Bolch Judicial Institute
Bolch Judicial Institute
Print Friendly, PDF & Email

Judgment Calls

Episode 2: Judge Jon O. Newman

November 20, 2019 | Season 1, Episode 2 | 39:59

Featuring

Senior Judge Jon O. Newman, U.S. Court of Appeals for the Second Circuit

Highlights

  • Judge Jon O. Newman talks with David F. Levi about his life on the bench as recounted in his recent autobiography; the qualities that make for a good judge; and the differences between district and appellate judges and courtrooms.
  • Judge Newman shares his personal judicial decision-making process and lack of judicial philosophy, saying, "There isn't a framework from which you can have a fairly good prediction of what I'm going to do on close cases."
  • Judge Newman recounts stories of the people and experiences that have impacted his career, including two of his judicial heroes, Judge Learned Hand and Judge Henry J. Friendly.

Additional Links

Transcript

Levi: From the Bolch Judicial Institute at Duke University Law School, this is Judgment Calls. I’m David Levi. I’m a professor of law and judicial studies and director of the Institute. My guest today is Judge Jon O. Newman of the United States Court of Appeals for the Second Circuit.

Judge Newman is one of the nation’s longest-serving and most respected federal judges. He also is a leading thinker on judicial administration. He was appointed to the U.S. Court of Appeals in 1979 after serving as a United States district judge. He was chief judge of the Second Circuit when he assumed senior status. He has held a range of other positions as well, including as a law clerk to Chief Justice Earl Warren of the United States Supreme Court, and as an assistant to Governor and Senator Abraham Ribicoff.

Judge Newman has written judicial opinions that have influenced the development of law in a variety of pivotal cases. He also is a scholar who has written extensively about the federal courts and topics such as the sentencing guidelines. And now he’s written an autobiography called Benched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Federal Judge. It sounds pretty exciting.

The book offers 20 proposals for improving the U.S. justice system and also takes a look at what judges do, how they think, how they decide cases. It’s extremely interesting. As a former federal judge myself, I always appreciate hearing Judge Newman’s thoughtful commentary. What a treat to have him here today.

I think a good place to start our conversation is with the question, what makes for a good judge?

Newman: I think for a trial judge, appellate judge, Supreme Court judge, [it’s] a little different. The trial judge has a function that the appellate and Supreme Court judges don’t have. The trial judge, first he’s the face of justice, he or she. The public is in that courtroom, they’re watching. They’re not in the appellate courtroom. We hear an appellate argument, nobody’s there but the lawyers. When I ran trials, people were there. The community walks in and out. You had regulars who were there. It was their entertainment.

Levi: It’s true.

Newman: So the public is there and it’s a busy place. The lawyers are there, the jury is there, things are going on, and everyone in that courtroom was looking at the district judge all during that trial. And that district judge, and I’ve said this to district judges over the years, “You set the tone, you are the face of justice for all of those people.”

And I think setting the tone and how you conduct yourself is as important as the particular decision you make in the nice point of law. They’re both important.

Now, appellate court, very different, because nobody’s there. So, the only way we’re assessed is how are we doing on outcomes and the quality of opinions? Are they clear? Are they helpful? That sort of thing. There’s a little bit of how we conduct ourselves. Some appellate judges are pretty unkind to appellate lawyers, but that’s pretty rare. So, with the appellate court and Supreme Court, it’s the work product. With the district court, it’s the work product and the conducting of the trial courtroom. So that’s one difference.

Beyond that, what do we expect of an appellate judge and Supreme Court justice? You say, “Well, of course, we say fairness,” but you can’t just put that aside, because that’s the first three characteristics. They got to be fair. They can’t come at the problem with a preconceived set and say, “Well, I’ve got to read the statute to tilt a certain way, liberal or conservative.” You can’t do that. If it’s a point of law that has nothing to do with a statute, but it’s just some common-law principles or whatever it is, you want to be fair. You want an outcome that is faithful to the law as it has developed. And then what do you do with the issue that is novel? We don’t get too many novel issues, but once in a while we do. And you use what everyone in the world calls judgment. It’s not a coincidence that we are called judges and there’s a word judgment. That’s not a coincidence. All right, so we use judgment.

