Ruling With Heart & Humor: Senior Judge Charles R. Breyer

In 1997, during my second year of law school, I had clerkship interviews with four federal district judges. Nothing panned out. Obviously, I was pretty disappointed, but this ended up being the single best thing that happened in my career, and one of the best things that ever happened to me in life.

Why? Because the following year, I got on the phone with Matt Nosanchuk to discuss career options. Matt was my mentor when I interned at the U.S. Department of Justice Office of Legal Policy — the office that, among other things, shepherds judicial nominees through the Senate confirmation process. He said, “You should start tracking the Clinton nominees and apply to them as they get confirmed. In particular, there’s a guy I’m working with named Chuck Breyer who will get confirmed soon. He’s a great trial lawyer and a funny, dynamic, incredibly nice guy. That would be an A+ clerkship experience.”

Judge Breyer was indeed confirmed, and I indeed applied. He probably had no choice but to give me the job, since all the top applicants had been taken by the judges who didn’t hire me. As Matt promised, I did indeed get that A+ clerkship experience. Then, thanks to Judge Breyer, I got a chance to clerk for his older brother, Steve, at the U.S. Supreme Court. Later, I had the privilege of practicing before Judge Breyer. And now, for the past 11 years, I’ve had the honor of serving as his colleague, just down the hall in the San Francisco Courthouse.

I guess this gives me a pretty unique window into Judge Breyer, so let me do some sharing.

Rooted in Public Service

Chuck Breyer has the blood of public servants running through his veins. His grandfather was a member of the San Francisco Board of Supervisors. His father, Irving Breyer, spent decades as general counsel for the school district. His mother Anne was active in the League of Women Voters, and his aunt Shirley was a well-known union leader in the Bay Area. Before entering the judiciary, his brother Steve worked on Capitol Hill for Senator Edward Kennedy and spent time at the Justice Department.

Chuck’s late wife, Sydney Goldstein, founded the venerable City Arts & Lectures, which hosts interview programs with writers, artists, critics, scientists, and other cultural figures. Incidentally, the interviews take place in a theater owned by the school district, which the school board recently voted to give a new name: the Sydney Goldstein Theater. That vote took place in the Irving G. Breyer Board Meeting Room.

And the tradition of public service continues: Judge Breyer’s daughter Kate now runs City Arts & Lectures with the same grace and dynamism as her mother. His son Joe is a longtime deputy public defender in Alameda County, California, having inherited his father’s captivating speaking ability and courtroom presence.

As for Judge Breyer himself, his public service career began just after his graduation from Berkeley Law, when he joined the U.S. Army Reserve and worked as a line prosecutor in the San Francisco District Attorney’s Office. He worked there for the first six years of his career, taking dozens of cases to trial, including 17 murder cases. I once tried to get Judge Breyer to brag about his murder trials. He responded, “Trying murder cases is easy, because your star witness isn’t there to be impeached.”

In 1973, Judge Breyer went to Washington, D.C., to join the Watergate Special Prosecution Force, a team of prosecutors tasked with investigating the political scandal that would ultimately lead to President Richard Nixon’s resignation. There, he prosecuted several high-ranking government officials for conspiring to violate the civil rights of Dr. Lewis Fielding. Dr. Fielding was the psychiatrist to Daniel Ellsberg, the former military analyst who famously leaked the Pentagon Papers, a classified report on U.S. involvement in Vietnam. The officials targeted Fielding as part of an effort to discredit Ellsberg, who had been charged under the Espionage Act of 1917.

One of the people Judge Breyer prosecuted was Felipe De Diego, a Cuban exile recruited by G. Gordon Liddy for the White House “Plumbers,” a covert group originally formed to stop government leaks like Ellsberg’s. De Diego and Liddy had worked together during the Bay of Pigs invasion and were brought into the Plumbers’ operations, which eventually included the break-in of Fielding’s office. Eventually De Diego became a cooperating witness, and Judge Breyer got along quite well with him. Imagine the look on Judge Breyer’s face, exactly 50 years later, when my law clerk Alberto told him that Felipe De Diego was his great uncle!

After the Watergate prosecutions wound down, Judge Breyer returned to San Francisco and went into private practice, working at the firm that eventually took the name Coblentz, Cahen, McCabe and Breyer. He primarily did criminal defense work, representing colorful figures like Luther Vandross and Jefferson Airplane’s Grace Slick (the latter of whom was charged with pointing a shotgun at deputy sheriffs in the middle of the night). At the firm, Judge Breyer had a reputation for rewarding associates for their excellent brief writing by telling them they’d earned the right to argue the motion themselves — although he usually delivered this news in the courtroom, minutes before the argument was set to begin.

