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Jeffrey Cole, a former editor-in-chief of Litigation, is a magistrate judge in the Northern District of Illinois, Chicago, and a senior editor of Litigation. Robert Gettleman is a district judge in the Northern District of Illinois, Chicago, and an associate editor of Litigation.
Befitting a life that is the embodiment of the American dream, Jack Weinstein went from working on the docks in Brooklyn to pay for college to becoming one of the most renowned judges in the history of the federal judiciary. For 45 years, he has served as a U.S. District Judge for the Eastern District of New York. He first achieved recognition as a professor at Columbia University where he authored nationally recognized textbooks and articles on evidence and civil procedure. He served as an advisor to Senator Robert Kennedy and to leaders of the Democratic and Republican Parties in New York on matters involving judicial improvements in the state court system; he was counsel to a number of New York state legislative committees and served as commissioner of the Temporary New York State Commission on Reform and Simplification of the New York State Constitution. He advised the New York State Constitutional Convention, and he revised New York Civil Procedure and wrote the definitive treatise on the subject. And while the judge would deny it, through his now classic treatise, Weinstein’s Federal Evidence, for a whole generation of lawyers he has replaced Wigmore as the definitive authority on evidence. He revolutionized the way in which mass tort actions like the Agent Orange and asbestos cases are handled. A child of the Depression, he has worked since he was nine years old. Little wonder that at the age of 91 he maintains a full calendar and continues to express himself uninhibitedly, thoughtfully, and provocatively on those questions for which there are perhaps no right answers but which each generation seeks anew to resolve.
Q: Thank you, Judge, for taking the time to talk to us. You were born in Wichita but moved to Brooklyn as a child. How old were you?
A: Four or five. I was brought up in Brooklyn and worked on trucks in this very area for six years while I went to night school at Brooklyn College.
Q: You also worked on the docks, didn’t you?
A: Partly on the docks, partly in the office, partly loading and doing various chores.
Q: How did your family get to Wichita?
A: My father was born in Hungary and came to this country when he was about four, around the turn of the twentieth century. My mother was born in Brooklyn a few doors from the courthouse. My aunt Sadie’s husband had a clothing store in Wichita, and he died suddenly. So there she was, alone with two young boys and a store. My paternal grandfather sent my father out to keep Sadie and her boys safe. He married Mom and they went out there. They spent six or seven really wonderful years and absorbed the sense of Middle America, which was quite different from what they had been exposed to. My mother’s attitude was very different from her five sisters’ and so was my dad’s. I think it was a result of that Kansas experience. We enjoyed a different way of life than the kind we have now. Open, welcoming. That experience probably affected my life very strongly as well, because I picked up the flavor of Middle America. Some of us got that sense of another America in the war, being away for four years. But Mom wanted to see her family and show off her sons. So she insisted on coming back East. And what I saw here when I worked on the docks and around the trucks was the communication and relationships that harkened back to the 1890s. Transportation was by ship up and down the east coast and by railroad. We had a strike at one point, and we had 20 horse wagon carts coming over and delivering goods. The thirties were kind of interesting, bridging the time periods. I was lucky that way. Then I saw World War II, which was another bridge into the future.
Q: Where did you serve?
A: In the Pacific on a submarine.
Q: When did you decide you wanted to be a lawyer?
A: I had graduated from Brooklyn College, and had no conception of what I wanted to do. I had taken economic courses, but I enjoyed my philosophy and mathematics and physics courses more. So when it looked like the war was about to end, I wrote home that I had three options: medicine, as a Jewish boy with a good record in college; physics, because I’d studied some in the Navy and at college, and I was intrigued by this developing subject; and when you can’t decide what you want to do, the law. So I wrote home, and my mother sent me Holmes’ The Common Law, and I read it and couldn’t understand it, but I decided law would be an interesting thing to study.
Q: Where did she get a copy of The Common Law?
A: She was a voracious reader. She won the gold medal at her grammar school in Williamsburg, near where her father had a shoe repair shop. When she graduated from eighth grade as the top scholar, the principal wanted my grandfather to let her go to high school. But women of her background were not permitted that luxury at that time. So he sent her off to pluck feathers in a factory where they made those hats with the bird feathers so popular at that time. But she remained a voracious reader. Her apartment was full of books, many of which had dollar bills stuck in them, the result of the phobia about savings banks that many people continued to have after the Depression.
