Season 2, Episode 5 | 41:55
“I got the call, and I went to talk to Senator Schumer, and it happened. And it was really, in so many ways, was really like going home.”
Judge Michael J. Garcia of the New York Court of Appeals talks about his unique pathway to the bench. Judge Garcia graduated from Albany Law School in 1989 and went on to clerk for Judge Judith Kaye, the first woman associate and later chief judge of New York state’s highest court, the New York Court of Appeals. During his distinguished career, Judge Garcia has served as the U.S. attorney for the Southern District of New York and has held executive offices at the U.S. Department of Justice and the U.S. Department of Homeland Security. In 2016, Judge Garcia was nominated and confirmed to a 14-year term as one of seven judges on the New York Court of Appeals. Judge Garcia served as the Bolch Judicial Institute’s Distinguished Judge in Residence in 2021.
This transcript has been lightly edited for clarity.
David F. Levi: Well, good afternoon everybody, and welcome, Judge Garcia, to Duke Law School, and welcome to Judgment Calls. It’s really wonderful to have you here.
Judge Michael J. Garcia: Well, thank you, David. It’s great to be here. I really appreciate your hosting this, and I look forward to our discussion.
Levi: What I like to do in these Judgment Calls interviews is to give a sense of the full person. And one way of doing that is just to find out about your childhood, where you grew up, and whether you see anything in your growing up that kind of brings you to today. Was there anything in your childhood that pointed you to the distinguished legal career that you’ve had?
Garcia: That’s hard to say. I never thought there was, and it’s a good question. My parents were from Brooklyn. I was born in Queens. We moved out to the island. I really grew up on Long Island. They did not go to college, they were high school grads — no lawyers in my extended family at all — so I really never saw the profession in that way growing up. I went to public schools out on Long Island. And the thing that really influenced my life, and I don’t know, you can say that influenced everything was, of course, your parents. And while they didn’t go to college, they, you know the old cliche, they really stressed education. And I found a teacher in high school, an English teacher, who really encouraged my interest in that and made me think that was something I wanted to study and might be good at, which is a nice gift, right, when you’re in high school, to have somebody who would get you to think that.
My parents were readers. My teacher, and other teachers there in the English department, encouraged me to do that. So I think that kind of put me on a path in college, as you can talk about, but which eventually wound up here. But as I think we’ll see, as you look at my resume, it’s never been really a straight line. Different jobs and different things I’ve done in life ultimately landed me here on the court of appeals. It’s hard to trace something back that far, but I would say that interest that propelled me on to study later and study English first, I think that did influence in many ways where I wound up.
Levi: I think that’s a great answer, because lawyers and judges, particularly judges, do so much writing, and words that’s their toolbox — it’s words. I went to history graduate school. You got a master’s in English Literature, and I think there’s a connection there. And law is, it’s a social science, but it’s also one of the humanities, the study of law. So you had this teacher who encouraged you, and you majored in literature, and then you went on to get a graduate degree. So you were thinking maybe you would have a career that involved writing in some way. I think maybe you were considering journalism. What was your plan at that point?
Garcia: Very good insight there. So I went to Binghamton State school. A lot of my education was, in ways, driven by financial considerations. And Binghamton was a state school in New York, and I had some scholarship money there. They had a very good English department. And I really went not thinking, and I was asked at that time by others, “What are you thinking? What are you going to do?” but I really didn’t have that career in mind from it. I liked it. I enjoyed it, the study of it. When I finished my bachelor’s degree, though, I really felt I needed something else. It was a very general program I took at Binghamton, and at William and Mary, it was a very focused, disciplined program, much more focused on research and longer projects. I had to write and defend a thesis, and I thought that was a very good part of my education. I felt I really needed it at that time, but then I left. I didn’t go right to law school.
