Ricardo M. Urbina Interview 6

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ORAL HISTORY OF THE HONORABLE RICARDO M. URBINA
SIXTH INTERVIEW
28 NOVEMBER 2011
This is the sixth interview of the oral history of U.S. District Judge Ricardo Urbina as
part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The
interviewer is Gene Granof. The interview took place in the chambers of Judge Urbina at the
United States Courthouse in the District of Columbia on Monday, November 28, 2011 at 1:00
p.m.
Mr. Granof: Judge, on November 2nd you were honored in connection with the District’s
Hispanic Month?
Judge Urbina: Yes, I was. The Hispanic festivities last for about a month. It’s kind of like the
Hispanic recognition, and it’s all over the country, not just in the District of
Columbia.
Mr. Granof: And, in fact, it was a very nice ceremony. But, in addition, you made an
announcement.
Judge Urbina: Yes, I did. I announced that at some point early in 2012, probably by May, that I
will be taking full retirement.
Mr. Granof: And why did you decide to do that?
Judge Urbina: Well, I’ve been on senior status now for close to a year, and I thought that I would
experiment with senior status to see if it would create enough room in my life to
get some other things done. But although the case load has sharply decreased
because I’m not taking new cases, the intensity of the job requires a lot of focus
and attention even when I’m not in the courthouse, consequently cutting in on the
very thing that I want to create more of, which is time. I decided that I wanted to
spend more time with my grandson and my wife, and that I want to take some
creative writing courses and try my hand at something else.
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Mr. Granof: Creative writing? Where would you do that? I know that DC offers a program,
various universities around DC.
Judge Urbina: Various universities in DC and Virginia. The premier writing schools, I think, are
in Boston, and I believe my wife told me there are some in the Midwest that are
absolutely exceptional. But I think I would start small. I have had an idea for a
book for quite some time, some science fiction. And I think I’d start small and
see how things actually play out in terms of time and feeling gratified by the
experience of writing. I may also do, in addition to that, some mediation.
Mr. Granof: Now between the Superior Court and the federal bench, you’ve been a judge in
public service for how many years? Thirty something?
Judge Urbina: Yes. In April, it will be thirty-one.
Mr. Granof: So, that’s a good long time of service. And lest anybody think that you’re not
young at heart, I found out that you recently made a purchase of a vehicle that
perhaps you could tell us about.
Judge Urbina: Actually, I rode it into work today. It’s a 1300cc motorcycle. It’s my fifth
motorcycle. This is the second of two motorcycles I’ve bought in the last three
years, having sold the first one. The first day I was backing into my parking
space, which is right next to the Chief Judge’s parking space, as he’s pulling his
town car into the space parallel to where I’m parking. Judge Lamberth just
couldn’t take his eyes off the motorcycle. He was just transfixed by the
motorcycle, even though I tried to get his attention. Anyway, he got out of the
car, and without even looking at me walked over to the motorcycle and he looked
at it, and he looked at it, and he said, “Ric, tell me this isn’t yours.” So I said,
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“Yeah, it’s mine.” But I’ve always enjoyed motorcycle riding. And I found out,
quite inadvertently, that there are several judges — federal and state court judges —
that have the same hobby.
Mr. Granof: So tell me what color it is.
Judge Urbina: It’s a beautiful deep, almost plum red with a lot of chrome. So it’s a clean
machine. It’s a brand new model. The other bike I had was a 2004 model. This
one’s a cruiser, which means it’s not a speed bike; it’s one that you might use if
you were going to go on a long trip.
Mr. Granof: And do you plan on taking it on long trips?
Judge Urbina: Well, I plan on taking it on trips. I haven’t worked up the courage to take a real
long trip because I need to find a companion who would go with me. But I would
like — when the time is right and my back is comfortable because I’m still just a
year out from having back surgery — but when I’m totally comfortable, yes, I do
plan on taking some trips. And Judge Rankin — Edwin Rankin from across the
street — he also rides. One of my judge friends from the West Coast rides a lot.
And a good friend of Judge Robertson rides, and has ridden across the country,
back and forth several times on his motorcycle.
Mr. Granof: I know, for example, just in Montgomery County there are parts of it that are
more rural. Terrific areas. You know, two lane roads to ride.
Judge Urbina: Right. They have beautiful places in this vicinity.
Mr. Granof: But you get a medal for courage for riding that in the District.
Judge Urbina: Well, I’m very careful. I took a course put on by the National Foundation for
Motorcycle Safety. It’s a nationally accredited course. It’s like boot camp. And
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in the span of about two-and-a-half days you put in eight hours a day, so that’s
maybe sixteen hours and a little more. You take written course work, and then
there’s an obstacle course where you learn how to ride your motorcycle under
conditions that are created by the instructor. And if you pass this course, and not
everyone does, all 50 states recognize it as an entry to get your motorcycle
license. So, if you pass this, you don’t have to take the state test. And you get
your motorcycle license automatically.
Mr. Granof: I have no doubt that you’re probably very careful as a rider, and I think maybe
most motorcycle riders are careful. But the concern is other drivers who are not
paying as much attention or misjudge the stopping distances, or make a turn
without looking to see there’s a motorcycle on their right.