Q: How did the Depression affect you?
A: I worked from the time I was nine; I was always trying to find ways to earn money. My father, who was very charming and bright, also was not permitted to go to school beyond the sixth or seventh grade. He was carrying men’s clothing on his back when he was 13. He got a job when he came back from Wichita with the National Cash Register Company as one of their first Jewish salesmen. When the Depression struck, he lost his job. Like so many others, he tried to start a little business. After the war, he came back to National Cash Register and became a sales manager. He trained a whole core of people and helped introduce a lot of the modern technology in supermarkets. But in the thirties, we had to scrape together money to pay the mortgage and put food on the table.
Q: You were working 60 hours a week and going to night school at Brooklyn College?
A: Yes. All the drivers and my boss, Al Burns, were so helpful to me. None had any education, but they were supportive because I was the first person they knew to go to college. Al used to give me time off to study for my exams, which I sometimes spent rowing in Prospect Park, and the others would drive me when I had to get to school fast. So very interesting, the way the poor often looked after the poor.
Q: By the time you started law school at Columbia, you were married, with a baby?
A: Yes. The baby was born the first week of law school—between the lecture on Development of Legal Institutions at 9:00 to 10:00 and the lecture on Civil Practice from 11:00 to 12:00.
Q: Were you taking care of your son when you were in law school?
A: Evie and I lived with my parents in a basement apartment my brother and I had built. She was a social worker who ran a program for World War II veterans with psychiatric problems. I came come home at 5:30; she’d hand the baby to me with the bottle, get on the train, come back at 1:00 in the morning. I would go up to Columbia, and she would have the baby. So that’s the way we worked it.
Q: Were there quotas in those days for Jewish students?
A: Not at Columbia, as far as I’m aware. But in downtown New York, there was a great deal of anti-Semitism, and I couldn’t get a job even though I was at the top of the class, lectured at Columbia, and had clerked for Stanley Fuld, who was then considered one of the preeminent common-law judges.
Q: That was Justice Frankfurter’s and Justice Ginsburg’s experience.
A: Well, she had a double problem. She was female and Jewish. So after I left Stanley, I set up practice for myself in a little hole in the wall at 42nd Street and Lexington Avenue, which I shared with about a half a dozen good lawyers. I had one partner when I started. I got overflow from the other people in the suite. I got appeals almost immediately because of my connection with Fuld. Probably through him and others, I became counsel to a Republican state senator, and then for some of the committees. The pay at that time for associates in the large firms was about $6,000 a year. My first year in practice I earned over $20,000, which was a huge sum of money for Evie and me. And then I got this call out of the blue from Dean Smith asking if I’d be interested in becoming a professor at Columbia.
Q: And so you gave up your practice to become a full-time professor at Columbia Law School.
A: Yes. But I still consulted with the legislators at the capital in Albany and did some private work and worked for the NAACP.
Q: What did you teach?
A: I taught some English history, the development of legal institutions, criminal law, civil procedure, and accounting. When Jerry Michael died, I took over his courses in evidence and civil procedure.
Q: Your first evidence book was with Professors Maguire and Edmund Morgan? How did that come about?
A: I started to put together materials as soon as I began to teach. I met Eddie Morgan of Harvard at NYU. We were both called to a conference on Israeli problems. We were to advise the Israeli mission with respect to a code of evidence for Israel. This was about 1954–55. Morgan was about my present age and I was in my thirties. But this little fellow—he was half my size—and I walked from NYU to the bar association where he was going to deliver a lecture, and we had fun together. He asked me if I would revise his casebook, and I did. It turned out pretty well.
Q: And Maguire?
A: Maguire was more passive in the operation. Morgan was very peppy. He was involved in writing on the Sacco, Vanzetti case. Then he defended his former student, Alger Hiss, who was in the State Department, later accused of treason. He couldn’t believe Hiss would do anything wrong.
Q: How did you meet Robert Kennedy?
