Judge Jacqueline Nguyen

Sep 9, 2021Judgment Calls

September 9, 2021 | Season 2, Episode 4 | 37:09

Judge Nguyen shares her experience as an immigrant and judge.

Judge Jacqueline Nguyen of the U.S. Court of Appeals for the Ninth Circuit and David F. Levi talk about Judge Nguyen’s experience as a refugee during the Vietnam war who later became the first Asian American woman to serve on a federal court of appeals. They also talk about her nomination process, how being an immigrant informs her judicial perspective, her pathway to becoming a judge, and the importance of diversity on the bench. Judge Nguyen served as the Bolch Judicial Institute’s Distinguished Judge in Residence in February 2021.


Transcript

This transcript has been lightly edited for clarity.

LEVI: Well, good afternoon everybody. Welcome, Judge Nguyen, to Duke Law School. We wish you were with us in person and that we could break bread together and really have some fun like walk you around our beautiful campus. But this will have to do for now. It’s such a pleasure to welcome you. We don’t know each other, but we were just chatting before and there are so many parallels in our own careers that I know we would be fast friends if we had the opportunity. So, Judge Nguyen, you’re a judge on the Ninth Circuit, which is my old circuit where I was a judge. It’s an amazing part of the country because it’s the entire West really. It’s the nine Western states, and it includes Alaska and Hawaii. It’s a great place to be a judge because the judicial conferences are held at places that you really want to see and go to — California and Montana and Wyoming.

You have such a riveting life story, really amazing and inspiring. You were born in Vietnam and you came to this country in 1975 when South Vietnam was overrun by the army of North Vietnam. And your father was an officer in the South Vietnamese military, so you fled to the United States, and initially, you lived in a tent city. I’ve seen the picture of where you lived at Camp Pendleton, and it was a very, very spartan existence there in San Diego. But through dint of hard work, and obviously a great deal of raw talent, you went to Occidental College and UCLA for law school. Then, you went to a fine firm in Los Angeles for a while. After that, you went to the US Attorney’s Office, where you had a great career in public corruption and in the government fraud sections. And in 2002, you began your judicial career.

First, you were appointed to the Superior Court in California State Court in Los Angeles County, which I’m sure must have been extremely busy and demanding. And then in 2009, President Obama appointed you to the U.S. District Court. He didn’t wait too long before elevating you — I’m an old district judge and we don’t think of it as an elevation — but anyway, you went up to the Ninth Circuit, where you are now, and that happened in 2012. You are the first Asian American woman to serve on a United States Court of Appeals, which is fairly remarkable. Thank you so much for joining us today. It’s really a delight to have you here, an honor. I know the students are anxious to hear from you. Why don’t we start at the beginning because it is interesting. You started your young life in Vietnam and then you came to this country. I think you were about 10 years old. Can you tell us about that experience and your family background?

NGUYEN: Sure, let me start actually, David, by thanking you for giving me an opportunity to be a part of this program. Unfortunately, we have to do it virtually now, but I look forward to a future opportunity to visit with you and the students when possible in person, hopefully. It’s my pleasure to be here. As you mentioned, I was born in Vietnam in a small town called Da Lat, which is, for those of you who don’t know, in the Central Highlands region of Vietnam. My dad was an officer in the Republic of Vietnam’s army and my mom had an accounting job in our town’s local government. You mentioned the ongoing civil war, which — really from the time I was born until the time I left — we were a war-torn country. But I still remember my early childhood years in Vietnam as very idyllic, especially compared to my early years in the United States after we arrived here. I grew up in a large family; there were six kids total very close in age who were about one, and then the last few kids were two years apart. And we had a huge extended family nearby. My uncle was the mayor of the town and our support system was incredibly strong, and I was a very good student. I loved school, so I had a happy school community as well.

All that changed in 1975 when South Vietnam lost the war. Of course, given my dad’s military ties, he was in mortal danger, so we were really . . . among the tens of thousands and thousands of Vietnamese desperately looking for an escape route as the Communists forces were marching South and taking city by city. It was a pretty harrowing journey. And that’s a whole separate conversation, which I won’t go into details. But suffice it to say we were just incredibly fortunate. Through a series of really serendipitous events, we happen to be among those who were airlifted out of Vietnam as part of the U.S. evacuation effort. We left with the assistance of an American civilian who was a friend of my parents.

