Just check out the graphs for now. The text will come shortly. (I don't suffer any delusion that all the readers of this blog bother beyond the graphs anyway.) But since the 4 graphs are finished, I thought I might as well put them out there .
Court watchers, and anyone else who cares about what the Justices are doing, should find these graphs interesting--and maybe even enlightening.
Friday, January 30, 2009
Wednesday, January 28, 2009
New York Court of Appeals: The New Chief's Judicial Record (Part 2: His Criminal Opinions)
The last post on Chief Judge Nominee Jonathan Lippman discussed the relative paucity of his judicial record. In terms of time served as a judge engaged in judging and in terms of opinions authored, the record is pretty thin. This is even more true when considered in light of the kinds of sophisticated and consequential issues he will confront at the Court of Appeals--for, in fact, cases with such issues are the staple of the Court of Appeals docket. We are not talking about a lower level court that typically handles fairly routine legal matters. Those matters might well be important to the particular parties involved in each particular case, but they rarely entail far-reaching precedent-setting decisions. The day-to-day work of the Court of Appeals, on the other hand, does entail exactly that.
The Court of Appeals is the tribunal that resolves questions about the fundamental law of the state, settles conflicts in the law (case law and statutes), fills in the gaps when no law is directly on point, decides whether precedent should be preserved or overruled, and, in various other kinds of legal disputes, determines the most difficult and important questions about freedom, authority, and the rules governing the interactions of people living and working in New York.
And the simple point is that Lippman has very little background in dealing with such issues as a judge--or, in fact, as a litigator, government counsel, professor, high public official, or in any other capacity. Yes, the official word is out: he has a great deal of judicial experience. And his partisans and increasing number (for obvious reasons) of sycophants are parroting that he does, or that he has experience in dealing with such issues in some other capacity. But, come on. He just doesn't. Unless, of course, something major has been deleted from his official bio. Absent that possibility, virtually his entire career as a judge has been as an administrator. Not a judge engaged in judging. And his actual judging has been for only a brief time.
[Again, and this has almost become ad nauseam, it's not judicial experience itself that's important, but experience dealing with the kinds of tough and weighty legal-societal issues that confront the Court of Appeals. Judging is just one way to get that experience. It just so happens that Lippman's rather thin experience as a judge engaged in judging is the closest experience he has to that. For more on this, see related posts on the New York Court Watcher, e.g., New York Court of Appeals: The New Chief's Judicial Record (Part 1: An Overview of Not Too Much), Jan. 21, 2009; New York Court of Appeals: This List, Past Lists, the Guv...(Part 6: The Guv's Selection & My Own Ratings), Jan. 8, 2009; and New York Court of Appeals: Memo to the Governor & the Commission [esp. points 4 & 5], Nov. 17, 2008.]
Let's be clear. I hope that Lippman turns out to be a great Chief Judge. I'm rooting for him. Because I love the Court and I love New York. And no, I'm not predicting that he won't be. In fact, if what I've been told by some who know him is true, he may well turn out to be superb. The only point here is that he does not have much of a track record to indicate the kind of Court of Appeals Judge he will be (what kind of a judging judge, that is) or to indicate that he is well-prepared for the kind and level of judging work that he will have to do on the Court.
In any event, though there's not much of a track record, there is some. Lippman has been serving on the Appellate Division (the First Department, which is in Manhattan) since his appointment as Presiding Justice in May of 2007. Prior to that time, he served as a trial court judge on "Supreme Court" (in Westchester County) upon his election in 2005. A search of both Westlaw and Lexis-Nexis discloses his first judicial opinion as a trial judge in November of that year. In short, his record of judicial opinions is about 1 and 1/2 years as a trial judge. After that, he served a little more than 1 and 1/2 years on the Appellate Division.
As of today, Lippman's judicial opinion record on the Appellate Division is 12 opinions for the court (unanimous and majority combined) and 2 dissents. As a trial judge, his record is 20 opinions (some unpublished in the official reports, but available elsewhere), plus 2 dissents while serving on an Appellate Term panel. (For those not too familiar with New York's byzantine system of courts, the Appellate Term is a part of "Supreme Court" that hears appeals from the various lower level civil and criminal courts in New York City.)
That's the extent of the judicial opinion record. It's not much for analysis. Not much to get too good a handle on Lippman. But it's something. And there are some clues. (Hey, even with a somewhat slight judicial record, a judge just can't hide.)
So let's begin looking at what's there. First let's look at Lippman's criminal opinions. There are a total of 4. At the Appellate Division he wrote 3 opinions for the court--1 unanimous and 2 for a majority. At Appellate Term he authored 1 dissent. Here is a very brief encapsulation.
People v. Florestal (Appellate Division, June 2008). Lippman wrote the opinion, for a unanimous court, to reverse a murder conviction. According to Lippman, the trial judge had misinstructed the jury by telling them that depraved indifference murder was based on the circumstances surrounding the killing, rather than on the killer's reckless disregard of human life.
People v. Valdez (Appellate Division, June 2008). Lippman wrote the opinion for a 3 - 2 majority of the court. Although the court was unanimous to uphold the grand larceny conviction, the justices were divided on a fair trial issue that Lippman said needed to be addressed. Over the disagreement of 2 judges who wrote a concurring opinion, Lippman ruled that it was improper for the prosecutor to go to lengths to bolster the police witness's credibility, because that credibility had not even been challenged. Lippman warned that, in another case, such bolstering could cause an unfair trial and require that a conviction be reversed.
People v. Packer (Appellate Division, January 2008). Lippman wrote the opinion for another 3 - 2 majority to reverse a weapon's possession conviction--this time the 2 disagreeing judges dissented. Lippman ruled that the defendant's consent to a search was not voluntary and, therefore, that the weapon found in his backpack should have been suppressed by the trial judge.
People v. Anthony (Appellate Term, November 2006). Lippman wrote a dissent against a 2 - 1 majority that upheld a local housing code conviction. Lippman argued that the conviction should be reversed because the code was unconstitutional, even though the defendant hadn't originally challenged the code's validity.
