Rules for Judges

THE OPEN MIND
Host: Richard D. Heffner
Guest: Leonard Sandler
Title: “Rules for Judges”
VTR: 5/28/82

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND. Years ago Malcolm Cowley edited a volume of essays by distinguished commentators entitled Books That Changed Our Minds: Such books as Veblen’s Theory of the Leisure Class, Beard’s An Economic Interpretation of the Constitution, Parrington’s Main Currents in American Thought, books that were all powerful. Certainly these were. And recently political scientist Bruce Allen Murphy published his, as an analysis of the secret political activities of two Supreme Court justices, The Brandeis/Frankfurter Connection, a book that may help to change our minds, too, perhaps, about Louis D. Brandeis and Felix Frankfurter. Perhaps more about how faulted are our traditional views of the real relationships between judges and the rest of humankind. The law, after all, is what the judges say it is. And about the highest court that the judges sit on, Mr. Dooley said a long time ago, “The Supreme Court follows the election returns”. The Brandeis/Frankfurter Connection is about the fact, unknown before, and kept in secret throughout their lives by these two distinguished jurists, that for many years before he was himself appointed to the Supreme Court of the United States, Felix Frankfurter was Brandeis’ political lieutenant working behind the scenes to influence American domestic and foreign policy along the lines chosen by Brandeis even as the elder jurist maintained a public image of judicious judicial neutrality. The book has occasioned much heated dispute about Brandeis, about Frankfurter, about judicial ethics. Some have defended the arrangements, considering it, to them, an honorable way in which Brandeis maintained a realistic continuing interest in the part of American life beyond the Court. Others, like the New York Times, have said flatly, “The Brandeis/Frankfurter arrangement was wrong. It serves neither history nor ethics to judge it more kindly, as some seem disposed to do. The veil does not forbid all political talk or contact with politicians. But the prolonged meddlesome Brandeis/Frankfurter arrangement violates ethical standards”.

Well, I wondered about all of this and thought THE OPEN MIND might illuminate the issues at hand here. For I would discuss them with a sitting judge, one who surely maintains relations with political figures, and one who has profound feelings about political issues, but one who undoubtedly respects what must have gone through Felix Frankfurter’s mind when he noted in his diary, as the book about Brandeis and Frankfurter indicates, “When a priest enters a monastery he must leave, or ought to leave, all sorts of worldly desires behind him. And this Court has no excuse for being, unless it is a monastery.

Leonard H. Sandler is an Associate Judge of the Appellate Division of the Supreme Court of the State of New York. Judge Sandler, thanks for joining me today. I don’t really want to discuss the Murphy book, or Brandeis and Frankfurter in particular, but I wondered who you’d react to this notion to, or the controversy that’s been stirred up by the notion that these two judges had had this prior extrajudicial relationship.

SANDLER: Well, I think that the Times editorial lumps together a lot of different relationships that were related in this prolonged period and I don’t think they all should be taught with the same brush. Some of what occurred is not entirely clear to me from the book, but I, for example, see nothing particularly wrong with Frankfurter or with Brandeis suggesting, urging students to research and prepare articles for public discussion, or maintaining a relationship with…thought and expressing views in ways that appeared, albeit, under other peoples’ names. I don’t think that that merits the kind of condemnation that was suggested there. What I think is a problem is the intensity and the pervasiveness of the activities of both of them with regard to the two presidential administrations and also Roosevelt; Brandeis having been appointed by Wilson. Maintaining them was continued as a major advisor to that administration in a variety of ways. And that renewed itself in a very intense way with himself and Frankfurter when Roosevelt came to power in 1933. And Frankfurter, upon his appointment to the bench, continued that; though interestingly enough, not primarily in terms of social issues, which had previously been dominant; he kind of threw himself into the whole period of resistance to Nazi Germany, the foreign policy prior to the Second World War, and helping to organize our defense posture during the war. It’s the intensity of the pervasiveness of their identification with the Executive and part with the Congress during the periods when they were judges, which I think represents a major departure from what is acceptable.

HEFFNER: Suppose the issues that were the basis for the relationship between these two men were different, or more importantly, suppose the posture on these issues had been different. Do you think you’d be quite so generous?

SANDLER: Well, I didn’t think I was being generous. I was drawing a distinction between involvement with an Executive on an ongoing way; as advisors, as draftsmen, as advocates of positions, as participants in internal administration arguments and fights and the rest, which I think is clearly wrong. I don’t think I’m being generous about that. I think that’s a departure from the role of the court. I think it violates the principles of separation of powers. I was drawing a distinction between that and the effort by Brandeis in particular to play a role in progressive thought, not in the relationship to the Executive, not in the relationship to the Legislature. And I don’t find that so clearly wrong.

