THE OPEN MIND
Host: Richard D. Heffner
Guest: H. Lee Sarokin
Title: “A Judge Speaks Out,” The Nation, October 1997 (Part II)
I’m Richard Heffner, your host on The Open Mind. And my guest today is once again H. Lee Sarokin, the longtime outspokenly independent federal trial and appellate judge who was such a favorite target of those usually on the right who didn’t like his opinions and wouldn’t accept them as judicially sound, largely, he insists, because they couldn’t accept them as politically sound.
Well, finally in 1996, Judge Sarokin confounded friends and foes alike by resigning from the federal bench. And in its October 13, 1997 issue, the historic American journal of liberal opinion, The Nation, published his reason, what he characterizes as a protest against “The Willy Horton-izing of the judiciary.”
And, as my guest writes in The Nation, “Now, a year later, I concede that my grand gesture was a complete fizzle, and indeed, rather than dissuade the practice, seems to have emboldened it, since it has been followed by demands to impeach judges for unpopular decisions.”
Well, Judge Sarokin, we talked about that for a moment in our previous program. But I want to go back to the notion of the judiciary in our democracy today. There was a fascinating article in The Economist on July 5, 1997 about the “New Elite,” the role played by the judiciary in our country. And, if I may, I’d just like to read the first paragraph: “America is, by common consent, the world’s most energetic democracy. But it is also pretty good at aristocracy, the system, as Aristotle defined it, in which an unaccountable but virtuous elite decides things for the common folk. America’s Democratic politicians wear checked shirts and speak in simple sound bites. Its aristocrats wear black robes and communicate through densely argued documents.
How do you respond to that?
SAROKIN: Well, first, you know that I am opposed to densely argued documents. I think one of the mistakes we make in opinion writing is that they are not written in a clear fashion for the litigants and the public, but rather for the appellate courts and for the law reviews.
But as to the subject matter, what is totally forgotten in the criticism of the judiciary and its active role in so many areas is that the judges do not select the cases that come to them, as opposed to what’s done in the legislature or the executive branches. They can pick and choose their agendas. But what comes before the courts is not through choice. The judges have to decide the matters that are presented to them. And the typical example is this: Let’s take the prisons. For ten years there’ll be complaints about prison conditions, overcrowding, four or eight people in a cell with a single toilet. Civic groups will go before the legislature and complain. The bleeding liberals will come before those groups, and nothing will happen.
So what does happen? A suit is started, and it’s brought before a judge. And the judge sees the conditions, concludes that they are unconstitutional, cruel and unusual punishment, and issues some orders to correct the conditions. Then they point to that judge and say, “Look, judges are now running the jails.” And that only comes about because, in many instances, there’s a total abdication of responsibility by the two other branches of government.
HEFFNER: But wait a minute. You’re — appropriately enough, I suppose — making a judgment here. You’re saying “a total abandonment of responsibility,” or “abdication.” But, in a very real sense, the people, through their elected representatives, have decided. They have decided that this is a condition they will accept, and continue to accept. And the judges who then, when the materials are brought before them, rule that this is unconstitutional, are saying to the elected politicians, “You don’t know what you’ve been doing.”
SAROKIN: Well, part of the rhetoric, one of the cliches that’s hurled along with “soft on crime” and “activist” is “thwarting the will of the majority.”
SAROKIN: The majority rules in this country except when the majority violates the Constitution. If the majority ruled, we could have, without the courts we’d have religion taught in the schools, we could even have a particular religion taught in the school, we could have segregation. I mean, there are a lot of things that the majority has wanted in the past and may want in the future, and the majority rules so long as what they want does not violate the Constitution. And, if it does, the court has to step in and say, “No, you can’t do that, even though 90 percent of the country wants it.”
HEFFNER: Now, does this put Lee Sarokin in the camp that says, “There is a document, known as the Constitution of the United States. It can be read only one way, and we judges know the right way to read it. We judges at the end of the 20th Century, rather than at the end of the 19th Century or at the end of the 18th Century.” Now, are you taking such a rigid, original-intention approach?
SAROKIN: Well, I’ll say this: that we are, or at least I was, but the current judges are charged with the responsibility of interpreting the Constitution. That is the responsibility imposed upon the courts, that’s where the jurisdiction lies for determining whether or not something is constitutional or not.
HEFFNER: But isn’t the Constitution what the judges say it is?
