Episode 118: Helen Whitener
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Justice G. Helen Whitener of the Washington Supreme Court is a trailblazer: the first Black woman to serve on the Washington Supreme Court, the fourth immigrant-born Justice, and the first Black LGBT judge in the State of Washington. But even though she is the first, she doesn’t want to be the last. So she focuses on teaching and mentoring others to pursue a legal career and apply to the bench. With host M.C. Sungaila, she discusses the importance of mentoring to her own legal career and treating everyone with respect and humanity.
Relevant episode links:
Justice Helen Whitener , Claiming Your Identity by Understanding Your Self-Worth – YouTube
About Helen Whitener:
Justice G. Helen Whitener was appointed to the Washington State Supreme Court in April 2020 and she was elected by the voters to retain her position on the State Supreme Court in November 2020.
Prior to her appointment to Washington State’s highest court, Justice Whitener served as a Pierce County Superior Court judge. Justice Whitener also served as a judge on the Washington State Board of Industrial Insurance Appeals and as a pro-tem judge in Pierce County District Court and the City of Tacoma Municipal Court. Before becoming a judge, Justice Whitener litigated both civil and criminal cases for 14 years as first a prosecutor and defense attorney and later as a managing partner of the law firm of Whitener Rainey Writt PS.
Justice Whitener is the first Black woman to serve on the Washington Supreme Court, the fourth immigrant-born Justice and the first Black LGBT judge in the State of Washington. Justice Whitener is often invited to speak to organizations locally, nationally, and internationally on human rights, access to justice, and the responsibility of the judiciary to ensure the right of all who appear before the court to basic dignity and respect in judicial proceedings.
Justice Whitener was born and raised in the Caribbean island nation of Trinidad and Tobago. In 2015, at the request of the United States Embassy, Judge Whitener visited her home country to speak on human rights. In 2016, Judge Whitener gave a TEDxPOS Talk entitled, “Claiming your identity by understanding your self-worth” where she discusses the empowerment of embracing respect and how it informs her philosophy and approach to living. https://www.youtube.com/watch?v=57FMau29O_g
Justice Whitener earned her B.A. degree in Business Administration and International Marketing from Baruch College, New York, and received her J.D. degree from Seattle University School of Law. Justice Whitener lives in Pierce County with her wife, attorney Lynn Rainey (CSM-US Army Ret).
I’m so pleased to have joined the show Associate Justice from the Washington State Supreme Court, Justice Helen Whitener. Welcome.
Thank you for inviting me.
I’m so excited to hear about your journey to the law and in the law because you have a unique background. I’m interested to hear that. I guess we could start with that, which is probably a longer story for you than others. How did you become interested in the law and end up wanting to go to law school and become a lawyer?
I’m not originally from the United States. I was born and raised on the Caribbean Island of Trinidad and Tobago. At the age of sixteen, while studying for my advanced degree, because it's under the British system, I became paralyzed on my right side. I was sent to the United States for medical reasons. While going through medical rehabilitation, a cousin of mine said, “Consider applying to college here,” because our O levels are the equivalent of your high school degree here.
I did that and I got into Baruch College, part of the school system in New York. I did my undergraduate degree in International Marketing and Trade. My intent was to return to Trinidad and become a teacher because my parents were educators. My father was a middle school principal. My mother was a high school teacher.
That didn't happen. I ended up going to Alaska. I worked there for a while in international marketing and trade. On my way back to the island, a friend said, “Stop in Washington.” I did and the rest is history because I got a job working at an accounting firm. While working there, one of the accountants was also a lawyer and he is the one that inspired me to try law school. I did and I haven't regretted it. It's been a wonderful career. I’m glad he saw something in me and I’m glad I listened to him.
Those are two important things that somebody sees something in you that you don't yet see in yourself.
That's been my career.
Also, you listen to the person when they say that instead of dismissing it.
Being open to the opportunity when it does come up and being prepared for the opportunity should it come up is how I look at it.
Be open to the opportunity when it does come up, and be prepared for the opportunity should it come up.
I loved the whole serendipity aspect of, “Stop in Washington,” and you did for a very long time.
I’m still here. That’s why I’m open to adventures.
I think that's another good part of the story. Most people might not do that. They'd say, “I stopped and I moved on to whatever my plan was.”
For most folks who started, it’s crazy to go to Alaska being from a Caribbean Island. Who would've known that it would lead me to Washington state and to a career that I love and the heights that I’ve achieved?
It’s following each path and each step. What caused you to want to go to Alaska? Let's start with that too.
I’m into international marketing and trade. It's the hub for the Pacific Northwest. It was a natural progression.
I think you'd think New York for that thing, but Alaska is interesting. Did you go to law school with a particular idea of what kind of law you wanted to practice? How did that evolve?
I took the LSATs and got into Seattle U Law School. I had no clue as to what the law was about. I didn't even know about the Constitution. I learned about the American Constitution in law school. That's why I think I immersed myself so much in the law because I love what I came into. I thought it was going to be like Perry Mason. I'd learn how to argue and do the real tricks in the courtroom like Perry Mason. I like Seattle U Law because they have a program, an Academic Resource Center Program, for students who are like me, not familiar with the system. The one I grew up on that was the British system, which is quite different.
