MARTHA MINOW: Good afternoon,
I'm still Martha Minow. And it is with just
utter joy and delight that we welcome back
to her alma mater Judge Reena Raggi, who
is about to celebrate her 30th year on the bench. Which means that she was
appointed when she was 12. So this judge has had the kind
of career that we dream of. She has been at the
pinnacles of legal work and doing crucial work
in private practice as an assistant US attorney,
as a district court judge, and as a court of appeals
judge as a major player in the designing of rules
of our federal system. I am not going to say
another word until I actually now turn to you, because we're
going to have a conversation. And I am so, so honored
to welcome you back. We will be seeing you in
action at Ames Moot Court. And anyone who's
interested, please come and please join us for that. So you were in the Harvard
Law School class of 1976. What led you to go to law
school in the first place? REENA RAGGI: Well, I had
no lawyers in my family. But I had a father who
I think was probably a frustrated lawyer. And who, on another level,
really believed in professions for women. He had three daughters. I mean we've all heard
dinner table lectures our whole lives about
how important it was to have a profession. And I think this was because
he thought it would give us independence, and
financial security, and that that
would be important. And when I look back on it,
what I find really remarkable about all this is that you would
never have thought of my father as in the vanguard of the
women's rights movement, because I never saw him make a
bed or wash a dish in his life. But he did have this
view for his three daughters, which is how we wound
up with two lawyers and a CPA. So I think that it was
this idea that you should have a profession, you
should be independent, that led me to think
about going to law school. I don't think my
father ever thought about the independence and
security of the federal bench-- [LAUGHTER] It all worked out very well. MARTHA MINOW: I would say. Can you paint a picture
of what Harvard Law School was like when you were here? REENA RAGGI: Well, it was
probably a very different place from what you are experiencing. I mean, similar in some ways,
but different in others. I mean, I was here
during what I would call the real Paper Chase era. Where there were
wonderful professors, but the opportunities for
interactions with students were less than what
I think you have. And I speak with some
experience in that, because my son went
here not that long ago. And I was always so
struck by the fact that he had interactions
with faculty in a way that I hadn't experienced. And I really think that was
too bad, because there were great faculty members here. But it just wasn't part of
the culture at that time. So I think that that
was the difference. I did think the academic
rigor was really there and continues to be there-- again, if I'm going to compare
it to my son's experience-- which is really a remarkable
and laudable thing. Because I do think it's
the legal academy that has maybe shifted a little. The requirements are not
as strict as when I was here of what you had to take. But I think that the rigor
of the Harvard curriculum is still quite strong. MARTHA MINOW: So David Denton,
your son, graduated in 2011. Superstar, superstar. And I am glad that you had
his experience to look into. You were here at a time when
there weren't that many women. You want to say
anything about that? REENA RAGGI: I was trying to
figure out what percentage of my class was women. And of course, going
back to my memory, I'm going to be unreliable. But I think it was
between 25% and 30%. MARTHA MINOW: I
think that's high. I think it was maybe 20%. REENA RAGGI: OK,
maybe even fewer. For me, it was a real
change, because I had gone to a women's college. I had gone to Wellesley. So all of a sudden to
be a minority in a group was very obvious to me. But I will say, I've
been on panels here at the law school with
generations of Harvard women. And it was really the generation
before me, maybe even two generations before me, that
experienced the real challenges and the real difficulties. Those are the women, whom
when I hear them speak, were the trailblazers. I think for my class-- though
we were in the minority-- I never experienced a
professor or even an employer, a prospective employer, whom
I came out of an encounter with and thought, oh. They treated me differently
because I was a woman. So I can't say that. To the extent that
I ever encountered anyone who questioned why a
woman was at the law school-- it was very rarely,
very rarely-- but it was classmates. So there was still a little
bit of that attitude. MARTHA MINOW: 10 years after
you graduated from Harvard Law School you were appointed
to become a district judge in the Eastern
District of New York by President Ronald Reagan. What was your career
path that led to that? REENA RAGGI: Yeah,
the career path. Well, it wasn't
that untraditional. I was a law clerk. I clerked on the Seventh
Circuit Court of Appeals for a wonderful judge. I then went to one
of the large New York firms, Cahill Gordon &
Reindel, and I stayed there for about two years. And I was pretty sure I
wanted to do something else. There are people who are
really captivated by practicing big firm practice. It's very talented
lawyers, very big cases. But I knew after a
relatively short while that I wanted
something different. So I went to the US
attorney's office in the Eastern District of
New York, which is Brooklyn. And I do think there are
lots of ways to practice law. And you will find that
you fit in some of them and you don't fit in others. And I had never
tried a case when I went to the US
attorney's office, but I did find that I fit. And I enjoyed every
minute of the seven, almost eight, years
that I spent there. And it was while I was in
the US attorney's office that some of the things that
