Monday, February 8, 2016

Michael Garcia: the Court of Appeals Nominee and the Confirmation

Michael J. Garcia
Photo: Julie Jacobson/AP
Michael J. Garcia, Governor Andrew Cuomo's sixth nominee to the seven member Court of Appeals, New York's highest court, is Cuomo's first Republican selection. Garcia's stellar credentials and his party affiliation make his confirmation by the Republican led Senate a virtual certainty.

Hopefully, however, the Senate--and more specifically, the Senate's Judiciary Committee--will still exercise its constitutional "advice and consent" responsibility conscientiously. Hopefully, it will actually examine the Governor's choice, do so rigorously, and render an informed, independent judgement.

(Unfortunately, the Judiciary Committee's confirmation hearing for Michael Garcia at the Capitol today is scheduled to overlap with the ceremonial investiture of Chief Judge Janet DiFiore at the Court of Appeals. Some of us would have liked to attend both, but the Senate's scheduling has made that impossible.)

Let's outline Michael Garcia's professional background and experience, and then consider the kind of inquiries that would be worthwhile for the Senate in assessing the qualities, character, and overall fitness of a Court of Appeals Judge Garcia.

Background and Experience
  • Undergraduate degree from SUNY Binghamton
  • Masters degree in English literature from the College of William & Mary
  • Law degree--summa cum laude and valedictorian--Albany Law School
  • A few years as an associate at the Cahill Gordon law firm in Manhattan 
  • Confidential law clerk to then-Judge Judith Kaye at the Court of Appeals, 1990-92
  • Assistant U.S. Attorney for the Southern District of New York (i.e., federal prosecutor in New York City), 1992-2001
  • Assistant Secretary in the U.S. Department of Homeland Security [Pres. George W. Bush administration], 2003-05
  • U.S. Attorney for the Southern District of New York (i.e., the top federal prosecutor in the New York City office, overseeing the work of more than 200 attorneys in a wide variety of criminal and civil matters) [appointed by Pres. George W. Bush], 2005-08
  • Litigation partner at the Kirkland & Ellis law firm in Manhattan, 2009- present
  • Investigation Chair of the Ethics Committee of FIFA (i.e., the international soccer governing organization), 2012–2014
Relevant Areas of Confirmation Inquiry
  • Being the Governor's sole Republican nominee to the Court--and with the only other Republican on the Court retiring this year--will Garcia view his role as standing firm on his likely more-ideologically conservative views than his Democratic colleagues, or will he view his role as going along with the majority? [And, of course, ideology and judicial philosophy matter greatly and do influence judicial decisions, regardless of the reluctance of judicial nominees and Judges to acknowledge it, or their typical outright denial of it.]
  • Generally, his view on consensus versus dissent?
  • How will his experience as a federal prosecutor, and as one with a reputation for being zealous, influence the kind of Judge he will be?
  • Specifically regarding his having been a federal prosecutor, what is his understanding of the different roles of  state and federal law, of state and federal courts, and most importantly, of the Court of Appeals and the U.S. Supreme Court--especially when those courts deal with similar issues under state and federal law respectively?
  • Along the same lines--and of critical significance for a judge on a high state court--what are his views about independent state decision-making? That is, what are his views about state high courts construing fundamental rights under state law independently of the U.S. Supreme Court's decisions under corresponding federal law? Does he view the uniformity of state and federal law to be more important? [Garcia's former boss, then-Judge Judith Kaye, was a nationally renowned advocate for independent state decision-making.]
  • As far as having been a zealous prosecutor, how will he balance the concerns of crime control versus due process as a high court judge? That is, does he view the role of a judge as one who should generally defer to law enforcement (whether the police or measures taken by the legislative and executive branches), or to protect constitutional rights of the accused to the fullest? [Constitutional prohibitions on unreasonable  searches and compelled confessions, as well as constitutional mandates for due process, counsel in criminal cases, etc., have no predetermined calculus. Judges--especially those on high courts--must necessarily exercise discretion and judgement in choosing between crime control (law enforcement) and due process (rights of the accused) in all criminal cases. Different judges, of course, weigh the competing interests differently.] 
  • As someone reputed to have political ambitions--and as a young man with plenty of time to pursue them--is he willing to disavow them completely and to pledge that any supposed political ambitions will be given absolutely no consideration in his work as a Judge on the Court of Appeals? [Clearly, political aspirations--whether for higher judicial office or for elected political office--cannot help but color one's judgement. And in that regard, judges are no different than other humans.]

