Episode 123: Sheryl Gordon McCloud
00:53:30
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Show Notes
With host MC Sungaila, Washington Supreme Court Justice Sheryl Gordon McCloud discusses campaigning for judicial election, and how her experience as a public defender and appellate lawyer prepared her for a career on the bench. Justice McCloud also shares appellate brief-writing and oral argument tips.
Relevant episode link:
Washington State Supreme Court , Ninth Circuit Court of Appeals
About Sheryl Gordon McCloud:
Justice Sheryl Gordon McCloud was elected to the Washington Supreme Court in 2012 after a career of helping clients fight for their constitutional and individual rights. As a Justice, she serves as Chair of the Washington State Supreme Court Gender & Justice Commission, as a member of the Supreme Court's Rules Committee, and as the liaison to the Supreme Court's Pattern Instructions Committee (on which she previously served as a lawyer-member). She is also on the Washington State Bar Association's Council on Public Defense. She speaks regularly at legal and community events throughout the state on topics ranging from ethics to criminal justice.
Justice McCloud brought a wealth of appellate experience with her; she handled hundreds of cases before the Washington Supreme Court and other appellate courts before she became a judge. Her law practice showed a record of commitment to communities of color and a long history of providing legal assistance to those who lack the ability to pay. In one of her first volunteer cases, she helped successfully defend a woman's right to pregnancy disability leave in the United States Supreme Court. She also taught at the Seattle University School of Law and has published several articles.
Her legal expertise was recognized by her peers before she joined the bench. For example, she received the Washington Association of Criminal Defense Lawyers' highest award, the William O. Douglas Award, for "extraordinary courage" in the practice of law. Her commitment to justice is still recognized by her peers now that she has a track record of work as a Justice. In 2015, Washington Women Lawyers King County Chapter honored her with its President's Award. In 2018, the Cardozo Society of Washington State presented her with its L'Dor V'Dor Award.
Transcript
I am so pleased to have joined us and share her insights with you Washington State Supreme Court Justice Sheryl McCloud. Welcome.
Thank you so much.
First, I love your backdrop with the Chihuly Garden. It's very beautiful and emblematic of the Pacific Northwest and the great art that you have there.
I thought I would bring attention to the Pacific Northwest because you needed to know what gray skies and rain were like down there.
It leads to greenery and beautiful gardens. That's good. That's also in there. Thank you so much for joining the show and adding your story to the mix and your journey in the law and the bench. Before we move into serving on the bench and your career, I wanted to start first with what originally inspired you to become a lawyer and go to law school.
I was a little bit of a late bloomer. I was always interested in fairness. My father was a gym teacher. I grew up doing sports. The main thing I always said was, "That's not fair," depending on whatever the call was. I grew up in the '60s and early '70s. I was very interested in women's rights, the treatment of prisoners at the time, the civil rights movement, and issues around the Vietnam War. I was always arguing. People often said to me, "Are you going to be a lawyer?"
I've shared that story. A number of people I've shared it with have had the opposite reaction when they were growing up. They would always be arguing. Somebody would say to them, "You're going to get into trouble. You're never going to work out. You're never going to find a place to fit." I was fortunate to get the feedback that I did to the same questioning of authority that they got very different responses to.
I went to college in Buffalo, New York. I'm from New York City. At the time I graduated in 1976, there was a ton of strife politically across the United States with friends not just arguing with friends but sometimes ending friendships and family relationships over it. I moved away from being that intensely involved and got a number of jobs after college, including a job as a secretary. You made more money as a legal secretary. I finally said, "I could do that." Both paths converged, my real interest in government policy and my real interest in doing what the guys and the grownups could do.
That's an interesting point you made about childhood advocacy and having that positively reinforced. That could be positively channeled into something useful. Some people don't get that positive reinforcement in it and what a difference that makes.
I hate to generalize but I'm White. I came from a very loving and stable family. That was the feedback that I got. My friends and colleagues who are Black and other people of color are the ones who have told me the stories about getting different feedback, not necessarily from their families but from people outside their families, "You better stop talking like that. You will never make anything of yourself."
That's so important whether you decide to proceed with that. You have to be very strong in yourself early when you get negative feedback from it, "Don't go that way," instead of developing it. That's an important thing to point out. I hope in some ways that the show provides that a-ha moments for some people who may not have realized, "This would be a good avenue for me to apply my talents and skills." That fits well with some of the things that I hope for the show also. I hope your story will make people think about that.