They provided support during the first year to acclimate us to the law and what it would entail. That was very helpful for me. One of my first classes was Criminal Law. I ended up being a teaching assistant to that professor for Criminal Law. I did well in the class and I was like, “There's something here. This is like Perry Mason.” I realized, “He was in a courtroom. How do I get to the courtroom?”
One of my first jobs wasn't in the courtroom. It was working for the attorney general's office writing briefs and memorandums. That wasn't it. After doing that, I asked them, “Can you help me get to something closer to a courtroom?” I was still in law school. I was a law clerk. They suggested another branch, which got me into dependencies which is dealing with children and their families in crisis.
That was helpful, but that's before the bench. That's not before the jury. I’m trying to get to the jury. Eventually, I got on with the City of Tacoma Prosecutor's Office. I got in that courtroom and I was given case files. I had to do the motions and I got to do a trial. I was like, “This is it for me.” That's pretty much where my prejudicial career was at. I was a litigator. I didn't care what side I was on as long as I was in the courtroom. I did prosecution, public defense, private defense work, and all trial work before being appointed to the bench.
I think that's one of the special things about the law. There are so many different avenues and ways to work with it. Some of them feel like home and some of them don't. It's good to be able to try them out.
Especially when you're in school. I mentor a lot and I tell my mentees, “That's the time I want you to immerse yourself in different aspects of the law. You come in thinking you want to do something, but there are so much and so many avenues in regards to the law. You then get to the bench and there are different types of judges.” I was a board of Industrial Insurance Appeals Judge before being appointed, and that was after I closed my practice. I got to be a different type of judge. It's immersing yourself in the law. It's a beautiful thing. There are so many different areas. There is something for everyone here. As we were chatting, you don't even have to practice the law.
There are a lot of skills in critical thinking and analysis that is helpful for other roles also. For students now, it was getting started when I was in law school, we’re all of the clinics. I teach in some clinics, but that's a great opportunity for students to gain skills and also to see what it's like to practice and work in a particular area of the law. Sometimes we have in our head, “Theoretically, I'd like to do X kind of law,” but when you're there doing it, you go, “I don't think so.”
That is so true because I took a course at Hastings while I attended Seattle U. I took a break, went to Hastings, and did their trial advocacy course because it was intense and I was interested in trial work, but you want to hone your skills. You want to be the best that you can be so I went there. That was one of the best clinics I’ve had because they also recorded us. We got to do motions and argue in front of our colleagues. It was beautiful. It was something I'd never done before in law school. I came back to SU Law and then I got these different positions and it was like, “That was a good move.” You're right. Immerse yourself in different things. The clinics are wonderful.
Being intentional about that, like you were in terms of saying, “This feels like home. This is something I’m very interested in. What do I need to do to excel at that? I need opportunities to do it, but I also need training and focus on skill-building early in my career.” It is helpful. When you have those experiences, you can get even more experiences.
I think that way as supervising and training new lawyers. It helps me when they have had a clinic. They've had some experience where they've done some trial work through an externship, clinic, or something else or they've had an appellate argument because they were in one of the appellate clinics. You're able to say, “This is not their first rodeo.” When they're working on a case, you can say, “No, this is not their first argument that they'll be doing. They have done others. I’ve seen them. They've done well.” That builds on itself in terms of getting more opportunities.
I started off by telling I didn't think I would get into law. I thought I'd be a teacher. Strangely enough, I was doing a trial years ago and opposing counsel said to me, “We haven't met, but it was interesting to watch you operate in the courtroom.” I was like, “Why?” He said, “You were like a teacher. It's like you were teaching us about your case.” I chuckled and said, “Yeah, I’m still teaching.” You want to do something and here it is. I’m in a completely different field but I’m still teaching and that's how I approach things. I’m teaching the judge about my case and the jury about my case. Now I teach counsels about what I want. We're teaching. It's how you look at it.
I think of the perspective. That way, you're all working together. “We're all working together to figure this out and here's my perspective.” Also, how you bring different skills and different parts to your work. That's a theme and definitely clear in your case. You have that skill. You had parents who did that. It’s in the family in terms of what you've seen growing up. You're able to use that as a lawyer. Everything we do comes together and allows us to be unique and present our own approach to things.
I like that word, unique. I mentor and my mentees always want to know, “Who should I fashion my skills after or who should I be like?” I’m like, “Be like yourself. Find your strength within. That's what you want to bring across to whoever your audience is,” because that's how we're trained to present a point of view. Your authentic self makes it more true to the receiver of that information. Stop trying to be like somebody else. Own yourself. Figure out who you are, find your voice, find who you are, and present that.
People being authentic resonates with people. They can tell that. Also, if you don't allow your own uniqueness to come forth and blossom, then the world is missing something. Only you can contribute to certain things or do certain things.
We're all unique. I like that word.
You obviously have a deep love for the law and we're interested in the law itself from law school. That's an interesting judicial path. I don't know that even most people would know there was such a judicial position as your first one. How did that come about?
I ran for election for Superior Court back in 2012. You go through all of these different interviews, the newspaper, and those things. The newspaper, in writing about myself and my opponent, said that he came across as a Civil Law expert and I came across as a Criminal Law expert. They thought the bench at that time was heavy on Criminal Law. They tipped their hand and gave their endorsement to him.
They ended up saying, “In any other race, we would have endorsed Ms. Whitener.” I thought to myself, “You think I’m lacking in Civil Law experience?” It wasn't true. I applied to become a Board of Industrial Insurance Appeals Judge for two reasons. One, I like writing anyway. You don't do as much writing when you're a litigator, especially if you're a Criminal Law litigator.