led to my judicial appointments started to happen. But I did spend then a brief
time in private practice again before going
to the bench-- a partner at a firm then
called Windels, Marx, Davies, and Ives. They've merged with somebody, so
they have a different name now. And I just want to tell
you it's a lot better to be a partner than an associate. [LAUGHTER] MARTHA MINOW: Did you find that
the work in the narcotics unit where you led, and then the
corruption unit, taxed you in different ways than the
other work that you had done? REENA RAGGI: Yes. While I was in the US attorney's
office, at various times I headed the narcotics unit and
I headed the public corruption unit. And the work was very different. Narcotics is quick responses,
middle of the night phone calls, agents who want
to know whether they can go through the door or
whether they need a warrant. So narcotics is the kind of
work that, to do it well, you have to be preparing
in advance all the time-- reading cases,
developing ideas-- because you're going to answer
the questions on the fly. By contrast, public
corruption work is slow, steady investigation. A lot of grand jury
work-- less warrants, less Title III applications-- and so you have to be
a good investigator, good at putting the pieces
of the puzzles together. And I worked under
two US attorneys who really had public corruption
as one of their primary aims. But they were also of the
view that public corruption cases were high profile cases. You didn't indict unless you
were ready to go to trial. And you didn't do
it unless you were convinced you could
hit the bullseye, you could get a conviction. Because it was just
too embarrassing to not succeed in cases that were
going to be on the front page of the papers every day. So they were very
different experiences and I enjoyed both of them. But I have to say, maybe because
I did the narcotics first, and because it was kind of
rough and tumble and fast-paced, it has a special
place in my heart. MARTHA MINOW: Did
you have mentors during that first period, that
first decade of your career? REENA RAGGI: Yes. I would say that most people
who clerk have a mentor in the judge they clerked for. And I will say now, as a judge,
being a mentor to my clerks, I realized that there are
certain advantages to it. You're a little removed
from the personal lives. So if my law clerk
calls me and says, I'm thinking about doing x. What do you think? I can be very objective
and have conversations that go, well, on the one hand-- or on the other hand. If my son were to call me
with the same question, my reaction would be,
typically, maternal. And it would be,
you want to do what? So a judge is a
great mentor to have, because they know you well. You're working
together every day. You get to be so close to
your law clerks and your clerk to your judge. I mean, I used Judge Fairchild,
the judge I clerked for, as my mentor for years. So that was one. In law firms, It's sometimes
harder to find a mentor. And the only advice
I can give about that is be open to the unexpected
possibility of mentoring. When I was at the law firm,
I was assigned to do cases with a labor partner. It was neither the
glamorous work of the firm, but it wasn't heavily staffed. And he turned out to be
just a wonderful man, both in terms of giving
me advice and giving me responsibility. And he really fit the stereotype
of a rough and tumble labor lawyer, but he was great. And I would never have
expected that or gone looking for a mentor in that area. So there was that. In the US Attorney's
office, again, it's an easier place to find
mentors because there's a sense in prosecutor's offices
of, we're all in this together. One for all, all for one. So you'd be in the office on
a weekend and down the hall would be a senior
prosecutor who you could slip in and ask advice. And it was more characteristic
that people would take you under their wing. So I was lucky at
all those stages. MARTHA MINOW: As a
district court judge, what did you find
most challenging? REENA RAGGI: I think
the volume of cases and the pace of the work. When I was a district judge
in the Eastern District-- I was a district
judge for 15 years-- on average we would carry
about 400 civil cases and 100 criminal cases. Now, some of them
you would never see. I mean, the case would be
filed, the parties would settle, and that would be the end of it. So I don't want you
to think I was daily involved in 400 cases. Still, 400 cases is a lot
of cases to keep moving. And you have to do that because
400 can turn into 500 to 550. And if you let that
happen to your docket, you don't have the time
to think about the case that all of a sudden
comes to light and needs real attention
and careful thinking. So you're on the one
hand always struggling to keep your docket
under control, and yet finding the time to give
attention to the ones that are rising at a particular moment. And then the diversity
is the other challenge. It's both the
challenge and the thing that I think keeps all
my octogenarian and any of the nonagenarian judges
so engaged for so much of their lives. I mean, we'd jump around
between a labor law case and an employment
discrimination case and a securities case and a
diversity automobile accident, and all the federal
criminal cases that can come your way from
narcotics to public corruption. I remember trying my
first maritime case, which has a very specialized bar. I had no clue what I was doing. So it was always-- like the image of
the teacher who tries to stay a day or a
week ahead of students. That's what I was doing. I remember trying
my first patent case and thinking that we had
done a very good job. It was a patent case
tried to a jury-- not all of them, in fact few
of them, are tried to a jury-- and the verdict came back and
it seemed to be inconsistent. What to do, what to do. So the challenges of the
diversity of the docket are many. MARTHA MINOW: From your
