Benched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of A

Home , Abraham Ribicoff, Demi Moore, Irving Kaufman

108 CONNECTICUT BAR JOURNAL [Vol. 91.1 2018] booK review 109 take up to 16 weeks of leave in a 24-month period because Benched: Abortion, Terrorists, Drones, Crooks, of an emergency arising out of an employee’s spouse, son, Supreme Court, Kennedy, Nixon, Demi Moore, and daughter, or parent being on active duty or being notified of Other Tales from the Life of a Federal Judge an impending call or order to activity duty in the armed – Jon O. Newman, William S. Hein & Co., Inc., Getzville, forces. Public Act 16-195. N.y, 2017. 302 pages. 6. IRAs for Employees On February 25, 1955, second-year yale law student Jon Public Act 16-3, which will not be effective until January O. Newman wrote the firm of Ritter and Satter about an 1, 2018, creates the Connecticut Retirement Security opening for a summer job. He had obtained information Authority, w hich may establish a program requiring private about this opportunity from John Subak, who was a staff sector employers to establish ROTH IRAs (after tax IRAs) member of the yale Law Journal and had the year before for their employees. An employee who does not opt out from held summer employment with Ritter and Satter. Robert the program will be required to contribute 3% of wages to a Satter wrote back to Newman on March 3, 1955, that “we. . Roth IRA, no later than 60 days after the employer provides .would be desireous [sic] of meeting you.”1 He continued: the employee with information about the program. An “[W]e have somebody from Harvard who also has employer covered by the Act is one that has at least five approached us so I would suggest that you come up as soon employees who were paid at least $5,000 in wages in the as you can. The best time I’d say would be on a Saturday preceding calendar. An employee covered by the law when both of us are here and the telephone is not jangling.”2 includes those who have worked for a qualified employer for Satter later became a well-respected legislator and then a at least 120 days and are at least 19 years old. An employ- judge of the Connecticut Superior Court. er is exempt if it maintains a retirement plan recognized The Harvard applicant was not chosen, and Newman under the Internal Revenue Code, such as 401(k), 403(b), or secured a summer job. After yale graduation and federal 401(a) pension plans. clerkships, Newman returned as a partner, with the firm 7. Connecticut Minimum Wage entitled “Ritter, Satter, and Newman.” From this beginning, Effective January 1, 2017, the minimum wage in Jon O. Newman rose to become a stellar figure in Connecticut was increased to $10.10 per hour.325 Connecticut legal history, holding the positions of Connecticut U.S. Attorney, U.S. District Judge, and, for VII. CONCLUSION most of his career, a judge of the Second Circuit Court of Appeals. He was a finalist to become a U. S. Supreme Court 2016 saw a significant increase in the number of cases Justice, but President Clinton selected Ruth Bader filed at the CHRO, in the Superior Court, and in the District Ginsburg instead. One possible reason given by some knowl- Court. The District Court judges issued more decisions in edgeable figures for Judge Newman’s failure to be selected discrimination cases than in previous years. These facts and was an Op-Ed that he wrote for the new york times during the increase in FLSA cases filed, we can expect an increase the Clarence Thomas debate a few years before, urging in rulings of interest in 2017 and beyond. With the change Congress to reject Justice Thomas’ nomination in favor of in the federal administration, we can also expect changes in NLRB rulings and in court rulings on appeals from NLRB 1 Letter from Jon O. Newman to Robert Satter (Feb. 25, 1955) and reply decisions in 2017. from Robert Satter to Jon O. Newman (Mar. 3, 1955)(on file with the State Library Record Group 069-160, Satter (Robert) Collection, 1926-1993, bulk 1952-1980). 325 CONN. GEN. STAT. §31-58(i). 2 id.

190014_CBJ Vol91No1.indd 109 2/23/18 9:41 AM 110 CONNECTICUT BAR JOURNAL [Vol. 91.1 2018] booK review 111