Even while at the firm, Judge Breyer remained a part of public life. He was president of the San Francisco Juvenile Probation Commission, where he was involved in the city’s decision to shift the focus of the juvenile probation system from punishment to rehabilitation. He served on San Francisco’s Civil Grand Jury — a body of citizens charged with investigating and reporting on the performance of government agencies and the effects of public policies. Judge Breyer was also on the board of the American Civil Liberties Union, although he resigned over his disagreement with the group’s opposition to new jail construction. Having seen the appalling conditions at the old jailhouse in San Francisco, Judge Breyer felt that, in this instance, the group’s aspirational position was an impediment to solving a serious and immediate problem that affected real human beings. This was a harbinger of his approach to judging.

Getting It Done

When Judge Breyer was appointed to the U.S. District Court for the Northern District of California in early 1998, it was natural for people to wonder how “Little Breyer” would compare to “Big Breyer,” who by that time had been on the Supreme Court for a few years. A childhood story helps explain some of their differences.

One weekend, the family was taking the winding journey up the mountain to Lake Tahoe. Steve was driving, having just obtained his license. The car started veering back and forth, at one point almost flying off the road. Their father yelled, “Steve, what are you doing?!?!?” His response was, “I’m thinking.”

Those who clerked for Steve know that this is a parable of how his mind works — ideas swerving back and forth within the wide lane of his brain. It’s reflected in his famous hypotheticals. And it’s the opposite of how Chuck’s mind works. There is no swerving. He is laser-focused on finding solutions to problems and getting to that solution in the most direct, efficient way possible. Steve has the brain you need to be a great appellate judge; Chuck has the brain you need to be a top-notch trial judge.

Once Judge Breyer took the bench, this mindset showed itself early and often. One example from my clerkship involved Sierra Club’s challenge to a plan to build lodging in Yosemite National Park. When the lawyers showed up for the preliminary injunction hearing, he announced in his booming, gleeful voice, “Put away your charts, we’re going to Yosemite!” Judge Breyer saw how difficult it would be to understand, from just an abstract paper record, the potential environmental effects of the construction project. And so we went, spending the day walking around with the lawyers from both sides.

The visit underscored that everything in Yosemite is ecologically interconnected, and that you can’t make a major decision about one part of the park without considering it in the context of the whole. This was not something Sierra Club emphasized in its briefs, but Judge Breyer zeroed in on the issue when we were there. So he issued an opinion to that effect, and instead of appealing, the government pressed the reset button on the process for all of Yosemite’s planning projects, adopting and implementing his approach.

Admittedly, part of what makes that case so memorable is the trip itself (including the fact that there was only one available room at the hotel, which resulted in my sleeping in Judge Breyer’s closet that night). But the case mainly sticks with me for the judge’s practical, common-sense approach to solving important problems. I’ve now done three of my own case-related trips with my clerks over the years. Each time, it greatly enhanced our understanding of the issues. Without the Yosemite experience, I never would have thought of doing such a thing.

Of course, it would be impossible to give a comprehensive list of the contributions Judge Breyer has made in his rulings, but a theme emerges from them. For example, there was his order enjoining the federal government from using mismatched Social Security data to investigate undocumented immigrants and punish their employers, on the ground that the government’s policy was causing irreparable harm to innocent workers and businesses. As with the Yosemite case, rather than appeal, the government issued new regulations to address the concerns articulated in Judge Breyer’s ruling.

Then there was the controversial criminal prosecution of Federal Express for money laundering and drug distribution, where Judge Breyer, skeptical of the government’s theory, ordered that evidence be presented in a sequence that began with the elements of the crime that were most in dispute. This led the government to conclude it could not prove its case and to voluntarily dismiss the charges after just a few days of what was supposed to be a long bench trial.

More recently, there was his handling of pretrial proceedings in the multidistrict litigation (MDL) arising out of Volkswagen’s installation of an emissions control–defeat device in thousands of its diesel vehicles. Understanding that a primary objective was to get these vehicles off the road, Judge Breyer pressed for an early resolution that would allow purchasers of the offending vehicles to trade them back in. In a few short months, Judge Breyer somehow got Volkswagen, the Environmental Protection Agency, the Federal Trade Commission, and the purchasers to reach a settlement. When you look at his body of work, it screams: This judge figures out what needs to get done, and then he gets it done.