Judge Urbina: Yes, it is a concern, and that’s one of the things they teach you is that drivers of
automobiles don’t see you because their eyes are not trained to look for you. So
there are a number of things that motorcycle riders are instructed to do. For
example, not to ride in the middle of the lane behind other cars, but try to ride
more to the left or more to the right so that their rear view mirrors can plainly see
you. To have at least two seconds of stopping time. That is to say if the car in
front of you passes a certain point, there should be at least two seconds of time by
the time you reach that point. And all of that plus a lot of other kinds of
interesting and pragmatic rules for safety have made me a much more careful
driver of my automobile. I’m much more vigilant now because I don’t want to be
one of those people that don’t see motorcycles. You know, sometimes people
will turn, and that’s the biggest cause of motorcycle accidents. They make a left
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turn in front of a motorcycle because they didn’t see it. So I try to make sure that
while I’m driving my car I’m very careful, and then, of course, when I’m driving
my motorcycle I’m especially careful.
Mr. Granof: Well, you know, included in this oral history is a section at the end for pictures.
And we’ve got to get a picture of you on that motorcycle or with the motorcycle
just to show you really are youthful.
Judge Urbina: Thank you.
Mr. Granof: One other question. I asked your wife if she’s going to ride with you, and I think
her answer was something like, “no way.”
Judge Urbina: That’s correct. She’s quite adamant and unswerving in her resolve not to ride on
the back of the motorcycle.
Mr. Granof: Last time I think we got through your tenure at the Superior Court. I don’t know
if there’s anything that we didn’t cover, any case that you want to mention or any
other matter.
Judge Urbina: I think we covered the cases.
Mr. Granof: So, is there anything else about Superior Court? I know we covered a lot, so this
is just a wrap-up question on that.
Judge Urbina: Only to say that that experience was one of the finest experiences I think anyone
could have at that stage of their life. The judges over there — certainly at that time
— were extraordinarily motivated. Very highly motivated to do the right thing
whether they were sitting in the family division or whether they were sitting in the
criminal division or wherever they were sitting. It was especially evident in
seeing how they related to children and how hard they worked to try to get other
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agencies to meet the needs of children. Also, these were some of the smartest
human beings I’ve ever been around. They were just absolutely, spectacularly
intelligent people. And even though you have 60 or more judges — now it’s even
higher — you’re going to run into people with different personalities and different
egos and so forth. But I have to say this, any judge, even if he was calling
someone who perhaps did not necessarily associate with this judge for one reason
or the other, any judge could call any other judge at any time and that judge
would drop what he’s doing or she’s doing, go to chambers, and answer questions
related to a particular situation that the calling judge was involved in.
Mr. Granof: So it was a collegial relationship?
Judge Urbina: Very collegial relationship. Very collegial relationship. I mean I couldn’t be
prouder. I don’t think I could be prouder of belonging to a group of judges than I
am, knowing that I was there for thirteen years. It’s just wonderful.
Mr. Granof: What’s interesting to me, after talking with both Judge Henry Kennedy and with
you — I know Judge Kennedy spent a fair amount of time on the Superior Court —
is that the Superior Court doesn’t get a lot of press. At least, I don’t think the
public is conscious of what the Superior Court judges really do, and how good
they are.
Judge Urbina: I think you’re probably right. Maybe that’s a good thing. I don’t know. The flip
side of that is I’m always a little bit put off by reading a newspaper article that
identifies the judge by whom he or she was appointed. If a newspaper article
says, “so and so appointed by” you know that the article is going to be
unfavorable. Because they’re kind of building up a critique, a base for a critique
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— this is my opinion. So, if in the old days I did something that maybe the press
didn’t like they would say, “and Ricardo Urbina, appointed by President Reagan.”
I do think those Superior Court judges deserve a lot of credit. I mean the
judges over here get a lot of attention because this is a federal court and obviously
we deal with federal issues, and they are presented in the media. But those
Superior Court judges work so hard. They work so hard. I used to get into work
at five o’clock in the morning. And I don’t want to talk about myself, but just as
an example. I got into work at five o’clock in the morning almost every day and
the Chief Judge was already there.
A judge might come in on a particular day, he has a murder trial, she has
an assault trial, and before they can even get the jury into the room on that, they
may have to deal with a child abuse and neglect situation. When the time came
that a decision had to be made as to whether or not all the abuse and neglect cases
should be taken away from the judges who had presided over them for many,
many years and put into a family court, every single judge objected even though it
was going to make their life easier. Every single judge, because they wanted to
oversee those kids. They wanted to personally ensure that their directives with
respect to DC Public Schools, with respect to the various other agencies that were
involved, would be followed. And they had developed relationships with these
kids. I know I did. I know everyone else did. Relationship meaning you had
seen them go from bad to worse, or from bad to worse to better. Sometimes you
saw them first in the juvenile justice system, then you saw them in the adult
system. You know you got a chance in the juvenile justice system to see the
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factors that were adversely affecting them — the father was a drug addict, the
mother was a prostitute. You know, that’s not every case, but just as an example,
because many of these kids came from homes where the parents or parent were
really doing the best they could, which wasn’t enough because of the environment
that they were in. That’s why I say that I will always speak well of the Superior
Court and the former Superior Court judges with whom I now serve on this Court:
Henry Kennedy, Gladys Kessler, Colleen Kolar-Kotelly, Emmet Sullivan are
perfect examples of what I’m talking about. One thing that supports this is that
the litigants and the lawyers and the jurors all seem to come away with a decent
respect for the Superior Court. I’ve not heard negative comments, and maybe
that’s the most that could be expected because a lot of people aren’t going to be
happy.