I left, and a tough market in early ’80s, mid-’80s. I wound up at a publishing house out on Long Island that published physics journals, and I did copy editing. And to date myself, one of the journals I had was “Soviet Nuclear Physics,” if you can imagine! I did that for a while, and then I did get a job as a reporter and an editor, because you did everything for these local papers, right, at a weekly newspaper group out on Long Island. And eventually, in that year and a half I was there, I was the editor of one of those weeklies, and a monthly paper, actually, for the disabled community, and I enjoyed that.
I learned a lot there. It was deadlines. It was getting sources and materials together, and trying to put together, in a very short amount of time, some kind of logical project, right, something that made sense. And I think that helped me a lot later, that type of work. And I did that, as I said, for I would say about a year and a half. Two years total, I was out, then I went to law school.
Levi: Was it journalism that brought you to law, just that investigating facts and writing, or was there something else?
Garcia: It was really more mundane than that, I think. Journalism is a tough business. You know it, right?
Levi: [laughs] Yeah.
Garcia: And I guess as you would say now, I really didn’t have much of a network, right? I had really very few connections. I saw it as a very tough field to get ahead, to get to work for one of the New York dailies or a daily somewhere else, so I felt like I just needed a reset. So I took the LSATs to see what am I going to do, and let’s see how it goes, and it went well. So then I applied again, and I was really looking for a place where I wouldn’t take such financial risk. And Albany gave me a full scholarship, and I really enjoyed it there.
I think law school, in a lot of ways, as you were talking about, is reading comprehension and writing, and it built on those skills that I hoped I had been working to develop, but in a completely new field, which I enjoyed. I really enjoyed law school. And I worked for a law professor, David Siegel, who is well known in New York as he wrote the textbook on New York civil practice. I definitely enjoyed my three years in law school.
Levi: I have in mind that Justice Jackson went to the Albany School of Law. Am I right about that?
Garcia: You are right. That’s-
Levi: How about that?
Garcia: In fact, if we talked about judges you admire, I am going to throw Justice Jackson in that list for many reasons, one of them that he went to Albany Law School, and then went on, obviously, to many other things, including Attorney General and Nuremberg prosecutor. I really admire Justice Jackson, and his style, of course, is fantastic, unique, but fantastic.
Levi: Oh, an unbelievable writer. He actually was the Nuremberg prosecutor when he was the Supreme Court justice, and, well, a little bit of a controversy at the time, but he was detailed-
Garcia: You’re right. He stepped down, right.
Levi: He was detailed for that. He, yeah, and sort of stepped to the side. So you went to law school, you did extremely well. And your career has taken off like a rocket from then because you then went to one of the top firms in New York City, Cahill Gordon. And we’ll get to your clerkship in a moment, but you had one of the very best clerkships in the country, right after that. You went to Cahill, you were an associate. Were you a litigator?
Garcia: I went there my second summer, summer associate, and I planned on being a litigator. That’s what I thought I would always do. Cahill let you split your summer. And I knew people from Albany who were there, who had recruited me, who were corporate lawyers, and I thought I’ll see it. Why not? And I liked it. I found that I liked big-firm corporate practice, and I really did not like litigation.
Levi: So, that’s ironic, given where you ended with a trial lawyer.
Garcia: Yeah. So when I went back in as a first-year, I was a corporate associate, so I was a corporate associate at a Wall Street firm for a year.
Levi: Well, I think that’s good, actually. Sometimes students ask me whether they should bother with the business courses if they’re going to be a litigator. And I say, “Are you kidding?” You have to understand that material, and it’s so basic to our legal system, and so basic to our economy, how we aggregate capital and how we create entities to be productive, whether they’re for-profit or non-profit. It’s so basic.
Judge Judith Kaye was one of the great judges of the 20th Century, and as she was the Chief Justice, you don’t call her that, but the Chief Judge of the Court of Appeals of New York, which is the highest court in New York. And she was the longest serving chief, I think, of that court in history. A very, very, very distinguished person, and a wonderful person, and can you talk about that experience?
