise and and That doesn't mean every state indeed most states aren't battleground states, but the nation is a whole It's not unusual and what we should be grateful for and we don't we just take this for granted But I had one of my colleagues once comment that She was asked by a judge from Russia What would happen when the president who would nominated her was no longer in office the assumption being she'd be swept from office To and that's not how the federal courts or generally courts work in this country We should be grateful for it. So my work really doesn't change very much The the identity of people nominated to join the court will change over time and that has an impact But the work itself and and even that's not a dramatic impact positions are filled as vacancies open But it doesn't turn around overnight Well, just two weeks ago, maybe three you were on a panel for the Federalist Society I Was organized by Carl Smith ball and it was in the Hawaiian Electric Auditorium there at Bishop Square was a very interesting program Kenji Price organized it from Carl Smith ball and you were there with Judge Burns and Brad Glosserman of Pacific Forum I was very impressed we took film of that and we've actually played it on OC 16 of you and the others and I went what interested me was that the notion that things are changing globally and We have countries what do you say coming of age in terms of Judicial precedent and sometimes that precedent is of interest to American judges and American courts particularly when interpreting the United States Constitution can you summarize your thoughts in that regard and and you know the Contribution that you made in the panel that day. Well, but the debate in the past I'd say two decades has Evolved from the doctrine of originalism most prominently identified with Justice Scalia who passed way earlier this year Whose view was that the Constitution should be interpreted based on It's meaning at the time of its adoption 1789 the Bill of Rights within the first few years after that That was actually a departure among conservative thinkers Such as Judge Bork who was more interested perhaps in trying to divine the intent or purpose of the founders and Justice Scalia Refined that to say well, it's not necessarily the people that were in the room Although we pay attention to that and talk about the intent of the founders But also the population generally who had to vote to ratify the Constitution So he was interested in what did what are those concepts? What are those terms mean at that time? and the the opposing school of thought although they're not direct opposites is the so-called living Constitution about which Justice Breyer has been most prolific in writing outside judicial decisions the last few years The notion being that the Constitution was deliberately written with some concepts that would evolve over time The most commonly cited example. What's the meaning of cruel and unusual punishment specifically prohibited in the application of Cruel and unusual punishment is specifically driven by the 8th Amendment and Cruel and unusual means something today in the mind of Justice Breyer than it meant in 1791 when the amendment was adopted and ratified And that's the long-standing debate and so the question of whether US Supreme Court decisions or lower court decisions Turning on interpretation of the Constitution to what extent does a foreign judicial opinion speak to that? Justice Scalia would have said not at all because what a court in some other country might say Particularly if it's after 1790 doesn't speak to what that term was understood to mean in the United States at that time whereas a believer in the living Constitution would refer to Decisions from other countries as a reflection of how human rights have come to mean something different over time But it comes up in in other contexts, too I was I was surprised to encounter After the panel that you referred to last week in connection with one of the cases. I was hearing in San Francisco It was an application of the Miranda warnings, which we all know from watching TV. I'll write remain silent Anything you say cannon will be used against you in a court of law and so forth and and in the course of working on that case I went back and read the Miranda decision again, which came out in 66 50 years ago this year and it turns out that the Miranda decision itself looked to some foreign law sources and experience with regard to police interrogation techniques So the the question and the and the citation to foreign law authorities isn't a new one It's it's taken on a new controversy of late and even even Justice Scalia cited to law law force Law sources from outside the United States and in appropriate contexts for example Won't get in the details But there's a legal doctrine that whether a new rule of criminal procedure is fundamental does Saying that somebody has this right really affect the the accuracy or reliability of a verdict that might have been rendered against him before and and One particular case had to do with whether a certain decision should be made by a jury or by a judge Constitution gives us the right to jury trial In most cases But some decisions in the past have been made by judges and in particular in this case It had to do with application of the death penalty Sentences are traditionally imposed by judges, but the Supreme Court has said the states have the death penalty That's