From the Bench to the Blog, Part I

GUEST: Judge H. Lee Sarokin
AIR DATE: 05/15/10

I’m Richard Heffner, your host on The Open Mind … and I really wonder whether twenty years ago, when he first joined me here, my guest and I could possibly have dreamed that today we would be discussing not his always beautifully written decisions issued from the Federal bench, but rather his equally compelling opinions about everything and anything under the sun…issued from something akin to retirement in sunny California, and available to all of us at the on/off switch of a computer.

For retired Federal Appeals Court Judge Lee Sarokin has his own bench in the blogosphere now…quite appropriately designated X-Judge.blogspot.com, and I highly recommend it for judgments high and low.

But as we begin this first of two 21st Century Open Mind programs with Judge Sarokin, I want to ask him whether over the years he’s at all changed his mind about some of the many decisions he’s made and opinions he’s offered both on the blog and on the Bench. Lee, what do you say?

SAROKIN: No.

HEFFNER: Never changed your mind.

SAROKIN: I’ve looked back … first of all I’ve re-read the blog in anticipation of today and there isn’t anything in there that I would want to change today.

And insofar as my opinions are concerned, there, too, I’m very comfortable with all of those opinions and stand by them today. Some of them have been reversed, but even despite that … I still feel …

HEFFNER: Even the reversals?

SAROKIN: Yes. I, I recognize the validity of some of the reversals, but I don’t think if I were writing the decision again, I would do it any differently.

HEFFNER: Well, you know I ask you this question because I was thinking as I prepared for our program together. I was thinking of the time I went out to your part of the world now, California, and I went up to San Francisco and was able to tape there a program with my old professor, Kenneth M. Stampp. One of the best historians, American historians around.

And I asked Ken Stampp “over the years have you changed your mind in terms of historical judgments?” And he very quickly said, “yes”, and he had changed his mind about certain things about Abraham Lincoln and certainly changed his mind about Franklin D. Roosevelt, so that by then, he and I agreed on a very pro-attitude toward FDR. And I wondered what you would say if I asked you the same question?

SAROKIN: Well, those are historical persons and events, so that in perspective you might feel differently about it. But when I rendered a decision or when I write these blogs I give it some careful thought. And I, I think I’ve been very consistent over the years in, in my views and I, I think they’re reflected in the current posts, they call them, to the blog.

HEFFNER: Well, what about …

SAROKIN: I didn’t even know that that was the appropriate word. I said to somebody that I was “blogging” and say, “No, you post to your blog.” (Laughter)

HEFFNER: Well, I’ve learned something now. What about the blog? How do you like doing …

SAROKIN: I love it.

HEFFNER: … posting the blog.

SAROKIN: It, it’s my only art form.

HEFFNER: Art form?

SAROKIN: Yes. Writing is the only thing that I think I do well. I can’t paint, I can’t sing, I’m somewhat of a musician. But writing is my art form and I thoroughly enjoy it. And I look for something that I can write about. I wish more people were reading it because I think very few people read my blog.

I understand that there are, are millions of blogs out there and I don’t know how to get everybody’s attention … maybe this program will do it.

HEFFNER: What do you think about the blog itself? There have been those who’ve said that the blog marks the death of journalism.

SAROKIN: Well, I know there’s a dispute about it. One of the things that bothers me the most and I’m in no position to make recommendations as to changes. But I think one of the worst things about the blog world is how many authors are anonymous, or use some fictitious name.

I think it would be a hundred percent better if everybody was required to use their own name. I read some of the commentaries … even sometimes I’ll go to a musician and there’ll be a piece that the musician has done. And then some of the exchanges between the critics are so vile at each other, the language that’s used. Personal attacks. And I just think that if they identified themselves that a lot of that would go away.

HEFFNER: Do you think this personal attack is perhaps the purpose of blogging?

