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MICHAEL DUNNE: I'm Michael Dunne. For most people, the idea of a lifetime appointment is a hard concept to grasp. On the positive side, you have a job for life. But on the more challenging side is the fact that your decisions are attached to you, maybe for the remainder of your life. Such is the world of a federal judge appointed by the President of the United States today on the show, you'll meet such a person our United States federal district court judge, Mustafa Kasubhai. He's the first Asian American lifetime judge and first Muslim lifetime judge in the District of Oregon, and only the third Muslim lifetime judge in our nation's history. He talks about the role and responsibility of being a federal judge historically and in this most unusual time in history. Mustafa Kasubhai, who is one of the United States district court judges for the District of Oregon. Thank you so much for coming in and talking with us.
JUDGE KASUBHAI: Thank you, Mike, for having me.
MICHAEL DUNNE: So, you're a proud duck. You graduated from U of O law school in 96 you've looking at your bio. You've done a lot, or you've made a lot of firsts. Let's see here. You're the first Asian American lifetime judge and first Muslim lifetime judge in the District of Oregon, and you're only the third Muslim lifetime judge in our nation's history. From your own perspective, what do some of those firsts mean for you, but also for other people looking at the bench?
JUDGE KASUBHAI: Mike, I think I'll probably look at this from two different perspectives. Okay, I'm grateful that I have an opportunity to show to other people that might not see themselves in these areas of public service or in the judiciary, that it is possible. And so, to that end, I'm, yeah, I'm very grateful that maybe I can help, maybe, maybe be one of the lights along the way that helped guide other people to see it for themselves. From another perspective, it was 2018 when I was first appointed to the federal bench as a magistrate judge. And that was the first time a Muslim American had ever been appointed to the federal courts. So, when I reflect back on that notion that there have been Muslim Americans in our country for hundreds of years, and yet it took until 2018 for something like that to be even possible. It reminds me that we're an ever-evolving nation, and how we find ways to include the diverse populations and communities that have been engaged and committed to this great country. To have all of us included is taking time and I think it's important too, that we remain engaged.
MICHAEL DUNNE: When you graduated law school, what did you want to do? Did you set your sights on becoming a judge way back then? Or was that kind of an evolving career trajectory?
JUDGE KASUBHAI: It was the ladder. It was an evolving career trajectory. I think, as in law school, you know, we're trained to really respect the judiciary. It's an integral part of our legal education. Also back in the 90s, the benches weren't particularly diverse. And so going through law school also you convey the message that maybe people like me didn't fit the mold. And so, after and through law school, I came to the conclusion that probably the judiciary wasn't something I could have access to. It wasn't until after I started practicing law, you know, I represented injured workers and throughout southern Oregon and rural parts of our state, and have had the chance to appear in front of judges quite regularly after realizing they're as human and fallible as any other human out there. You know that demystifying of what it means to be a judge, and realizing that there was access and the possibility in Oregon to jump into that public service where I rediscovered the idea that, yes, I could do this too.
MICHAEL DUNNE: As an attorney, did you have mentors who were judges that also kind of helped you decide that that was something that I wanted to do again, not being, not being in the law. I don't know how many attorneys and judges, even, you know, become friends, or even kind of, you know, again. Have that sort of pathway, or that mentorship that might provide a stepping off point?
JUDGE KASUBHAI: Judicial service can often be an isolated an isolating experience because of needing to maintain some arm’s length distances from, you know, from the attorneys that appear in front of us when, when I was coming up through the ranks of practice, I would say that there weren't any particular mentors that took me under their wing or I sought guidance from it was mostly a perspective of being an outsider looking in and trying to figure out if, if there was a space. Okay? Now I will say this, I think our bench in Oregon, the state, and now I'm referring to the State Court bench, okay, it's that's such a broad range and population of judges in our state, our State Court bench has changed considerably. And you know, I'll credit you know the Governor Kulongoski, who appointed me, who, I think took somewhat of a chance because I was an outsider, and saw that there was opportunity for people that were not insiders, who could serve. And so, I think our leadership in the governor's office has really made a difference for the face of our bench throughout the last couple of decades.
MICHAEL DUNNE: Okay, when you became a judge, suddenly you're on the other side of the bench. Did it take some time to sort of really become, in your perspective, sort of a new part of the legal system, from arguing cases before a judge to now calling balls and strikes. What was that like, that first few years’ kind of getting used to that?
