American University Washington College of Law
Judge Vanessa Ruiz
May 21, 2006
AU President Kerwin, Members of the Board of Trustees, Dean Claudio Grossman, and distinguished members of the WCL faculty, friends and proud family members of the graduates, and most, most especially the graduating class of 2006, it is truly an honor for me to have been asked to speak to you on such an important day in your lives. I feel particularly privileged because the Washington College of Law, as Dean Grossman mentioned earlier, was the first law school, the only law school as far as I know, to have been founded by women over one hundred years ago, 110 years ago to be exact. And since then, it has grown to include an incredibly diverse student body. We know this from hearing some of the names here today.
I have been an appellate judge for twelve years, and, as mentioned, the first and only Hispanic judge on any appellate court in the District of Columbia. And this year, I am also honored to be the president of the National Association of Women Judges, an association formed in 1979 at a time when women judges in this country were few and isolated. So I am most appreciated of, and I salute an institution such as this one that is founded by women and has such a long and distinguished tradition of scholarship and of public service.
I say that from personal knowledge about the tradition of excellence because I have been and am the direct beneficiary and through me, litigants who come before our court, of the talented students who graduate from this law school. And I have a good sample to base my judgment. I count eight law clerks, and eleven interns from this law school since coming on the bench in 1994. And I can say without hesitation, that to date they have been consummate professionals, and they have performed with a high degree of skill, competence, and dedication to justice.
Law clerks do more than prepare bench memos and do research. They bring to chambers fresh thinking and the ideas that are percolating among law professors and scholars. Ideas that judges who have busy dockets and are engaged in thinking that, for the most part, relies on past, on precedent, may not be as aware of as they should. So law clerks connect the judges to the new, and help to counteract the gravitational pull of the old familiar to a new familiar.
I now share with those former law clerks and interns, and with all of the graduates here today, the privilege of a degree from the Washington College of Law. And, like you, my family and friends are here—my mother, my husband, my daughter, my friends, not my father, unfortunately, he died recently. He would have been here if he could have. And he would have been very proud of his daughter. And I’m wearing the same academic gowns that you are, although I think my hat’s a little funkier than yours. But mine is an honorary degree, whereas you have earned yours. After taking many courses, and reading countless opinions and codes, engaging in class discussions of complex legal issues, writing papers, taking exams—Dean Grossman gave you all the stats—I know you have there have been many sleepless nights, strains on family and personal life, and for many of you, the accumulation of much too much debt. So this graduation from law school is something you are entitled to feel very, very proud of.
This is a meaningful day in your legal formation. Not just because of what it represents in terms of your personal investment to get to this point, but because of the intellectual wealth and the possibilities that investment has created for your future. For today, you really are poised to go out into the world as lawyers; oh, once you pass the bar exam, of course, that’s just another minor hurdle. And at this point, form a part of a profession that has done much in our history and, with you, has the potential to do even more to significantly improve the conditions of liberty, freedom and equality in democratic societies, and the recognition and protection of individual and human rights here and around the world. This sounds like an awesome task, and it is.
But as in all things, great achievements are composed of smaller, incremental steps. A cathedral, after all, is built stone by stone, and you have to know that that’s what you’re building.
And many of you have already begun to build, and to make that kind of contribution through your participation in the important work of the clinical programs at your school. Assisting an immigrant trying to claim asylum, or a child or family in distress, a victim of domestic violence, a defendant at risk of loss of liberty in a criminal trial, or a person about to lose the roof over her head, you should also feel particularly well prepared because of the exposure you have had thanks to the visionary leadership of your dean, Claudio Grossman, and the faculty here, to international law and scholars and judges to international issues. Every day, the importance of being conversant with international issues becomes increasingly clear. It was in this law school in January of last year that Justices Scalia and Breyer debated the relevance of foreign court decisions in the consideration and resolution of questions under our constitutions. Because you were here, you had front-seat tickets to that important debate.
Today I want to talk to you, with you, about another issue that can only continue to grow in its importance to our democracy; and that is maintaining and strengthening an independent judiciary that can protect our rights, guarantee equal justice, and make decisions solely on the facts and the law.
