discussion. You are not supposed to talk about it, and I won’t;
but there is a marketplace of ideas and innovation, sort of a showand-tell. It’s a very, very useful and pleasant addition to the
S.B.: Are there any women District Judges?
L.F.O.: Oh, yes.
S.B.: Who?
L.F.O.: Joyce Green.
S.B.: Oh, of course. All right.
L.F.O.: Norma Johnson, June Green. June and Joyce come
every day.
S.B.: Okay.
L.F.O.: And they civilize it.
S.B.: Were they here when you got here?
L.F.O.: No. Joyce came shortly after I did, but June has
been here since — she was a Johnson appointee. I think we will
have to suspend now.
S.B.: All right.
* * * * * * * *
S.B.: This is the fourth interview with Judge Oberdorfer, and
it is April 23, 1992.
L.F.O.: Do you remember the cases we talked about last time?
S.B.: I was afraid you were going to ask me that. Let me
see if I have that.
L.F.O.: I didn’t take notes.
S.B.: You talked about — this may not be exhaustive, but
these are the ones I wrote down. You talked about the JapaneseAmerican interns and their claim; you talked about an Establishment
Clause case; the impeachment of Judge Nixon.
L.F.O.: Did I mention the Lockheed case?
S.B.: Yes, we did talk about the Lockheed case.
L.F.O.: All right.
S.B.: That was the crash with the orphans?
L.F.O.: Yes. I would just glance at the list of published
opinions that I did. One that is particularly worthy of mention,
I believe, is Hobson v. Wilson. It was a suit brought by, among
other people, the widow of Mr. Hobson, who was an activist here
during the sixties, against the District of Columbia police and the
FBI. She and the other plaintiffs sued on account of the
harassment they had suffered primarily at the hands of the FBI when
they were maintaining demonstrations against the Vietnam War and in
favor of civil rights. The record exposed the FBI’s so-called
COINTEL Program and their activities in connection with that
program. It was a very hotly contested civil case.
S.B.: Judge, would you tell us what the COINTEL Program was?
L.F.O.: The COINTEL Program was a covert effort by the FBI to
harass — literally harass — civil-rights demonstrators and antiwar demonstrators, to publicly embarrass them, and to get them
fighting among themselves. Generally, it was a disinformation
effort. They called it the Counter-Intelligence Program.
S.B.: Do you know what the acronym stands for?
L.F.O.: I suppose “COINTEL” stands for “counterintelligence.”
I believe the first aspect of it was called the
COINTEL Probe Black Nationalists, and it was aimed at people like
Stokely Carmichael. It really was diabolical. There is no other
way to describe it. The FBI headquarters invited agents in the
field to think up tricks that they could play.
One of the things that was particularly revealing in
the record was this incident: During the period on which the case
focused, there was an effort by the anti-war people to cooperate
with the black civil-rights demonstrators, and there was a countereffort by the FBI to sow seeds of distrust between them. As part
of that effort, FBI agents in the field, with the approval of
headquarters, forged a leaflet to the leaders of the black group
purporting to be from the anti-Vietnam War demonstrators. It was
called the “Give ’em Bananas” leaflet. They put that in the mail,
and, of course, it infuriated the blacks.
At the same time, they forged a document purporting
to be from the blacks to the white group asking for reparations.
Both documents were apocryphal, and, of course, the people involved
were furious at each other.
By the way, one of the plaintiffs in the case was
Reverend Eaton, who just retired from his pulpit.
S.B.: What was the evidence that this was all forged and
L.F.O.: Well, they testified.
S.B.: The agents testified?
L.F.O.: The agents testified to it, finally, after months of
discovery. The young woman who represented the plaintiffs was one
of the ablest, most imaginative attorneys that I have seen.
S.B.: Who was it? Do you remember her name?
L.F.O.: Yes, it was Anne Pilsbury from Norway, Maine. She
was in a public-interest law firm up there, and she fought these
people right down to the bricks. The discovery was resisted on all
The case ended with sort of a whimper, I’d say,
because the Court of Appeals determined that I hadn’t calculated
the damages correctly and sent the case back. The damages, as
recalculated, were really quite modest.
S.B.: What had they been; do you remember?