work as a prosecutor, you had done a lot with facts. But in law school, we
don't do enough with facts. Can you say
something about that? REENA RAGGI: Yeah. We talked earlier
this week about what makes a good litigator,
and maybe we'll talk more about that, but
you have to like facts. I understand Judge Gorsuch
yesterday said something in his hearings, and it's
not original with him, about every lawsuit is a story. And that's true. You really realize that at
the district court level, because the parties are
often in front of you. So you have the
sense of human beings actually involved in a case,
not just the abstract principle that I sometimes deal with
in the court of appeals. But you have to like facts. You have to be willing
to investigate facts. You have to learn how to put
them together and tell them to another person-- either the judge or the jury-- in a way that makes sense. In a way that is convincing
for the side you're arguing. You have to characterize
facts fairly. But I sometimes used to
think that if you hadn't won the case by the
time you told facts, you weren't going to win it. So I do think that facts
are tremendously important. And yet you're
right, it's not part of the law school
curriculum, because you're teaching other things. But it becomes very
important in practice. MARTHA MINOW: As a
district court judge, you had some of the most high
profile cases of the era. And I'll mention one
or two and maybe you're willing to talk about them. One was the Golden
Venture series of prosecutions that arose
from a failed effort to smuggle Chinese immigrants to New York. Can you describe that? REENA RAGGI: Yeah. The Golden Venture was
the name of the ship. And it was a case that
no one saw coming. Because at dawn one
morning, the Golden Venture crashed onto a area off of
Queens, the New York Harbor. And the people on the ship
were ordered into the water to swim to shore, they
were still several miles from shore at the time, and
10 people died in the project. And by the time law enforcement,
and rescuers, and everyone else was on the scene, you didn't
know who were the refugees and who were the perpetrators. All of the ship's documents
were in the water, soaking wet, and so what
to do with this matter. And it really operated
on lots of levels. I mean first there were
the refugees, all of whom were taken into various
federal facilities, and there are stories about
them that have been written, but I wound up with
the criminal case. And I will say this about
the prosecution, over about the next five to six years,
they investigated that case right up and down the line. And they managed to
prosecute, not only the people on the ship
who were involved, but higher-level people. People who they got
extradited from Thailand and other parts of the world
who were the financiers. Who were the real
people behind it. So they deserve a lot
of credit for that. And I say that at the outset,
because the first group of people they prosecuted,
people from the ships-- who they really didn't
have great evidence on-- they cut deals with. And they cut what were then
called 11 (e)(1)(C) pleas-- I think there now 11 (C)(1)(e)-- where the government
agrees to a sentence. And the sentences
they agreed to were between six months and a year. And I wouldn't take
the deal, because it seemed to me that with
10 people dead that was trivializing the crime. Now, I was very
reluctant to do that. Having been a
prosecutor myself, I try not to second-guess
the government on what they charge, how
they prosecute their cases, because they have
the burden of proof. And they know where
the problems are and whether a deal is better
than risking an acquittal, OK. But I did think this
was one I couldn't take. And so that was one of
the first things that was notorious about the case. But in the end, the
defendants all pleaded guilty without agreements. The other thing that was
interesting about the case was that I saw the ship. And the way I saw the ship
was that the government wanted to sell it-- this is before
we went to any trials-- because apparently nothing
is more expensive to maintain than a ship. The defense attorneys,
and there were probably about eight or nine of them
at that point, opposed it. And the basis for
their opposition was, well, they
might want a jury to have a viewing of the ship. And I was saying, what
do you need that for? I'll authorize money
for a videographer, you can photograph
it every which way. No judge, we might want
a jury to see the ship. So my law clerk and I,
the defense attorneys, the prosecutor, all
tied on our sneakers and went out to a pier in
Staten Island and saw the ship. And I really wonder
if the defense attorneys came to regret
that, because it was horrible. It was just horrible. It was one big hold, no
sanitation facilities, that these people--
about 300 people-- were in for a voyage from
Asia, across the Indian Ocean, around Africa, to cross
the Atlantic Ocean. It was terrible. I always say that
it's probably as close as I will ever experience
to what a slave ship must have been like. And so I can't imagine
that they really would have wanted the jury to see it. MARTHA MINOW: Wow, wow. Another amazing case you
had, this was before 9/11, you had an early case in which
a defendant took the stand and said that he
planned to put a pipe bomb in the subway system. REENA RAGGI: Yes. I had a case, United
States v. Ghazi Abu Mezer, who was a young Palestinian
who had built pipe bombs and planned to detonate them
on the New York City subway. How he was caught
was that someone who lived in the same
apartment complex, and knew he was up to this,
couldn't live with that fact-- another fellow
Palestinian-- and tried to get a New York City
police officer to understand what was going to happen. Now, imagine this. Someone walks up to a New York
City police officer and says, I've got-- guy down the hall
who's detonating bombs. What does the police officer do? Could the guy just be having
