Podcast: Can the Courts Preserve Democracy?

Sep 30, 2020

Or, listen on Spotify

Judge Vaughn R. Walker served as a U.S. District Judge from 1989 to 2011, and while he was nominated by two Republican presidents, he also presided over many progressive decisions, including the case that paved the way for the legalization of gay marriage. Today's show is part civics lesson and part reassurance in the resilience of our democratic institutions. We discuss the court as a remaining bastion for thoughtful discourse, and, of course, the impact of Justice Ginsburg’s death on the future of the Supreme Court.

Jeff: All right. Welcome Judge Vaughn Walker to the Commune podcast. You're the first judge, to ever christen the podcast. So I appreciate the opportunity.

Judge Vaughn Walker: Well, Jeff, I like to associate with people who are generally not very well acquainted with judges, they tend to be a higher class of people.

Jeff: Oh, we'll find out. 

Jeff: And I suppose your career has had many highlights, not the least of which, that you presided over a case that did receive quite a bit of attention, which I believe was the Hollingsworth v. Perry case, where you overruled Proposition 8 in California, and by doing so, essentially paving the way for the legalization of gay marriage. And I will say, and I won't swoon over you too much in this interview, but you wrote, what I would consider one of the most articulate decisions I have ever read. I remember my father sending it to me. So I will just say that society owes you a great debt for your service. So thank you. Thank you for that.

Judge Vaughn Walker: Well, that's very nice of you to say. And I commend you on reading the judicial decision. [inaudible 00:04:12].

Jeff: Yes, it was the most articulate I've ever read. And I've only read five. I will couch it in that. But no, I am quite serious. I remember reading it and I went back to it recently in anticipation of this conversation and it moves me today the same way it moved me I think in 2010 or 2011 when I first read it.

Judge Vaughn Walker: Well, being first on a hit parade of five is at least a modest achievement.

Jeff: Yeah. Well, so maybe we could just start with the elephant in the room, because obviously the news media is completely obsessed and probably for good reason around the current situation with replacing Justice Ginsburg and the impact that that will have long-term on the court. So I wonder just in a broad swath, if you could unpack a little bit about where we are with this, and the makeup of the court, how that might change and what are some of the implications of that.

Judge Vaughn Walker: Let me accept your invitation, Jeff, to approach this with a broad swath.

Jeff: Great.

Judge Vaughn Walker: There are three points I would like to make. First, it is certainly true, the Supreme Court has an important role in our society. But it sits at the pinnacle of a huge judicial apparatus that is underneath. There are a large number of lower federal courts, as they're called, I was obviously a judge on one of those. And there's a even much larger group of state courts which are underneath. And the vast bulk of the judicial business of the United States is conducted in those lower courts, primarily the state courts. Something on the order of 80, 85% of judicial cases are in those state courts and a relatively small proportion in the federal courts. And those cases that actually get to the Supreme Court are very few.

Judge Vaughn Walker: And it's important to remember that whatever the Supreme Court decides in a case of sweeping constitutional significance, does not necessarily set all of those other judicial actors in lockstep in response. It's not automatic. It's not something that responds definitively and decisively to whatever the Supreme Court decides.

Judge Vaughn Walker: Second, there is in the law, a certain indeterminacy. One of the discoveries that one makes as a young lawyer starting his or her practice, when a client comes in with a problem, or you receive an assignment from a senior lawyer in your office, and you think, "Oh, my goodness, there must be lots of cases on that point," or lots of authority to decide this issue. And you go to, in my day, the library or today you sit down and do your computer research on one of the legal research services. And you discover, no, there isn't. In fact, very often, there's nothing directly on point. You can find analogies, you can find some similarities, you can find some points to stress and to argue and so forth. But there's a certain indeterminacy with the law.