SAROKIN: Of course. But I don’t think that they just go and look in the mirror and ask themselves what should or does the Constitution say in these particular circumstances. They look at the history, they look at precedent, and then they decide. But I think what disturbs me most, and it’s a constant complaint, is that judges are going off on their own private journeys, particularly at the local level, the trial level, the court of appeals, and deciding cases as they think that they ought to be decided. And I just don’t think that that’s happened.
In the Supreme Court it’s different.
HEFFNER: I was just going to ask you about that. Is it going off and looking in the mirror?
SAROKIN: Well, I think the Supreme Court is much more policy and political driven than the other courts are, because, if the decision were clear, then why are there so many five-four decisions? But I think there’s honest difference of opinion. It may be driven, to some extent, by judicial philosophy. And I think it’s particularly true in the Supreme Court. What disturbs me is the extent to which we can predict how Supreme Court justices will decide certain cases. I don’t think it should be that way, but it’s a given, and I don’t think that there’s any way that we can avoid that. We know that certain justices have certain outlooks on cases and their decisions are predicable. Fortunately there’s a center there that’s unpredictable that carries the day.
HEFFNER: Could it be otherwise? Has it ever been otherwise?
SAROKIN: I don’t think so. I think with that court, because they are deciding the ultimate questions, usually questions that have not been decided in the past, that there’s no way to avoid that.
HEFFNER: And, of course, when you talk about judges not being able to pick and choose the areas in which they’ll make their judgments, that’s not true of the Supreme Court.
SAROKIN: No, they can pick and choose. Of course, it takes more than one vote to place a case on the calendar. But, no, and they’ve been very selective, the current court, as has been pointed out, has taken a much lesser volume of cases, been much more careful in their selection.
HEFFNER: Let’s go back to this matter of looking in the mirror to see what the judicial argument or judicial decision or judicial principle should be. Do you see the present court as different in this respect from a decade ago, two decades ago?
SAROKIN: No. I think the court consistently… I mean, the court shifts, obviously. It’s more liberal at some times; more conservative at others. But I think, what disturbs me about what the criticism is, is the judges may have a political or judicial philosophy, but I think every judge, at least certainly the judges I know, and definitely those in the federal system, are trying to do the right thing. They’re not saying, “This is the way this case ought to be decided, and now I’m going to find a way to do it.” I think they work through in their own minds the precedent, the history, the constitutional background, and try to arrive at a decision that they think is correct. I don’t think the system works the other way.
I know my experience on the court of appeals. I certainly sat with a number of very conservative judges. And in all of the cases that we had, I think we might have disagreed on two. And I think that that’s important for the public to know, that the mere fact that you’re viewed as a liberal or a conservative doesn’t always decide how a case is going to come out.
HEFFNER: Isn’t that difficult for laypeople such as myself to understand if, in fact, when we look at the judiciary, at the very highest point, the Supreme Court of the United States, we do there see what you concede is a, I don’t know whether the word is “political” or “personal” or whatever you may want to call it, opinions prevailing rather than precedent?
SAROKIN: Well, that has to do, to a great extent, with the mix. Judges on the trial court laugh at the discussions about how their political or judicial philosophy affects their opinions. When you’re involved in an automobile-accident case or medical malpractice or a contract case, the fact that you’re a liberal or a conservative just doesn’t come into play. So, for the average judge who’s sitting at, let’s say, the trial court, or maybe even the court of appeals, the fact that you have a judicial philosophy really doesn’t affect, doesn’t come into play in most of the cases that you handle. Maybe one in a hundred is a fundamental issue where, if you have a particular view, it may come into play. But the run-of-the-mill cases definitely do not involve any fundamental issues.
HEFFNER: So that if there’s going to be any cry such as “Impeach the judges,” it should be aimed really, logically, at the Supreme Court, not at the lower courts.
SAROKIN: Well, yes. I certainly don’t advocate it, but… Oh, the impeachment idea is just totally ridiculous, and, I think, such an insult…
HEFFNER: Wait a minute.
SAROKIN: …not only to the judges, but to the public.
HEFFNER: Do you mean “ridiculous?”
HEFFNER: I mean, it has its real purpose. I think you’re being very generous when you say “ridiculous.”