Order — and Laughter — in the Court

Of course, all of this is serious business. But almost nothing is too serious to escape Judge Breyer’s devilish humor. Take, for example, the time our district judges were interviewing candidates for a magistrate judge position. Our chief judge suggested that each candidate be asked all the same questions. In the first interview, Judge Breyer asked, “Have you ever killed someone? If so, tell us about it.” After the interview was over, he asked the chief if all the candidates should still get the same questions.

Or take the lawsuit involving a cat whose name was — I kid you not — “F/U.” The cat disappeared in the cargo hold of a passenger flight, and the owner sued the airline. I don’t recall how that case ended or what actually happened to F/U. But what I do recall is that every time there was a status conference in the case (and it seemed like he scheduled one every month), Judge Breyer would instruct the courtroom deputy to call the case first on the calendar, and he would begin by addressing the plaintiff’s lawyer in the same way: “OK, let me see if I can remember the facts of this case. I think it’s about a cat, right? And what was the cat’s name again? Oh yeah! And where is F/U now?” And so on. I once ran into a lawyer at a conference who told me he’d been to three of Judge Breyer’s calendars where he led off by performing this bit, with each performance longer and more entertaining than the last. (As The New York Times and other publications have reported, Judge Breyer’s true dream was to be an actor, not a lawyer.)

Judge Breyer also sometimes uses humor to tackle substantive issues. Consider the Hewlett-Packard case. One problem we face in the courts (and this is no laughing matter) is overbroad sealing motions. These are usually filed by companies that wish to conceal information that the public has every right to know (since, after all, the courts are a public forum paid for by public dollars). While this can be quite frustrating, Judge Breyer struck just the right tone in response to a silly sealing request by the company. Here is his order:

For the following reasons, all pending motions to seal are hereby DENIED.
As an initial matter, [REDACTED]
It has also not escaped the Court’s attention that
[REDACTED]
Moreover, [REDACTED]
[REDACTED]
In that same vein,
[REDACTED]

Just issuing the order made Judge Breyer happy enough. Imagine his utter glee when the lawyers called chambers to ask if they could receive an unredacted copy!

I mentioned that “almost” nothing is too serious for Judge Breyer. The only exception I can think of is criminal cases where a defendant’s rights have been trampled by the government. Indeed, I suspect that there’s only one group of people on earth who don’t have fun talking with or appearing before Judge Breyer: government lawyers trying to defend an unjust conviction.

Once, I was appointed by the Northern District of California to represent a prisoner in a habeas matter, and the case happened to be Judge Breyer’s. It was my first hearing before him, so as you can imagine I prepared countless hours to make sure I’d be ready for any question imaginable. But I didn’t have to answer any questions. I just sat quietly for about an hour as he ripped the government’s argument to shreds — with a fair amount of indignation for good measure. I’ve seen that happen several other times over the years. When the government uses its immense power to commit an injustice, Judge Breyer has no time for jokes.

Called to Serve

As a law clerk and a lawyer, I always understood that Chuck Breyer was a great judge. But it turns out that there’s a difference between being a judge and being a member of the judiciary. Only once I took the bench did I start to appreciate the greatness of his work for the institution.

Let’s start with when the judge took senior status in 2011. Some people say that once a federal judge takes senior status, they’re working “pro bono” because they could retire outright and continue collecting their full salary. You might push back on that, noting that the trappings of a federal judgeship are themselves a form of compensation. But while most senior judges reduce their caseloads, sometimes by as much as 75 percent, Judge Breyer announced that he would somewhat reduce his civil caseload while doubling his criminal caseload, thereby doubling the size of his contribution to the community in the area of law he cares most about.

Not only that. Time and again, when judges from other districts put out the call for help, Judge Breyer responds. When the Southern District of California sought assistance after being inundated with immigration matters, Judge Breyer sat by designation and handled a number of criminal cases there. He volunteered to handle trials in the District of Idaho when it was experiencing a judge shortage, as well as a trial in the District of Hawaii when all the local judges were conflicted off a case. To this day, he regularly travels to Fresno to handle criminal matters for the Eastern District of California, one of the most overworked in the nation. Judge Breyer is not someone who is coasting into retirement; he is someone who can’t help but answer the call to serve the public.