In the wake of the judge bashing that followed the decisions in the Terry Schiavo case, it bears repeating that our system of democracy depends on judges being supported in the exercise of their constitutional obligations to protect the basic rights of individuals and decide cases fairly. Those decisions must be made according to the law without regard to public pressure, and without fear of political reprisal.
Let me start by telling you a little bit about the National Association of Women Judges, which I said earlier I am honored to be president of this year. It is composed of over twelve hundred lawyers, I’m sorry, judges, federal and state judges at all levels of the judiciary, from administrative law judges to the justices on the Supreme Court. Which, for over twenty-six years has served as the nation’s leading voice for jurists in this country dedicated to ensuring equal justice and access in the courts for women and historically disfavored groups, to providing judicial education and cutting-edge issues affecting those groups and to increasing and advancing the numbers of women judges at all levels to more accurately reflect the role of women in a democratic society; an effort that this Law School began so many years ago. Informing all that we do is our mission to ensure a system of justice provides gender fair decisions for all litigants, fairness, impartiality, and yes courage are hallmarks of independent judiciary and our association takes pride in its efforts to encourage and to support the very best in the American judiciary.
Most of us are judges have experienced, at some time or another, and to a greater or lesser degree, a threatening gesture or communication from someone unhappy with a ruling. We adjust to this reality in our everyday lives. Most judges limit the use of their judicial titles, judge or honorable, to judicial duties and law related events, like this one, so as not to be perceived as misusing their office for personal purposes or lending the prestige of judicial office to non-judicial activities. But recently another consideration has crept in. And that is the desire for anonymity based on safety concerns. Making travel arrangements to a recent conference, a judge in Illinois where the conference was being held, and I readily agreed and we bemoaned, that the driver who was to meet me at the airport should not hold up a sign that says “judge Ruiz” figured simply Vanessa Ruiz would do better. It is unpleasant and unsettling, but we all accept it as part of the job and perhaps as a reminder of the need to treat all litigants with complete respect, to ensure the appearance of fairness in judicial proceedings is evident and to fully explain our rulings. The goal of course is not that everyone should be satisfied with the outcome that is virtually impossible to that education where there are winners and losers, but that litigants and those affected by judicial rulings come away with a sense of their case was fully heard, that the judge was impartial and that the result was based on the law and the facts presented.
The bashing of those judges, in both state and federal courts who considered and decided the Shiavo case, and did so by the way with the urgency that the situation required, exemplifies an escalation of threats against judges, and we have seen actual violence against judges and their families, you will remember the murders of judge Lefko’s mother and husband in Chicago, the shooting in the courthouse in Atlanta, the death threats against Justices Ginsburg and O’Connor that have recently come to light.
And beyond those expressions of personal violence, there are unfortunately institutional attacks in the form of legislative condemnation of judges based on the sources of law, foreign law, considered in their judicial opinions. Justice Scalia, as you know, is a critic of the use of foreign law in constitutional interpretation. Just this week however, he rebuked Congress for trying to dictate how judges think. There also are efforts to starve the courts of necessary financial support and personnel resources and to strip jurisdiction from the courts in certain kinds of cases, precisely the kinds of cases raising constitutional issues that Chief Justice John Marshall said in Marbury were reserved for ultimate decision by the judiciary. As you all know from first year Constitutional Law, the United States Constitution proclaims itself to be a product of “we the people” rather than of any elected body or individual. Thus the creation of co-equal branches with executive, legislative, and judicial power, and the separation and balance of those powers enshrined in the framework of the Constitution was a direct response by the founders to the concentration of power in the person of the King who made judges’ tenures and salaries dependent on his will, a will the King did exercise. Against this background the founders were dedicated to the creation of a democratic republic, one, in short, that would be a government of laws and not of men. Shortly after the Constitution’s ratification, and two years after John Adams appointed him chief justice, John Marshall established the doctrine of judicial review in the historic Marbury vs. Madison decision of 1803, which all of you have studied. The Marbury decision recognized that the Federal Constitution, as the expression of the will of the people, is the ultimate standard against which all exercise of governmental power must be measured. And that it is the province and duty of the judicial branch of government to make the ultimate decision as to whether a law passes constitutional muster. In short, that of the three separate co-equal branches of government, it is uniquely the promise and duty of courts to say what the law is. This gives enormous power to judges, especially to those who are unelected and have life tenure. Combine that power with the public’s perception that judges are institutionally unanswerable to the public and sometimes personally distant and aloof, and the seeds for unhappiness with judicial decisions and mistrust of judges are planted.