HEFFNER: Suppose it hadn’t been progressive thought. Suppose…

SANDLER: Either way. Either way.

HEFFNER: Do you think that the defenses of the relationship between Brandeis and Frankfurter would have been…would be in our own time…quite so strong, quite so powerful had it not been a duo of progressive judges, to the extent that they had been condemned?

SANDLER: Well, to the extent that I’m addressing this particular area, that Brandeis’ overpowering desire during the twenties, to continue to have an influence on progressive thought, and the conflict that he had between the proprietors and the proprieties as he saw them, of his role as a judge; and the desire to have that influence and the use of intermediaries’ suggestions to others; I don’t find that reprehensible. I wouldn’t find it reprehensible if it were a conservative jurist who was doing that. For example, it doesn’t appear clear to me that Brandeis, who was an advocate of the regulation of the securities markets, why he couldn’t have written a book on the subject, of which he was clearly a leading authority and had very strong thoughts. I know of no canon of judicial ethics that would have prohibited him from doing so. To the extent to which he advocated those ideas to others, I don’t see anything reprehensible in it.

HEFFNER: Maybe he was telling us in this backhanded way that there was something reprehensible about going public, and therefore he did what he did in private.

SANDLER: Well, I think he clearly had a very serious concern about that. And I’m not saying that it was clearly right. I think he might have been overreacting in some ways, to the trauma of his confirmation of the fight, and that was developed at that time. But it’s not all that clear to me, that in an area in which he was a leading authority, not related to court work, on which he had thoughts that he had given a great deal of time to, why he could not, in a suitable way, express them under his own name.

HEFFNER: Then you don’t, perhaps, quite agree with the diary entry that Murphy quotes from by Felix Frankfurter; “When a priest enters a monastery he leaves, or ought to leave all sorts”, all sorts, “of worldly desires behind him. And this court has no excuse for being unless it’s a monastery”.

SANDLER: I think that’s such an exaggeration (laughter) of reality. I think it’s an impossible goal. I don’t even think it’s a desirable principle, to view traditional work that way. Obviously Frankfurter himself did not subscribe to what he wrote.

HEFFNER: He didn’t act.

SANDLER: He didn’t act, and I doubt if he subscribed to it. I don’t think that the canons of ethics that they developed imposed that kind of a tight restraint on judges. I noticed that one or both of them quit bar associations when they became Supreme Court justices. But currently judges are encouraged and invited to join bar associations, to participate in committee work…

HEFFNER: Judge Sandler, then where do you draw the line?

SANDLER: Well, what is disturbing here, to me primarily, is the intensity of their involvement. They were quite pervasive, particularly in the Roosevelt administrations for both Brandeis and Frankfurter to the extent which is basically incompatible with judicial function. It’s the intensity and the pervasiveness of it that I find most questionable.

HEFFNER: Then you don’t draw a geographic line, you draw a temperature line. It can be just so heated, or as you say, just so pervasive.

SANDLER: Well, let me…a thought which occurred to me…and I think…It’s hard, I think, to evaluate these two outside of their particular biographies and lives. I think part (???)…here’s Brandeis, one of those people with an extraordinarily powerful mind, who rarely in public life…had such an impact on everyone around him; and we’re told, practically gave Woodrow Wilson the basic principles of the New Freedom; and is most trusted of advisors, someone whose judgment is so valued. I don’t find it incompatible with his judicial function if on occasion or so, someone in the administration had a problem with which he had particular experience and knowledge came to get the benefit of his judgment. It seems to me that that would not be incompatible with his judicial function. It depends on the courts. But when it’s a repetitive thing, it’s a practical part of the administration, there’s a compromise in independence of the judiciary.

HEFFNER: Where do you draw those lines in terms of courts that are somewhat lower than the Supreme Court…How do you feel about your own response to political requests, or not political requests, that’s not fair…requests by those who are still very much in political life?

SANDLER: I don’t get requests from people who are in political life and I really doubt that judges do get requests. I’m not quite sure what you have in mind.

HEFFNER: Would you consider it inappropriate to provide advice for someone in public life as Brandeis and Frankfurter did, in direct and indirect ways?

SANDLER: Well, it occurs to me that if in an area that I felt comfortable with and knowledgeable about, someone asked my opinion about a matter of policy, and it was not likely to be something that was to be the subject of litigation for them, I would see nothing wrong with expressing my opinion.

HEFFNER: Is it possible for a judge to pick out areas of concern that would not, or could not possibly be subject to litigation beforehand?