SAROKIN: Well, of course, the law requires impeachment for crimes, high misdemeanors; not making the decision that happens to be unpopular. But I do believe that if you could show that there was a judge who constantly and intentionally failed to follow the law and the Constitution, that judge should be subject to impeachment. But just to pick out some isolated case that’s subject to review on appeal and say, “Let’s get rid of that judge because we’re unhappy with that that judge did,” I think is an outrage. There’s a judge out in California who held unconstitutional the Affirmative Action referendum that was passed. And there was demand for his impeachment. But nobody has ever discussed his reasoning or why he arrived at it. They talked about his background, that he was active in the Civil Rights Movement.
But, as I mentioned in my article — and I think this is the proof that the concern is with the result and not with the reasoning — there are many former prosecutors who sit on benches throughout the country, state and federal, who were strong advocates of the death penalty. If they sit on a case and they rule in favor of the death penalty, do any of these people come forward and say, “That person is carrying out his or her own agenda.” Never. As long as they are for the death penalty. But let some judge vote to reverse the death penalty or rule against it, then all of sudden his or her personal background becomes irrelevant. And that’s the difference.
HEFFNER: What you’re describing is an unhappy situation. You must have, as a former member of the judiciary, a solution or an approach to a solution. What is it?
SAROKIN: Well, I think two things can happen. First of all, they can stop the nonsense.
HEFFNER: Who can stop the nonsense? The judges?
SAROKIN: No, the politicians who are saying these things, and the media who are printing them. But I’m a great First Amendment advocate, so I’m not suggesting that. But the media can offset it. Particularly the newspapers, as opposed to television. Because there can’t be, or there hasn’t been, in my mind, full reporting of decisions. The newspapers have to avoid the sound bite that television does, and explain if there’s an opinion that’s being ridiculed or the subject of a claim or charge for impeachment. Papers can explain the reasoning, why the judge arrived at it. I don’t necessarily mean defend it. But certainly the press, the media, ought to stop using the word “technicality” when we’re talking about the right against self-incrimination, the rights against unreasonable searches and seizures, and calling those “technicalities.” Those are our most fundamental rights, and they are not technicalities.
HEFFNER: Your piece in The Nation so well makes that point, and your illustrations concerning Oklahoma in particular. But why are you letting the electronic media off the hook? Are you serious in saying that particularly the printed press should do this when, in fact, the printed press does less and less of it, presumably because we are, as a people, unwilling to read more and more of it?
SAROKIN: Well, I guess that’s an area where I certainly lack the expertise to make the distinction. Just my general view is that television is usually a type of quick reporting and rarely in depth, whereas the newspapers have a greater opportunity to explain. But I’m not going to suggest for a moment that television shouldn’t do the same thing. I just haven’t seen a great many examples of it, except, this program excepted.
HEFFNER: Thank you, thank you. But, Judge Sarokin, I’m really thinking here about something very serious. The point you make in “A Judge Speaks Out” in The Nation, so well made, are so important, leave me feeling rather despairing, because it seems to me that what you are concerned about here is increasingly a phenomenon in our society that the politicians and the media increasingly need a civics lesson, as you write here, and they’re not getting a civics lesson, and we’re not getting a civics lesson, and how can the future hold anything other than much more of the same: a public not aware of the underlying fundamental reasons why judges render the decisions that they do, and a press, electronic and print alike, that less and less explains these reasons, rather than using the sound bite in the printed press too, of technicality.
SAROKIN: Well, I agree. And I am a firm believer that if the Bill of Rights were put up for a vote today, at least to the extent that it extends protection to persons accused of crime, it’d be repealed. It would be voted down. And I think that is as a result of mainly the politicians suggesting that there are all these criminals getting off on technicalities, which also, by the way, is utter nonsense.
HEFFNER: About “all those criminals” getting off?
SAROKIN: Yes. It just does not happen. And so, and I think that’s the atmosphere that’s been created, that the public has become convinced that somehow these protections are not for them; they’re for someone else. And it’s important for all aspects of the media, I think, to begin conveying that these protections are for everyone. And it’s important that they be preserved.
HEFFNER: Let me deal with something that’s unpleasant then: prophesying what the future holds for us. Not being polyanna-ish, but rather looking at the situation, given what you say about politicians and the media and the courts, given what you say about sound bites, which I would say are to be found as much, and you would too, in the press as on the air, given all of those concerns and the sophistication required to understand our Constitution and the philosophy upon which it’s based, what do you see for the future?