a grudge against somebody, what do you do. So instantaneously they tried
to evaluate whether they believed him or not. And eventually got a
state warrant, went in-- the SWAT team, the whole
thing-- and sure enough, there were bombs that
he was ready to detonate at that moment. They shot him in
the course of this. So I wind up with the case. And he was a very
challenging defendant. He was the only defendant I
ever had who had objectives other than acquittal. I mean, his trial was making
a political statement, not getting acquitted. And that's a mindset I had
never encountered before. MARTHA MINOW: Wanted to use
the courtroom as a theater. REENA RAGGI: Yeah. He had two defense attorneys
from federal defenders who, out of this set
of facts, managed to come up with a theory under
which he would be acquitted. And they did a marvelous job. And then he insisted
on taking the stand. And they put on the record that
it was against his advisal, but you know it's the
defendant's absolute right to take the stand. And he took the
stand and not only did he say that he
had built the bombs, but he said that he built
them in order to kill as many Jews as possible. So you can see that he had
no interest in acquittal. But that was what happened. When it was all
over, I sentenced him to life imprisonment. But it was all pre-9/11,
and I can't emphasize enough for you the mindset
change for everybody pre-9/11 and post-9/11. For me, the other thing that
was new and interesting from it was I had never seen a case
done by the FBI terrorist squad at that point. Though 9/11 hadn't
happened, the first bombing of the World Trade Center had. And so the New York FBI office
had a very sophisticated terrorist squad. Now, I'd been in
law enforcement. I had never seen a case
investigated as thoroughly. But you need
resources to do that and they devoted them
to that kind of case. When I say how it was done, they
had tracked this defendant-- and he had a co-defendant, too-- down to North Carolina. They found him on
the surveillance camera of like, a Walmart. And they took the time that
he was on that surveillance camera, and they took all
the cash register receipts from that time, and they found
purchases for the component parts of the bomb. Now, I tell you that,
but doing all that took an amazing amount of time. I mean, there was
some poor young FBI agent going through cash
register receipts, OK. There were FBI agents checking
the videotapes of probably every big store in that area. So it was very
interesting to me to see a case done that thoroughly,
because they usually don't have the manpower. MARTHA MINOW: Sure, amazing. Another notorious
case you tried was Schwarz that dealt
with the police officer following the assault
of the Haitian immigrant Louima. What was that like? You must have dealt with
media and all kinds of issues. REENA RAGGI: Well, I should say
that I was not the first judge to have that case. One of my now deceased
colleagues, Eugene Nickerson, who was an absolutely
inspiring trial judge, had the case the
first go-around. A group of New York
City police officers were responding to calls of
disturbance at a nightclub. Somebody threw a punch or
assaulted a police officer. They mistakenly thought it
was Abner Louima, this Haitian immigrant, and
they arrested him. And that much of the story
might be understandable. But when they got him
back to the police station he was physically,
sexually assaulted. And I think it will
give you an idea of what happened if I tell you that
he was on the operating room table for six hours. Judge Nickerson tried the
case, there were convictions, but it was vacated and remanded
by the court of appeals because there were
problems of conflict of interest with the lawyers. So Judge Nickerson passes away
and now the case comes to me. And I wind up trying it and
we got a split verdict on it. It was a very challenging case. I mean, nobody had actually
seen the assault done. But the thing that
I recall from that, it was a high-profile case. It was on the front pages
of the papers every day. I would have police
officers supporters on one side of the case. I had Al Sharpton,
if you know who Al Sharpton is, on the
other side there every day. I had members of the press. I had an anonymous jury. Picking the jury
was very difficult. I mean, I needed
to know that people could put aside biases, both
pro and con, certain things. For instance, I had to ask
African American jurors if, for any reason they thought
the evidence was insufficient, they could vote
to acquit and did they think it would
give them problems returning to their communities. I had to ask people who
had police connections variations on those questions. So picking the jury
was a challenge. But in the end, how
it all resolved was Schwarz was convicted
of perjury, not of the civil rights violation. And I was convinced
that the perjury was because he was a participant
in the civil rights violation. I couldn't sentence
him to anything other than the perjury, or for
anything more than the maximum for perjury, but I did
sentence him to five year maximum for perjury. MARTHA MINOW: What
is an anonymous jury, and how do you do it? REENA RAGGI: In certain cases,
where one thinks that the jury could be compromised to
some extent on very specific findings, you cannot have
the jury disclose their names or their address,
where they live. To do that though-- in addition to the findings
you have to make preliminary to why you need it-- you have to give the
defense more information in other areas
about that jury so that they can make responsible
challenge decisions. So they wouldn't know that
your name was John Smith and that you lived at
a particular address. But they might know that you
came from Queens, because maybe some people would think
that people from Queens have different attitudes
than people from Brooklyn. These are conclusions
we draw about people. You would get to know
