The Struggle for Judicial Power

THE OPEN MIND
Host: Richard D. Heffner
Guest: Sol Wachtler
Title: “The Struggle for Judicial Power”
VTR: 11/11/85

I’m Richard Heffner, your host on The Open Mind. There have been important times in this nation’s legal and political history when the judiciary has been particularly much on our minds and when one could identify the highest court in one or another of our states as looming particularly large as surely when Benjamin N. Cardozo, who later was to serve so well on the Supreme Court of the United States, was the brilliant and revered Chief Judge of New York’s inescapably powerful and trend-setting Court of Appeals. And perhaps as now when Cardozo’s successor and my guest today, Chief Judge Sol Wachtler, must marshal his judicial resources as the nation witnesses a struggle for power over America’s courts unparallel in our history except perhaps when Chief Justice John Marshall thwarted Thomas Jefferson in the early days of our republic and when Franklin Roosevelt initially failed to make inroads on the undaunted nine old men back in the 1930s. Now President Reagan may end up largely reconstituting the federal judiciary through the sheer weight of his innumerable appointments to the federal bench. Attorney General Meese would like him to do so with a vengeance. They insist judges can and should read our Constitution and extend our laws only as the Founders specifically intended. On the other hand, Supreme Court Justice William Brennan has commented recently that this Doctrine of Original Intent is really arrogance cloaked as humility. No one can set a yardstick to the Founders’ thoughts with such certainty. And with something akin to judicial restraint, Justice Stephens characterizes the Attorney General’s argument as somewhat incomplete. Well, that battle rages on today. And it won’t end soon. But when Chief Judge Wachtler sat at this table some years back he noted that if people don’t have confidence in the judiciary or the judicial system, then we’re in trouble. And I want to ask him today if this open divisiveness doesn’t indeed mean trouble for our courts. And for America. Judge Wachtler?

Wachtler: Well, I think that the debate is a healthy one. And I think it’s a debate which has probably been going on since the times of Thomas Jefferson and the founding of this republic. But I think it’s very important for us to remember that one generation cannot declare the rights of another generation. And although it might be comforting to think that past generations have separated right from wrong and good from evil, that fact is that it is each generation of interpreting the laws through the courts which puts the mark of that generation on the law. And that is part of our democratic process. And I don’t think we can escape that.

Heffner: You mean the law is just what the judges this generation says it is?

Wachtler: We would like to say, and we’ve often said that we’re a nation of laws not of men. But the fact is that it is the men and the women, each generation interpreting those laws, which really create the ethical environment, the morality, the times, and put that imprint on the law. For example, I can’t think of words less in need of annotation than those so proudly proclaimed by our Founding Fathers when they said that all men are created equal. But when they wrote those words, even though they wrote them with a heart full of love and compassion for their fellow man, they never once meant to include women or members of the Black race. It took a series of decisions from Dred Scott, where the Black person was considered a chattel, something which could be owned, to Plessey vs. Ferguson where we talk in terms of separate but equal, to Brown vs. Board of Education, the evolution of the law where finally those words, all men are created equal again were given a significance in accordance with this generation’s sentiment and feeling towards what equality really means. And that is real equality.

Heffner: But Judge Wachtler, I know your history on the high court of New York. And it’s one of a person of great liberal standing. I wonder then how you feel about the possibility that the current appointments to the federal bench will, given the nature of this generation, this new generation of federal judges, change back that interpretation of what the Founding Fathers said. If you are relativistic one way, why can’t you be the other way?

Wachtler: Well, first of all, I might quarrel with the way you characterize my judicial perspective as being liberal. I think that all judges would like to think that each case is decided on the merits of that particular case. And I think that these judges, even though they may be appointed with a perspective with respect to strict constructionism or conservatism, I think nevertheless if their people were they sufficiently profound legal background, people who have an understanding and a feel for the law and for the jurisprudence, they, too, will decide each case as it comes along. Although there might be a slight shift perhaps to the right in certain of the decisions of law, I think eventually that will swing back. And I think again that has been the history of the law, and the modeling of the law. The going from one side to the other, but basically appearing to serve fundamental precepts which I think are important as far as the democratic process is concerned.