SAROKIN: Well, because you’re anonymous I guess you can say anything and I think that that’s one of the failings of it. On the other hand, from an informational point of view, it’s limitless. You can find anything on the Internet … and …

HEFFNER: Truth and untruth.

SAROKIN: Exactly.

HEFFNER: Doesn’t that concern you?

SAROKIN: Oh, very much so. And it’s hard to weed out what is the truth from what is untrue. But I’d rather have it than not have it.

HEFFNER: Why?

SAROKIN: Because it’s has this wealth of information that is so readily available. There isn’t anything … if you have an illness or you want to look up something … I want to look at a Supreme Court opinion. I can get it in an instant.

I think that the availability of that information far exceeds any of the detriment of the Internet.

HEFFNER: Well, now the individual blogs … I’ve been looking through a number of yours and I find in them, of course, so much grist for our mill here. For instance, one I came across, and you know that this is a subject that I’ve been very much in for a long, long time.

This is your February 17th, 2007 blog … ”Court TV or Not To Be”? What is your fix on …

SAROKIN: I’m, I’m mixed. I, I have to admit that I’m very ambivalent on this issue. I think there are a great many advantages …

HEFFNER: Lee Sarokin is ambivalent?

SAROKIN: Yes. (Laughter) First of all I don’t see any reason why Supreme Court arguments should not be available both video and audio. I know that some of the Supreme Court Justices oppose it. They don’t want to be recognized. They don’t want excerpts to appear … blips on the evening news.

But, I, I think the public and those who want to, because there can’t be a great market for Supreme Court arguments except in some very rare cases.

But I see no reason. All the arguments against TV in the courtroom I think do not apply to the appellate courts. Insofar as the trial courts are concerned, I think there is some terrific advantages to having TV in the courtroom. It gives the public …

HEFFNER: Name one.

SAROKIN: Well, it gives the public the opportunity to see the system at work. It gives …

HEFFNER: Wait, wait a minute, Judge. Wait a minute. You say it gives the public the opportunity to see the system at work.

SAROKIN: Yes.

HEFFNER: Then you’re talking about those instances in which what goes on in the courtroom is put on television.

SAROKIN: Yes.

HEFFNER: But that isn’t what cameras in the courts generally means. Cameras in the courts means, generally, what the broadcaster wants to put …

SAROKIN: Yes.

HEFFNER: … of what goes on in the courtroom.

SAROKIN: Well, that’s, that’s the detriment of it. In other words, it’s the selection that’s the problem. Not the fact that it’s being televised, but what appears on the, on television as a result of the choices that are being made.

But you asked for a specific reason why I think there’s some advantage to it as well as disadvantages.

HEFFNER: For the whole thing, by chance?

SAROKIN: One of the advantages, I think, is if there is a judge who was particularly arrogant, impatient, rude … I think having that judge televised on a couple of occasions and having that appear might change that judge’s attitude and demeanor and temperament. I think that’s an advantage.

I think I mentioned in my article, I forget what case it was …

HEFFNER: In the blog?

SAROKIN: Yes, it was the …

HEFFNER: Here we go …

SAROKIN: The woman who … it was a Florida trial about … oh, Anna Nicole Smith.

HEFFNER: Right.

SAROKIN: And that was being televised. And I thought that was terrible. I think I mentioned in the blog that it looked like it was in somebody’s basement, having a poker game and people were standing up … you didn’t know who the witnesses were, you didn’t know who the lawyers were … the, the judge was obviously playing to the camera. And I thought that was a travesty. In fact, I think I end my blog by saying I’ve, I’ve been somewhat in favor of televising courtroom proceedings, but after seeing that I thought they ought to pull the plug.

HEFFNER: Well that’s why I asked the question.

SAROKIN: Yes.

HEFFNER: Because you say you’re ambivalent.

SAROKIN: Yes.

HEFFNER: But you’ve got to come down somewhere … you have too much of a responsibility as a man who served as you have in the courts for so long. Yes or no? I know that’s tough.

SAROKIN: Well, yes, definitely in the appellate courts …

HEFFNER: Okay.