I wanted to get more writing and writing opinions. Civil procedure is used at the board hearings so it would give me what was lacking. My eye was still on pursuing the judiciary. My mentor, who placed me on the bench first, was Judge David Kenworthy. He was a district court judge. He saw something in me and when I was able to, he placed me on the bench to cover him while he was on vacation or on leave, all sorts of things. I had my practice at that time, so I would always be able to do it.
I went to the board and got that civil experience. That was in 2012 when I ran but didn't win. In 2013, I went to the board, and in 2015, the governor called and appoints me to Superior Court with my colleague, who was my opponent at that time. It was wonderful. One of the things I did after losing that election in 2012 was reached out to him for two reasons.
One was to congratulate him and the second was to ask him what he thought was missing in my repertoire for the position. He suggested civil as well. One of the mottos I have and live by is something my mother instilled in me. The reason I share that is to point out that if at first you don't succeed, try again. I don't like trying again until I know what was missing. I thought, “Why not ask my opponent?” We ran a beautiful campaign, both sides, and it was professionally done. We were respectful to each other and he became one of my biggest admirers and supporters to join him on the bench.
I was going to say, even if you hadn't said that was a motto, I definitely would've thought you're exemplifying it even if you didn't say it. I think that another interesting thing about the show and that I hope people get from it. Sometimes you see the end of the story. You see the person in a position where they've clearly succeeded but you don't see the ups and downs, the retrenching, the trying again, and all of that. All of that happens to those who ultimately succeed also. The difference is that you pick yourself up and figure out what else you need to do next time and move forward.
You're looking at a Black woman, a member of the LGBT community, an immigrant, and a person who identifies with a disability. I refuse to succumb to labels. Failure is not an option. Perseverance is. You hit that wall and it's like, “How do I get around the wall? Do I go through the wall? Is there a way to go around the wall?” I’m constantly thinking of ways to overcome the hurdle or the barrier that's in front of me. There are many barriers. You're correct. You see the final product, Justice Whitener, but you don't know the minute steps that were taken to get here.
Also, I would say the perspective or the mindset that you have to have. I think that some people would see, come to the wall and go, “There's a wall. I’ll go do something else.”
You're giving up on yourself. I love to dream but I tell people I like goals better. Dreams are fancy. They're wonderful. I have a dream but no, I have goals. My dream would be to get to the other side of the wall. My goal is how am I going to get to the other side of the wall.
I like to dream, but I like goals better.
Have a plan or an approach. Have something tangible or steps that you can take because there’s so much in the process. Especially judicial selection, whether it's appointment or election, there's a certain amount that's in your control and timing or whatever. All these things aren't in your control, but you still have some that are. What can you do about those?
That is such a common commentary too in the selection process. You can't be everything to everyone because we specialize. Someone is very well versed in Criminal Law, not as much in Civil. They'll say to civil lawyers, “You don't have criminal experience.” It's all of that. Everybody says something about that. Few people think about ways that they can expand it and say, “I have this knowledge, but how can I get some broader experience?” It is helpful for the bench to have because you have a generalist court in many cases. All kinds of cases can come to you. If you're in the trial court, you could have all different assignments.
Lawyers should think of the degree as a generalist degree. I got appointed but I have to run for elections and I have now been elected twice. If not, I tell people, “I’m first and foremost an attorney, so I’m not out of a job.” Even if I don't practice law, I’ve learned certain skills that can be applied in different areas. I’ve had businesses in the past with my International Marketing degree. It's not like you threw it out the window. It's still there somewhere up on the hill. You go back, regroup, and come forward with something new. Some people get pigeonholed into an area of practice and don't realize you can do so many other things. You're doing that now, but you might be doing something else tomorrow.
It evolves. Your interest and your skills evolve and the law is evolving too. There might be some new area that didn't exist previously that looks pretty interesting.
That's the beauty of the judiciary. When you get to the bench, you're no longer in one area. All cases come before you if you're on the trial level court and the appellate court. You have to get up to speed on the issue that's brought before you. The law is not going to be familiar. That's where researching comes in. All the skills that you learned in law school can be applied now. That's why I love this field because you can never get bored. If you get bored, find another area.
That's what I love about being an appellate lawyer because the corollary is when we're doing our cases, it's wherever the law is moving or changing. This year it's employment cases. Next year it's something else.
It's a beautiful profession.
I enjoy that part of it too. That resonates with me. The other part of your story is heartwarming and very positive to think about our profession. I’ve had a similar experience too of how you reached out to the man who then became the judge in that position who was elected. Because you had not a personal dirty campaign, you were able to do that and then have some friends and mentoring out of that. I think that's so great in so many different ways.
I wish that more people were that way with opposing counsel. I’ve had that experience too where I’ve become friends with judges who got the position and I may have been up for it, but they're like, “We're interested in you. Let's talk.” We became friends after that. I always thought that reflected so well on them.
It’s about creating connections and professional relationships. I’ve done both sides as I’ve told you. At the end of a trial, win or lose, whatever that means, I would shake my opposing counsel's hand. Some counsels are so upset if they lost or if they won. They would not want to engage. I would at least make the gesture because it's a case and we move on to the next case. You don't carry that previous case, whatever occurred there with you. When you are arguing, you argue to the best of your ability and you maintain that level of professionalism. It's hard for some people to do but it's important because the benefits outweigh any negative that could come from that.