Mr. Granof: Aren’t happy to be on the jury?
Judge Urbina: Yes, they’re not happy to be there, so when they get there almost everybody feels
inconvenienced. Some people just feel entitled not to be there, but almost
everybody feels inconvenienced. So that’s their starting point. And to get from
that point to ending the experience without verbalized, negative observations, I
think that means a lot. And I can tell you that the Court evolved — in my presence
those thirteen years — in a very important way. There were judges on that Court,
myself included, who did things to open the courthouse up to the community.
And they still do that because it created a precedent. There’s a particular time
period during the month of October during which the public is invited to come in.
The Spanish speaking community is invited to come in. There are lectures, things
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that aren’t necessarily related to an actual court proceeding. The judges took very
careful heed of instructions and directives we got from the National Judicial
Council about trying to make jurors happier. Not taking them for granted. Not
doing things that create an unpleasant feeling such as have them line up in the hall
for an hour before you let them come into the room. So as a judge I can say we
had to be confronted with these things because when we’re getting ready for trial,
you know, we’re thinking about the case, we’re thinking about the lawyers, and
we may not be paying as much attention to the jury and their needs. So I’ve
carried that forward, and I know that the other judges here have. I know that the
judges over in in Superior Court have done so as well, although their situation in
the Superior Court is much, much more crowded than it is here. You’ve got six or
seven thousand people going through their courthouse every day. You could
shoot a cannon down the hall here and never hit anybody. Not a person. But my
point is that those judges in Superior Court were, as I said, not only intelligent and
dedicated, but they were sensitive and anxious to really meet the needs of the
community.
Mr. Granof: I know Montgomery County in Maryland has this one day or one trial. And I
don’t know whether the District had a similar policy.
Judge Urbina: The District still does. I voted for it when it was first mentioned because it has
obvious appeal. When jurors come to court, they know they’re going to be there
for one day, they’re not going to have to wait for a whole week. Or they’re going
to be there for one trial, which means for the duration of one trial. But the
problem with the system is it uses up too many jurors too quickly. And we have a
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very small jury pool. All the jurors have to come from within the borders of the
District of Columbia.
Mr. Granof: So that’s a population of 556,000?
Judge Urbina: Yes. It was less in the past because there wasn’t the influx that we now have.
And the system for calling those jurors in was defective in that some people were
being called twice, and some people weren’t called at all. To this day I still meet
occasionally a person who says, “I’ve lived in the District for thirty years and I’ve
never been called for jury duty.” So, yes, judges as administrators, we try — I
think successfully — to do things to make it better for jurors. I started — I like to
think I started — a tradition of feeding the jurors in the morning. So, when I had a
trial, I would stop off at the Giant Food, right there on Eighth Street, and I bought
donuts and bagels and juice. Mostly unhealthy stuff. But something I knew
people would like in the morning, and I brought it in. And so I would tell the
jurors, “Ladies and gentlemen, come a little early, have a little beverage.” It also
cut down on mistrials because when people break bread together, they learn to
respect one another and they learn to get along.
Mr. Granof: That’s an interesting thought.
Judge Urbina: Yes, it’s a dynamic that I observed. For the longest time I’d come in, I would
peek in in the morning to say good morning, and everybody would be there with
the newspaper in front of their faces. Nobody’s talking. Because, you know, we
had told them, “Don’t talk about the case, don’t talk about the case, don’t talk
about the case.” So I guess they figured, “We shouldn’t talk about anything.”
But I would tell them, “You can talk about whatever you want, just don’t talk
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about the case. You can have juice.” So, when we got here, Judge Walton —
who’s another one of the people from across the street — and I were, I think, two
of the people right from the start, and then eventually others did it. Almost
everyone. We found out that there was a special budget at the AO’s office just for
that, so we didn’t have to use our money. And every day — and I start a trial on
Friday — every morning they came in and there was juice, there was coffee, there
were bagels, there was fruit. And they could munch on that all morning long,
which is good, especially for people with diabetes who need to have something to
eat every few hours..
Mr. Granof: Absolutely. Have you ever served on a jury?
Judge Urbina: No. I’ll tell you this. It’s a true story. About five years ago I got called for jury
duty, and went over to the Superior Court. The law says I am ineligible to serve
on a jury in this court. So I went over to the Superior Court and, of course, I was
still in the memory of many of the people there. The lawyers there, many of them
practice here. And, of course, many of those judges I’ve known for a long time.
