Jack Weinstein, one of the greatest judges in American history, placed himself on inactive status eight days ago at age 98, after 53 years on the federal bench. Until that day, February 10, 2020 Judge Weinstein carried a full load of cases – and a lucky load it was – for the litigants and their champions. How is Jack Weinstein great? Let others count the thousands of ways (and they will) but allow HL to mention a few personal and idiosyncratic.
Jack Weinstein was already a role model when and where HL grew up on THE Island. Weinstein got there by way of Kansas, then Brooklyn and its Lincoln High School when and where HL’s father taught and coached football. Weinstein of Great Neck, just across THE Expressway from HL’s neighborhood was already a well-known legal lion. Some of that for being our (Nassau) County’s head attorney but more as a civil rights lawyer who had worked for Thurgood Marshall on Brown v. Board of Education of Topeka, not far from Weinstein’s birthplace in Wichita.
Weinstein’s association to that decision was a big deal for us back then in the early 1960s. We all remembered the day in 1954 that case was decided the way we remembered the day Stalin died, the day when Brooklyn finally won the Series, the day of THE Coronation.
It was people like Jack Weinstein and Ralph Nader, and those two specifically for HL, that sent us to law school. It kept me at Columbia despite an immediate and strong distaste for torts and contracts and their invidious comparison to the kind of international and constitutional law we were fed at liberal eastern liberal arts colleges. And by 2L there was Weinstein teaching us evidence – the author of the evidentiary rules used by every litigant and every judge in every federal court, including the Supremes. Jack’s course was so good that I took it twice, once then and years later after several years of practice.
The most important moments in most federal cases occur on the day of filing, when the clerk spins the drum and reads you the name of your judge selected randomly – or so they tell you.
In 1976 I hit the lottery for the first of several times. I was a young legal services lawyer filing a civil rights case on behalf of a class of fully employed recipients of public assistance – the hard-working poor. The case was assigned to Judge Weinstein and in my first appearance before him I had to convince him that a 3-Judge court was required to determine this federal constitutional challenge to federal and state law. The challenge was based on a fairly novel theory I had devised. That day Weinstein sat in the Mineola branch of the United States District Court for the Eastern District of New York, whose main branch was in downtown Brooklyn. Mineola was close to where my mother lived, so she came to see her boy perform, which I did for almost an hour. It ended with Weinstein ruling from the bench that he would ask the Chief Judge of the United States Court of Appeals for the Second Circuit to designate two additional judges and convene a constitutional 3-judge court. As the session ended, my mother bolted to the front of the courtroom where Weinstein typically robe-less sat with the advocates, not above them on the bench wearing a costume. She went up to Weinstein and hugged and kissed him. I wanted to die, but Jack instantly shot me a knowing look and that said “I’ve got a Jewish mother too. It’s alright. She’s proud of you.”
A few months later at the 3-judge court argument in Brooklyn, I assumed that I was doomed, as the other two jurists were former Connecticut Governor Tom Meskill, a vigorous proponent as governor of the very type of law I was challenging and a right wing jurist, named by Jack Newfield of the Village Voice as the “dumbest judge east of the Mississippi.”
But the panel suffered me to argue for two full hours. After which Weinstein dispatched his clerk, Denise Cote, to deliver his contemporaneous esteem for my argument. As expected, we lost 2 to 1 with Weinstein writing a 46-page dissent. He invited me into his chambers to express his “gratitude” for my work, that had included a 200 plus page “Brandeis Brief” distilling many empirical studies of the way America’s welfare system punished recipients who worked and destroyed the incentives of those who wanted to work. In chambers Jack served me and his clerks oranges and beverages. That sort of kindness from a federal judge to a young lawyer is never forgotten and goes a long way in shaping a career. Jack Weinstein did something like that for lawyers and litigants and the accused and convicted who came before him virtually every working day for 53 years.
In the following 44 years I had a few more cases and encounters with Weinstein. My wife, as Assistant U.S. Attorney had many more. One of mine was the case that caused the law firm Constantine Cannon to be established. My client induced me to leave a lucrative partnership at a large international firm to form one of 5 lawyers so he could have the counsel of his choice in a case against Time Warner. Five years after winning the lottery again, Time Warner surrendered with a jury seated awaiting opening arguments in Jack Weinstein’s courtroom.
That capitulation occurred after we ran the table with Weinstein denying a string of motions filed by the truly brilliant lawyers of Cravath Swaine & Moore – all asking for various questions and the whole case to be taken away from jury determination and for it to be dismissed without a trial. Weinstein trusted juries, their fairness and wisdom. He trusted the American legal system and during his 53 years he made that system, fairer, more just and a far more humane and happy place to practice law and seek justice. Thank you Judge Weinstein. You have earned your rest.