Newman’s fellow judge on the Second Circuit, Amalya Judge Newman names his most significant District Kearse.3 During President Clinton’s selection process, the Court decisions as two from 1972, finding first an 1860 wall street Journal published an editorial critical of Judge anti-abortion statute unconstitutional, and then also find- Newman’s new york times Op-Ed. ing unconstitutional a 1972 anti-abortion statute passed in 4 Judge Newman has now written a thoughtful memoir of response to his first ruling. The Judge’s rulings were based his life. Much of the book details his personal biography, on the failure of the State to justify protecting the rights of including his lawyer-father’s preparation of a genealogy of the fetus over a woman’s right to end her pregnancy, a Greek mythological figures that the judge completed and rationale that was adopted later by the Supreme Court in 5 published at the University of North Carolina Press. He roe v. wade. describes his education at the Hotchkiss School in Lakeville, Judge Newman’s Second Circuit decisions are numerous. Connecticut, Princeton, and yale Law School. One lesson He wrote several decisions on the First Amendment, includ- he takes credit for learning, which also serves members of ing a concurring opinion in thomas v. board of education,6 the legal profession well, was the ability to write not only which involved the right of high school students to distrib- accurately, but speedily. ute a publication that contained vulgar language. In his con- currence, he agreed to further hearings be fore the school He married Martha Silberman at age twenty-one, just as board, stating cleverly that the students had the right to he entered yale Law School. They were married for fifty- wear armbands at school in protest of the Vietnam War,7 one years, and had three children and a number of grand- but not to wear Cohen’s jacket.8 children. I served on a board with Martha, who was one of He has ruled multiple times on employment discrimina- the friendliest and most competent persons whom I have tion issues under Title VII of the Civil Rights Act of 1964. ever met. She died in 2005. In 2007, Judge Newman mar- One such case was Guardians association v. civil service ried Ann Leventhal, a writer, and the widow of a distin- commission,9 on the validity of a test and passing rates for guished Connecticut attorney, David Leventhal. those applyi ng for employment as police officers. He con- The book’s remaining chapter s describe the Judge’s cluded that the test had the illegal effect of excluding District and Appellate court experiences. The judge’s initial African-American applicants. He has also ruled in cases confirmation process in the District Court makes for fasci- involving discrimination against women in employment. nating reading. He ran into difficulties when the Nixon Two cases where he concluded that, in contrast to the major- administration, after giving assurance that his name had ity opinions, the women had made out prima facie cases been forwarded to the Senate Judiciary Committee, worked were Fisher v. vassar college10 and brown v. coach behind the scenes to defeat his nomination. He was helped stores.11 In both cases Judge Newman issued dissenting throughout by Senator Abraham Ribicoff, whom Judge Newman served either as an informal aide or as a formal 4 Abele v. Markle I, 342 F. Supp. 800 (D. Conn. 1972) vacated, 410 U.S. 951 administrative assistant from the late 1950s to 1964, both (1973); Abele v. Markle II, 351 F. Supp. 224 (D. Conn. 1972), vacated, 410 U.S. 951 (1973). in Connecticut and in Washington. 5 410 U.S. 113 (1973). 6 607 F.2d 1043, 1053-1058 (2d Cir. 1979), cert. denied, 444 U.S. 1081 (1980). 7 id. at 1054 (citing Tinker v. Des Moines Ind. School Board, 393 U.S. 503 3 JON O. NEWMAN, BENCHED: ABORTION, TERRORISTS, DRONES, CROOKS, (1969)). SUPREME COURT, KENNEDy, NIXON, DEMI MOORE, AND OTHER TALES FROM THE LIFE 8 id. at 1055 (citing Cohen v. California, 403 U.S. 15 (1971), a case allowing OF A FEDERAL JUDGE 181-82 (William S. Hein & Co., Inc. 2017). Judge Newman dis- adults to wear a jacket with a vulgar phrase on it into court). cusses the controversy over the Op-Ed in his book. He also states that he likely 9 630 F.2d 79 (2d Cir. 1980), cert. denied, 452 U.S. 940 (1981). would have declined an appointment to the U.S. Supreme Court at that stage in 10 114 F.3d 1332, 1361-86 (2d Cir. 1997), cert. denied, 522 U.S. 1075 (1998). his career. 11 163 F.3d 706, 713-17 (2d Cir. 1998).