Judge Vaughn Walker: And the third point, there really are three values that a judicial system serves in society. Stability, predictability, and flexibility. The first two are efforts to ensure that light cases are treated the same way. So that there is stability in the system and people are able to predict the outcome of a dispute with a reasonable degree of assurance and therefore shape their conduct accordingly. And yet, law reflects society and commerce and human relations much more than it shapes these things. It reflects what's going on in society. And as a consequence, there is along with stability and predictability, an element of flexibility with regard to the law. And that's particularly true when you're dealing with common law, which is judge made law and with sweeping constitution principles that are articulated in the United States Constitution. And of course, it is that which is the grist of the Supreme Court's mill and these high profile cases that attract so much attention.

Judge Vaughn Walker: The takeaway, I think from that is not to suggest that Ginsburg's replacement will not be an important new member of the court and will not lack significance. But life will go on, commerce will go on, human relations among Americans will go on. And things are not going to change dramatically, at least not in the short-term. So it's true, Justice Ginsburg was a preeminent jurist and made significant contributions to our law, and she will be missed. But the ship of state will sail on.

Jeff: So assuming that the President brings his nominee to the Senate in short order, which seems to be the current path, and I've looked at some of the, I suppose you might refer to them as the top candidates, but there's a woman named Amy Barrett from, I believe the Seventh Circuit Court in Chicago, she's 48 years old, younger than I am, darn it. And assuming that there are the votes to confirm her and the resulting, I suppose proportion within the court would be shifted from a, I guess one might say more even balanced, maybe five, four between conservative and liberal, with Justice Roberts seeming to be quite protean, in a lot of ways and thoughtful.

Jeff: But this will obviously, weigh the conservative side six to three, with I suppose. Also with Stephen Breyer who I believe it is 82 and will be the senior member just in terms of age on the court, you are not overly concerned that, that shifting will exacerbate the polemic or the social divide that we see reflected in daily politics.

Judge Vaughn Walker: Well, you have to differentiate rhetoric from reality. Political rhetoric does not necessarily reflect the reality of life on the ground. These terms, liberal and conservative, when applied to anything having to do with the judiciary, are shorthand and at least somewhat misleading. I'm not saying that, because of the indeterminacy of the law and the need therefore, for flexibility and recognition of changes in society that need to be reflected in the law, that the habits of mind of one associates with liberality or conservatism are unimportant. But it really is more a matter of a habit of mind or a habit of approaching problems that makes a difference in coming to judicial decisions. Much more than one's political affiliation, much more than one's view on partisan matters.

Judge Vaughn Walker: So don't be too swept away by the characterization of these judges along a political spectrum. First of all, most of the cases, even at the Supreme Court of the United States are cases that involve the most mundane matters that never get anybody's attention. You'll never get Nina Totenberg or Jeffrey Toobin or any of these other Supreme Court commentators excited about some of the Dormant Mineral Act cases that the Supreme Court may have to decide or certain cases involving various kinds of statutory interpretations. Patent cases for example get essentially no attention in the popular media and yet those cases comprise the bulk of what the Supreme Court does have return. And even more so of course, that is true in all of the other judicial actors that I mentioned a minute ago.

Judge Vaughn Walker: So it wouldn't be a bad idea in thinking about what's going to happen here. To step back, take a deep breath, and realize that, yes, there may be some changes. But the sky will not necessarily fall, nor will it rise depending upon who's on the Supreme Court. It makes a difference, but it's at the margin.

Jeff: Do you think that one of the reasons why you, I would say have a very calm or calming attitude about it, is because you believe and there is good reason to believe that the court still provides a forum for intelligent and thoughtful public discourse in a society in which that is largely absent. And when you look at, obviously, presidential politics or electoral politics, I mean, all you can really see is the invective, people are more polarized than ever and intelligent public discourse, which I would argue is at the core of the sustainability of liberal democracy, I mean, it just is almost has completely eroded at this juncture. Democrats and Republicans, whether they're elected officials or civilians, can barely talk to each other.

Jeff: But it seems that the court has always maintained a stature, above the fray. And what gives me some confidence in that is some of the decisions that were rendered this past summer, where, for example on, I think it was the Title VII case, Neil Gorsuch came across the aisle, and I believe wrote the assent in that particular case. Do you feel that, in short, the court still hovers above the political invective?