That's it. Lippman's judicial opinion record in criminal cases. 4 opinions. Again, not much. But something. And yes, that something reveals some things. Not too great a deal. But not nothing either. Here are a few things.
Only a brief part of the brief time that Lippman spent as a judge engaged in judging was with criminal cases. 3 judicial opinions during the 1 and 1/2 years on the Appellate Division; none while on "Supreme Court," except for the 1 while serving on an Appellate Term panel.
In all of those 4 opinions, Lippman took the position more favorable to the accused. Whether writing for a unanimous court, for a majority, or for himself in dissent, Lippman either sided with the accused outright or, as in Valdez, took a position that was more protective of the rights of the accused than the concurring judges were willing to take.
The least that can be concluded, then, with a high degree of confidence, is that Lippman is not blindly or lopsidedly pro-prosecution. In not one of these opinions did he take the more pro-prosecution position. In the 3 divided decisions as well as in the unanimous one, Lippman sided with the rights of the accused. And he did so even when he had to part ways with a majority of his colleagues by dissenting.
This is not to say that Lippman is blindly or lopsidedly pro-accused. There are simply too few opinions to conclude with any confidence that his pro-accused record would extend over a much greater number of cases.
But, if one were to bet, the smart money surely would be on Lippman proving to be--at the least--somewhat of a liberal. That seems much more likely than that his 4 criminal opinions are a complete anomaly and that he is actually a pro-prosecution, crime-control, law & order conservative. Whatever little there is in Lippman's judicial opinion record in criminal cases certainly does not provide any suggestion of that likelihood.
One last point. And this is just fact. Of the 4 criminal opinions Lippman authored, only one was unanimous. As the Presiding Justice, 2 of the 3 opinions he authored at the Appellate Division split his court. Both Valdez and Packer were 3 - 2 decisions. His opinions garnered a bare majority. His colleagues were willing to--and in fact did--disagree publicly with their Presiding Justice by authoring separate opinions objecting to his approach to the law. And at the Appellate Term, in Anthony, he was in dissent because he could not garner a single colleague's vote for his position.
This does not suggest that Lippman got it wrong in those opinions. Not at all. What it does suggest--what the bare facts tell us--is that Lippman, both as an Appellate Division Presiding Justice and as a member of an Appellate Term panel, was unable to persuade disagreeing colleagues to his side in 3 out of 4 cases. In the 2 Appellate Division cases he secured a bare majority. In the Appellate Term case he was alone in dissent.
Whatever divisions, independence, and intransigence among his colleagues Lippman found at the Appellate Division and the Appellate Term, he can expect in much greater and hardier abundance at the Court of Appeals. Those top court judges can be awfully opinionated, contrarian, and unruly. (I'm pretty sure that Lippman's predecessor and good friend, retired Chief Judge Judith Kaye, must have filled him in. The increased rate of disagreement at the Court of Appeals is discussed in New York Court of Appeals: More Dissents in Kaye Court (Part 3: Read and Smith; and Pigott Too), July 23, 2008, and in preceding posts cited therein.)
If it was difficult to keep the troops in line at the AD and the AT, good luck at the Court of Appeals!
And all people of good will in New York do wish Chief Judge Nominee Lippman lots of good luck. Lots of success in helping to move the Court forward. Lippman needs it, and the Court needs to.
In the next post in this series we'll look at Lippman's judicial opinion record in civil cases. Some pretty interesting indications.
The Court of Appeals is the tribunal that resolves questions about the fundamental law of the state, settles conflicts in the law (case law and statutes), fills in the gaps when no law is directly on point, decides whether precedent should be preserved or overruled, and, in various other kinds of legal disputes, determines the most difficult and important questions about freedom, authority, and the rules governing the interactions of people living and working in New York.
And the simple point is that Lippman has very little background in dealing with such issues as a judge--or, in fact, as a litigator, government counsel, professor, high public official, or in any other capacity. Yes, the official word is out: he has a great deal of judicial experience. And his partisans and increasing number (for obvious reasons) of sycophants are parroting that he does, or that he has experience in dealing with such issues in some other capacity. But, come on. He just doesn't. Unless, of course, something major has been deleted from his official bio. Absent that possibility, virtually his entire career as a judge has been as an administrator. Not a judge engaged in judging. And his actual judging has been for only a brief time.
[Again, and this has almost become ad nauseam, it's not judicial experience itself that's important, but experience dealing with the kinds of tough and weighty legal-societal issues that confront the Court of Appeals. Judging is just one way to get that experience. It just so happens that Lippman's rather thin experience as a judge engaged in judging is the closest experience he has to that. For more on this, see related posts on the New York Court Watcher, e.g., New York Court of Appeals: The New Chief's Judicial Record (Part 1: An Overview of Not Too Much), Jan. 21, 2009; New York Court of Appeals: This List, Past Lists, the Guv...(Part 6: The Guv's Selection & My Own Ratings), Jan. 8, 2009; and New York Court of Appeals: Memo to the Governor & the Commission [esp. points 4 & 5], Nov. 17, 2008.]
Let's be clear. I hope that Lippman turns out to be a great Chief Judge. I'm rooting for him. Because I love the Court and I love New York. And no, I'm not predicting that he won't be. In fact, if what I've been told by some who know him is true, he may well turn out to be superb. The only point here is that he does not have much of a track record to indicate the kind of Court of Appeals Judge he will be (what kind of a judging judge, that is) or to indicate that he is well-prepared for the kind and level of judging work that he will have to do on the Court.
In any event, though there's not much of a track record, there is some. Lippman has been serving on the Appellate Division (the First Department, which is in Manhattan) since his appointment as Presiding Justice in May of 2007. Prior to that time, he served as a trial court judge on "Supreme Court" (in Westchester County) upon his election in 2005. A search of both Westlaw and Lexis-Nexis discloses his first judicial opinion as a trial judge in November of that year. In short, his record of judicial opinions is about 1 and 1/2 years as a trial judge. After that, he served a little more than 1 and 1/2 years on the Appellate Division.