What judgment do we bring to bear? I think it’s the product of who we are. It matters who the judge is. It matters where the judge came from. It matters his upbringing, parentage, education, religion, community surroundings, work experience. All those things go into who we are. And yes, some judges will come out one way on a close question, and some will come out the other. Some will criticize and say, “Well that’s indeterminacy. You can’t predict the law.” I think you need a little indeterminacy in the law. It’s not a computer. You don’t feed the facts in and get a result coming out. These are questions that develop over time. The law develops over time. The law isn’t today what it was a 300 years ago, or even 30 years ago on some questions.

Now I know that raises a large issue when you come to the constitution, and there’s a debate, as you know, some people will say it’s a living constitution and it must adapt to new conditions. And other people say, “No, no, no. We have the text and we’re originalists, or we should be, and so we go with what they meant in 1787.”

And I’ve always thought the answer is neither, that there are some clauses that you must take literally. It says the president must be 35 years old to be president. Well, in 1787, there weren’t many people beyond 60. Now there are all these people, 80, like me, even more. But we still say “No, he’s got to be 35 years old. We’re not going to tinker with that.” But another clause says there shall be no cruel and unusual punishment. Do we take cruelty to mean the same thing today as in 1787? I don’t think so. It says, “Don’t take away liberty without due process of law.” That’s a pretty vague phrase. Liberty itself, pretty vague word. So do we go to a dictionary and say, what did liberty mean in 1787? What did cruel mean? I don’t think so. I think those are clauses the framers understood judges would infuse with meaning as time marched on.

And I have no problem with that. It’s dangerous in a way. You put judges on a court and tell them they can interpret the Constitution, you take a risk, no question. But what’s the alternative? The alternative is you give unbridled power to the executive branch, or unbridled power to the legislative branch. I don’t think those are good alternatives. I like the mix of power; executive branch, legislative branch, judicial branch. But judges need to be aware that they are not the executive, they are not the legislative. They have some discretion, but they need to use it with a sense of restraint, a sense of their role in a tripartite system, a sense of history, where the law has evolved from. All those things going to… So what does a good judge do? A good judge thinks of all of those things.

Levi: So it would be interesting, I think, to hear you reflect on some of the… the difference, maybe, in culture or approach as between the court of appeals and the Supreme Court.

Newman: Well, first I would distinguish between courts of appeals and the Supreme Court because their business is so different. The Second Circuit that I’m on, sitting in New York, covering three states, has 4,000 filings a year. We probably decide about 1700 on the merits. Of those cases, three will go to the Supreme Court. So we are final for 99.2% or whatever it is, almost all. And while we have some so-called hot button issues, after all, those cases that get to the Supreme Court, whether they’re abortion or Citizens United or whatever, they came from somewhere. But for the most part, that’s not what we’re doing day-to-day.

We are taking technical federal statutes, securities regulation, antitrust, copyright. And first, we’re trying to figure out what did Congress really mean by this phrase? The phrase was clear, that’s an easy case. We just say, “Well, they said it.” And so we apply it. But the close cases are where it isn’t clear. And so we have to use our best judgment to say what that vague phrase means on these facts to carry out what we think Congress is trying to do. And we know that if we guess wrong, the Congress can say, “No, no, no, we didn’t mean that. We’ll change it,” but they rarely do. So that’s the kind of stuff we do, detailed technical stuff.

Then we have the review of trials. That’s a different task. The trial judge ran a trial. Might have been a one-week trial. It might’ve been that eight-month trial. It wasn’t perfect. Probably made a couple of mistakes. Probably let in a piece of evidence he shouldn’t have, and she probably kept out a piece of evidence she should have let it. Are we going to grant a new trial and say, “Oh yeah, it was eight months, but do it over again,” because of that? No, we’re not. We’re not. We’re not fools. May not be brilliant, but we’re not fools either.

So you take a look and say, “All things considered, was that a fair enough trial? Was justice done? Should there have been a conviction? Should there have been a verdict for the plaintiff or the defendant?” So you have those… Supreme court doesn’t do that at all. When was the last time the Supreme Court worried about whether some evidence should come in? Very, very rare. So, they’re taking these eight or 9,000 requests for review that come to them and they’re saying, “Here are the 80 cases out of 8,000 that we’re going to look at.” So, they’re bound to be the controversial cases. Nothing wrong with that.

