Judge Jeremy Fogel is the Founder and Executive Director of the Berkeley Judicial Institute (BJI) at Berkeley Law School. The BJI focuses on bridging the gap between judges and academics in the hopes of supporting an independent, resilient, and ethical judiciary. He was the founding Directing Attorney of the Mental Health Advocacy Project. Judge Fogel has served as Director of the Federal Judicial Center, a United States District Judge for the Northern District of California, and a judge of the Santa Clara County Superior and Municipal Courts.
ST: You started your career in private practice. Did you always know you wanted to become a judge?
JF: No, not at all. I didn’t always know I even wanted to be a lawyer. It was something that came to me rather late. I was really interested in other things.
My major in college was religious studies. I thought that I’d probably do something in that area, probably on the academic side, rather than on the clergy side. But when I was in college, it was the Vietnam war era and the civil rights era, and I felt that an academic life would be a little bit too removed. Given my temperament, my interests, things I’m good at, things I’m not so good at, I figured it would be unwise for me to be doing scholarly work all the time. I needed to get out into the community.
One of the nice things about the law is that it gives you a lot of options. There’s a lot of different ways to use a law degree. So when I went to law school, it was with the idea that I would gain some skills and apply them to helping underserved communities. That vision for how I would use my legal training was always there for me. When I graduated, I spent the first couple of years mostly doing fair housing stuff, plus some police and community relations. I worked a lot with the Latino community in East San Jose.
ST: Why did you get involved with mental health work?
JF: I had always had an interest in mental health. I studied mental health, both from the legal and medical perspective when I was in law school. The question was how do you work with mentally ill clients?
I had an opportunity to get a seed grant from the American Bar Association to start a program to help sensitize lawyers to working with people with chronic mental illnesses. Then I had the thought that, in addition to helping other lawyers, it would be really good if we could provide legal services directly to people in need of legal assistance who had mental health issues. So we got some more grants from the National Institute of Mental Health and from the state of California and started a program geared towards representing people who had chronic mental illnesses and other emotional challenges that made it difficult for regular lawyers to represent them.
ST: What did you learn from doing that work?
JF: I realized two things. The first was about myself. I’m probably a better neutral party than a one-sided advocate. One of the strengths I have is that I can see many different sides of an issue. It’s a weakness sometimes if you’re a lawyer because you need to be fully on the client’s side to zealously represent them. I began to feel that to reach my own highest and best use, I would need to find some sort of neutral problem-solving role.
The second thing I realized was that the clients I had represented in court had very little in the way of resources. They had trouble communicating. The problems they presented were not sympathetic for the most part. I really noticed when judges treated them well and when they didn’t. There were judges who stood out to me as being particularly thoughtful and compassionate, and there were judges who were rude and impatient and gave a bad showing for the judiciary. I think it was really the bad examples that motivated me more than the good ones. I kept saying, I can do better than that—these people are causing injury to the people I represent by being so disrespectful toward them. So that made me start thinking about being a judge.
ST: How did you end up becoming a judge?
JF: The governor at that time was trying to diversify the judiciary. Even though I’m a white male, my previous work meant that I had a background that was quite unusual. Our program had gotten some national attention, and it was seen as a good model for representing folks who were difficult to represent through no fault of their own. So the governor appointed me to the trial court in Santa Clara County in 1981. I was not yet 32 years old and from the very beginning, I felt that this was the career I was meant to have. It just felt very right.
The role allowed me to pursue a lot of my interests: to do legal analysis, to figure out a way to be thoughtful toward people, to be kind, to be compassionate, to be a good model of justice. I also liked the variety that one gets, particularly in the trial court. You see so many different kinds of cases over the course of a career—misdemeanors, family law, probate, heavy criminal cases, intellectual property cases, and business cases. I really saw the whole breadth of the kinds of problems that people face and end up in court.
ST: What was your favorite type of case as a judge?
JF: Certainly the years I spent as a family law judge were very meaningful, but exhausting at the same time. They were very difficult because the emotional intensity of those cases is so high. The cases that end up coming to court are usually the highest conflict cases, with people who are the angriest or the most grief-stricken. It really tests your ability to be emotionally engaged, to care about the people as human beings, and to try to shed some light on very difficult situations.