Heffner: And yet you have said that those words, the words of the Founders, so much needed annotation, and you’ve indicated that they have moved in the annotations in basically one direction, in the direction of human rights. Greater concern for human rights.

Wachtler: Again, as I said, in such a way as to impress upon those words the contemporary, feeling, sentiment, emotions, morality. That is the way the law is molded.

Heffner: And in our own times? If we mold the law back to the Dred Scott days, is this acceptable?

Wachtler: I don’t think that’s acceptable, nor do I think it’s possible. I don’t think that there would be that kind of retrogression in the members of the judiciary because we are fundamentally a common law nation. That is, we follow precedence and whereas some precedents are considered outmoded and cast aside, nevertheless that takes a long time to do. For example, you say that the current Supreme Court is extremely conservative and we hear that they debase the so-called Miranda Decision which calls upon the courts or it calls upon the arresting authorities to administer warnings to every defendant who is apprehended. And yet Miranda is still a good law. So that although the court might be considered very conservative, nevertheless it adheres to the common law principle of adhering to precedence. It changes very, very slowly. And I don’ think we can look for any kind of immediate erosion or immediate lapse with respect to any new federal judges.

Heffner: You mentioned Miranda and yet the person who seems to have the greatest influence on our judicial structure today, that is the Attorney General, because certainly his input is important in the choice of the members of the federal bench as I read it, rejected the expansion of the law with Miranda. Is this not true?

Wachtler: He’s not a judge. And he doesn’t change the law. And he might say that he’s against it and opposed to it, but even a judge of his choosing or appointment, and of course he will not choose a judge although I’m certain he’ll have a certain input. Even that judge would be reluctant to fly in the face of precedence because again that is our common law system adhering to those precedents. There will be changes and there will be a moving away and there will be modifications and there will exceptions spelled out. And sometimes exceptions will subsume the rule. But by and large the basic rules I think will stay intact and will move very slowly and then eventually perhaps move back again. And that’s the ebb and flow.

Heffner: Judge Wachtler, do you think that3 the rise of crime in the streets in our country, concern, a citizen’s concern for safety has been the primary reason why a negative finger has been pointed at the courts, and why indeed the Attorney General is able to make his points…

Wachtler: Yes. There’s no question about it, and that’s one of the very sad parts, I think, of the rhetoric which now flies not only from the Attorney General but from many people who are in high public office. The condemnation of the courts and the fact that the courts are sought out and it’s bureaucratically comforting, you know, to find a group out there on whom you can blame all society’s troubles and say if they would do their job, we would have no more such trouble. The fact is that the courts don’t cause crime, and the courts can’t stop crime. But unfortunately the courts are thought of by many citizens, and again this is part of the rhetoric, as a quiet extension of the prosecutor’s arm. That’s not what the courts are there to do. I think it was Judge Bazelon who referred to the courts as the janitors. They are there to clean up society’s debris. And that’s what they are. By the time the matter reaches court, the crime has already been committed. And then you have people say yes, but if the judges would put more people in jail, then we’d have less crime. But the judges are soft-hearted and soft-headed. The fact is that we have more people in our jails in this country than in any other industrialized nation in the West. A 40 percent increase in just the last five years. This state alone, for example, when Franklin Delano Roosevelt was our governor, he had13, 000 people in our state penitentiary. We now have over 30,000. We’re at 115 percent of capacity and none of those prisoners went there voluntarily. They’re all put there by judges.

Heffner: Yes but, Judge Wachtler, if you say there has been an increase of 30 percent or 30,000 or 1 percent or whatever, there are others who will maintain that there should have been in increase of 50 percent. There should have been an increase of 100,000 prisoners and that the judiciary is responsible for not putting those people behind bars.

Wachtler: Of course the parallel to that is they say that judges are allowing people who commit crimes to take pleas to much lesser offenses and get a slap on the wrist.

Heffner: Is that not true?