that they were employed and probably how
they were employed. You'd get to know what their
spouse did and their children. And questions that I don't
necessarily ask every juror, but questions about where
do you get your news from, other things that might be
relevant to the particular biases or leanings in the case. You often see anonymous juries
in cases of organized crime, violent crime, because
there's a concern that the jury might be afraid. I think in Schwartz
it was more a concern about publicity and people-- the press-- maybe hounding the
jury or something like that. The other thing often that
happens with anonymous juries is they don't come to
court on their own. The marshals usually
pick them up. That's great, because
everybody's on time. [LAUGHTER] MARTHA MINOW: Well, I was
just going to ask you, are there any lighthearted
moments on the bench? Because this is
pretty serious stuff. MARTHA MINOW: Yeah I mean,
because the courts deal with all kinds of human
disputes, there's tragedy, there's enormous
sadness, but there's sometimes the human comedy. And the incident that
I always remember as being particularly
funny was I was taking a guilty
plea from a defendant. And if any of you have
ever seen a guilty plea, there's a litany
that a judge has to go through with the defendant
ensuring that he understands his constitutional rights. Also, making sure he's
competent to plead. So I get to the point in the
allocution where I ask him, have you taken any drugs,
pills, or medicines in the last 24 hours? And he looks at me and
he says, no, sweetheart. Now, three things
happened instantaneously. His lawyer's elbow went
into the guy's rib. My courtroom deputy, who was on
a swivel chair, falls off it. And the court reporter
looks up at me and mouths, Judge, do you
want me to take that down? Now, sometimes I've told
a story and people have thought oh, how outrageous. The guy called you sweetheart. Listen, if you're looking
at the person who's going to put you in the
slammer for 20 years, there are worse things they
could call you than sweetheart. But I told this story
to some of my colleagues shortly after it happened. I sat on the district
court in Brooklyn with the great
Jack Weinstein, one of the, if not the, greatest
trial judge in the country. And Judge Weinstein
looks at me and says, he must not be quite right. You should send him for
an observation and study. Which is what we get with people
who are not quite competent. Well, that was one piece
of Judge Weinstein's advice that I didn't follow, because I
could see the tabloid headline. "He calls her sweetheart,
she calls him nuts." [LAUGHTER] MARTHA MINOW: Amazing. Well, in 2002, after 15 years
as a district court judge, you were elevated,
you were nominated, to the Second Circuit by
President George W. Bush. And you were
confirmed, obviously. And how did that
nomination process-- how did you experience it? Do you think it's
changed since that time? REENA RAGGI: Well,
I'm not sure how much it's changed from when I was
on the court of appeals to now. But the process had
changed between when I was on the district
court and when I went on the court of appeals. And history has something
to do with this. I went on the district court
before the nomination of Judge Bork to the Supreme Court. And I think that a lot of things
changed politically after that. And we're seeing it played
out now where each side ups the ante with each nomination. And while the Supreme Court
nominations are in a class by themselves, at
the appellate court you can also sometimes
have those fights happen. I was fortunate that I was
not one of the people who became controversial. And I think there's a
certain luck in that, because I am of the
view that the battle can be fought on almost anybody's
carcass if you want to. The two things that
I think helped me-- or three things, I guess. One was that the nominee
immediately before me-- she had a confirmation hearings
immediately before me-- was quite controversial. So people spent hours on
hers and maybe were exhausted by the time they got to me. I will also say I
had the good fortune to have my confirmation
hearings the day in August that the Senate was
scheduled to adjourn. So the bags were packed and
people were ready to go. No one was looking
to hang around. And then the other thing
that was very fortunate was that, though I was nominated
by a Republican president, my two state senators at
the time were Democrats. Chuck Schumer and
Hillary Clinton. And they both supported
the nomination. And you've read and heard
about, the Senate is a club, and senators, even when
they quarrel on some things, are deferential to others. So if you have the support
of your senators that helps. And Senator Clinton came
and just said a few words, but Senator Schumer was actually
on the Judiciary Committee and he really said a
lot of nice things. Though I had never met either
of them both beforehand. But I always think
that was wonderful, because my mother was there. And she actually
believed to them. She actually believed them. The nice things that were said. MARTHA MINOW: That's fabulous. So you've now been, of
course, on the appellate court for some time, but-- must have been an adjustment. What stand out as
the big changes? REENA RAGGI: Yeah. I did 15 years on
the district court and now it's 15 years
on the circuit court. It's an exact--
equal time on both. I didn't think there would be
that many adjustments going to the court of appeals. And I'd been a
judge for 15 years and had occasionally
sat by designation on the court of appeals. But there were, because
district court's judges decide for themselves. Circuit court decision
making is all collegial. And collegial decision
making requires you to get at least
one, ideally two people to view things the
same way you do. And it was very
interesting to me how different judges can
approach a problem differently, even when they come
to the same result. And so I do think, by