As I want to further discuss today as public servants paid by the public, judges and the court system must be open and accountable to the public. First, by being faithful to and upholding the Constitution, but also the judicial decision-making process itself must be transparent. And as emphasized throughout the ABA model code of judicial conduct and state codes across the country, judges must strive to be informed about and connected with the communities that are affected by the decisions we make. And lawyers and judges alike, must educate the public about the system of justice and the role of the judiciary in our Constitutional system of checks and balances.
That judicial independence is a necessary condition for the rule of law should not be confused with a cloak to shield the judiciary for the legitimate calls for transparency and accountability. Only to the extent that our courts are viewed as open, impartial, and fair will the public have confidence in the process and continue to trust judges to be the guardians and arbitors of the Constitution and of our most fundamental rights.
In his thoughts on government, John Adams, whose ideas on judicial independence written into the Massachusetts Constitution, this country’s oldest, and borrowed from that for the Constitution of the United States, John Adams said that the independent judiciary must be composed of persons, actually he said men, but we know what he meant, persons of experience, I’m quoting now, “of experience of the laws, of exemplary morals, invincible patience, unruffled calmness, and indefatigable application who would be subservient to none and appointed for life.” Compare that vision with the elected state judge who must face an opponent unrestrained by the codes of judicial office and seek campaign contributions from parties who are likely to appear before her. It’s a long, long way away from John Adams’ idea, isn’t it?
Judicial independence however is not a goal in itself; it is not a perk to give special status to judges, but a means to the end of impartial justice; to provide judges with the necessary intellectual and psychological space to rule according to law and the facts of the case. The reason why this is necessary is because of the simple fact that judges are human beings or at least most of them are. I know that this might come as a surprise to some of you in this audience, but between the human traits of judges and the all too human desire of those who would exploit judges’ vulnerabilities for their own purposes, it is no surprise that there are those who would try to influence judges by applying undue pressures and threats and judges who might succumb to those pressures. The reason why this is viewed as a real threat to the rule of law is because of a recognition that in real life judging, judges make choices; choices which should be informed and principled choices. You have all read many judicial opinions in your studies and you are familiar with judicial reasoning. Many of your class discussions, I am sure, have been devoted to criticizing some of them. What is evident, from this exercise, is that although judges are charged with applying the law, it is not an automatic process. As new legal questions come up and the law is not always clear in its application, with precise factual situation, the simple formulation that judges apply the law, they don’t make the law, is just that, it’s too simple. Statutes and regulations are not always crystal clear or have gaps that leave uncharted, situations that were unforeseen by the legislature or left for resolution another day or by someone else so that the usual and straight forward principals of plain meaning application of statutory language are insufficient to resolve the matter before the judge. An interpretation and application of the Constitution requires much more than reading glasses and the relatively short document of the Constitution itself. One must consider an evolving body of Constitutional jurisprudence, scholarly research, and the philosophical ideas that animated the Constitution’s rafters. Development of the Common Law, in particular, is a slow but steady evolution of the legal principals as different questions are posed by new factual circumstances or changed conditions in society or technology. Adjudication, in short, is not computation, but a process requiring knowledge of the law and legal principals, the deployment of technical skills or analysis and exposition, the hard work of careful study of the record in the case, and perhaps, most importantly and difficult to define, the exercise of those ineffable human qualities we refer to as understanding and judgment. That is why judges are people and not robots. And for all the excitement and distress about judicial activism, judges personal proclivities, no one has seriously suggested that as a society we want to submit our most important and vexing questions for resolution by the equivalent of a computer, even though we all use computers to aid in our research and writing. With all do respect to robots, and I want to make clear that I only have the highest respect for R2D2, judging the 21 st Century is still a profoundly human endeavor. As judges we are bound by our oath of office to follow the law, statutory language, precedent and most of all, of course, the Constitution.
