THE OPEN MIND
Host: Richard D. Heffner
Guest: H. Lee Sarokin
Title: “A Judge Speaks Out,” The Nation, October 1997
I’m Richard Heffner, your host on The Open Mind. And few things I’ve done on the air or in print have ever given me as much pride and pleasure as the very first one, nearly a half-century ago, when that historic American journal of liberal opinion, The Nation, featured an essay review I had written about historian Kenneth M. Stampp’s brilliant study of Lincoln’s strategy of defense at Fort Sumter, entitling it right there on The Nation’s coveted cover page, “Why Wars Come.”
Not that I really knew, then or now, but what a nice happening to recall when recently The Nation’s entire cover was devoted to a good and much-respected friend’s visage and words. For, on October 13, 1997, The Nation published longtime United States Circuit Court Judge H. Lee Sarokin’s explanation of how, after nearly two decades as an outspokenly independent federal trial and appellate judge, he had a year and a half earlier given up the ghost and removed himself from the way he tells us “politicians and the media distort and exploit judicial opinions.”
Well, Judge Sarokin’s essay in The Nation is entitled “A Judge Speaks Out.” And its ideological centerpiece is clearly that “The validity of a judicial opinion cannot rest on popularity. Resisting pressure to please the majority is judicial strength, not weakness.”
So let me then first ask Judge Sarokin to elaborate on this point, and then on his insistence that we all, particularly politicians and the media, need a civics lesson. Judge Sarokin, do you want to elaborate on those interesting points?
SAROKIN: What troubles me the most in the current political campaign against the judiciary is the effect that it is having on public confidence in our judicial system. By suggesting that judges are following their own agenda rather than following the law, that, I think, has a very negative effect on the public’s perception of the judiciary and the judicial system.
I don’t think, although it’s suggested that this might affect judicial independence, particularly with federal judges, I don’t think that criticism is going to cause them to change the view that they hold of a particular case. But I think if respected politicians continue to say that judges are not following the law, that it will erode confidence, and ultimately people will lose respect for our judicial system.
HEFFNER: It’s interesting. You talk about an “attack on the judiciary.” And yet it seems to me from what you’ve written that what you’ve really said, that it is an attack by one branch of political life in this country upon the other branch, and that the judges, somehow or other, are scapegoats, caught in between.
SAROKIN: Yes. I don’t think there’s any question about it. I think that what happens is: the politicians first mischaracterize or distort an opinion, focus on the result rather than the reasoning, and then suggest that the judge, rather than following the law, has somehow gone off on his or her own agenda to arrive at a particular result. And I think that that is very hurtful of what we need, and that is for the public to believe in the judicial system.
The other branches are not doing too well. The executive and legislative branches are not doing too well, and it seems unfortunate that particularly the legislators now have turned to the judiciary and want to bring the judiciary down along with themselves.
HEFFNER: This isn’t anything new, is it?
SAROKIN: No. Judicial criticism is around and always has been, and should be. I don’t suggest for a moment that there should not be criticism of judicial opinions. But I’ve never seen it used in this political fashion before. First of all, it’s not only being utilized against the judges, but it’s being utilized against those who nominated, voted to confirm, or appointed judges. And I think that that changes the equation considerably.
HEFFNER: But I guess the point I’m interested in is: Where does it begin? Does it begin as a conservative technique for attacking liberals? Or does it begin with a particular concern about judicial opinions, qua judicial opinions?
SAROKIN: No, I think there’s a general view now (you can see it in the nomination process) that anyone who has been nominated who was a so-called liberal has to go through a conservative litmus test. And I think, as a result of that, judges, particularly those who are on the trial court who might aspire to the appellate court, or even further, to the United States Supreme Court, might be hesitant to render an opinion that can come back in the future to haunt a potential candidate.
HEFFNER: Well, of course, I’m the one who’s guilty of talking about conservatives and liberals. One could say you’re talking about Borking…
HEFFNER: …nominees for judicial positions.
SAROKIN: This is not an exclusive activity to the Republicans or the conservatives. It has happened. And I think with Judge Bork is a perfect example. Whether or not he should have been defeated is not what concerns me. What concerns me is the techniques that are being utilized to attack candidates for judicial office.
HEFFNER: Now, you say the media have played an important role in this. Explain yourself.
SAROKIN: Well, I can only use my example with The Wall Street Journal, for instance. They never mention my name without referring to my decision in the Morristown Library case. And I need a few minutes to discuss that.
There were two issues presented in that case: whether there was a First Amendment right of access to the library…
HEFFNER: First explain the case.