So I actually got out of the large auditorium hall and into a courtroom. So that
meant I was now officially in the group that was going to be examined. So, I
come into the courtroom, I sit down in the audience, and I look over and see three
lawyers. And I look at the defendants and the next thing you know they’re
putting us in the jury box and they’re going through a system of striking. And the
judge looks over — it was Judge Geoff Alprin — the judge looks over, totally
straight-faced and he says, “Mr. Urbina.” I went to the bench and he says, “You
say you are familiar with court proceedings?” I say, “Yes I am, your Honor.”
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He says, “and how might that be?” And I say, “Well, sir, I was a judge on this
court for a long period of time.” And he says, “Well, do you recognize any of the
people here?” And I said, “Yes sir, I recognize Mr. So-and-so and Mrs. So-andso.”
I said, “By the way, what are the charges?” He said, “Assault with intent to
kill,” and so forth. And the lawyers are looking because they know this must be
a charade because they know we know each other. I’m pretty sure. And so he
says, “Do you recognize anybody else?” I said, “Well, actually, I recognize two
of the defendants.” He said, “Well, how do you know them?” I said, “Well, that
gentlemen there was on probation to me for an assault charge several years ago,
and that gentlemen right there I sentenced him shortly before going across the
street to the federal court.” So, with a totally straight face Judge Alprin said, “Do
you think that that might affect your ability to be fair in judgment?” I said,
“Absolutely not.” Well, the lawyers went crazy. This one lawyer gulped so
violently that his necktie literally jumped. And he wanted to say something, but
he didn’t want to offend me. Anyway, but Geoff Alprin, he was just perfect. So I
went back and sat down, and they actually didn’t strike me right away. I actually
got to a point where I said, “Well, maybe I’m going to make it,” although I didn’t.
But I know judges who have been jurors. Judge Mott, for example, has been a
juror. And when I was there sitting in Superior Court one of the judges on the
Court of Appeals was on one of my juries. So, it happens.
Mr. Granof: That’s interesting as to whether or not a judge coming into the jury room sitting as
a juror would have far more influence than a regular juror.
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Judge Urbina: Of course, the jury doesn’t know you’re a judge. And I think judges would bend
over backwards to make sure that the jury never finds out. I know with Judge
Mott, for example, the trial was in the courtroom directly next to his courtroom,
and when they were on recess, he would sneak out and go next door to his own
office to get his messages and so forth, and then sneak back in to make sure
nobody saw him. But I think judges, and even lawyers, in most instances, would
go out of their way not to unduly influence.
Mr. Granof: I think that’s true. But just in ordinary conversation in breaks jurors might ask
one another, “Well, what do you do?”
Judge Urbina: Yes, that’s true, and you don’t want to lie. But there is a role for a lawyer. I think
the lawyer, the architect, the medical tech, there are a number of professions in
which the thinking is very organized, and the professionals are naturally inclined
to know how to organize things — evidence, materials, data. And so there’s a role
for a person like that in a jury.
Jury selection is going to be interesting for me over the next few months
because the Court has set trial for this Friday. It’s a Title VII case. But then on
February 3rd I start this homicide trial. And I’ve asked the jury office to please
select jurors that say from the get-go that they’re available to serve for six weeks
to two months. Hopefully, that will eliminate a lot of the back and forth, and the
hemming and hawing and lying to the judge about commitments. You know, if
you have a group that says, “OK, fine. I’m available for six weeks, two months,”
then we can start eliminating jurors. From that point I think it’ll be easier.
Mr. Granof: What kind of a case is it? I know you said it’s murder.
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Judge Urbina: It’s the killing of a confidential informant, a federal witness, who was a drug
dealer, but who was working for the government to get evidence against the
defendant. The government alleges — that part is clear, it’s uncontested — that the
defendant had his girlfriend, who is also charged, seduce this guy and bring him
to a particular place so he could kill him, which happened. And this is all public
information. The girlfriend said, “I never knew he was going to kill him. I
thought they were going to have a confrontation, he was going to intimidate him.
I had no idea he was going to kill him.” The defendant has announced, through
his counsel, that he wasn’t there. Now, unfortunately for the defendant, his sister
and his girlfriend, as well as other family members, were found to be suborning
perjury by trying to create a scenario to back up the defendant’s story. So they’re
also charged, but they are not going to be tried in this Court at the same time.
Mr. Granof: Why would this take two months? That seems like a long time.
Judge Urbina: I’ll tell you why. There’s no eye witnesses, at least none that I know of. The
entirety of the government’s case is circumstantial, and sometimes circumstantial
evidence is even more persuasive than direct evidence. But in this case they’re
going to use cell towers all over the city to triangulate as to where people were at
particular times. The girlfriend — and this is uncontested — made three hundred
phone calls to the deceased over a short period of time, which supports the
government’s theory that she was in the process of seducing him. And she made
one-hundred fifty to her boyfriend. So they’re going to triangulate and try to use
the science of it. The defendant’s not conceding anything. So there’s going to be
a lot of experts that come in, and I think that’s why it’s going to take so long.
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Mr. Granof: And I assume the government thinks this is an important case in the
administration of justice.
Judge Urbina: Oh, yes. In fact, they took the easy way. They didn’t charge him with murder,
they charged him with obstruction of justice by committing murder. So this case
was a capital case when it first came in. And it was only a few months ago that
the Attorney General said, “No, we’re taking the death penalty off the table.”
