Monday, November 17, 2008

New York Court of Appeals: Memo to the Governor & the Commission

With the imminent retirement of Chief Judge Judith Kaye and the process of selecting a successor in full swing, may I humbly (OK, not so humbly) offer a few observations and suggestions. These apply to the coming vacancy on the court and to future ones as well.

First, mandatory age retirement. If it was not clear previously, it should be now. This forced retirement of Court of Appeals judges, solely because they've reached the statutorily deemed senility of age 70, must be repealed. Is there any sentient human being who knows Chief Judge Kaye and believes that her decisionmaking or leadership skills have now dwindled because of age? Indeed, those who are familiar with her and her work know that she is actually better and stronger and wiser than ever and is actually just starting to reach her prime as a jurist. Agree with her positions on various issues or not, it is the sheerest nonsense to deem her to be judicially diminished because she turned 70 this year.

The same was true for other superb judges which we lost in recent years because of the moronic mandatory age retirement: Albert Rosenblatt, Howard Levine, Richard Simons, and Stewart Hancock to name a few. They too were forced to retire while in their judicial prime.
Contrast that with the judicial longevity of some of the greatest Justices on the Supreme Court: John Marshall served till he was 80 [and that was nearly 2 centuries ago], Oliver Wendell Holmes till 91, Louis Brandeis till 83, Hugo Black till 85, William Brennan till 84, Thurgood Marshall till 83, Lewis Powell till 80, William Rehnquist till 81...There are others, but the point should be clear.

This mandatory retirement age of 70 has to go. Please do what you can to get rid of it. [BTW, this would not affect the Governor's option of simply not reappointing a judge at the end of his or her 14 year term.]

Second, the stature of the court. Let's just be honest. The Court of Appeals is not what it used to be. For a long time it was one of the very finest and most influential courts in America. It was second, if at all, to the U.S. Supreme Court. No serious and candid observer of the court would make such a claim today. Indeed, in a recent study, the court just barely made the top ten of state courts.

Ironically, the court was much stronger when the judges ran for election. That system produced the courts led by Cardozo, Pound, Lehman, Desmond, Fuld, and Breitel. Come on, we just don't have a court like those. The blame is not necessarily the current "merit" appointment system. It may well not make much difference whether selection is by party leaders, the voters, or the Nomination Commission and Governor. But it certainly does make a huge difference whether the selecting authority actually cares about choosing great judges and having a great court. Under our current appointment system, we need both the Commission and the Governor to really care. To make that an unconditional top priority.

Third, appointing a great judge and making a great court. If the will is there, it's not that difficult. There is no mystery here. There's more legal talent in New York than anywhere on the planet. And though there's rarely universal agreement about the single best possible next appointee [That happened once for the Court of Appeals and once for the Supreme Court--yes, the same gentle Ben.], still, those potential appointees who are truly the most exceptional are usually quite readily recognizable and distinguishable from the rest. Some individuals and some qualifications simply stand out.

Take for example the Supreme Court of Arizona. [Just happens to be one of the courts I like to watch.] The justices of that court are selected by an appointment system somewhat similar to New York's. But the results in Arizona are striking. Strikingly good that is. Three of that court's five members were law clerks for justices on the United States Supreme Court. Now that is hardly a required qualification for a great state judge, or a guarantee of one. But it is unquestionably an indication of exceptional ability.

There is no one on the Court of Appeals with that experience. Ok, so what. But neither is there anyone who was a law clerk to a Court of Appeals judge. [Yes, I'm partial, because I clerked at the court.] Now that's no more a requirement for excellence any more than clerking at the Supreme Court. But that's not the point. What is the point is that there is a large pool of potential Court of Appeals appointees who would make very strong judges--surely a larger pool than in Arizona. And that's true even if that pool were limited to former Court of Appeals law clerks.