To be sure, there is much more. But for now, here's hoping that the Senate Judiciary Committee does its job today and has a real, substantive hearing--as it did for now-confirmed Chief Judge Janet DiFiore. And here's hoping that Michael Garcia demonstrates that the extremely high regard in which he is held by those who know him and have worked with him is well-earned, and that following the virtually assured confirmation, he will honor the name of the Judge for whom he clerked--Judith Kaye--and will serve with great distinction on our distinguished high court.

Saturday, February 6, 2016

Janet DiFiore (Part 3--Notes from the Hearing)

Janet Marie DiFiore
photo:John D'Annibale/Times Union
Well, we actually had a hearing. A substantive, meaningful, revealing confirmation hearing.

On Wednesday, January the 20th, New York's Senate Judiciary Committee held a hearing on Governor Andrew Cuomo's nomination of Janet DiFiore to be Chief Judge of the state and of its highest court, the Court of Appeals. It was a superb hearing, and the nominee's exceptional performance earned the unanimous vote she received.

(I am trying to be detached and clinical. But the fact is that, as a New Yorker, I left the hearing proud of what I witnessed from both the Committee and the nominee. I have not hesitated to be critical of confirmation hearings, state and federal, or of the oftentimes simplistic, disingenuous, nonsensical queries of the senators and responses of the nominees. But this hearing and the nominee's responses were superb. Let me acknowledge that the confirmation hearing conducted by the Committee a few years ago for now-Judge Jenny Rivera was as tough as I've witnessed in New York--that's a compliment--and she was more than up to the challenge.)

Here are a few notes from the DiFiore  hearing. Let's start with the Judiciary Committee itself and then offer a few comments about the nominee's performance.

