Q&A: Judge Richard Clifton '72, Senior Judge of the U.S. Court of Appeals for the Ninth Circuit| Jun 6, 2017
Richard Clifton '72 is a Senior Judge on the U.S. Court of Appeals for the Ninth Circuit, where he has served since 2002. In February 2017, he was one of three judges on the Ninth Circuit that heard and ultimately resolved the case dealing with Executive Order 13769, the first iteration of the Trump Administration's immigration executive order. He talked to the 'Prince' about his Princeton experience, his long career in law in Hawaii, and his analysis of the immigration executive order case.
The Daily Princetonian: Why did you decide to apply to Princeton, and how was your Princeton experience?
Richard Clifton: I went to a high school that regularly sent graduates to Princeton, so I learned about it from people in the class two years older than me. This was New Trier High School in the suburbs of Chicago, and I knew a couple people pretty well, let’s be blunt, a couple guys really well. I was a member of the last all-male entering class, so it was only guys then. I knew a couple guys two years ahead of me in high school…and they were all enthusiastic and encouraged me to consider Princeton. They talked a lot about the campus, I’d never [seen] it until, they didn’t have a Preview program in that day, but after I’d been admitted my father decided it would be a good idea to go see what I might be considering, so he and I went. So I looked at Princeton in late April, early May, it was the first time I had seen the campus. My friends who were going there were enthusiastic, and in particular [I was interested in] the Woodrow Wilson School, because I was interested in government and politics, and it seemed like a good fit, so I signed up and went, and have no regrets whatsoever. I had a great experience, a great education, a great experience outside the classroom. I continue to do interviewing for the Schools Committee 40 some years later.
DP: What did you decide to major in, and what were you involved with outside the classroom?
RC: I was in the Woodrow Wilson School, which in those days you had to apply for. In terms of activities, I did some things through Whig-Clio, the Debate Panel, speaking organizations, and competitions. I was a broadcaster for WPRB’s music program, and then the sports program, broadcasting football and basketball my junior and senior years. I was involved in university governance, which took the form of the undergraduate assembly, which I was elected to and was a member by sophomore, junior, and senior years. The university council was a pretty new organization then, but I was a member of that my junior and senior years. This may be cosmetic, but I was asked to be the chairman of one of the university council committees, first time it had ever had a student chair, so I was the chair my senior year of the university council’s Committee on Governance, which was interesting then because they were searching for and identified a new president. Robert Goheen was retiring, formally retired at the end of my senior year. William Bowen, who was the provost, wound up being selected as the next president. So I got to know him pretty well because he had ideas he wanted to start introducing in terms of how the university governance should be modified a little bit, and I’d known him a little bit anyway, so I got to spend a little time with him my senior year.
DP: You grew up in Chicago, so how did you wind up living and working in Hawaii? How did you become interested in serving on the bench, and what has that experience been like?
RC: Pure good fortune. I went directly from graduating from Princeton in 1972 to starting in Yale Law School that fall together with five classmates from Princeton…After law school, I got a job as a law clerk for a federal judge, a judge on the same court that I serve on now, the U.S. Court of Appeals for the Ninth Circuit. I did that, it was a key thing to do if you could get hired, you learn a lot about procedures and so forth. I was interested in being a law clerk, and I had never been to the West. I grew up in the Midwest, went to college and law school in the East Coast. I worked on one project in Louisiana, so I had a little bit of exposure to the South, but I had no experience with the West. So, not having a better reason, I decided to apply to some judges on the Ninth Circuit, which covers most of the West. The first judge to offer me a job was from Hawaii, Herbert Choy, was the first Asian-American federal judge and the first Hawaii judge on the Ninth Circuit. I had never been to Hawaii before, but it sounded too good to be true, so I took the job and went out expecting to be there for just for the one year of the clerkship, and at the end of the year, I wasn’t quite ready to come back, so I decided to stay a little longer. I did not expect it to be permanent. Incidentally, the more time I spent there, the more I realized that’s where I wanted to make my home. I did stay in Hawaii after the clerkship, I practiced law for 25 years. When the opportunity came along to put in for the judgeship that I have now, I did so. Anybody who’s a law clerk sort of thinks about being a judge, because you’re doing the function of a judge, giving advice and making recommendations to the actual judge. I didn’t strive for it, frankly if you had asked at the time, I would have thought that the prospect of me becoming a judge in Hawaii would have been pretty slim. I wasn’t from Hawaii, so forth, but I wound up staying, practicing law, getting involved in community activities, and ultimately had the opportunity to raise my hand and put in for the judge that I also got nominated and confirmed for, the one I have now. I wasn’t setting out to be a judge back then, but it’s a great opportunity to be engaged in the community in developing law and making important decisions. I had the opportunity to reach for it, was lucky enough to get it, and I’ve been serving for about 15 years now.
DP: As an appeals court judge, what kind of cases do you hear, and what is something that most people don’t know that goes behind the scenes?