SAROKIN: Maybe in the trial court. (Laughter)

HEFFNER: I thought you were going to say “no” in the trial courts on the basis of your blog.

SAROKIN: Well, I said I’m ambivalent about it, because I do think there are some benefits. One of the things I mentioned in there was I thought if the O.J. Simpson case had been televised and he had been convicted that the African American community would have realized that he had gotten a fair trial and they would have seen the actual evidence and there wouldn’t have been any backlash based upon his race.

As it turned out he got acquitted so that it certainly would not have served that purpose. But, I, I recognize those who are opposed to it and the reasons for it.

Generally I’d say I, I’d be more in favor of it than against it.

HEFFNER: More in favor than against it. I’m …

SAROKIN: But I’m not … right now I’m not convinced either way.

HEFFNER: What’s happening to cameras in the courts. One used to hear a great deal about it. Did the O.J. Simpson trial put a, put a lid on it?

SAROKIN: I think they’ve tried it. There have been some experiments. One thing that they have learned is that the fear that it would affect a jury’s … witnesses and judges … has turned out to be incorrect.

That they say that once the … cameras in the courtroom, particularly if it’s one of these voice activated cameras, that it hasn’t had much effect at all upon the participants. So that’s one of the arguments that had been made against it that I think has been proven to be inaccurate.

HEFFNER: But the argument that jurors, knowing that they would have to go home at the end of a trial and face the ire as well as the possible applause of their neighbors might be reluctant.

SAROKIN: Well, except a lot of them … a lot of the trials in which TV cameras are used do not … one of the rules is that they do not show the jury. So the jurors do not appear on, on television or in the video.

HEFFNER: Now, how do you contrast the downside, as well as the upside of cameras in the courts with the scribblers in the courts.

SAROKIN: Well, that’s the thing. I mean when I hear the Supreme Court say that they don’t want some quip, some blip on the TV news, I don’t’ know why the risk is any greater if it’s televised than if they have print media in the courtroom writing it down and having it appear that night on the television.

HEFFNER: Now you’ve been very modest about what you’ve said about your audience for your blog. Did you get response to the question when you, shall I say, editorialized or issued your opinion or your judgment or your decision about cameras in the courts?

SAROKIN: No. No. I, I have no recollection of anybody even responding to it. As I said, the readership is very limited so that’s a dangerous question to ask me because in most cases, I haven’t heard from anybody.

HEFFNER: Lee, I’m going to write you from now on …

SAROKIN: All right.

HEFFNER: … when I read something …

SAROKIN: Please.

HEFFNER: … on the blog. But going through a number of these … the question of hater’s speech, as you call it. You’re concerned about blogging bringing out negative feelings. You’ve not experienced that?

SAROKIN: Well, I have. And I, I, I think I mentioned in one of my earliest blogs … and it goes back to what I said at the outset about people write in an anonymous fashion.

I was astonished when I first issued my, my blog. And that was … not what was written in response to it … but what was written elsewhere on the Internet.

HEFFNER: Elsewhere?

SAROKIN: If I ran my name, for instance, to see what the reaction to the blog was … there were some incredibly vicious personal attacks that just astonished me. And I couldn’t … and, and I responded to it, saying “You know, what, what … I’m not an ax murder. I may have written some opinions with which you don’t agree. But where does all this venom come from?”

There was one person, in particular, the very first blog that I had written. Said you should go and look at something called … about the Reuben Carter case … how Sarokin got it wrong.

And I went to that figuring well, I’m going to find out the mistake I made. And he supposedly listed what was in my opinion … 90% of it was not in my opinion and then put it side by side of the prosecutors brief. And said that if you compared my opinion to the prosecutors brief you could see that I was wrong.

And I responded by saying, “Well, what about the 140,000 pages of record? What about the unanimous affirmance by the United States Court of Appeals? What about the refusal of the Supreme Court to review it? I mean don’t those things make any difference?”