SANDLER: Well, uh, of course, a particular problem of the Supreme Court is that it is expected that everyone would sit. In the court on which I sit, for example, you have judges sitting in panels of less than a whole number so that if a problem arises where a person is reclused, there is still an adequate compliment of judges to decide. But in more direct answer to your question, yes, one can participate in areas that are extremely unlikely to be the subject of litigation, and if litigation should come before you, it is appropriate to recluse yourself.

HEFFNER: Do you think we have…

SANDLER: I think that implicit in…the average judge is not going to be approached for advice on the board range for public policy matters. For one thing, we’re not in the swim of activities which would give us the knowledge and ongoing expertness to make it reasonable to come to a judge. A judge is likely to be asked about some aspect of court administration, proposals relating to the law which are acceptable under the canons of judicial ethics, and attitudes towards law enforcement, crime, punishment, that sort of thing. It’s…I think it’s quite unusual for a judge to be approached. Because of Brandeis’ unique historical stature and his relationship to the administration originally, and to the extent that the Roosevelt administration felt itself to be the heir to the progressive era, that I think a particular involvement developed.

HEFFNER: But certainly there must be parallel relationships between governors and state boards of appeal, between mayors and local courts.

SANDLER: I would be very surprised if this really happens, except as a very idiosyncratic thing. I can believe or accept that from time to time a president will have a close association in public life with someone whose judgment he values, a person who he appoints to the Supreme Court. I think this happens from time to time. In part, the appointment is made because the president values this as a balanced, reasonable person of good judgment, and sees him as a…type among the friends and associates he has, and might want to get an opinion or…

HEFFNER: Like Lyndon Johnson and Abe Fortas.

SANDLER: And clearly the problem, and I think it’s a major one, is that the judge cannot be involved in the administration, and is, to an effect a hostage to the administration. When Brandeis is involved in the appointment of many people to Roosevelt’s administration, participates in a variety of policies, takes sides within the administration…

HEFFNER: Helps write and re-write legislation…

SANDLER: …to the extent to which his advice is followed, his appointments are made, I think he has incurred what might be considered obligations to the administration whose courses and matters will come before him on a recurring basis. And though it may be a problem…it probably would be that would not affect his judgment, the appearance of that would be very damaging.

HEFFNER: It’s strange that this book appears at a time when there is so much being said, so much concern about conflict of interest about almost every aspect of our lives. So much so that I, for one, and I don’t know how you feel about this, the concern that we make assumptions about individuals who are involved in one activity or another; the basic assumption that individuals are dishonest and can’t stand aside intellectually, philosophically, from one’s distant interests.

SANDLER: I think it’s much easier for people to do than is generally assumed to be the case.

HEFFNER: Why do you think this is happening? Because it seems, too, to be happening in terms of the courts. There are those now who are so insistent that the judge really take the veil, and get rid of all of his economic interests. Why do you think this is happening?

SANDLER: I think…

HEFFNER: Does it relegate…

SANDLER: Well, I think this has been an ongoing development over many years of increased sensitivity, which is good to ethical obligations and the appearance of propriety. There certainly have been enough situations where the appearance of propriety, I think, is reasonably related to questionable decisions. But I do believe that many people can exercise an objective judgment; that even where one might dredge up some suggestion of a conflict.

HEFFNER: The suggestion has been made that one of the reasons for this seeming demand that judges be vestal virgins has to do with a growing antipathy to the active role that judges have been playing in our lives increasingly over the past generation or two. Is it a fair comment?

SANDLER: Well, it’s a fair comment as far as…I haven’t focused a lot…I don’t think that I see that relationship, certainly in the federal court in particular. I think, in response to the Civil Rights Acts, and the whole movement, they have been in a position to exercise great impact on what traditionally have been local and state policies. This has undoubtedly created a lot of antagonism towards what they’re doing. Although much of it I think is admirable, some of it I wouldn’t agree with. I don’t, myself, relate that to a focus upon propriety. There are really very few situations that I know of in recent years where judges have come under attack for that kind of propriety. I think statistically it is extremely insignificant.

HEFFNER: You mean judges are safe statistically?

SANDLER: Well, I’m trying to think, in the federal judiciary whether there’s been any documented examples on an economic basis, if a judge sat where she had an economic interest…I think that that just doesn’t happen.

HEFFNER: Do you think that judges shouldn’t divest themselves, not just…

SANDLER: I’ve never had the problem of divesting myself…

HEFFNER: (Laughter)

SANDLER: …the resources, but certainly I think the judges should…I don’t really know…periodically one or more of my colleagues who shares a stock in one thing or another reports back to a litigant. If it is a matter of concern, I don’t know if there is any necessity for divested share by judges who are very unlikely to sit on companies on matters in which they have an interest, and if a problem arises in which no great harm would occur, they disqualify themselves.