SAROKIN: Well, the case was a suit brought by a homeless man who claimed that he had been removed from the library improperly, but more fundamentally that the regulations which barred him were unconstitutional. And he apparently was giving the library a lot of trouble, was not very well liked. But the issue that was presented to me was simply whether or not the regulations were entitled to constitutional protection, whether there was a First Amendment right to access to the library, which I found that there was, and then whether the regulations were vague or overbroad, and I found that they were. And I was reversed on the second ground. That the Court of Appeals found that they were not overbroad, they did not violate the Constitution.
But what the press did, what the conservative press did to me, in effect, was say, “Sarokin rules that a smelly homeless man can drive women from the library and harass them.” Now, there was no way that my opinion said anything like that, but that was the spin that was put on it because I was viewed as a liberal judge, and this was just an opportunity to attack me. And that same type of attack was during my Senate confirmation hearing for Court of Appeals. And the fact that I never ruled on this man or his conduct, just ruled basically upon the facial attack on the regulations was immaterial. And I was forever pegged as a man who found in favor of a homeless, smelly man in the library.
HEFFNER: And against the innocent women and children…
HEFFNER: …who were going to be subject to his intrusions.
Why did the Journal, was there any other reason why the Journal went after you than you just happened to present a good target?
SAROKIN: It’s hard to know why certain judges are singled out. I also — and I mentioned it in the article in The Nation — when I was nominated was charged with having a long history of freeing criminals. And, as I indicate, in the 15 years that I sat on the trial court, only two persons are free as a result of my rulings. One is Hurricane Carter, a decision that was affirmed by the Court of Appeals and left standing by the United States Supreme Court, and a fellow named James Landano who is out in bail awaiting trial. Those are the two cases. And I don’t see how anyone can suggest that that’s a long history of freeing criminals. But that’s the rhetoric that is out there, and it’s very hard to combat when you’re a sitting judge.
HEFFNER: In The Nation piece, you write about the recent, comparatively recent decision. And you write, “When the chief justice of the United States wrote an opinion declaring unconstitutional an act of Congress that prohibited guns within a thousand feet of schools, there was no cry of ‘thwarting the will of the people.’ ‘If I had authored that opinion,’ says Judge Lee Sarokin, ‘the Wall Street Journal editorial would have read, ‘Sarokin rules school children can have guns.'”
SAROKIN: Yes. And that is my view of the way… and its evidence, as I indicate, that although the suggestion is that the attack is not on the judges or their philosophy, and not on the result, but rather on activism by judges. Now, here’s a decision by… And I’m not saying the decision is wrong in any respect. It happened to do with whether or not the federal government could regulate in a very local area. And there certainly is merit to the way that the matter was decided. But if a liberal judge had done that, the spin would be as I suggest. They would have looked at the result and said, “Well, this judge has said that it’s unconstitutional to regulate guns within a school district,” and put that spin on it. And that’s what I object to. I think it’s hurting the system.
HEFFNER: Now, hurting the system or not, it couldn’t have happened, or it couldn’t happen now, could it, with all the cries now for impeachment? And I don’t want to exaggerate, not all the cries, but one hears that in terms of the impeachment of judges who are symbols for something that politicians don’t like. Complicit in all this, as you pointed out, is a less than fully understanding public, and media that have not made very much of an effort to explain things to the public in terms of fundamental rights, fundamental procedures, and the fundamental American notions that undergird decisions such as the ones that you’ve made and have been picked on.
SAROKIN: Yes. Well, I totally agree. First of all, I think the suggestion that’s out there that judges should be impeached because of unpopular decisions is just totally outrageous. If that were the policy, then all of the justices who decided Brown vs. Board of Education would be impeached or subject to impeachment. And I’ll tell you why. Because all the slogans would come out. The decision thwarted the will of the majority certainly in many of the southern states. It ran contrary to prior precedent, which suggested that schools should be separate and equal. It certainly was an activist ruling. And so, if you were to accept the current suggestion that those justices should be impeached, that would certainly be an example where the impeachment would be appropriate. And you can see how totally ridiculous and outrageous that would be.
HEFFNER: Yeah, but then, Lee, that makes me ask you, or first make the point that I remember very well, the bumper stickers that said “Impeach Earl Warren” all over the darn place, and makes me wonder whether this isn’t more of the same. I remember it as if it were yesterday. I recall, as an historian, efforts at the very beginning of our nation to get rid of judges who were not doing what liberal presidents, a liberal president like Thomas Jefferson, wanted them to do. And we’ve survived, and the judiciary has survived. Do you think this is just a blip?
