Thursday, October 30, 2008


The National Review has published a syndicated article by Thomas Sowell which adds a new fear to the Republican list which grows daily if Barack Obama is elected, but this one is personal. He predicts that Barack Obama is likely to select a Supreme Court Justice just like me. Run for the hills! Out of my 2200 written opinions, he selects as evidence a decision that I rendered in the infamous Morristown library case. No matter how many times the conservatives claim that I ruled that a smelly, homeless man could annoy and drive patrons out of the library and harass women, it won't be true.

I declared a library regulation invalid on the grounds that it was too vague and broad in giving librarians the unfettered discretion to oust or forever bar a patron. The Court of Appeals disagreed, but I never made any ruling about the individual or his conduct. It was a decision based strictly on the law and not the facts. I never awarded him any damages, and I certainly said nothing in my ruling which "threatened the town with heavy damage awards" as Dr. Sowell claims . Why the case was settled for such a huge amount is a question that should be addressed to the city (or the insurance carriers) who paid it. I cannot conceive of a jury award in such an amount, even if the matter had gone to trial as a result of my decision. The idea that my decision declaring a library regulation invalid could have bankrupted the city is absurd. But I suppose that Dr. Sowell likewise believes that I should have continued the wrongful incarceration of Rubin "Hurricane" Carter, since by protecting his constitutional rights, I may have exposed the county that prosecuted him to a suit for damages and possible bankruptcy. In essence, Dr. Sowell apparently suggests that rulings on constitutional questions should somehow take into consideration the financial consequences that may befall the losing party. Now that's a criterion worthy of conservative support.

Finally, Dr. Sowell adds to the fear factor by trotting out the old "soft-on-crime" saw. He claims that Obama judges will "be siding with criminals and terrorists during the lifetime of your children and grandchildren". By siding with criminals and terrorists, I assume he means enforcing the rights and liberties guaranteed by the Constitution----what a bummer. We don't want any of those kind of people sitting on our courts.

As for my being the poster boy for Obama appointments to the Supreme Court, I have dedicated my entire professional life to the rule of law, in my view, not a bad criterion for a supreme court justice; nor do I think that "empathy" for the "poor, the African-American, the gay, the disabled or the old" is a disqualifier as Dr. Sowell contends; rather it should be a requirement.

P.S. Even after the reversal by the Court of Appeals, the American Library Association invited me to speak at their annual convention to discuss the case and offer guidance to avoid similar occurrences in the future.


Anonymous said...

Could we only be so lucky? As a lawyer that defends the indigent accused right here in San Diego, I see so many injustices in our system. It is unfortunate that people seem to think the 4th Amendment is a technicality and that the Exclusionary Rule is simply outdated. Is upholding the rights and liberties in the Constitution to much to ask? I agree with Yale Kamisar's quote to the New York Times on January 30, 2009 --- We have been saved by Barrack Obama in the nick of time!

I can only say, I wish there were more judges like you!

H. Lee Sarokin said...

Thank you.
Judge Sarokin