And so, burning first amendment issues, gerrymander issues, abortion, gun control, those cases are going to loom large on their docket. That’s fine. That’s alright. Now when you say is it political, those who think that means is it partisan, are they supporting a party or not, the answer is easy. No, we’re just not doing that. If people think that, they’re entitled to think that, but it is not true. I think what most people are skeptical about with courts is not are we supporting a party, but are we deciding close cases based on our personal view of what the law should be? That’s different from partisanship. And I suspect, out of the however many, 1500, 1800 federal judges, there may be a very small number, that in a small number of cases, give in to the impulse to decide a close question the way they would like it to come out.

But my experience dealing with many, many judges over many, many years has been that is not the way they do it. And I am quite sure it’s not the way I do it. It’s not the way we think about it. I have applied federal statutes that I thought were absolutely stupid. Did I say to them, “Oh, well I’m not going to apply this statute because I think it’s stupid.” No, the Congress passed it, I’m going to apply it. I even twice said something was unconstitutional that had I been a legislator, I probably would have voted for it because I would’ve thought, “It sounds pretty good and the public probably likes it. But as a judge, I think it’s unconstitutional.” And that’s a different issue. Are you applying your personal preference for the law? And that, you’re not supposed to do. And I think judges are very faithful to that. Now, there’s wide public skepticism. A lot of the public doesn’t believe that.

Levi: They might believe… Well, this would not be the public. I think scholars might say, “Well, that may be the way they actually think about it,” but in the mystery of what motivates the kind of thought, they’re feeling that this is unjust or this is just, or this is reasonable or unreasonable, or I would vote for it as a legislator, or I wouldn’t, that in a way that we’re not even perhaps conscious if it affects your judgment.

Newman: There is that. And I think on close questions, we don’t know exactly what motivated us, and I’ve said this about other decision-making. People make decisions all through life; where to live, which job to take, who to marry, where to go to school. They can probably articulate what they thought were the reasons. Were those really the reasons? They don’t know.

And I don’t think I always know. I’m quite sure I don’t always know what really motivated me. But I know what I try to preclude from motivating me, and I know what I strive to focus on.

And when you say whether people are skeptical, here’s my example of how skeptical. I have had law clerks come to me after we have tentatively decided to come out a certain way. And I send them into the record to be sure we have covered something and they say, “Well Judge, here’s this fact. On page 4,806 the witness said this.” And I say, “No kidding? We missed that. The lawyer didn’t point that out to us. That probably requires a different result.” And the clerk will say, “Judge, you would actually come out differently because that fact is different?” I said, “That’s the business I’m in. Of course, I would, and it shouldn’t surprise you.” But that’s the cynicism that is abroad in the land.

Levi: Right.

Newman: And that’s too bad.

Levi: You mentioned Henry Friendly yesterday as sort of your judicial hero and you served with him. Was he the one that sort of stands out… excluding current colleagues, because I don’t want to put you in that position. But was he the ideal… I mean, somebody you look to as a judicial mentor?

Newman: Clearly, he was the best judge I ever served with, and not only the best, but far and away the best. I mean, he was in a separate league. He had an astonishing knowledge of the law. And the reason that’s useful… I mean we can all look it up somewhere. The reason that’s useful is when Henry Friendly wrote, he did two things. He made sense of the corner of the law he was dealing with, not what he wanted personally, but he simply made it coherent. There were a bunch of decisions out there that were not coherent, so he wrote about it so that after he had touched that corner of the law, it was more coherent than when he began.

Secondly, he didn’t mess up the surrounding area. And that’s a mistake a lot of judges make because they don’t know enough about all those other areas. But Friendly knew so much law that he said, “I want to confine the decision to this, try to be helpful in this area, and not say things that are going to complicate or mess up the other areas.” And he wrote carefully, clearly, thoughtfully, sometimes imaginatively. All those are great qualities and they’re rarely in one person.

Levi: What kind of a person was he? I don’t think I ever met him.