SAROKIN: Well, except, as I said, my main concern is the effect that it has upon public confidence in the judiciary. The danger, as I see it, is the failure, and maybe the press, to come to the defense of principal decisions. The fact that something was unpopular, I’m not the least bit surprised that there would be many people in the country who would say, “Let’s impeach Earl Warren,” because they did not like the decision, they did not like the result. They didn’t read it; no one made an effort to understand it. And that, by the way, I think is true of a lot of the editorials that come out against decisions. They never read the decisions; they just used the headline, the blip, and then go on to criticize it.
But, no, I think, sure it has happened before, but I don’t think it’s ever been quite as intense as it is right now. And don’t forget we’re talking about not impeachment being proposed by the man or woman on the street, but by respected political leaders. And I think that’s different, that’s what makes it different. I don’t deny that it’s gone on in the past, but I think it’s worse now than ever, and much more harmful.
HEFFNER: It hasn’t happened though.
SAROKIN: Oh, and I don’t think it ever will. I think this is just part of it. But suggesting, for respective leaders and Congress to suggest that judges ought to be impeached, what does that say to the public? That the judges are not following the law, not following their oath. And, by the way, I would certainly advocate impeachment of a judge who consistently and intentionally failed to follow the law or follow the Constitution. I don’t see anything wrong with that. But that isn’t what’s happening here. They are merely focusing on opinions that they don’t like, and suggesting that those judges should be removed.
HEFFNER: What about the criticism of H. Lee Sarokin, that one of his problems, in this unpopular press, limited not solely to The Wall Street Journal, but very much so, is a function of the fact that you write too darned well, and that your opinions reached the people, and you used language that wasn’t, you didn’t make use of legalese to hide what you were thinking?
SAROKIN: I plead guilty, and I went through this at my Senate confirmation hearing, because the same question was asked: Why are your opinions in the particular form that you chose? And it was my opinion, and it always had been while I was on the court, that even though, as a trial judge particularly, we were writing for the Court of Appeals in the hope that they would affirm whatever was done, I thought, in controversial cases such as the Morristown library case, that it was incumbent upon me to put it in language that everybody could understand, particularly if I anticipated that it would be an unpopular decision. I thought that I owed it to the litigants and the public to write in the way that within two or three paragraphs they could understand what I had done. Whether they agreed or not was something else. I hoped that they did. But I thought, as a judge, and I think all judges should do it, should write in a way not like a doctor writing a prescription that only the pharmacist can read, but that the public can understand legal opinions.
HEFFNER: Yeah, but now, your judicial opinions, your important role on the bench, was undermined by this belief. How do you judge it now?
SAROKIN: Well, it depends who’s doing the judging.
SAROKIN: Oh, I wouldn’t take a word back. The most criticism I had, and I was removed from cigarette litigation for calling the tobacco industry the “king of disinformation and concealment.” After spending ten years on the case, I thought that that was a legitimate conclusion to reach based upon the evidence. I didn’t think it demonstrated bias on my part, but merely a factual conclusion.
I was removed from the case. It was a much discussed topic at my confirmation hearing. But I thought I was right, and certainly I think history has borne that out.
HEFFNER: You were removed from the case as a circuit judge.
SAROKIN: No, as a district court judge.
HEFFNER: A district judge, rather. And then, in your hearings, you were still confirmed as an appellate judge.
SAROKIN: Yes, yes.
HEFFNER: So that the criticism wasn’t accepted.
SAROKIN: Well, let’s put it this way: I had sufficient votes to get confirmed, but it was still something that was discussed in great detail during my hearing, whether it was appropriate or not to use that kind of language in an opinion.
HEFFNER: There was some point there where you said you wouldn’t do it again.
SAROKIN: No, I said during the course of the hearing, I was asked whether or not that particular language, if I had the chance to write it again, would I do it, and I said I wasn’t certain whether or not it was the appropriate thing to do because it was so forceful. But I still think, because I’ve had some time since my retirement to reflect upon it, that it was the right thing to say, because I wanted to grab the industry by the lapels, and thought that I could shake them up a little bit. I had absolutely no effect, nor did my retirement have any effect, at least not the effect that I hoped that it would.
HEFFNER: Well, wait a minute. This business of grabbing the industry by the lapels, shaking it up…
HEFFNER: …Was that your task?