Judge Vaughn Walker: Well, I do. Absolutely. And I think it's unfortunate in a way that the Supreme Court does not allow contemporaneous broadcast of its hearings. Because I think that would demonstrate to people that the Supreme Court indeed operates in that fashion, and the judicial system really operates that way. Now it's people by imperfect individuals, as is every other human institution, but the processes lend themselves to calm discourse, and also pretty heated arguments at times, but nevertheless, pointed arguments over points of principle.

Judge Vaughn Walker: To that extent, I think the parliamentary system has an advantage over our system, because the prime minister or the opposition leader has to go before the house and to defend his or her position and has some pretty pointed questions directed at him or her in the same way that an advocate in the Supreme Court can confront pretty pointed questions from the justices or indeed, a lawyer in a hard fought piece of litigation can be forced to defend his or her position based upon common sense and authority and so forth. These are important values, and they do get overlooked under much of the political process. And I think that's unfortunate. But my sense is that the Supreme Court and the courts generally continue to provide that anchor of stability, which is very important in any society.

Jeff: Yes. Well, particularly in a society that seems to be questioning its institutions and its norms. Certainly, within the context of COVID, there seems to be a microscope on the mainstream media, on science, on government in general, and it's easy to feel that our trust in these institutions that have provided stability for over 200 years is eroding. And I'm praying that the court can remain a vestige of, like I said, intelligent and thoughtful discourse that can continue to provide some of that stability.

Judge Vaughn Walker: But don't mistake, thoughtful discourse for completely calm and dispassionate dialogue. Some of the arguments are pretty heated. And some of the questioning that you have in a judicial proceeding can be pretty pointed and vigorous. I've watched President Trump and I have thought any number of times, wouldn't it be great if he could be put in the witness box and cross examined with respect to some of the things that he says. A good cross examiner would have a field day with him. Assuming that the proceedings were presided over by a judge who kept control of the proceedings, it can get pretty hot and heavy.

Judge Vaughn Walker: But the point is, one you touched on, Jeff, and that is simply because you're having a calm discourse doesn't mean you're not asking pointed questions. You discover the defects in a society or in any position by pointing out the problems, by asking questions, trying to get reasoned answers to those questions. And that's exactly what happens in a judicial proceeding. It's a question and answer proceeding. And we don't get in much of the political dialogue that we have, pointed questions and answers in which the responder is forced to be pinned down to what he or she says in response. And that's an important part of it.

Jeff: Yes. Well, we may see President Trump in that seat someday, we'll have to wait. But I guess I would probe here just a little bit more before we open the aperture of the conversation a bit. Because I suppose many in liberal circles are worried or I might say apoplectic, around the incendiary issue of abortion and the notion that in a unbalanced court Roe may be overturned. So I wonder if you could provide any insight into the reality of that, and what does that process actually look like? I know the court is petitioned to hear, I don't know, 10s of thousands of cases, it picks a very, very few to hear. And even if they did come up with a ruling and not follow precedent, I'm not exactly sure whether that means to a woman's ability to have an abortion depending on what state she lives in. So I don't know if you could just shed a little bit of light on this particular issue since it does take up a lot of air.

Judge Vaughn Walker: It does take up a lot of oxygen. And-

Jeff: Yeah.

Judge Vaughn Walker: ... the speculation about these matters. But it goes back to the first point I made. And that is the Supreme Court sits at this pinnacle. But all of the other judicial actors, and indeed political actors underneath or involved with the issue, whatever it happens to be, don't necessarily march off and lockstep in response to a Supreme Court decision. And indeed, you have seen that in the abortion cases. You had Roe decided sometime in the early '70s. And there have been subsequently any number of decisions which have elucidated what Roe meant, cut it back in some respects, applied it in different circumstances. And it isn't a binary matter at all.