As of today, Lippman's judicial opinion record on the Appellate Division is 12 opinions for the court (unanimous and majority combined) and 2 dissents. As a trial judge, his record is 20 opinions (some unpublished in the official reports, but available elsewhere), plus 2 dissents while serving on an Appellate Term panel. (For those not too familiar with New York's byzantine system of courts, the Appellate Term is a part of "Supreme Court" that hears appeals from the various lower level civil and criminal courts in New York City.)
That's the extent of the judicial opinion record. It's not much for analysis. Not much to get too good a handle on Lippman. But it's something. And there are some clues. (Hey, even with a somewhat slight judicial record, a judge just can't hide.)
So let's begin looking at what's there. First let's look at Lippman's criminal opinions. There are a total of 4. At the Appellate Division he wrote 3 opinions for the court--1 unanimous and 2 for a majority. At Appellate Term he authored 1 dissent. Here is a very brief encapsulation.
People v. Florestal (Appellate Division, June 2008). Lippman wrote the opinion, for a unanimous court, to reverse a murder conviction. According to Lippman, the trial judge had misinstructed the jury by telling them that depraved indifference murder was based on the circumstances surrounding the killing, rather than on the killer's reckless disregard of human life.
People v. Valdez (Appellate Division, June 2008). Lippman wrote the opinion for a 3 - 2 majority of the court. Although the court was unanimous to uphold the grand larceny conviction, the justices were divided on a fair trial issue that Lippman said needed to be addressed. Over the disagreement of 2 judges who wrote a concurring opinion, Lippman ruled that it was improper for the prosecutor to go to lengths to bolster the police witness's credibility, because that credibility had not even been challenged. Lippman warned that, in another case, such bolstering could cause an unfair trial and require that a conviction be reversed.
People v. Packer (Appellate Division, January 2008). Lippman wrote the opinion for another 3 - 2 majority to reverse a weapon's possession conviction--this time the 2 disagreeing judges dissented. Lippman ruled that the defendant's consent to a search was not voluntary and, therefore, that the weapon found in his backpack should have been suppressed by the trial judge.
People v. Anthony (Appellate Term, November 2006). Lippman wrote a dissent against a 2 - 1 majority that upheld a local housing code conviction. Lippman argued that the conviction should be reversed because the code was unconstitutional, even though the defendant hadn't originally challenged the code's validity.
That's it. Lippman's judicial opinion record in criminal cases. 4 opinions. Again, not much. But something. And yes, that something reveals some things. Not too great a deal. But not nothing either. Here are a few things.
Only a brief part of the brief time that Lippman spent as a judge engaged in judging was with criminal cases. 3 judicial opinions during the 1 and 1/2 years on the Appellate Division; none while on "Supreme Court," except for the 1 while serving on an Appellate Term panel.
In all of those 4 opinions, Lippman took the position more favorable to the accused. Whether writing for a unanimous court, for a majority, or for himself in dissent, Lippman either sided with the accused outright or, as in Valdez, took a position that was more protective of the rights of the accused than the concurring judges were willing to take.
The least that can be concluded, then, with a high degree of confidence, is that Lippman is not blindly or lopsidedly pro-prosecution. In not one of these opinions did he take the more pro-prosecution position. In the 3 divided decisions as well as in the unanimous one, Lippman sided with the rights of the accused. And he did so even when he had to part ways with a majority of his colleagues by dissenting.
This is not to say that Lippman is blindly or lopsidedly pro-accused. There are simply too few opinions to conclude with any confidence that his pro-accused record would extend over a much greater number of cases.
But, if one were to bet, the smart money surely would be on Lippman proving to be--at the least--somewhat of a liberal. That seems much more likely than that his 4 criminal opinions are a complete anomaly and that he is actually a pro-prosecution, crime-control, law & order conservative. Whatever little there is in Lippman's judicial opinion record in criminal cases certainly does not provide any suggestion of that likelihood.
One last point. And this is just fact. Of the 4 criminal opinions Lippman authored, only one was unanimous. As the Presiding Justice, 2 of the 3 opinions he authored at the Appellate Division split his court. Both Valdez and Packer were 3 - 2 decisions. His opinions garnered a bare majority. His colleagues were willing to--and in fact did--disagree publicly with their Presiding Justice by authoring separate opinions objecting to his approach to the law. And at the Appellate Term, in Anthony, he was in dissent because he could not garner a single colleague's vote for his position.
This does not suggest that Lippman got it wrong in those opinions. Not at all. What it does suggest--what the bare facts tell us--is that Lippman, both as an Appellate Division Presiding Justice and as a member of an Appellate Term panel, was unable to persuade disagreeing colleagues to his side in 3 out of 4 cases. In the 2 Appellate Division cases he secured a bare majority. In the Appellate Term case he was alone in dissent.
Whatever divisions, independence, and intransigence among his colleagues Lippman found at the Appellate Division and the Appellate Term, he can expect in much greater and hardier abundance at the Court of Appeals. Those top court judges can be awfully opinionated, contrarian, and unruly. (I'm pretty sure that Lippman's predecessor and good friend, retired Chief Judge Judith Kaye, must have filled him in. The increased rate of disagreement at the Court of Appeals is discussed in New York Court of Appeals: More Dissents in Kaye Court (Part 3: Read and Smith; and Pigott Too), July 23, 2008, and in preceding posts cited therein.)
If it was difficult to keep the troops in line at the AD and the AT, good luck at the Court of Appeals!
And all people of good will in New York do wish Chief Judge Nominee Lippman lots of good luck. Lots of success in helping to move the Court forward. Lippman needs it, and the Court needs to.
In the next post in this series we'll look at Lippman's judicial opinion record in civil cases. Some pretty interesting indications.