SAROKIN: Oh, absolutely. A part of… In criminal law, there’s an aspect, when you sentence people, a policy, a principle of deterrence. And it exists in civil law too. When you render a decision in a tort matter, a wrong, whether it’s an automobile accident or a manufacturing defect, one of the things that the courts, I think, are required and should to is to create some type of deterrence. You don’t want that activity to happen again in the future. And what I was trying to say to the tobacco industry was, “Stop doing this. Start telling the truth. Start disclosing information.” And I had no effect whatsoever. I was a total failure in that effort. But things have changed, and now, finally, what I had said almost ten years ago, I think has all come true.
HEFFNER: Yes, I must admit, as I reread what you had said, I thought, “My God, this is October 1997 as we’re talking at this table,” and it was a long, long time ago that you said what is essentially admitted, conceded, touted widely today.
SAROKIN: Yes, almost ten years ago.
HEFFNER: And that brings us to the question that we’ll discuss more fully later on. But this business of the resignation, your retirement from the bench. Regrets?
SAROKIN: Definitely. I wish that I were still on the court. I made, again, as I mentioned in the article in The Nation, what I viewed as a grand gesture. I think, when you retire in protest, it’s part principle and part conceit. You think that you’ll have some effect by resigning or retiring. And what I was hoping to do was to convince the politicians that what they were doing in criticizing judges in a very unfair way and telling the public that judges were not following the law was the wrong thing to do, and I thought that my retirement with a very public statement was going to have some impact. It followed shortly that they began this groundswell for impeachment. So that’s how much influence I had over the politicians I was trying to reach.
HEFFNER: That’s a very modest evaluation on your part.
SAROKIN: Well, I think it’s truthful though.
HEFFNER: So you thought you were going to push them into seeing the light, changing their ways.
SAROKIN: I thought I could have some impact, and possibly convey to them the danger of the course that they were pursuing in constantly calling the Bill of Rights technicalities, saying that judges were off on their own agendas and not following the law. And I don’t think I had any impact at all.
HEFFNER: You didn’t get media support on that.
SAROKIN: Not at all. I was totally surprised, mainly by The New York Times. I thought if ever there was a paper that had been very supportive of me in the past, at least in most instances, that they would understand what I was trying to do. But they made it very personal. And they picked up — I was surprised — some of the conservative Republican response and put it in their editorial, about Sarokin’s retreat.
HEFFNER: It’s interesting. Yeah, I had been looking that over again last night, reading that through. I don’t know that I can find it in my mass of materials here. But I was surprised too that it read more like The Wall Street Journal than The New York Times.
HEFFNER: Although one wonders. How do you account for that?
SAROKIN: I don’t. The Times really disappointed me. That was hurtful. With The Wall Street Journal I expected it; with The New York Times I did not. And I…
HEFFNER: Well, spurned lovers are dangerous people. And I think there are a lot of people in the liberal community, if you want to put The Times in that category, who felt that you had deserted them.
SAROKIN: Yes, and I think that that’s true. I must say I received, when I announced, but before it was official, some wonderful letters from people for whom I had great respect urging me not to leave, how important it was that I stay because our voices were shrinking on the court. And I do think, and quite fairly, that there were a number of people who thought it was wrong for me to quit. But I thought that by quitting, or retiring, I was saying something much more powerful than if I stayed, and particularly on the court of appeals. I didn’t think I’d have the same voice that I would have in retirement. But I was wrong. I don’t think there’s any question about it that I made the wrong decision.
HEFFNER: Does the piece in The Nation indicate that you will now more publicly pursue this matter?
SAROKIN: There is nothing I would rather do — I’ll say this to The Nation as a pitch — than write a regular column of some sort. There’s, if I have a third career, that would be number one on my list, to be able to write on a regular basis.
HEFFNER: Well, it’s interesting that your friends, in explaining some of the language to which The Wall Street Journal and others took exception, said, “Well, this man is essentially a writer, or he started that way. He’s a literary person. He should be writing.” And I gather this is what you…
SAROKIN: Yes, I would love to do that. And if they said that, I appreciate the compliment. I do love to write. And it made my job writing opinions absolutely delightful, but it also may have hurt me in the process because of the criticism. I had said at one time that, someone, in comment on my opinions, said they read more like editorials than legal opinions, and I hadn’t decided whether that was a compliment or an insult.
SAROKIN: And Senator Strom Thurman at my hearing said, “Have you finally decided?”
HEFFNER: Well, I’m told, and we have to decide that’s all the time we have now. But, Judge Sarokin, thank you so much for joining me today.
SAROKIN: My pleasure.
HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.
Meanwhile, as another old friend used to say, “Good night, and good luck.”
N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.