But, yes, the government says this is not to be tolerated. You cannot have the
government asking people to help it, and then having them murdered. As far as
the government is concerned, this deserves the maximum response. So, that’s
what they’re doing.
Mr. Granof: I can understand it. Well, how did you get from the Superior Court to the federal
bench?
Judge Urbina: Well, interestingly enough, during the Bush I administration, at the end of that
term there were several vacancies here which the first President Bush did not fill.
As a consequence, President Clinton gave Eleanor Holmes Norton —
Congresswoman Norton — a kind of senatorial privilege, just like a senator might
have, to compile a list, collect candidates, have them interviewed, and have the
chair of a committee reviewing the candidates for her write a report and send it to
her. I think there were three names for each vacancy. And then she would decide
who she was going to send to the White House. And when I learned that this was
going to happen, surreptitiously, my mentor, Judge Pryor, saw me in the parking
lot, I’d say a few months before this process had started.
Mr. Granof: And Judge Pryor was on the federal bench?
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Judge Urbina: Judge Pryor was the Chief Judge of the Court of Appeals across the street.
Mr. Granof: The DC Court of Appeals?
Judge Urbina: The District of Columbia Court of Appeals. And we had been friends for a very
long time. We used to run together, and his best friend was my son’s mentor. So
there was a connection there. Anyway, he saw me in the parking lot one day and
he said, “Ric, have you thought at all about going across the street.” And I said,
“Well, the thought has come to my mind.” He says, “You really should think
about it, and think about it soon because you’ve gotten to the point where if you
don’t move soon, you’re not going to be able to move.” So I thought about it
overnight, and I thought about it the next day, and then I found out what the
procedures were — it’s a big thick application — and I went forward from there.
Mr. Granof: I assume you submitted the application to Eleanor Holmes Norton?
Judge Urbina: To the Commission. The Federal Judicial Nominating Commission. There’s two
nominating commissions, the DC Nominations Commission for the Superior
Court and DC Court of Appeals, and the U.S. Commission for the District of
Columbia District Court. They don’t do anything with respect to the U.S. Court
of Appeals.
Mr. Granof: So you submit an application, and where does Congresswoman Norton come in
on that?
Judge Urbina: The Committee calls you in. Seventeen members or more. They ask you
questions. One or two of them have been assigned to go through your application
with a fine tooth comb so that they can ask you really pointed questions when
you’re in there. And when I got in there, the interview went very well.
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Mr. Granof: What do they ask you?
Judge Urbina: Some of the questions you might expect, such as why do you want to be a federal
judge, and how do you sustain an attitude of objectivity, especially in cases where
there’s an aspect to them that pulls at you. And, of course, I had all those
experiences in Superior Court. And fortunately, that day — because some days
I’m just totally inarticulate — but that day I was able to articulate my thought
process, and they were impressed by that.
Mr. Granof: What did you say when they asked, “Why do you want to be a federal judge?”
Judge Urbina: I said in plain English that I had at that point been a judge for twelve years or so,
and that I thought I was pretty good at it. Also, that I really liked it. And that I
was at the stage of my life where I was no longer a kid, but I’m not an old man,
and I thought that I had enough energy and by this point in time enough wisdom
to move to another position where I could do the community even more good.
Mr. Granof: And obviously the members of the Commission thought it was a good answer.
Judge Urbina: Now that the process is over and I look back, I suspect that the President, but
more specifically, that Norton — and even more specifically, members of that
Commission — wanted a Latino to go up because there never had been one. So
that made some sense.
Mr. Granof: Were there a lot of applicants, do you know?
Judge Urbina: There were a lot of applicants because there were six or seven openings. And this
Court was in dire straits at that time because during the Bush era Jay Stephens
was the United States Attorney, and he brought every crack cocaine case in the
District of Columbia to this Court. No matter how small the amount. Why did he
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want it here? Sentencing guidelines. Stiffer penalties. So as a result of that, the
judges that were here, and there were six or seven vacancies, had not tried a civil
case, some of them for three or four years, because they had to try one criminal
case after another criminal case because of the speedy trial rules. And they were
just livid with the experience of not being able to try cases or have some variety to
them. So when we came aboard, they were just as happy as they could be because
they unloaded — very fairly I might say because Judge Lamberth is the one that
devised the process of how the new judges would get the cases — they unloaded
the cases, and they had a lot of cases because they couldn’t try the civil cases. I
had a calendar of three-hundred eighty cases, and then they redistributed stuff.
And next thing you know, we were trying cases and things were beginning to
level off.
Mr. Granof: I can understand a federal judge thinking, “I didn’t go on the federal bench just to
deal with crack cocaine issues.”
Judge Urbina: That’s right. And not have any discretion in the sentencing department to boot.
Because the sentencing guidelines were mandatory in those days, and they
required stiff sentences. They were severe. Now, with all due fairness, although
there were glaring examples of unfairness by requiring judges to impose
sentences within the guidelines, there were many examples where the guidelines
were right on the money, where the penalties they dictated were appropriate.