Friday, January 23, 2009
Supreme Court: Voting W/ Whom? & Breaking Ranks When?--Focus on Stevens [Yes, Graphs Included]
GRAPH 1: Justice Stevens
Voting Alignments (%)
(click to enlarge)
Voting Alignments (%)
(click to enlarge)
Ok, right at the start, a nice graph that depicts a lot of what is to follow in prose. So if you're satisfied, no need to read further. But if you decide to continue, you just might find a few interesting tidbits--some of which may not be immediately obvious and some of which are not there at all. So for those of you who want to move on, here goes.The focus of this post (which should be somewhat apparent by now) is John Paul Stevens, the Justice who's been on the Court the longest and, therefore, is second only to the Chief Justice in the Court's hierarchy. He's the one who swore in the Vice President this past Tuesday and got the oath right. (John Roberts, the Chief Justice, who flubbed the oath when swearing in President Obama [yep, PRESIDENT OBAMA!], was the focus of the first post in this series. See Supreme Court: Voting W/ Whom? & Breaking Ranks When?--Focus on Roberts [Yes, Graphs Included], Jan. 10, 2009.)
Stevens, appointed 33 years ago by Republican President Gerald Ford, almost immediately proved himself more aligned with the Court's liberals than its conservatives. That alignment has continued. Indeed, Stevens is undoubtedly today's veteran leader of the Court's liberal wing--even if not it's most liberal member. (For related discussions, see GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in that series which are cited therein.)
As was done in the post that focused on Roberts, this one will look at the voting alignments and the "breaking ranks" cases for Stevens. So we'll look at the frequency with which Stevens voted with each of his colleagues--i.e., voted on the same side of an issue--in the "defining decisions" of the Court's last term. (Those 15 particularly revealing decisions were identified and discussed in the Nov. 16, 2008 post cited above and in the previous ones cited in that post.) And in addition to the alignment frequencies, we'll look at the cases in which Stevens broke ranks with his typical ideological allies (the liberals or the more liberal side of an issue) and voted instead with his usual ideological opposites (the conservatives or the more conservative side of an issue).
To get started, let's take a second look at the info depicted in the first graph, this time rearranged with Stevens' voting alignments in order from the highest on down. (Yes, again, "descending" order.)
Voting Alignments (%) in Descending Order
(click to enlarge)
As we previously saw with Roberts, what is immediately clear for Stevens is the wide range of alignment frequencies with his colleagues. From a high of 90% alignment with Stephen Breyer to a low of 33% with Clarence Thomas. What is also clear is Stevens' high rate of alignment with several of his colleagues. In addition to Breyer at 90%, there's Anthony Kennedy at 87%, David Souter at 80%, and Ruth Bader Ginsburg at 77%. This is consistent with the high rate at which he was in the majority in these "defining decisions." As shown in Graph #1, that was 87%.At the other end of the alignment spectrum for Stevens--the far other end--is Thomas, at a mere 33%, as we've already noted. There's Scalia as well, at 40%. With his remaining colleagues, Roberts and Samuel Alito, Stevens' alignments was neither especially high nor low: 67% and 63% respectively.
So recapped somewhat differently, liberal Justice Stevens was aligned most highly with liberal Breyer and moderate-swing vote Kennedy, and almost as highly with the Court's staunchest liberals, Souter and Ginsburg. (See the November 26, 2008 post [link above], and the posts cited in that one, for discussions of where each Justice falls on the Court's ideological voting spectrum.) Stevens was aligned the very least with the Court's staunchest conservatives, Thomas and Scalia. He was aligned moderately with Roberts and Alito, whose records are not nearly as staunchly conservative as Thomas and Scalia.
Interestingly, but not surprisingly, both Stevens and Roberts had very high rates of alignment with Kennedy, the Court's moderate and its swing vote. (See the January 10, 2009 post on Roberts [link above] for a discussion of his alignments.) For both Stevens and Roberts, their alignment with Kennedy was the second highest among all their alignments. Liberal Stevens' highest alignment was with a liberal (but not the most liberal), Breyer. Correspondingly, conservative Roberts' highest alignment was with a conservative (but not the most conservative), Alito. Liberal Stevens' lowest alignment was with the most conservative Justices, Thomas and Scalia. Conservative Roberts' lowest alignment was with the most liberal Justices, Ginsburg and Souter. Hence, both Stevens and Roberts aligned the least with the staunchest of their respective ideological opposites. And they both aligned the most with the more moderate of their respective ideological allies--and with moderate-swing Kennedy.
Now let's take a look at these same voting alignments, but this time stated in actual numbers of cases (out of the total 15 "defining decisions") instead of percentages. And let's also look at the flipside: the non-alignment data. So the number of cases in agreement, and number of cases in disagreement. Graph 3 depicts Stevens' voting alignments and non-alignments in order of Justice seniority.
GRAPH 3: Justice Stevens
Voting Alignments/Non-Alignments (#)
(click to enlarge)
Voting Alignments/Non-Alignments (#)
(click to enlarge)
Now, if the Justices are simply rearranged in the order of their alignment or agreement with Stevens, it looks like this:
GRAPH 4: Justice Stevens
Voting Alignments/Non-Alignments (#) in Descending Order
(click to enlarge)
Voting Alignments/Non-Alignments (#) in Descending Order
(click to enlarge)
Among the things these last 2 graphs make even more vivd is the extent of disagreement Stevens had with some of his colleagues--as well as the minimal disagreement he had with others. His disagreement with Thomas, for example, was 10 times that with Breyer, and 5 times that with Kennedy. With Scalia, the multiples of disagreement were almost as great. (Yes, you say, but what gives with the 1/2 numbers depicted in the graph? Let me repeat what I wrote in the post on Roberts. See the bracketed italics below.)[As explained in earlier posts (see, Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 4, 2008), the votes in each case are generally counted as either on one side of the issue decided by the Court or the other. In some cases, however, some votes seem more accurately treated as half and half. So, e.g., in Baze, on the constitutional validity of execution by lethal injection, the plurality opinion by Roberts was midway between the dissent of Ginsburg (joined by Souter), which argued that there were fatal constitutional problems, and the separate concurring opinion of Thomas (joined by Scalia), which saw no possible problem with lethal injection. So Roberts' vote, as well as the votes of those who joined his result and his reasoning (even if in a separate concurring opinion as did Stevens), is treated as in half agreement with the dissenters and half agreement with the separate concurrers. Similarly, in Moore, on the constitutional validity of a search conducted in violation of state law, although Ginsburg voted with the rest of the Court to uphold the conviction in question, her separate concurring opinion made clear that she took a significantly less pro-prosecution position than her colleagues. So her vote is treated as half with and half against the majority--which included both Roberts and Stevens. ]
As for Stevens' "breaking ranks" cases, he voted with the conservatives and against his usual liberal allies in 4 out of the 15 "defining decisions." (He also voted with the conservatives in 2 additional cases. But in those 2, the other liberal Justices--or all except one--voted the same way. So in Lopez Torres, in which the Court upheld New York State's elective system for trial judges, the Court unanimously reversed the more liberal decision of the 2d Circuit Court of Appeals which had found that the system violated First Amendment rights. And in Moore, the Court was virtually unanimous in ruling that its own interpretation of the Fourth Amendment--not the greater protections of a state's own law--determined whether a violation occured. Ginsburg registered some disagreement in a separate concurring opinion, but only with some of the Court's reasoning.)