We eventually ended up at the Marine base in San Diego, and that’s how my family ended up settling in Southern California. Because of the circumstances of our departure, we really left with nothing but the clothes on our backs. The displacement, along with our dire economic circumstances the first few years, those were overwhelming stressors on the family. So the first few years were pretty rough. But what’s really common among refugee groups, and it was certainly true for us, is the recognition and appreciation every day that we were actually among the luckiest ones just by being here in the United States. That has always served as a tremendous motivation for my parents and for me as well.

LEVI: You know that’s interesting what you say because you might have felt that you were a victim in some way and that can have a different kind of psychological impact. But you, you had a sense of feeling grateful that you were among the lucky ones, and I suppose that was motivating for you.

NGUYEN: Grateful, definitely, but also just a tremendous sense of optimism, because now, we’re free and we have opportunities that others have died for.

LEVI: But you did have to start all over again. Why don’t you talk about that a little bit. I know you worked in your parents’ donut shop and you’re first-generation, obviously, and sort of the impact that had on who you became. And if you even can connect it to your judicial philosophy that would be interesting as well, if it does connect.

NGUYEN: Yeah, the first few years both of my parents just took on whatever jobs they could find. Each of them worked two jobs, sometimes even three jobs at a time, but they were very entrepreneurial in spirit. My dad found an opportunity to train to be a manager of Winchell’s donut shop just so that he could gain the experience and learn how to run a business from the inside. Eventually, they opened up their own donut shop. He chose that profession because it’s something that you can start with very little — relatively little — capital. But in order to run at a modest profit they had to rely on family labor, as so many small businesses do. So he relied on my siblings and me to work the shop every day after school and on weekends as well.

I’m glad you raised this, because I think these experiences were formative in shaping who I am today. I always say that my parents are my biggest heroes and my biggest role model. Because no matter how hard I work or how much I’ve managed to achieve in my own career, I really don’t think it can ever compare to what they successfully overcame: with the language barrier; with starting over again; with six young kids in tow, in their 30s. And to achieve what they have achieved and educated all of their children; I don’t think anything that I manage to achieve really compares favorably to that. But you know, I also want to make a point that I don’t think my family’s experience is unique. It’s actually a pretty common journey and narrative of a lot of first-generation families.

LEVI: Well, that’s amazing. So, you went to Occidental. I think you majored in English, and then you decided to go to law school. What drew you to law school? And coming to this country at age 10 and having to learn a whole new language, maybe law school would seem awfully imposing? Although you’d have that number of years there obviously to catch up, but I’m wondering whether that English major really helped you when you got to law school?

NGUYEN: Yes, actually I think it’s one of the better majors for law school because you do a lot of reading and, of course, you do a lot of writing as well. Reading and writing are key ingredients to success as a law student. It’s funny because I didn’t know any English when I arrived at the age of 10, and we had about six weeks or so to learn English before the school year started again in the fall. My first foray into the English language was actually with a toy that we were given. It’s one of those pull toys where you pull the string and it would say “A” Apple A-P-P-L-E and “B” Boy B-O-Y. That was basically my first English lesson, which was learning the alphabet and spelling out words. So my dad was quite surprised when I chose to major in English.

Like so many good Asian students, I was supposed to be pre-med. And short of that if you couldn’t be pre-med and succeed in becoming a doctor, then at least go into engineering or something. But I was terrible in the math and sciences. I’ve always loved to read, and from the age of 10 or 11 on, I have always had my nose buried in a book. So my dad said well with that major you’re just destined for unemployment. And I was thinking really hard about what to do. I had some thoughts about becoming a teacher. But I hedged my bets, and I took the LSAT and the GRE at the same time and ended up doing much better in the LSAT. I secured a pretty nice scholarship to UCLA, and so I ended up going to law school. But to be frank, I entered law school with no real understanding of what a lawyer’s job would entail and what the opportunities of the profession would have to offer, but it seemed like a pretty good fit. So that’s how I ended up in law school.

