DETROIT – U.S. District Judge Avern Cohn almost didn’t get to be a federal judge, a job that had been his lifelong dream. Oh, nobody doubted his intelligence or mastery of the law.
However, his temper – well, that was something else. Then-U.S. Senator Donald Riegle, the man who had to recommend his nomination to the President had doubts back in 1979.
“He was concerned that I lacked judicial temperament, and he was right. I still do!” the judge told me last summer when I interviewed him in his chambers.
“I was militant, excitable, forceful. Occasionally probably interrupted people, irritated people. I had to work on that.”
He did — though he never succeeded completely — and went on to become one of the most respected, entertaining and longest-serving judges in Michigan.
Not that he ever completely toned it down. Nor did he suffer fools gladly. “You should wear a belt with your suspenders because you are that redundant,” he thundered at one long-winded lawyer.
Another time, denying a motion for a mistrial, he said “I can think of no greater punishment for myself and for both of you than to require you to go through all this again.”
Yet he also made and wrote some crucial landmark decisions. He struck down a University of Michigan code intended to ban hate speech in 1989, on the grounds that it violated the First Amendment.
He was perhaps best known for being the judge in the famous intermittent windshield wiper case, in which Robert Kearns, the eccentric inventor who came up with the idea, successfully sued Ford, General Motors and Chrysler for infringing his patent.
That case inspired the 2008 movie Flash of Genius.
“Most judges dislike patent cases. I enjoy them,” he told me once. “They force you to learn a lot, both law relating to the case and technical information.”
Last summer, still feisty as ever, still brilliant, Avern Cohn was celebrating two milestones – his 95th birthday, and his approaching 40th year on the bench. Elected officials, including U.S. Senators, and fellow judges filled his courtroom to watch C-Span as freshman U.S. Rep. Andy Levin paid tribute to Judge Cohn on the floor of the House.
However, as last year drew to a close, Avern Cohn decided it was time to step down. Walking was increasingly more difficult; he tired more easily. “There comes a time in the course of one’s work that you pass on the responsibilities to younger persons,” he said.
But while he isn’t hearing cases, he has no intention of doing nothing. Throughout his career, he has read six newspapers a day and at least one book a week, usually more.
He also sends or dictates a steady stream of letters and notes to journalists, newspapers and magazines, praising them, giving them more information or telling them – sometimes more diplomatically than other times – why he thought they were wrong.
His imperious manner, cold stare and harsh tongue have intimidated more than one young lawyer. Yet when his decisions have been controversial, it was often because they were too lenient.
Last October, for example, he refused to send a group of men to prison after they were caught opening bank accounts to send millions back to their families in war-torn Lebanon. Their crime was failing to register what they were doing as a money-transferring business.
“Only people without compassion would object to the light sentences,” he told the Jewish News. “I’ve come to the realization that the rules are flexible, at least to me.”
Shortly before the coronavirus epidemic kept outsiders out of federal court, I went to visit him in his chambers, which he still has use of until his retirement is official at the end of September.
He told me that the federal court system still works, “though there are still a few lumps in it, faults in it.”
Though from time to time there was talk of elevating him to the federal court of appeals, he said “I wouldn’t have liked that. I prefer the give-and-take of a trial, of working with people.”
When he was younger, he often sat as a visiting judge in other districts where there were temporary shortages, from Toledo to California to Louisville, where there was once an anonymous threat against his life. When one of defendants told him “I am scared (profanity)” Judge Cohn said “That makes two of us.”
That, he said, changed the whole atmosphere of the trial. “He saw that the judge is also human. I have a rule, about which I have to remind myself, that the defendant and the lawyers involved have as much right to be in the courtroom as does the judge.
What was his overall philosophy? “A judge has to follow the law and the Constitution, but he must show some compassion.
“Looking back on my career, I would like people to think about what (U.S.) Supreme Court Justice Louis Brandeis supposedly once said: ‘You have to think about the other fella.’
“I would want people to think I had consideration for the other fellow during my years on the bench.”
(Editor’s Note: A version of this column also appeared in the Toledo Blade.)
