Sustained: Judge Sarah Evans Barker
Judge Sarah Evans Barker has just offered to do the dishes. She appears in the doorway between her assistant’s office and her conference room, where two staffers and a guest are finishing brown-bag lunches at an imposing table, and says she has just started a pan of soapy water, motioning behind her toward the employee kitchen. She wears not a judge’s telltale robe but a long gray skirt and dark knit sweater. Plain, but they fit and hang like expensive clothing. The attire is the only clue that the seeker of the sullied salad forks is, arguably, the most powerful woman in Indiana.
The venerable 71-year-old, celebrated for being the first woman on the federal bench in the state, isn’t above handling housekeeping in her homey chambers, a stroke of commonality that contrasts with the prestige of her job. But Barker broke through the glass ceiling three decades ago with her humility intact. Her years presiding over the U.S. District of Southern Indiana’s Courtroom 17, a ceremonial space so palatial it looks like a movie set, haven’t changed that.
There, a far cry from those dirty dishes, Barker works as one of 14 peerless Hoosier judges trusted to untangle constitutional issues for the state. She has determined Hoosiers’ voting rights, immigration standards, rules on school prayer, and boundaries of free speech. Those sweeping opinions have established her as one of Indiana’s great reasoners, a reputation bolstered by a resume full of national leadership roles, including a two-year term as president of the Federal Judges Association.
Because Barker has already created a legacy, it’s easy to speak about her in the past tense. That might explain why some mistook her 2014 announcement that she was officially taking senior status as a move toward semi-retirement, a step away from the bench and toward her office rocking chair, where she sits to chat with her clerks. When the news went public, Hoosier attorneys cried objection!—prosecutors and defense lawyers alike. Even longtime American Civil Liberties Union of Indiana legal director Ken Falk, whose constitutional cases are typically associated with liberal causes, was far from delighted that the Reagan appointee might be stepping back from the job. Barker ranks among Indiana’s exemplars of virtue, transcends politics, and has won admirers of all ideological stripes with her moderate sensibility. Plus, she is wickedly funny. It’s hard to find members of the legal community who don’t wish her to be as permanent a pillar in the U.S. Courthouse as the marble ones ringing her courtroom.
Any fretting was for naught. “Senior status” is a bit misleading. It means she will keep 80 percent of her current 650-plus-case workload—not exactly a one-way ticket to Naples. Nothing will change until President Obama or his successor appoints her replacement, and as far as Barker knows, the nomination process hasn’t gotten far off the ground. (When the White House and Capitol Hill are controlled by separate parties, as they are now, judicial appointments often lag.) She occasionally grumbles about the delay, but not because she is eager to adjourn professionally. Taking senior status was chiefly a move to increase the size of the Southern District’s bench—one of the busiest in the country—from six judges to seven, thus bringing relief to each judge’s caseload.
The adjustment was also Barker’s signal to the Indiana legal community that she knows she can’t keep her job forever. “That’s a problem for federal judges, with life tenure. I don’t want people to be trying to send me messages [about retiring],” she says.
Barker’s message in the following conversation, though, is clear: She is still as much a force in Indiana as ever, not only from the bench but also as a prominent and respected voice in the community. And she is still having fun—even when it involves doing the dishes.
So, officially: Are you retiring?
No. Federal judges can leave if you comply with the rule of 80, which is 65 years of age, 15 years of service. If you get the math to work out to 80, you can apply for senior status. But I said I’d continue with a full caseload until my successor is appointed [WITNESS TESTIMONY 1] because our court is so busy. And, frankly, because I still like the work.
That’s good, because this court handles more than its share of cases.
There are some cases that we just process, like foreclosures. They don’t require any adjudication, no exercise of judicial discretion. But if you look at weighted cases, the ones that usually take some judicial time, we’re routinely in the top five per judge in the country. [EXHIBIT A]
Why is this court so busy?
[Laughs.] You want our self-serving reasons?
We have good judges. If you write this, you have to say that I said this tongue-in-cheek. [WITNESS TESTIMONY 2]
So lawyers prefer to file cases with this federal court?