A: I was chairman of a state reapportionment committee for the Democratic Party on redistricting. Through that, I came into contact with Senator Kennedy and Bill Van der Hennel, his man in New York, and I did some work advising the senator on some criminal law issues. Then I was appointed to advise his committee revising the New York court system. This was ’56, very shortly after I got up to Columbia. I was revising New York practice, which became the New York Civil Practice Law and Rules, N.Y.C.P.L.R. We revised the whole practice. I don’t know how it all happened. I was just a kid from Kansas and Bensonhurst, and these things were happening to me. And I did help him with some federal legislation. He took a shine to me. I don’t know why. He wanted to run me for state attorney general, but they needed an Italian. Weinstein was not an Italian name, so they couldn’t follow his wishes.
Q: But you did run for Chief Judge of the New York Court of Appeals while on the federal bench?
A: Fortunately, I didn’t get the nomination. That was the last time a sitting federal judge ran for office while on the bench.
I ran for the state constitutional convention, and then I later ran for chief judge of the State of New York. The only two people who ever did that were Learned Hand and me. Hand did that in 1912 when he ran on the Bull Moose Party line. He ran because he was a great friend and admirer of Roosevelt.
Q: That cost him a seat on the Supreme Court?
A: Yes, because Taft, of course, hated him. Because of Roosevelt’s run, Taft lost the presidency to Wilson. But I ran for a different reason. In the course of working for the Tweed Commission and working as a reporter on New York State practice, and as a judge, I was appalled by the New York State system of justice. The breakdown of the system was partly due to the fact that no one had any interest in administration. The quality of the judges was generally poor, whether appointed by the politicians in Brooklyn or the upstate Republicans. I called Bill Van der Hennel and asked him to tell the senator that I’d take that appointment he had offered me to the Eastern District. I had turned down an appointment to the Southern District earlier. I wasn’t interested in that.
Q: Why not?
A: I was happy at Columbia and with all the other things I was doing.
Q: What year was that?
A: About 1965. I later discovered in kind of a strange way why, in addition to wanting to find a good way of getting away from Albany, I accepted the Eastern District appointment. Would you like to know how I discovered why, subconsciously, I finally took the opening in Brooklyn?
A: The dean at Harvard offered me a professorship. I said I wasn’t interested. I loved Columbia. I didn’t want to leave. I had a beautiful office in that old building overlooking The Thinker in the courtyard. I was doing a lot of writing on procedure and evidence. But my father’s headquarters was on Atlantic Avenue, just down the street from the courthouse. Dad used to take me to lunch from time to time and point out the judges eating nearby. And that’s why I became a judge in the Eastern District.
Q: Was your dad alive when you were appointed to the court?
A: No. My mom was. He was, I think, killed by the stresses of the way he was brought up, in the Depression, anti-Semitism, lack of good medical care. It was a very rough world.
Q: In an article in the Cardozo Law Review, you say: “Trial judges have a wonderful window on our fascinating, ever-changing world and its vastly different people. The most vulnerable persons I have seen were often the most abused. As trial judges we see the people who need our help. The court should step in where the law allows us to protect them politically and socially. The cases and issues are not abstract. So where does this all leave me after more than three score years as a member of the legal community? Clinging to the tiller—respect for the law and my colleagues on the bench, and the bar and at the academies. Fervently hoping that the Supreme Court’s present majority will modify its dependence on rigid theory in favor of a more generous attitude toward the needs of the people we all serve.” [“The Role of Judges in a Government Of, By, and For the People: Notes For the Fifty-Eighth Cardozo Lecture,” 30 Cardozo L. Rev. 1 (2008)].
