For the past 29 years, Joel Cohen has been an accomplished litigator at Stroock & Stroock & Lavan in New York City. He is also the author of a regular column in the Law Journal. And he has somehow found time to write four works of fiction, three of which tackle religious subjects. Blindfolds Off is his first non-fiction work, and it sets out to “examine what goes on in a judge’s mind that may not be reflected in the record.”
Cohen’s technique is the probing interview. Thirteen federal judges, all but two of whom are still sitting, agreed to be interviewed about a significant case over which they presided. Judge Denny Chin talks about sentencing Bernie Madoff to 150 years. Judge Nancy Gertner talks about awarding Peter Limone and others $100 million in their wrongful conviction lawsuit arising out of the FBI’s insidious relationship with Whitey Bulger.
Judge Jack Weinstein talks about his handling of the Agent Orange class action suit in which he travelled the country to give Vietnam veterans a voice. Judge Emmet Sullivan talks about the trial of Senator Ted Stevens, which he aptly calls a “train-wreck.” Judge Alex Kozinski discusses a search-and-seizure case in which he accused his Ninth Circuit colleagues of “unself-conscious cultural elitism.” And so forth.
As Judge Richard Posner writes in his forward to the book, Cohen is “a skillful and tenacious, though invariably courteous, interviewer,” and the judges seem comfortable in talking to him.
Two examples give the style of this highly readable book. Cohen interviewed Judge Jed Rakoff about his decision to hold the federal death penalty statute unconstitutional in the case of two Bronx narcotics traffickers—Alan Quinones and Diego Rodriguez—who savagely murdered an informant, burning his body before dumping the remains. (The Second Circuit reversed Rakoff’s ruling.) Among the questions Cohen asks are these: Why had the judge raised the constitutional issue sua sponte at the outset of the case? Did he see himself as an activist? Would he have reached the same result if the defendant had been Osama bin Laden? And most personally, was the judge’s decision-making affected by the fact that his own brother had been bludgeoned to death in the Philippines by an intruder who then set the apartment on fire?
In his answers, Rakoff tells Cohen that when he decided Quinones, he knew that he had “ended any chance for [him] to reach the Second Circuit Court of Appeals.”
And there is the interview of Judge Vaughn Walker, who in Perry v. Schwarzenegger invalidated Proposition 8, the California voter-initiated amendment prohibiting same-sex marriages. Walker had been nominated by President Ronald Reagan but not confirmed, in large part because of his forceful representation of the U.S. Olympic Committee in its lawsuit to prevent a San Francisco athletic association from using the name “Gay Olympics.” (Democrats, led by Nancy Pelosi, had opposed his nomination because of his perceived insensitivity to gays.) Two years later, President George Bush renominated him, and he served as a district court judge for 22 years until his retirement in 2011. On retiring, he announced publicly the then “open secret” that he was gay and had been living with a partner for 10 years.
Cohen’s questions include these: Did the judge consider announcing his sexual orientation when Perry was first assigned to him? Would he have felt comfortable representing the Proposition 8 proponents had he still been a litigator? Had he discussed gay marriage with his partner before the Perry case? Was he affected by the presence of David Boies and Ted Olson as plaintiffs’ counsel? Did his retirement have anything to do with his ruling in Perry?
In answering the questions, Walker appears thoughtful but reserved. When Cohen says that he is trying to “get into the [judge's] head,” Walker calmly replies that “there’s only room for one.”
Cohen dedicates his book to Benjamin Cardozo, who wrote famously that “[t]he great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by.”
But many of Cohen’s judges insist that their own predilections have little to do with their judging. Judge Leonie Brinkema tells Cohen that she approached the Zacarias Moussaoui case (the case of the so-called 20th hijacker) “the same way as any other—to ensure the . . . justice gets done.”
Gertner says that the judicial “enterprise is to make sure that in the process of judging [one's] general views don’t dictate the outcome in a particular case.” Rakoff announces that “the basic principles of law have to be the same for all cases,” so that if Osama bin Laden had been in the dock, he hopes that he would have decided the death penalty issue the same way. And Judge John Jones, who presided over the intelligent design case in Pennsylvania, reports that he “call[s] them according to the law and the testimony that [he] hear[s].”
Of all of the judges, Weinstein is the most open. He candidly acknowledges that his experience in World War II influenced him to “try to ensure that the veterans who might have been affected [by Agent Orange] were treated as respectfully and considerately as was consonant with the law and facts”; that his wife’s work after World War II treating soldiers with psychiatric disorders “may have had an impact” on him; that he used his opinion as a “bully pulpit” to get the federal government “to pitch in” (it had declined to waive sovereign immunity); and that he appointed Leonard Garment as a special master because “Leonard had back door access to the White House.” The great tides and currents did not pass Weinstein by.
It is rare to hear judges discuss their craft, and Joel Cohen deserves great credit for getting 13 impressive men and women to speak.
Excerpt From Interview With Judge Nancy Gertner
Cohen: Do you think your decision in the Limone case, awarding $100 million and actually saying in your opinion that the wrongdoing went all the up to J. Edgar Hoover, was a courageous opinion?
Gertner: I never thought about that. I really never thought about the consequences. I have to admit that I didn’t think of it in those terms. I became a judge notwithstanding a career of challenging everything. My book, “In Defense of Women: Memoirs of an Unrepentant Advocate,” begins with this funny story. A panel with me and Justice [Sonia] Sotomayor on it. Women students at Yale Law School wanted to know how to become a judge. And Justice Sotomayor, when she was on the Second Circuit said, “Well, you go to this fine institution, you do very well, you work for the government, you work for a private firm, you’re cautious about your opinions and then you become a judge.
I got up and I said, ‘How does one become a judge? Well, you represent the first lesbian feminist radical revolutionary accused of killing a police officer you could find. That would be your first case in prime time. You then do every abortion case in the Commonwealth of Massachusetts. You speak on the Boston Common. You burn things, I think I burned my Bar card once, because of some decision I didn’t agree with, and then for the final coup de grace, you marry the legal director of the ACLU. And then you become a judge. I guess what I’m saying is that I did many things that were risky and challenging, legally risky, politically risky, career risky.