It's interesting too when you said that there was a lot of strife. You moved away from that for a little bit and then circled back to the law. A lot of the guests have talked about law as being a method to solve problems. It gives you tools and opportunities to solve larger problems but maybe what you saw in between was the concern that those problems couldn't be solved. You couldn't do that through the law. Did you have a different sense of problem-solving? Was it something else?
The time in between certainly showed me a lot of problems from people who couldn't afford to go to college while I was in college to continuing problems in the prisons and our inner cities at the time. I felt powerless to do anything about it other than be one of many who might join a picket line, a demonstration, or something that didn't feel like I was doing the most that I could. I thought eventually that I could gain more tools and change things for the better somehow if I became a lawyer.
When you went to law school, were there a lot of women in law school at that point in time?
I went to USC Law School right down the block from you. I was there from '81 to '84. I don't remember the percentage but at least 1/3 were women in my class. I felt like I was not an outsider. I felt like there were simpatico women, simpatico men, oppositional women, and oppositional men. It seemed like I was not one of the breakthrough people in putting women into law school. One of the breakthroughs at the law school at the time, though, was the clinical programs.
I know the impact of now Judge Dorothy Nelson on the school as one of the few women deans of ABA law schools at the time. She was very instrumental in the clinical programs too.
I didn't overlap with her when I was their Dean Vice. It was shortly after her tenure there. There was a prison law project, in particular, that was there when I started. It gave me the opportunity to go to Terminal Island, one of the federal prisons, talk about administrative relief with some of the incarcerated men there, and see if there were anything that we as students could do.
They also got some requests from the Ninth Circuit Court of Appeals to do some pro bono work through the pro bono panel. I got to do my first Ninth Circuit Court of Appeals argument as a second-year law student in the prison law project. I have never prepared so much for an oral argument or had so many moots practiced before I went to that argument as I did when I was at USC Law School but I know that was groundbreaking at the time. I've been back to USC to judge moot court competitions. Since then, I support their goal of hands-on practice and their goal of diversity in their student body and their faculty.
The clinical programs are so important. I've taught in a Ninth Circuit appellate clinic at various schools for almost a decade. I wish I had that experience when I was in law school. I'm so glad that you had it at USC. UCLA was a little bit slower in some of the clinical programs. We didn't have that opportunity when I was there. You're right about the preparation time. Some of my students will say, "This semester, we're preparing for arguments. What else are we going to do?" I'm like, "That is what you will be doing for three months or however long." How amazing.
There is a number of things that you can learn from that, not just how to answer a question and how to appreciate a question from the bench or what's the appropriate demeanor to get your point across well but some of the other things that if you were going into your first argument without a mentor behind you, you wouldn't know.
The day before, I was so nervous. "How was I going to look? How was I going to come off? How was I going to do that?" Finally, one of my mentors sat me down and said, "It's not about you. It's about the client. Drop it. Don't worry about how you're going to do it." "What if I can't answer the question?" "If you can't answer the question, tell them, 'Your honor, I don't know. I'll find out. I'll submit that tomorrow.'" The world isn't centered around me.
When you go to court as a lawyer, it's not about you. It's about the client.
It's so amazing to have had that experience before graduating. I always tell the students, "There are so many people who have been in practice for many years who can't say they have had an appellate argument at the Ninth Circuit." What an amazing experience to come out of law school. As a supervisor in a law firm, it makes my life easier to give them more opportunities if they have had that experience in a clinic because it isn't theoretical. They have done that before. If you want to provide another oral argument opportunity, you can do that by saying, "They have argued before. They have done this already." It's uplifting for them in their careers early.
I valued it.
Did your experience in the clinic then cause some movement or desire to practice in the area that you did?
My experience in the clinic influenced everything I did afterward. The clinical professors Judith Resnik, Dennis Curtis, and Willie Genego are the ones who stayed in touch with me, gave me tips, and told me I could do it or told me I had done it wrong throughout the rest of my career. Judith and Dennis continued to do so. Willie of blessed memory does not.
The case that I argued was a civil rights case in Section 1983. It's fascinating. I didn't end up going into strictly civil rights work but I did decide that I loved being in a position to hopefully influence the law, not just for one client but for more than one client with a published decision that might affect other people. I got into practice after doing a lot of trial work going into appellate work. Sometimes you get that published decision that influences a lot of people, and it's not what you wanted.