LEVI: Yeah, I don’t think that distinguishes you from probably a lot of the other students who are on this program. I came from a family of lawyers, I really did, and I only had the vaguest idea of what a lawyer actually did. So, you were drawn to the law, you went to law school, and then you went into private practice. Then pretty quickly, after a few years, you decided to become a prosecutor in the U.S. Attorney’s Office. Can you talk about some of those career decisions that you’ve made and why?

NGUYEN: Sure. Coming out of law school, I had a little bit of loans and law school debt. I’m sure so many students can relate to that, and so I went to a firm. But I already knew that being a federal prosecutor was really my dream job. When I was in law school, during my first summer, I externed down at the district court and just saw AUSAs as well as federal public defenders at work. It just seemed really interesting and challenging. I had the opportunity to meet with an AUSA to talk to them about their job in-depth and very early on that was my focus. But the office didn’t hire directly out of school, so I thought going to private practice in a firm that allowed me to take on as much responsibility as I can as a young lawyer would better prepare me for a job in the U.S. Attorney’s Office. That was kind of my target from day one, and I was lucky to be hired when the DOJ lifted the hiring freeze. And the hiring freeze was in place for a couple of years, and so the timing was just about right. I was three and a half, three and a half or so years out of law school at that point when I joined the office.

LEVI: So, when you join a large office like that, is there a unit that you tend to go into as you begin?

NGUYEN: Right, the unit that you go into — I don’t know what it’s called now — I think it’s still called the general crimes unit. We call it “rookie row” because it’s where you essentially try small cases and take it from post-indictment, all the way through trial and sentencing, as well as handle appeals. After a few trials under your belt, then you move on to one of the senior sections. I’ve done different sections. I started out in a senior section, the public corruption government fraud section, and then I joined the organized — it was then called the organized crime strike force — but essentially violent crimes. I wanted to diversify my experiences a little bit and try some more cases and learn how to run title three wiretap investigations. So moving away from a fraud base unit gave me the opportunity to expand my experiences.

LEVI: How did you enjoy trying cases?

NGUYEN: I actually loved trying cases and that’s what attracted me to the job in the first place. Coming out of law school, I wanted to have a public interest, public service job. I wanted to be in the trial trenches. Yet I also love legal research and writing. So being an AUSA allowed me to hone my trial skills, but also allowed me to do legal research and writing. And as your students may know, even on the criminal side, federal court is heavier on the papers, as compared to state court. So as an AUSA, I handled all of my own appeals in the Ninth Circuit, the same court on which I’m now serving as a circuit judge.

LEVI: So you were doing great in the U.S. Attorney’s Office. You’d become a supervisor; you obviously really enjoyed the work. And then something happened, and you ended up becoming the first Vietnamese American woman appointed to the Los Angeles Superior Court by then-Governor Gray Davis of California. So how did that all happen?

NGUYEN: I, as you said, loved being an AUSA, and I thought I was going to be a lifer in that office. I never thought that I would want to do something different and really had not thought about a career on the bench. But I think I have been incredibly fortunate throughout my career. I’ve been blessed with a lot of fantastic mentors. I’ve always been very engaged in the legal community, and I’ve always done a ton of bar activities. So through that, I met a lot of different people, and a lot of them came to me and planted the seed to be a judge. They would say things like you have the right temperament for it, you have the right set of skills, you have the right demeanor, why don’t you think about it, come sit with me, let’s explore this option. I think that’s what kind of opened the door to a judicial career. And when I had gained a sufficient number of years of experience to be qualified to put in an application for Superior Court, I was really encouraged to apply and you know I had lots of people who mapped out the process for me and were willing to generously to have breakfast and make a few phone calls on my behalf and, you know, part of my concern was, well, I really was a federal court practitioner. The first few years in private practice were primarily in state court, but other than that, all of my time in trial courts was really spent in federal court. So how was I going to make that transition to state court? It’s not an uncommon path for AUSAs to actually take the state court bench, so I had a lot of people to consult with and to ease my concerns and to satisfy myself that I could do a good job if I were to go for that opportunity. It ended up working out quite well, because I loved my time on the state court bench.

LEVI: What was your first assignment on the state court?