a question that has to be put to the jury So the Supreme Court was faced with a question. Well, was that Retroactive was that so fundamental that we wouldn't recognize death sentences imposed by judges previously and Justice Scalia observed that most nations even in the Western legal tradition don't have juries to begin with So the absence of a jury can't be so fundamental that we think the decision would be unreliable in that opinion He went on to say it's not appropriate to turn to foreign law sources sources to interpret our Constitution But in this case he was looking at it to decide was it fundamental and decided it wasn't so so even he would cite foreign law sources some contexts and That's really interesting how you can interpret It's not absolute. It's never absolute even when you're treating the Many black and white I mean it's shades of gray in our world It's a gray in our world and and one of the interesting things well Judge Burns had an interesting remark after your remarks at the principle remarks at the beginning of the program He said well if it comes from if it's if it's a reasonable idea, I'll take it I was a little troubled by that because we're talking about precedent here. Don't you have to have at least some hook in Precedent before you can accept an idea as reasonable you do but but he's His central thesis is correct. We should judges are principally trying to get it right now. The question is what's the meaning of right? As much as the world has has Missed an opportunity they haven't made me czar and so it's not up to me to decide what's right in all contexts I'm applying statutes regulations precedent and so forth now. There's lots of gray there so there's lots of room in between and sometimes there's a lot of room in between and so I have a Not a blank slate but a slate without a whole lot of constraints there and in that context if you have a good idea from some place It's worth paying attention to the good idea Is it a good idea because it has been stated by the Supreme Court of Australia or whatever source? No, it's just a good idea and and for my purposes citing to the fork the foreign law authority is a perhaps marginal value in terms of persuasiveness, but it's you give credit where credit is doing on a plagiarized so so you recognize that but it has to Stand on its own logic and in the context of American law and Yeah, and in the context of where it comes from and the circumstances involved Some countries will be more persuasive than others for example Well, yeah practicing lawyer in Hawaii for years when we started more years ago than I want to count There wasn't a lot of established Hawaii law I remember subjects and so we're routinely turning to the law of other states in some states What have more cloud than others just be more impressive and certainly that would be true for foreign nations as well We're gonna take a short break judge Clifton We'll be right back and we're gonna ask Judge Clifton about the comments made by Brad Glosserman at this very same panel Which would different than what the jurists were saying that day. We'll be right back Aloha everybody. My name is Mark Shklav. I'd like you to join me for my program law across the sea on think tech Hawaii comm Aloha Hello, I'm Marianne Sasaki. Welcome to think tech Hawaii where some of the most interesting conversations in Honolulu go on I have a show on Wednesdays from one to two called life in the law where we discuss legal issues Politics governmental topics and a whole host of issues. I hope you'll join me Think tech Hawaii Asia in reveal. I am Johnson Choi the host Looking forward to see you next month December 15 Thursday 11 right here at this channel. Aloha Hi, I'm Stacy Hayashi with a think tech Hawaii show Stacey to the rescue Highlighting some of Hawaii's issues. You can catch it at think tech Hawaii on Mondays at 11 a.m. Aloha. See you then Okay, we're back with Judge Richard Clifton a Court of Appeals judge in the US Court of Appeals 9th Circuit We are delighted to have him here to talk about things that judges think about but no content No, no substance So, you know one of the one of the interesting parts of that program And it sort of surprised me a little first I couldn't figure out exactly why Brad Glossomann and Pacific forum was on the panel then I when he spoke I realized why Talking about globalism talking about a world that's different now than when Thomas Friedman discovered it wasn't it wasn't flat And we're talking about things that change more quickly now than ever before. We're talking about different interrelationships And you know priorities between the nations of the world all this is happening while you watch increasingly so and so He was saying well, you know, you really have to be mindful Not only because what you can learn from them, but because it's a diplomatic issue You want them to think to feel that we are respectful of their laws that we are part of the same global Community and therefore it's good for the United States on a diplomatic basis on a social rather You know a foreign policy basis To be said to consider precedent from elsewhere your thoughts It doesn't have a lot to do with our day-to-day activities probably because there's so much American law that That if there's a good idea that might come to us from Canada or Portugal or wherever else Lawyers aren't going to find it and give it to us And we don't have the time in most cases to go