There are pros and cons to it but I also felt that I appreciated the give and take of how to resolve an issue a bit more than the presentations that you do at the trial level, which depend on facts but also depend on a good lawyer being able to marshal those facts and present their cases. I preferred what seemed like the pure route at the time. In hindsight, I may have been wrong.
There are very distinct skills in trial work and appellate work. What's effective in one is not necessarily effective in the other. Wherever you're naturally skilled, you're going to be drawn to that and where you think you can make the biggest impact. I have the same feeling about the appellate work that you do. It's great when the decision is going your way because you've made not only a difference for your client but many other people and had an impact on the law with one case, which you can't directly say about a trial court proceeding. That's one of the differences that I appreciate in it but as an advocate, it goes the other way. It can be very much more vexing than if there was an adverse trial court proceeding. The downside is much more to you.
I agree with your point about the difference in skills. It's one that I always used to emphasize after I moved into appellate work as the reason why you should hire a different lawyer to do the appeal and have a fresh set of eyes as the judges on the appellate court are going to be a fresh set of eyes. I can tell you how a fresh set of eyes is going to see what's on the written page but in hindsight and from the perspective on what of what I'm doing now, the best lawyers and leaders at all levels are the ones who can listen.
The feedback that I would get at a trial if a colleague were watching might be, "You need to listen to their answer before you pose the next question. You need to do one fact per question on cross-examination. Listen to yourself as you're talking. That's a listening skill." It's the same thing in the appellate court, particularly for the lawyers. If you can listen to the question being asked and address that question rather than sidestepping the difficult question, then you've served your client. The skill of listening transcends boundaries.
That's important. I hadn't looked at it through that lens but there's continuity between good advocacy at all levels.
Hopefully, there's good judging at all levels, both involving listening and honestly asking questions that tell the lawyer, "I'm with you on this. I'm not with you on this. I can't figure out how you want me to be with you unless you can answer X, Y, or Z." That gives the lawyer a chance to say, "Those are the hard questions that I've been working on. Here's my answer."
A good judge at all levels involves both listening and asking the right questions.
There are lots of different ways to say that but that's the core of the issue. That's what typically shows up at arguments because that's your opportunity to have that conversation about the hard points and the hard questions. That's the only time as an advocate that you're in the room able to participate in that conversation. Avoiding those questions is not good. It's not helpful. That's not the point of arguments.
We're restating the obvious. Most people know that. When you get up there if you're not used to arguing in front of that particular court, I understand. I get my adrenaline before I go out on the bench to listen to an argument, maybe not as much as I used to get when arguing but I still get it. Everybody's going in there and trying to put their best foot forward with all of their adrenaline. That's the time that you most have to remember to listen and maybe take a breath.
For my court, the best answers are the factual ones with the factual citation, the legal ones with the case law citation, and the characterizations of the record with the record citation rather than the broad general, "You should do this." I would prefer to hear what the cases think that I should do. In my court, you can certainly argue whether those cases are incorrect and harmful but let's start with what they say.
You can have a direct discussion about the actual cases instead of some general above-theoretical discussion.
We both might be interested in policies but that's not either of our callings at this point.
Was there something that inspired you particularly to move from being an appellate advocate to serving on the appellate bench?
It was 2012. I had been in private practice for about 25 years, starting as a public defender and a trial lawyer and then moving into appellate practice for maybe 20 years and post-conviction work. My background was representing individuals, corporations, or other business entities against the government. I looked at my Supreme Court and the Courts of Appeals in my state at that point and saw very few people with my background in those areas, few former public defenders, many former prosecutors, and few people whose experience was sitting next to the guy who had the power of the government being brought against them justly or unjustly.
That was my background. I wanted that voice to be heard on the court. One of the members of the court was stepping down, Justice Tom Chambers, leaving an open seat. In Washington, given our proud frontier history, we have a constitution that calls for direct election of justices and judges by the population unless there's a vacancy midterm, which the governor can fill but even then, the appointed judge or justice needs to stand at the first upcoming general thereafter and simply fill out the term to which they were appointed.
There was a justice stepping down. I felt pretty confident about my appellate and trial skills at that point. I felt confident that I had something to offer and a voice that wasn't currently represented on the bench. I filed. Three other guys with statewide name recognition and prior elective office experience filed. We fought it out in 2012. I was the last man standing.
That's very gutsy.
