Judicial philosophy
I have not served as a judge, but if I am confirmed to serve as one, my role would be the fair administration of justice and my philosophy would be simple:
recognizing the limits of judicial power, approach every case with an open mind – give all parties a full opportunity to present their case and be heard, carefully review the facts, scrupulously review the applicable law, methodically apply the law to the facts, and issue clear rulings that make the holding and the underlying rationale clear
Would also treat every person with dignity, respect, and patience and discharge my duties in an efficient and prompt way – that is all I have expected and wanted from the judges before which I’ve appeared in nearly 20 years of experience as a litigator, and that is the standard to which I would hold myself if I am so fortunate as to be confirmed
Matter of First Impression
If a new legal issue or interpretation is brought before me, and there is no binding Supreme Court or Ninth Circuit authority on that matter, I would first seek guidance from other jurisdictions (other circuits).
I would also consider related or similar legal issues and reason by analogy within a doctrinal context, which is a central form of legal reasoning
(An analogy may either be to another case or to another legal doctrine, and the analogy rests on there being some common characterization of the facts in both cases or the two doctrines which is relevant to the issue)
Statutory Interpretation
- Follow Supreme Court guidance and start with the text of the statute, which is the best evidence of its meaning
- Also look to Supreme Court precedent and Ninth Circuit precedent to ensure that I am interpreting the text of the statute consistent with any binding precedent
- If the text is ambiguous/unclear and there is no precedent interpreting the statute, then I would look to other circuits as persuasive authority
- If the issue is truly a matter of first impression, then I would turn to canons of construction (guides used to interpret legal instruments like statutes) to interpret the text of the statute
- [Only as a las resort would I consider legislative history to clarify vague or ambiguous statutory language or determine congressional intent, but I would be very cautious in doing so]
- [Policy considerations should not never weigh into statutory interpretation]
Gorsuch - on Statutory Interpretation/Society of Laws
Bostock (2020) - Justice Gorsuch:
“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
“Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”
Originalism (vs. Purposivism, etc.)
- I would be guided by Supreme Court precedent on the application of originalism or any other theory of interpretation
- The Supreme Court has applied originalism in a variety of contexts – the Heller opinion and its progeny are examples of that. Crawford may be another example.
- I would be guided by those precedents and faithfully adhere to them if issues of that variety were to come before me as a judge
- [Originalism = theory of interpretation of legal texts that believes that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law]
- [Purposivism = theory of statutory interpretation whereby courts strive to interpret statutes in accordance with the purpose. I am not aware of that Supreme Court case applying purposivism and so I would not apply it absent clear Supreme Court or Ninth Circuit precedent.]
“Living” Constitution
- I have never used that term to describe the Constitution.
- As Chief Justice Marshall said in McCulloch v. Maryland in 1819, the Constitution is “intended to endure for ages to come” and “to be adapted to the various crises of human affairs”
- What I believe is that the constitution is an enduring document that continues to protect democracy and freedom.
Why do you want to be a judge / why I am prepared
- Always drawn to public service. That is why I started my career as a judicial law clerk and subsequently served in both the United States and the California Departments of Justice. That is also why I proudly served as a federal prosecutor in the Central District of California.
- Becoming a judge would be the highest honor of my legal career and the utmost opportunity to serve my country
- I bring a diversity of professional experience that equips to understand different perspectives, which is critical in the role of a judge – I have represented individuals (rich and poor), the government, and companies. I have done both civil and criminal litigation. I have done trials and appeals. I believe I am well prepared for this important role and would be honored to have your support.
Diversity on the bench
- Public confidence in the integrity and impartiality of the judiciary is promoted when judges reflect the diversity of our nation – it shows that everyone has a place in our society at all levels of our government and institutions
- There are many forms of diversity – I would say that my professional diversity has equipped me to understand different perspectives
- Being a role model has always been important to me – I have had many role models that inspired me to pursue opportunities that I normally would have been intimidated to pursue – I hope that by being on the bench, if confirmed, I would be able to encourage other attorneys with or without backgrounds similar to mine to pursue similar opportunities as well
Why civil rights/immigrants’ rights
- I come from an immigrant family. I remember distinctly being in high school and my dad preparing for his naturalization exam.
- The American Dream has been part of my family history and experience. Equal justice under law in this country.
- Immigration law is a complex area of law (the immigration code has been compared to the tax code) – so intellectually drawn to it, as well
- Practically, I wanted to represent clients and “roll up my sleeves” early in my career and felt that public interest law would allow me to do that, which it did
Why a prosecutor?
The role of the prosecutor is to do justice - not about winning or losing, but doing what is just.
Our system of justice suffers when any accused is treated unfairly.
I served in the government for nearly 8 years, 6 of those in the federal government, including as a prosecutor. I understand firsthand the nature of criminal and immigration enforcement and the administration of the criminal and immigration laws.
Also understand the importance of building trust between law enforcement and the communities served.
I had the honor to work closely with honest, hard-working FBI, ICE, DEA, and other state and local law enforcement agents. I admire the skill that they bring and their commitment to justice. As a Special AAG in the CA DOJ, I also worked closely with the Department of Law Enforcement and local DAs and the LA Sheriff’s Department.
I am proud of my work in the criminal justice system, Senator. The relationship between law enforcement and the communities they serve must be grounded in trust in order to ensure safety and protection for all.