Newman: Well, he was essentially shy for the most part, not a backslapper or glad-hander, but not difficult to be with. I must say, I had seen him in different capacities. I had argued cases in front of him. Many when I was U.S. Attorney. I had been affirmed by him as a district judge, and then I came to sit with him. And I have to say, it was a full year before I could call him Henry. I just wasn’t going to do that. He wouldn’t have minded. It took me a year to feel comfortable calling him Henry.

Levi: He had a sense of humor. You tell a story in your book about how you were going into the courtroom, the three of you, judges on a panel, and you had some highly technical case that was going to take huge amount of work, but probably not the most exciting work [crosstalk 00:17:51]

Newman: Oh yes. We walked into the steps into the robing room, and he was serving on the panel with another very elderly judge, J. Edward Lumbard, who was also a very distinguished judge, and he turned to him and he says, “Well, Eddie, I guess we know who’s going to write this one.”

Levi: A little bit like the junior justice answering the door.

Newman: Right.

Levi: And in fact, you got it.

Newman: In fact, I got it. Absolutely.

Levi: Yeah. Well, what a great career he had. You’d like to try to bottle that or somehow permit… Maybe you can’t have too many judges like that, because-

Newman: I don’t think so. I mean, it starts with … After all, he was number one in his class at the Harvard Law School. Not only number one, but one of the highest rankings ever. He had a phenomenal mind.

Now, that isn’t enough. That’s a great start. But that’s not enough, because some people can be very, very bright intellectually and still mess up the law. But he didn’t do that. He had a wonderful sense of the whole sphere of the law, so his brilliance helped him be useful, not take him off detours.

Levi: That’s interesting. You appeared before Learned Hand, as well, I think.

Newman: My very first appellate argument was before Learned Hand. Want to hear about that?

Levi: Yes.

Newman: Literally, my first appellate argument in a court was a trivial case that my client had asked me to take to the Second Circuit. I told him it was a loser. He said, “Argue it anyway.” So I go up there one day and Learned Hand was then, I think, 89 years old, senior, sitting on the side of the bench. Judge Lumbard was presiding and I walk up. As I got up to the bench, I had noticed Judge Hand was sifting through the papers and throwing them up in the air. This was an old crotchety man looking for something. And it was an uproar. And I look over, and Lumbard, “Oh, you go right ahead, young man. You go right ahead.” So I have 10 minutes.

So I start arguing this trivial case, and through the whole time this uproar is going on over there. You’re nervous enough on your first appellate. This really didn’t help. Seven minutes into the argument, he turns to Judge Lumbard… and the judges sit fairly far apart, so it’s a stage whisper. But it went to the back of the courtroom. He says, “Say, Eddie, what’s the name of this case anyway? Is it Newman against McCarthy?” He says, “No judge, those are the lawyers.” So I’m two thirds through my 10 minutes and the great Hand doesn’t even know what case I am arguing. But that was my maiden voyage into appellate advocacy.

Levi: Well, I understand, maybe at an earlier point in his life when he was upset with the lawyer for whatever reason, not well prepared or just didn’t like the argument, he would turn his back to the lectern. So he would just actually just swivel around. He was so angry.

Newman: Well, there’s the story that he once actually took a brief and threw it at the lawyer. Actually threw it at him, he was so upset.

Levi: Not a good move.

Newman: Not a good move, no.

Levi: So what about judicial philosophy? Was it Voltaire or Socrates, somebody… We all have a philosophy of life, some of us don’t articulate it. Do all judges have a judicial philosophy? And is it whether you choose to articulate it or not, you actually have it? But do you have one?

Newman: Well, I can cite a witness on this. A fine judge, Richard Posner, now a former judge, led the Seventh Circuit, one of the most prolific and brilliant members of the federal judiciary. One of his books says… He talks about a few judges and he gets to me. I was surprised he even bothered. And he says, “Judge Newman doesn’t have a judicial philosophy.” And I wrote him, I said, “I take that as a compliment.” I don’t know how it was intended, but I think he meant there isn’t a framework from which you can have a fairly good prediction of what I’m going to do on close cases. I don’t start with a philosophy, a framework, a point of view. I think that’s what he meant. I hope that’s what he meant.