Wachtler: Well, it’s true, but let me explain the reason for it. I checked just this morning. We have now in Manhattan 25,000 cases pending in the criminal court. And we have 51 judges there to try those cases. Now you tell me, Dick, how in the world those judges could possibly try each one of their cases. It couldn’t be done. Physically, absolutely physically impossible if those judges worked seven days a week, twenty-four hours a day they can only try a very small percentage of them. So they either have to wait and just let these people hang around waiting for trial and then eventually have a dismissal because of the speedy-trial constitutional rights or negotiate a plea. And that’s what’s been happening. We hear people in public office saying we need more police out on the street. We don’t hear people in public office saying well let’s get more judges and more courtrooms and more jails so that each one of these people arrested can be tried, convicted and sentenced. Which of course would be the ideal.

Heffner: Let me ask you if we had more jails, if we had more judges, if we had more police, if we had more courtrooms, if more people went to jail, are you suggesting that we’d be a safer society and therefore you advocate this?

Wachtler: No. what I’m saying is at least then the people have a certain sense of satisfaction and the courts won’t be that direct a target of the criticism. We could at least do that which we are supposed to be doing. But you’re still going to have crime because the root causes of crime…we know where crime breeds. You know in the cesspools where drugs are easily accessible where you have the very high, high rate of unemployment among the youth and the idle mind being led to commit crimes and muggings and purse snatchings and all the other things which lead to a deteriorating way of life. And this is a terrible thing, but don’t’ think that by repairing the criminal justice system you’re going to repair all these other roles which beset society. If you want to talk in terms of better education, better drug control, better housing, better training for jobs, better educational, all the various processes which go into increasing and improving the conditions of life and the societal problems, then you’re talking about relieving the crime situation.

Heffner: Suppose one were to agree with you. One would still have to ask why present Attorney General of the United States, why the President of the United States, why they feel so strongly and are joined by others, too, that it has been a kind of softness in the interpretations of the court over the high court, in your courts, too, over the past half-century that have done us in.

Wachtler: Well, this of course is their perception. I think they’re wrong. I think that the courts have followed the law and have done a very appropriate and proper job. But when you have a citizenry living behind triple-locked doors, a caricature of a society which prides itself on civil liberties, then that citizenry is very amenable to the suggestion again that there’s someone out there not doing their job. And the first place that’s looked at is the courts.

Heffner: You know I couldn’t help but go back to the comment of your predecessor, Chief Judge Cardozo, who went on to the Supreme Court, and that wonderful quote that is offered so many, many times, shall the prisoner go free because the constable blundered. We know that’s what we hear not just from the quote of Cardozo, but we hear it in our own hearts. Have you been able to reconcile the human need foreseen that the accused be tried and when found guilty be imprisoned?

Wachtler: I would again think that that would be the optimum. And that’s something that I think every judge who labors as hard as we are now laboring would like to accomplish. But again, in New York City last year you had 100,000 felony arrests and only the ability to try 5,000 of those felons. So that 95,000 of them were able to take pleas or have cases dismissed. And if we increase the police force and double the police force as people say we should do, we would then have 200,000 arrests, but you’re still going to only have 5,000 felony trials. You widen the mouth of the funnel, but the neck remains just as narrow. And you’ll have the compounding of the present problem because of even less of those arrested felons tried. And when this happens, people lose faith in the system. They hear, my heavens, there’s someone who was arrested for a mugging and two days later he was able to plead guilty to something far, far less, disorderly conduct of some sort, and go free. Why wasn’t he tried for the mugging? And the answer is, the judge had five cases before him or before her that day. One was a rape. One was a murder. One was an atrocious assault. And one was a chain snatching. You’re able to try three out of those four cases. You know which three are going to be tried. The chain snatcher is not going to be tried. That case will be allowed to go by way of a plea bargain to a lesser offense.

Heffner: Yes, but Judge Wachtler, there is such great concern that the three more serious crimes may well end up with dismissal because of rules of evidence.

Wachtler: Yes.

Heffner: Is that a misconception?