I also did a lot of intellectual property work later when I was on the federal court. The court was in Silicon Valley, so I got some really interesting science to think about. As I mentioned, I was a religious studies major, which tells you something about my interest in science. I had to learn the science at issue in the patent cases I was hearing.
ST: Do you have a favorite case? I know you had an important one in 2006 about lethal injection.
JF: I wouldn’t say that’s my favorite case, but it was certainly one of the more impactful cases I had. Up until that point, there was a lot of misunderstanding about lethal injection as a method of execution; it was meant to be more humane than the electric chair or a firing squad. I’m using “humane” in the way that it was used in the law, not necessarily the way I see it.
The problem was that, in a number of instances, lethal injection hadn’t worked the way it was meant to work. It’s not because there’s anything wrong with the chemistry. If you properly deliver the dose, it does result in a painless death most of the time. But there were problems with the whole process of delivery, obtaining the drugs, and training the staff. I had the opportunity, in that case, to really investigate the process. As a result of my ruling, the particular method of lethal injection using a cocktail of three drugs largely fell out of favor.
I think it was also part of a national trend towards re-examining the death penalty altogether. It was a very, very difficult case and very hard for me personally. You shouldn’t, and I didn’t, decide a case based on how you feel about the underlying issue. My opinion on the death penalty is not public and never has been, and it’s irrelevant to how I decided that case.
ST: What’s one common misconception people have about the judiciary?
JF: Wow. Well, I think there’s a lot of misconceptions about the judiciary. There are two extreme views that are both wrong. The first is the balls and strikes view. During Chief Justice Roberts’ confirmation hearing, he talked about judges being umpires and calling balls and strikes. He was criticized for that view because nobody believes that it’s that objective. You bring who you are to the process and you can’t take the human being out of it. In certain kinds of situations, people are going to see things differently. The balls and strikes comment got caricatured, and I don’t think that’s really reflective of what the Chief Justice’s view is.
So that’s one extreme misconception. The other is that judges just do whatever they want. For example, we saw in the litigation of the 2020 presidential election, that there was a widespread expectation that the judges that President Trump had appointed would rule in his favor because he had appointed them. That goes back to the whole idea that there really isn’t a legitimate difference between judges and politicians. But in this case, that view was proven wrong. Some of Trump’s most prominent appointees ended up ruling against him in really consequential matters. There’s a myth that gets shopped around, particularly on social media, that judges just vote the way that they’re appointing governor or president would expect them to. And that’s incorrect.
ST: So how do judges make decisions then?
JF: Well, it’s in the middle of the two extremes. It’s partly captured by what the Chief Justice has since said about people having different strike zones. But how a judge develops their strike zone is based on their life. What have you seen in your life? Where have you lived? What’s been your exposure to different social contexts, to diversity, and to inequality? So I think judges differ very widely in those respects, but you’re still trying to call balls and strikes.
So maybe one way of carrying that analogy forward is to imagine if the pitch was six feet outside the strike zone, you’re not going to call it a strike no matter who you are, what experiences you have. But if it’s closer, then your particular instincts, your predilections, your explicit and implicit biases, all of that comes into play in the significance you attach to a fact or in the way you read a particular case and its applicability. I’d say 98% of the judges I’ve known in my life have tried to set aside the biases they bring into the courtroom. They’re not intellectually dishonest in a way that makes them think they always succeed. But, people are very complex and our buttons get pushed by different things and we have greater or lesser degrees of experience with different issues.
ST: I know a lot of your work at the Berkeley Judicial Institute (BJI) focuses on examining how judges make decisions. Can you tell me how you talk to judges about examining their strike zones?
JF: One example that’s really relatable is a case from the Supreme Court a couple of years ago. The issue was whether being required to return a postcard from the Ohio secretary of state asking if you wanted to remain on the voter rolls and if you don’t return it be purged from the voter rolls, presented an undue burden on voting. The court decided that it wasn’t. But Justice Sotomayor, the only justice who had lived in a housing project, wrote a notable dissent explaining that maybe you get your mail, but some people don’t, especially in a housing project. She said the Court was making assumptions about what’s a burden and what isn’t based on a narrow set of life experiences.
I think that’s why conversations about the ways judges make decisions and the biases that they don’t acknowledge or don’t know about are so important. It’s usually that they don’t know about what they don’t know because judges do try very hard to be unbiased. It’s one of the cardinal virtues of judging. But, nonetheless, none of us can be completely free of the limitations of our own perception.