RC: Well, because we here appeals, our court particularly gets two streams of cases, the largest number, which for us is 2/3, for the other appeals courts it’s much larger, consists of appeals from federal district court decisions. Those can take all forms of cases that have been in a federal court, including federal criminal convictions, civil cases that are in federal court, regulatory actions, environmental or antitrust or national labor relations actions. That’s the first portfolio, for our court because of where we are geographically located, the immigration system in this country works so that if you become the subject of a deportation order, which is now formally known as an order of removal, and you’ve worked your way through the executive branch adjudication system, which is under the Department of Justice, you’re still subject to this order of removal, then to seek judicial review you file a petition with the federal court of appeals of your region. And because of where we’re located we get about half of those for the whole country, so that makes up over 30 percent of our caseload is immigration cases. So we get this mixed collection of cases, and we work on them collectively. Appellate judges are powerless by themselves, I can’t do anything without getting at least one other person to agree with me, because almost everything we do is in groups of three judges. Appellate courts embody the wisdom of crowds, that’s the theory of it, collective decision making produces a better result than any one person himself or herself would make. That’s been my experience, my observation.
DP: You were one of the three judges on the Ninth Circuit to hear the appeal from the Trump administration regarding the immigration executive order in February. Could you talk a little bit about how you decided to hear the case? Was it assigned to you?
RC: It’s assigned. The judges have no say in what cases they take on, in this instance, the assignment came because there was a lawsuit filed by the state of Washington, which went to the federal district court in Seattle. The district judge in Seattle issued an injunction…a temporary restraining order, officially, preventing the government from enforcing the first executive order all across the country. The government sought emergency relief from that to the court of appeals, and Washington state is in the Ninth Circuit. A petition for emergency release is referred in the first instance to the Ninth Circuit’s motions panel, and the way we’re organized, we have a different group of three judges assigned to hear motions each month. And that’s set well in advance, sometime last fall, probably last September, we received the assignments for who was going to be on the motions panel for what month through 2017. I happened to be on the February motions panel together with the other two judges who were on the panel with me on this case. I heard lots of other cases that month too, all of them deservedly obscure except for this one. We took whatever motions there were for the month of February, and that’s how I wound up on the panel that dealt with this case.
DP: Could you talk about the legal arguments that were made by both sides, and possibly how you came up with your decision?
RC: I can’t get inside, but I can describe it, and this stuff is all public. There were lots of arguments being made, some based on statute, some based on the Constitution. In the end, the two arguments that obtained the most attention were one that we based our decision on, and a second one that we recognized but we did not base our decision one, we deferred that to the future. The one that we based our decision on had to do with due process, one of the guarantees of the Constitution. It was that some of the people affected by this order had legal rights under the Constitution. You can’t be deprived of these rights [without] due process of law, that is procedurally, the Constitution provides, as the Supreme Court has interpreted for decades, that you have a right to a hearing, which doesn’t necessarily mean oral argument, but you have a right to know what the allegation is and to respond to it. So in this case, there were lawful permanent residents, Greencard holders, who may have been outside the country at that time, or who wanted to be in the country, facing the prospect of not being able to return, with no process given to them to try to challenge or question that decision. There were a number of other categories of people who had potential due process rights, and the order, [which] was drafted very broadly and hastily, provided nothing that spoke to this situation. By the time the case came to us, the administration recognized that there was a problem, and so argued to us, that based on a memorandum by the White House Counsel, lawful permanent residents, green card holders, weren’t going to be covered by this. We said on that, and other issues, that we’re not in a position to redraft the order, there’s nothing that gives the White House Counsel the ability to amend an executive order, so we suggested that the best solution would be for the administration to redraft the order the way they think it should be, basically try again. Although the administration at first, or the President at first, said he was going to take it up further, they elected not to do so. They did not seek a hearing before the Supreme Court, and elected instead to heed to the restraining order and draft a new executive order. The second issue which…we basically discussed in our order, but did not base our decision on, is the focal point of the current argument, regarding the second executive order, that is the allegation that the order discriminates against Muslims. We noted that the argument was before us, that it was a serious concern, but it was not necessary for us to resolve the issue at that time, because we’d already established that there was a due process violation to justify a restraining order. So, we recognized that that argument was teed up, but did not ourselves rule on it. With the revision of the executive order by the administration and the current fights, the one that was adjudicated and resolved in the Fourth Circuit last week and one that’s pending before a different panel of the Ninth Circuit, the focal point, and again there are multiple arguments, appears to be the claim of religious discrimination. But we did not pass on that, we simply noted its existence that it was an argument, but we didn’t have to resolve it. That’s why it’s up for resolution now.
DP: What advice do you have for students interested in law and public service, who may be interested in being a judge? How would you convince them to consider a judgeship instead of being in private practice or a prosecutor?
RC: Well, it’s not an either-or, and that’s one of the beauties of the Anglo-American system. In some countries, the judiciary is a separate career path, that’s not true for us, and most judges have had substantial practical experience before they have the opportunity to become a judge. I think being a judge is a great position, and there may be some people who are activists at heart, but are better suited as practitioners of the causes they feel strongly for. But, for most lawyers, it doesn’t get any better than being a judge. But it’s something you should come to after having some degree of experience, and getting engaged with the community. Local level, state level, national level, but getting engaged is the way to have an impact, and also have opportunities like a judgeship come to you. Somebody who hangs back and doesn’t get engaged, rarely is given an opportunity to go on and have a greater impact. So what I encourage people to do is find activities or causes that are of interest to them, and get themselves engaged in them.