It is precisely because we are simultaneously aware of our duty to the law and cognizant that we are human and therefore can be prey to our subjective likes, dislikes, prejudices and policy preferences that we continually check ourselves. We are bound by the language of the Constitution and statues. We consult and follow precedent. We hear from counsel from both sides. We question them during oral argument. We discuss with our fellow judges, in collegial appellate courts. And, ultimately, we explicate our legal reasoning in rulings and opinions that are open to the public for inspection. They are also open for study and criticism by legal scholars and by students in case notes—some of you in this audience—as well as appeal to a higher court.
There are some judges who, in order to safeguard the legitimacy of their rulings against subjectivity, decide to cabin their interpretation of the Constitution by limiting themselves to the actual words of the document or limiting its application to the situations actually confronted, or that could have been anticipated by the framers in the 18 th Century. This of course is not the case everywhere, and some of you who have studied International Law for example know that this is not the case in Canada, where they consider the Constitution to be, quote, “a living tree.” In our country, in the past the Constitution and by some judges now is considered to be an organic and developing document, but not by all judges who profess to adhere to a purported literal textualism to what the law is. But that fails to acknowledge the realities of judicial decision-making and ever-evolving society under rapidly changing circumstances and especially in highly charged areas involving still unresolved and unsettled societal norms. As a result of the explosion of technological progress in the area of genetic engineering and embryonic development, in an era of changing societal norms, for example, judges hearing family cases and civil disputes are increasingly caught in the middle; called upon to weigh enormously complex, intertwined and heretofore unimaginable issues: the definition of family, ownership of embryos, choice and responsibility, and physician and researcher duty and responsibility. It is no answer, at least not a complete one, to say that someone else, preferably a majority in the democratically-elected legislature or the executive, should deal with these questions, no doubt they should. But these issues land in judges’ court rooms because they come up in people’s real lives, and judges have a responsibility to decide the cases before them. Sometimes long before society has reached a consensus or identified all the relevant considerations. For all the criticism of judges and the dissatisfaction with some of their rulings in our heterogeneous, highly individualistic society, the courts are called time and again to resolve difficult and complex issues that get at the essence of our rights as individual human beings and how we relate to each other and to the institutions of government. Moreover, as political schisms here have become increasingly accentuated in the intense atmosphere of a post 9/11 world, it is highly unlikely that these controversies will bypass the courts anytime soon. Therefore, it is also highly likely that judges’ rulings will continue to be unpopular with some people and with some segments of our society. But judges are not meant to be popular and it could be said a good measure of the integrity of a judge is that judge’s unpopularity from time to time. As Justice O’Connor said recently upon being awarded the lifetime achievement award by the National Association of Women Judges, “Judges are probably not doing their job if someone is not unhappy at least some of the time.” Judges are quintessentially checkers and obviously no one likes to be reviewed, let alone checked. A tax on judges by those who disagree with their decisions, which appear to be increasing in both frequency and virulence is not only a reaction to disagreement with a judge’s ruling, but a reflection of a lack of understanding or misconception of the role of judges in our Democratic society. Under these circumstances it is more than ever incumbent upon judges and lawyers to redouble our efforts to maintain both the appearance and reality of impartiality, to work to educate to public on the nature of the judicial role, to get out in the community, to broaden our experience of the diverse cultures affected by judicial decisions, and to work to enhance diversity in the judiciary to make judges reflective of those communities and cultures.
It may be impossible to measure the impact of gender or race and other kinds of diverse factors on judicial decision making and judicial independence, but the public perception about whether judges are fair and equitable and the court’s decisions legitimate depends, in part, on whether these judges embody the broad range of experiences and backgrounds of the diverse communities that they serve.
At all levels of the judiciary—women, minorities, gay and lesbian, and other judges of diverse backgrounds and experiences serve as role models for younger members of the legal profession and show to the broader public the many possible faces of judicial excellence. Studies also suggest, for example, that women and minority judges—disproportionately promote important systemic changes such as community and drug courts, innovative and conclusive administry of solutions and the elimination of barriers to the advancement of other women and minority lawyers.