And, personally, I was all for the notion of not having one judge give a person
probation for the very same offense that another judge gives a person ten years,
because that disparity in sentencing doesn’t look fair, and it probably isn’t fair.
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Mr. Granof: And it leads to judge shopping.
Judge Urbina: Exactly. When possible. But, of course, as we all know, three or four years ago –
– maybe a little more, yes, five years ago — the Supreme Court made the
guidelines advisory instead of mandatory; it was mandatory that they be
consulted, but not mandatorily applied. But anyway, getting back to it, that’s
what happened and things worked their way forward from there.
Mr. Granof: So the Judicial Nominating Commission chooses how many?
Judge Urbina: In that era, three for every vacancy.
Mr. Granof: So they do have a lot of people applying. And what’s the next step?
Judge Urbina: Then it goes to Congresswoman Norton. I think the very next step, although it
was never visible to us, is that they did a check. Of course, the Congresswoman
would not want to nominate somebody who’s going to run into problems with the
FBI at this stage. So they hold the names close to the chest. She selects the ones
that she thinks should go, and they do a preliminary background check. I think
the FBI may be involved. And when it looks like a candidate is viable, then the
Congresswoman would announce who she was selecting, and then the White
House comes in and begins to vet the candidate.
Mr. Granof: So, out of the three for each vacancy she selects one?
Judge Urbina: One. She may send all three names, but she specifically emphasizes her
preference. This is what I’ve heard.
Mr. Granof: Were you interviewed by her?
Judge Urbina: Oh, yes. Every person whose name went forward was interviewed by her.
Mr. Granof: Had you known her before?
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Judge Urbina: Not really. I had met her several times, but we never had much of a chance to
talk. But that particular day, when I went to her office on the Hill, there was a lot
of construction going on right outside her window. So we could barely hear each
other . But it was very cordial and pleasant, and I thought productive. Some of
the questions she asked were predictable, and other questions were not exactly
what I would have expected. I don’t remember exactly what they were, but I
remember I didn’t get thrown.
Mr. Granof: How long did the interview last?
Judge Urbina: With her?
Mr. Granof: Yes.
Judge Urbina: Oh, half an hour at most.
Mr. Granof: But half an hour among twenty-one or so, or eighteen to twenty-one potential
nominees, that’s a lot of time.
Judge Urbina: Well, she worked very hard to come up with her recommendations. It was a
golden opportunity because there were so many vacancies. She worked very
hard, and that Judicial Nominating Commission worked very hard. All these
people had full time jobs and none of them got paid to do this. So they had to
really restructure their schedules.
Mr. Granof: And when did you learn that you were her choice, at least for one of the
vacancies?
Judge Urbina: I was sworn in in July. I think I heard in March or April. Maybe a little before
that. And then, once she designates you and the President nominates you, then,
as everybody knows, you have to go before the Senate.
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Mr. Granof: March or April of?
Judge Urbina: Nineteen Ninety-Four.
Mr. Granof: Nineteen Ninety-Four. And I guess that’s before the ’94 congressional elections?
Judge Urbina: Right.
Mr. Granof: So, did you get a call from the White House or from Congresswoman Norton’s
office?
Judge Urbina: You mean when I was confirmed?
Mr. Granof: No, at the stage where they say, “The President is going to nominate you.”
Judge Urbina: Yes, I got a call from Congresswoman Norton.
Mr. Granof: That said the President’s going to nominate you?
Judge Urbina: Yes. She said, “I’ve advanced your name to the President, and it’s my
understanding that he’s going to nominate you. You’ll be hearing from
representatives of the White House for the next phase of preparation.”
Mr. Granof: After she submitted your name, as well as others, did you hear from anybody at
the White House or the Justice Department who said, “We’d like to talk to you
too?”
Judge Urbina: Yes. I think all of us were called in for an interview at the White House, and I
know this for a fact — I didn’t remember it until you mentioned it — at the White
House there was the counsel, deputy counsel, and some of the higher-ups in the
White House structure. Not the President. And they knew everything. They
knew the answers to everything they were asking because there was already that
much paperwork in their hand. But I think they just wanted to get a sense, “Is this
person presentable, does he strike me as being a little crazy?” You know,
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“What’s this person like? Is he articulate? Is he going to embarrass us in some
way?” That’s what I think that was for. I think it was mine to lose at that point.
Mr. Granof: How long did that kind of interview last?
Judge Urbina: Forty-five minutes. And then there was a lot of preparation for the Senate
hearing, and then the hearing happened.
Mr. Granof: And what’s the preparation like? So you go to the White House, and you’re
interviewed. And at some point the White House tells you the President is going
to submit your name.