The Judiciary Committee
  • In his capacity as Chair, Senator John Bonacic, has always shown himself to be extremely well-prepared for these hearings, and this one was no exception--both regarding the nominee, the role of a Judge on the high court, and the role of Chief Judge.
  • More than that, it was evident that the other Senators on the committee came prepared to this hearing as well. It seemed as though every member of the committee posed at least one serious question or offered a substantive comment about the nominee, the role of the Court, or that of Chief Judge.
  • Bonacic and the other Senators on the committee explored the nominee's background, experience, fitness and other qualifications to be Chief Judge.
  • They pressed the nominee about her ability and commitment to be independent of the Governor who nominated her and with whom she has been politically connected.
  • They pressed the nominee about her understanding of the judicial role, as opposed to that of the legislative and executive branches.
  • The similarly pressed her about her understanding of the legal role of a Judge on the high court and the administrative and policy-making role of the Chief Judge of the state.
  • They asked her about the approaches--some different--of her predecessors as Chief Judge, both as the presiding judges of the Court and as the administrators of the judicial branch.
  • They asked about judicial role models.
  • They asked for her views about many substantive areas of the law and about running the state's mammoth judicial branch.
  • Unlike the confirmation hearings at the federal level, there was no partisan bickering, there were no "gotcha" questions, there was no nonsense about simply applying law and not making it, and there was no ranting and raving and pandering to the home crowd.
  • There was some serious commentary cum urging offered by several of the Senators about respect for legislative prerogatives, about addressing inequities in the justice system, and about judicial ethics and integrity.
  • There were also some lighthearted moments as when at least two of the Senators expressed their disagreement with the nominee's choice of favorite Judge in Court of Appeals history (discussed below), and they each named Judge Eugene Pigott as theirs--he happened to be present in the room, and he has indeed been a truly exceptional jurist on New York's high court.
  • There were also a few snickers when one of the Senators remarked--more than a bit inappropriately in such a setting--that the nominee was much better looking than her photographs.  (The nominee was gracious and treated it as a welcomed compliment.)
  • One last note: Senator John Defrancisco, a relentless and well-prepared virtual interrogator of  nominees in the past, attended the hearing and posed questions even though he is no longer a member of the committee. In fact, he came so armed with queries and comments, that the Chair eventually had to (good-naturedly) cut him off.
  • All in all, a terrific job done by the Chair and his committee.
The Nominee
  • Though nominated to be Chief Judge by Governor Andrew Cuomo and though having been appointed by him to other government positions, Janet DiFiore assured the committee on no uncertain terms about her absolute resolve to be scrupulously independent of any political or personal influence.
  • The term she used repeatedly to describe what would be her independent approach to the cases: "inviolate."
  • In terms of being an "activist." she made clear her intention to continue the work of her immediate predecessors as Chief Judge to address the inequities in the justice system, especially those that impact the young, the poor, minorities, and other vulnerables. Indeed, she unabashedly pledged that she would be an advocate for those and other justice matters.
  • She also made clear that her approach to cases would be based on examination of the law, on legal principles and on the consequences of a decision as well.
  • Notably, she did not engage in the robotic nonsense often voiced at confirmation hearings, both state and federal, that "Judges-should-not-make-law-or policy-but-should-only-apply-the-law-and-policy-as-given-[and as supposedly already well-settled]-to-the-facts-of-the-case."
  • Notably also, she did not embrace any particular interpretive methodology. That too is in sharp contrast to the claims of many nominees and sitting judges, state and federal, who avow an aversion to "judicial activism" and, in supposed opposition, espouse so-called textualism or originalism or strict construction or specific legislative intent, or some other variant of "judicial restraint."
  • Instead, she unreservedly proclaimed that her goal in decision-making was to insure equity, justice, and fundamental fairness.
  • She appropriately declined to express an opinion on the validity of certain laws, proposals, or other measures--executive as well as legislative--that might well come before her in cases at the Court.
  • When asked, she unhesitatingly identified her favorite Judge in Court history as Stanley Fuld. (Although she was not asked for an explanation, there are several reasons which likely informed her choice. First, Fuld was one of the truly great and most influential jurists, state or federal, of the last century. Beyond that, he served as Chief Judge and, as such, is one of her most eminent predecessors. And perhaps most significantly for DiFiore, Fuld's background--like hers--was being a prosecutor and, despite that, was one of the Court's and the nation's foremost advocates for protecting the rights of the accused.)
  • In one of the most surprising and amusing highlights of the hearing, we learned that Janet DiFiore is--to borrow a phrase popularized by a certain personality who once ran for Vice-President--a "Mamma Grizzly!" Not only does she believe in gun rights but, when asked, revealed that she herself has a concealed carry permit.
  • On a more relevant note, nominee-DiFiore delivered her opening remarks and responded to all of the Senators' inquiries with exceptional confidence and poise and knowledge and dignity. It was a bravura performance on her part.
Of course, one never knows for sure how any particular judge will perform once confirmed and sitting on the bench. But the Judiciary Committee did a fine job examining the nominee and assuring itself that she is as enormously qualified to be Chief Judge as she certainly appears to be.

As for the nominee herself, what ran through my mind as I observed her and heard her through the hearing was this. She seems to possess many of the best qualities of her immediate predecessors. Like Sol Wachtler, she has a strong, commanding, yet exceedingly charming presence. Like Judith Kaye, she displayed that distinctive class, eloquence, and warmth. And Like Jonathan Lippman, she exuded that overriding concern for those in need, for basic human decency, and for doing the right thing.
(Yeah, what can I say, I thought she was wonderful and I'm hopeful she will do wonderful things as Chief.)

As the confirmation hearing came to a close, Senator Bonacic proclaimed what, I believe, everyone was thinking, that DiFiore was an "exceptional" nominee. Then, with the standing room only audience still in the room and the nominee herself still at the table, he called for an immediate vote. It was unanimous, and Bonacic announced it in enthusiastic, forceful fashion.

The full Senate confirmed DiFiore unanimously as well the next day. And this Monday, in that glorious courtroom in that magnificent courthouse on Eagle Street, there will be the ceremonial investiture of the new Chief Judge. I'll be there, Court geek and proud New Yorker.