look for it ourselves Leaving aside cases that affirmatively involve foreign law and a case last year that involve French law So we have lots of French citations other than that and those are fairly rare It's pretty unusual Like almost never and I'd say never accept you never say never. I don't recall a case where a foreign law Authority was cited to us in a brief except where the case specifically involved foreign law So I understand what he says and indeed I'm engaged in some Outreach efforts Indirectly I'm as it happens. I'm an officer. I'm secretary of the federal judges association And there's that international relations committee that that regularly attends meetings of the International Association of Judges I'm personally involved with a good number of the Pacific States I customarily attend the meetings every other year of something called the Pacific Judicial Conference that Over the years I've attended meetings in Tonga Guam Tahiti Solomon Islands and so forth Where we meet with judges from Pacific nations I have a member of a committee the Ninth Circuit Pacific Islands committee that deals with the US territories in the Pacific and also with the Freely associated states Palau Marshall Islands Federated States of Micronesia. So I have dealings with foreign judges Does it enter into how we behave in deciding cases the answer is basically no Even as I understand Brad's point that it might be useful if we're trying to encourage the rule of law and have lots of colleagues that are involved in education programs and going to Pakistan and Kazakhstan and a lot of people that went to Eastern Europe after the fall of the the iron curtain to work on rule of law programs But it doesn't really enter into our decision-making process But it does raise your your your comments on this raise at least in my mind the notion that even though it's a court of appeals judge appointed for life It doesn't really affect your career whether or not you join all these voluntary judicial organizations You're doing that for the common good. You're doing that for service that we should all appreciate But I think I hear what you say that that it's it's it's part of the job in the sense it's an obligation of the judge to expose himself to go out and and You know belong to these committees to work on these projects To to carry, you know carry You know that carry the message learn and and also speak about important Public issues different judges have different attitudes. I'm not going to say somebody else is wrong from my perspective we are public servants and and The legitimacy of the courts depends on public support and it's important for people to understand what courts do So we many of us try to be engaged in public outreach civic initiatives public education my own case I Years ago taught part-time at the UH law school and I picked it up again Hard to fit in with my schedule. So after actually teaching a few seminars I pulled back again, but try to participate in other ways at the law school Still I'm a dues-paying member of the white state bar association though I don't have to be but I am and I Regularly attend when I'm in town meetings of its appellate section and was at the state bar convention last month speaking on a panel And it's say other things. I think it's important and useful for the courts and frankly I like getting engaged with people because one of the downsides of this job is it can be pretty isolated From political point of view, you know judges customarily are they're taken from given states in the in the court of appeals and That's because they understand that state and they bring that special knowledge and affinity to the to the court I think is a benefit to the court and to the state in when that happens And I've noticed that you have stayed in touch your office is down the block You are here. You are involved in activities. You are following many things That happen in this community that although you don't have to when you could live in San Francisco Just as easily in the ninth circuit. It's cold there. Okay. Now we have our and now you have to do But I guess San Diego is not so cold No, I I this is where I want to live and I wasn't raised here I came here to be a law clerk to my predecessor Herbert Choi and at the end of that you realize This is where I wanted to to spend more time and ultimately. I was what more than 40 years ago This is where my kids were born and raised This is where our home is and where we spend most of the time the nature of what I do means I'm gone a lot, but I don't want to be so completely detached. So I Read the star advertiser every day when I'm gone. It may be on an iPad. I'm old enough otherwise to read it in paper, but and and Try to stay as engaged as I can even as I know that the reality is that my focus is mostly elsewhere But this is where I want to live. Yeah, well, I you know from my point of view and our point of view I think in the bar association locally. I think we appreciate that we appreciate you you could just stay in a closed room hear arguments right right decisions Opinions and that would be done with it there, but you choose to stay in touch And that's I think that's important to everyone involved that you do that And and I think I actually think that every court appeals judge ought to do that. Although. I know that Requirement it's probably more important here. I'm the only one. That's just the reality of it I am taking senior