The 4 cases in which Stevens actually did break ranks with his fellow liberals were Baze (lethal injection), Medellin (authority of the international court's rulings), Williams (child pornography), and Crawford (voter identification).
In Baze and Crawford he was willing to uphold state choices which were legitimate on their face--lethal injection as a humane method of execution and identification requirements to prevent voter fraud. But he was only willing unless and until the complaints against them were shown to be actual, rather than just potential. So, in both cases, he rejected the more liberal positions taken by his usual allies--i.e., that lethal injection and voter identification requirements were invalid period, because the very real possibile problems of each could not be disregarded. But neither did Stevens side with the staunch conservatives in those cases. They argued (in a separate concurring opinion in each case) that there were simply no possible constitutional infirmities with lethal injection or with voter identification requirements. The positions Stevens took, in both Baze and Crawford, were midway between the more conservative and more liberal positions taken.
In Medellin, Stevens again took a position to afford more latitude to a state. He agreed with the conservatives that neither the International Court of Justice nor the President has the authority to require a state to abide by an international treaty. That is, at least not until or unless Congress passes a law requiring state abidance. Stevens disagreed with his fellow liberals, Breyer, Souter and Ginsburg, that international treaties were automatically binding law under the Supremacy Clause of the Constitution.
Finally, in Williams, where he was joined in his concurring opinion by fellow liberal Breyer, Stevens was willing to give Congress the benefit of the doubt--just as he was willing to do with the states in Baze, Crawford, and Medellin. He did so here by presuming that Congress did not intend an unconstitutional law. Accordingly, he interpreted the child pornography statute in question so that it would not infringe upon First Amendment rights and, therefore, would be valid. His position contrasted with the more liberal position of Souter (who was joined in dissent by Ginsburg). Souter's argument was that the law unavoidably targeted protected speech.
The benefit of the doubt and deference. That seems to have separated Stevens from his fellow liberals in his "breaking ranks" cases. Now he didn't turn a blind eye to the constitutional problems raised in those 4 cases. In both Baze and Crawford he acknowledged the possible problems. But he chose not to interfere with the states until the problems became real. In Williams, he acknowledged the constitutional problems. So he interpreted the statute to eliminate them. In Medellin, he acknowledged the place of international law as part of this country's law. But he took the position that Congress was the appropriate branch of government to implement it. So unlike the most conservative Justices, he did see problems. But he took a more wait-and-see approach than did other liberal Justices.
Indeed, a subsequent development in Medellin demonstrates the foregoing. After the Court's decision in Medellin, Texas decided to proceed with the execution in question, without any effort whatsoever to abide by the procedural protections guaranteed by the international treaty and sought to be enforced by the international court. When a new petition came before the Court, Stevens then voted with his fellow liberals--and in opposition to the conservatives in the majority--to stay that execution.
Sooooooo, Stevens record is generally quite liberal. At least within the spectrum of the current Court, it certainly is. He is not quite as liberal as Ginsburg or Souter, or even Breyer. But his voting is much much closer to theirs than it is to the Court's conservatives. And (this just says the same thing a different way) his voting alignment with them is much higher than it is with the conservatives--and much much higher than it is with the most conservative Justices, Thomas and Scalia. Beyond that, even when Stevens has broken ranks and sided with the conservatives in reaching a result in a case, his positions are typically not entirely conservative. They are usually midway between conservative and liberal. He may not be siding with other liberals in those cases. But neither is he siding with the Court's most conservative Justices nor taking the most conservative position advanced. In short, even when he votes conservative, Stevens usually brings a liberal perspective to bear on his position.
Next up in the next post in this series: Scalia. Now that's a whole 'nother story entirely!!
Wednesday, January 21, 2009
New York Court of Appeals: The New Chief's Judicial Record (Part 1: An Overview of Not Too Much)
Anyone who bothers to read the posts on this blog almost certainly keeps abreast of Court of Appeals developments and knows that Governor Paterson chose Jonathan Lippman to succeed Judith Kaye as New York's Chief Judge. The Governor made his announcement at a press conference with Lippman on Wednesday, January 14.
First things first. Let's hope he's a great Chief Judge. For the Court of Appeals, for the fundamental law of New York, for the people of New York. But beyond the wishin' and hopin' and thinkin' and prayin' [Yes, Dusty Springfield singin' Burt Bacharach.].......
Lippman's selection breaks a tradition going back more than a century. Not since 1898 has a non-member of the Court of Appeals become Chief Judge. The last one was Alton Parker. [He later ran for President against Teddy Roosevelt. Do I need to say who won?]. And before Parker was elected Chief Judge [that was ~80 years before the current appointment system], he actually had a few years of prior experience on the Court of Appeals. To be precise, he had served on the court's "Second Division." This was a sort of second string Court of Appeals. It was formed to help alleviate the court's enormous caseload at the time.
In contrast to Parker, and to every one of his successors since 1898, the new Chief Judge nominee, Jonathan Lippman, is not a current or former member of the Court of Appeals--first or second string.