Judge Vaughn Walker: Interestingly enough, I believe I'm correct, that Justice Ginsburg raised some question whether it was appropriate for the Supreme Court to decide Roe in the way that it did when it did. That a woman's right to an abortion was marching through the various state legislatures in the country at that time, and it looked as if in certainly most of the states, abortion was going to be available as a medical procedure to a woman who wished to have one. As I'm certainly true in California. Interestingly enough a piece of legislation signed by Ronald Reagan when he was governor. And the Supreme Court, however, stepped in and essentially constitutionalized the issue. And that intrusion into the political process has had serious consequences. That points out the need for the Supreme Court and other courts to exercise some restraint in the decisions that they make. Because at a certain level that can upset the political process and lead to the almost never ending disputes that we've had over the abortion question in the, I guess the last 40 years.

Jeff: Yeah, I mean, it will be I think, interesting to see, given that many evangelicals and religious people in the United States seem to hold their nose and support the President in support of this one particular issue that he will stack the court to overturn Roe. And the asymmetry, I think, is interesting, because, as I think you pointed out astutely earlier, that the court can, in some ways, reflect society. But we are in this strange place, where we may be inching towards the tyranny of the minority. Where I think there hasn't been a Republican president has won the popular vote with the exception of I think George Bush against John Kerry in 2004, in quite some time. Yet I believe Republicans have nominated 15 of the 19 past... Or 15 of the past 19 Supreme Court justices were appointed by Republican presidents. So in some ways you may have a court that has different proclivities than with the pulse of the people. But I suppose that what we hope for is that the court can rise above any kind of politicization that might be there.

Judge Vaughn Walker: Well, we'll see. And if some of the dire predictions about President Trump not accepting the results of an election when he loses come to fruition, the Supreme Court with a new Trump appointed justice may have to sort it all out.

Jeff: Yeah. Well, that was actually, you intuited my next question, because I think we're inexorably moving towards that moment with one eye closed in denial, and the other eye open in trepidation that come November 3rd, we're not going to have any definitive results. And the President will, in some fashion claim victory and try to control the narrative. And that this may bounce to the courts. And that, I don't believe that there is any precedent there for that, although, I suppose Bush-Gore, but I wonder how this sorts out.

Judge Vaughn Walker: We'll see how it sorts out. It could go back to the House of Representatives as it did in, what is it? The Tilden-Hayes race of whatever, with 1870 something rather. There are a lot of different scenarios that could be in our future. You're correct, that there is an anomaly that people who proclaim to have strong religious and social values tend to coalesce around Donald Trump, who hardly in his personal life reflects what you would associate with conservative social values and behavior. Politics does make strange bedfellows, it always has and probably always will. But there is an irony. And these issues or these circumstances have opened up a couple of issues. Abortion is one obviously. Second Amendment or gun rights is another issue in which you perceive exactly correctly, I think that the majority of the country feels on one side of that issue and yet, there's a strong vocal minority that feels strongly on the other side of the issue. And that vocal minority has received a pretty welcoming reception in the Supreme Court of the United States.

Judge Vaughn Walker: But it is just part of the yin and yang Jeff, that's been going on for 230 years. And after all, remember this, not every decision to the Supreme Court of the United States, in its long history has been a wise and prudent one. They've made some pretty lousy decisions. The Dred Scott decision, the old sleeping car decision in Plessy v. Ferguson in 1896, I believe it was, the Korematsu decision upholding the incarceration of Japanese-Americans during the Second World War. They've issued some real doozies that are not the kinds of decisions that we would like to see them make and that obviously have not stood the test of time very well.

Jeff: Yeah, to mean, there seems to be a history of self correction there, though.

Judge Vaughn Walker: You took the words out of my mouth, Jeff. Exactly. There tends to be because of the flexibility of the process, there tends to be an opportunity and chance for correction that in due time has tended to work its way to solve those issues.

Jeff: Yes. The arc of the moral universe is long, I suppose. Perhaps we could hover off the court for a moment because I would love to get your broader insights around the implications of this election in general and how you're seeing that.