Garcia: Sure. I was sitting in Cahill Gordon as a corporate associate. And David Siegel, that professor I worked for, called me and remembered I had been interested in a clerkship, and said, “Send your resume to Judge Kaye. She’s looking for a clerk.” So I thought, why not? Maybe you meet a court of appeals, judge. It’s not a bad thing. And she hired me, and she did two-year clerkships. And much, much later she told me, “I really never wanted to hire you, but David Siegel just wouldn’t stop calling me,” which is a nice lesson about how you can really help someone’s career. So I went to work for her. She was an amazing, as you pointed out, David, a great judge. But some background, she had gone to Columbia undergrad, graduated when she was 20. Also wanted to go into journalism. Went to work for a paper, and they didn’t want women reporters, so they assigned her to the social page, and she was covering weddings.
Then she went to law school, one of the few women in her class at NYU, graduated top of her class, and had really challenging experiences coming out and getting a job in a big New York firm. She then went to Sullivan and Cromwell, and eventually became one of the first women equity partners at a major New York firm. And then became, amazingly, when you think about it, in 1983, the first woman appointed to the New York Court of Appeals. And then, of course, the first woman chief judge.
She was, I try to tell my clerk sometimes, really an amazing person. It’s hard to explain. She loved the law. We worked hard. We worked hard. We worked long hours, and she worked harder. She was here when you got here, we left together really late. She loved the law, and she was curious about the law. But she also had a great understanding of the process from her work as a civil litigator, and an understanding also of where she didn’t have the experience on the criminal side, and what she needed to do there.
And it really is an inspiration how she could balance all of that with the love of the institution, and a real concern for the parties and the human toll cases could take, and a desire to really make the whole process better. I clerked for her at the end of her time as an associate judge. She then later went on to be chief, and as chief judge of New York you wear two hats and you also run the entire court system, which is more than a full-time job. And she did a lot of great work on that side, too, in setting up specialized courts, drug-treatment courts, and trafficking courts. She really took an interest in that side of the house as well. So really an amazing person. I’m very lucky to have had the opportunity to work with her for those years.
Levi: So you came out of that clerkship, and did you go right into the U.S. Attorney’s office at that point?
Garcia: What else would you do after being a corporate lawyer, and going to a regional state school, and working for a guy who wrote the CPLR textbook, and clerking for the state judge? So, I knew someone who had my clerkship spot before me, and became a friend, who went up to the Northern District in New York and was an AUSA there, and it sounded like a great job. I wanted to stay in Manhattan. I applied to SDNY, Southern District. You do rounds of interviews, and at my very first interview there a senior AUSA, late from court, late for the interview, obviously unhappy with the court proceeding, pulls out my resume, looks at it, and says, “Very impressive. I see you worked for Professor Siegel?” And I said, “Yeah. I helped him on his edition of the textbook on New York Civil Practice.” He goes, “That means absolutely nothing around here. Why don’t you apply to the Manhattan DA?” It was liberating. I thought I’ll never get this job.
Levi: But you did.
Garcia: But I did. And it really, it was, we can talk about my time there, but a great office. You have that experience. I mean, it was really something, at that time I thought I wanted to do. I wanted a seat at that level, and I was fortunate enough to get an offer there.
Levi: So from 1992 to 2001, you were first a young prosecutor, and then you were an experienced prosecutor. In the nature of those offices, it’s a lot of turnover, and you handled some very significant cases. People may not remember that the World Trade Center was bombed in the early ’90s, before it was destroyed in 9/11, and one of the first of the modern terrorism cases came out of that. And you worked on that case, and there were several others. Can you give us some sense of those cases and what your role was?
Garcia: I will, just cut me off if I go on too long because we could talk for hours about those. But right, the year 1993, there was a bombing of the Trade Center, in the parking garage underneath the Trade Center. At that time the bomb went off, I was in the office maybe four or five months. I was a very junior, and you know the life of a junior AUSA in a big office. So, I had an office on the floor where the senior people were who were now starting to investigate that. It was very early, and they got breaks in that case. And I used to get in early, and I had an office next to one of those prosecutors. And then he called me, and it was like, “Can you come in and do a search warrant for us?” I was like, “Sure.” I had never done a search warrant. So I rushed in.