Pointing that out, however, is not to suggest something necessarily negative. In fact, if we look to the Supreme Court for perspective on this, it is notable that some of the strongest Chief Justices came from off the Court. There's the great John Marshall for starters. Ok, you say, but that was when the Court was fairly new and still finding its way. Well, what about William Howard Taft (appointed by Harding in 1921)? Or Earl Warren (appointed by Eisenhower in 1953)? And, of course, there's the current Chief Justice, John Roberts (appointed by Bush 43 in 2005). So a newbie to a court can certainly succeed--indeed excel--as its chief.
There is a closely related fact, however, that is much more significant and raises concerns. At the least, it makes Lippman's appointment a question mark. Consider the Chief Justices just mentioned. Marshall was a Secretary of State. Taft had been President. Earl Warren was Governor of California. Roberts clerked at the Supreme Court, was a litigator at the highest levels (including before the Court itself), and then he was a judge on the D.C. Circuit. In short, all of them had previous careers tackling difficult and consequential issues of a legal, governmental, and societal nature.
Lippman comes to the center seat of the Court of Appeals with precious little, if any, such experience. He was a court administrator. And, yes, he was that at the highest levels. But that is not the same as confronting and trying to resolve legal-governmental-societal issues either as a President or a member of a President's cabinet or a Governor or a law clerk at a high court or a litigator before a high court or a judge on such a court. Lippman's experience does not include that--unless one counts his 1 and 1/2 years on the Appellate Division.
Let me be clear by repeating a point I've made before on the New York Court Watcher and elsewhere. I am not suggesting the need for a lot of judicial experience--or for any at all. That is only one way to gain the experience vital to serving on a high court. (See New York Court of Appeals: Memo to the Governor & the Commission [esp. point 5], Nov. 17, 2008.) What's important is experience dealing with the kinds of difficult and consequential issues that high courts decide. (That, in addition to understanding the real nature of the judicial process--not the typical nonsense that's spouted by politicians and lots of judges too. But the actual nature of judicial decision-making that necessarily involves making law. See New York Court of Appeals: Memo to the Governor & the Commission [esp. point 4], Nov. 17, 2008.)
Lippman may well turn out to be a great Chief Judge--i.e., a great JUDGE who is the Chief. (For a discussion on this latter point, see an earlier post on New York Court Watcher: New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selecting a Great Chief JUDGE), Jan. 2, 2009.) And some who know him personally, and understand the nature of decision-making on a high court, DO think he is a great choice for Chief. So he might well be. And anyone who cares about the Court of Appeals, and about the fundamental law of New York, and about New York itself, certainly must hope so. But, in truth, there just is not much in his record that tells us how great a Chief JUDGE he will be. There simply is precious little to tell us how well he deals with those legal-governmental-societal issues that he will now confront regularly, and on which he will lead the court in resolving.
What little there is can be found in his judicial record. There's not much there. But that's what we have.
Lippman served on the Appellate Division for about 1 and 1/2 years--i.e, since his appointment in May of 2007 as Presiding Justice of the First Department in Manhattan. While on that court, he authored 13 opinions. 11 were opinions for the court; 2 were dissents. Prior to that time, he was a trial judge on state "Supreme Court" [Yes, an anachronistic, inappropriate, and highly confusing name.] He served on that bench since late 2005--a brief, not-quite 1 and 1/2 year period And he was occupied during that time serving as Chief Judge Kaye's Chief Administrative Judge. A search on both Westlaw and Lexis-Nexis reveals 22 Lippman opinions--some unpublished in the official reports. 20 were decisions at trial court; 2 were dissents at Appellate Term.
3 of his Appellate Division opinions were in criminal cases. 2 of his Supreme Court opinions were as well--including one which was a dissent at Appellate Term. His other Appellate Division opinions involved a range of civil matters including legal malpractice, punitive damages, municipal liability, workers' compensation, the attorney-client relationship, a sport spectator's assumption of risk, the adequacy of pleadings, and child custody. His trial opinions in civil cases included zoning appeals, motor vehicle law, municipal employee benefits, and exhaustion of administrative remedies.
So there's a total of 35 opinions--most of them trial court decisions--over a period of little more than 3 years during which Lippman was a judge actually engaged in judging. That's not much to mine for clues about his decision-making. But it's something.
The next post in this series will begin examining these opinions to see what, if anything, they reveal about New York's next Chief Judge--as a judge. If the Senate Judiciary Committee conducts its confirmation hearings in the same fashion as it has in the past, they will tell us nothing. Those hearings have typically been entirely worthless as a vehicle to learn anything about a Court of Appeals nominee's abilities or philosophies as a judge. They're typically rubber stamps of a Governor's selection, providing only a venue to hear friends tell how wonderful the nominee is.
So we'll (I'll) try to do some examining of the nominee's (Lippman's) record on this blog in case anyone is interested. Actually, I do know that there are many who really do care and are interested. So I'll continue with this in the next post within the next couple of days.
First things first. Let's hope he's a great Chief Judge. For the Court of Appeals, for the fundamental law of New York, for the people of New York. But beyond the wishin' and hopin' and thinkin' and prayin' [Yes, Dusty Springfield singin' Burt Bacharach.].......
Lippman's selection breaks a tradition going back more than a century. Not since 1898 has a non-member of the Court of Appeals become Chief Judge. The last one was Alton Parker. [He later ran for President against Teddy Roosevelt. Do I need to say who won?]. And before Parker was elected Chief Judge [that was ~80 years before the current appointment system], he actually had a few years of prior experience on the Court of Appeals. To be precise, he had served on the court's "Second Division." This was a sort of second string Court of Appeals. It was formed to help alleviate the court's enormous caseload at the time.
In contrast to Parker, and to every one of his successors since 1898, the new Chief Judge nominee, Jonathan Lippman, is not a current or former member of the Court of Appeals--first or second string.