[In fact, there are two who work with the commission: Stephen Younger, the counsel, and John Halloran, the deputy counsel. Two extraordinarily capable lawyers who would make extraordinary appointees to the court.
And there are other former Court of Appeals clerks--even if limited to those with whom I worked during my six years at the court--who would be exceptionally strong judges. A former president of the state bar association, the current counsel to the state attorney general, some colleagues at Albany Law...... I'll bet we could each come up with a "dream team" Court of Appeals composed of former clerks. No, I'm out. I'd critique their work.
The only point here is--not to fill the court with former clerks, but--that there is plenty to choose from in New York to make a great court.]

Of course, considerations of politics, geography, philosophy, diversity, and other criteria have and will always play a part in judicial selection. Understood. But with the vast pool of great legal talent in this state, there is absolutely no excuse to sacrifice the most imperative consideration--great judges to make a great court.

Fourth, understanding the judicial process. Please, this should be the bare minimum for anyone seriously considered for the court. Or for the commission. (It should also be for the members of the senate judiciary committee. But that committe is a whole 'nother subject.) Potential court appointees and commission members should have some appreciation of the nature of the judicial role beyond the typically trumpeted blandishments: judges must be fair, impartial, neutral, honest, ethical, knowledgable, above reproach, able to get along with colleagues, discreet, avoid conflicts, etc. etc. etc. Fine. But what about some understanding of how judges decide cases? Actually decide cases? About the qualities and abilities that are essential to performing that function well? About their philosophy of judging and how the judiciary fits in our tripartite form of government?

And I do not mean the grade school recitation of, "the legislature makes the laws, the executive enforces the laws, and the judiciary applies the laws." What I do mean is something beyond the simplicity we all learned in 4th or 5th grade social studies, and what we hear from politicians taking cheap or ignorant shots against judges and courts while on the stump.

In fact, any potential appointee to the court or to the commission who utters the nonsensical "judges should just apply the law, not make it" should be sent home packing. Maybe even with a copy of Holmes or Cardozo or another of this country's greatest judges who understood that judges unavoidably and necessarily make law. That judge-made law is a given. That, to be sure, judging and legislating are different. But judges--especially appellate judges--do make law no less than legislators.

And this couldn't be more important. It is only with some understanding of the essential nature of the judicial function that a commission member can intelligently identify applicants who truly are highly qualified to serve on the court. And, a fortiori, only applicants for the court with that minimal understanding should even be considered for appointment.

Fifth, prior judicial experience. It's way overrated. The most difficult and consequential issues decided by the Court of Appeals--like the Supreme Court--are about fundamental policy and principles. They are about freedom and authority, society and the individual, government power and civil liberty, the underlying propositions that govern relations between citizens, and the like. They are about balancing competing interests, reconciling conflicting rules, making current sense of old principles. These are not legalistic questions. They do not call for the skills of a trial judge. And they do entail the burden, not borne by intermediate appeals judges, of rendering final resolution of unsettled questions. They require wisdom, perspective, an understanding of free and equal government; some sense of history, economics and political theory certainly help.

Felix Frankfurter said that the relevance of prior judicial experience to qualification to be on the Supreme Court is "zero". He said so for the same reasons I've outlined above for the Court of Appeals. But even if the relevance is not zero, it's not much more than that. Among recent Court of Appeals judges, Judith Kaye and Hugh Jones had no prior judicial experience. Now that's not too bad. [The more recently appointed Robert Smith had no prior judicial experience either. We're still keeping tabs on him!] In fact, some of the finest jurists to serve on the Supreme Court had absolutely no judicial experience before they were appointed--e.g., Louis Brandeis, Hugo Black, Robert Jackson, Felix Frankfurter, Lewis Powell, Earl Warren, and William Rehnquist.

So there's no good reason to pass up a highly qualified potential appointee solely because she or he has not previously been a judge. And besides everything else, there are so many exceptional lawyers in New York who would make exceptional Court of Appeals judges. Of course, there are some great potential appointees who ARE currently judges. The only point is that judicial experience should not be too weighty a factor.

Sixth, lots more but this post is long enough. So, good wishes, members of the commission and Governor Paterson. Be well and do well. Nothing less than the fundamental law of New York is at stake.