NYCLA -- Weinfeld Award Luncheon. October 27, Denny Chin. I am deeply grateful to the New York County

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1 NYCLA -- Weinfeld Award Luncheon October 27, 2010 Denny Chin I am deeply grateful to the New York County Lawyers Association for bestowing this wonderful honor on me. I have the highest regard for NYCLA; in fact I've been a member not for Judge Weinfeld's 65 years but for more than 30 years. I am humbled to see my name added to the list of recipients of the Edward Weinfeld Award. Of course, I never overlapped with Judge Weinfeld on the bench. And even as a lawyer I never had the privilege of appearing before him. The wheels in the Clerk's office were not kind to me in that respect. But early on, when I was clerking for Judge Werker, I quickly learned that you could do no better, when doing legal research, than to find a Weinfeld decision that was on point. My wife Kathy did have the privilege of appearing before Judge Weinfeld. This was in 1982 or

2 so, and Kathy was just a second-year associate at Cadwalader. She was given the opportunity to argue a motion before the Great Edward Weinfeld, and so, of course, I went to watch. This was her first time speaking in court. It did not start off well. When Kathy began her argument, Judge Weinfeld boomed at her: "Speak up, young lady." Kathy did fine and still remembers the penetrating but polite questioning she endured. Nonetheless, she lost the motion, as Judge Weinfeld ruled against her -- in what was, of course, a clear and impeccably reasoned decision. It had been a losing cause from the start -- why else do you think the partner and senior associate on the case would let a second-year lawyer argue the motion? Judge Weinfeld has been often quoted as describing the Southern District of New York as "the greatest court in the country, bar none." I was fortunate to be a member of the Mother Court for more -2-

3 than fifteen years. I had the opportunity to work side by side with extraordinary judges, many of whom are here today. I was also fortunate because I seemed to draw more than my share of interesting, high-profile cases. Early on, for example, I had the Megan's Law case, involving the sex offender registration and notification statute. When I held that the law could not be applied retroactively without violating the Constitution, the New York Daily News put me on its list of junk judges and gave me a nickname, Denny "The Pervert s Pal" Chin. I was reversed, in part, by my colleague Jon Newman, for whom -- nonetheless -- I still hold the greatest of respect. During the confirmation process last year, the Megan's Law case resurfaced, as I was grilled by certain senators about it. I also had the Million Youth March case. The City of New York had denied a parade permit to a group whose leader had made racist statements in the past, and the group sued under the First Amendment. I -3-

4 ordered the City to grant a permit. The case was on the front page of the New York Times three times in one week. One of the organizers of the march was quoted as saying, "Judge Chin is our brother." On the other hand, a New York Post columnist referred to me as a "fuzzy-headed buffoon." Many years later, by the way, after I sentenced Bernard Madoff, the same columnist referred to me as her "hero" and a "rock star in a black robe." So you take it all with a large grain of salt. One of the benefits of the Million Youth March case was how much the public became interested in the case. Friends told me that they were having discussions with their teenage children about the First Amendment. You could hear people debating the case on the subway. My parents, who still speak virtually no English, both called me to lobby, saying, "you're not going to give them a permit, are you?" When our son Paul was at Stuyvesant High School just a few blocks from here, he took a debate class and the class debated two cases. Both cases turned out to -4-

5 be mine: Megan's Law and the Million Youth March. Paul tried to lay low, but when the teacher learned that his father was the judge on both cases, she made him argue that I was wrong. At least three of my cases became the plot for Law & Order episodes: the case involving the priest who disclosed a confession by the real murderer; the investment banker who was fired for posing nude in a gay magazine; and the mob infiltrating a Wall Street securities firm. Some summers ago, in Paul's eyes, I hit the big time: one of my cases was on both ESPN and Saturday Night Live in the same week. This was the Penthouse case, involving photographs supposedly of Anna Kournikova, the hot tennis star, sunbathing topless on a public beach, in Miami. It turned out the photographs were of someone else. You know, I had to hold a hearing and spend a day and a half studying photographs of Anna Kournikova and Penthouse. Somebody had to do it. Better me than, say, Judge Cote. -5-

6 Several years ago, I had another fun case. Fox News sued the comedian Al Franken to stop him from using its trademarked phrase "Fair and Balanced" in the title of his book. Fox argued that consumers would be confused into believing that it had sponsored the book. How that could happen, I don't know, for the full title of the book was: Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look At the Right. Ironically, at my Senate Judiciary Committee hearing last year, there was Al Franken, now a United States Senator, asking me questions. I also had a false advertising case involving Listerine and floss. Listerine ran ads claiming that rinsing with its mouthwash was just as effective as flossing in fighting plaque and gingivitis. Disappointing millions of consumers throughout the country, I held that no, it just wasn't true -- you still had to floss. Some folks started referring to me as "The Listerine Judge. I didn't like that, "The Listerine Judge," but, you know what, it was better than the Pervert s Pal. -6-