Pointing that out, however, is not to suggest something necessarily negative. In fact, if we look to the Supreme Court for perspective on this, it is notable that some of the strongest Chief Justices came from off the Court. There's the great John Marshall for starters. Ok, you say, but that was when the Court was fairly new and still finding its way. Well, what about William Howard Taft (appointed by Harding in 1921)? Or Earl Warren (appointed by Eisenhower in 1953)? And, of course, there's the current Chief Justice, John Roberts (appointed by Bush 43 in 2005). So a newbie to a court can certainly succeed--indeed excel--as its chief.
There is a closely related fact, however, that is much more significant and raises concerns. At the least, it makes Lippman's appointment a question mark. Consider the Chief Justices just mentioned. Marshall was a Secretary of State. Taft had been President. Earl Warren was Governor of California. Roberts clerked at the Supreme Court, was a litigator at the highest levels (including before the Court itself), and then he was a judge on the D.C. Circuit. In short, all of them had previous careers tackling difficult and consequential issues of a legal, governmental, and societal nature.
Lippman comes to the center seat of the Court of Appeals with precious little, if any, such experience. He was a court administrator. And, yes, he was that at the highest levels. But that is not the same as confronting and trying to resolve legal-governmental-societal issues either as a President or a member of a President's cabinet or a Governor or a law clerk at a high court or a litigator before a high court or a judge on such a court. Lippman's experience does not include that--unless one counts his 1 and 1/2 years on the Appellate Division.
Let me be clear by repeating a point I've made before on the New York Court Watcher and elsewhere. I am not suggesting the need for a lot of judicial experience--or for any at all. That is only one way to gain the experience vital to serving on a high court. (See New York Court of Appeals: Memo to the Governor & the Commission [esp. point 5], Nov. 17, 2008.) What's important is experience dealing with the kinds of difficult and consequential issues that high courts decide. (That, in addition to understanding the real nature of the judicial process--not the typical nonsense that's spouted by politicians and lots of judges too. But the actual nature of judicial decision-making that necessarily involves making law. See New York Court of Appeals: Memo to the Governor & the Commission [esp. point 4], Nov. 17, 2008.)
Lippman may well turn out to be a great Chief Judge--i.e., a great JUDGE who is the Chief. (For a discussion on this latter point, see an earlier post on New York Court Watcher: New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selecting a Great Chief JUDGE), Jan. 2, 2009.) And some who know him personally, and understand the nature of decision-making on a high court, DO think he is a great choice for Chief. So he might well be. And anyone who cares about the Court of Appeals, and about the fundamental law of New York, and about New York itself, certainly must hope so. But, in truth, there just is not much in his record that tells us how great a Chief JUDGE he will be. There simply is precious little to tell us how well he deals with those legal-governmental-societal issues that he will now confront regularly, and on which he will lead the court in resolving.
What little there is can be found in his judicial record. There's not much there. But that's what we have.
Lippman served on the Appellate Division for about 1 and 1/2 years--i.e, since his appointment in May of 2007 as Presiding Justice of the First Department in Manhattan. While on that court, he authored 13 opinions. 11 were opinions for the court; 2 were dissents. Prior to that time, he was a trial judge on state "Supreme Court" [Yes, an anachronistic, inappropriate, and highly confusing name.] He served on that bench since late 2005--a brief, not-quite 1 and 1/2 year period And he was occupied during that time serving as Chief Judge Kaye's Chief Administrative Judge. A search on both Westlaw and Lexis-Nexis reveals 22 Lippman opinions--some unpublished in the official reports. 20 were decisions at trial court; 2 were dissents at Appellate Term.
3 of his Appellate Division opinions were in criminal cases. 2 of his Supreme Court opinions were as well--including one which was a dissent at Appellate Term. His other Appellate Division opinions involved a range of civil matters including legal malpractice, punitive damages, municipal liability, workers' compensation, the attorney-client relationship, a sport spectator's assumption of risk, the adequacy of pleadings, and child custody. His trial opinions in civil cases included zoning appeals, motor vehicle law, municipal employee benefits, and exhaustion of administrative remedies.
So there's a total of 35 opinions--most of them trial court decisions--over a period of little more than 3 years during which Lippman was a judge actually engaged in judging. That's not much to mine for clues about his decision-making. But it's something.
The next post in this series will begin examining these opinions to see what, if anything, they reveal about New York's next Chief Judge--as a judge. If the Senate Judiciary Committee conducts its confirmation hearings in the same fashion as it has in the past, they will tell us nothing. Those hearings have typically been entirely worthless as a vehicle to learn anything about a Court of Appeals nominee's abilities or philosophies as a judge. They're typically rubber stamps of a Governor's selection, providing only a venue to hear friends tell how wonderful the nominee is.
So we'll (I'll) try to do some examining of the nominee's (Lippman's) record on this blog in case anyone is interested. Actually, I do know that there are many who really do care and are interested. So I'll continue with this in the next post within the next couple of days.
Saturday, January 10, 2009
Supreme Court: Voting W/ Whom? & Breaking Ranks When?--Focus on Roberts [Yes, Graphs Included]
[It's been a couple of weeks since we looked at the Supreme Court on New York Court Watcher. This blog (ok, me) has been preoccupied with the "merit" selection process in New York for picking judges for the Court of Appeals, the state's highest court. Specifically for picking a successor to Chief Judge Judith Kaye, who was forced to retire because of New York's asinine law mandating the retirement of Court of Appeals judges at age 70. In fact, the selection of Kaye's successor has almost consumed this blog's attention since the beginning of December. There were a few postings about the Supremes in December, but the Chief Judge selection process--with the attendant political brouhaha--has been the focus of most posts the past 2 months. The new Chief has not yet been selected. That will happen on or before January 15. In any event, there's certainly lots to discuss about the Supreme Court Justices. So let's get back to them.]
Thought we'd get started with a graph. Seems like a good eye-catching way to begin the topic at hand.