Levi: Isn’t that incredible?
Garcia: We did the search warrant. I pulled in Lev Dassin who later became my criminal chief when I was U.S. attorney, and he started with me in the office. We did these search warrants, and we’d come back and bring them to the federal building, the FBI, where these people were camped out then. And they were like, “Okay, thanks.” And then we were sitting in the lobby, I remember this, thinking, “How do we get back upstairs?” And he’s like, “I have an idea.” And we went in the store down there, we bought all this food and soft drinks, and then went back up. We were like, “Thought you guys would be hungry,” and we never left. And they put us on that trial team. Four of us went, two senior and then Lev Dassin and myself. And at first they told us, “You guys are in the office five minutes. You’re not getting any witnesses.” I’m like, “All right.” And the government wound up calling 200 witnesses in that case, and they couldn’t do it, so Lev and I had about 25 witnesses each at the end of the day.
I called my first witness in a trial in that, in the Trade Center bombing, and I have the sketch in my office here. It was a secret service agent who had been hurt in the bombing, had cars in the garage. And it was really an amazing experience, but a great one because, unlike the usual track, I really got to see top prosecutors investigating a major case and learn from them. And if you look at, and you step back, and there are very interesting stories of the trial, but if you step back and you look at the development of prosecuting terrorism in criminal prosecutions, in Article III courts, the series of cases in the Southern District starting then, where there were no experienced prosecutors or agents, the JTTF was a backwater, Joint Terrorist Task Force, and the laws had never been changed, in ways that addressed that specific type of threat.
That all happened over the ’90s, those cases starting with the Trade Center. And then there was an airline bombing plot out of Southeast Asia, there was the Sheikh Rahman case, and then culminating in the embassy bombings in East Africa in 1998, really developed, I think, a model, and many people worked on those, of that type of prosecution. And the issues with FISA, the intelligence wiretaps, the Classified Information Procedures Act that were developed, oversees witnesses, search issues, all types of extraterritorial issues, really were litigated there over that period in that series of five or six cases.
So when the embassy bombing trial ended, the final verdicts came in in July of 2001, we had indicted Osama bin Laden on other charges, conspiracy charges, we had indicted Khalid Sheikh Mohammed for an airline bombing plot, and really the pendulum had swung very far over towards criminal prosecution of international terrorism. Two months later, and I had left the office right after that verdict, but two months later, 9/11 took place, which really changed the landscape in many ways.
Levi: From assuming you would prosecute to more of a military response, I suppose?
Garcia: Right. We had been looking for Khalid Sheikh Mohammed for years, and Osama bin Laden as well, and there was never an issue then that they were going to come, there’s still not. Khalid Sheik Mohammed still hasn’t been tried. So it really changed the view. I think when I came back as a U.S. Attorney, and we talk about that in due time, but that started to swing back, not for the GTMO prosecutions, but in proactively prospective cases, started to see more, and new laws had been passed, material support statutes had come, and other things. I did see that start to change, but it really was such a change in the way the cases were approached.
Levi: I mean, and just to pause here for a minute to think about you. You come out of your clerkship, which is a rather academic kind of day-to-day experience, because you’re doing the sorts of things that a law student does. You’re preparing memos and you’re reading appellate cases, and you’re thinking about precedence. And five months later, you’re working on the biggest case in the country, and I’m sure it’s exciting, it’s also scary in some respects, and you don’t want to screw it up. And it’s a lot of pressure, and people have been hurt, and it’s of national importance. It’s pretty breathtaking, when you think about it.
Garcia: It was. I guess at the time, you’re working so hard and on trial; you’re so consumed by it. You’re just trying to get the things together for the next day’s court, but it’s hard to realize the impact that it’s having. And again, it was so new, so much of it was so new at that time. It’s hard to imagine that now.