Jeff: One of the reasons why I'm so interested in the court, to be honest, is that I'm hoping that it is a protection, a safeguard of democracy. And so I wonder how resilient you think democracy is, given the penchants of President Trump.

Judge Vaughn Walker: President Trump is not the first person who has corroded democratic institutions in this country. There have been others in the past, and there will be others in the future. He has been more graphic in doing so than those that we've been accustomed to. But after all, we had, what was it? Basically, almost 100 years of Jim Crow, 80 or 90 years, at least of Jim Crow after the tragedy of the Civil War. And there were a vast number of demagogues who roil those waters. We've had, before the Second World War, we had the people who were actually in positions of some authority and at least respectability, who were pretty sympathetic to fascists, no less than the father of later president, President Kennedy's father was to say the least, soft on Hitler. And Charles Lindbergh, great hero, in many respects, was pretty sympathetic to the fascists. He didn't occupy the presidency, and neither did Joseph Kennedy. But they were important figures in their day.

Judge Vaughn Walker: And we had, of course, the McCarthy era in the 1950s. And we've had others that have been at the margins of political dialogue for some time. It is disturbing, however, that someone as unschooled in our history and traditions, as Donald Trump is, has acceded to the presidency. And I do think that reflects a shortcoming in our political system and the way that we go about selecting a president. I rather pine for the days when we had contested political conventions as the means by which the presidential nominee of each party was selected. They certainly didn't always select the best man or the best person, it was always the best man in those days. But nevertheless, there was a mediation process that occurred in a political convention, which is lacking, I think, in the primary systems that we have today.

Judge Vaughn Walker: One advantage we do have, and we still retain to a considerable degree, although it has eroded some, is a two-party system. Now people are always very critical of the parties, they always say, "Oh, the dialogue is too partisan. And politicians should not act in lockstep to their party." But there is an advantage in a country as big as ours, that stretches across the continent. With 320 million people, many of which are of very different backgrounds, different points of view, you have to have a political process that mediates these different points of view, these different backgrounds and in a two-party system, each party has to represent a broad enough coalition so that a lot of those disputes are sorted out before the final contest. We still have that. And I think that's an important attribute of our system. But I wish we had a more vigorous way of mediating those disputes within each of the parties than the primary election calendar system that we presently have.

Jeff: Right.

Judge Vaughn Walker: If the delegates could go to the convention and sort things out, rather the way that legislation is sorted out in the Congress of the United States, a lot of compromises, a lot of dialogue, a lot of discussion. And with that being two stream of consciousness, Jeff, there's another point to be made in this regard. And it contrasts the judicial system, or the judicial process, I should say, with the legislative process.

Judge Vaughn Walker: In California, we have as you know, an initiative process that's very rigorous. You and I can sit down and with enough time and effort, put together a piece of legislation to do all manner of things. We don't really have to consult anybody else, we have to get it by the State Attorney General. But the State Attorney General's authority to modify the provisions is pretty limited. Then of course you have to go out and raise the money to get the matter on the ballot, and get it before the voters. The point is this, that's a process that has relatively little of the mediation process that I'm talking about. It comes through a legislative process.

Judge Vaughn Walker: And in the same way, when you have a Supreme Court of the United States, that is making pronouncements on broad social or political or economic issues, there isn't a lot of mediation among the various points of view that may bear on these questions. And yet, that is an essential part of any political process that will be legitimate and will be acceptable. And to circle back to where we began this discussion, I think a shortcoming of our presidential selection process is we don't have enough of that mediation function.

Jeff: What are your feelings around the utility of The Electoral College at this juncture?

Judge Vaughn Walker: Well, I used to think it was a reasonable compromise, and it was a compromise between the big states and the little states. And until 2000, we never had a situation in which, except one, in which the winner of the popular vote lost The Electoral College. And then we've had two in this century already. And I suppose it's conceivable we could have another. It's an irony without question, that Hillary Clinton did not become president of the United States, because she got three million more votes than Donald Trump did. But the distribution of those votes was just skewed enough so that Trump managed to get an Electoral College victory. If that were to happen, again, I think it would be a great misfortune. I don't imagine there's much reasonable prospect of changing The Electoral College. The small states would resist it. And you have to get two thirds approval for any constitutional amendment. So I think we're stuck with it.