Yes. They feel like they’re going to get a fair shake. It’s going to be handled properly. We have a wonderful, successful, symbiotic relationship with the Indiana Bar and working back and forth. So, as I said, that’s pretty self-serving.
Puzzling through decisions requires deep reasoning, as well as legal acumen. Do you get to bend anyone’s ear?
Not to help you decide a case. Actually, that’s an important principle, so I’ll explain it with a story. When I was a new judge, a procedural issue came up during a trial. I called down to Judge [S. Hugh] Dillin and asked, “Have you ever had anyone ask you for a special verdict?” [A special verdict means the jury determines the facts of the case and the judge decides who wins.] He said, “Yes, one time I granted it. Regretted it right afterward.” I said, “Oh, really? What happened?” He said, “Oh, doesn’t matter what happened, except that it tends to complicate the proceedings and invites inconsistent verdict responses.” Then I started to tell him about my case. And he cut me off right away. He said, “I don’t want to know about your case. I’m telling you about special verdicts.” I said, “Oh, okay.” So I hung up, and for five minutes, my feelings were hurt. And then I got to thinking—well, of course. It would have been wrong, in an error-of-judgment sort of way, to draw another person into the decision-making when I was the only one who had the moral weight of deciding that case. No matter what I told him, Judge Dillin could not put himself in my position in terms of needing to decide those issues. He also knew that if he had allowed himself to comment on the issues more than he did, I would feel like I needed to take into account his views. And his views were not relevant—that’s what he was telling me.
Did you ever think about leaving for the 7th Circuit Court of Appeals or even the U.S. Supreme Court?
It is implicit in your question that it’s a promotion. More than that, it’s another way of judging. The way an appellate judge functions is on the written record. You’re basically spending all day in a library carrel, doing research. For me, all the life in the process is in the arena. You’re seeing the witnesses and you are taking it in. It’s live theater, but it’s real. And because you have this direct encounter with the participants and the process, you have a greater opportunity to impact what’s going on and their lives. [EXHIBIT B] [The Court of Appeals] is too sedentary for me. I wouldn’t get out of bed every morning to do it. This—I get out of bed every morning looking forward to whatever’s next. I like the action.
Were there ever overtures to seek a Supreme Court nomination?
The Supreme Court is out of reach for almost everybody. The only people I know who aspire to it work in high levels of academia and government. I don’t want to overstate this because it would be misleading, and inaccurate, but there have been times when someone who could make that happen asked me. And I was able to say rather quickly, “No, thank you. I’m honored that you asked, but that would not be a good way for me to do the work of being a judge.” By and large, I thought I would rise to my level of … maybe not of incompetence, but of unhappiness. For me, it’s just more fun in the trial court.
Do you remember your first day as a judge?
Well, my first jury trial was in Springfield [Illinois]. We were filling in for a judge who had died. I was glad my first trial happened over there so it was out from under the scrutiny of my former peers and my colleagues and the press. I don’t remember anything about the first hearing I had here except the initial feeling when I sat in the chair. It’s a little embarrassing that now all of this is focused on you and your decisions and your words.
Did you not sneak into your courtroom when it was empty, at some point after you were appointed, just to sit behind the bench and get used to it?
I never did that. In a sense, there’s a feeling that you’re not worthy, so you don’t play with it. I suppose it would be like asking a Baptist minister if he ever went and splashed around in a baptismal font. Probably not, because it is a special place, and when you’re there, you’re doing special things.
Yet you’re known for your sense of humor. [EXHIBIT C]
Little amusing things happen. You just can’t make anyone the butt of the joke, and you don’t joke when it could be confusing. One time early on, there was a defendant who had walked out of the proceedings or had not shown up. The deputy marshal came to report it to me. And I said, in an offhanded way, “Well, we’ll just go get that guy!” I intended it to be so obvious that it was flippant. But the deputy marshal properly said, “Is that what you want us to do, Judge?” Then I said, “Well, wait just a minute. I was just talking there. Let me think that through.” So it takes restraint knowing that what you say is going to send out ripples and matter in constitutional ways.
Inside and outside of the courtroom, you have actively promoted women’s leadership locally for years. Why?