Of course, Judge Breyer didn’t wait for senior status before contributing beyond his own docket. His initial focus in our district — and one that has persisted throughout his tenure — was improving the courthouse experience for attorneys, witnesses, litigants, jurors, and the media. Judge Breyer knew from his time in practice that our courthouses were relatively inhospitable to attorneys, so he led a project to create attorney lounges in our three primary locations.

Knowing too that most people in a courthouse are not particularly happy to be there, Judge Breyer installed educational photography displays that highlight the history of our district. And upon learning that members of the media were having logistical difficulties conducting interviews on site, he took the lead in establishing a media room where members of the press could watch proceedings on closed-circuit television and conduct interviews with attorneys and litigants. This greatly enhanced the ability of the public to learn about matters of significant concern to the community, such as the trial involving the challenge to California’s ban on same-sex marriage.

In 2005, following a vote by all judges in the Ninth Circuit, Judge Breyer was appointed to be the circuit’s district judge representative on the Judicial Conference of the United States. U.S. Supreme Court Chief Justice John Roberts then selected him to serve on the Executive Committee of the Conference. Judge Breyer played a key role in several important initiatives during his time on the Executive Committee. For example, in response to press reports that federal judges were occasionally deciding cases without realizing they had a financial interest in the outcome, Judge Breyer and his colleagues obtained agreement from districts across the country to install conflict-checking software that would prevent these inadvertent lapses.

Judge Breyer’s tenure with the Judicial Conference ended in 2010. The following year, Chief Justice Roberts appointed him to the Judicial Panel on Multidistrict Litigation. As most readers of this publication know, the panel consists of seven federal judges who meet every two months around the country to hear oral argument and decide whether similar cases filed in different districts should be assigned for pretrial purposes to one federal judge. The work performed by the panel ensures that the federal judiciary responds fairly and efficiently to some of our nation’s most complicated and widespread legal disputes.

One reason Judge Breyer was such a good choice for the panel was all the experience he developed in MDLs, having handled so many of them himself. I’ve already mentioned the Volkswagen emissions case. But it’s worth recalling that federal judges are not obligated to preside over MDLs. They’re asked to take them, and they’re free to decline. Judge Breyer has volunteered to take 13 MDLs — more than any other judge in history. This includes a case involving allegations that the anti-inflammatory medications Celebrex and Bextra caused cardiovascular injuries; litigation from the crash of Alaska Airlines Flight 261 off the California coast; litigation involving challenges to an alleged conspiracy by airlines to fix prices on international flights; and his current matter, where plaintiffs seek to hold Uber respon-sible for sexual assaults committed by its drivers.

And in 2013, President Barack Obama appointed Judge Breyer to be a member of the United States Sentencing Commission. As with the MDL panel, Judge Breyer brought his considerable practical experience to bear. He helped ensure that the commission’s policy decisions were informed by practical realities and current sentencing practices. After serving as vice chair during his first term, he was renominated by President Donald Trump and confirmed by the Senate for a second. During a portion of that term, he was the only sitting member of the commission. Although he often cracked jokes about being “the commission,” underneath he was quite frustrated at the lack of a quorum necessary to do the body’s important work.

A Lasting Legacy

If you’re like me, you’re exhausted just from reading this. Imagine actually doing it all. The judiciary, and the public as a whole, owe a tremendous debt to Judge Breyer — both for the service he’s performed and the joie de vivre with which he’s done it. Those of us whose careers and lives have become intertwined with his are especially fortunate.

And don’t worry, he’s not going anywhere. At 83, Judge Breyer is showing no signs of slowing down. Indeed, he just told the parties in his Uber MDL that he’d be happy to try bellwether cases all around the country if it would be helpful to them and to the judiciary. Who knows whether the parties were thrilled or mortified by this announcement, but I can promise you three things about those trials: Justice will be done, it will happen swiftly, and plenty of fun will be had in the process.

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Vince Chhabria was appointed as a judge on the U.S. District Court for the Northern District of California in 2014, after serving about 10 years in the San Francisco City Attorney’s Office. He clerked for Judge Breyer during the 1998–99 term. Chhabria also clerked for Judge James Browning at the U.S. Court of Appeals for the Ninth Circuit and Justice Stephen Breyer at the U.S. Supreme Court.

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1. Kate Galbraith, Volkswagen Case Gives Judge, Onetime Aspiring Actor, Role of a Lifetime, N.Y. Times, Apr. 19, 2016, https://www.nytimes.com/2016/04/20/business/volkswagen-california-judge-charles-breyer.html.