Levi: But that is a philosophy, in a sense. I mean, I think that’s the way-

Newman: Well, if that’s a philosophy, if the absence of a frame of reference is a philosophy, then I guess I plead guilty.

Levi: But I don’t think you have to plead guilty. I think you say, “I’ll take the prize.” Because I think, for many judges, that’s what they mean by being fair. That’s what they mean by being open-minded. You don’t hit the bench-

Newman: Well, there are other things. For example, Aharon Barak was one of the great judges of the world, was the president of the Israeli Supreme Court for many years. He talks about judicial philosophy in his writings, and one of the things he talks about is, the judge must make his decisions, particularly in the context between government and the individual, he must make it to promote democracy. He thinks of that when he decides those cases. That’s a philosophy, to be sure your decision is not only adhering to, but promoting democratic values.

I don’t think I think that way. I recognize I’m in a democracy. I’m in a tripartite system of government. I’m in a federal system, I’ve got a lot of constraints and I try to be faithful to all of those. And of course, I’ve got a lot of precedent and I take that seriously. If I’ve got a case law in my circuit that tells me the answer, I’m thrilled. I’m not looking to strike out on new paths every day. If I could find that the law says this, fine, but on the close cases I’m not going to find such clear law.

Levi: Am I remembering? Is there a story in your book where, I think maybe you’re in the role of an advocate, and the judge says something like… to you, “You have a problem with such and such.” And you said, “No, that’s not my problem. That’s your problem, judge.” Or maybe you were the recipient of that. I don’t remember.

Newman: It was sort of… You’re close.

Levi: How close?

Newman: The case was… It came out of the Abscam?

Levi: Yes.

Newman: Oh, well there are two. There are two, but the one that comes to mind first is Abscam, which was a major corruption case in its day, when the FBI prosecuted a senator and a few congressmen for taking bribes. And one of the questions that troubled me was, at the early stage of the case, I was on the appellate court then, can the prosecutor go at congressmen to see if they’ll take a bribe without any suspicion that they might? I was a little worried about that, because that gave one party the opportunity to go after members of the other party. And you maybe find two or three who take a bribe and you bring a case.

So I asked the U.S. Attorney, I said, “What do you say about their argument, that this is maybe separation of powers? This permits one branch to go at the other branch to see who they can catch.” And the U.S. Attorney says… I said, “What do you say about their argument?” He said, “Your Honor, that’s not their argument. That’s your argument.”

Levi: Oh, that’s it. That’s the story.

Newman: Well, whose ever argument it is, what’s the answer?

Levi: That would have been impertinent.

Newman: Oh yes, but I loved it. I don’t mind a bold answer like that. I thought it was great.

Levi: Well, so you know that the FBI actually has… now they have this concept of predication. I don’t know if you’re familiar with that. When I was U.S. Attorney, we had an investigation of the State Capital in California in Sacramento, and we did an undercover sting. And it was the first undercover operation that the FBI authorized after Abscam, because the congressional backlash on Abscam was so powerful that the bureau was very, very sensitive to doing anything like that. And that’s fine. I think we would all say, should be sensitive. But they had developed the concept of predication, which was something like probable cause, so that you could not actually approach a legislator without predication.

Newman: You can’t just test him.

Levi: There had to be reports. They might not be such that you would say, “Oh, we’re ready to put an indictment together.” And I think, as we both know, prosecuting public officials is a very difficult thing and should be done very cautiously. You want to have overwhelming evidence, frankly, or you probably don’t have any business in the space.

So they did develop that concept, so they were aware of what you’re talking about. But you know, maybe we should talk about this a little bit. I mean, we’re in an era where the criminal law, but really talking to you now as a former U.S. Attorney, the criminal law is being used pretty… or at least it’s being talked about to be used to investigate political figures in a way that I find very concerning. You know?

So in this last campaign, there was talk about Secretary Clinton, now we have a special prosecutor. We’re seeing sort of an uptick, I think, in the use of the criminal law… Or maybe what I’m reacting to is sort of an eagerness to use the criminal law to punish one’s opponents, which I think we’ve, so far anyway, we’ve managed to avoid in this country and it’s… I think we’ll pay a very, very high price for it… That’s not to say that I don’t think people should be prosecuted if they violate the law, but I don’t think there should be eagerness to do it. I think we should be really, really careful about this because you don’t want the price of political defeat to be, “Oh, I get prosecuted.”