Why your career path
- I am the first in my family to become a lawyer.
- Important to me to become a professional of some kind. I wanted to make my parents proud given that they had had much fewer opportunities than I did and had given us a shot at the American Dream.
- Throughout my career, I have been open to different opportunities, always curious to try new approaches, new areas of law
- I have been fortunate to see the law from many different sides and perspectives – as a law clerk, a public interest lawyer, a government lawyer in federal and state government, a prosecutor, a defense lawyer in private practice, a clinical professor, and as a CEO, where many of the legal issues I deal with now are employment-related or even more contract-focused and transactional.
Private practice experience
After nearly 7 years of government service, I joined Covington & Burling LLP as a Special Counsel. My practice focused on white collar criminal defense, internal investigations, and complex commercial litigation. My typical clients were Fortune 500 companies and executives in the technology and financial sectors.
Systemic oppression
Systemic oppression/racism refers to policies and practices in a system that perpetuate discrimination or inequality based on race, gender, disability, religion, etc.
Implicit bias
Refers to biases that all human beings have below the level of conscious awareness – no one is immune from having unconscious assumptions about people or circumstances.
Important that implicit biases do not influence perceptions, decisions, or actions unfairly.
Resume Answer
In my nearly 20 years of legal practice—as a civil rights lawyer, federal prosecutor, defense lawyer in private practice, and clinical law professor—I have not confronted that issue. If am confirmed to be a judge, and that issue were to come before me, I can assure you that I would research it carefully, as I would any issue that is new to me or that I may have researched in the past.
Pending SCT Cases/Other Cases
That issue is currently pending before the Supreme Court. I would follow the Court’s decision without reservation [even if it conflicts with the position that Public Counsel has taken in its amicus brief in that case].
Recusals
If confirmed, I will scrupulously follow the Code of Conduct for United States Judges, the standards set forth in 28 U.S.C. § 455, and all other applicable principles governing recusal.
As stated in SJQ, recuse myself from all matters that arose, were filed, and/or were pending during my tenure as President and CEO.
Advocate v. Judge
The duty of an advocate is to zealously represent their client’s interests without regard to personal views. In every position I have ever held—as a civil rights lawyer, a federal prosecutor, a defense lawyer in private practice, a clinical law professor—I have done that.
By accepting this nomination, I am vowing to put behind my role as an advocate and assume a completely different role as a judge as a neutral arbiter of the law – approaching every case with integrity and impartiality; providing the parties with the full right to be heard; carefully reviewing the facts; meticulously applying the Constitution and the law – the precedents of the U.S. Supreme Court and the Ninth Circuit – to the facts of each case; and being clear and transparent about not only my decision but the reasoning supporting that decision.
Canon 2 of the Judicial Code of Conduct
Canon 2 requires judges – and judicial nominees – to avoid impropriety and any appearance of impropriety or lack of impartiality in all activities.
Sentencing factors outlined in 18 USC 3553(a)
[Start with determining the sentencing guidelines range pursuant to the USSG which consider the level of the offense and the criminal history of the defendant]
- the nature and circumstances of the offense and the history and characteristics of the defendant;
- the need for the sentence imposed to reflect the seriousness of the offense and provide just punishment, afford deterrence, protect the public from further crimes;
- the kinds of sentences available and the sentencing range established for the category of offense;
- among other requirements, the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.
Personal views
Any view that I might have would be irrelevant to my serving as a judge. The role of a judge is to be impartial and fair to all parties – to set aside any personal views or opinions and apply the law to the individual facts in a case evenhandedly.
Canon 2 requires judges – and judicial nominees – to avoid any appearance of impropriety or lack of impartiality. Irrespective of whether I have an opinion, it would not be appropriate under the code of conduct to share my personal views on issues that may come before me as a judge. [No hints, no previews, no forecasts]
Importance of Stare Decisis
Court applies the doctrine of stare decisis by following the rules of its prior decisions absent exceptional circumstances - unless there is a special justification or strong grounds to overrule precedent
Horizontal and vertical aspects
Supports legitimacy of the judicial process and fosters the rule of law by encouraging stability, certainty, predictability, consistency and uniformity in the application of the law to cases and litigants
Thus, one view is that following the carefully considered decisions of past Justices by adhering to principles of stare decisis supports the Court’s role as a careful, unbiased, and predictable decisionmaker that decides cases according to the law rather than the Justices’ individual policy preferences.
Overturning Precedent
Dobbs (2022) – the five factors that should be considered in deciding whether a precedent should be overruled:
(1) they “short-circuited the democratic process
(2) both lacked grounding in constitutional text, history, or precedent
(3) the tests they established were not “workable”
(4) they caused distortion of law in other areas
(5) overruling them would not upend concrete reliance interests.
Janus v. AFSCME (2018) – The Court’s decision in Abood overruled because it was poorly reasoned, had led to practical problems and abuse, was inconsistent with other First Amendment cases, and had been undermined by more recent decisions.
Universal or Nationwide Injunctions
Article 3 confers power upon all federal courts to decide cases in law and equity – not limited to the Supreme Court
Rule 65 provides authority to issue injunctions and restraining orders
All nationwide injunctions = universal injunctions, but not all universal injunctions = nationwide injunctions (statewide, local, etc.)