I was working on a murder case, doing public defense against some prosecutors. They were not aware that I had been a prosecutor prior. After that case, I was approached to return to a prosecution job opportunity. I did switch sides. The amount of times that that has occurred in my interactions with people where opportunities come up based on my performance or how I behave.
Judge Kenworthy saw me as a public defender in his courtroom then he saw me as a prosecutor in his courtroom. He approached me and said, “Have you ever considered becoming a judge?” “No.” I went home thinking, “Judge Kenworthy thinks I can become a judge.” I’m never envisioning this but he saw it. It's being open and putting your best foot forward but being professional and respectful at all times. People are looking at you when you least expect it. They are looking, and those are opportunities that could be coming your way that would not come your way if you're not carrying yourself well.
Do you think you have that perspective or that attitude early on because of your experience in business before going to law school? Do you think that played into it at all or is that how you are?
I think that's how I am. I’m the 3rd of 4 children. I was the most opinionated of the four. A brother is an engineer and another brother is retired. My sister has a PhD. She’s more reserved. I was more abrasive. I learned early on I wasn't getting anywhere with that attitude. I had to figure out, “My sister is always getting everyone and always talking about her. She's so nice.” My older brother was a little terror. I didn't want to be either one of them, but I realized that if I can find a happy medium, find who I am and learn a word that I have grown to love and respect.
What does that word mean? I grappled with it as a teenager because I think on the island, they were giving me two stories. My mother loves to tell you these things, “Give respect where respect is due and respect your elders.” One day, it clashed. The elder wasn't respectful, so neither was I. I made my pitch and she listened. She’s a teacher and she listened but I still was disciplined for being disrespectful to an elder. I kept thinking, “Mom, the elder was due respect.” I realized I have to work through this word respect and I try hard to live by that now. Reaching out to opposing counsel is the respectful thing to do at the end of a very contentious case.
Reaching out to the opposing counsel is the respectful thing to do at the end of a very contentious case.
I was thinking of those two together even before you said that. I was thinking in my household. The respect your elder would've been on top of the other. There's a hierarchy.
I was that teenager that was always pushing the envelope. I’m like, “Which one is it?” I got disciplined for picking the wrong one.
You're putting these things thinking. My mom always used to say I might be the first woman Jesuit because I was so hair-splitting and would do all of those same thinking about things.
We were brought up under these little sayings our parents had.
They worked and there's a reason. The point of the whole aspect of respect for yourself and others, all of that is a good touchstone in life.
I did a TED Talk back in 2016, Claiming Your Identity by Understanding Your Self-Worth. It was basically around the word respect.
How was it to do a TED Talk?
Awesome. How that came about was quite interesting because I got to the bench and my mother, a proud Caribbean woman, chatted with someone on the island. They did an article where they had me on the bench and it said, “This Trini is a judge.” It went viral through the Caribbean islands. One day, I was working in chambers and I got a call from the State Department. I kept wondering, “Why is the State Department reaching out to me?”
When I took the call, they wanted me to return to the island to do a humanitarian mission in regards to LGBT rights. It turned out that President Obama had written two proclamations for the Caribbean islands. My wife and I returned. We met with the judiciary, NGOs, teachers, and different groups. On returning, someone reached out and said, “I'd like you to do a TED Talk.” We returned later that year and then did the TEDxPortOfSpain. I fashioned my Ted Talk around respect because I thought it was important in understanding how I addressed the societal labels assigned to me and how I overcame them.
It's such a specific genre and a different way of speaking and presenting. I had to find out how that came about.
I was honored by that. I was like, “I didn't know what those things were,” so I had to do a little research on that.
You're like, “What is this that I’m being asked to do?” Sometimes I’ll say yes to something before I even know what it is, like, “Yes.”
In my journey, I was talking about opportunities. Two years later, we had started this discussion in regards to LGBT rights through the Caribbean islands because it was illegal. You could be incarcerated for up to 25 years. That was in 2016. It started a discussion and then in 2018, a case came before the high court in the Caribbean islands. The law was found to be unconstitutional. Unbeknownst to us, we were at the forefront of starting a discussion that ended up dismantling the unjust law.
You never know what impact you'll have. That's amazing. One of the interesting aspects of being on the bench is different ways of convening people to have discussions around certain issues. Judicial ethics require certain things of you that you cannot do, which you could be if you were an advocate, but it doesn't stop you from convening and being part of those discussions. Who knows where that leadership will go?
It's education again. That’s what tickled me. I spoke at the university, with the chief justice, and with the judges. We were discussing the law and how human rights are impacted by legal decisions. It's interesting to get immersed in that aspect of the law. I don't think it would've been possible, but for me, becoming a judicial officer because that's what got me on this article. The article got to the White House and the White House said, “We have this proclamation we're now doing for the Caribbean islands. See if this judge would be willing to go.” I never would've known and I was grateful for the opportunity.
It started with a proud mother too.
She’s a proud mother now. She wasn't always.
That led to the news article which led to all that. You never know.
It's just being ready.
Being the right person for something.
Being able to speak. I don't think I would've been able to speak to anybody. Law school brought that out in me. I’m rather shy, oddly enough. For trial work, as much as I loved it, it was terrifying. Every time I did it, it got easier and easier. That prepared me for the judiciary where, as judges, you're called to make speeches and presentations. That helped me. Each part of my career prepared me for the next step.