190014_CBJ Vol91No1.indd 110 2/23/18 9:41 AM 110 CONNECTICUT BAR JOURNAL [Vol. 91.1 2018] booK review 111

190014_CBJ Vol91No1.indd 111 2/23/18 9:41 AM 112 CONNECTICUT BAR JOURNAL [Vol. 91.1 2018] booK review 113

opinions. The Judge also discusses the outcome of the few of his Another area of law that the Judge has ruled on is intel- decisions that were accepted by the Supreme Court for lectual property. He has applied the “fair use” doctrine of review. In roe v. norton,17 he ruled that the Connecticut copyright in allowing the performance of a song i love Department of Social Services was obliged to expend sodom as a parody of the New york City official ditty, i love Medicaid funds for clients who were entitled to have an new york.12 On the other hand, he disallowed an uncom- abortion. To Judge Newman, the right to an abortion was pensated use of an artist’s “story quilt” by a television net- elusive if it was too costly for the woman. His decision was 18 work.13 reversed in mahe r v. roe, the U.S. Supreme Court stating that the right to an abortion did not mandate that the state In the area of criminal law, one of his most significant must pay for it. Judge Newman continues to believe that cases affirmed the conviction on two counts of New york the U.S. Supreme Court came to the wrong conclusion. Congressman Mario Biaggi, whose operation of the Wedtech company the government alleged was a criminal enter- One of Judge Newman’s decisions that he does not dis- 19 prise.14 He has also taken a leading role in the development cuss in his book is pinsky v. duncan, which had an effect on Connecticut civil practice. The majority in that case held of federal sentencing guidelines. After serving on a commit- that a prejudgment ex parte attachment of real estate was tee to develop the guidelines, he clashed with the federal unconstitutional,20 changing a Connecticut practice that sentencing commission, which opposed diversions from had been in effect since the founding of the State. Judge strict calculations so that a trial judge could apply equitable Newman dissented, stating “[t]he Due Process Clause is not considerations. Judge Newman was somewhat vindicated a code of civil procedure.”21 He also stated that the attach- by the Supreme Court decision in united states v. booker,15 ment of real estate “does not deprive the owner of any pos- giving more discretion to the district court judges in sen- sessory rights in his property.”22 In his dissent, he noted tencing. that, although there are some consequences with any type of Judge Newman also discusses the traditions of the attachment, due process was met in this instance by an Second Circuit. This Court, unlike other federal Circuit immediate, post-seizure hearing required by state law.23 Courts, permits oral argument in all cases. Although the The Supreme Court, however, on granting of certiorari, rules of procedure allow a rehearing en banc, the Second agreed with the majority and struck down the ex parte prac- Circuit, unlike others, hardly ever grants the request. The tice.24 Now pre-judgment remedy hearings for real estate Judge also proposes changes to federal law, including less- take place before seizure under statutes passed subsequent ening the immunity protections for law enforcement per- to the U.S. Supreme Court’s ruling.25 sonnel, further limiting federal diversity jurisdiction, taking This book has a wealth of information for Connecticut additional steps to end litigation abuse, and like his former amateur and professional historians. Judge Newman 16 partner, Judge Satter, in his own memoir, recommending describes his interactions with politicians such as Abraham the capping of jury awards in civil cases.

17 408 F. Supp. 660 (D. Conn. 1975), reversed, 432 U.S. 464 (1977). 12 Elsemere Music Inc. v. National Broadcasting Company, 623 F.2d 252 (2d 18 432 U.S. 464 (1977). Cir. 1980). 19 898 F.2d 852 (2d Cir. 1990), affirmed, 501 U.S. 1 (1991). 13 Ringgold v. BETV, 126 F.3d 70 (2d Cir.1997). 20 id. 14 United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990), cert. denied, 499 U.S. 21 id. at 862. 904 (1991). 22 id. 15 543 U.S. 220 (2005). 23 id. 16 ROBERT SATTER, DOING JUSTICE: A TRIAL JUDGE AT WORK (Simon & Schuster 24 Connecticut v. Doehr, 501 U.S. 1 (1991). 1990). 25 see CONN. GEN. STAT. § 52-278a et seq.