L.F.O.: No. Judge Edwards said that the FBI’s COINTEL
Program sought not only to “neutralize and disrupt” black and antiwar groups separately, but also to exploit any dissension between
them in an effort to deter the formation of an alliance. He also
discussed the head tax.
On October 16, 1969, a memorandum from the Special
Agent in Charge in New York to the FBI Director, referenced to
“COINTEL Probe New Left,” followed. I quote from it:
“Enclosed are two copies of a suggested leaflet
entitled ‘Give ’em Bananas,’ designed to widen the rift between the
New Mobilization Committee to End the War in Vietnam and the Black
United Front over the BUF demand that the NMC pay for their planned
march on Washington. Enclosed leaflet has been written in the
jargon of the New Left, necessitating the use of a certain amount
of profanity. It is realized this material is racial in tone, but
it is believed this is the one point of vulnerability in the
NMC/BUF combination.
“Bureau authority is requested to prepare and mail
anonymously the enclosed leaflet to selected individuals active in
NMC and BUF both in the New York and Washington areas.”
S.B.: Wow!
L.F.O.: Kind of damaging, to say the least.
S.B.: Is that J. Edgar Hoover’s work?
L.F.O.: The case is a teaching tool.
S.B.: For legal principles, you mean, or for outrageous
activities by our government?
L.F.O.: For legal principles. This was a breakthrough in
S.B.: What did they sue under, § 1983?
L.F.O.: § 1983 and § 1985, conspiracy. Originally, the case
included the District of Columbia as a defendant. I let the
District out. In any event, the documents now speak for
themselves, but if I am making a memorial, I’d like to memorialize
S.B.: Okay.
L.F.O.: Another case that I want to mention is Nishnic v.
Department of Justice, an FOIA suit brought by the children of the
fellow who is under a death sentence in Israel for being the Beast
of Treblinka, Demjanjuk.
S.B.: Just for the record, what is an FOIA suit?
L.F.O.: A Freedom of Information Act suit.
S.B.: All right.
L.F.O.: I was very concerned in that I felt that the
Department of Justice was not being as forthcoming as it might be
with their documents and that the United States Government,
including the judiciary, should not be placed in the position of
hiding whatever was done in that case. So I stopped everything in
the office and put both law clerks to work on that case for a
couple of months. We went through all of the documents and wrote
a very careful opinion, just to see to it that the process was not
tainted in any way, and we did require the production of some
documents that had not been released.
Another case that I should mention is NOW v.
Operation Rescue, which is a recent one. It is currently pending
in the Court of Appeals, and the companion case is pending in the
Supreme Court. At issue in the case is the effort of the Operation
Rescue people to blockade abortion clinics in the District, and I
now have the question of whether to impose fines for contempt. I’m
awaiting the decision of the Supreme Court to see whether I have
jurisdiction over the matter at all.
S.B.: You issued an injunction, and they violated it?
L.F.O.: Yes.
S.B.: What do you think the Supreme Court is going to do?
L.F.O.: I think they’re going to reverse me.
S.B.: Really? You think that § 1985 will not provide a cause
of action for this?
L.F.O.: If I read the tea leaves correctly, that’s certainly
a possibility. But who knows?
S.B.: I guess we’ll find out in the next month or two.
L.F.O.: The third case that I would like to mention, because
it has a good anecdote in it, is styled Ukrainian-American Bar
Association v. Shultz. The case started as an emergency matter on
a Friday night. The judge to whom the case was assigned had just
gone home, and, as the emergency judge, I took over for the weekend
at 4:30 p.m., on Friday. In all of my time here, I have had very
few emergency matters.
This was an application on behalf of a Russian seaman
who jumped ship, a Russian ship, in New Orleans on the eve of the
Reykjavik Conference between President Reagan and Gorbachev. The
seaman jumped ship and swam ashore in New Orleans, where he was
eventually apprehended by the Border Patrol of the Immigration
Service and returned to the Russian merchant vessel. After
receiving information that the seaman was a Ukrainian who was
seeking asylum, the Ukrainian-American Bar Association filed for an
injunction to require the government to rescue him from the ship
and produce him for a hearing. However, the captain of the ship
would not let him go.