Each part of your career will prepare you for the next step.
Even if you didn't know at that time what that step would be. Your intentional effort to expand your substantive knowledge by going to the appeals board then led to a trial court position.
In 2015, the governor appointed me to the Pierce County Superior Court. It's a general jurisdiction court, and we pretty much handle everything. Predominantly, I started off on a Criminal Law rotation, but while there, I did predominantly a Civil Law rotation, which tickles me to this day because that was the reason I didn't get it initially. I did about three years of that.
I did some Family Law as well while I was on that court. I was only there for five years. I was up for election when I was preparing to retain my seat. I didn't have an opponent and I thought, “I’m going to get another good four years at this.” I get the call and got appointed to the Supreme Court to finish a term for the then-sitting justice who retired.
He had 2 years left on his 6-year term. I got there in April 2019 during COVID. I became the virtual associate justice and only this term we've been in person. For the entire two years, I was on a Zoom screen with my colleagues. I was up again in 2022 and did not get an opponent. The first year I did the first two-year term and I am good for six years. I’ll be here for six years before I have to decide what I’m going to do, whether I’m going to run again.
You can get to the bench two ways in my state, and that is by way of an appointment by the governor, or you can run for election. Our oldest sitting female, Justice Barbara Madsen, ran and she ran when it was unpopular for women to run. She's a hero of mine because she's still there 30-some odd years. She has a wealth of knowledge and I’m sucking up everything I can like a sponge. She's wonderful. To be in the presence of a woman who ran when it was not easy to do.
The women are trailblazing at the very forefront of doing those kinds of things when it was quite unusual. They are something else.
If not for them, many of us wouldn't be here.
It's so different being on the trial bench and an appellate bench. First, you're one of many instead of the one making the decisions. Also, in your case, it's hard to start any new job during COVID where you're not in the same space, but one where everyone is collegial and decision-making and there's a lot of back and forth, that would be like additional challenges, I would think.
It was different. As you said, with people and then COVID pulled us out of the courtroom. I was getting ready to deal with jury trials and everything else on Zoom. I get pulled into a new job. I’ve never done appellate work, so I have to learn that. I don't have colleagues that I can go next door or down the hall and chat with. Everything is on the screen. I had to learn their internal system in a virtual world. It was very isolating.
I’m in good hands with my bench. We’re very diverse and it was a great mix. I got a lot of support and that was truly helpful. I was able to keep the outgoing justices' law clerks. They were willing to stay with me so that was helpful. I kept his judicial administrative assistant. She's now retired. She had been with the court for 30 years. It was wonderful to have a woman who had been at the court too. She knew all the administrative aspects of the court so I got good teachers coming on.
That helps in the transition. That's so great. How are you enjoying it?
I love the law. I love this job. We've handled so many different types of cases. I thought I could write. Now I am fine-tuning my writing skills. I have law clerks. Initially, I didn't know what to do with law clerks because I had done it all myself. It's wonderful now to have young lawyers helping me. They do a lot of research. We write together. It's such a collaborative process. I still have to use my litigation skills when I go into a conference with the justices and try and persuade them to my viewpoint on a particular case and get critiqued by eight justices.
I’m still psyched by the whole thing. I’m so honored to be here. I’m still learning. That's what I love about the law. If anybody gets anything from our interaction and our discussion, the law is a beautiful profession. If at first you don't find the area that you think is for you, try another part of it even if you decide not to practice law. My judicial administrative assistant is a lawyer. She's from California. She's never practiced. She has always wanted to do administrative work but she has the legal, analytical thinking, and skills. It's a beautiful profession and I’m still enjoying it. The day I stop enjoying it, I think I’ll retire from law.
That's what I was going to say too. I always think when you're not challenged anymore or you're not a little bit nervous. As you said, when you go into court, you were still nervous. If you don't have that, then you're not caring as much as you used to. You need to think hard about whether you should still be doing it. There is so much to do. It’s like, “It won’t happen.”
You should also remain humble. I think that's a huge thing. When you get to the judiciary, remain humble. As we've discussed, you're not an expert in all areas of the law. When I joined a judiciary, I loved counsels coming in and being prepared. I knew they had more knowledge on that particular case, the facts, of course. Many of them had been practicing for so many years, I also knew they had more knowledge of the law.
When you get to the judiciary, remain humble because you're not an expert in all areas of the law.
I’m still learning. Of course, I will double and triple-check whatever it is they provide me. Remaining humble and understanding that I don't know it all has been extremely helpful. Even now, when I go out on the bench, I’m nervous about asking counsels about their cases. I know what I need to get from them. I think something that counsels need to do, of course, is listen.
Many times, they don't listen and they go off and waste the time that they have and its allotted time. I still learn so much from them because I come out thinking, “I know what it is you think you want to need to hone in on and what I think the issue is. You know the facts.” I then realize it was something else they were trying to tell me in regards to the law, so I have to go back to the books. The whole process is still fascinating to me.
It still gets me at appellate arguments after you've done all of the briefings and you're preparing as the advocate for argument and you see new things. You see new approaches and new ways of thinking about the issues to have discussions with the justices about. You would think, “How could that be? I’ve spent all this time with this,” No. There's still more to go through and have more perspectives on.