HEFFNER: It’s interesting, the question of divestiture. It seems to be an issue here…criticisms like the editorial I read in the Times…intellectual, political or friendship divestiture….talking about this on an economic level, the assumption being that you can’t be judicious if you have an interest.

SANDLER: I think just as a practical matter judges are not permitted, under the canon of ethics, on matters in which they have an economic interest, and I think that’s quite sound, even though I believe that in many cases it would be wholly irrelevant to their decision.

HEFFNER: Do you think…going back to the other question…from the relationship to this particular controversy, that there is a feeling that judges have been…have not exercised sufficient judicial restraint, that they have been too activist? Unlike Frankfurter’s philosophy, anyway.

SANDLER: I don’t have the feeling that judges as a group have been activist in that way. Now maybe I’m not reading what you are reading. My sense is that the great number of judges are delighted to do their judicial work and to confine their activity to bar associations and judicial associations. I have very little sense of judges stepping outside of those areas into other kinds of controversies.

HEFFNER: Oh, I…Judge Sandler, I’m sorry…if I misspoke. I didn’t want you to think that I was talking about a kind of Brandeis/Frankfurter activity. No, I was talking about in the traditional judicial robes and roles, that the courts have imposed themselves more and have impinged themselves upon our lives in more ways.

SANDLER: You are focusing on the reality that, in the wake of the Civil Rights Movement in particular…

HEFFNER: Um hmm…

SANDLER: …and the decisions of the Warren Court, a federal judiciary enforcing constitutional decisions, as well as federal laws, as is their obligation to do. They have, under their equity powers, have involved themselves in what traditionally have been local government matters. There is no doubt that this has occurred, has occurred in significant ways; has occurred in New York States, in which the (???) was in effect, terminated as an institution, has occurred…my recollection was that Judge Johnson was supposed to be in charge of the jails in Alabama over a period of time. For the most part as far as I can tell, the federal judges are discharging responsibilities in terms of the law and the Constitution, and…although I think, to the extent in which involves management of large governmental institutions, there perhaps, assuming a particular role in which it is difficult for them to do well, but I don’t have a sense that they’re usurping the functions.

HEFFNER: I don’t really think that I was expressing the thought that they were usurping them, but I thought that there were many people who now feel the lash of the judges who do feel that they are usurping powers…

SANDLER: I’m sure that that’s true. And your mentioning it brings to mind the fact that we didn’t have our primary, our mayoral primary last year. And they originally indicated…a decision made by a three-judge constitutional court.

HEFFNER: That’s in New York. And I think that this is probably…not a pattern, exactly, but it is not that rare any longer, to find that judges do find themselves making these kinds of decisions. And I wonder what the recipient…those who are on the other end of the court orders, will come to feel about our judiciary as they increasingly have to come around to the interpretations of the Constitution, of statutory law, of the judges.

SANDLER: Well clearly it as generated considerable hostility and anger. I have a feeling that that period is regressing itself. I don’t really see it as escalating. Well, I think the clear signal from the present Supreme Court is one that discourages judicial activism.

HEFFNER: So that it is not a…something God-given, something that the judges do or do not do. And now you’re saying that the signal from the High Court is “Cut it out, fellas”.

SANDLER: That’s my sense of…”Cut it out” is clearly, ah, an overstatement.

HEFFNER: Back up a little.

SANDLER: Yuh. I think that’s a fair statement. As a practical matter, some of the federal decisions I find disturbing as a state court judge. Criminal conviction is affirmed by our state system and by our court of appeals and a single district court judge on a different view of a constitutional issue, who sets aside a conviction has about it a very annoying and irritating quality. What makes it…the district court judge is clearly erroneous. But I think in large part, there’s clearly an objection to a function which is vested in the judges by the Constitution. A few days ago a federal judge, who I don’t think was reaching any sense, handling the litigation, made a decision which may end Westway. I think that there had been a violation of the requirements of environmental law. He was doing his job. That’s how he evaluated that issue.

HEFFNER: Again, Judge Sandler, as we come to the end of the program, a New York issue, but one that finds its parallels in other parts of the country. Anyway, thanks very much for coming to join me today on THE OPEN MIND to talk about the issues that come out of this connection, like the mafia connection, between Brandeis and Frankfurter.

SANDLER: (Laughter)

HEFFNER: Thanks very much.

SANDLER: Thanks very much for having me.

HEFFNER: Thanks, too, to you in the audience. I hope you join us again on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.

This is Richard Heffner, your host on THE OPEN MIND. We would like to know your ideas and your feelings on the subject we just discussed. Please send your comments to me in care of THE OPEN MIND to this station.

VOICE: Join Richard Heffner next week on THE OPEN MIND when his guest will be Robert Michaels, who will discuss patients’ rights and informed consent.