Judge Urbina: Yes, and then they try to give you some feel for when it might happen, when the
name is going to be advanced. And then you hear from a representative of the
Senate Judiciary Committee. They call you in for a brief interview, and that brief
interview is one of the things that the White House people prepare you for. It’s
interesting, because now as I’m thinking about it things are beginning to surface
again. The Department of Justice plays a very significant role in this. In fact, the
vetters were often from the Department of Justice. So once the White House says
you’re good to go, the vetters come in from the Department of Justice. And they
have everything in front of them. And they’ll ask you a question, “What about
this case? Why did you do this here? What was your thinking on this, and what
was your thinking on that?” I was a little bit worried at that time because, at the
end of the Bush Administration, there was a very loud uproar about judges
deciding matters that should not be decided by the judiciary. And an example of
this was what they called judges running prisons, judges running mental
institutions, and so forth. Now at that time, I was the presiding judge of the Jerry
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M. case, which I had previously talked about. As you may recall, the Jerry M.
case involved the juvenile facilities in the District, and the City was sued by the
Public Defender and others for inadequate educational and rehabilitation
opportunities as well as housing at Oak Hill and, I think, Cedar Knoll. This gave
me a little bit of concern for a split second, but you do the right things because
you do the right things. But, you know, thoughts do creep into your mind. And I
thought, “I’ve been running for all intents and purposes the juvenile facilities now
for about six years. I have held the City in contempt. I have required the City to
pay enormous fines for not doing things on time.” So, I said to myself, “Well, is
this going to be an issue because legislators don’t like judges running institutions
in the Executive Branch, albeit the Executive Branch of the City?” But it never
came up.
Mr. Granof: It strikes me that in the seventeen years since your Senate confirmation hearing,
here we are today and nothing has changed. The legislature, if anything, has
gotten even more concerned about supposedly “activist” judges.
Judge Urbina: Yes. And that was one of the questions that they prepared me for, “activist”
judges. Actually, it would be too difficult to be an “activist “judge. You have
the law. That’s why we have the law, so that a judge is bound to apply it. I think
most of us believe that. But what people don’t generally understand, even many
lawyers don’t understand, is that especially in the federal system there are so
many gaps. The Court of Appeals — and this is a very small jurisdiction so to
speak — but the Court of Appeals used to be and probably still is just an
extraordinary decision-making body. They churn out decisions and decisions and
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decisions. You’ve got about sixteen trial judges plus senior judges, and they’re
trying cases and cases. So the body of law is pretty well developed, albeit
common law or criminal law, whatever. Domestic law. When you get into the
federal system, you have law that covers the entire country. And even though
you’re working out of a specific district, there often are situations that have no
precedent, and maybe another jurisdiction has decided a similar issue. But
circuits don’t agree on everything. I mean you may find different interpretations.
That’s why it goes to the Supreme Court so often. The Fifth Circuit says one
thing, the First Circuit says another, and the DC Circuit says another. So I think
the perception that judges are kind of insinuating themselves into situations has
more to do with the judges’ duty to exercise discretion when there is no clear-cut
precedent to follow.
Mr. Granof: Well, the notion that being a judge is simply a matter of engineering, like
measuring, or applying a T-square — if that were the case you wouldn’t need the
kind of people that we select to be judges. You want them to be smart, you want
them to have good judgment in the first place.
Judge Urbina: Right. And that’s why, incidentally, why so many judges, whatever their politics,
were so offended by the sentencing guidelines. I mean why do you go through all
of this trouble to pick people of integrity, wisdom and experience, and then tell
them you can’t use your judgment, you do what this chart says. I think that’s why
so many judges railed at the mandatory sentencing requirements.
Mr. Granof: I can understand that. It produces results which the judge and maybe many
independent observers would say are unjust.
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Judge Urbina: Correct. That is correct.
Mr. Granof: As I understand it, there’s an office in the Justice Department which is
responsible for this process, getting judges confirmed?
Judge Urbina: That’s right. And the people there were just tremendous. I think there were two
women and one man, but they knew everything in that file, and probably more.
And they knew everything about the members of the Committee and who might
raise a ruckus. They had already tested the waters. My situation was a little bit
out of the ordinary in that there was a whole block in Congress that was already
supporting me: the Congressional Hispanic Caucus. A whole block of Congress.
And the Black Caucus was also supporting me.
Mr. Granof: And who got you that support? I take it you didn’t go calling?
Judge Urbina: No, I couldn’t, but I had some very strong Republican supporters, lawyers who
are partners at Akin, Gump. One in particular who works both sides of the aisle.
You know Akin, Gump has a very powerful Democratic side and Republican side.
In the Latino community there were plenty of good lawyers. Many of them who
were my former law clerks were there, and they were savvy and had influence on
the Hill now with the Congressional Hispanic Caucus. I had been a member of
the Black Bar, the National Bar Association, and the Washington Bar for a very
long time. That’s one of the first organizations I had gone to when I wanted to be
a Superior Court judge. So in my duality as a Latino and also having, you know,
African elements, that was a natural coalition. So people within those ranks also
exerted the influence that they could. And when I say exerted influence, what I
think they did was they just made sure that my credentials were known so that
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decision makers wouldn’t be reacting to less than the best information. And the
credentials, for example, were that I spent seven years at Georgetown and I taught
at Howard for eight years. So there was no question about my commitment. And
I had a very good reputation as a trial lawyer. So those things were there. I don’t
mean to brag, but those things were there, and I think people were smart enough
to pick them up. And so I didn’t meet any resistance.
Mr. Granof: I take it you were interviewed by the Judiciary Committee staff?