On the trial level, you are the decision-maker. Counsels are coming to you and it's all on you. I get to the appellate court and I’m learning from my colleagues because they bring a whole different perspective that I hadn't even thought about. I was like, “This is awesome.” I’m constantly writing and going back and going, “I thought I knew what I knew when I came out. Now I’m not so sure. I have to go back and look at this again.”
Counsels made arguments. The court asked questions and counsels answered. I’m continuously challenging myself. For anyone interested in the judiciary, it is fascinating because you're constantly rethinking and thinking. What he thought you knew, it’s not under these backs. You got to look at it again. It keeps you busy all the time and alert.
The being humble part and the humility part can often be challenging, but your approach to it in terms of an educator's approach and being educated by both your colleagues and the counsel is one framework to maintain that humility.
When I got appointed, attorneys write to the governor and someone did mention my humility and being humble on the bench. I thought, “They did say I can be stern.” That’s okay.
We didn't say pushover. That's different. Listening, that's certainly good advice for lawyers who are doing oral arguments before an appellate court. What other advice would you have for advocates in terms of brief writing or oral argument?
It's important to know what it is you're asking the court to do. Identify it and don't lose sight of it. Many times, I’ve seen individuals identify, let's say, an issue or issues and then they get lost in their analysis and they go off on a tangent. When I try to bring them back to oral argument because they lost it in the briefing, they don't listen because you prepare what you want to tell the court. I notice at this level, it's difficult to get off course. They're not listening to what the court is asking but the court asks questions for a reason. It's because maybe it's not so clear in the writing.
Once you've identified that, then build from there. Find the cases and the supporting information, tie it in like we learned in law school, and bring it forward. I also think the trial-level work for lawyers is not necessarily only in the courtroom. I loved litigation but I was a good writer. Sometimes you can win cases on your writing. If you're doing, for example, Criminal Law, you can get a case dismissed because of your writing.
If you're doing Civil, you can negotiate or get your case settled amicably if you can write. You put it in writing and you show up the flaws in the case for going forward to trial. Writing is important but identifying and knowing what it is you want the court to do and what it is you're asking your jury to do. Knowing who your audience is is still as applicable. Know your judge, know your justices, in my case, or know your judges on the Court of Appeals. Know who you're making that argument to.
If you don't, sometimes you walk into some areas that are like, “You should have known that judge who wrote that decision.” That happened quite a bit. I was like, “That's not good.” I don't have that many decisions out, but I’ve seen it on the old decisions and it's like, “Did you know that Justice so and so wrote that decision? If you're going to sign it, you better know it.”
You always want to check on that, especially if you're going to say, “That reasoning wasn't very good.” “Really?”
“That was my reasoning, counselor.”
You're right, good writing can make a difference and get some possibility to negotiate in the trial court, but it's important in the appellate court.
I never made up my mind on a case until I heard oral arguments. Probably that's because I was a litigator. I always wanted to know or feel like the court hadn't made its mind up. I have been persuaded by oral advocacy in addition to the writing at oral arguments but it's important to write. Know how to write well and know your audience.
Be concise. You have a limited amount of time in the writing as well as in the oral argument. You may not want to flag all your good points. You may want to address your bad points and the cons on your case. Not too many counsels do that. It might be a good approach to utilizing the limited amount of time that you have because the court is aware of the issue. It is the elephant in the room, so address the elephant.
In an oral argument, don't flag all your good points, instead, address your bad points.
Sometimes, you can say this because the appellate court, in particular, is not only deciding the case in front of the court but also the Supreme Court level is deciding law that will be applied across many cases with different facts. Sometimes it's important to make the court feel comfortable that this is a good result here and that it will make sense in other cases too. How the rule will work out is something else that can be helpful to talk about.
We just don't take any case. We have to have broad applications and substantial public interests. Remember that. It's broader and bigger than your case. At the trial level, it is your case, but at the high court.
As you said, explaining also if there seem to be hurdles or challenges in your case, say, “Yes, this is true, but it doesn't prevent exactly the outcome, affirmance, or reversal, and here's why,” whatever it is that you're advocating for. It's better to address that than not. That's your last opportunity to be face to face with the judges who will be deciding and to have that conversation about things.
The elephant in the room may be requiring that the case be overturned. If you don't address it, then it stays. It's important to think about it in a broad sense.
That’s a good point. You're like, “You need to say something about that.”
We don't change the whole. We don't legislate so you have to give us a good reason to go against presidents.
It sounds like you do enjoy it including the oral argument.
I do. I’m with a good bench. We all have different perspectives. We are very strong-minded but professional and we want to get the best result even though we may not agree on what that result is. That's why we have the sense in all majorities. It's a beautiful place to be. I never thought in a million years I would be here.
Now that I’m here, I realize it's not about being here, but it's about making sure I’m not the last one here. I met Justice Sotomayor once because I taught Street Law at a high school here after becoming a judge. She is part of the Civics with the court. I met her once and I was telling her a little bit about my story and she said, “You're a trailblazer.”
I realized the importance of that word. I’m a trailblazer because I’m the first at doing a number of things but I think the trailblazer is the one who makes sure they're not the last one. Mentoring and reaching back and getting others ready to take my place or join the judiciary in other areas is a big thing for me. It's very important to me. That's what I want to be remembered for. Not just being a trailblazer, being the first this and first that. It's the fact that doors were open because of the work I did and how I carried myself, but most importantly, the mentoring I did by opening up opportunities for others by having folks see that it's possible if we are given a chance.