A: Well, I meant a little more flexibility. I think the right-leaning majority is more abstract than it needs to be and less flexible. I am brought back to the New Deal Supreme Court. They’re all very good people, very bright, and it’s not partisan in a political Republican-Democrat sense, but in its attitude towards life and its vagaries and difficulties. I think the very nature of the process now, including the fact that all have come up on an escalator from law school, to cushy law jobs, to appellate judgeships. They’re not amenable to changes in public news. You see it in connection with the sodomy cases and the cases which will be coming up on homosexuality and “don’t ask, don’t tell.” The whole nature of the attitude of the public has changed. So, they respond to some extent, but I think that they’re out of touch with the needs of a very large portion of our population and more in tune with the population they knew coming up. It’s not that I would be a better Supreme Court justice. I’m not bright enough to do that job, particularly now. But I do have a sense of people’s problems, having come up and seen all the people in trouble. Seeing what I saw on the docks and what I felt being a kind of a misfit as a student. I was transformed by luck into this position. I saw things about the way the real world operates on people that is somewhat lacking on the Supreme Court. People like Hugo Black and other non-appellate judges are needed, I think.
Q: You’ve expressed some provocative and controversial views about sentencing in child pornography cases. Could you talk about that a little?
A: First of all, I think that the minimum mandatory penalties generally are dreadful. When I began as a judge, every sentence involved a meeting of three of the judges and the chief probation officer, and we’d discuss the sentence. The sentences were much lighter.
Q: Across the board?
A: Yes. Even where some were high, we had a parole service that cut off the high sentences. People don’t realize that the earlier sentences were much more equitable because of that cutoff. We could, within 90 days, change our sentence. So we could whip the person in public, and then we’d let them think about it and take care of the family, and within 90 days drop it to a more reasonable figure. So, effectively, although the sentencing system was attacked, we had a system that didn’t work too badly, and it gave us about 100,000 people in prison when I came in—both state and federal. Guidelines were abstractions, theoretically sound and designed for openness, transparency, uniformity, et cetera, but based upon criteria and minimums that raised the punishments enormously until today. We have the highest percentage of people in the penitentiary in the world. Individuals committing sexual crimes are going to be supervised for the rest of their lives. So you have an enormous percentage of our population subject to control under the criminal law. There has been a huge, unthinking expansion of the federal criminal law to include all kinds of new crimes, including a vast extension of pornography through the Internet. We have about 150 federal minimums, including minimums for drugs, minimums for guns, and minimums on pornography. The child pornography cases I’ve seen very often involve people with a proclivity for viewing this stuff in private, but provide no danger to acting out in society.
Q: Are you talking about child pornography or all pornography?
A: All pornography. There was one Supreme Court justice who, one of his clerks told me, had a good pornography collection, adult pornography I assume. Adult pornography can’t be dealt with criminally anymore because it’s so prevalent in our society. But it’s child pornography that has become the focus of this intent to punish. Now, some of it is justified, at least indirectly, because if you look at this stuff and you buy it through the Internet, you encourage the industry. But that effect is relatively minor compared to the harm it does to individual cases such as some of those that I’ve had and that other judges have had. I think almost all the judges I’ve spoken to on this court are very much upset by some of the prosecutions. People who have done no wrong and will do no wrong except to watch in private. And they have this mandatory five years—some cases more—with a lifetime of supervision. In some cases, they can’t live in communities, they can’t get jobs. I have a whole series of heartbreaking letters from wives, mothers, and others whose families are utterly destroyed. The cases are very easy to make because the FBI can trace them, and most of this pornography comes from countries abroad—Russia, Ukraine, Philippines. It bounces back and forth. You almost never get the people who are responsible for whatever commerce there is. But the prosecution can pick up anybody who’s involved here and make an indestructible case. For anybody who wants to run for office, this is an easy way to make a reputation. Taking into account the risks and benefits, in many instances the punishment involved is simply non-justifiable. Particularly when I knew because I asked them, the jury would have wanted a defendant treated rather than incarcerated. So, like so many of these cases, you have to make subtle distinctions based upon the nature of the case and the kinds of situations you want to deal with, and the mandatory minimums don’t permit it. Many of them have, I won’t say scientific, but no statistical basis. They are based upon the frenzy of the moment. A lot of the drug cases are themselves over-prosecuted and over-sentenced. A lot of it is racially motivated.
Q: Is not the difference between the mandatory minimums in the child porn cases and mandatory minimums in the drug cases the result of different motivations?
A: No. Because you visualize your own children or grandchildren and you think, God, it could have happened to us, and there’s a frenzy.