I scheduled a hearing that night because I didn’t
know where the ship was or where it was going. The petitioners
represented that it was headed out to sea. The government lawyers
came in with an official from the Immigration Service, I think it
was, and a Naval officer. The issue quickly arose as to the
location of the ship and where it was headed. The government
lawyers asked for a recess so that they could get the information
and inform the court. Now, this was getting to be late at night,
and, for a substantial period of time — and my recollection is
hours — the United States was not able to advise the court of the
location of a Russian merchant ship in the Mississippi River.
That was really comical. It was just an episode in
a strange situation.
I didn’t enter the TRO. Thinking back, perhaps I was
influenced by representations made to me in chambers — I hope not
in camera, but they may have been — that interference with this
situation might wreck the Reykjavik Conference.
S.B.: The guy was back on the Russian ship; right?
L.F.O.: Yes.
S.B.: What would the TRO have done?
L.F.O.: It would have stopped the ship.
S.B.: And then there would have been a demand that the
captain turn over the seaman?
L.F.O.: Well, at least to stop the ship. As it turned out,
the ship was not headed down the river; it was headed up the river.
I was told — and I’m sure this wasn’t on the record — that it was
headed up the river to a notorious R&R location of the sort one
would find only in Louisiana in order to let the Russian sailors
have a little fun before they went to sea again.
S.B.: Did you ever find out what happened to that guy? I
remember people were worried about that.
L.F.O.: I don’t think I did. I don’t think anybody ever
found out. I think I can imagine what happened to him.
S.B.: All right. Well, there are a few other cases,
L.F.O.: Yes.
S.B.: Although I don’t know this for sure, I would think that
when the history is put together, there will be a way of listing
all of the cases.
L.F.O.: Well, here it is. We can put that in.
S.B.: Let me ask you about some of the outstanding lawyers
you’ve seen and what you think their characteristics are. You’ve
mentioned a few, and you just mentioned this Anne Pilsbury. Then
I remember you talked about one of the prosecutors several
interviews ago.
L.F.O.: Yes. His name is Per Ramfjord. By the way, he has
been transferred out of here to the Major Crimes unit of the U. S.
Attorney’s Office. He will be operating, I think, in the Violent
Crimes section, probably in the Superior Court.
S.B.: Oh, I see.
L.F.O.: I think I said that I thought he was overqualified
for the work he was doing here. Now, in all candor, I haven’t had
many cases that I would classify as significant. My docket here
has really been rather routine, and I haven’t had the kinds of
cases that attract the first-line lawyers. I don’t know why that
is. In part, it may be because my wife and I have a very
complicated stock portfolio, which would disqualify me in many
cases involving major corporations. I’m also disqualified in all
cases involving my former law firm.
In any event, to answer your question, I would have
difficulty identifying, first of all, the occasions on which
lawyers come in here whom I really haven’t heard of or had nothing
to do with before I went on the bench.
I am reminded of one case, as we talk, involving an
outstanding lawyer who did an outstanding number on me and is one
of my best friends, Steve Pollak. Hopefully, I’ll find the name of
the case while we’re riffling through here. It was a case in which
Steve, on behalf of a labor union, was challenging the validity of
the Department of Labor decision to discontinue enforcing the
piecework regulations implementing the Fair Labor Standards Act.
As you probably know, the Fair Labor Standards Act
was designed to maintain the minimum wage, and it proscribed the
use of piecework labor in knitting and similar industries. I
believe the name of the case is International Ladies’ Garment
Workers’ Union v. Donovan. In any event, I decided the case
against the union on the grounds that:
This was a law-enforcement regulation adopted by the
Department of Labor;
Piecework regulations were not acts of Congress;
The Administration at least stated that the change
was made because this piecework regulation was no longer necessary
in order to enforce minimum-wage standards; and,
I had no basis for challenging the statement.
I was reversed by the Court of Appeals, but, according
to the union and its counsel, the Department of Labor was not
honoring the mandate of the Court of Appeals. On remand, Steve
came before me with a motion for an order — I’m not quoting, but
paraphrasing — enforcing the Court of Appeals mandate. I said
that I didn’t have the authority to act on a motion like that. If
you file a motion for a preliminary injunction or a temporary
restraining order, you’re in my domain.
Steve replied that the Court of Appeals does that all
the time, and I said — and I think this is a quote — “Well, the
Court of Appeals does what it wants to do. I have to follow the
law.” Steve appealed my denial of his motion, and I gather the
Court of Appeals read in the first paragraph of his brief this
statement that I had made at the hearing. So the Court of Appeals
opinion, which reversed me again, starts off with that quotation.
