I am teaching first-year law students civil procedure this semester, and had long planned to cancel class today in anticipation that it could be difficult to meet and talk personal jurisdiction the day after the election. Now that today has arrived, though, I wish we were meeting so I could be in community with my favorite 1Ls. I've been thinking about what I would have said to them if we were meeting today, and jotted down these thoughts, which I shared with them and now share with you In case they offer any comfort.
September 11, 2001 marked the second day of my clerkship with Judge Harry Pregerson on the Ninth Circuit Court of Appeals. Judge Pregerson was born in East Los Angeles in 1923 to Jewish immigrants from Ukraine. He was a first lieutenant in the Marines, shot and nearly killed in the Battle in Okinawa in 1945. He attended UCLA on the G.I. Bill and then went to Berkeley for law school (only because, he repeatedly reminded me, UCLA’s law school was not yet open when he applied). Judge Pregerson graduated law school, returned to Los Angeles, set up a solo law practice in the Valley, and represented community members in whatever legal issues came his way. He was appointed to the L.A. Municipal Court, then the Superior Court, then federal district court, then the Ninth Circuit Court of Appeals. At every step and every stage he was a tireless warrior for justice, famously telling senators during his confirmation hearing: “My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout Oath, and the Marine Corps Hymn. If I had to follow my conscience or the law, I would follow my conscience.” And he did time and again, issuing powerful decisions in every imaginable area—civil rights, general equality, class actions, immigration, the death penalty, the environment. Off the bench he was equally tireless, fighting for veterans, the homeless, and children. If you want to learn more about him—and maybe today is a good day for such an activity—there’s a documentary about him, available here: https://www.9thcircuitcowboy.com/.
On the morning of September 11, 2001, the second day of my clerkship, I—like the rest of the country and world—was sitting, dumbfounded, watching horrifying video and reports from New York. I heard the phone ring. It was Judge Pregerson’s secretary. She told me that Judge Pregerson was sitting in his office and was waiting for me and my fellow clerks. The airports were closed. All federal buildings were closed. All public malls, stores, and museums were closed. But 77-year-old Judge Pregerson had gotten up, seen the news reports, and gone into the office. It’s never a good idea to say no to a judge—especially when you’re a law clerk and most especially when it’s your second day of a clerkship, and absolutely (I came to learn) if you’re clerking for Judge Pregerson—so I got in my car and drove to chambers. That morning, Judge Pregerson spent hours talking with me and my fellow clerks in his office kitchen. He reminded us that thousands of people died in World War II every day, and described the suffering that he saw and experienced in combat. He told us that the goal of those who flew planes into buildings and the ground was to fill us with fear and to paralyze us, that we could not let them win, and that by continuing to do the work of the court we were, in our own way, fighting back. And then he told us to get to work. So we did.
Judge Pregerson was, is, and will always be an inspiration to me. I think about him any time I am faced with something difficult, both because of the life that he lived and because of his words to me on September 11. I thought of him and those words on Wednesday, November 9, 2016 and am thinking of them again today. My purpose isn’t to equate this election to September 11. I recognize that some of you may not share my feelings of despair. And it may be that for those of you most horrified by the impact of this election’s outcome on the least powerful among us, words of wisdom from a white, upper-middle-class, middle-aged law professor and her white judge mentor from the Greatest Generation ring hollow. But it’s what I’ve got. And I hope that it's perhaps comforting to hear about a day in which surprise, sorrow, and grief—which all too easily can lure us into paralysis and doomscrolling—was instead translated into action in the pursuit of a more just future. To know that this type of day has been lived many times before. And to know that we can live it again, now.