Let me hasten to say that in speaking about the composition of the bench, I have not digressed from the subject of judicial independence. Diversity as a late Fifth Circuit Judge Alvin Rubin noted, brings to the bench a distinctive medley of views influenced by differences in biology, cultural impact, and life experience. And as former D.C. Circuit Chief Judge Patricia Wald explained, since judges constantly interact, a persuasive woman judge can educate and affect her male colleagues in both important and subtle ways. Justice O’Connor has reminded us of the stories told by the Supreme Court’s first African American Justice, the late Thurgood Marshall, about his own life and career can conform her views on matters of race. It is important to understand this internal dynamic in thinking about judicial independence because judges require independence not only from outside sources but also freedom from their own prejudices and internal pressures to conform.
In all courts, but especially in collegial courts, the process of decision making itself is elucidated and more comprehensive if the judges can offer different backgrounds and perspectives. Studies by Professor Cath Sunstein of the University of Chicago show that the more like-minded the judges on a panel, at least as measured by the political party of the appointing president, the more likely they are to take their like mindedness to an extreme in their rulings. This is predictable, very human behavior and why should we be surprised. We tend to confirm ourselves in our beliefs when surrounded by others who are and think just like us, and we learn from others and moderate our views when we come across different perspectives and experiences. I submit that diversity on the bench should properly be viewed and studied not only as assisting in the public’s perception of fairness and impartiality, but as an effective, internal check against the imposition by judges of their subjective biases and preferences. That is a way of ensuring true judicial independence measured my impartiality.
There is one other way in which judicial independence is crucial to the role of a judge. In some cases judges are required to be counter majoritarian as when they uphold the rights of the individual against the state or invalidate a statute unconstitutional. The courts are also the only non-bureaucratic arm of government where litigants get to present their positions directly to the decision maker who decides based on the facts of the individual case. A court is a forum in which the usual pressures of social status and of the economic order are suspended at least in part. For in applying the rule of law the judge is mandated to act, “ without respect to persons,” which means of course not without respect but with equal respect under law. Dismissing the inequalities of social standing, education, and wealth that we know exists and we can predominate in everyday life. Judicial independence is what permits a judge to level the playing field in the court room and decided immune from those considerations that the law deems to be extraneous. Some of you might wonder why you should care about threats to judicial independence. You’re not judges, at least not yet although I’m sure some of you will. Moreover fewer cases are going to trial everyday and alternative private means of dispute resolution are on the rise. Unless you’re a criminal or you have no resource at all, the likelihood of being brought in on litigation might seem remote to you.
And in any event, perhaps you don’t plan to practice law at all, but to become an investment banker or to start your own business. Even so, you cannot remain unaffected by what happens in the judicial system. As a former transactional lawyer myself, I know that in crafting business strategies for my clients and drafting contracts, decisions are made and risks weighed against and allocated against the backdrop of what the law provides and permits. The more global our interactions, the greater the possibility of misunderstanding of our language, cultural, and legal differences, and the more important that there be clear rules well understood and reliably applied. As much as we can hope to have our personal affairs privately ordered and confidential, one cannot control that others might disagree and seek resolution of family conflicts in public courts. And we are reminded daily of the courts might be the only bulwark against and undo encroachment of our individual liberties and privacy in the heat of perceived national security requirements. So for our life times at least, the ability of the courts to act impartially and without outside political pressure should be a concern to all.
It is incumbent to the practicing bar to rise to the defense of the courts when judges are unfairly attacked for decisions that may be unpopular. Among them the most courageous decision invalidating unconstitutional enactments reflecting the tyranny of the majority. The relative isolation of women and minority judges may well make them more vulnerable to attack and less well defended by the judicial and legal communities.