NGUYEN: I spent two months, maybe three months, I can’t recall exactly, doing trials and motions. It wasn’t a direct set calendar, but very quickly, I was transferred into a very busy courtroom where I handled everything from arraignment all the way through sentencing. Of course, I kept all of the defendants before me for probation and handled probation violations as well, so it was a very overwhelming, in some respects, calendar to step into as a brand-new judge. But I think I was given that assignment, in part, because I had such a depth of experience already handling criminal matters. I was maybe doing two or three felony preliminary hearings in the morning, a direct-set misdemeanor calendar, all criminal cases, primarily in the afternoon, and then squeezing a trial or two in between — all in the course of the same week. I did that for a few years. Then, I became the, we call it “site judge,” or supervising judge of my courthouse. At that point I took on a direct-set felony calendar, and I also volunteered to do a number of civil matters. My courthouse handled primarily criminal cases and there were judges there who said, “Oh, it’s a civil case coming along or a settlement conference for this other judge, do you want to do it.” And I would volunteer for those opportunities, just to diversify my experience a little bit.

LEVI: That’s really great. You know students often ask me and they probably ask you, how do you become a judge? How does that work and what advice do you give when you’re asked that?

NGUYEN: Well, I think the system differs depending on the state. Focusing on the opportunity to be a state court judge, it’s both by election and by appointment. In California, if there’s an open Superior Court seat, you can run for that. There are judicial consultants that you can hire to help you through that process. Most of the seats on the LA Superior Court — and actually in the state of California — are filled by gubernatorial appointment, so there’s an application process. You pull up the application, now online, and then you fill it out. You try to figure out before you even apply what the process is like, understand who the decision makers are, understand the dynamics of the appointment process, understand what evaluation processes are put in place. When I went through it was both by a JNE commission, which does the independent evaluation. They reach out to all of your opposing counsel, for example, your colleagues, the judges before whom you’ve practiced and get feedback from that and then you go through a similar process with the local bar association. But it differs depending on the state, and so I think step one is to figure out who’s making the decision and what the process entails. Then, step two — if you are going for a trial court position — is to look for opportunities to gain some trial experience.

LEVI: It is one of those areas of life that is still very dependent on your reputation, which is kind of a funny concept in this sort of modern gigantic world that we inhabit. But there’s still such a thing as reputation — people know you, and they have an opinion of you, and it seems to affect your likelihood of success, very much so. I mean one thing to keep in mind, I think, for people starting out in life is not to be a jerk with opposing counsel because aside from the fact that it’s usually not very helpful to pursuing the case in the right way, it also can come back to haunt you when later. You might want to be a judge and then people say this is a very difficult person with a bad temperament and would not be a good judge.

NGUYEN: Yeah, no absolutely David, that’s a very important point. If you’re in litigation, it’s an adversarial process. But you really can practice, and thankfully it’s much more enjoyable, if you are the type of lawyer who really respects everybody in that you maintain your integrity at all times. I mentor a lot of people who are interested in becoming judges and I’ve looked at a lot of different applications. I think among the most important reviewers are opposing counsels’ comments. What did they think of you in the way that you treated them? Did you maintain your integrity in the discovery process, or did you try to hide the ball? What was your pleading like? You know, were you overly aggressive? You can be very assertive and vigorously represent your client’s interest without being a jerk about it.

LEVI: So, why don’t the two of us spend a little time comparing state and federal court, because I think that might be interesting for students to hear. And you’re uniquely well suited to do that. I mean, for one thing, Los Angeles County has just about as many state court judges as the entire federal system has judges. There might be maybe 100 more in the federal system but that’s by way of saying that the state courts essentially handle most of the legal work in this country, and that’s where most judges are located. You’ve done both so you know more than I. What other differences would you point to?

NGUYEN: Well, I think one of the biggest differences transitioning from being a lawyer to being a judge is how isolating being a judge really is. When I left the U.S. Attorney’s Office and became a state court judge, I was relatively young. I was the youngest lawyer appointed to the Los Angeles bench at that point. I found it to be incredibly isolating, but being a federal judge is on a whole ‘nother level. Instead of spending every morning having chambers discussions with counsel for both sides, most of my time as a federal judge in chambers is really interacting with the tiny staff I have in chambers. So I felt that difference immediately when I transitioned from being a state court to a federal judge.