Judge Urbina: Yes.
Mr. Granof: And was that a fairly thorough interview or was it more pro forma?
Judge Urbina: It was pro forma. Pretty pro forma. The main part of that Committee that
interacted with me was the Democratic side.
Mr. Granof: Who was the chairman of the Judiciary Committee, if you remember?
Judge Urbina: Senator Simpson. He was from Wyoming. He was on the Republican side, and
he actually conducted a lot of the questioning in the case.
Mr. Granof: Alan Simpson?
Judge Urbina: Yes. He was terrific. He asked me a lot of questions.
Mr. Granof: He’s a very down to earth guy.
Judge Urbina: Oh, he’s a very down to earth guy, let me tell you. At the time, there was
somebody after me. Somebody who really hated me because when I was a
Superior Court judge I had ruled in a domestic relations case that he had to stay
away from his ex-wife. He had kicked his wife in the stomach when she was
pregnant with his child. He was a very brutal fellow. And the bottom line was I
directed him not to go near the family, including the children for a year. And he
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got a 1-800 number, he wrote every judge in this Court, the Court of Appeals,
every judge in the District of Columbia. He wrote a letter indicating why I was
not qualified to sit as a federal judge.
Mr. Granof: And this was just an ordinary citizen?
Judge Urbina: Yes.
Mr. Granof: He didn’t hold any public office.
Judge Urbina: The man was very malicious. I could tell you more, but it’s not necessary. He
actually went to the hearing and stood outside. He didn’t make a fuss. He stood
outside and handed out flyers. After the hearing, Simpson comes down and he
says, “Congratulations.” He’s got these huge hands. And he said, “You’re
squeaky clean. That’s good, stay that way.” And then he says, “By the way, do
you know this guy?” I said, “Yes, I know who he is.” He says, “He’s a nut.” I
was so relieved. You never know what people are, or how people are interpreting
things.
Mr. Granof: That guy who opposed your nomination was a crackpot, wasn’t he?
Judge Urbina: Yes, he was. And a dangerous one actually. He fled to Puerto Rico, and the
marshals had to go get him. But that’s another whole story.
Mr. Granof: Anything else you remember about the hearing?
Judge Urbina: Yes, my mother is sitting in the back row — she’s in a wheelchair — and Senator
Simpson’s standing there talking to me. And all of a sudden I see out of the
corner of my eye that my mother is gesturing. Not to me, but to Senator Simpson.
So he goes, “Who’s that.” I said, “That’s my mother.” “So he walks all the way
to the back, and I walk behind him because I know what’s going to happen. And
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she’s sitting there, she looks up, she says, “Why did you have to ask him so many
questions?”
Mr. Granof: How old was your mother at that time?
Judge Urbina: Well, eighty-nine. You know. She was annoyed that he would be apparently
challenging my credentials by asking me so many questions.
Mr. Granof: Senator Simpson must have gotten a big kick out of that.
Judge Urbina: Oh, he laughed and he sat down and he explained it to her. And I wrote him a
nice letter afterwards. It was very nice.
Mr. Granof: So, apparently, you sailed through. You didn’t get a rough time at all?
Judge Urbina: No, I didn’t have a rough time. The anxiety was the worst part. And the
paperwork. Every lawyer you ever had a case with, and so forth. Then the FBI,
another thing like that. Then the ABA, another thing like that. Then the
Department of Justice, another thing like that. And the White House. Much of it
was repetitious, but still you want to make sure that everything is right, and that
you don’t leave things out, and that your answers are clear, of course. And at the
same time you’re still a judge and you’re still working every day. So that part
was a little nerve-racking. But, no, thank God I did not have a problem.
Mr. Granof: And how long did it take between the hearings and the vote?
Judge Urbina: I think the vote happened in June, so about two months.
Mr. Granof: So the whole process, from your application to the Judicial Nominating
Commission in Washington until the time you were confirmed, took how long?
Judge Urbina: Six months.
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Mr. Granof: So that was a pretty good, rapid pace compared to what other judges have gone
through and what’s happening now.
Judge Urbina: Oh yes. That was a rapid pace even as compared to judges who came on to this
Court subsequent to that group. Because when I came on, a whole bunch of us
came on at the same time. Emmet Sullivan, and myself and Ricky Roberts and
Gladys Kessler and Colleen Kollar-Kotelly and Henry Kennedy. You know, this
Court really needed, as I mentioned earlier, really needed the help. And I must
say that Eleanor Holmes Norton did a good job with all the collecting, screening,
expediting.
Mr. Granof: And so you get sworn in in June?
Judge Urbina: July.
Mr. Granof: July of 1994.
Judge Urbina: Yes. In fact, I submitted my application to resign from the Superior Court a halfhour
before I came over here because I didn’t want there to be a lag that would
result in my family getting no benefits if something happened to me. In that halfhour
lag my wife and my family would get nothing. So I made sure that I signed
and came right over here and took the oath. Investiture was much later. But I
took the oath then.
Mr. Granof: And so you take the oath, and you’re now a federal judge. What happens next?
Judge Urbina: Well, maybe we should save this for the next time.
Mr. Granof: Sure.
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