Judges are at the center of every conversation on Amicus but never as guests on the show. Until today.
On this week’s Amicus, Dahlia Lithwick did something she’s never done before—had a judge as the guest. That would be Judge Robert Lasnik, senior United States district judge of the United States District Court for the Western District of Washington. Lasnik answers questions on a range of topics, including whether justices should hit back against criticism or maintain a lofty silence. A transcript of the interview, which has been lightly edited and condensed for clarity, follows.
Dahlia Lithwick: It’s true of this profession that we’re so resistant to giving up old conventions and norms, even though they no longer serve. But I think that there are an awful lot of people in this profession that like it because it’s a conservative profession.
Judge Robert Lasnick: 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.
So, it leads to my question about governance and transparency. Which is a problem, I think.
Yes, it is. There are a couple of problems with the judicial conference. I was on there and I loved it. It was a wonderful experience. I got to meet and know Merrick Garland, and Bill Traxler. These are fabulous chief judges from circuits around. But remember how I told you how you become a chief judge?
Math. Math all the way down.
Right. So it means that when we’re looking around the table, the judges are all … on the old side. So we don’t get up-and-coming people on there for the most part. Now, district judges are chosen differently in different circuits. 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 sometimes you get people who say, “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. 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 pull down 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. 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.
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? 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.
I wouldn’t say it can’t happen. It’s highly unlikely. 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 U.S. Supreme Court is not a terrible thing, that in fact it could be a really wonderful thing, you could see some change.
What’s your best argument for cameras? I know mine as a journalist.
My 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. I know that a number of justices who used to feel that way when they were circuit judges, or academics, when they get 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.
Judge [James] Robart handled this police case in Seattle, and those hearings were televised. They’re not livestreamed. It was one of those ones where the Department of Justice in 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. 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 the more people see what we do, the better it is for the federal judiciary in terms of public confidence in what we do.
I think that most of the sitting justices, when they testify to Congress on why they don’t want cameras, just make security arguments. I think the principal thing they say is some version of “I’m not safe.” What’s the answer to that?
The answer to that is you don’t seem to worry about that when you go on the book tour. So, I just don’t think that that’s an issue. The other issue is some people may not ask questions if the camera’s on. 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 believe.
I think I remember once hearing Justice [Ruth Bader] 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 adoringly Ginsburg-ish answer was some version of But those are Canadians. The implication being they don’t grandstand—they barely speak. But I do remember hearing at the time, I think the chief justice of the Canadian Supreme Court saying, One lawyer tried to grandstand once. I stopped it. I think it’s this notion that you can’t control advocates in front of you. But that’s your job.
That’s our job. And the Washington state Supreme Court has been televising all its oral arguments for years and has not had any problems with security, or any problems with grandstanding, or any problems with shutting down justices who want to ask questions. So that’s the way we do it, and it’ll only change if you get a chief justice who really wants it to change.
I remember when the Ninth Circuit argument, the first argument in the travel case was being held, and the 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 didn’t seem to move the needle.
Right. And I thought that the judges did a great job, and the lawyers did a great job. 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. 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? I think that’s great to have people wanting to learn more about the government and how it operates, including the judiciary.