S.B.: When they reversed you, they said you did have the
authority to order —
L.F.O.: Yes, just to enforce their mandate. That was new
law, but that’s all right. I would say that Steve Pollak is one of
the outstanding lawyers who has appeared before me.
S.B.: Was he a friend before?
L.F.O.: Oh, yes, and he is still. We’ve laughed about that.
S.B.: What about law clerks? What makes a good law clerk,
and have you had them?
L.F.O.: Yes, indeed, I have. First of all, the whole
institution of law clerks and the relationship with incumbent law
clerks and past law clerks is one of the real dividends of this
job. For somebody like myself to be able to maintain very close
relationships with bright, young people and expand my circle of
friends — and my former law clerks are my friends — is really a
tremendous dividend. I would call it a perk of this job. In many
respects, I think it is the most rewarding aspect of the job.
A good law clerk is, first of all, very well trained
in fundamentals and highly organized. Then, among other things,
he or she has a prodigious capacity for work, the ability to handle
stress, and, at the same time, has matured to the point of
accepting responsibility. I prefer to treat a law clerk as a peer.
I’ve had quite a number who reached that level and several who
It’s a wonderful job for a young lawyer, particularly
in this trial court. This is where the rubber hits the road. They
see life in the raw, instead of having problems canned and packaged
for them, as is the case in law school or in an appellate court.
They see the litigation grow from a complaint to lively combat in
the courtroom.
S.B.: How many clerks have you had?
L.F.O.: It must be 30 by now. They give a party for my wife
and me every winter, and I give a party for all of them every
summer out at my house. With some clerks, we have more of a social
relationship than with others, but they’re all very, very good
S.B.: That’s great. Okay. Now, tell me something about your
colleagues on the bench. Who is the easiest to work with or the
hardest to work with? I know you don’t really work with them.
L.F.O.: One of the things about this job, and one of the
reasons why this court is relatively more collegial than some
others I know, is because each of us is really in business for
himself or herself.
S.B.: That’s generally true of all District Courts; isn’t it?
L.F.O.: Of course.
S.B.: Right.
L.F.O.: Of course. And it was one of the attractions of the
place, again, at this stage in my life. I don’t have to get
anybody else’s vote. It is bruising to get reversed; and if I made
decisions in collaboration with others, perhaps I would see things
that I missed at the time, thereby protecting myself against that
kind of a bruise. But the independence is really quite valuable.
So far as my colleagues are concerned, I think the
most admirable one, and the one for whom I have the greatest
affection, is Bill Bryant. We have lunch frequently and talk about
things. He has the healthiest instinctive sense of justice and the
most congenial, to me, concept of the Constitution and the role of
the Federal Judiciary in the implementation of it of anyone I know.
S.B.: How would you describe that role?
L.F.O.: Well, he believes that government is capable of
tyranny and that prejudice and discrimination are endemic to the
human race, going back to the beginning of mankind. I think Bill
Bryant summed it up better than almost anybody I’ve ever heard when
he said, in effect, that discrimination and prejudice: ethnic,
racial, religious, sex, are perpetual and, unfortunately,
apparently natural. Occasionally, in brief windows of time,
determined people can put it into remission. And that’s what we
are supposed to try to do.
S.B.: But is it just a temporary remission?
L.F.O.: It’s temporary if we weaken and/or are overwhelmed.
Right now, he’s very anxious and I’m very anxious about whether we
are in the process of being overwhelmed.
S.B.: What is his and your view of the Constitution?
L.F.O.: Well, I think we’re all prejudiced, probably, but I
think it’s the greatest document ever struck by the hand of man.
I would put it with the Ten Commandments. I think the people who
formed the Constitution in, again, that window of opportunity were
geniuses of the dimension of a Galileo or an Einstein — maybe not
in sheer intellectual power, but in terms of the application of
what they had to a situation.
I guess my formative years in the Constitution go
back to my time with Justice Black. Of course, I followed him in
the years after my clerkship, and, hopefully, I am following him in
many respects now. But I believe that a compassionate application
of the language and the legislative history of the Constitution can
continue this country, as Reagan put it, as a “beacon on the hill.”