But there were six people killed in that bombing. And I remember at a one of the early detention hearings, the line that made it into the paper was the prosecutor getting up and saying, “This is the single most devastating act of terrorism ever committed on U.S. soil,” so imagine the perspective being so different. And then by the time I finished that trial, then I went and I did other work in the office, but then I did this airline bombing trial, and I was going overseas a lot, and I was really the lead on that case. There were two of us. I remember I was in the Philippines negotiating an extradition, and I’d only been in the office like two-and-a-half years. And we had this guy, we get him on this plane, and I’m thinking, “This is the best job in the world,” you know?
Garcia: The work was great. You really felt like you were making a difference. As you said, you always had in mind that people were killed and injured, families were devastated by these attacks, and you really felt like you were contributing in a meaningful way. So yeah, in that part of my career, I look back as really so tremendously rewarding.
Levi: So in 2001, before 9/11, which you couldn’t have foreseen, you left the U.S. Attorney’s office, and you became the Assistant Secretary of Commerce for Export Enforcement, and those are our export controls on technology and that sort of thing, which is, in many respects, related to work that white-collar prosecutors — like you — had done. Can you tell us about that job?
Garcia: We had finished the embassy case, and I did that with Patrick Fitzgerald, the last part of it, and I really needed to leave. It was time. I had no party affiliation, but the administration had changed. And they were looking for an assistant secretary in that shop, which was a Senate-confirmed job, but they wanted somebody who had dealt with the intelligence agencies because there was overlap in relationships with that, given the nature of the export issues. So I went down and I interviewed for it at the White House, which was interesting, and they offered me that position, which was great. And for me, what I thought of it, when I was in the U.S. Attorney’s office for eight-and-a-half, nine years, whatever, I was never a supervisor. I always was a line assistant. I loved the cases, I loved the trials, the investigations, and I stayed in that role for my entire career there as an AUSA.
This was the opportunity to manage something, to run it, and export enforcement is about 500 people and about 120 special agents, federal investigators. It is a very specific thing lodged in the commerce department, which isn’t your usual platform for an enforcement agency. So it’s a little off the beaten track, and the cases are difficult. There’s also civil penalties, et cetera. But it really gave me an opportunity, one, to manage generally, which is such a different role, and then also to think about enforcement policy and initiatives and how you can use various tools you have to change the way the agency was approaching the mission. I enjoyed that part of it. They had some interesting jurisdiction over material that was going to China, high-tech computers, state sponsors of terrorism controls, so high-tech night-vision-type equipment. It was interesting for me to explore that in a law enforcement agency that was very contained.
Levi: Yeah, I think that would be interesting. You went from that work, and sort of you go from the frying pan to the fire, and back to the frying pan, it seems. So you then became acting commissioner of the INS, the Immigration and Naturalization Service, as it was then known, and it was part of the Department of Justice. And then you took what was called INS into its new home in the Department of Homeland Security, so this is post-9/11, and now it was called ICE, and you became the assistant secretary for ICE. So how did that all happen?
Garcia: Yeah. So I guess you’re right. It’s kind of like going from a clerkship into prosecuting the Trade Center, then going from the commerce department to the INS, but again, you have to think back about the time, and it was such a time of change. So 9/11 takes place, and there’s this major reorganization of the federal government. And there are all kinds of investigations and reports coming out. INS is really taking a lot of heat for what they were perceiving to be their failure to police the border, et cetera.
So I get a call to go over to the White House, the White House personnel who hired me to be in commerce, and I go over there. And they tell me, “Okay, here’s what we’d like you to do. We’d like you to take over INS, break it up, basically you’re a trustee in bankruptcy. And you’re going to unwind INS, you’re going to take the pieces, you’re going to push them over the line into this new department — they had a statute, right, DHS, Department of Homeland Security. Standing up, you take INS, you break it apart, you push it over the line, and if you are standing at that time, you may get the enforcement agency that comes out of that.” And at that time it was contemplated it would just be immigration enforcement. So I was like, “Sure, I’ll do that.” And they were like, “Really?”