I shouldn't be here. When you think of what a Supreme Court justice used to look like, I say, “Get used to it because our bench has changed that look.” It's very diverse. We have 7 women and 2 men. One Latino male, he's our chief justice, and we have one White male. He's the oldest sitting justice on our bench. We have the first Native American born and we have the first Asian and Mexican, she's both, and we have two LGBTs on our bench, so it's extremely diverse.
I am the fourth immigrant born on our bench. Our bench has a history of diversity. Now it's truly diverse. I should not be here under the traditional view of what the bench looks like, but I didn't get here on my own. There were others that paved the way and chiseled away at that perception of what the bench is supposed to look like. When the opportunity was right, here I am, but I have to perform so that the opportunity remains available to others.
It's just not getting here. It’s making sure that you do well when you get here. Mentoring is a must. Each judge and each lawyer should reach back and mentor either another lawyer, a high school student, or start in kindergarten. Why not? Have them see us in our robes and think it's cool like RBG. I used to buy her books and when I talked to Girl Scouts and stuff, I give them out to them. It's little things to get them and they're like, “She is so cool. I love her necklace.”
It's getting them interested and having them see it's fun. Having them see themselves. When I did the program in Pierce County and invited the girls into the court, one of the things I had them do was put on my robe. We took pictures of them up there. I developed the pictures and each one of them got their pictures.
A number of them went to law school. One of them graduated from Howard. I posted her picture of her on the bench in a robe and she was like, “That is me.” I said, “Yes and that'll be you in a few years. Welcome to the profession.” I keep in touch with all of them. It's little things that can make a difference. Judge Kenworthy did it for me when he said, “Have you ever been considered becoming a judge?” “No.” I remember thinking, “Judge Kenworthy thinks I can become a judge.” I keep asking everybody, “Do you think I can become a judge?” I had never thought about it. I have a cousin on the island who is a judge and has been a judge for years, but that was on the island.
This is the United States of America. I never thought I can become a judge. Yet, not only did I become a judge, I became a justice. When I first got here, a young girl did her first podcast. Her father is an attorney and we went to law school together. She interviewed me. She's eight years old. She said something along the lines of, “You inspire me and I am so proud of you.”
I remember wanting to cry because I had never gotten that reaction from a little Black girl that looked like me and she saw herself in me. She's like, “I can do this too.” That's what it means for us to get to the bench as women and do well because it opens up the eyes of the young ones where they're like, “She did it. Mom, I can do it too.” Yes, you can. What you are doing is powerful. It's part of that pipeline building. Having us see each other, learn each other's story, and how we get here. Some of us were more privileged and hurdles than others but yet all of us have become successful. That's truly important so thank you.
Thank you and all the other amazing women who have been willing to tell their stories. It's important and collectively, there's something that comes out of each individual story. It‘s beautiful in itself, but the collection of them is a whole other level of what's possible.
Our stories and journeys aren't the same. That's important for young women to realize. Your journey is not going to be like anybody else's because you're unique. In that uniqueness comes your unique journey. I say we have differences, but we're not truly different. We may take different paths, but we're all the same in the end.
I get little chills from that. Thank you so much. Your story of that little girl, too, is amazing. You don't often get that feedback. You do things because you want to and it's clear from what you said that you pay it forward from the people who helped you. You want to trailblaze with the purpose in terms of having more come. It isn't always that you see the fruits of that. Your young lady who is in law school or graduating from law school, that's like, “It's so cool to see that,” and then that eight-year-old. You don't get that direct feedback so much. It's nice because it encourages you to keep going and that you are making a difference for people.
Brooklyn is eight years old in 2022, and Jess graduated from Howard University. I have judges I mentor who got to the bench when I left because I was the only Black female on my bench. Not anymore. They're people of color now. Many of them have mentored. I have a lot of mentees and one will be getting sworn in in January 2023. It's like how you said it. Trailblazing with a purpose. I learn something every day. I like that because I never thought about it that way.
I never thought of myself as a trailblazer. That term came from Justice Sotomayor and I thought, “You're a trailblazer.” It's like Judge Kenworthy, “You're a trailblazer.” I’m like, “What does that mean?” I realize it means not being the last at what you do. You'll be the first, but it's more important not being the last. You have work to do. It's making sure that you move others along with you. Otherwise, you get to the place where I am and you're lonely. Some people, they do that. They get to where they want to go and they're happy. I did it so you can too. That is a lonely approach. Bringing others and teaching them as you learn and you're learning from them as you're moving. It's organic. We're all moving.
Make sure you move others along with you. Otherwise, you'll get to a place where you're lonely.
There's joy in it.
I love to see them. I love to hear, “Justice Whitener, guess what? I am going to be sworn in.” It's like, “This is great.” “Will you come?” “Yes.” It's wonderful.
It's always beautiful to see people reach their potential. To be a part of that, even a small part, or whatever part to allow them to do that is so great.
Many times folks don't even know they're a part of it. I went back to do a presentation for the attorney general's office and then another one for the prosecutor's office. I told an old boss of mine at the prosecutor's office conference, “You gave me a job without even meeting me. We interviewed over the phone,” and he's a White male. I said, “You gave me an opportunity and without that opportunity, I probably wouldn't be where I’m at now. With that opportunity came other opportunities.” He was like, “I never thought of it that way. I thought you were qualified and that's it.”