Newman: No. No question. And you touched on special prosecutor, and it’d be inappropriate for me to say anything about current issues, but I do have thoughts about the general issues of the role of the special prosecutor, and I think we can do a lot better.

I have a proposal which I’d be glad to suggest. Right now, we appoint a special prosecutor or a special counsel for a case or a subject matter. I think that’s a mistake. I think what they should do is, first of all, I would create, have the Congress create a bipartisan commission, perhaps 10 members, five Republicans, five Democrats, and they would appoint, for a 10-year term, a special prosecutor. And probably they would go to a faculty and find a former prosecutor. Perhaps you, or somebody of equal experience and attainment. Somebody who could take a leave of absence rather easily. Doing it from a law firm is sometimes difficult, although possibly a former U.S. Attorney who’s in a law firm could do it, but I think it might come from a faculty. That person would have a 10-year term so that if a matter came along that seemed to warrant investigation by a special prosecutor, first I would say, that commission, having appointed him, let him investigate but not indict. He should have to come back to them and get a two thirds vote before he can indict.

But the point is, he’s not appointed for a case. Now, I don’t mean to suggest every special counsel feels an obligation to indict, and a few of them over the years have declined to indict. But most have. And I think there’s almost a certain human element in there. Well, I’ve spent a year, I ought to show something for it. Whereas, with a 10-year term, the person would feel, “I’m looking at something. I’ve heard some allegations. I’ve looked into it. I don’t think there’s a crime here.” And then he would go back to teaching or whatever, and two years later there might be another. I think that would be much more satisfactory and much more accepted by the public than appointing a man for a case.

That’s a very odd situation. We’ve come to accept it, because we’ve been doing it now for about 20 years. But I would rather see a one person for 10 year term not feel obliged to pursue a particular case.

Levi: We both admire Justice Jackson, and I’m sure you remember when you were a prosecutor, he gave this speech to the Department of Justice that’s often given to new prosecutors, and it’s the speech where he talks about striking hard blows, but fair. But in that same talk he says, “You must never set your sights on taking down an individual. That that is the way of tyranny.” You know, when prosecutors say, “Oh, I’m going to get that guy” without predication, not because the case came to them because there’s a probable cause to believe that that person has been committing crimes, but just because you want to take down that person.

This is Jackson. He said, “There’s nobody in this room who couldn’t be indicted on a probable cause standard, vis a vis, we live in a highly regulatory state. Everybody in this room has probably done something on it, whether it’s on a tax return or a DMV form or something.” He said, “They could cause a prosecutor with… to say, ‘Okay, now I got him, or got her.'” And I think that is such an important point.

So you’re right. Anything that you can do that you could say, but look, the fact that you’re an independent prosecutor does not mean that you have a scorecard here. You know, the truth is your friend here and we’re not going to judge you in that way.”

Newman: Well, that leads me to two comments about the role of the prosecutor. First of all, the most important decision a prosecutor makes is whether to prosecute, or not. And people might not understand this, in the federal system, an FBI agent, unless he sees a crime happening on the street, a bank robber running out of a bank, he can arrest him. But if he just knows about some criminal activity, he cannot make the arrest. He comes to the U.S. Attorney or the Assistant U.S. Attorney and asks for permission to make the arrest. That’s a very interesting safeguard.

Levi: It is.

Newman: But once you start the criminal process in the federal system, the chances are very high that there’s going to be an indictment by the grand jury and there’s going to be a conviction by the trial jury, and the judge is going to send the person to prison if it’s a serious offense. Whereas, if the prosecutor says, “Well, technically there was a violation, but I don’t think this is the sort of thing that ought to tar this person for the rest of his life as a felon.” The decision not to prosecute is critical. That’s point one.

Point two, to deal with a public misconception, which was spurred by one of the worst comments ever made by a public official. It was Judge Wachtler’s remark when he was on the New York Court of Appeals-

Levi: The ham sandwich.