7 The Naked Cowboy case was also much fun. The Naked Cowboy is the "street entertainer" in Times Square who wears nothing but a cowboy hat, cowboy boots, and underpants -- whitey tighties. Tourists stick dollar bills into his guitar. The M&M company started running a video billboard that included the Blue M&M dressed in a cowboy outfit to look like the Naked Cowboy. It did so without his permission, and so the Naked Cowboy sued. The first sentence of my opinion read: This is the case of the Naked Cowboy versus the Blue M&M. I've had many criminal cases as well, of course, including the Madoff case. The Madoff case was challenging because the entire world was watching, and I did not want the proceedings to turn into a circus. I wanted to make sure that Mr. Madoff, the Government, and the victims all had a full and fair opportunity to be heard. Michael mentioned the naturalization ceremony by which immigrants are sworn in as new American -7-

8 citizens. One of the things I will miss the most about being a district judge is presiding over the ceremony. I performed the ceremony many times, whenever I was in Part I. Each time there were more than 200 immigrants from some 50 countries, and each time I told the new citizens about my grandfather. My grandfather died, at the age of 81, when I was still in law school. He was born in China in 1896 and came to the United States in I was never sure how he got into the country, because of the Chinese exclusion laws that were on the books then. I recently asked my father about this and he said, in Chinese, that my grandfather "bought paper" -- he was a "paper son" who entered the United States fraudulently by buying the necessary paperwork. I can say this publicly now -- now that I've been confirmed. In the 1930's my grandfather returned to China for a short time and my father was born. My -8-

9 grandfather then returned to New York, leaving his family behind in China. My grandfather worked as a waiter for many years in Chinese restaurants in New York City. He lived in a railroad apartment in Chinatown with other Chinese men who also were without their families. Each month my grandfather would buy a money order at the Post Office and send it home to his family in China. In 1947, my grandfather became a U.S. citizen -- in my former court, the Southern District of New York. I have his naturalization certificate, issued on June 9, 1947, hanging on the wall in my Chambers at the Courthouse. In the meantime, my parents had fled to Hong Kong to escape the communist regime. By becoming a citizen, my grandfather was able to bring his family, including me, to this country. My parents' original Chinese passports show that we were admitted to the United States under the Refugee Relief Act of

10 After we arrived in New York, my parents raised five kids. My mother worked as a seamstress in garment factories in Chinatown. For many years my father was a cook in Chinese restaurants. In 1967, my parents were naturalized -- again, in the Southern District of New York -- and thus I became a citizen as well. So each time that I performed the naturalization ceremony, I told the new American citizens about my grandfather. I showed them my grandfather's naturalization certificate, which I would take off the wall, frame and all. And each time I showed it to them, I thought of my grandfather, of how hard he worked for so many years waiting on tables, of how he became a citizen in 1947, of how he brought my parents into the country, of how they became citizens, and how I, the son of a seamstress and Chinese cook, the grandson of a Chinese waiter, became a federal judge. -10-

11 Now, all of you have someone like my grandfather in your pasts, in your family histories. I know that I would not be here today, that I would not have presided over all these exciting cases that I've talked about, that I would not now be a judge on the Second Circuit, if my grandfather and my parents and others like them had not led the way for me, had they not overcome so many barriers. When I was younger and my grandfather was still alive, I surely did not think of him as a "hero" or a "trailblazer" -- after all, I thought, he was just a Chinese waiter. It was only later that I came to appreciate all that he had done for me and the rest of my family, and it was only later that I came to understand how he was very much a hero and very much a trailblazer, as he worked hard, day in and day out, to make a better life for his family. I am settling in now to my new life on the Circuit, although I still am busy on some carry-over district court cases. Just three weeks ago I tried a -11-

12 case involving "sippy cups" -- the no-spill cups for toddlers. Judge Weinfeld was often mentioned as someone who deserved to be on the Second Circuit. He resisted. He had one exchange with Governor Lehman where the Governor was again urging Judge Weinfeld to consider going to the Circuit. Judge Weinfeld responded: Governor, I am contented here [in the district court], and, more important, I have my own standards of qualifications for a judge on the Court of Appeals. I don't measure up to my own standards.... More importantly, I enjoy the work here, seeing and rubbing elbows with the people. I also enjoyed "seeing and rubbing elbows with the people." There is no question that there is less of that in the Circuit. Nonetheless, it is a new and in many ways a greater challenge. My new colleagues have been so welcoming, and I look forward to the opportunity to be more reflective, to work on a more -12-

13 collaborative basis with other judges, and perhaps to have a broader impact. Later in his career, Judge Weinfeld's resistance to leaving the district court softened. When a vacancy opened up, as Judge Weinfeld put it, "the usual discussions started." Judge Weinfeld was approached by Judge Friendly, who pressed Judge Weinfeld about the Court Appeals, saying "We need you very much up here." As Judge Weinfeld would later describe it: This time my response was a little different. I indicated that if an offer came, I would accept it but I would make no move of any kind in my own behalf. The nomination moved forward quickly, and there was nobody else in the picture until the very last minute. Judge Weinfeld did not get the appointment. That someone as extraordinary as the Great Edward Weinfeld did not make it to the Court of -13-

14 Appeals, even when he was willing, shows just how extraordinarily lucky I am. Thank you very much. -14-

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