But it was a challenge. I went back. They put me in as Acting Commissioner of the INS, which we just said commerce had about 500 people. I think INS at that time had 32,000, 34,000 people all over the world. A lot of attention, not good, was being paid to that agency at that time. They had all kinds of other internal issues. And it was a difficult agency to manage for anyone. The lines were all tangled. You had services, you had border patrol, you had investigations, you had service people supervising agents, you had vice versa, and so it had to be unwound. I spent, I’d say, three or four months doing that. In that time, I mean, when I look back at this time in my career again, I think this is the most challenging, but the most creative time.
Levi: Well, you couldn’t stay away too long from the U.S. Attorney’s office. So in 2005, you become the U.S. Attorney, and that’s like a big deal, SDNY. Anybody who’s seen the show “Billions” knows how you were-
Garcia: Yeah, just like that.
Levi: Yeah, just like that. That’s a very significant position in the U.S. Justice Department, but also overall in federal law enforcement as a leadership position. How did that come about?
Garcia: That’s funny. Mary Jo [White] was my boss for my time as an AUSA. One time we were working on something, we’re dealing with the FBI, and she had to go to something, and I stayed in her office and I was dealing with it. Then she came the next day, and I’m like, “I feel comfortable behind the desk there.” So it was second term of W. Bush, President Bush, and that slot was open. James Comey was DAG now, he had had it, the Senate-confirmed job before. The process is: At that time, it was Governor Pataki who had a committee, and I went to the Justice Department and I interviewed. I interviewed with White House Council. You wait around, and then you read the paper, and this one’s up and then, you know, read all the stories. And I got the call, and I went to talk to Senator Schumer, and it happened.
And it was really, in so many ways, was really like going home. I had ICE and the Homeland Security department. We had badges that said, “Established 2003.” It was like a bar in the city, right? And going back to the U.S. Attorney’s office, they have a book on the coffee table going back to 1798, or whatever it is, of the traditions and that. But when I got there, James Comey said to me, “It’s a great job. You’re going to love it, but first let me tell you it’s very much like being the Dean of Harvard, because all the alumni think they can run the college better than you,” which is true.
Levi: That’s funny. I bet that is true, because there are all these former U.S. Attorneys running around New York City in prominent positions.
Garcia: Yeah, and all the AUSAs, you know what I mean?
Levi: And all the AUSAs, that’s true.
Garcia: And we all knew them.
Levi: So you had a great run as U.S. Attorney, and then in ’09, the pendulum swung the other way, and you were out. So you returned to private practice, you went to the Kirkland firm. While you were there, you got involved with FIFA.
Levi: The international soccer league. And tell us about that, because we won’t be able to go into all the gory details, but that was almost like being U.S. Attorney again.
Garcia: They were going through a series of reforms at that time, I don’t know, 2012, I think. And they had just put in place a very strong ethics code, which was done by this outside independent group that they brought in and this professor from Switzerland. And they were looking for someone to head up the investigative arm of that. And then they had an adjudicatory arm where you would bring these cases and they would get tried. I went over and I interviewed in FIFA for this job, and I knew nothing. I joked in that interview the only soccer game I had seen up to that point in my life was CU12, like my daughter, and I didn’t know FIFA. I didn’t know the U.S. had bid on the World Cup. I didn’t know Qatar got the World Cup. I didn’t know any of that. So, I think maybe that’s why they hired me.
So I came in, and I had a deputy and a committee. And the code actually was a very good one, and it gave me a lot of authority, including, very importantly, the ability to initiate cases, which the Olympic Committee investigators don’t have. They have to be referred. So it was doing good work. I had cases where executive committee members were disciplined, but I decided I would open an investigation into the World Cup bidding for the ’18 and ’22 World Cups because we had been getting different types of things in, and I did that. I spent, I don’t know, a year, I guess, investigating the bid teams.