Jeff: Yeah. Yes.

Judge Vaughn Walker: I believe for foreseeable future.

Jeff: Yeah. I want to move briefly to social justice. Obviously, we've just had a summer of national reckoning around race, racial equality, social justice. And you referred earlier in our conversation to a number of cases, Dred Scott, Plessy that had very pejorative deleterious impacts on the quest for racial justice. And certainly there's a lot of emphasis, in this moment put on institutional and systemic racism as the modern causes for inequities based on race. And I wonder if you see legal impediments to achieving a more fair and equal world. And if you do, what are those legal impediments or legal barriers that we're going to need to overcome to instantiate that world?

Judge Vaughn Walker: I don't know that there are legal barriers, so much as there are problems in the way that society is functioning. Let me circle back to something I said earlier.

Jeff: Sure.

Judge Vaughn Walker: That the decisions of the Supreme Court for example, as much reflect society as shape society. Here we are in 2020. Basically two generations after the Supreme Court's decision in Brown v. Board of Education in which it held that racial segregation in public schools was unconstitutional. And yet we're still dealing with these same kinds of issues two generations later. What the Supreme Court decided in that case did not quickly or automatically change educational opportunities for African-Americans. And it still is not. African-Americans, as a general rule, have fewer educational opportunities than others. That reflects, in part, of course, to economic circumstances, it reflects history and cultural backgrounds. It's a long, hard road to providing equality in all of the opportunities that society offers to people without regard to ethnicity and history and social background. That isn't really changed much by judicial decisions. It's more fundamental.

Judge Vaughn Walker: And so is there systemic racism? That's a hard term to get your arms around. Yes, certainly individuals are sometimes racist, sometimes racist quite often. And sometimes they're racist only a little bit. People are the product of a lot of circumstances in their backgrounds and they're not always as fair-minded as we would like them to be. But by the same token, you can't look around and see what people will do to help one another and not be impressed by how kind and generous and charitable people often are with their fellow citizens and even people who are not their fellow citizens. How much of that is a legal problem? And how much of that is a more serious, underlying social problem? I think it's pretty clear, it's much more of the latter than the former.

Jeff: You were appointed by George Bush, is that right?

Judge Vaughn Walker: I was nominated by both Ronald Reagan and George H.W Bush.

Jeff: Right.

Judge Vaughn Walker: I went through a two-year long confirmation process. It was very difficult. And I was opposed by Nancy Pelosi, by the Board of Supervisors of the city and county of San Francisco, by at least one of the local newspapers and by the local Democratic Party, and so forth. So I had a string of people who were opposed to my nomination. I had represented the United States Olympic Committee successfully in trademark infringement litigation against a group that wanted them put on athletic competitions that they wanted to style the gay Olympics. And my client, the US Olympic Committee said in contravention of its rights, exclusive rights to the Olympic trademark and trade name, and we won that case. And eventually the decision was upheld by the Supreme Court of the United States. But nonetheless, despite the fact that I thought, when I was nominated, I would get into trouble for the cases that I lost as a lawyer I got into trouble for a case that I won. But eventually prevailed.

Jeff: Yeah.

Judge Vaughn Walker: And also, I had a notorious client, I had a couple of notorious clients actually. One got no attention at all. The other got a fair amount of attention. One that got attention was the National Rifle Association. This was back in the day, in the '80s, when it was not quite as politicized an organization as it has subsequently become. But the City and County of San Francisco under the leadership of then, Dianne Feinstein, Mayor Dianne Feinstein passed an ordinance prohibiting the private ownership of handguns. And it was clearly in contravention of state law. The National Rifle Association hired me to challenge that enactment, which I did, and again, successfully and again got into trouble for a case that I won. So good deeds do not go unpunished.