Another significant difference and part of the reason I was really attracted to the opportunity to return to federal court is the opportunity on the federal side to handle a large civil docket that had a good variety in Los Angeles of complex cases. The Los Angeles Superior Court bench is so large that most judges handle either exclusively criminal or civil calendars or if you’re handling a probate calendar or a juvenile calendar or dependency calendar. So you’re relatively siloed. There are few opportunities to cross over. You handle really either criminal or civil, generally speaking. But as a federal judge, you really do both at the same time, and that presents a whole different set of challenges. I was eager for that intellectual stimulation that comes with a complex federal docket and so, of course, you know, being a federal baby, so to speak, it was a very comfortable transition for me to come back to federal court.

LEVI: So, then you got word somehow or other that President Obama, probably the state senators were taking a look at you and were interested in nominating you. Can you talk about that a bit, yeah, that whole process?

NGUYEN: Sure. I had been talking to various people about, actually I was recruiting for a number of years candidates, especially minority candidates, that I thought would be good for the federal bench, and so I already knew a couple of people who were involved in that process for Senator Dianne Feinstein. When President Obama was elected, this is his first term, some of those members reached out to me and said, “You’ve got to put your name in. Why don’t you come back to federal court?” And I definitely had an interest. I thought the timing would have been different, I would have liked to have stayed on the state court bench a few years longer, but, you know, as is the case with these opportunities — I think it’s a good lesson for the students as well — sometimes opportunities open up. You may feel the timing isn’t quite perfect or that you’re not quite ready, but if you hesitate, and you don’t step forward, then those opportunities may not be around within your ideal timing window. So I had the opportunity, and I put in an application and was fairly quickly appointed. I think, by that time I had seven plus years of experience as a trial court judge in the state court. I had a number of years in federal court as a lawyer and a few years in private practice as well, so I think I had the right combination of experiences to really make myself a credible candidate for the federal trial court bench.

LEVI: And did it feel really good — like a coming home to the federal court?

NGUYEN: It was a sense of homecoming. You know it’s a bit surreal to walk the hallways as a lawyer, clearly a very baby trial lawyer, and then come back some years later and sit on the bench and have colleagues before whom you’ve practiced. Some of whom were very intimidating when you’re a young lawyer and then you’re coming back and we’re colleagues now.

LEVI: Yeah, you get to call, you have to call them by their first names. That’s always sort of troubling when you are so used to calling somebody judge so-and-so because you appeared in front of them.

NGUYEN: Right, right. I definitely had a very hard time transitioning to first name with a couple of judges. They currently have to correct me and say call me so-and-so.

LEVI: So you were a district judge, and I’m sure you loved that, and then you get another lightning strike and President Obama wants to put you on the Ninth Circuit, and you said yes.

NGUYEN: The opportunity was too exciting to pass up.

LEVI: Yep. So how would you compare being on a trial court versus being on a court of appeals as a judge?

NGUYEN: Yeah. You know in some ways it was a very comfortable transition, because at a very fundamental level, the job of judging is really the same. You basically looked at a set of facts, you researched the law, you have precedent to follow, you have core constitutional principles to apply, and you try to figure out what the right answer is. But, on a day-to-day basis, it in many ways feels very different because, as a circuit judge now I’m sitting on a panel with two other judges. You’ve got to do your best to persuade at least one person to your point of view, and hopefully both of them in order to achieve unanimity, which I think is important for the development of the law.

That’s an aspect that I had never really dealt with before. By the time I came to the circuit, I had had ten years as a trial judge. There, you’re just used to being the sole decider, running your own courtroom right or wrong, you’re making the calls and you move on. You don’t have to wait on anybody, and you don’t have to try to persuade anybody. Your decisions are the right ones you think for that case, but it’s not precedential. Other people can see the same set of facts and come out differently and so those are fairly significant differences between being a trial judge and now being a court of appeals judge. In writing precedential decisions, I spend a lot of time — all the judges do spend a lot of time — thinking about what the rules that we’re crafting really mean for the case at hand, but also for other cases that may have slightly different factual variations. Do they come out the same way, because this — we’ve pronounced the rule as being this and how do you write it in a way that really doesn’t have unintended consequences or implications? And so that’s a different challenge to the job that I have that I didn’t have before as a trial judge. You spend a lot more time, and the opinions go through many, many, many different revisions before they’re finalized. For the trial court, especially because I ran a very busy courtroom, you rule. Ruling in a timely fashion is very, very important. It’s important to explain your ruling and to, you know, explain to the parties why they prevailed or lost in a particular case and to create some sort of record that they could take up before the Court of Appeals, but when you’re ready to rule, you move on and you have to. You would get so far behind that you fall into that, you know, justice delayed is justice denied scenario, but as a circuit judge, it’s a little bit different.