And I said, if you took one side of a case and compared it to an opinion, the losing side would always make the judge look wrong, you know. So I thought that that was just so typical and such an unfair way to present something. And then I realized that’s … there’s an awful lot of that on the Internet.

HEFFNER: So that diminished your good feelings about …

SAROKIN: Yes. I almost was ready to quit before I started. I said, “Gee, if this is the way it is, if this is the way people are going to talk about you …”

I thought I would write on some interesting subjects, hopefully get some feedback, whether I was right or wrong, to engage in an intellectual conversation with the world, not to be faced with this, you know, very vicious kind of response. And there was a lot of it.

HEFFNER: What does that tell us about us?

SAROKIN: Well, I think … as you said before … I think the Internet does provide, because everything is anonymous, with people to vent with no repercussions from it. They know that they can’t be identified; they can say pretty much anything. And all you can do is respond to it, if you want to even, because some of it, you know, reaches the point where you don’t even want to answer it. But that’s the downside of the Internet, I think.

HEFFNER: That’s quite a downside.

SAROKIN: Yes.

HEFFNER: It means, doesn’t it … diseducation, rather than education? It means that …

SAROKIN: I think. I still think there’s more good, there’s more benefit to the Internet than, than detriment. So I wouldn’t … I wouldn’t want to put an end to it.

HEFFNER: Meaning you want to keep writing the blog.

SAROKIN: I want to keep writing the blog and I … as I said … that as a source of information, and there’s a lot of reliable information on the Internet, I’d hate to see it gone.

HEFFNER: So you keep writing on the blog, but you quite being a Federal judge?

SAROKIN: Yes.

HEFFNER: Now how are we going to make those reconcile?

SAROKIN: Well, one thing about the blog … you can be criticized, but you can’t be reversed. (Laugh)

HEFFNER: Now you don’t really mean that?

SAROKIN: No, no. I’m not. I never worried about reversals when I was on the court, never even entered my mind. I know that sound ridiculous, but … you write the decision as you think it should be and if you’re reversed, you’re reversed. And I think my record on reversals is pretty good.

HEFFNER: Well, what about the reasons you offered at the time of your resignation. How do you judge them now?

SAROKIN: Well, I think I said last time we were together … I, I resigned at that time in the hope of sending a message that I thought the constant criticism of the courts saying “They’re soft on crime. They’re activist. They’re Liberal. They’re thwarting the will of the majority.” was being repeated so often that it was demeaning the judiciary in the eyes of the public and that that was unfortunate.

And I thought some gallant move in resigning might make a difference. And I, I think I said to you last time … I was here maybe 10 years ago that it was a total fizzle. That I didn’t change anybody’s mind. If anything I think it encouraged it because they said, “Oh, well, we got rid of Sarokin, maybe if we do this we can get rid of some other ones we don’t like as well.”

So my intent on making this dramatic move, I think was a fizzle. And I think it also indicated that part of it, I think is thinking you’re more important than you really are …sign of an ego that you think you can make a difference by making some kind of a dramatic move. And, and it had no effect at all.

HEFFNER: Had no effect because if you look at the public and the judiciary today you see the same relationship?

SAROKIN: Yes. There’s … I, I mean the Republicans now are already talking about opposing the next nominee to the Supreme Court … and they don’t even know who it is. And I say to myself, “Well, why? Why can’t you at least wait and see if there’s some valid reason to oppose the nominee?” But everybody is so ready to attack and I think that’s the mode that we’re in now.

We’re in the attack mode in the political world and I was hoping with President Obama that it would at least relax a little bit, minimize, but I’m not so sure that it has.

HEFFNER: Well, I, I hear among these … many of the items in the blogs that I marked off. Now let me see if I can find this one … it had to do with the Chief Justice of the United States.

SAROKIN: Oh, yes.