Yet, it is terribly threatened, and not just by diabolical, smallminded professors, if you’ll excuse me, but by circumstances.
The demographic changes in the country, in the sense
of the multiplication of Hispanic and black populations to the
point where the original white ethnic groups might become a
minority, or feel threatened as a minority, could cause, if it is
not already causing, a circling of the wagons in a way that would
drive them to undermine principles that are expressed in the
Then there is all of the current excitement about
criminal law and the death penalty. There was a story on a talk
show on NPR the other night mentioning that between 1 million and
1.2 million people are incarcerated in the United States right now.
The speaker’s name was Jerome Miller, I believe. He said he had
this hypothesis that he is developing, but has not been able to
document yet, from which he extrapolates that there are probably 20
million to 25 million people in the United States who have been in
jail. Of course, most of them are males. According to Miller,
there are approximately 130 million males in the country, which
means that about 15 percent of the male population has been
incarcerated, the majority of them black males. He says that some
demagogue, some day, is going to get out and organize these people.
S.B.: Former convicts?
L.F.O.: Yes.
S.B.: What can we do?
L.F.O.: Well, I think one thing we can do is to stop packing
the courts, particularly the Supreme Court and the Court of
Appeals, with people who come down here with an agenda to close
down, or limit, access to the courts; to attenuate the power of the
courts to protect people from overzealous prosecution; and to
protect the power of the judiciary for the future, that is, to
preserve it.
S.B.: Do you think that one of the reasons there are so many
people in jail is overzealous prosecution of the —
L.F.O.: No, I think there is a lot of crime because of
circumstances, too. Obviously, that is true. Now, I don’t know
why there is so much crime, and I’m not suggesting that people are
being incarcerated who are not guilty. I don’t know that. So much
of this has to do with the drug business. It may be that if we
could get a handle on that, at least part of it would ameliorate.
I certainly don’t have a solution to it; I don’t find
that anybody else has at this point; and, of course, we have to
hold the line until there is a solution. But there is also the
terrible maldistribution of resources. Now, whether that’s Adam
Smith and nature working in an inevitable way, I don’t know, but I
know that it creates a situation where injustice is prevalent.
S.B.: Going back to your view of the Constitution, I realize
this is not an issue that you’ve had to face so you may not want to
discuss it. Furthermore, I’m not sure it’s even pertinent, but I’m
curious to know whether you think abortion is protected by the
Constitution. If you were on the Court, how would you handle the
Roe v. Wade issue?
L.F.O.: Just last night, I went back and read Blackmun’s
opinion. Now, without having really considered the issue, I think
that opinion, going back to the Greeks and Romans and common law,
was an exercise of the kind that Justice Black wouldn’t have
approved, and I’m aware that Justice Black dissented in Griswold.
Whether it’s because of constitutional considerations or otherwise,
I start with this:
I think that Roe reached a reasonable result. The
right to an abortion in the first trimester is a reasonable
solution. As you say, I’ve never faced the issue, but I am enough
of a pragmatist to believe, and I would hold, that the state
interest in the child at that point is less significant than the
woman’s right up to the first trimester, whatever you call the
woman’s right. As to whether this is a fundamental right in the
way that that term has been used elsewhere in the Constitution, I
think the argument could go either way. But, one way or another,
that is where I would come out.
Now, I wrote an opinion involving food stamps for
strikers. I don’t know whether I mentioned this to you.
S.B.: I don’t think so.
L.F.O.: In that case I ruled unconstitutional the statute
denying food stamps to a household when any member of it was on
strike, without parsing this triple standard that the Supreme Court
has announced as to whether it’s strict scrutiny, middle-sized
scrutiny, or little scrutiny. I don’t know what they call it. At
any rate, I was reversed.
S.B.: I remember that.
L.F.O.: You remember the case?
S.B.: No. I remember the Supreme Court decision on that. I
didn’t know that you wrote the first opinion.
L.F.O.: When I wrote the opinion, I realized that I hadn’t
gone through the mumbo-jumbo of categorizing the standard. That
may have been an unscholarly way to proceed, and I did get
reversed. Nevertheless, I think that way, and that is probably the
way I would have approached the abortion question, if I had had it.