JUDGE KASUBHAI: It was a very steep learning curve. Okay, the subject matter itself is something that as lawyers, we can, we can, we can climb that curve, adjusted to catch up to but I think the culture and the manner and the demeanor in which we work as judges is also, if not equally important, more important than just getting the law right. Okay, so the idea of managing a courtroom and ensuring that everybody who appears in front of us not only feels but is getting a fair opportunity to be heard, I think takes practice, because as humans, judges can have moods. Can wake up on the wrong side of the bed on occasion, and then balancing our own personal idiosyncrasies with the commitment that in that courtroom, we also have to be able to actively listen and engage the parties so they know that the decision maker, if it's a bench trial, is is giving, giving each party the full attention that it deserves. And then for jury trials, there's also the importance of making sure that juries know that the court values their presence and supports the critical role that juries play in our democracy. And so, in that way, we're also sort of spokespeople or ambassadors to the rule of law and ensuring that everybody who comes into the courtroom knows that judges are committed to ensuring that everybody gives weight and respect to that rule of law principle.
MICHAEL DUNNE: Tell our audience what it's like and how you do it In terms of managing the human element in a courtroom while also protecting the law throughout the entire process.
JUDGE KASUBHAI: Part of it is also learning how to stay out of the way, okay and okay and so it's active engagement, but also allowing attorneys to litigate the cases present the evidence that they think is important and relevant and so the balance that I think judges have to strike, and that I've tried to strike sometimes on better on some days, and the balance I try to strike is making sure that I'm that I remind myself that that attorneys know these cases better than I do. My role is to make sure that that the operating system is functioning properly, so the so the attorneys can present their best cases, if it's a jury my role is simply to make sure that the setting the courtroom is and the demeanor, the tone of that space allows attorneys to present their best cases so that the juries can evaluate the Best Compilation of evidence to figure out what is and what isn't a fact. So oftentimes it. Judges who might be too engaged in the evidence in the case can get in the way of allowing these cases to fully develop a record from which a decision maker can make a decision. And so, I think at the end of the day, what most, if not all, judges are trying to do is ensure a level playing field okay, and that means remaining committed to the rules of civil procedure or criminal procedure, giving great weight and fidelity to the rules of evidence, so that which is fact can be presented to the jury, for the jury to end up deciding,
MICHAEL DUNNE: You work in a profession that Hollywood has fallen in love with. The courtroom proceeding is immersed in our popular culture. And what I'd love to know is, especially in a jury trial, how much do you have to sort of disabuse jurors about, hey, what you see on TV and movies, that's fiction?
JUDGE KASUBHAI: You know, I think, I think television and the entertainment world has captured quite a few interesting vignettes of how our courts operate, and sometimes it can be dramatic, but most of the time it's a wonderful, plodding deliberation of the review of evidence and the and the application of the evidence to the law. And so, trials, most of the time are not sexy or exciting as it should be, the one thing that that the drama of television, the movies, probably don't try to capture, which is that sort of long plotting process, which is, frankly, I think the most important part of our judiciary Is that so much of the process is embedded with this commitment to the rule of law and thereby the necessity of practicing humility. How boring is that? Have you captured that in film? But when we think about it, Mike, the idea that we place personality below subverted to this notion of the rule of law, that the law is what matters when, as judges, we commit ourselves to that principle, we're also subverting our own identities and our own egos and maybe even our own wants or desires of what we think the outcome should Be to the rule of law, and that requires humility. So, in the absence of humility, the rule of law doesn't exist. In the absence of humility, the rule of personality rises to the surface, which, at the end of the day, I think, is an incredibly dangerous place for our court to ever be.
MICHAEL DUNNE: You've talked several times about how judges are human, and obviously can act very human. How do you guard against that, especially regarding, as you talked about so eloquently, protecting the rule of law, protecting the essence of the law.
JUDGE KASUBHAI: I think our systems to date have a built-in mechanism for error correcting, the idea, or the expectation that court litigation, litigation generally is slow, allows correction. And I think that's an important, important key factor of our judiciary when we compare it to perhaps other aspects of our democratic republic, the court is an incredibly deliberative, long, drawn out process, and that that gives us a chance to think, slow down and make decisions in a way, in a way that allows, I think, the best decisions to come, come to the service. And then on top of that, you know, we have an appellate system as well. And so, if, if, no matter how hard we try to get it right as trial judges, the parties think we may have gotten it wrong, there's an opportunity for appeal to correct error, and that's just simply intrinsic to our system. So, sort of that redundant or that redundant process of reflection, both through the appellate system, but also the time that we have to make decisions is important gives us a chance to make sure that our humanity actually our human fallibility, not humanity, our human fallibility can be corrected along the way.