HEFFNER: Ah, yes, here it is. You titled it “Unelected, politically unaccountable judges”. And that’s the accusation that’s frequently made. Well, they’ve created an aristocracy of themselves, an elite. They’re not responsible to anyone. But you, you say here, “But rather wish to focus … I have no intention of discussing the merits of a particular case … but rather wish to focus on the disappointing use of the phrase: ‘unelected, politically unaccountable judges’ by the Chief Justice in his dissent criticizing the majority opinion.” Now, how do you read the Chief Justice using those words?

SAROKIN: As I said that language appeared in his dissent when habeas corpus rights were granted to the detainees in Guantanamo. And he used that very expression say, you know, here are these unelected, unaccountable judges in effect acting as they should not act. And I, I’ve said that that is code … has always been code that the Republicans have used for Liberal judges. Plus the fact that all judges, I mean every decision is done by an un …

HEFFNER: Federal judges.

SAROKIN: … I mean at least in the Federal Courts … by an unelected, politically unaccountable judge. And that’s what the Constitution envisioned. And I was a little upset to see him use that language … first of all, because as I say, it comes right out of the Republican conservative play book. But I don’t think it would be appropriate or was appropriate for the Chief Justice of the United States to use that very language in criticizing the majority of the court.

HEFFNER: Are you happy that … pleased that … our Constitution provided for judges who would be un-elected?

SAROKIN: Oh, absolutely. I, I … I’m very and I’ve always been opposed and sort of appalled by elected judges.

HEFFNER: Ah, this is the subject that I really want to bring this to.

SAROKIN: Yes. First of all people voting for judges have no idea as to their qualifications. I dare say they don’t’ even know what the appropriate qualifications for a judge would be, no less whether the judge has it or not.

The campaigns … the idea that lawyers and litigants give money to judges before, before whom they appear I think is an outrage. The perception is terrible. And some judges who run for re-election run on the basis that, oh, they’ve never overturned a death penalty. You know, as though that somehow is a qualification for being re-elected.

I don’t think that judges should … judges election should be popularity contests. I mean as, as I think I said in the article, an unpopular judge can be the very best judge.

We don’t always make popular decisions. And so I don’t think and I don’t mean to demean the citizens who vote, but I don’t think they’re qualified to decide who should be a judge.

HEFFNER: So appointment should be the only …

SAROKIN: Absolutely. And there can be … you know, they’ve tried a lot of experiments with having committees make recommendations to the appointing authority … non-partisan committees, members of the … citizens and members of the bar. But … and I think that people who make the appointments take the responsibility very strongly and want to make sure that they appoint somebody that they’ll be proud of. I mean I don’t deny that there’s politics in the appointment … I mean the party picks their own people. But that doesn’t necessarily mean that they’re unqualified.

HEFFNER: And your further concern, as I understand it from what you’ve written, is the role that money does play.

SAROKIN: Yes, I mean, the idea that … and I think there was an article in New York Times about it … some professor had done a study that people who gave money to the judges faired better than people who didn’t.

But I don’t even think you need that. I think the idea that somebody … either a lawyer or a litigant can appear before a judge, having given money to that judge for a campaign … and the example that I give in the blog is in the middle of a trial if somebody walked up and handed a check to the judge and said “Here’s for your campaign” we’d all be outraged. Well what difference does it make if the check was given a week before? And so I, I’m totally opposed to elected judges, but I think close to 40 states have elections for judges.

HEFFNER: And is it moving in one direction or the other?

SAROKIN: I don’t think it’s changing. I think, you know, it’s one of those things that is sort of ingrained and I don’t think there’s any ground swell despite my views on it that it’s going to change.

HEFFNER: Understood. But there are many more of these blogs that I want to question you about.

SAROKIN: Okay.

HEFFNER: We’ve reached the end of our program. Stay where you are …

SAROKIN: All right.

HEFFNER: … and we’ll do a second program.

SAROKIN: Thank you.

HEFFNER: Thanks, Judge Sarokin.

SAROKIN: Thank you. 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 $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an 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.