Credo of judge who undid AT&T: 'Is it right ... fair?'

By , Staff writer of The Christian Science Monitor

Somewhere between the AT&T divestiture trial and the case of the airport cabdriver who charged $100 for a $20 ride, federal district Judge Harold Greene raised his walnut gavel on ''debategate.''

But recently the gavel came down against him as an appeals court reversed Judge Greene. It was one of the most dramatic cases on the docket for this jurist, who developed his passion for justice after fleeing Nazi Germany.

The case involves the US Justice Department and its attorney general, William French Smith. In its 8-to-0 decision, the US Court of Appeals for the District of Columbia ruled that Attorney General Smith was not required to appoint an independent counsel to investigate how Carter White House briefing materials were obtained by the Reagan staff in the 1980 presidential campaign. The appeals court reversed Greene's May opinion, in which he gave the attorney general seven days to ask for a special prosecutor.

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As a matter of judicial circumspection, Greene would not talk about the case before the appeals court reversed his decision. And he still won't talk about it afterwards. But he did sit down in his chambers over a glass of chocolate milk and talk judiciously about his job, giving a rare glimpse of the way a federal judge makes the big decisions.

His Honor's flowing black robe is stashed in a closet for this interview. There is no ''All rise!'' as is customary in the courtroom as the judge strides in here. In fact, he doesn't stride, he strolls in, looking cool and casual in a short-sleeve shirt.

He is unexpectedly merry looking for a man who passes judgment on some of the country's most somber cases. Harold Greene has a wide, upturned mouth with a crescent smile, a mouth that gives the impression he's smiling even when he isn't. His brown eyes twinkle behind horn-rimmed glasses; but it's a shrewd twinkle that suggests you'd better not misjudge his pleasant manner and be less than candid in his courtroom.

During this interview he sighs occasionally as he talks of what it's like to be a judge - more specifically, a judge with 165 cases pending.

''I guess my tendency is, in a sense, to be for the person who appears to be pushed around,'' Greene says. ''I try to find out in this particular situation who has done the fair thing, who has done the just thing. And it isn't always the little guy. More often than not, the little guy is getting pushed around. But not always. Sometimes he will be taking advantage of the situation, and claiming to be pushed around when actually he isn't.''

Greene has been described as an activist in the mold of the late US Chief Justice Earl Warren. ''Earl Warren was a great man, and I'm not on the same level, but I do identify with his credo,'' says Greene. ''He was famous for asking always, 'But is it right, is it fair?' '' Justice Warren always stressed what was right and fair under the particular circumstances, Greene adds. ''And that's not always easy to tell. It's not something you can put in a computer and get out at will. You have to be able to sense what is fair, and it's subtle in a way.''

To reach his chambers in the tan stone moderne building that houses the federal court, you walk through tall doors done in art-deco bronze and into a ''Frisk 'em'' security gate. One flight up, through ringing marble halls where all the doors are locked, are the judge's chambers, marked with a brass sign.

The chambers are screened by an ornate, open-work wooden wall allowing a view of the rooms beyond. His private office has teak walls, a rose-red Oriental rug, oatmeal couch with red pillows, and a massive desk with a black blotter, nearly clear of papers. Leather law books and a variety of paintings, including a courtroom scene and a drawing of Don Quixote and Sancho Panza, line the room.

This is the room in which Judge Greene has wrestled with not only the four-year American Telephone & Telegraph Company (AT&T) case resulting in divestiture, but also a variety of thorny subjects such as a Wall Street Journal libel case, a possible conflict-of-interest case involving a former Federal Trade Commission chairman, and one involving Sir Freddie Laker, the airline mogul, and several major airlines, in which Greene opposes the British courts on jurisdiction.

Of the AT&T case he says now, ''You read and hear about people saying they have a lot of complaints, about how are they going to get the phone repaired, who's going to install it. These are significant things, but in the long range, they're relatively minor compared to the benefits of divestiture. That is competition, the basis of our prosperity. And there's no reason why things should be any different in the telephone business than they are anywhere else - automobiles or soap or anything else.''

Born in Frankfurt-am-Main, Germany, Greene grew up in a Jewish family that survived the Holocaust by escaping through Europe to the United States.

''In a dictatorship like Nazi Germany they have their hands on all the levers of power, from the police to the courts,'' Greene says. ''There is no law. I never think my past experience has anything to do with my judicial philosophy, but one thing you do learn living in a dictatorship is that there is no impartial law.''