Tuesday, January 19, 2016

Janet DiFiore (Part 2--The Confirmation Hearing)

Chief Judge Nominee Difiore
photo: Rick Kopstein/NYLJ
It's now up to the Senate Judiciary Committee. The confirmation hearing for Janet DiFiore to be Chief Judge of New York has been scheduled for this Wednesday.

The Judicial Nomination Commission, chaired at the time by former Chief Judge Judith Kaye (since deceased), did its job, and did it extremely well. The commission encouraged applications, interviewed applicants, and in November of last year it provided the Governor with an extremely impressive list of 7 recommended candidates.

Governor Andrew Cuomo did his job, also extremely well. In December, he picked a candidate who, by virtually all accounts, is a truly exceptional choice. Her background and experience would strongly suggest she is. (See Janet DiFiore, New York Chief Judge Nominee.)

Now it's time for the Judiciary Committee to do its job, and to do it well.

The Senate has already missed the legal deadline. By law, the Governor's nominee was supposed to be confirmed or rejected within 30 days. But being late is not a reason for the Senate to engage in a perfunctory rush job. Filling a vacancy on the Court of Appeals--let alone that of Chief Judge of the state--demands nothing less of the Senate than a serious, informed, independent exercise of  its constitutional "advice and consent"responsibility.

Unfortunately, since the time New York adopted an appointment system for the selection of Judges to its highest court, the hearings conducted by the Judiciary Committee have typically been a fairly worthless exercise. They have typically been little more than a rubber stamp for the Governor's choice.
(I've discussed this before in New York Court Watcher: New York Court of Appeals: Chief Judge Lippman's Senate Confirmation and Press Reviews, Feb. 12, 2009; Jenny Rivera, Part 2: The Coming Senate Hearings, Jan. 21, 2013.)

Typically, a few witnesses--friends and associates of the nominee--testify how wonderful the nominee is. Typically, then, a few words of praise are offered and innocuous questions posed by the Senators to the nominee.

Typically, there is precious little that is probing. Precious little that should actually satisfy the Senators, or the state's citizens, that the merits of the nomination have been assured. Precious little that constitutes meaningful participation by the Senate in the selection process.

On occasion, the Senate has engaged meaningfully. But those have been the rare exceptions.
(See e.g., The Rivera Hearings: The Committee & The Nominee Prove Themselves, Feb. 4, 2013.)

This is not a call for the kind of partisan circus into which the confirmation hearings for U.S. Supreme Court Justices has degenerated. Nor is this a call for unreasonable delay in the process or an unwarranted challenge to the Governor. Nor for unjustifiably undermining the nominee, the position of Chief Judge, or the stature of the Court.

But this is a call for seriously examining the nominee and the nominee's qualifications. For the care and effort necessary to render an intelligent, independent determination about the character and fitness of the nominee--in this case, to be Chief Judge.

To be fair, the chair of the Judiciary Committee, Senator John Bonacic, has always run highly dignified hearings. It should also be noted that he and a few others on the committee (such as Senator John DeFrancisco who, unfortunately, is no longer a committee member) have always seemed well informed about the nominees before them. Moreover, they have always seemed well aware of the importance of the judicial position to be filled and of their role as Senators to participate meaningfully in filling it.

But whether because of time constraints, or political considerations, or lack of interest or understanding, the committee itself has typically fallen far short of its constitutional responsibility. No, a confirmation hearing ought not to be just another occasion for partisan bickering and scoring political points (as it has become at the federal level). But neither should it be a hasty, careless, or indifferent approval of the Governor's choice.

At the least, the Senate, through its Judiciary Committee, should satisfy itself that a nominee has some real understanding of the judicial role--especially that of a judge on a high court and of a high court itself. That the nominee has some real understanding of the difference between the legislative function on the one hand and, on the other, the law-making and policy-making that are inherent in decision-making on a court of last resort.

That the nominee has some judicial philosophy--whether it be literalism or originalism or some other specie of strict interpretation. Or whether a judge should give effect to broader underlying purposes and principles in the law and be particularly mindful of the consequences of a decision.

Considerations such as these are extremely important in the appointment of a high court judge They ought to be matters of concern and exploration in the Senate confirmation process.