status at the end of this year and that seat will be filled by somebody from Hawaii I don't have to let it go I continue to work as much as I want and so from my perspective One of the reasons for taking senior status pretty promptly upon being eligible is to give somebody else from Hawaii a chance And when there is somebody else here, I know Judge toy took a half step back from public engagement after he took senior status only He wasn't replaced by somebody from Hawaii in those days the assignment of it's still not formal But the assignment of seats to states wasn't as well Defined as it is today. Now it's well now there is a statute that actually will will assure there's a replacement for my position Technically they could fill another seat But there will be somebody appointed from the state of Hawaii to fill the seat if you're one of the dozen judges Who are from the Los Angeles area? It may be less important for each of them to be engaged with the community You're the only game in town as I am or we have judges from Idaho and Montana and the other smaller states in the same situation that I am then it's that much more important to be engaged What does it mean to be on senior status? Does it mean that you kick back and You know watch foot watch the Chicago Cubs if I if I may well I do that even when I'm active status, but yeah, what it means is that On that date, I am eligible to retire and I could stop working completely And it wouldn't affect me. It's an oddity. Perhaps we're appointed for life. So I Passed my eligibility date actually last week. I could quit completely Not do another day's worth of work for the court and I'd continue to get paid as an annuity the same thing I'm getting paid as a judge But the kind of people that get appointed to these jobs are sufficiently compulsive or Aren't financially astute or whatever we all pretty much just keep working in my case I'll shift my attention a little bit. I've been involved the last year and will continue for the next couple years and some Internal court governance matters that take a lot of time and and I will probably cut back the number of cases I hear over the next year or two to make up for that But I'm still mostly going to be doing the same thing that I'm doing now Yeah, I will try to make my way to spring training to see the Cubs and so forth But but I did that even as an active judge so that won't change very much either So it's basically the same giggle and not being paid anymore for it Great career, you know for you. It's wonderful. I think I mean it's it's extraordinarily fortunate There are there are a hundred lawyers in Hawaii that are qualified for this job and I feel fortunate that Things worked out so that that I got it. It's It's some people describe it as being struck by lightning in terms of the odds and The threat of being killed by it is there too But if you don't get killed by it then then you make your stronger It does speaking of strength one last final question, you know, this this campaign over the past couple years has been disruptive and You know, there's a there's a sign on the New York City Supreme Court courthouse that says Something about public confidence is the firmest pillar of the administration of justice Along those lines and public confidence. I think has been shaken I think has been shaken in the Constitution and the system which arguably to some people has been rigged In all that query from your point of view, how is the system doing? How is the Constitution doing in your life on the court? How do you feel the country, you know Is in the social compact if you will Of the relationship of the citizens and the Constitution Well, the one thing to be concerned about is that public confidence in government institutions or any institutions According to public opinion surveys is substantially down I think those surveys are probably accurate at all branches of government if asked Do you have a generally favorable or unfavorable reaction to? Supreme Court judiciary Congress president Everything's down and outside of government the press Companies labor unions not not many people are registering a higher score than they used to Analysts talk about this being a change election or the classic question the Gallup polls been asking since like the 30s Is the country on the right track? the response no is Huge and that's troublesome and ought to be of concern to everybody now It's not unique in the country's history. There have been times when there was We had a civil war once and people died. So we're well short of that but It's something we ought to be mindful of and if we can try to figure out what it is that is causing the public Or a substantial part of it to lose confidence in public institutions We we need to address it doesn't affect my day-to-day job at all doesn't affect the court's decisions But the reality is that the court and all governmental institutions depend upon public support This is not a nation of force We're not trying to compel people It's not a military dictatorship that people don't voluntarily comply that our institutions don't work the way they're supposed to work So we need to try to figure out why it is people are dissatisfied and what it is we can do to restore confidence I hope you'll come back when you go senior after you go senior status and we can discuss this in many Missions Poland. I hope not to wait until the next time that comes when the world's here