SAROKIN: Well, I hate to say that it’s bleak, but I think if somebody stood up in the United States Congress and said, “Give me liberty or give me death,” they’d probably laugh. And I think that’s the atmosphere now, that principle somehow has become equated with being liberal, and liberal has been equated with being something bad. And I don’t know where the change should come. I don’t know whether they’re teaching this in the schools anymore. We were brought up where matters of principle, a Bill of Rights, was a very important part of our lives and of our history. And it seems to be fading. And I don’t know why that is or what can be done about it.
HEFFNER: Well, that’s why I had to laugh when I read the little heading here, quote from Sarokin: “We all, particularly politicians and the media, need a civics lesson.” And I was thinking, “My God, he’s no where near as old as I am, but he thinks we still teach civics.” Well, we don’t really teach civics.
SAROKIN: We don’t.
HEFFNER: Again I come back to the question whether we have to start thinking out an alternative, a supportable alternative to our present two-century-plus-long devotion to the Constitution and to constitutional liberties. If they can’t be maintained in the context of contemporary reality, mediawise, if I may, then mustn’t we start to think about stepping back a little and fighting a rear-guard action? And I wondered whether you hadn’t done that in resigning from the bench.
SAROKIN: Well, I’ve tried. But, as I admit, I think the gesture fizzled, because I certainly did not have the effect that I hoped that I would.
But, no, I think we need some renewal. I think principle has to come out more and more in our discussions and certainly in our education of young people. Practicality seems to have taken over where principle once reigned. And nobody takes the high road anymore. If you speak in terms of what’s important, what’s fundamental, what the Bill of Rights means, you’re almost subject to ridicule. And I think that that’s very unfortunate. And the idea that many of our elected leaders are fomenting [sic] this view of the Constitution and the Bill of Rights I think is very unfortunate, because these are respected people, they’ve been elected. And when they say that the Bill of Rights is a technicality, and that judges aren’t following the law, and judges are soft on crime because they follow the Constitution, I think that hurts the public’s confidence, erodes the public’s confidence in our judicial system, and is definitely taking its toll.
HEFFNER: Is there any indication of a movement in the other direction? I haven’t found it, but perhaps you have.
SAROKIN: No, I don’t see it. I don’t know what’s going on in law schools, but I think there too, my sense is that they’re teaching things which have practical importance, although obviously there are great courses on constitutional law. But I think there’s a difference between teaching what the law is and the importance of the law and its significance. And I’m not sure that that’s what’s being done in the law schools.
HEFFNER: Well, you put that rather tentatively: you’re not sure that that’s being done. But you got around a great deal as a federal judge, and I was so intrigued by, in coming back to the piece that you had written, the speech you had given at Rutgers Law, written in the Rutgers Law Review, “Justice Rushed is Justice Ruined,” that I wondered — and this is a dozen years ago — I wondered whether you’re as tentative about what they do in law schools now, as you indicate, or whether you…
SAROKIN: Well, this is an entirely different subject, but I think I can get through it very quickly. And that is the sheer volume of litigation has to be addressed. That article and that speech that I gave, I was very critical of the role of judges in the settlement process. I thought they exerted much too much pressure, because the judge that would ultimately decide the case was the one conducting the settlement conferences. I’m a great believer in alternate dispute resolution, bringing in someone else, either an outside mediator or a magistrate, because cases must settle in order for the system to work. Ninety-six percent, or 94 percent of all cases are settled in the federal system. If they weren’t, it would be years and years before matters were resolved.
HEFFNER: But that’s a practical matter again.
HEFFNER: And what you’ve done is set your canon against an overwhelming or primary concern with practicality. Is that…
SAROKIN: Yes. But, as I said, there are practical problems: the volume in the courts. But I want to see the high road taken more often. I want to hear people talking about what’s fundamental, what our rights are. And I’m hoping that when that’s done those people who express that message will not be the subject of either ridicule or threats of impeachment if they turn out to be judges.
HEFFNER: We have one minute left. Let me go back to this question of law school. Is that the message that young students of the law receive today, by and large?
SAROKIN: I don’t think so. I think law schools are more and more vocational schools. They’re teaching people how to be lawyers. But the fundamentals… By the way, this isn’t an indictment of all law schools. But I think a great many recognize that the students want to be taught so that they can operate in the world. But I think fundamentals, ethics, principles, ought to be emphasized much more than they are because that will make better lawyers and better serve the public.
HEFFNER: Judge Sarokin, that’s a good point at which to end our program. Thank you so much for joining me here on The Open Mind.
SAROKIN: Thank you.
HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. And 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.