When I came to town as the first woman assistant U.S. attorney in Indiana [in 1972, after several years working on Capitol Hill], I felt almost immediately the attention that came with that. And there were a number of people who weren’t exactly shot up with the idea, and they wanted to see if I could measure up.
Mmm-hmm. The [federal court] judges were uniformly welcoming and accepting and helpful. Every one of them had a daughter my age. I think they saw my coming on through that lens, so they weren’t as undone by the prospect of a woman lawyer appearing in their court. Some women lawyers got those kinds of barriers from the bar and from other benches. They’d get referred to condescendingly. “Honey, you know you better cut your argument short.” “Listen, young lady, such and so.” I knew that for other women coming along, it was going to make a difference if I screwed up.
So you decided to channel that isolation into something positive.
Nobody wants to be lonesome. And you interact differently with women friends than you do with men friends. So I set out to find women friends. There turned out to be a foursome that was Sue Shields, a beloved state-court judge; Martha Lamkin, an attorney; Ilene Nagle, who was on the faculty of the IU Bloomington law school; and me. We would get together about three times a year for lunch over at the old King Cole, spend more money than we should’ve, and laugh, and tell stories. There was another group of women who did what we did, who would bunch together once in a while. At some point we sort of merged those two groups to see if it was feasible to sponsor an event [in 1984] that we ended up calling the Indiana Leadership Celebration. It allowed us basically to see that women leaders were more in number than we thought. We were all sort of like stars thrown out there into the heavens that came together as a galaxy. It would give us some cohesion and some courage and some fun. We had a dinner over at the convention center and had Susan Stamberg from NPR come and speak. We had probably 300 women.
What was the group’s purpose?
We looked out for each other on job openings, if we heard of anything. We created a network. When there would be a state committee appointed and all the names on the list were men, we all knew it was our role to say, “Really? You couldn’t find any women? How about these?”
You were carrying the torch.
Exactly. We give them names. And sometimes you get called in advance to help diversify generally.
What did you get out of the group?
Because I was one of the founders, I got more prominence and attention than I deserved. But I came to know a lot of people in lots of places, and it would spin off into things like being asked to serve on the presidential and dean searches for IU. I wound up getting invited to be on boards, like Conner Prairie. I was on the Methodist Hospital board, and I’m still on the IU Health board. [EXHIBIT D]
Why isn’t the Indiana Leadership Celebration around anymore?
We had to get a speaker and get all the logistics arranged. We’d send invitations out to 400 people and would get 250 or 300. It became cumbersome. Plus, the number of women in prominent positions was expanding, and so [the conference] didn’t seem to be as useful a tool. But the underlying things were still true: that we all liked each other, we liked gathering, and we were all living busy lives. So if we didn’t structure something, we would go for a long time without seeing people we really enjoyed.
And that became The Gathering, a luncheon group that might be considered the old girls’ club in town, and one that is still thriving and nurturing emerging leaders.
Yes, The Gathering was an outgrowth of these earlier groups. We scaled it back. Now there are 175 members. We get something like 75 at each luncheon. The agreement is that we have no other agendas. You don’t have to bake anything. You’re not signing on to do volunteer work. This is purely social, purely bonding. [WITNESS TESTIMONY 3]
You’ve also supported women by being a willing keynote speaker over the years.
I think for 75 percent of the speeches I gave in the first 20 years of my public life, people wanted to know how I did it all day to day. Once, a woman came up afterward. She couldn’t have been any nicer. She said, “I’m just so fascinated by what you had to say. You just happen to do everything, so you have to look for ways to cut corners. Like your hair.” And I thought, Really? I’ve always had short hair. She said, “That’s obviously a compromise. You couldn’t be spending hours on your hair.” She couldn’t have been more sincere, and I thought, “Well, it’s true.” So, you know, there were a lot of nice, well-meaning, supportive people. And because I was in the news, I think a lot of people felt a connection that I wouldn’t have been able to generate otherwise.
Did you want to talk about your work instead?
You know, we’re so constrained in that regard. We don’t talk about our cases. We don’t step up and say, “How’d you like that one?”