LEVI: A student has asked a question about being a minority judge — whether you could talk about your racial identity and how that affects you as a judge or if it does affect you, your relationships with colleagues, and your experiences in general in California in your career as an Asian American.

NGUYEN: Yeah, I do think that diversity is important on the bench. The judiciary is a public institution, and in order to maintain the credibility of the institution, I’m not talking about like whether the decisions are different from judge to judge, but I think in order to maintain the public trust and credibility, the bench has to do a better job of reflecting the communities that we’re really serving. So I think that’s important. I think diversity of viewpoints is also important. When you talk about diversity, I’m not just talking about race and gender, but I’m also talking about backgrounds, economic circumstances, and really personal life experiences, as well. We’re all shaped by our experiences. I’m shaped by the fact that I learned English as a second language, and that I didn’t grow up with a lot of economic advantages and how that basically shaped my views and my life experiences. You bring all that to bear, including the fact that I’m a woman and an Asian American woman at that, and so you bring all that to the table with you and you try to figure out what the law really means. And I think a lot of people don’t realize that in the vast majority of cases, the judges are quite unanimous in how things come out because you take an oath to basically apply precedent and apply the law in a way that’s fair and just without regard to ethnicity or gender. I think all the judges do our best to do that, but there are many cases where there’s room for difference of opinion. And when those cases come along, I think it’s very helpful to have different perspectives in the room. So does it make a difference to be a woman? Yes, not in every case, but certainly in some cases you’re going to be able to explain something to your male colleagues in a way, that maybe they weren’t totally sensitive to before.

I think one of my favorite examples actually is from Justice Ginsburg where she was talking about strip search of, if I recall correctly, a middle school student. In a room of male colleagues, she was explaining how a young woman going through puberty, how sensitive that would be. It just basically gives her colleagues a different appreciation into a scenario that she could better relate to as a woman. And it does make a difference, I think, to have the differences of perspective on the bench. I hope I’m able to bring something unique to the table when we’re talking about cases where there’s room for discussion and disagreement.

LEVI: So we have two more questions, and we only have about a minute left.

NGUYEN: Oh, goodness. The hour has flown by.

LEVI: One question is whether there are challenges that your law clerks face or difficulties that they have when, particularly when they’re first starting as your law clerk, that you need to help them with. In other words, is there something that they typically find very difficult to do well for you as they’re beginning?

NGUYEN: Yeah, it depends. It depends on the law clerk and it depends on the case. Many of my law clerks do come directly out of law school, but many come from either private practice firms or a district court clerkship or both, and I’m extremely lucky. All the federal judges are. We’re able to draw a pool of just supremely talented and smart law clerks. I think one thing that’s difficult to transition, in terms of being a young person making a recommendation, is to really not just be rule-focused. You have to figure out what the rules are, but you also have to understand how it impacts litigants in a real-world way. Some of them are young and don’t have a whole lot of life experiences, yet, and so sometimes their views are very academic more so than practical. I think that’s one thing that I try to shape and guide them. It’s really looking at the law in practical terms, as well as in very academic terms.

LEVI: What an honor to have you here with us today. You have such an interesting life, you have so much ahead of you, and you’re doing so much good work. I think we can all tell what a wonderful judge you are and what an honor it would be to appear before you. Thank you for your wonderful service to the country and to the courts. Thank you, students, for being with us here today, and I see Sara Beale is also here. Thank you, Sara, for also helping us pull this together. Enjoy your time “at” Duke, and I look forward to meeting you in person. Let it — May it be soon. May it be soon.

NGUYEN: I hope we’ll get a chance to spend some time together in person as well. I’ve really enjoyed our conversation today, and thank you.

LEVI: Thank you so much. Bye bye.

[Gentle Guitar Music]

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