Wachtler: No. this often happens. It often happens because we feel that there is a strong body of case law out there which we certainly can’t disturb in our court even though we’re the court of last resort in this state because there are mandates by the United States Supreme Court which call for the exclusionary rule. That is, evidence which is unlawfully obtained because the police officer didn’t do that which he or she was supposed to do during the course of the arrest must be suppressed. That is, it cannot be used in the trial against that individual. So that often leads to the dismissal of the particular charge because that is the only evidence against the individual.

Heffner: You’re saying that your court, the high court of New York, cannot change that.

Wachtler: Certainly not.

Heffner: Would you have the Supreme Court change, soften, the exclusionary rule?

Wachtler: I happen to personally feel that there’s much to be said in favor of the exclusionary rule. It’s interesting that when that evidence is thrown out, the court is blamed. But very few people blame the police officer. Certainly he press doesn’t. You see an editorial or a newspaper story about the court which dismissed this charge against the particular felon whom everyone knows is guilty but you don’t see the criticism of the police officer. And all that police officer had to do was to perhaps administer the Miranda warnings. Or the only thing that police officer had to do was to get a warrant before the police officer broke into the house.

Heffner: But he didn’t, and because he blundered the criminal is set free. Do you want that?

Wachtler: No, I don’t want the criminal to go free. But on the other hand I don’t want him to blunder. For example, I could search everyone in this building now and every desk in this building now and I could uncover the evidence of some crime or other. I don’t know what it would be, and nothing personal is intended. But there are people who have things in their personal property right now and if I were able to open their desk or if I did open their desk I would discover it. Does that give me permission or justify my being able to open their desks? You know, that’s what a police state is all about. Where the members of the police say well, now look, I uncovered the evidence of a crime, what difference does it make how I obtain that evidence? We know he’s guilty because here’s the evidence of the crime. So, we balance this in society’s interests and say better we shouldn’t have a police state. Better the difficulties that a police officer has to be considered a difficulty less we say that his job is too easy because a police officer’s job is always difficult. Except in a police state.

Heffner: But of course to pose this dichotomy, a police state, without letting us know what’s on the other side…police state…but there are many people who feel that it’s a police state versus a criminal state, so that while you’re shocked at the thought that some police person might go through all of these drawers in this building and uncover instruments of crime those of us who may be the victims of those crimes I think would not object to that procedure.

Wachtler: Well, I don’t know, I don’t know whether you’d want to have your door knocked down at 3:00 in the morning by a police officer…

Wachtler: But don’t you see that when the law is there to protect all of our citizens, it protects every one of our citizens. And there is the presumption of innocence. And that’s one of the big problems, you see. If you want to do away with the presumption of innocence and say that everyone is presumed to perhaps have contraband in his home, therefore let’s search all the homes, I don’t think that you’d want to do that. Even though it would unquestionably in that dragnet end up with an awful lot of people being taken off the streets who belong off the streets.

Heffner: Now I could play devil’s advocate and carry this further and say well with some cause aren’t you willing to have the constable work in that way?

Wachtler: Well, yes. Absolutely.

Heffner: Some cause.

Wachtler: No question. You see and perhaps you would find me not as, quote, liberal, as you would want to characterize me in certain areas because I do believe that and have written in our court as have other members of our court with respect to the need for police action in exigent circumstances where you don’t have time to get the warrant. When there’s hot pursuit. When there’s reason to believe that if you don’ tact quickly there’s going to be a serious crime committed. Those are the kinds of triggers which would allow the police to act without the warrant or which would allow the police to act without the warrant or without the necessary heightened probable cause that we usually think of.

Heffner: The question, I suppose, is how high does the probable cause have to be. And I wonder whatever it is that might think, want, judge or that civilians like myself might want. How do you feel about what the level of public concern is? Would the public at this point be as concerned as you and your judicial colleagues are?

Wachtler: Probably not. But that is no reason why me and my colleagues should not have that concern because this is what leads to an ordered society. We don’t want vigilantes. We don’t want a police department which is not responsible or responsive to certain rules of conduct and certain constraints. Even though we think that it might be better in the long run, I think that in the short term we would probably all suffer.

Heffner: Should judges then be not above the law, but above the will of the majority?