It's ridiculous. I have no idea what I was thinking. How could a former public defender who had represented people in cases including death penalty cases expect to defeat three guys with statewide name recognition? I had no idea how to. I was smart enough to ask somebody, "How do you figure it out?" They told me the steps to take, whom to get advice from, and whom to hire for advice.
You work at it by meeting people throughout the state. Sometimes you're meeting potential endorsers like a newspaper, a union, a women's group, or a business organization with the hope that their endorsement might influence many others. Sometimes you're meeting people at the VFW in a smaller town whose views might influence only a few neighbors and their families. You're working on both fronts. Although I've debated the merits of elected judges versus appointed judges, there are pros and cons to both systems. Based on my experience, I met people and had conversations with people that I never would have had if I hadn't been on the campaign trail.
You could say, "You might have done it," but the truth is I wouldn't have made the time to go to all parts of Washington state or all corners of the state, urban, rural, East, West, mountains, seas, business unions, and both political parties. Mine is a nonpartisan position. We can't identify by political parties but we can certainly seek endorsements from political parties. I would not have done that before. I had the most interesting, touching, and heartbreaking conversations with people from all walks of life.
I've heard that. The show to some degree is a Civics lesson in all the different ways that you can select judges because states are so different. I've heard about how touching the election process is and how you get a sense of the concerns of the lives of so many people in your state that you wouldn't otherwise have. As a result, there's a sense of responsibility and privilege that comes from that.
I had conversations like this one. I was at an ironworker’s convention. I was talking to a Vietnam-era war veteran. He was telling me about some health concerns. We had recreational cannabis on the ballot. He was talking to me about health concerns, concerns about cannabis, and union issues. We had a great talk about his concerns. My response was about what the role of a judge was versus the role of a legislator.
It was a nice talk. In the end, he said to me, "Thank you so much for your service." How humbling. I thanked him so much for his service. That was from his heart. This is somebody who is talking to me, expecting that I might become the next justice, and recognizing that as a public service. That's going to stay in my heart forever.
There's a woman who's a refugee from Vietnam who came here and was a home healthcare worker. It was at a union-organized event for home healthcare workers. She was a home healthcare worker here because she had been a physician in Vietnam but once she had to flee, she couldn't use those credentials here.
At the end of our conversation, she also thanked me for my service. I was like, "I'm so humbled by your story and by everything that you've been through while I've had this life of relative privilege." I wouldn't have those things in my heart if I hadn't been out meeting people. Maybe it doesn't change my vote on a case but it speaks to my heart.
The particular stories you gave are so touching individually but that is a sentiment that I've heard from other states' Supreme Court justices who are elected. That was the silver lining of this very difficult process and something that might feel uncomfortable but there are so many rewards from doing that.
It's a valid debate on elected judges versus appointed judges. I recognize whom you want to have the power, "Do you want the power in the executive? Do you want the power driven by the people? Does it depend on who happens to be in the executive or what the wills of the people happen to have? Are there any permanent values that can inform that decision?" Electing judges is not as bad as I thought it was.
There are some things that are pretty neat from that experience. In any election process, you get the benefit of meeting people, seeing people that you wouldn't otherwise, and hearing about their lives and the impact on their lives.
As long as you're listening.
It goes back to your theme of listening, hearing what they're saying, and serving on a court that does impact statewide. I would think about what is the impact of this particular decision. You always have in your heart the people that you met to think about also in making those decisions. How have you enjoyed serving on the bench? How do you think your appellate experience impacted your serving as an appellate justice?
The appellate experience was invaluable for getting up to speed quickly on the cases. I do feel that if anybody is interested in becoming a judge, the best thing that they can do is excel at whatever area of law they're practicing in. If you do that, you will get the same questions that I got when I was interviewed, which is, "You've always been on the criminal defense side. How can you be fair to the prosecution side? You've always been on the side of the female asserting discrimination. How can you possibly be fair to the government?"
If you want to become a judge, the best thing you can do is to excel at whatever area of the law you're practicing in.
Why I'm so good at advocacy is because I not only know the best parts of my argument. I know the worst parts of my argument and I know the best parts of your argument. If I didn't, then I couldn't have prepared for the hard questions at arguments. If you're looking at somebody who's excelled in whatever their chosen area of law was, you're looking at somebody who knows the strengths as well as the weaknesses in their arguments.