Newman: … said, “A grand jury will indict a ham sandwich.” Interestingly enough, when he said it, nobody paid the slightest attention. You know when it became current? When Tom Wolfe put it in Bonfire of the Vanities. And that was a best seller and he quoted that remark. And since then, you cannot turn on a television crime show without hearing somebody say, “Oh, a grand jury will indict a ham sandwich.”

Well, I hope anyone in the sound of my voice will hear me say that is not true. Just not true. Never been true. It is a dumb remark. In New York, I looked at the data, grand juries for the year I looked up, were refusing to indict on at least one count in 20% of the cases.

Levi: That’s interesting.

Newman: Now, in the federal system, the percent of indictment is very high. Why is it very high? Is it because the grand jury will just roll over for whatever I brought in? No. It’s because U.S. Attorneys have the good sense not to bring them stupid cases. So, of course it’s going to be high in the federal system. Every U.S. Attorney knows that if he doesn’t seek indictment, the state could. So, they leave some lesser cases for the state. Because many crimes are both state and federal. The line is not nearly as sharp as advertised. So, if they go to the federal grand jury, it’s with a good case. It’s prepared by either FBI agents, customs agents, secret service agents, postal inspectors, immigration officers. You’ve got a good case. So, you expect the grand jury to indict. That doesn’t mean if I brought them a ham sandwich, they would indict.

And I give you one example. I was the first prosecutor in Connecticut to seek an indictment of a police officer for brutality. I thought it was a pretty clear case. I took it to the grand jury. The only reason I had the evidence was there was a rookie cop who didn’t know enough to keep his mouth shut. And so, he told us what this cop had done, and I put him in the grand jury and he told his story, and it was a story of brutality.

Now, he left the room and of course the U.S. Attorney can stay in the room with the grand jury… not when they vote, but can stay in there to discuss the case with them. So, I presented it and they said, “Mr. Newman, you want us to indict a cop?” I said, “Yes I do. He committed a crime. And all you have to decide is, is there probable cause. You’re not finding him guilty.” “But you want us to start him on a path, he might go to prison?” Several of them said, “We’re not going to do that.”

Well, a grand jury is 23 people. It takes 12 to indict. I left the room after an interesting discussion with all of them. They indicted by a vote of 12 to 11.

Levi: Oh my gosh.

Newman: So when you tell me a grand jury will indict a ham sandwich, it is not so.

Levi: That’s interesting. Are you worried about the federal judiciary, or do you feel pretty optimistic about it?

Newman: There’s one part I’m worried about and one I’m not. I am worried about the growth of the federal judiciary. I have been worried about that for a long time. People say, “Oh, well, don’t you think we… ” Right now, it’s about 2000, 1800. And they say, “You mean to say we couldn’t find 5,000 people, men and women to be… ” I said, “No question, you could.” My worry is, those aren’t the people who will be appointed. That once the federal judiciary grows to be 3,000, 4,000, 5,000, the search for people will… the standards will drop because it’s just such a mass volume thing. And frankly, you’ve seen that in some states. State judiciaries that had a nominal controlled number, the quality was quite high. When they got very, very large, in some states, at least, the quality dropped. Not because there’re not good people out there, they won’t get picked.

And I worry that a federal judiciary of 5,000, or so, will be, first, diminished quality. Secondly, it’ll be run by a bureaucracy. There will be internal staff that’ll be building up. That’s happened anyway. Over the years, it’ll get worse. And pretty soon the federal judiciary will be not worth having. It just will be another judiciary. Why have it?

Lawyers around the country, and the public to some extent, although for all their skepticism, I think they, by and large, have a respect for the federal judiciary. And I don’t want to see that lost by a system that is so bureaucratic and so vast that why have it federal? I don’t want that. Now, if you asked me am I worried about it as far as current quality? Not a bit. I think the federal judiciary today is populated by men and women of, at least, very high quality and often outstanding quality.

Levi: Judge Jon O. Newman serves on the United States court of appeals for the Second Circuit. It was an honor to have Judge Newman as the first distinguished judge in residence this past academic year here at the Bolch Judicial Institute at Duke Law School. His judicial autobiography is called Benched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Federal Judge. Thanks for joining me today. I’m David Levi.

Voice: Judgment Calls is produced by the Bolch Judicial Institute at Duke University. Find us online at judicialstudies.duke.edu.