the way, that enriches the decision in the end. But sometimes to get there
requires a little compromising, and I even say sausage
making, which, as we all know, is not a pretty sight. So it took a while
to adjust to that. The other thing
that I thought was a big difference was
in the district court, you live with a case. You sometimes live
with it for a year. In the circuit, we're into the
case and we're out of the case. I mean, I am sitting
this week-- in addition to being on the Ames panel-- and I have 27 appeals
that are being heard. And so right now I am
on top of all of those. But I sit again in about
five, six weeks time, and if you ask me on
the eve of that sitting questions about this
sitting, a lot of it will have gone out of my head. And so I think that
there's sometimes a sense that maybe you don't know
the case as well as I felt I knew my district court cases. And also, unless you're
writing the opinion, they don't stick
with you as long. MARTHA MINOW: That makes sense. Your very first case on the
court of appeals was in bank. And that's unusual,
because your court does not take as many in
bank cases as some courts do. So what was that like? And you also wrote a
concurring opinion. Which was pretty
gutsy thing to do as a brand-new judge,
not going along entirely with the majority. So you could describe all this. REENA RAGGI: Right. It was very interesting never
to have sat on a panel of three, but for the first time to sit
on a panel of-- at that point we were 12. And the case was the
United States v. Rybicki. So the question in it
concerned a fraud conviction for honest services. Fraud-- often this rises
in the political context, though this was more lawyers
involved in committing fraud in various ways. And that was a pretty
controversial subject about whether the
wire and mail fraud statutes were too
vague to encompass this notion of the
fraud being not about money, but
about obligations to give honest services. And so it wasn't surprising
that the Second Circuit decided to wrestle with it en banc. But as you said, we
hardly ever go en banc. We go en banc maybe
once every two years. But having dealt with a lot of
criminal cases and all that, I had some views about
the question of fraud. Having come from the
Eastern District, which had done so many
corruption cases, I had some views on how the
statutes could permissibly be used to deal with
public corruption cases. I was almost
concerned that we not write so broadly in limiting
the use of the statute that we-- in the lawyer context-- that it also limit prosecutions
for public corruption. So that's how it all came about. Now, the Supreme Court
has dealt with the issue, so it's not as significant. But it was fun to
tackle that case. MARTHA MINOW: I do
want to give time for others to ask questions,
but I have three more that I want to ask. And so one is about your role
in the rules drafting process. You've had quite a significant
role on various committees for the Judicial Conference. You chaired the advisory
committee of the rules of criminal procedure. And rule-making
is not really what we usually think judges do. And this is a very
significant part of what you've been doing and
in particular, in criminal law, such challenges about
criminal procedure. Can you tell us about
that work, and is it a different process of
negotiation, and how do you assess systemic issues? REENA RAGGI: Right. You know that the rules of civil
procedure, criminal procedure, appellate procedure,
evidence, and bankruptcy, originate with the
judiciary itself. I mean, the process ultimately
goes to the Supreme Court and to Congress,
but Congress has to say the rule doesn't go
into effect for it not to. So the rules you're dealing
with, in your classes and all, are created by the judiciary. And so there are committees
that deal with these. And on the Criminal
Rules Committee, which I'll use as the
example, the voting members of the committee, the
majority of them are judges. But we also have a voting member
from the Department of Justice. We have three voting members
who are from the defense bar. We have an academic
voting member. And the issues come to
us in a variety of ways. I mean, because the
Department of Justice is involved in
every criminal case, they are frequently
bringing matters where the current rules don't
seem to fit to the committee. Professors who've written
innovative law review articles sometimes will send us
a copy, because what could be better for a
young associate professor then to have his or her
idea turned into a rule? And then, as I used
to put it, anybody with a number two pencil
and the back of an envelope can send us an idea. And those get reviewed. And it's more like a
legislative process than a judicial process,
because we are writing language. We're writing
legislation, in a way. We move very slowly. Maybe that's also
like legislation. I would say from
an idea to effect, two years would be a fast track. So there's quite amount
of vetting and all that. I am someone who does not think
we should tinker with the rules too often. You put people on
committees, they feel they have to achieve something. But my view is that there's
something to be said for stability in the rules. And so we shouldn't
just look to, well, how can we improve
something a little bit. But during my years on
the committee, the things that I think required
the most careful thought, and that is really part of
the revolution in criminal law in general, is how the
commission of crimes electronically alters all
kinds of assumptions we have, about the Fourth
Amendment especially. But also other
protections and rights. I mean, you see this
in your classes. You know that the
Supreme Court has said that if you take
somebody's cell phone from them in the course of an arrest, if
you've tracked them by a GPS device, you need more
than historically what you needed when you
arrested somebody and took every card