S.B.: What about affirmative action? How would you decide
that today?
L.F.O.: I’ve been through a learning process on that. I came
here with, I would say, a liberal Southerner’s view of civil rights
and the condition of blacks. My very first case was Williams v.
Boorstin. I mentioned that earlier. Williams was a black employee
of the Library of Congress; Boorstin, of course, was the Librarian
of Congress.
Williams was born somewhere in the Caribbean. He
went to Dalhousie Law School in Canada for two years and then came
down here and became an organizer, a labor organizer, in the
Library of Congress. The record indicates that at that time the
Library of Congress was known as the “Plantation.”
S.B.: You know, Judge, I think we did talk about this one
earlier, but I guess not in connection with your views on
affirmative action.
L.F.O.: Well, in any event, I took the very strong view in
that case that discharging him on account of this misrepresentation
of his status as a lawyer was just a manifestation of the process
that I had known in the South of getting rid of any black who
appeared to be a leader.
Now, I have been appalled at some of the racediscrimination cases that have been brought here by government
employees, neurotics and misfits, arguing that their failure to
adjust to the office environment was racially motivated. I think
that I’ve probably got as tough a record as anybody here on these
kinds of government-employee discrimination claims.
S.B.: When you say you were “appalled,” you mean —
L.F.O.: I mean I thought they were without merit, these
claims — most of them. It takes a long time to get to the bottom
of them. I’ve said several times on the record that I know, as
well as any white person can know, about discrimination as it
existed until Congress and the country in the sixties did something
about it. But this is not what we were doing something about.
Access to the courts in the employment-discrimination area has been
the subject of a lot of abuse, in my view, and has poisoned public
acceptance of the legitimate, serious interests of minorities.
S.B.: Are there ways you could reform it?
L.F.O.: Well, I think that many of these claims are personnel
matters that should be handled by labor unions and the normal,
internal process of personnel management.
S.B.: Would you change the statute? Would you change Title
VII or access to the courts?
L.F.O.: I haven’t thought that through, but I certainly think
that the whole situation would be better served if the threshhold
to litigation in respect to employment discrimination were raised.
Now, coming from me, this may be heresy, but I have some anxiety
about the effect, the long-term effect, of giving jury trials in
these personnel-action situations because they are so fraught with
emotional, and often irrational, dynamics. The idea that a
District of Columbia jury is going to set the standard for
personnel relations for the United States Government doesn’t sound
too attractive to me. It isn’t the kind of thing that Jefferson,
Hamilton, and those guys would have initiated.
S.B.: What about affirmative action? Where do you come out
on that?
L.F.O.: Affirmative action, I don’t have a problem with that,
for instance, in the area of government contracts, and, of course,
that’s affirmative action. I don’t have a problem, for example,
in a case where there is discrimination, and I don’t mean to
isolate it to an individual case as I think Scalia would like to
do. In a situation where there is discrimination, I don’t have any
problem with taking the situation and starting over with it.
Now, my colleague, Gesell, had a solution one time in
a case involving the Telephone Company. I don’t think I’ve ever
had a chance to replicate it, but it seemed to me eminently
correct. In that case, he entered a decree that had the effect of
displacing, detouring, or delaying the opportunity for white
employees in order to make room for those whom he found to have
been victims of discrimination.
S.B.: Was this in hiring or promotion?
L.F.O.: I can’t remember.
S.B.: Okay.
L.F.O.: But it must have been promotion. He required the
company not only to make room for this black access, but to
compensate the displaced whites.
S.B.: You mean financially?
L.F.O.: Yes. Yes. After all, it really is the company’s
mistake that is being corrected. Therefore, the company should pay
for it; the stockholders should pay for it, and not the employees.
The employees should not be asked for give-ups, so to speak.
S.B.: That sounds very clever. I’ve never heard that.
L.F.O.: In talking about my colleagues, the other person that
I would particularly mention is Harold Greene. I think he is, by
several dimensions, the most brilliant. He is the most skillful
writer. He’s had the most extensive, relevant experience. He was
here in the United States Attorney’s Office right out of law
school. Greene was the head of the Appellate Section of the Civil
Rights Division at the Department of Justice at a critical time,
and he’s the architect of the Superior Court. I mean he took that
from ground zero.
S.B.: The creation of it, you mean; the creation of the
Superior Court?