ST: Do you feel that the judicial system is inherently racist?
JF: I think that society is structurally racist, yes. A society that’s built on slavery will have a legacy of structural racism. I think you can have a room full of people determined not to be racist, but they are still in a society that has structural inequality built into it. I would say the justice system is inherently unequal. The inequality is in very large part derived from slavery and from racism. But it’s not enough to acknowledge that, we need to ask, what can I do to begin changing it? And change is really hard because it is structural.
ST: Could you give an example of how racism manifests itself within the criminal justice system?
JF: One of the things that happens in sentencing computations in federal court is that you look at somebody’s criminal history. You get a certain number of criminal history points for each arrest and for each conviction that you’ve had. Quite a bit of research has shown that people of color, and in particular African-Americans growing up in certain environments, are a lot more likely to have more criminal history.
A lot of it is not particularly significant crime. But folks in that demographic get arrested more, so it’s easier for them to end up with more criminal history points. So they get longer sentences, irrespective of the intentions of the sentencing judges or the probation officers.
It’s a self-perpetuating problem. So you have to figure out a way to view it as a structural issue and to push back and say, well, given our understanding of how structural inequality works, we shouldn’t give the same kind of weight to the incidents that occur largely due to that structural inequality. When sentencing, we need to look at certain kinds of data with a little bit more caution based on its origin.
ST: Can a judge, working within the system help to address those issues, or can they only be remedied by outside advocacy groups?
JF: It takes both. I don’t think sitting judges, because of ethical limitations, can be quite as outspoken. They still have to apply the law as it exists. But, I do think judges can observe the fact that these structural inequalities exist. So take the example I just described–judges can consider the context when looking at criminal histories.
A judge I have worked with at BJI’s sits in a family court in downtown Los Angeles. Many of the people appearing are both poor and from communities of color. The judge has restructured the way she hears her cases so that they aren’t set at nine o’clock in the morning. By giving people times that work around their work and family obligations, she can help to mitigate the effects of their circumstances. For example, someone with a minimum wage job with hourly wages can’t just take a whole day off like people with a salaried job can. That has nothing to do with the content of the cases, only with equalizing access.
ST: What do you see as the biggest problem in the judiciary today?
JF: There are two main problems. The external problem is that I don’t think the public really understands what the judiciary’s role is. This becomes a political problem for the judiciary–judges get attacked, judges get threatened, that kind of thing.
I mentioned those two extremes earlier, but a lot of people don’t even understand the fact that judges operate within a system of rules and procedures; they have ethical obligations. If judges mistreat people or don’t follow ethical rules and the basic rule of law, things happen to them, they can get disciplined, and appellate courts can reverse their rulings.
ST: So what’s the internal problem?
JF: I think the problem within the judiciary is that it still doesn’t have the diversity of thought and perspective that it needs. It’s not just a matter of having differences based on race, ethnicity, gender, sexual orientation, and so forth. All of those categories matter, but what really matters is the value of diversity of experience. You can’t have everybody looking at things in the same way.
Federal judges, by and large, have gone to elite law schools. They were lawyers in big law firms, or they were prosecutors for the US attorney. Even if you get diversity by identity group, the background of the judges is still a fairly narrow band of experiences. What you want is a mix of people who grew up poor or privileged, in urban or rural areas, and as a result, can really reflect all of the ways people differ.
The more you enrich the mix, the more it enables you to see what you don’t see more clearly, which gives you a better shot at understanding your implicit biases. But, it’s hard to achieve that mix because the law has always been kind of an elite profession. It takes a lot of resources to become a lawyer. All of that gets back to the structural inequality of our society.
ST: BJI really focuses on enriching the diversity of the judiciary. Could you explain how BJI came about?
JF: Yeah, it’s a good story. I’d been a judge for a very long time, thirty-seven years if you count the last seven I was at the Federal Judicial Center (FJC), which is the research and education agency for the federal judiciary. I really liked developing a curriculum for judges and working with judges about judging. My term at the FJC had just ended, and I was thinking about what I wanted to do. I thought about being a district judge again or a professional mediator.