Now it may be--as it is in the case of the current nominee for Chief Judge--that she has not had the experience of judging on a high court. She may not have had much occasion or opportunity to develop a judicial philosophy or to formulate a coherent perspective on the judicial role of a court of last resort, such as the Court of Appeals. But that doesn't make such matters less important. Nor is it a reason to avoid those matters entirely.

To be sure, some of the very same considerations can be explored and uncovered in different ways. Anyone interested in serving on a high court should surely have given some thought to such matters. Anyone interested in judging and in judges must have given some thought to the kind of judges they admire and, even more specifically, to the particular judges with whom they agree or even view as role models.
(At a symposium at Albany Law School a few years ago, I asked the Judges of the Court of Appeals to pick a favorite Judge in the Court's history--excluding Cardozo--and to explain why. It was extremely revealing to say the least. See Judges on Judges:The Court of Appeals Judges' Own Favorites in Court History, 71 Alb. L. Rev. 1045 [2008].)

If a nominee's favorites are Judges such as Vito Titone and Carmen Ciparick on the Court of Appeals, and Justices such as Ruth Bader Ginsburg and Sonia Sotomayor on the Supreme Court, that certainly reveals a great deal. It clearly bespeaks something much different about the nominee than if she picked Judges Robert Smith and Susan Read, and Justices Antonin Scalia and Clarence Thomas.

Similarly, because we are now dealing with a nomination to be Chief Judge, it would be revealing to learn the nominee's preferences in that specific regard. Not the personalities of those who have previously served in that position, but their policies--both as leader of the Court and of the judicial branch.

So, for example, does the nominee favor Chief Judge Judith Kaye's avowed preference for consensus, compromise, and the merging of individual differences to obtain unanimity or near-unanimity? Or does the nominee agree more with Chief Judge Jonathan Lippman's view that clearer, more sharply reasoned, and less blurred decisions result when differences are aired in dissents and answered by the majority?

As for the administrative role of the Chief Judge, does the nominee favor the approach of activist chief executives of the judicial branch such as Chief Judges Lippman, Kaye, Sol Wachtler and Lawrence Cooke, and, at the federal level, like Chief Justice Warren Burger? Or does she believe it appropriate to be more restrained in that executive role such as earlier Chief Judges (who, by the way, did not enjoy the title of Chief Judge of the State, but simply of the Court of Appeals) and Chief Justice William Rehnquist at the federal level?

Finally, in addition to inquiries about the nominee's view of the role of a Court of Appeals Judge and of the Chief Judge of the state, there are some other matters which should be put to rest. Matters about which questions have arisen and about which the Senators should be confident that any suspicions are baseless.
  1. There is the question about Janet DiFiore's ability and willingness to be independent of the Governor who nominated her and with whom she seems to have had close political ties. Of course, in recent Court of Appeals history we have witnessed a Chief Judge sue the Governor who appointed him, as well as a Judge who repeatedly voted against the death penalty to the dismay of the appointing Governor who had believed him to be pro-death penalty. At the federal level, there is the classic example of Chief Justice Burger authoring the decision that ordered the President who appointed him to release the White House tapes. So appointees can certainly be very appreciative and even close to the chief executives who appointed them, and yet be brutally independent once on the high court. The Judiciary Committee should and will likely seek assurances to that effect from the Chief Judge nominee.
  2. Then there is the matter of Janet DiFiore's tenure as chair of JCOPE (the Joint Commission on Public Ethics). The business of that commission is shrouded in secrecy and, for that and other reasons, its reputation is tarnished to say the least. Lest any suspicions arise and enlarge after the Chief Judge nominee has already been confirmed, the Judiciary Committee should satisfy itself that any such suspicions are baseless and will not later tarnish the Court's reputation or that of the position of Chief Judge.
  3. There is also the concern in some quarters about the failure of the Westchester County DA's Office to secure indictments in several cases where African-American men were fatally shot by police officers. Some even called for the District Attorney's removal from office. This matter should be explored by the Committee. And the Chief Judge nominee should be given the opportunity to erase any doubts about whether she will--as has Chief Judges Lippman, Kaye, and others who have recently held that position--make the equal enforcement of the law a top priority and be absolutely intolerant of racial discrimination and other racial injustices in police work.
Again, it's now up to the Judiciary Committee and the full Senate. We New Yorkers are fortunate to have had such a fine list of candidates produced by the nominating commission. And fortunate that the Governor has made what seems to be such a fine choice from that list. We should be fortunate, as well, that the Senate takes its role in the appointment process seriously, and that it renders an independent "advice and consent" decision based on a careful, intelligent, and fully informed examination of the merits of this Chief Judge nominee.

