Thus far in this series of posts on the New York Court Watcher suggestions have been made about 1) qualifications for membership on the Nominating Commission, 2) the Commission’s “report” to the Governor, and 3) the role of the Commission in identifying potential Court of Appeals candidates. (See New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 2 finished: w/ ice storm tales and Harriet Miers), Dec. 15, 2008; (Part 1), Dec. 3, 2008.) This post will address the Governor’s selection of an appointee from the list given him by the Commission.
We’ve previously discussed the current list and Governor Paterson’s initial reaction to it. (See New York Court of Appeals: The Guv Rejecting the Commission's List?, Dec. 2, 2008, and New York Court of Appeals: A Very Strong List for Chief Judge Just Announced, Dec. 1, 2008.) Now let’s consider some factors that ought to guide the choice from that list. Yes, factors other than—or in addition to—the inevitable political considerations.
It’s usually a bit disdainful to quote one’s self, particularly when doing so bears the pretentious air of self-anointed authority. On the other hand, sometimes it does have the virtue of avoiding the pretense that one is saying something new. With the latter in mind, please excuse my repeating what I’ve said previously, on this blog and elsewhere, to begin this next point in this series of posts.
Four, the Governor's selection.
(From an op-ed I did for Newsday, Dec. 14, 2008: "Court of the Utmost Import" available on-line at: http://www.newsday.com/news/opinion/ny-opbon5963196dec14,0,1688928.story.)
"With an appointment system, there is no substitute for a governor who cares about picking great judges. At least some of former Gov. Mario Cuomo's appointments fit that description. He had no narrow partisan objective and appointed as many Republicans as Democrats, conservatives as liberals. In addition to Kaye, his selections of upstate Republicans Richard Simons, Stewart Hancock and Howard Levine were among his very best appointments as governor....
"The task for Gov. David A. Paterson is clear, and the unusually strong list of candidates just presented by the commission makes that task easier....[He] needs to take a cue from a predecessor. Don't allow politics or partisanship or posturing to compromise the selection. Do what Cuomo did when he disregarded party and ideological considerations. Pick a great judge for our top court."
(From an earlier post on this blog: New York Court of Appeals: Memo to the Governor & the Commission, Nov. 17, 2008.)
"[A]ppointing a great judge and making a great court. If the will is there, it's not that difficult. There is no mystery here....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 are other unmistakable indications as well, and these should be essential considerations in making a selection.]...
"Of course, considerations of politics, geography, philosophy, diversity, and other criteria have and will always play a part in judicial selection. Understood. But...there is absolutely no excuse to sacrifice the most imperative consideration--great judges to make a great court.
"[U]nderstanding the judicial process. Please, this should be the bare minimum for anyone seriously considered for the court....Potential court appointees...should have some appreciation of the nature of the judicial role beyond the typically trumpeted blandishments: judges must be fair, impartial, neutral, honest, ethical, knowledgeable, 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...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....[O]nly applicants for the court with that minimal understanding should even be considered for appointment.
"[P]rior 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....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."
There's one more point I'd like to add about the Governor's selection. It's ancillary to the last one, but even more compelling. While judicial experience per se should not be considered particularly important for appointment to the Court of Appeals, decision-making ability—i.e., the capacity for resolving difficult and consequential issues with a very high level of legal acumen and wisdom—is an absolutely essential quality. It should be the primary criterion. And that is no less true for appointing a Chief Judge than for appointing any other member of the court.
Since this post is already long enough, let's leave that discussion for the next post.