Someone I had gotten to know over the years was Dean Chemerinsky, the Dean of the law school at Berkeley. At some point, we just started talking about the internal problems we saw in the judiciary. We thought, ‘wouldn’t it be great if we could work together at some point to try and help address that problem.’ We worked out an arrangement so that I could become the director of a new center at Berkeley which we decided to call the Berkeley Judicial Institute.
The idea was to take what I’d started working on at the FJC and go further. Because working in the federal judiciary means working with government funds, I felt somewhat constrained. Dean Chemerinsky basically said, just don’t embarrass us, represent us well and follow your passions, do the things you want to do. Well, that’s a job nobody can turn down. After having had a long career as a judge this seemed like a great opportunity to synthesize a lot of the things I learned.
ST: What do you hope BJI will have accomplished in ten years?
JF: Well, there’s been all of this study among psychologists about different kinds of intelligence: cognitive intelligence, emotional intelligence, physical intelligence. But currently, the judging profession is really focused on cognitive intelligence. So I would like more consideration of the other types of intelligence.
If you go back into the origins of civilization, there have always been people like judges. Some societies have their elders or they have other titles, but the idea is that there’s somebody you go to when you have a problem, and you go to this person to try to get some guidance based on the cultural and ethical values of the society.
ST: What values do you believe are needed in the judiciary currently?
JF: I don’t think a lot of judges are good listeners. They’re very good at listening for the facts that are relevant to the legal decision. They’re very good at selective listening. They’re not hearing the other dimensions of the communication. Take compassion, for example. Showing compassion doesn’t mean that you don’t follow the law or that you let somebody go who just did something terrible. It just means that you really try to understand what happened, and then you think about how to deal with that in a way that achieves justice. Compassion is a kind of intelligence and it’s one that judges need to cultivate.
I learned this while representing people with chronic mental illnesses, who often couldn’t communicate basic facts. I had to figure out what the actual problem was, and how I could help the person. It challenged me to be a good listener. I’d like to see judges have more social intelligence. I mean, you’re never gonna know everything about everybody, but you should at least be curious about people.
ST: Can you tell me about your work with mindfulness?
JF: I’ve invested a lot of time in encouraging people to develop mindfulness. Some people do that through meditating, others do that through gratitude practices. There are lots of ways to become mindful, but the point of it is to not be so quick to judge. That seems like such a paradox because I’m talking about judges, but mindfulness is a way of helping you be reflective and deliberative instead of reactive.
If people go to court and they encounter a judge who’s patient, mindful, caring, and doesn’t disrespect them, it just makes all the difference in the world. People want to be heard, they want to be valued. I would get letters from people who had lost cases before me, people who I’d sent to prison for a long time saying, “thank you for treating me well.” It’s one of those things that really resonates with people.
ST: How have meditation and mindfulness helped you in your own life?
JF: One of the biggest gifts meditation has given me is that when I get triggered, I know that it’s happened. Being aware of this I can then stop and not do anything until I’ve had a chance to reflect. That just has made all the difference for me. It has made my relationships better with my family and friends.
When I have challenges in my life I can think, and be intentional in how I deal with them. Whatever it is you can do to create space between your reactivity and your reflective capacity, that’s the goal.
ST: What advice would you give to college students looking to pursue law? Looking to pursue becoming a part of the judiciary specifically?
JF: I don’t think anybody should go to a professional school without some sense that this is something they want to do. It’s great to have an open mind about your ultimate goal because you’re going to be exposed to things when you get there that will help you figure out better what you want to do. But if it is between going to law school or a different type of graduate school, if those are the kinds of things you’re thinking about then it’s really a good idea to ask yourself, who am I, what’s my skill set? Where can I fulfill myself the most?
I think it’s important to come at it like that rather than saying, where can I make the most money? Or where can I have the best lifestyle? It’s not that that stuff doesn’t matter, but that’s not what, at the end of the day, is going to make you happy. If you are deciding whether you want to go to law school, ask yourself if being an advocate for people, or being a problem solver of the kinds of problems that lawyers are called upon to solve, is a role that you think you could thrive in.
Judging was something that came to me late, but it came from experience. It was seeing the consequences of judges who weren’t thoughtful and those who were. I became really good friends with a judge who I appeared before when I was a young lawyer, and what I will always remember about him is how kind he was. I said that this is what is needed in this place. That became an inspiration to me. Then, when I had a chance to be a judge I said, “Yeah, I’m going to do that.”
*This interview has been edited for length and clarity.