Monday, January 18, 2016

Janet DiFiore, New York Chief Judge Nominee

Janet Marie DiFiore
photo, Mike Groll/AP
Janet Marie DiFiore, the Westchester County District Attorney, was nominated by Governor Andrew Cuomo's to be New York's Chief Judge.

The nomination, announced on December 1 of last year, is now old news for those who follow state politics or legal developments. But even for those who do, and a fortiori for those who might not--or at least not as closely as do political and court junkies (of which I am certainly one)--it's probably worthwhile to recount some of what we know. Who is Janet DiFiore? What does it mean to be Chief Judge? How does the selection process work? And other related matters.

Let's look now at DiFiore herself. Who is she and what commends her for the center seat on New York's high court and for the leadership of the state's judicial branch? Here is an outline of her personal and professional background gathered from news accounts, her interviews, and my private conversations with some who know her.

(Disclosure: From all I know, she is a superb choice. Those I know and trust who are familiar with her, as well as very familiar with the Court, the nomination process, or both, have spoken glowingly to me about her and her fitness to be Chief Judge. I have spoken to her and extended my congratulations.)

First, some personal background:
  • She was born and resides in Westchester County. [For the non-New Yorkers, that's just north of New York City.]
  • She is 60 years of age. [That means she will be able to serve for 10 years until forced to retire by New York's (moronic) mandatory age retirement for Judges.]
  • She is the mother of 3 grown children.
  • Her husband, Dennis Glazer, whom she apparently met on her first day of law school, is a now-retired prominent New York City attorney.
  • She is the only child of an Italian immigrant family and would be New York's first Italian-American Chief Judge.
  • Two formative influences she has often mentioned:
    • growing up surrounded by a large extended family who all lived close by, and 
    • a relative's confrontation with the criminal justice system convinced her at a young age to become a lawyer--specifically, a prosecutor.
Education and Early Career:
  • Graduated from C.W. Post College on Long Island.
  • Graduated from St. John's Law School in Queens.
  • During law school, she interned with the Westchester County DA's Office.
  • Upon graduation, she worked as an ADA (assistant district attorney--i.e., a prosecutor), 1981-1987.
  • She then worked part time at a law firm while her children were young, 1987-1993.
Mid-Career
  • Chief of the Narcotics Bureau of the Westchester County DA's Office, 1993-1998.
  • County Court Judge, 1998-2002 (presiding over major criminal cases and, on assignment to state Supreme Court and Family Court, over civil lawsuits and family law cases).
  • State Supreme Court Justice, 2003-2005 (presiding over a wide variety of cases and, upon appointment by then-Chief Judge Kaye, serving as Supervising Judge of the criminal courts in 5 counties north of New York City).
District Attorney
  • Upon winning election, she took office as the Westchester County DA in 2006.
  • She has won 3 elections to that office, the last time running unopposed.
  • She has served in that office for 10 years, 2006-present.
  • Some highlights:
    • The Deskovic Case: upon becoming DA, she personally insured access to DNA evidence (which her predecessor declined to do) which then exonerated Jeffrey Deskovic, who had been wrongfully convicted of rape and murder and had spent 16 years in prison, and identified the true guilty party.
    • Changed party affiliation from Republican to Democrat.
    • Co-Chair of the Justice Task Force, appointed by Chief Judge Lippman, to examine wrongful convictions and make recommendations, resulting in numerous substantive and procedural proposals, some of which have already been enacted in legislation.
    • Served as Chair of the Joint Commission on Public Ethics (JCOPE), appointed by Governor Cuomo, when the commission was first established in 2011 until 2013.
    • Recipient of the first Mario Cuomo Award by the National Italian American Foundation in 2015.
Chief Judge Nominee
  • Last year, she applied for the position of Chief Judge and was on the list of 7 candidates recommended to the Governor by the Commission on Judicial Nomination, chaired by the late Chief Judge Kaye.
  • She was then selected from the list by Governor Cuomo as his nominee to replace the retiring Chief Judge Lippman.
  • She will appear before the Senate Judiciary Committee and will be voted on for confirmation this Wednesday, January 20, 2016.