Q: Didn’t the Second Circuit in one of your cases suggest that you had the discretion to tell the jury about the mandatory sentence in advance of the verdict?
A: Yes. But they made sure that I didn’t do it. There I went back to Justice Scalia’s theory about the original meaning of the jury. It’s clear that in 1790 juries knew what the punishment would be, and if they didn’t, the judge would tell them: If you find over five shillings, it’s a mandatory death sentence. Under five shillings, it’s not. And you have case after case where they’re told that, and they’d come in just under five shillings. It was historically a valid argument. And up to 1890, the jury had enormous discretion. Now nobody knows what’s going to happen, and you have a different kind of a jury than in colonial times. You have a professionalization of the law. What is now happening is that the control of criminal cases primarily by the jury, which is what we had when we began, was attenuated. First, it was expanded during the Jackson period. Then it was attenuated in order to prevent juries from hurting the railroads and others, which was important to expand our commerce. And then about 1890, you had the Supreme Court saying flatly you can’t tell the jury about punishment. And that is a continuing process. We have summary judgment. We have very strong jury charges. We have Twombly with respect to what you have to allege in order to go forward with your case. And now people asking why we don’t have more jury trials. Well, there are a lot of things that happened: expense, discovery, et cetera. What’s happened to the jury trial is that we, the judges, have murdered the jurors over a period of years by making them irrelevant and taking away whatever power we could because we wanted to control what the law was. We didn’t want the wild card of the jury in there. So the process has made the jury somewhat irrelevant in what is a basic use of criminal law to control society.
Q: Do you find a drop-off in jury trials in criminal cases over the years?
A: Sure. That’s partly due to another factor in this homicide of the jury.
Q: We are sliding into jury nullification here.
A: I think it has to be controlled. There are excessive verdicts and things like that, and there should be new trials to protect defendants against prejudice or miscarriage of justice. Within a large area, we should depend upon the jury to bring to bear what happens and is happening in our culture because judges, more than anybody else, are cut off. We’re generally old. Our children are grown up so we don’t see what’s going on in their world. Our friends are rich and successful. We don’t have to worry about income. We’re out of touch with what’s going on. What is appropriate in the workplace? Can you, as an employee or supervisor, put your arm around a woman and say how are your kids, how are you feeling? Squeeze her arm, squeeze a man’s arm? Can you touch a child? Can you make an off-color joke and refer to something on TV? I don’t know what’s accepted anymore. You need a jury for that kind of stuff. So too with the changing attitudes with respect to homosexuality. We have to take account of all of that, and we judges are not in a position to do it. That’s the great benefit of the traditional jury system.
Q: All the things you’ve just talked about are among the themes you touched on in the 2008 Cardozo Lecture, “The Role of Judges in a Government Of, By and For the People.” How did you come up with that title and what did you mean by it?
A: I’d been reading about Lincoln. I’d gone to Gettysburg and spent three days there going over the battlefield. The first books I bought as a teenager were the four volume set of The Prairie Years; I still have it. I didn’t have much money, but I bought that. I’d been fascinated by Lincoln.
Q: You draw a distinction between sympathy and empathy and the “struggl[e] to steer a straight course in the tumultuous narrow seas between the hard rock of unfeeling abstraction and the treacherous whirlpool of unrestrained empathy and compassion for those who come before me” [30 Cardozo L. Rev. at 232].
A: Well, the Bible and our sense of morality. But it’s embodied in our oath of office, stating that you can’t have sympathy for the rich or the poor. But you have to have some empathy in order to understand where people come from. Walk in their shoes, in a sense, to understand their feelings, what motivates them, what their aims are, in order to adjudicate. So there is this kind of subtle distinction as we apply it.
Q: You were on the Brown v. Board of Education team. How did that come to be and what was your role?