Wachtler: Absolutely. Absolutely. Because if you had judges who did only what the majority wanted judges to do, then you would never have any freedom for any minority, certainly, in this country, because by and large the majority at one time or another, going back to Dred Scott, at one time or another felt that perhaps the minority was not entitled to those rights. And that’s when the courts should say, well now, we are acting free from public removal every two years. We don’t have to run every two years. We are there to see to it that our democratic society is measured not by what we do to please or appease the majority but rather what we do to protect the rights of every individual.

Heffner: My editorial friends at The Wall Street Journal in the midst of the dispute between the Attorney General and Justices Brennan and other members of the Court who may not feel quite as strongly but who take exception to what Meese has said, The Wall Street Journal said well, now we should go back to the notion of electing judges. If as you have suggested before each generation moves perhaps a little further in a certain direction, jurisprudentially, let the judges be elected. Let them put up this jurisprudential…(inaudible)…Say, do the people approve of it or not. Wouldn’t you accept that?

Wachtler: That doesn’t bother me that much. As a matter of fact I think that New York state, and this of course is a bit of pride and chauvinism, probably has the best judiciary in the country. Our judges are elected. All those judges, except on my court, we’re appointed by the governor, there’s seven of us, but every other judge in this state, except again for certain areas, the city of New York with certain family court and criminal court judges, all the judges are elected. And they’re fine jurists. Benjamin Cardoza, you mentioned (inaudible) was an elected judge.

Heffner: He was elected to the Court of Appeals.

Wachtler: Yes.

Heffner: Why not today? Why shouldn’t the Court of Appeals be subject to the popular will?

Wachtler: Because the popular will enacted a constitutional amendment in the state of New York and said that we want the seven judges in the Court of Appeals, our court of last resort, appointed by the governor after a screening by a merit panel being certain they are well qualified or highly qualified for the position.

Heffner: Was that a wise majoritarian decision in your estimation?

Wachtler: Well, I think that it’s worked out extremely well. I think we have a very fine, again this is so much self-serving, but a very fine Court of Appeals. It’s been considered as such. I’m not saying it would be any worse if it were an elected Court of Appeals. But I think the merit selection process has worked well here in our court. It’s worked well in many other states. But again, I think that whether the judges are elected or whether the judges are appointed, I think that there’s a certain responsibility which comes with judicial office. And I think that so far it’s been discharged well in these 200 years of our history. And I think that will continue.

Heffner: It’s so interesting that you’re quite so sanguine at this point. You don’t think that we’re in for as much of a sea change in judicial interpretation as some people have been concerned about.

Wachtler: I really don’t. I really don’t. Because again, if a person is selected even if the appointing officer be it the president, be it the governor, is of a very conservative bent. History has shown us that judges of quality are able to discharge their judicial duties with some degree of equanimity and some degree of deference to the law. And that law again is a precedent-moving, slow-moving force. It’s not changed dramatically like a piece of legislation that’s passed. It takes time.

Heffner: and I gather the President’s appointments by and large have been considered superior appointments.

Heffner: You don’t think that litmus tests really work then?

Wachtler: No I don’t think they work. And I don’t’ really think they’re applied even though rhetorically they sound good. I think if you’ll look at the appointments made by Richard Nixon, some of them have been excellent, excellent appointments. By the current, if you measure it by the current judges appointed by President Reagan, superior jurists in the federal bench.

Heffner: Judge Wachtler, you make me feel a lot better than you did the last3 time you were here and you were concerned more about what was going to happen to the judiciary in terms of public opinion.

Wachtler: Well, I think I was concerned more because I didn’t want, and I am so concerned about that, by the way, the negative perception that’s shared by the members of the public because every time someone runs for public office, it seems that he or she beats up on the judiciary. And it’s a very unfortunate thing because if people really do lose confidence in the judiciary then we have the aberrational behavior which leads to the vigilantism and which leads to people applying the doctrine of self-help. And that’s anathema to our way of life.

Heffner: Judge Wachtler, thank you so much for joining me today.

Wachtler: Thank you.

Heffner: And thanks too, to you in the audience. I hope that you’ll join us again next time on The Open Mind.

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