Having been an appellate advocate worked well with breeding briefs on any area of the law and being able to say, "That's the strong argument. That's the weak argument. I might ask the lawyer about that but that sure looks weak to me." I love the ability to follow the argument through to where it logically leads rather than getting the hard question and trying to figure out the best answer even if it might involve a change in the law to get to the answer. I enjoy being able to follow things logically through to what the answer should be.
On the other hand, at my level of court, there are nine justices on the Washington Supreme Court. You've got to learn how to count to five. No matter how open a mind you bring to the briefs, the oral argument, the research process, and the reviewing of drafts of opinions afterward, at some point, you make a decision. Your goal at that point is to try to get five for that decision. That's advocacy. It's obvious that's advocacy but I didn't think of it before I was elected. I thought, "I'm going to lose the opportunity for advocacy. It's going to be a different role," but if you're working with a group, there's advocacy involved. That was a surprise.
We know that. We think, "There's a certain number of votes." There's a dialogue going on between the chambers but the process of that is still persuasion.
Having been a strong advocate in the past made that comfortable somewhat but in always being with the same group of nine, there is turnover. Having one case after another with votes on each case, there's a challenge there too. We're all people. We're not just logic. We're also hearts and minds. We're also full of feelings.
There's the collegiality in that persuasion that's important. You want to maintain relationships and have everything working well together also.
That sounds like the usual transition to talking about COVID because we always used to be in the same room, particularly for arguments. Nine get together. Our tradition is one of nine brings breakfast and lunch for the days that we're together and might try to do a bit of one-upmanship in the food category. We have a cup of coffee together, hear arguments, conference, argue, and break, "What a nice pot of soup. Thank you so much. Did you make this yourself?" You don't get to do that with COVID.
From an advocate's perspective, I found it more challenging because everybody was remote, including all of the individual justices in arguments. I felt like I'm feeling that as an advocate. I'm missing the interaction and the body language about everybody being on the bench together. I thought, "From the bench side, that must be lacking." You feel like, "This is very different from how we operate."
It is different. It's a challenge. I'm sure it was more of a challenge for the lawyers. We're a big state. Some of the rural areas are spread out. There was a benefit to parties and lawyers who didn't have to send their lawyers and pay for the transportation and the time to come to the state capital, Olympia. I get that there were advantages but we're back in court now. There's something about not speaking over somebody because you didn't see their yellow box light up or apologizing immediately if you were speaking over them and not having any hard feelings come of it, different intonations, or facial expressions.
It must be nice to be back then.
It's wonderful to be back.
Do you have any particular tips for advocates in terms of brief writing? You talked about oral arguments a little bit but what about brief writing? What's most helpful to you to see in a brief?
Not hyperbole, but the honest characterization of the facts with citations for them and honest characterization of cases, preferably with a parenthetical if you want me to get the gist of the case that you're citing it for. I don't find it helpful to have demeaning comments about other counsels' or the trial court judges' words or performances. We're all about, "Was there an error? Are we criticizing?" We are but it gets in the way if advocates put too much hyperbole on top of it.
I appreciate the fact presentation. I appreciate the roadmap of a good table of contents, not the introduction argument's conclusion table of contents but the introduction 0.1. Maybe there's a sub-A or B, the logical next following point, and then the answer to the anticipated argument at the end. Proofreading is something that is important as sticking to the facts.
The table of contents point is one that I do. When I read the different briefs, I read the table of contents all the way through. It's one that I use with students when we're doing our opening brief and an appeal says, "Our outline is the table of contents. Start with the table of contents." That way, when you start arguing underneath each of those and they're not matching, then you will know, "Is my organization correct? Should I change something? Did I go off in a direction I shouldn't have in the legal argument?" All of that is a good framework.
That's a good point. Although I will also point out that the intro and the conclusion are often the last things that I write. They may be the first things that I write. You go and write whatever you're writing but then you always go back to the intro and the conclusion and rewrite them to make sure that the first thing that the judge is going to read is clear.
Clarity is very important when writing a brief. Make sure that the first thing that the judge is going to read is clear.
When I said factual, the facts, and record citations, I don't mean to ignore context. Context is critical. We have examples of many of our cases over the time that I've been on the court. To resolve an issue about how cruel or unusual punishment is or to resolve a question about what process is due and what's the burden versus the benefit, I'm not telling people to ignore context and all facts outside of the single person in front of the court.
Sometimes context can be critical, for example, in a traffic stop when a person gets stopped, and the court is reviewing whether that stop met state and federal constitutional privacy requirements. It's entirely appropriate not to have the exact facts of this case but whether facts in society, in general, provide context for that. For example, I suspected wrongdoing because it was a neighborhood with high criminal activity.