A: I did very little. I was then in my second year of teaching at Columbia. Walter Gellhorn was giving a course in which students would go out to various civil rights organizations such as the NAACP, the ACLU, and others, and they would write a short paper for discussion with Walter. Walter asked me to come with him to a conference being run by Thurgood Marshall at the city bar association. He said he thought I would find the case they were working on interesting. There was a little subgroup talking about some aspect of the brief. And I sat in, and Thurgood asked if I would take over the chairmanship of the group. I didn’t know anything about any of this stuff. I’d never taken constitutional law, even after law school. So I took over the group in the usual way a chairman does, and after an hour or so, I called in a secretary (who later became Thurgood’s second wife—she accused me of always dictating too fast). I dictated a consensus. Everybody agreed. And that’s how I started. Poor Evie and the kids suffered, because I’d spend so much time at the city bar library, at the NAACP legal defense headquarters, and often overnight at the Algonquin Hotel, across from the city bar.
Q: What was your impression of Marshall?
A: Superb. Absolutely superb.
Q: You have been quoted as saying that the expansion of federal crimes has compromised the capacity of the federal courts to adjudicate the kinds of cases that traditionally have been the staple of federal practice. Is a partial solution to increase the number of federal judges?
A: That is an option with costs. When you expand a court substantially, you change the nature of the court system, and you risk making the job somewhat less interesting, which can have an influence on the quality of people who might otherwise aspire to be federal judges. So what I’m saying is expansion is often desirable but it has limitations.
Q: What is your view of having specialized judges in the federal system?
A: I agree with Judge Friendly’s view that it is desirable that federal judges be generalists. It makes the job more exciting and gives the judge a breadth of vision and understanding that he or she wouldn’t get in a system with a specialized judiciary.
Q: You conduct certain proceedings without your robe?
A: All of them.
Q: Have you always done it that way?
A: Pretty much from the outset. The only time I didn’t do it was when my mother was alive. Her apartment overlooked the Statute of Liberty down the street, and the marshals would call up and tell my secretary, “tell the judge his mother is coming up.” And I’d have to put my robe on.
Q: What prompted you not to wear a robe?
A: Because if I’m working across the table, particularly in a bench trial, the witness is here, you’re talking to me so you’re not talking at the top of your lungs trying to browbeat your opponent but we’re discussing things, and what’s the point of my having a robe on? When there’s a jury, I don’t use the robe because very often I’ll walk up and sit in the jury box to see what the jury is seeing. I’ve never used a gavel once. I’ll sometimes hold my finger up to signal quiet. What do I need a gavel for? Also, I don’t allow people to come in in shackles or anything like that. It doesn’t affect security. I just have the marshals sit behind the defendant.
Q: Is there any other judge you know of who does not wear a robe?
A: There was the famous Judge Johnson of Alabama. And they didn’t use robes in the Massachusetts courts until about the turn of the twentieth century. The robe was all part of the professional elevation of judges.
Q: How has legal practice changed most in the 60-some years since you came to the bar?
A: I think it’s probably more venal than it used to be. People don’t have any sense of proportion anymore.
Q: You’re not a fan of sanctions in the form of attorneys’ fees are you?
A: No. It creates all kinds of ancillary litigation, which is more trouble than it’s worth. Rule 11 was a mistake, in my judgment. It seems to me unnecessary as a tool to help with the control of a case. The rule, itself, is based on the notion that there is abuse by the lawyers, which, in my view, doesn’t exist on any substantial basis.
Q: So lawyers here know not to make those motions before you?
A: I haven’t had a motion like that in 25 years. What’s the point of it?
Q: How do you work with your clerks in terms of drafting the opinion?
A: Some things I write out myself in longhand or dictate parts of. Sometimes I write a few introductory pages or an outline for the clerk. My clerks and I exchange drafts back and forth which will be expanded, revised, expanded, revised, expanded. The district court has a lot more flexibility than the court of appeals. I can devote six months or eight months to one case. As the drafts get exchanged, we may see new issues and may ask for further briefing on an issue.
Q: Are you ever “overruled” by your law clerks?
A: Sure. Where that doesn’t ever happen, you can make mistakes. You’ve got to be particularly careful if you think you know the subject. Herbert Wexler once told me that the cases Justice Stone’s clerks had the most difficulty with were the ones Stone had taught at Columbia. So I have to be very careful when I’m dealing with areas I’m perhaps most familiar with. I have to pick up the rule, look at it, and not just trust my memory.
Q: Thank you, Judge. It’s been a real privilege for us. q