U.S. District Judge Edward Korman of the Eastern District of New York owes a large part of his approach to deciding cases to advice from a former boss, Robert Bork, U.S. solicitor general at the end of the Nixon administration.
"We were talking," Korman said. "I’ve never forgotten this. He said, ‘There’s nothing wrong with judicial activism if what you’re actively enforcing is really in the Constitution or a statute. The problem is judicial imperialism.’"
Using Bork’s distinction, Korman said he has no problem with anyone calling him a judicial activist.
In an interview with the Law Journal, the judge said that the phrase is "often misunderstood. It doesn’t mean a judge doesn’t strike down actions of the elected branches of government."
The judge’s willingness to take on the federal government when he thinks it is called for was on display recently in a scathing decision in Tummino v. Hamburg, 12-cv-763, ordering the Obama administration to grant access to emergency contraception—the so-called "morning-after pill"—without prescription or age restrictions.
Korman refused to discuss his opinion, in which he blasted the restrictions as based on politics rather than science.
Yesterday, at a hearing on the government’s motion to stay his ruling, Korman swatted away arguments by Eastern District assistant U.S. attorney F. Franklin Amanat that he should have remanded the case to the Food and Drug Administration.
Korman said there was "no absolute rule" that he had to keep sending the case back, pointing out he had already done so in his 2009 ruling that removed prescription requirements on access to contraceptives for girls 17 and over.
"I was the responsible, conservative judge the last time," he said during the hearing.
Korman, who said he would rule on the stay request by the end of the week, said in court that the government’s attorney had "absolutely no credibility" in urging another remand.
Speaking generally during his interview, Korman, said that the law "builds in deference" for reviews of the decisions of administrative agencies like the FDA.
"The normal standard of review of an agency decision is whether it’s arbitrary, capricious and unreasonable," said Korman. "That’s a fairly deferential standard… It’s not the same as saying I review de novo. I’m not saying what I would have done."
Korman said judges "basically try and understand what happened here and what [administrators] are doing. But, again, the test is not what you would do if you were the administrator." He also noted there was "a wide range of what constitutes reasonableness and that’s why, in that wide range, the decision of an administrative agency is entitled to deference."
The judge notes that he is not "the primary lawmaker." Rather he must follow the lead of the U.S. Court of Appeals for the Second Circuit and the U.S. Supreme Court.
"I operate under enormous constraints," he said.
On occasion, however, Korman said he has issued decisions, especially in criminal law, that follow existing statues but then state that the law is wrong and should be changed.
"There is a tendency of everybody to do what’s been done before and often, no one stops to ask, ‘Does this make sense?’" he said.
That assertiveness is also on display when Korman handles non-jury medical malpractice trials.
Though he does not try too many of these cases, Korman said he is "often dissatisfied" with the parties’ paid experts. So in "almost all the cases that have gone to trial," Korman said he has appointed his own experts.
"The real question—and this involves all medical specialties, it’s true across the board—the challenge is to learn about the specialty and often to try and get away from the junk that the parties are throwing at you."
‘In Love With the Law’
Korman, 70, was born and raised in Brooklyn and has spent the majority of his career there. He said he "fell in love with the law" during his first class on agency and partnership at Brooklyn Law School 50 years ago. Korman is now a member of the school’s Board of Trustees and also once taught there.
His experience clerking for state Court of Appeals Judge Kenneth Keating sparked his desire to become a judge.
"When I finished that clerkship, I thought, I don’t know why I can’t go out to the bench right now," said Korman.
Instead, he worked at Paul, Weiss, Rifkind, Wharton & Garrison as an associate and then as a prosecutor in the Eastern District U.S. Attorney’s Office. From there, Korman moved to Washington, D.C., for two years as an assistant solicitor general to Bork and his predecessor, Erwin Griswold.
Korman then returned to Brooklyn, where he held the number two spot in the U.S. Attorney’s Office for the Eastern District from 1974 to 1978. He was appointed U.S. attorney by President Jimmy Carter and held the job until 1982.
Korman was a litigation partner at Stroock & Stroock & Lavan when Democratic Senator Daniel Moynihan recommended him for a new judgeship in the Eastern District. President Ronald Reagan nominated him in 1985.