out of their wallet. Or when you visually
surveil somebody, the police officer's in the
car following them around. Well, those things apply
to the federal rules, too. And I'll just give
you one example. Until last year,
the federal rules provided that if you
wanted a search warrant, the venue for getting that
warrant was the location where the place to be searched was. Where's the place to be searched
when, tomorrow morning, the New York Stock Exchange is
hacked and no one knows where the hacking is coming from? But federal agents
tell us that if they can get into the Stock
Exchange's computers, they can work backwards
and try and find out where the hack is coming from. So we had to decide. Where was a venue for
those kind of warrants? And actually, if you think
about it, it's a small question. We're not saying you
don't need probable cause, we're not saying you
don't need particularity, we're just telling you
what courthouse to go to. So we decided it was--
in those circumstances, it would be the courthouse
where the harm is occurring. Which I hope I've told in
a way that doesn't make it sound like that was outrageous. But I think the times we're
in make everybody very wary of government intrusion
into computers and electronic devices. So when we held public
hearings on what I consider to be a relatively
modest rule change, we must have had 20 different
groups from idiosyncratic views to the ACLU to major computer
companies come and tell us why they thought this
rule was a bad idea. That it was the camel's
nose under the tent and we should think
hard about it. And I will say the
only thing that I think was good about it-- the
rule went into effect anyway-- but it really shows why
public hearings are good. I let everybody speak for
as long as they wanted to, and we asked questions, and a
number of the participants who were opponents
told me at the end that they appreciated
getting a thoughtful hearing. They thought that we had
really listened to them. And we didn't do a few tweaks to
deal with particular concerns, but that's part of the
rule-making process. MARTHA MINOW: Really
different side of your work. REENA RAGGI: Yeah. MARTHA MINOW: OK, just two more. You mentioned-- we did talk
before about litigators. And I just wondered if
you could say something about whether people can be
effective litigators if they're not extroverts. REENA RAGGI: Yes, I think so. But you may have to find a
little extrovert in yourself for the moment in court. I don't think you
necessarily have to be that in every moment of your life. And I will also say that I
don't think there's only one way to be an effective litigator. So you definitely want
to see good litigators and try on some of what they
do and see if it fits you. But you don't have to think I
have to be exactly like someone else to be effective. MARTHA MINOW: That's perfect. And my last one-- so
think of your questions-- is advice. Advice for students,
for people, who might be interested in being
litigators, in being a judge, in being a law clerk. REENA RAGGI: Let me
start with law clerk, because that's the easiest
one for me to talk about. At least, if you want a
clerk on the federal courts, you need really good grades. I mean, the process is
extremely competitive. I probably get about
400 applications. And so you have to be at
the top of your class. I sometimes say it's a
good thing in my chambers that I have the judge
position, because I couldn't get hired
as my law clerk, but that's a little facetious. So you need to have succeeded
in law school academically. I also think that
most clerkships, even at the district court,
most of what you're going to be doing are research and writing. So you need to do things that
can show the judge that you're going to be strong
in those areas, whether it's journal work,
or moot court, or what. I often say that I'm
looking to see that you've written in something where-- I don't care what
you write about and I'm not even sure I care
what conclusion you come to. But I like to see that you tried
to take a tough legal question and wrestle it to the
ground, because we do that all the time. And then I would say that
the other piece of advice I give-- because I don't
see everybody who applies for clerkships doing this--
is you really should take diverse courses in law school. Now, I understand, and
even respect, that someone could come to law
school and say, my passion is environmental law. I'm going to take
every class that's offered in that area, or
the same with criminal law, or whatever. But that's not my docket. So I need to know
what you're going to do when we get that really
complex securities case, or patent case, or something. I don't need all
four of my law clerks to have taken all
these subjects. But I'm very
conscious of a quartet that can cover the docket. I also would give this
advice because, quite apart from my selfish ideas for why
I need to cover my docket, it will make you a better
lawyer to take diverse classes. You're a better
lawyer if you can analogize across areas of law. So when I was
here, even though I didn't have particular interests
in the area, I and, I think, almost everybody
of my generation, took securities, and
antitrust, and tax, and all the commercial
courses whether or not you were going to
practice in that area. And I do think that if you think
about a lot of areas of law-- criminal law, even
human rights law-- you are often going
to face adversaries who have a corporate identity. And so you better
understand how they operate. So I would just urge you to
study across the curriculum and take courses that are
hard to teach yourself. So that's my advice
for law clerks. MARTHA MINOW: That's great. And for being litigator
or being a judge? REENA RAGGI: For
being a litigator, litigation is all
about persuasion, OK. You have to persuade
either a judge or a jury to do something you want. So the first thing
you have to understand is that you need