I said, “I was. The thing is you didn't realize you were a gatekeeper at that point. You could have chosen anyone but you chose me. That gate was open and then another gate was open.” He was so touched. This was so funny. He said, “I had a little bit to do with you becoming a Supreme Court justice. I can't wait to go home and tell my wife.” I chuckled and I said, “Greg, yes, you did. Thank you.” I thought it was so funny. He never even thought about what he did, yet, I did. I remember that.
It's so important to recognize that into express gratitude when you can. It's powerful.
To have the opportunity, yes.
Many times we don't have that opportunity because people are in the room saying good things or helping you but you'll never know that because they don't tell you and you don't know what transpired. Somebody must have done that.
That happens so much when you become a judge because you don't interact or get feedback like that. I also think as you move up, you know who helped you. A little card or a little acknowledgment goes a long way because you didn't get here alone. I know I didn't get here alone.
No one does.
There were people who were integral to my growth. I always try to make sure they know that at least while I’m alive. I hate the idea of people finding out things when you're dead. I want to tell them while they're alive.
You've inspired me. I’m like, “I should send a nice note to people who I know have helped me.” I may have told them already, but it can't hurt.
It doesn't hurt. “I’m thinking about you. Did you know what you did?” Especially when you get accomplished like you have these shows and I get to this bench. It's important because they never knew. I told the judge that I lost the first election. I told him, “You're the reason I’m able to get to the Superior Court with you.” He was like, “What? Why?” I said, “Remember when I chatted with you and you told me you thought civil? That's why I went to the board and here I am.” He was so touched. I get flowers from him every year from his garden.
We became great friends. That could have been a situation where I never would've become friends with him because I lost. The battle wasn't with him. It was for a position and he prevailed. That didn't mean to say I had to stop pursuing it. It's about being the bigger person. In those times, be the bigger person. It'll come back and help you. Be ready for the opportunities because many are coming your way.
That's a beautiful story. I love the relationship that you developed with him. You're right. It's not about that person. It was about the position and being able to have that, step back from it, and recognize that.
We don't step back enough. If you're in court, you're having arguments. It’s like, “It's finished. Step back. You have a case, counsel, and on to the next one.” It's hard to do but if you start doing it, it becomes easier and it becomes part of who you are. Folks are like, “How can you decide a case or how could you defend that person?” It's not about the person. It's about the job and the job I have to do. Stop making it personal.
That's what we think traditionally about the law. You could fight hard in the courtroom, shake hands afterwards, and have a drink or dinner together. Encouraging that behavior to continue is good for our profession and civility.
Civility seems to be going out the door. The more we practice it, the more we at least keep that going within the profession.
You can do it in your area. You can tend your garden. Thank you so much for doing this and for having this discussion. You're such a warm person and have some beautiful ways of interacting with people. Respect comes through in terms of your approach and how you interact with other people. It's beautiful. You can say something but how you are is how you are. It’s been fun.
Thank you. I appreciate that. Thank you for saying that and thank you for inviting me. This has been a wonderful conversation.
Thank you so much. Typically, I close with a few lightning-round quick questions. The first question would be, what skill or talent do you not have but wish you did?
The ability to relax. I have been working on it but I’m a workaholic. I don't sleep a lot. I think it might be in my genes. I have no idea. My mother wasn't much of a sleeper either. My wife says, “You need to relax.”
Do you turn hobbies into work as well? Do you take it to the nth degree? That's something I tend to do. It's like, “No, it's supposed to be for fun.” “It's only fun if you're working towards excellence. What are you talking about?”
The thing is I compete with myself. I don't compete with others. I’m my worst enemy. I’m constantly trying to outdo myself.
It's hard to rest when you're doing that. For what in life are you most grateful?
Life itself. As I indicated, I became paralyzed at sixteen. To go from being able-bodied, being in a wheelchair, having others help you do the basic things, and going through painful rehabilitation. I’m still having remnants of my disability affect me. Getting up in the morning is a beautiful thing. I didn't think I'd be here this long, so I’m grateful for life.
Be grateful for life. The ability to just get up in the morning is a beautiful thing.
That's a great attitude. Given the choice of anyone in the world, who would you invite as guests to a dinner party?
Now is a good time to ask that question because it changed. Justice Ketanji Brown Jackson. I would love to have her over for dinner. I would love to sit and have a conversation like we're having with her. What I became for some, she has become for me, and to see someone like me at that high level of a court. I would love to meet her and have her over for dinner. Why not?
She's very charming and sparkling in so many things and she would be a great dinner guest in so many different ways. She’s a very kind person. That would be a lot of fun.
The second would be Justice Sotomayor.
Maybe you could have both of them. That would be fun too.
That's what I said. Now you ask that question, it’s perfect timing. I bumped Justice Sotomayor because I’ve met her, but if I could have two, those would be the two.
That would be a lot of fun for the two of them together too. That's awesome. Usually, I ask what your motto is, but you already talked about your motto. I don't know if you have another one.
The one I said where I say we have differences, but we're not truly different is one I coined in my TED Talk. I say, “I use my diverse lens to bear on the law.” I bring my diverse lens to bear on the law because I truly believe we have differences, but we're not truly different. If we work hard at it, we'll see and hear the other person's point of view and be able to come to an adequate and reasonable resolution to whatever it is we're trying to decide.
Thank you so very much once again for being part of the show and for a lovely conversation.
Thank you. I’m so honored that you asked.