Recap of Particularly Relevant Experience
  • Experience as a trial attorney:
    • she prosecuted criminal cases as an ADA, 
    • she supervised other prosecutors trying cases in her capacity as a bureau chief, and
    • the same throughout her 10 year tenure as District Attorney. 
  • Experience as a Judge:
    • she served as a County Court Judge (presiding over criminal cases), 
    • was designated to Family Court as well during that time (family matters), and
    • served as a  State Supreme Court Justice over a period of 8 years (a vast variety of major cases).
  • Experience as an Administrative Leader:
    • she headed the narcotics bureau of the Westchester County DA's Office early in her career,
    • she supervised the criminal courts in the 9th Judicial District (i.e., 5 counties) while a state Supreme Court Justice, and
    • she has been the District Attorney of Westchester County for 10 years, leading an office of over 100 prosecuting attorneys and over 100 non-legal support staff.
There is no claim here that this outline identifies all there is to know to assess Janet DiFiore as the Chief Judge nominee. It does include much that I view as important in making an informed assessment. Admittedly, for me personally, private conversations with those I trust, who do know her, have been the most persuasive in my conclusion that Governor Cuomo has made a splendid choice.

Friday, January 15, 2016

Chief Judge Kaye (Part 2: The Judicial Role in Her Own Words)

Chief Judge Judith S. Kaye
photo WNYC.ORG
It is a daunting task to choose among the hundreds of opinions Judith S. Kaye authored as a Judge on New York's highest court, the Court of Appeals. Daunting still to cull from them a few lines that do justice to the elegance of her writing, the cogency of her argument, or the profound depth and breadth of her jurisprudence.

Much has already been written about her tenure on the high court. Much more is undoubtedly yet to come. Only a considerable investment of time and effort and insight and pages might be adequate to the task.

For this installment, here are a few passages from some of Chief Judge Kaye's judicial writings. They are not intended to represent what might be her most important or influential opinions. Rather, they are offered as the merest sampling of lines that, in my view, do reflect some of the most salient hallmarks of her judicial philosophy, her deepest concerns as a judge, her understanding of high court decision-making, and generally her views on the judicial role.

On a personal note, I do have favorite Kaye opinions. Her dissent in Hernandez v. Robles (2006), in which she argued that the majority should have recognized the constitutional right of same-sex couples to marry, is a classic. So too is her concurring opinion in People v. Scott (1992), in which she provides a veritable lesson on the reality, as opposed to the common fiction, of the work of judging. Passages from both of these opinions are included below, as are others I've selected for this humble tribute to a beloved, magnificent judge and person.