Let's talk about the concept of a neighborhood with high criminal activity and the fact that people with zero criminal activity who want to be safe live in those neighborhoods. Let's talk about what presumptions you can make about anybody you happen to find in that geographic area without knowing whether they're there to commit a crime or whether they're there to live without being disturbed in their private life.
When someone has stopped context about who is stopped more from the studies that we have done and we see, it's certainly Blacks, indigenous, and other people of color stopped in far greater numbers proportionately to their presence in society than Whites. That's a context that can certainly be considered. When I say the facts, I don't mean facts in isolation. I do mean facts in context but facts.
Instead of the alternative as you mentioned of being hyperbole and not talking directly about what happened in this case. Those are very helpful things, and what you mentioned about the introduction and conclusion. If I write them first, they're going to be rewritten because you find the fine points as you're drafting the rest of the document and the brief.
It's the same when you're drafting an opinion.
That's what I was going to say. Writing briefs and writing opinions have different purposes but how is that translated? What did you learn in terms of opinion writing that may be different from when you were writing briefs? Maybe it's the same. I'm curious about the process.
One of my goals now is clarity. You would think anybody would know you should try to be clear. Colleagues read my opinions. I go back and read older opinions. It's like reading your transcript from trial months later.
"Did I do that?"
I've written some opinions that are long because there were a number of complicated constitutional issues. Our Arlene's Flowers case is one that I think of. It raised the issue of the florist declining to serve the gay couple who wanted to get married. From the US Supreme Court's decisions on that, which I'm sure you're familiar with, lots of issues can be raised, and in the state court, even more issues because we have the constitution. I've written lengthy opinions. I'm not sure they're the easiest to read in hindsight. If I could learn one thing a lot better, it would be to simplify.
You would think you want to be clear but the question is if you're clear to whom. Who are you writing to? Who is getting guidance from this? What kind of clarity is helpful to all of those people, whether you're talking about other trial judges, parties, or advocates? There's a lot of audience for the opinion.
If it's a trial issue, you're usually writing to trial lawyers and a couple of judges that review it but let's say you get a prisoner petition. Maybe it started pro se. The prisoners are going to be reading the decision on it. As lawyers are guided in their conduct by the decisions they or we read, non-lawyers are guided if it's intelligible. Sometimes you might be writing for incarcerated men who might be thinking about similar issues in their cases. There's a whole range of reasons to put it more simply.
The media reports on them too. There's being clear and having good summaries at the beginning and things like that to make sure that the key points are relayed through the media reports.
That's a good point.
There are a lot more different audiences than you think. When you first think of not drafting them, you go, "It's for judges or the attorneys," but there are so many other people who read it.
If it's a commercial litigation matter, there are going to be corporate lawyers and people who are used to reading judicial opinion. Sometimes they like clarity also but that's not often the case. Maybe it's a public defender or a prosecutor whose caseload is too high, particularly given the attrition rate during the pandemic for a whole variety of reasons. It's a lot better to write with clarity if that's your audience.
There's a theme that has come through a lot of your observations, which is about regular people or the circumstances under which those people are operating to take that into account, whether you're talking to the public during the election process or thinking about who's going to be reading these opinions and what circumstances under which they might be reading them. There's a thread of sensitivity to that.
I'm at my best when I'm listening to that voice saying, "Keep it simple, stupid."
I don't think that you hear that individual-level consideration or thinking about the circumstances of individuals who are receiving the opinions and understanding them at the appellate level that you've talked about. A lot of trial judges talk about that because they're dealing directly with the parties.
It's much more obvious if there's a pro se litigant in front of you. The goal is respectful communication.
I hear that so much from the trial judges who say, "This is someone's direct encounter with the judicial system. It's me in my courtroom. I want to make sure even if they don't get the result they want that they leave still a sense of confidence in the judicial system overall and the fairness of the proceedings and they were heard.”
That's why I try to be such a stickler for rules that allow people to be heard and so lenient on rules that tend to shut people out of specifics about exactly what needs to be in a brief in what order. Please comply with the rule but if you don't, am I going to say the client doesn't have a right to be heard? Yet I'm a total sickler for other rules like the right to appeal, the right to be heard, the right to presence, and the right to open public courtrooms.