L.F.O.: Well, it was a court. It was a municipal court and
all that, but he made it into a state court by sheer force of
character and advocacy. He went up on the Hill and shook the
pillars and got it done. He has experience in a capacity that, I
think, exceeds anybody’s around here by several dimensions.
S.B.: Actually, there was one thing that you once said about
Lloyd Cutler, and you said it off the record.
L.F.O.: Did I say that it was off the record?
S.B.: No. No. We were chatting afterwards, so it’s not on
the tape. I think you said that he was —
L.F.O.: A genius.
S.B.: (Continuing) — the closest thing to a genius.
L.F.O.: Yes.
S.B.: Well, if you had to make this decision again, that is,
whether to become a judge, would you make it differently?
L.F.O.: I don’t think I would have if I had known what was
going to happen in the last couple of years to our criminal docket.
Certainly, if that had been —
S.B.: You mean you wouldn’t have accepted the appointment?
L.F.O.: If that had been going on then, I wouldn’t have come
here just to try drug cases. No.
S.B.: Do you think that may yet change? Is there any hope
that the law may change? I guess your view is that we would have
to get rid of the mandatory sentencing in order to remove the
incentive to bring them here?
L.F.O.: Well, it’s worth being here to fight that and try to
get rid of it. I’m speaking to the Judicial Conference this year.
S.B.: The D.C. Circuit in Williamsburg, you mean?
L.F.O.: In Williamsburg —
S.B.: Oh, good.
L.F.O.: (Continuing) — on sentencing. Are you coming?
S.B.: Yes.
L.F.O.: My thesis is that, with this frenzy that exists in
the land right now, neither Congress nor the Executive Branch is
going to dare an attempt to eliminate the mandatory minimum. My
idea is to roll with the punch and bring back split sentences.
This assumes — but I think it accurately assumes — that the vast
majority of people affected by mandatory-minimum sentences are
those convicted of drug charges. As a matter of fact, it has been
documented that it is the vast majority.
It has also been documented that the vast majority of
those who have been convicted and imprisoned for drug charges were
users — abusers of drugs. Have I told you this?
S.B.: No.
L.F.O.: There is now scientific evidence recited by none
other than William Bennett that drug treatment in prison
effectively creates a substantial period of remission, if not a
cure. One of the outrageous vices of the Act of Congress that
authorized the mandatory-minimum sentences and the Sentencing
Commission is that they rejected out-of-hand rehabilitation as a
consideration in determining punishment.
I would authorize judges to impose the mandatory minimum,
but also to split that. At the same time, I would urge Congress to
increase massively the funds and personnel available in prisons to
give drug treatment, whatever that is.
S.B.: When you say a “split sentence,” what do you mean by
L.F.O.: I’m going to explain. By that I mean that the
sentence would be for ten years, provided that at the end of two or
three years, if the defendant participates in the drug program in
prison, he may apply for the suspension of his sentence to the
court — not to some politically influenced parole commission, but
to the court. At that time he would have the opportunity to prove
to the court, if he can, that he has successfully completed the
program; and that, in the opinion of whoever it is, the defendant
is a reasonable risk to be in remission. The reason for the period
of two to three years is that experts have told me that two years
of treatment in prison will have a beneficial effect.
Then, with the burden on the defendant — and the
government will certainly oppose the motion — the court can decide
whether to suspend the sentence on the condition that the defendant
be placed on closely supervised release under the direction of a
probation officer, who will report on his progress periodically to
the court. Meanwhile, the balance of the sentence is there, and
if he gets a bad report, it’s executed again. I think that will
S.B.: It’ll get you even more involved in the administration
of sentencing.
L.F.O.: Well, it’s so much more appropriate for us to do that
than just to take the guideline number and recite what somebody has
told us the sentence is supposed to be, no matter who it is and
what he has done.
S.B.: Judges seem to be uniformly angry.
L.F.O.: There is no question about it.
S.B.: But the question, I guess, is whether anyone in
Congress is listening.
L.F.O.: No; but maybe they will listen to this: It costs
between $20,000 to $25,000 a year to keep somebody in prison. It
costs $2000 a year, max, to keep that same person on probation and
in a program. That ought to appeal to them.
S.B.: Right. That sounds good. Well, what is your view of
the death penalty?