Bork administered the judicial oath to Korman, and Governor Mario Cuomo spoke at the induction.
The juxtaposition of the conservative Bork and liberal Cuomo at the induction of a Reagan appointee who had been recommended by a Democratic senator caused one attendee to tell Korman, "There’s a lot of people who are going to be confused here."
Though Korman says he does not seek the spotlight, he has handled his share of high-profile cases.
For example, he struck down state Republican Party rules on ballot access to the presidential primary several times and rejected New York City’s attempts to cap its liability for the 2003 Staten Island Ferry crash that killed 11 passengers.
In what he considers his most significant case, Korman oversaw the $1.25 billion settlement of a class action suit brought by Holocaust survivors and victims’ families against Swiss banks.
Korman’s 59-page Tummino ruling on the morning-after pill, released on April 5, has drawn widespread attention, including hundreds of thousands of mentions on the Internet.
Supporters of his opinion praised his "landmark" decision.
Mary Beth Morrissey, a healthcare attorney and researcher, called the ruling "an example of judicial restraint" that did not carve out any new rights and instead reinforced the "fundamental human right" of access to contraception.
Morrissey, also a fellow at the Global Healthcare Innovation Management Center in Fordham University’s Graduate School of Business Administration, said Korman’s decision displayed "a very classic interpretation of administrative law. He finds that the secretary’s decision deserves no deference, that it is arbitrary and capricious. He lays out a number of grounds for why that’s the case."
But the opinion also provoked sharp criticism for threatening to endanger the health of young girls and for running roughshod on parents’ rights to be involved in their daughters’ decisions.
"The concerns of the administration, the secretary, the medical community and parents were just pushed aside by this judge for the political ideology he has," said Anna Higgins, director of the Family Research Council’s Center for Human Dignity.
Korman said over the years he has developed a thick skin.
"You like to be praised rather than criticized. The sting rolls off either way," he said. "It’s part of deciding cases. And if there are high-visibility cases, there’s likely to be praise and criticism."
Attorneys who have appeared before Korman say he is held in high regard among members of the bar.
Criminal defense attorney Roger Adler said "attorneys appearing before him know he is both legally brilliant and exceedingly fair."
Korman, Adler continued, "appears deeply aware of the consequences" of his orders and always brings "a sense of rachmones," using the Yiddish word for compassion.
Thinking back to his own experience as an attorney, Korman said he "hated it when judges tried to coerce settlements and I’ve never done that here. I try to be a catalyst, not a cattle prod."
One attorney involved in the emergency contraception litigation said Korman took exactly that approach.
"He wanted to know if perhaps he could bring us to a middle ground but I think he realized from discussions there was not a viable middle ground here," said Suzanne Novak, a former senior staff attorney at the Center for Reproductive Rights who worked on the case for three years.
Novak recalled two hearings where Korman and the parties sat around a table in the courtroom’s well. (Korman always conducts hearings on motions in that setting.)
She remembered he was "polite," with a "pleasant demeanor and very well prepared." He had "pointed questions he wants answered. He let the parties talk and then wanted to know the answers to his questions."
Korman served as chief judge for the Eastern District from 2000 to 2007 before taking senior status. He said that he has not slowed down; he is still fully on the Eastern District’s criminal wheel, on the wheel for half its civil cases and hears appeals in various federal circuits. He handles about 200 district court and 60 appellate-level cases a year.
Korman said the task of the law is "all consuming," leaving time for only his family. He is married with two children and credited his wife, Diane, an assistant district attorney in Brooklyn, saying he could not have done the job without her help.
Korman pointed out that the wording of the judicial oath— where judges pledge they will "administer justice without respect to persons, and do equal right to the poor and to the rich"—has its roots in the Book of Deuteronomy.
"I always thought those who administer the law, in effect, do God’s work," he said.
When asked what he considers the most rewarding part of being a judge, Korman took a long pause before answering.
"The most rewarding part is simply the intellectual challenge of dealing with significant legal issues and trying to resolve them in a way that’s consistent with the law and what I think is just," he said.
Andrew Keshner is a reporter for the New York Law Journal, a Legal affiliate. •