something from them. You need either a verdict,
or a ruling, or something. It's your job to
identify with them, not their job to
identify with you. And I think that means you
have to think hard about how to talk to various groups. I mean, you talk to a jury one
way, you talk to a trial judge one way, you talk to an
appellate court another way. I don't mean to
suggest that any of it is patronizing, far from it. But you have to think about
what will persuade this person or this group of people. I never like to
hear lawyers say, oh that judge is so
stupid, especially if they're talking about me. But the problem is not that
the judge didn't see the point. The problem is you didn't
make the judge see the point. And you have to go into
it with that attitude, OK. Now, apart from that, you have
to be a first-class lawyer. You have to stay on top of
legal developments in your areas and beyond. You can't think that
you'll research something when you have the
case, so I tell even litigators you're
reading all the time, you're thinking all the time. You have to like facts. We've already talked
about that a little bit. And you have to have a
certain feel for people. Because some of the
story you'll tell-- but especially if
you're a trial lawyer-- some of the story your witnesses
are going to have to tell. So you have to learn how to get
witnesses to tell the story. Sometimes these people
are scared or nervous. I mean, it doesn't even have to
be scared of physical things. They're nervous. If any of you have ever been
a witness you understand that. Sometimes they can
have muddy thinking. Believe me, a witness after
3 o'clock on the stand is dangerous, because they're
starting to get tired. You have to help
them be prepared for that kind of thing. So I could talk a lot about
how you prepare witnesses. And finally, you have to be
brutally honest about yourself, about your strengths
and your weaknesses. You have to emphasize the
former and minimize the latter. When I was trying cases,
I was a young woman. And I had to understand that
that would have an impact. Maybe some jurors wouldn't think
that I was as experienced or as capable as an older colleague. How do you deal with that? You walk into the
courtroom super organized. You come across as
extremely professional. I Used to say, when
I was on trial, my office looked like
who did it and ran, but my trial cart was
really well organized. And you have to accept
the positive things, that a young lawyer is
less likely to be suspected of sharp practices
than maybe some older more seasoned lawyer. So my main point is don't
ignore your strengths and your weaknesses. I will say, if you ever
have the opportunity to participate in a
trial practice program where they videotape
you, take it. Because I can tell you things
about yourself for hours and it will be evident to
you in an instant if you see yourself
on videotape. MARTHA MINOW: It's really true. This is wonderful. Is there a question,
comment, somebody want to identify
yourself with a question? Because I could go on. Yes, please say who you are. CHRIS: Hi, judge. My name is Chris. Thank you so much for coming. REENA RAGGI: Thank you. AUDIENCE: I was hoping
that you could talk about-- in your 30 years on the bench,
both at the trial court level and the appellate court level-- if there are things you see
about the federal judiciary in terms of how
it operates or how it relates to the other branches
of government, or to society, that you would like
to see changed. Like, bigger, or I
guess, grander reforms. I know, for example,
Judge Posner has written a number
of books and articles about the complexification
of the federal docket, things that he would
like to see changed about the structure of how the
federal judiciary operates. I was just wondering if
you had any observations in that regard? REENA RAGGI: Yeah. Let me start with a
positive observation about the judiciary. As we become a more
complex society, and that includes our
regulatory agencies-- I don't know if any
of you have ever had to deal with a
regulatory agency-- I find it pretty impressive
that for a modest filing fee, or no filing fee
if you can't afford it, you can get a judge
to listen to you. It may not be for
long, but you can get a judge to listen to
you for a little while. And I think that's really a
good thing about the system. I mean, some people
are concerned that as the judiciary
gets larger, which is a function of Congress
giving us more responsibilities, that our rulings
are not as uniform. I mean, for a long
time, there were members of the
judiciary who resisted growing above the 1,000 judges
total nationwide because of the view that, when
circuit panels don't involve the same judges all
the time, they're apt to speak with
more fractured voices than if a handful of judges
are deciding most appeals. But I mean, what
is the alternative to not having these disputes
come into federal court? Where would we channel them? Because the other
side of the debate is sometimes that
lots of cases are going to alternative
dispute resolutions. They're going to arbitration. They're going to--
other mechanisms. Is that a good thing? I am not sure that
it's a good thing that we don't think our
judiciary can give us speedy enough, sure enough,
answers to our disputes that we're looking
for alternatives. I think it's better if it
is within the judiciary. I don't have any of the
grand schemes for reform that Judge Posner urges. I think that, certainly, we need
to be self-critical and always, always look to how we
can do things better. But by and large, I
think the judiciary does a pretty good job. MARTHA MINOW: Well, I think
you've done an amazing job. And please join me in
thanking Judge Raggi. REENA RAGGI: And let
me thank you, dean. I mean, this has been such
a treat to come here today, and to be part of
the celebration. It's really wonderful. Thank you so much. MARTHA MINOW: So honored. Wonderful, wonderful, thank you.