So what can you do? What can you do to preserve the integrity of the courts and their ability to uphold the constitution and protect individual rights? Many bar associations have adapted and implemented the ABA’s recommended programs for the defense of the judiciary from public retaliations from popular decisions. And many more should do so because judges are mostly ethically precluded from defending themselves, and judges are not, in any event, the best messengers because judges defending judicial independence can seem self serving as if they were telling non-judges that they are unfit to opine on important legal questions. So lawyers are much better advocates of judicial independence. The point is not to defend a particular judge or ruling, but to educate the public and the media where necessary about the process that led to the decision, its reasoning, and the avenues for appeal. Lawyers must also speak up about constructive reform in the judicial branch and participate in the fair evaluation of judges. Among those of you who are considering or will be entering into a judicial clerkship upon graduation or an internship or externship, for those of you who are students still, you will become first-hand observers of the judicial process from within. And in addition to the unparalleled experience of assisting a judge with a real work of chambers as a young lawyer, you will I hope be able to convey the seriousness and care with which judges conduct themselves in their day-to-day adjudication. Our system of judges, of justice, our system of justice, the jewel crown according to the late Chief Justice Renquist should not be regarded as an object to be gazed upon and admired from afar. Its strength and vitality depend not on the words in the Constitution but in the degree to which we all are committed to seeing the promise of equal justice realized for as many people, in as many situations as is possible. Our system of justice is a bright beacon, but not all ships are at harbor. Judicial independence is a means by which we can assure that in the future, as yet unimagined conflicts and questions will be decided impartially, fairly, and that all persons will have access to the courts where they will be treated equally and with the respect that they deserve. So I exhort you today, as you go forward in your legal practice, to be not only advocates for clients, you must do that of course, but also to be stalwart defenders of our system of government which depends on an independent judiciary and the rule of law for a vibrant and developing democracy.
Let me say that as I look out and I see the graduating students, I remember the time in 1975 when I was graduating from law school. I had gone to law school not so much because I was convinced that law was my path, but frankly because after considering a graduate program in philosophy, I thought a law degree would be a more useful tool. It was the aftermath of the sixties after all, and law could be used as an instrument of reform for society’s ills: racism, discrimination, entrenched poverty; those were issues that did interest me. Through my law school studies, I had difficultly seeing the connection between lets say the rule in Shelly’s case in the great social issues of the day, I don’t think there is one by the way. I was diligent in law school, I read all of the assigned cases and I even spoke up in class, yet on more than one occasion I confessed to have completely missed the central point of an opinions analysis and I distinctly remember having been called in class one day and asked to explain the different our comes in two cases that had been part of our assigned reading. Different outcomes, how to reconcile, this was news to me. I had read the cases alright and had had enough trouble understanding each in its own right to step back, question, and try to fit them into a larger context, larger structure of law was not my speed at that time.
Upon graduating from law school with my lofty ideals of social justice; I have one bit of advice for you. As a former law student, lawyer, and mainly as a mother, don’t be afraid as you go forward. You know more than you think, you know how to think, you have common sense. Do not be afraid to ask there are lots and lots of people, family, teachers, professional mentors, and colleagues who can offer assistance or at least another point of view. People like to be asked for their advice. I regularly approach my colleagues, saying I would like your advice about something that I have been thinking about. It is a very effective way to make a person turn to you psychologically, emotionally, intellectually, and it makes them receptive to what you have to say as well. And do not be afraid of uncertainty and change in your career. A business plan for the rest of your life is not necessary. I did not at the age of ten decide that I wanted to be a judge and then organize all my activities toward that goal. I started a law firm practice, I became a counsel, I’m sorry, an in-house counsel for a corporation, I then went into the District of Columbia government, and then I went to the bench. The arch of my career, to put it charitably has been organic. Interesting new challenges and opportunities often come disguised as temporary setbacks and even failures. Read them as guide posts, use them as markers to strike in a different direction. Don’t be afraid of yourself. Know who you are and what you are good at, and listen to that inner voice that has been speaking to you since childhood. Trust your instincts. Human instincts are not wild, unfocused, eruptions from a primitive and preconscious state. Rather, your instinct on a particular decision facing you is a combination of that inner voice and what you have learned in school and from your life experiences. And look at those around you, your family and your friends, they have supported you during you law studies, they have heard you grumbling about the hard work, the long hours, the tight job market, the mounting debt, and soon I promise you will be grumbling about the bar exam. Yet they are still here celebrating your law school graduation. They listen to you and they support you because they love you. That’s why they are here. So say thank you and after you receive your degree today, go out and enjoy the day and have fun and don’t be afraid.