190014_CBJ Vol91No1.indd 112 2/23/18 9:41 AM 112 CONNECTICUT BAR JOURNAL [Vol. 91.1 2018] booK review 113 opinions. The Judge also discusses the outcome of the few of his Another area of law that the Judge has ruled on is intel- decisions that were accepted by the Supreme Court for lectual property. He has applied the “fair use” doctrine of review. In roe v. norton,17 he ruled that the Connecticut copyright in allowing the performance of a song i love Department of Social Services was obliged to expend sodom as a parody of the New york City official ditty, i love Medicaid funds for clients who were entitled to have an new york.12 On the other hand, he disallowed an uncom- abortion. To Judge Newman, the right to an abortion was pensated use of an artist’s “story quilt” by a television net- elusive if it was too costly for the woman. His decision was 18 work.13 reversed in mahe r v. roe, the U.S. Supreme Court stating that the right to an abortion did not mandate that the state In the area of criminal law, one of his most significant must pay for it. Judge Newman continues to believe that cases affirmed the conviction on two counts of New york the U.S. Supreme Court came to the wrong conclusion. Congressman Mario Biaggi, whose operation of the Wedtech company the government alleged was a criminal enter- One of Judge Newman’s decisions that he does not dis- 19 prise.14 He has also taken a leading role in the development cuss in his book is pinsky v. duncan, which had an effect on Connecticut civil practice. The majority in that case held of federal sentencing guidelines. After serving on a commit- that a prejudgment ex parte attachment of real estate was tee to develop the guidelines, he clashed with the federal unconstitutional,20 changing a Connecticut practice that sentencing commission, which opposed diversions from had been in effect since the founding of the State. Judge strict calculations so that a trial judge could apply equitable Newman dissented, stating “[t]he Due Process Clause is not considerations. Judge Newman was somewhat vindicated a code of civil procedure.”21 He also stated that the attach- by the Supreme Court decision in united states v. booker,15 ment of real estate “does not deprive the owner of any pos- giving more discretion to the district court judges in sen- sessory rights in his property.”22 In his dissent, he noted tencing. that, although there are some consequences with any type of Judge Newman also discusses the traditions of the attachment, due process was met in this instance by an Second Circuit. This Court, unlike other federal Circuit immediate, post-seizure hearing required by state law.23 Courts, permits oral argument in all cases. Although the The Supreme Court, however, on granting of certiorari, rules of procedure allow a rehearing en banc, the Second agreed with the majority and struck down the ex parte prac- Circuit, unlike others, hardly ever grants the request. The tice.24 Now pre-judgment remedy hearings for real estate Judge also proposes changes to federal law, including less- take place before seizure under statutes passed subsequent ening the immunity protections for law enforcement per- to the U.S. Supreme Court’s ruling.25 sonnel, further limiting federal diversity jurisdiction, taking This book has a wealth of information for Connecticut additional steps to end litigation abuse, and like his former amateur and professional historians. Judge Newman 16 partner, Judge Satter, in his own memoir, recommending describes his interactions with politicians such as Abraham the capping of jury awards in civil cases.

190014_CBJ Vol91No1.indd 113 2/23/18 9:41 AM 114 CONNECTICUT BAR JOURNAL [Vol. 91.1 2018] booK review 115

Ribicoff, John Bailey, and Ella Grasso. He was present on the Waterbury Green on Election Day 1960 at 3:00 a.m. in a rainstorm as John F. Kennedy spoke to a massive crowd; there was no denying that Kennedy would receive Connecticut’s electoral vote.26 Judge Newman reports on his law firms from his days of private practice, including Ritter and Satter and then Satter and Fleischmann, with whom he shared space. During his 1978 Second Circuit confirmation process, he mentions the pioneering woman attorney, Barbara Sacks, who served on the President’s panel to recommend Circuit Court nominees. He also relates a run-in he had during his 1972 confirmation to the District Court with Stewart H. Jones, who had succeeded Judge Newman as U.S. Attorney in 1969. Of course, there are the judges whom he has encoun- tered. These include Chief Justice Earl Warren, for whom he served as a law clerk, and Second Circuit Judges Learned Hand, J. Edward Lumbard, James Oakes, Irving Kaufman, Henry J. Friendly, and J. Joseph Smith. Thurgood Marshall began his judicial career in the Second Circuit and the courthouse bears his name. Judge Newman has remem- brances of Justice Marshall. In the District Court, he portrays Judges M. Joseph Blumenfeld, and Judge T. Emmet Clarie. Judge Clarie made a telling point in reacting to Judge Newman’s efforts at appointment to the Second Circuit. Judge Clarie said to Judge Newman: “I hope you enjoy that [contemplative] library court.”27 Judge Newman shows in this autobiogra- phy how much he has enjoyed, and, how much he has bene- fited the people of this country, in serving as a Circuit Court Judge.

–JUDGE HENRy S. COHN*

* Judge Trial Referee, New Britain. 26 THEODORE H. WHITE, THE MAKING OF THE PRESIDENT 1960 (Atheneum Publishers 1961). 27 NEWMAN, supra note 3, at 129.

190014_CBJ Vol91No1.indd 114 2/23/18 9:41 AM