Thank you so much for sharing all of your insights and approaches. Your approach in particular to deciding to run for the Supreme Court is something that will inspire others. My inspiration for doing the show was that so many of my friends who are on the bench and the women say, "Somebody talked to me first. Somebody recommended that I apply," because they valued that extra nudge to apply for something. I love your story too.
I benefited from that. I asked, and I was surprised at different points in my career with the feedback of doing it. Know what you don't know, not your limits. I signed up to run and knew that this is what I wanted. I went to endorsement meetings and saw other candidates for different positions who knew the names of the people who were running it, who knew the organizational structure, and who were planning to go to the next event later in the evening. You've got to ask, "How did you know that? How come you know that and I don't? I can find out. I can look at websites. I can hire somebody with that expertise. If this is what I want, I will take that step."
It's learning as you go along and saying what you don't know. You have to fill in what you don't know.
People can learn it. It's a skill like any other skill. The foundation is excelling at your legal work. If you do that, you can translate listening skills, talking skills, and traveling skills into a campaign.
That's very encouraging because it's not something that we think about. The appointment process is something more like, "I can do that," but the election process can be a little more daunting. Some people think it's a little bit unseemly because we are independent. It's not your typical election. Part of the election process is educating people about that and the appropriate role of a judge and what you can and can't say in the process.
When I was first running here in Washington in 2012, we had on the ballot marriage equality and recreational cannabis for the first time. President Obama was on the ballot for a second term. There were a lot of people interested in the election. I got a lot of direct questions about whether I supported certain initiatives that were proposed to the people.
I would never tell somebody, "You can't ask me that." I would always say, "That's a wonderful question. Tons of people are concerned about it. Let me tell you about your role because you're the ones who are voting on it, not me, except as an individual." There are issues that might come up in front of me about each of these things. I might rattle off 1 or 2 of the issues that were going to come up. What a great conversation you could then have.
Never tell somebody, "You can't ask me that." Instead, always say, "That's a wonderful question."
It's acknowledging the interest. They're interested in that particular issue. They will be voting on it but you have a different role. That's great. You're very good at turning your back and forth, acknowledging where someone else's position is, and then saying, "Here's where I am and what I can and can't do." It's good. I can see how you did well in the election.
Thank you. Maybe I've learned a little bit about listening.
Usually, in the end, I ask a few lightning-round questions. Which talent would you most like to have but don't have?
There are some administrative talents that I'm lacking in. I would like to feel a lot more comfortable calling colleagues whom I don't know that well and talking about the importance of serving on a committee or taking this position on a committee, or how we're all in it together. I feel like I could use that social skill.
That's a different form of persuasion. Who is your hero in real life?
These are tough questions. The judge whom I clerked for was one of my heroes. I clerked for Judge Warren Ferguson in the Ninth Circuit Court of Appeals. When we three clerks came in for our first day on the job, he said, "The Ninth Circuit weights cases by their complexity and importance." 10 or 11 is the highest, and 1 is the lowest weight. It's done to equalize assignments.
He said, "When you get a one-weight case that involves somebody's life. It's usually a social security disability appeal review. They weigh them as one but I want you to give that case as much attention as you would give to a ten-weight commercial litigation case because that could be an economic capital punishment for that person." What a judge.
That's amazing. From my experience, the weighting sometimes was not always reflecting the amount of work that needed to be done. The one weights are like, "I don't know who looked at this quickly and thought this was a one-weight but it was not." There's that too. That's beautiful. I could see where that resonated with you and influenced you too. Given the choice of anyone in the world, who would you invite to a dinner party?
I was asked this question. Somebody else gave an answer that I'm going to steal. It's Chief Justice Roberts of the US Supreme Court. I've got a number of questions I would like to talk to him about. I'm learning the direction of the court, the different goals of the different people on the court, the institution itself, and our faith in that institution and its future. I've got some questions.
Here's the last question. What is your motto if you have one?
I never had one before. Based on what I've been saying, it would have to be something about simplicity and keeping it simple but that seems pretty boring.
It could also be having empathy and listening. Those two things are also some themes that have come through.
I like that. Maybe I'll take that as my motto. Take a breath and listen.
Thank you so much, Justice McCloud, for joining the show and sharing your thoughts and insights. It has been a pleasure.
Thank you for your cold letter to me inquiring. What an interesting project you've taken on. I certainly wish you well in the project.
Thank you so much. I hope that there are positive impacts from all of your insights on the next generation. I appreciate it.