MICHAEL DUNNE: The Federal Judiciary, especially now, is really in the spotlight, and we have a very activist President doing a lot of. Executive orders, and there's a lot of case law that has gone to different judges and then on appeals to different courts. I don't know how it works. How do cases get assigned to you? How do they get assigned to different courts and sort of within that is there, is there the ability for a president for the executive branch to say, oh, I want this case heard by that judge. I think it's kind of a mystery about how it all work. So, you know, as best you can to a lay audience, how does it work?
JUDGE KASUBHAI: Sure, within the district court, the federal district courts in Oregon, there are six active Article III judges, lifetime appointed judges who were appointed or nominated rather by a president at some point and then confirmed by the US Senate down the way. So, there are six of us that have lifetime tenure that serve within the district of Oregon. There are several divisions. There's a Portland division, a Eugene division. There is Medford and Pendleton. The Eugene and Portland divisions are the larger divisions courthouses with active district judges sitting in those in, those in those courthouses, there are rules that direct where plaintiffs or petitioners ought to file, they’re complaints or their petitions, and it's geographically designated So oftentimes, when the state of Oregon, for example, might file a suit. They may very well file it because they're based out of the Salem area, okay, which in which the Eugene division encompasses. Okay, those cases might very well be filed then here in the Eugene division. And then we have a random selection process for the district judges to receive cases on a rotating basis. Okay, so judges are not designated by virtue of some level of expertise or area of expertise or interest. It's a random assignment. And then, for example, if there's a case for which a party or a claim involves the geographic region of Multnomah County. Those cases are likely going to be filed in the Portland courthouse, the Hatfield courthouse in Portland. It is almost as boring and wonderfully unsexy as that. It depends on where the case is filed now by the federal government, unless they are the petitioner or the or the plaintiff filing a suit. There's no other difference that I'm aware of for which a case from the US government would be filed in some selected, self-selected. It really involves where the case or the controversy arises, okay? And then that's where the case is filed, and then those are the judges that may get the assignment. And on occasion, I've been assigned a case out of Portland because there may be, you know, something unique about that case because of the other judges, maybe knowing some of the parties I see are being familiar with the parties. And likewise, if the judge is down here in Eugene, there's something about that, that case that involves a potential conflict of interest, then those cases would then be assigned to a judge up in up in Portland.
MICHAEL DUNNE: Okay, is it up to the individual judge to recuse themselves if there's a conflict of interest, or is there a process by which that, by which that gets decided?
JUDGE KASUBHAI: In the district, and very generally speaking, a party may move for recusal to the judge the case is assigned to; that judge is charged with considering that motion and then deciding to recuse themselves. Now it can be that decision to not recuse can be appealed to the appellate courts. But there's a there's a statute, there's laws that provide for some criteria that judges need to consider in deciding whether to grant the motion for recusal now, so that would come from the parties, but judges, on their own motion, in the absence of any request from a party, can say, this isn't a case that I can hear. They don't have to explain, and shouldn't explain what the basis is, just simply that they recuse, and then the case will be put back into the hopper and then reassigned to another judge.
MICHAEL DUNNE: A term you used earlier in your lifetime appointment. You know what you're going to be doing for the rest of your career. What's that like? Because obviously, great. You know, it’s certainty of where you're going to be, but it also, I imagine, that's quite weighty to think I'm going to be doing this job and rendering these decisions forever. That's a fairly ominous feeling to someone like me. What's it like for you?
JUDGE KASUBHAI: Many years ago, I found my vocation, my calling to public service, and the judiciary has been a space in which I think I can, I can engage and contribute back to the community in a way that's unique to what the law is capable of doing. And when I received the privilege of serving for a lifetime in this position. What, what? What came to me was this deep, profound sense of duty. It's not so much excitement or thrill or this idea of lifetime, of lifetime, sort of years of service. But what struck me most is that now, more than anything, and probably no more important than ever, was this idea of settling in for the long haul to simply fulfill my duty to the Constitution and the laws of our great country. And that's humbling, it, and it may be ironically, the idea of lifetime tenure, to the extent that it's sort of perceived as this immortality of judges, has made me feel much smaller in that sense of all right, this is this is real. This is serious. And I, I need to fulfill this duty in as simple and as humble a way as I possibly can.
MICHAEL DUNNE: Fascinating, fascinating. I've learned a lot just talking to you. Thank you so much, judge. Judge Mustafa Kasubhai, who is a United States District Court judge for the District of Oregon, really appreciate you coming in and talking to us.
JUDGE KASUBHAI: It's been a pleasure. Mike, thank you.
MICHAEL DUNNE: That's the show for today. All episodes of Oregon On The Record are available as a podcast at KLCC.org. Tomorrow, on the show, we talk with an ecologist with the city of Eugene about the rare environment that is Delta Ponds and why it's turning red right now. I'm Michael Dunne, host of Oregon On The Record. Thanks for listening.