Jeff: Well, what I want to get at here a little bit is that you've been, I suppose, not vilified, but unsupported by Democrats at times, you've been a hero to progressives, at times. You've probably angered conservatives with some decisions, yet were nominated by both Reagan and Bush. And I don't want to get nostalgic for the old days too much, but it seems like what is absent now in our public dialogue is some fair mindedness and decency. And that allows for one to be flexible around their opinions or their decisions. Where one might fall a little bit to the right on one particular issue or a little bit to the left on one particular issue. But there seems to be, in the current environment, not a lot of leniency for centrism. And I wonder if you agree, and whether or not that concerns you.

Judge Vaughn Walker: Well, I think it does concern me. You want to of course, be flexible in your positions, but not in your principles. And on the matters that I discussed a minute ago, the irony, of course, I was representing clients. And as a lawyer, you represent your clients' position. They may or may not reflect your own position. And as a matter of fact, with respect to the handgun case, I, at the time was on the board of an organization called the Lawyers' Club of San Francisco and we enacted a resolution supporting Mayor Feinstein's handgun ordinance. And I got back to the office and learned that I was being hired by the NRA to challenge that argument. Well, I had no trouble with that, they had a respectable legal position and it was not my position that was on the line, it was their position. And similar situation with respect to the USOC.

Judge Vaughn Walker: A lawyer doesn't have to agree with the client's position to represent that client. After all, a lot of people would never get representation if they had to have their lawyers endorse their conduct on a personal level or a moral level. You're entitled to a vigorous advocacy of your legal rights. And that's what lawyers provide. And I didn't think it was unfair. I mean, I thought it was inappropriate to be accused of being a bad actor simply because I was representing positions that happened to be unpopular in my community. People ought to understand there is a bit of separation between the lawyer and the lawyer's client.

Jeff: Yeah. Do you feel that there's a... I suppose do you have faith in the generations coming up behind you? I suppose in so far that politics, the court are attracting the best and brightest to guide us forward. And I only say this, because certainly public service has been deep and profound within my own family. But when I consider the possibility of electoral politics anyways, that world seems so sullied and the reality of serving seems so unattractive, that really, I would never consider it. And I look around and often the best and brightest that I know go into the private sector or they do other things. And I wonder if you have concern around leadership not necessarily attracting the best of what society has to offer.

Judge Vaughn Walker: I think that's always been a problem. Why would you want to leave your comfortable, private life to assume public responsibilities? But there seem to be plenty of people who are willing to do so. In terms of the generation coming along, I do take some comfort in something that the judge I clerked for said to me one day, Judge Keller Hart, who was a great influence in my life. He'd been a practicing lawyer in Beverly Hills for many years, represented a lot of people in the motion picture business, and was very active in tennis. He was president of the US Tennis Association, non-playing captain of the Davis Cup team in the 1960s, and so forth.

Judge Vaughn Walker: And he said one time when he was deep into his 90s, he said, "The trouble with getting older, is not the physical limitations that creep up on you. And it's not really losing your friends and your family who you outlive. The trouble with getting older, is thinking that the way things used to be is the way that things ought to be." There's a danger, of course, as we get older, even you at 48, Jeff, to think that, "Well, the way things seemed to be when I was younger, is the way that they ought to be." But that can't be true. It doesn't necessarily mean we're getting better, it doesn't mean that the world is getting to be a rosier place, but it changes. And usually, it changes for reasons. We don't always understand what those reasons are, until much later.

Judge Vaughn Walker: But if you have some degree of faith in our fellow man, you have to proceed on the assumption that reasonable people will begin to sort things out and eventually come to the right decisions. We certainly have come to the right decisions about a lot of things in this country. We still have pretty vigorous and robust institutions, highly imperfect, of course, but they're functioning. And they're functioning, notwithstanding the pandemic that we're presently living through. A lot of hardship, needless to say, but we will get through this as we've gotten through other things. So I don't want to just be Mr. Rosy scenario, but there is reason to not despair the future.

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