I couldn’t investigate the U.S. — my deputy did — because of the obvious conflict that was in the code, but I also couldn’t investigate the Russian bid because I’m banned from going to Russia over my prior prosecutorial work, so that went to my deputy. But we put together a very thorough and comprehensive, and I think fair, report on issues related to that bidding process, and I submit that report. And then the adjudicatory side, which is also an independent head, it was a sitting German trial judge, issued a summary of my whatever, I don’t know how many, 600 pages into a ten-page summary, 20-page, which I felt didn’t capture the important aspects of it. And anyway, this is public, and so is the report now, I think. I appealed it. I appealed that issuance of the summary, and I — surprisingly — lost, and then I left.
But it was really a fascinating thing because I did travel around the world. I did learn how much attention football gets worldwide. When I took that job, people said to me, “You’re not going to believe the scrutiny and the light that it’s going to be in.” And it was, especially in England. I went to England while the World Cup Report controversy was brewing, and I delivered an ABA speech to some group in the ABA in this very old building. It was a pretty standard kind of meeting, but the British press were lined to the gallery. And they didn’t know what to do with this because no one covers this meeting usually, right, and I gave it on transparency. As I’m walking out, the British press is screaming, and they’re following me out of this building. And I get outside and it’s raining, of course, in London. It’s raining, and I walked ten feet and they all stop. I turned around. I’m like this is what it takes to get rid of the British press. You walk out-
Levi: A little rain.
Garcia: I had been involved in high-profile cases and high-profile reorganization of the government, and then agencies that got a lot of attention, good and bad, but I never had seen anything like the coverage of the soccer.
Levi: That’s amazing. So, now we’ve come to the time when you became a judge. And you were appointed by the governor, and you go onto the high court. How did that happen?
Garcia: In New York, as you said, it’s an appointed position, and it’s actually very formal. So you apply, and there’s a commission that, by law, interviews all. They do a cut, they interview candidates, and they come up with a list of seven judges, and the governor has to pick off of the list. So at the time I interviewed, Judge Kaye was the chair of that commission. She encouraged me to apply. I was interviewed, and I got on the list first for Chief Judge. And then another opening came because I didn’t get Chief Judge. They rolled over the list to that, your application to that, and then I had that slot. And it actually turned out Chief Judge Kaye passed away right before I was nominated, but it actually turned out I have her associate seat, which is-
Levi: Oh, nice.
Garcia: Makes it even more meaningful.
Levi: How beautiful. How lovely is that?
Garcia: You know, you go through the process. In New York, you do that interview with all the bar associations when you’re on the list. And then the governor called, and I went over, I spoke with him, and he nominated me. And then it’s a state senate confirmation, but it’s a different process there than down in DC.
Levi: So did it feel like the right time to you? I suppose the answer is obviously yes, but I’m sort of interested in that.
Garcia: You know, it’s funny, and I never was offered a federal judgeship. But they talk to you when you’re in the U.S. Attorney’s, would you be. And, one, I didn’t think I had really the temperament to be a trial judge, God bless, but it’s really a lot of patience, and I had seen trials. But I always had a great respect and affection for the New York Court of Appeals, and an understanding, although I had been away from state practice for the most part, but a real understanding of the institution, having seen it for a couple of years inside, if I thought about this as a, I thought, a step I wanted to take at this point in my career. I did. This was the landing that I wanted. It was a very strange feeling. You get confirmed. I was on the bench the next morning.
Garcia: Walking through that courthouse, which is beautiful, Cardozo sat in there, and walking up to that bench — luckily you’re last in line as the junior judge — I stopped. It really was a very, very moving experience coming out onto that bench the first time.
Levi: I bet. I think students would like to know how you organize your chambers, and how you use law clerks and whether they can work for you.