But you’d like to sometimes?
Sometimes we would. But [work-life] balance actually was a topic, and I knew that it was useful, so I gave a lot of those talks.
Are there topics you would prefer to speak about?
My natural topic now is to try to convey some of the things I’ve learned. Some of my life lessons. Like a lot of older people, I’m more philosophical. Not retrospective in a way that you only tell war stories, but in service of what matters to them now. At this time in my life, quite a number of the talks I give are eulogies.That sort of calls for a different type of introspection and assessment. You hope to rise to the occasion and say the things that need to be said. It always comes down to the little things that made people happy, things that made them a special person.
How do you keep your energy up?
I’m always active. I garden. I traipse around our property. I used to go swimming twice a week, but it put me home too late. It takes time to be a gym rat. You get energy if you’re doing the things you like to do. Do you know the expression about “high play”? It’s a good concept, so I’ll elaborate. When children play in the sandbox, they are not usually calling to their moms asking what time it is. It’s completely absorptive of their interest and amusement and energy. I think this work I’ve done for the court, in lots of ways, is high play. It’s misleading as such, because I don’t regard it as play. It’s replenishing. It’s invigorating. It calls for the best I have to give. And I can do it for long periods of time because it gives me back the things I find enjoyable. [WITNESS TESTIMONY 4] There are others for whom decision-making is just agony, and you wonder why in the world they stay in the business.
Some say the Bridgestone case is your signature work. [In the late 1990s, a panel of federal judges chose Barker to combine and oversee more than 800 wrongful-death and personal-injury cases caused by defective tires on Ford Explorers. The international class action took 10 years to resolve.]
It’s certainly the largest in terms of parties. The chief of the panel called and said, “Sarah, are you sitting down?” We had the sense this was the big leagues. I didn’t have any other relief in my docket. I was handling all my other cases. It really required my best administrative skill.
Who is “we”?
Well, I didn’t go it alone. I was greatly helped by Judge [Sue] Shields and now-Judge Debra Lynch, who at the time was special master on the case. When we had the first organizational conference in the courtroom, it was standing-room only because there were so many lawyers involved already, and they were mostly men. So I finished the hearing with a quote from Bette Davis: “If you want to get a thing done well, get a couple old broads to do it.”
This year, you’re serving as the mentor for the Stanley K. Lacy Executive Leadership Series. Explain the theme you selected for the class to study.
It’s called “Civic Investment: To Promote the General Welfare,” which is from the preamble of the Constitution. We’ve looked at the local community through the lens of civic engagement, noting that in many respects the level of civic engagement is on the wane. You can’t
say it’s disappearing; it’s just changing. More than 50 percent of children in public schools are below the poverty line. That’s a huge problem, because we count on schools not to be social-service agencies, but to educate. [WITNESS TESTIMONY 5]
Would you like to take an active hand in this?
For all of these great needs that come along, I think, What should I do? What is my role in that regard? Have I signed up to tutor elementary kids? No. Partly because I run out of time. Sometimes my role is just to use my leadership position to draw a circle around it and say this
is a worry, this is a concern. I feel a strong responsibility to speak to these issues.
What’s next for you?
That’s probably the hardest question you’re going to ask me. The truth is, I don’t know.
What are you focusing on?
I’m not sure I know that, either. I hope to replant my garden this summer. Actually, a really good day is just hanging out. Not getting all gussied up, not driving back up to town. I’m an amateur photographer, and I like to drag my camera around with me. [My husband] Ken and I love to go to the theater, listen to musical productions. We find things to do that are just fun. By most standards, it’s pretty sedentary. Do we want to go to Europe? Not really.
You’re a natural storyteller. Surely you will write a book.
It’s been suggested to me on more than a few occasions that I should write a book because I had this groundbreaking role as a woman judge. There’s a saying that the ones with the most power are the ones who get to choose the stories. I love the stories that come out of the trial court, and they sure have enriched my life. But I’m not a writer. It takes too much effort looking back, thinking about things that have already happened and being introspective about them. I’ve always been more interested in what’s next than in what was. [EXHIBIT F ]