He had that first bitter lesson in law in Nazi Germany when his father's retail business was discriminated against and boycotted, the government's official anti-Semitism echoed in public hostility. So it's not surprising that he chose law as his profession and struggled hard for that education. During the day, he worked full-time for the Justice Department's office of alien property, following his stint in Army intelligence doing World War II prisoner interrogations. (He was on the team that interrogated suspected war criminals for the Nuremberg trials).

After clocking out from a full day at the Justice Department, Harold Greene whizzed over to George Washington University's night law school, where he earned his law degree in three years.

Washington Post columnist Mary McGrory once wrote of him, ''Judge Harold Greene is a night-law-school graduate, which we know from the example of Judge John J. Sirica Jr. is the best kind for cracking the mysteries of chicanery in high places.''

Greene ducks his head, and with his perpetual half smile suggests that's just Mary McGrory's writing style, not admissible evidence. But John Sirica, the Watergate cover-up trial judge, dissents. Judge Sirica, who has known him since Greene served as Washington's chief Superior Court judge, says, ''I've always admired his ability. He's an outstanding judge, as he proved in that longstanding (AT&T) antitrust case.'' Sirica, now semiretired as a senior federal court judge in Washington, was succeeded by Greene.

''Fair,'' says Sirica, ''he is absolutely fair, regardless of the consequences. It makes no difference who's involved. He has patience, one of the most important things a judge can have, and a judicial temperament. He's an outstanding trial judge, and he ran that (Superior) Court beautifully over there.'' As chief judge of the local court for 12 years, Greene had 30,000 to 35 ,000 major cases a year to dispose of. Sirica pronounces him ''one of the top judges in the country.''

If a novelist is known through his books and a film director through his films, then a judge is known through his court opinions. Judge Greene's are notable for their clarity, common sense, and stern candor. In the case of the Carter briefing papers, the plaintiff John F. Banzhaf III had argued that the Ethics in Government Act required Attorney General Smith to appoint an independent counsel to investigate.

In ruling against the attorney general, Greene said flatly that the case ''involves the very evil that prompted the adoption of the Ethics Act - alleged political chicanery at the highest levels of government in the context of a political campaign.'' In the interview later, Greene says: ''I guess the most valuable lesson of Watergate is that nobody is above the law, not even the president.''

Greene knows something about the office of attorney general; he headed the appellate section of the Justice Department, serving under Robert F. Kennedy and Nicholas Katzenbach before Ramsey Clark placed Greene on the Superior Court bench.

''It is not the responsibility of the judiciary to bring the executive to accountability,'' says Judge Greene. ''If it's anybody's responsibility to bring the executive to accountability, it would be Congress's.'' Mr. Banzhaf, the lawyer plaintiff in the ''debategate'' case, suggests that the issue may not be dead and that it may ultimately be Congress that resolves it. Banzhaf says no decision has yet been made as to whether to take the case beyond the Appeals Court and up to the Supreme Court.

One observer notes that Greene is a confident man - even too confident for some other judges - and suggests that this comes from his belief that he's done the best he can do in any case. This observer says the ''debategate'' appeals court reversal doesn't appear to have fazed Greene: ''I trust he believes in what he did and in the responsibility of the appellate court to review.''

One of the judge's former law clerks, Carol Bruce, says: ''He really is a pure jurist, in the sense of not taking sides, or visceral reactions. He is incisive, cuts through the superfluity of pleadings or arguments and gets to the heart of issues.'' Ms. Bruce, an assistant US attorney for the District of Columbia, speaks of Greene's instinct for what the law ought to be even in highly technical cases with which he had no previous familiarity and in which opinions had not yet been researched. Once his clerks researched the issue, she says, they usually found that where he had said, ''This is the right thing, the fair thing, the just thing,'' the previous legal opinions backed up his decision.

Stephen Pollack, who has known Harold Greene since they both worked in the civil rights division of the Justice Department, speaks of the judge's energetic approach to law and life. ''He's committed to putting his total energy into cases.''

But he notes that Greene has recently taken up a little tennis, too, because his wife is an active player. Mr. Pollack, a partner in the Washington law firm Shea & Gardner, says gently that Greene is ''not athletically inclined,'' but gives him points for tackling a game that's ''a really humbling experience'' for a high court judge. The Greenes have two grown children, a son who is a doctor interning in Philadelphia and a daughter who teaches school in Los Angeles. Greene's smile arcs across his face as he mentions that he performed his daughter's marriage.

Although a sitting judge rarely grants an interview, Judge Greene suggests there is a unique judicial rapport with the press. ''The judiciary is a safety valve, like the press is. The judiciary is in many ways like the press, because neither one is part of the structure of government that really governs. But they're there when something happens, an injustice happens, people can go there, and they can get some relief from that.''

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