Garcia: Always. Duke? No, but I have four law clerks. I try to run chambers the same way that Kaye ran chambers. So the main work is the docket, I split those cases up. I try to do it so, to the extent I can, people get writings and opinions, because that’s why we’re here. It’s the most fun. And then they work up, as you would expect, bench memos, they put together bench books for me, relevant authority. At the same time they are doing those cases, reading, reading the briefs and reading cases. And to me, that bench memo isn’t so much the product as the process, because I like to talk about the cases.
So one thing with the pandemic, and we’ve been out of chambers, I really like being here. I like being able to go in offices, and Kaye did the same, and, “What are you thinking? What are you hearing?” I encourage them to speak to other clerks and get their thoughts, so I have an idea of how these cases are being reported in other chambers. Then, as we get closer to argument, I’m reading the bench memo to prep. We think of questions. What do we want to know? What are we hearing?
And then if I’m drawing a case, we do a report, a recommendation. And if we write the opinion, then I let them draft, take the first draft, and then we’ll pass it back and forth a lot and work on it and circulate. And then we’re doing changes to other opinions, trying to get comments in on other people’s drafts, or we’re dissenting, and that’s really the day-to-day work.
With Kaye, the way I really learned from her, she was a fantastic writer and editor, but we would type and give it to her, and she would take the hard draft and then write in a blue marker her changes, and then you would enter them. And when you first started clerking, you got a lot of blue on your drafts. And you could see over time, as you learned her style and you got better at your job that the blue went down. You really learned how she thought, how she edited, from that process. Now we do these red lines, and I hope it’s still helpful that way.
Then we have other workstreams — the most important being criminal leave applications. In New York, one judge decides the application, so we split them up. I get a seventh of the docket, and my clerks do them. I don’t assign them. They’ll do them and work them in. And then they’ll write up short, less-formal memos, the papers are less. I’ll look at those, then we’ll discuss, and we’ll make a decision on granting or denying. And if it’s an interesting case, we can get the parties on the line and have a mini hearing on what are your issues, are they preserved, et cetera. And that’s, you have people coming here, these are convictions. It’s important work, and so those are probably at the next level of a day-to-day operations here.
But it’s mainly the cases, and as you said, it’s very similar. Kaye used to say, “It’s lawyer heaven.” I think it’s almost like law school heaven. You work on these things, you get very engaged in a particular discipline and issue, and then it’s done. And I remember when I got here, I was talking to judges, and they would say, “Oh, did I write?” And I’m like, “How do you not know if you wrote a decision? I’m going to remember every entry I do.” Now I’ll say to a clerk, I’ll be, “Did we write that?”
Levi: Yeah. That’s funny. I can tell you really enjoy it.
Garcia: Ah, it’s great.
Levi: That’s wonderful. Well, we’re almost out of time. I like to ask all of our judges on Judgment Calls this last question. I think we all know the answer to it, but has there been any judge, past or present, who you would describe as your judicial model?
Garcia: Obviously we hit on the two so far. So I would say as a model, it would be Judge Kaye because I worked with her and had so much respect and admiration for her in the way she — you know, judges are so different, and I’m sure she would like some things I do and not like some things I do — but for the process and the approach, and I hope that love for what you do and the institution, I think she is a real model that I saw, and I was lucky enough to work with her. And then Justice Jackson I love as just a figure in history and the fact that he went to Albany Law School. It’s either him or President McKinley if we can pick two choices.
Levi: I always loved Justice Jackson’s line about grand gestures that don’t mean anything. He said he would describe them as, “A munificent bequest in a pauper’s will.” But Judge Garcia, this was not a pauper’s will here today. This was a delightful discussion, and I so enjoyed hearing about your amazing career and all the wonderful service that you’ve given to the nation. It’s really remarkable and so laudable. So thank you for your service, and thank you for being here with us at Duke for Judgment Calls.
Garcia: Thank you.
Levi: Thank you to our audience as well. Thank you, Judge Garcia.
Garcia: Thank you, David. I enjoyed it.