The Reality of Judging
People v. Scott (1992 [concurring opinion, supporting the majority's decision to provide greater search and seizure protection for private land under New York law than the Supreme Court requires under the federal constitution.])
[H]owever much we might consider ourselves dispensing justice strictly according to formula, at some point the decisions we make must come down to judgments...In that no two cases are identical, it is in the nature of our process that in the end a judgment must be made as to the application of existing precedents to new facts....
In those instances where we have gone beyond Supreme Court interpretations of federal constitutional requirements, our objective has been the protection of fundamental rights, consistent with our constitutions, our precedents and own best human judgments in applying them.
The Necessity of Line-Drawing and Policy-Making
McNulty v. City of New York (2003 [concurring opinion, agreeing with the Court's decision to limit medical malpractice liability under particular circumstances.])
This sort of line-drawing -- a policy-laden determination reflecting a balance of competing concerns -- is invariably difficult not only because it looks in part to an unknowable future but also because it is in a sense arbitrary, hard to explain to the person just on the other side of the line, especially when grievous injury is alleged. Human compassion and rigorous logic resist the exercise. If this person can recover, why not the next? Yet line-drawing is necessary because...common law courts also must look beyond the immediate facts and take into account the larger principles at stake.
The Constitutional Responsibility of Courts
Hernandez v. Robles (2006 [dissenting opinion, disagreeing with the majority's refusal to recognize the right of same-sex couples to marry and, instead, to leave the issue to the legislature.)
The Court['s majority] ultimately concludes that the issue of same- sex marriage should be addressed by the Legislature...But this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic....
It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the []Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.
Similarly Distinguishing the Judicial and Legislative Roles
Campaign for Fiscal Equity, Inc.v. State of New York (2003 [majority opinion, ordering the legislature to fulfill the state constitutional guarantee of a basic public school education.])
We are, of course, mindful...of the responsibility, underscored by the State, to defer to the Legislature in matters of policymaking...We have neither the authority, nor the ability, nor the will, to micromanage...By the same token...it is the province of the Judicial branch to define, and safeguard, rights provided by the New York State Constitution, and order redress for violation of them. Surely there is a remedy more promising, and ultimately less entangling for the courts, than simply directing the parties to eliminate deficiencies....
Courts are, of course, well suited to adjudicate civil and criminal cases and extrapolate legislative intent. They are, however, also well suited to interpret and safeguard constitutional rights and review challenged acts of our co-equal branches of government.
The Responsibility of a State High Court in the Federal System
Immuno, A.G. v. Jan Moor-Jankowski (1991 [majority opinion, adopting a different, more protective standard for freedom of the press than the Supreme Court.])
[W]e are mindful not only of our role in the Federal system but also of our responsibility to settle the law of this State...If we...assume the identity of State and Federal law...we perpetuate the uncertainty in our State law. Moreover, we are concerned that...insufficient protection may be accorded to central values protected by the law of this State.[T]he Supreme Court under the Federal Constitution fix[es] only the minimum standards applicable throughout the Nation, and the state courts supplement[] those standards to meet local needs and expectations.
The Independence of State Constitutional Law
O'Neill v. Oakgrove Construction (1988 [concurring opinion, agreeing with the decision to provide greater protection for freedom of the press than the Supreme Court, but disagreeing with the unnecessary mingling of questionable Supreme Court precedent in the determination of independent state law.])
The fact that Federal law remains unsettled leads me particularly to question why we would deliberately choose to surround our [ruling] with any of the uncertainty that presently accompanies the Federal law, when we could very respectably resolve the issue with clarity and finality for the citizens of this State under the State Constitution....
[I]n resolving the question solely as a matter of State law, we still might look to Federal precedents as well as those of other States, and by our decision help to expound Federal law and furnish guidance for sister States. We thereby do fulfill our proper role in the Federal system, which is first and foremost to settle issues as definitively as possible for the people of this State.
Considering the Consequences, Especially to Families and Children
In re Jacob (1995 [majority opinion--prior to the recognition of same-sex marriage--holding that an unmarried gay partner who has been raising a child together with the biological mother may become the second parent through adoption.])
[T]he child's best interest...would certainly be advanced...by allowing the two adults who actually function as a child's parents to become the child's legal parents. The advantages which would result from such an adoption include social security and life insurance benefits in the event of a parent's death or disability, the right to sue for the wrongful death of a parent, the right to inherit under rules of intestacy and eligibility for coverage under both parents' health insurance policies. In addition, granting a second-parent adoption further ensures that two adults are legally entitled to make medical decisions for the child in case of emergency and are under a legal obligation for the child's economic support.
Even more important, however, is the emotional security of knowing that in the event of the biological parent's death or disability, the other parent will have presumptive custody, and the children's relationship with their parents, siblings and other relatives will continue should the co-parents separate. Indeed, viewed from the children's perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures.
This is perhaps an ideal place to conclude.

That final passage from her Jacob opinion epitomizes Chief Judge Kaye's belief that courts should promote what is best about the law and advance the highest principles. Not in a manner contrary to the law itself but, in resolving ambiguities and filling gaps, to affirm the most salutary purposes and highest aspirations and ideals that underlie it.