L.F.O.: I’d keep the death penalty. I would not toss it
around as they’re doing here, but, yes, I’d keep it. The problem
is that it is so difficult to decide rationally and on the record
which convicted criminals should die and which should live.
Certainly, there are dastardly, inhumane crimes for which I think
society, at least as of now, can fairly exact an eye for an eye.
S.B.: Has your judicial philosophy changed over the years?
L.F.O.: Mine? Well, I don’t know if it is “philosophy,” but
it has certainly changed with respect to affirmative action. I
think I’m more acutely aware now than I was in the past of the
limits on what we can do. At the moment, I don’t think of other
areas where, to the extent that I have a judicial philosophy, it
has changed.
By the way, I’m reading Richard Posner’s Law and
Literature. Have you read that?
S.B.: No, but I’d like to.
L.F.O.: Posner starts out in the first chapter, which is all
I’ve really finished, with the theme of revenge in literature and
law. He develops how law was the outgrowth of dissatisfaction with
revenge at the hands of the injured, or his or her family, and the
degree to which revenge is an element in our legal engine, if you
can call it that, or the drive in our legal engine.
S.B.: I guess it’s a natural instinct. What is your view
about the process of appointing judges? Is it working? Would you
reform it? How would you reform it? You would change the
President; right?
L.F.O.: It’s certainly not working.
S.B.: You’d have to change the President?
L.F.O.: When the President of the United States can say that
he’s appointing Clarence Thomas not because he’s a black man, but
because he’s the best-qualified person in the United States, we’ve
got a bad situation.
S.B.: Well, how can we change it? Should the Senate become
more active?
L.F.O.: Well, I think it’s a political process. I mean these
people have gone at it systematically, and they’ve peppered the
courts with clones of Scalia. But I don’t know any way to do it,
except to get another government, another Administration.
S.B.: Yes, but I don’t know how likely that is. The only
other questions I was thinking of asking are sort of personal ones
about how judging has affected you, your family life, and your
personal life. Has it changed your friends?
L.F.O.: It has changed my friends. It’s very isolating. I
think people don’t come around whom I might see, and since we live
out in McLean sort of without any neighbors, we are isolated
anyway. But I find the work fulfilling, and I think it keeps me
limber. It gives me enough control over my time so that I can
take proper exercise and do a lot of private reading. I don’t
have that many hobbies. I do play tennis and read a lot.
S.B.: And you ski.
L.F.O.: And I ski. This is all compatible with my lifestyle,
really quite compatible. I am a gregarious sort of fellow, and I
would like to see people more and in easier situations, but I
accept that. If it weren’t for the twist that the criminal docket
has recently taken, I would find this an immensely rewarding
experience, particularly at the stage in my life when I picked it
up. I’d done everything you could do in private practice that was
interesting, although I never did the same thing twice.
I’m sure there would have been more interesting
things, but I also noticed that in my firm, with a couple of
exceptions, the partners were retired at age 65. I’m long past
that, and I think I would have found that demeaning. That is one
reason I keep hesitating about taking senior status here. I mean
it has been soon enough, and I don’t know why I need to inflict
that on myself.
S.B.: As a senior judge, though, you can still do everything
you want; right?
L.F.O.: Sure. It’s just in my imagination. I think I will
be taking senior status before very long. I keep saying that. I
probably said that at the beginning of the interview.
S.B.: I believe you did. You’re going to be teaching next
year at Georgetown, so you can spend more time at our place.
L.F.O.: Well, I hope to find a happy home over there. I
really do. Peter Edelman said something about maybe, if I like it,
I can teach something else sometime.
S.B.: Oh, I’m sure that’s true. Well, is there anything
that I should have asked, or could have asked, or anything that you
want to add?
L.F.O.: I can’t think of anything, really. I haven’t given
much thought to this. I have just sort of started up when you
came and turned to other things when you left. Maybe that wasn’t
fair, but that’s about what I did. In any event, I have written
opinions and memoranda about every case of any significance. Most
of them are published and indexed by West Publishing Company, and
there are bound volumes of the published ones in my office. They
can be added to my oral history if that would be useful.
S.B.: I think we have covered everything. So that ends the
L.F.O.: I do need to see this before it goes public.
S.B.: Yes.
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