This graph depicts the frequency with which Chief Justice John Roberts voted with each of his colleagues (on the same side, that is) in the "defining decisions" of the last term--the Court's 2007-2008 term. Recall that these "defining decisions" are 15 particularly revealing ones which were identified previously. (See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in that series which are cited therein.) These decisions dealt with "hot button" matters that typically divide the Justices--just like they divide the rest of us--along political, philosophical, and cultural lines--i.e., discrimination, cultural issues, law and order, and political process. Graph #1 shows the percentage of those "defining decisions" in which Roberts was aligned with each of the other Justices.
The last series of posts about the Supreme Court on the New York Court Watcher looked at the frequency with which each Justice voted in the majority in those "defining decisions" last term. Also examined were the Justices' dissents. The particular purpose in that was to identify the kinds of decisions about which each Justice disagreed sufficiently to break with the Court and write or join a dissenting opinion. (See Supreme Court: Justices In The Majority, Dec. 8, 2008; Supreme Court: Justices In The Majority [Part 2--And Compared to In Dissent], Dec. 17, 2008; Supreme Court: Justices In The Majority [Part 3--In Dissent Over What?], Dec. 20, 2008.)
For the next several posts, let's focus on one Justice at a time. Let's look at voting alignments--i.e., the frequency with which each Justice voted with each of the others. Let's also identify the cases in which the Justice in question broke ranks with his usual ideological allies--e.g., the decisions in which a typically conservative-voting Justice voted with the typically liberal-voting Justices and/or for the more liberal side of the Court's division on an issue. Together, the voting alignments and the "breaking ranks" will tell us a lot about each Justice. E.g., the Justice's usual allies, the strength of those alliances, and the kinds of issues which supersede those alliances and on which the Justice takes positions that diverge from his/her normal ideological leanings.
As is plain from Graph #1 above, this series of posts begins by focusing on Chief Justice John Roberts. Let's take a another look at that first graph, but this time let's order those same voting alignment percentages from highest to lowest. (Yes, "descending order." So I'll put that on the graph's title.)
What's clear from Graphs #1 & #2 is the wide range of Roberts' alignment with his colleagues. From a high with Samuel Alito to a low with Ruth Bader Ginsburg. 83% to 43%. Stated in the number of decisions out of the total of 15, that represents a wide range from 12 1/2 to 6 1/2. (So what's with the 1/2 decisions, you ask? Read below.)
[As explained in earlier posts (see, Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 4, 2008), the votes in each case are generally counted as either on one side of the issue decided by the Court or the other. In some cases, however, some votes seem more accurately treated as half and half. So, e.g., in Baze, on the constitutional validity of execution by lethal injection, the plurality opinion of Roberts was midway between the dissent of Ginsburg (joined by Souter), which argued that there were fatal constitutional problems, and the separate concurring opinion of Thomas (joined by Scalia), which saw no possible problem with lethal injection. So Roberts' vote, as well as the votes of those who joined him and his reasoning, is treated as in half agreement with the dissenters and half agreement with the separate concurrers. Similarly, in Moore, on the constitutional validity of a search conducted in violation of state law, although Ginsburg voted with the rest of the Court to uphold the conviction in question, her separate concurring opinion made clear that she took a significantly less pro-prosecution position than her colleagues. So her vote is treated as half with and half against the majority--which included Roberts. ]
Roberts' alignments can be grouped quite readily. Highly aligned with--i.e., he saw eye to eye a lot with--Alito (83%; 12 1/2 out of 15 decisions) and Anthony Kennedy (80%; 12 out of 15), and then Antonin Scalia (73%; 11). Minimally aligned with Ginsburg (43%; 6 1/2) and David Souter 47%; 7), and then Steven Breyer (57%; 8 1/2). So Roberts was highly aligned with 2 conservatives, Alito and Scalia, and with swing voter Kennedy. He was minimally aligned with 3 liberals, Ginsburg, Souter and Breyer.
Interestingly, Roberts aligned equally with liberal John Paul Stevens and conservative Clarence Thomas (67%; 10).
In short, what seems most telling, is that Roberts aligned the most with the somewhat moderate conservatives, Alito and Kennedy. He aligned the least with strong liberals Ginsburg and Souter. Additionally, Roberts did not align with staunch conservative Thomas at a very high rate. In fact, no higher than he did with Stevens, who is a pretty consistently liberal vote on the Court.
Now let's take those same voting alignments, but replace the percentages depicted in the first 2 graphs with the actual number of decisions (out of the total of 15) in which Roberts agreed with each other Justice. Let's also include non-alignment figures--i.e., the number of decisions in which Roberts disagreed with (and voted differently than) each of the others.
First, here's with the Justices in order of seniority, and including the Court as a whole.
GRAPH 1:Chief Justice Roberts
Voting Alignments (%)
(click to enlarge)
Voting Alignments (%)
(click to enlarge)
Thought we'd get started with a graph. Seems like a good eye-catching way to begin the topic at hand.This graph depicts the frequency with which Chief Justice John Roberts voted with each of his colleagues (on the same side, that is) in the "defining decisions" of the last term--the Court's 2007-2008 term. Recall that these "defining decisions" are 15 particularly revealing ones which were identified previously. (See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in that series which are cited therein.) These decisions dealt with "hot button" matters that typically divide the Justices--just like they divide the rest of us--along political, philosophical, and cultural lines--i.e., discrimination, cultural issues, law and order, and political process. Graph #1 shows the percentage of those "defining decisions" in which Roberts was aligned with each of the other Justices.
The last series of posts about the Supreme Court on the New York Court Watcher looked at the frequency with which each Justice voted in the majority in those "defining decisions" last term. Also examined were the Justices' dissents. The particular purpose in that was to identify the kinds of decisions about which each Justice disagreed sufficiently to break with the Court and write or join a dissenting opinion. (See Supreme Court: Justices In The Majority, Dec. 8, 2008; Supreme Court: Justices In The Majority [Part 2--And Compared to In Dissent], Dec. 17, 2008; Supreme Court: Justices In The Majority [Part 3--In Dissent Over What?], Dec. 20, 2008.)
For the next several posts, let's focus on one Justice at a time. Let's look at voting alignments--i.e., the frequency with which each Justice voted with each of the others. Let's also identify the cases in which the Justice in question broke ranks with his usual ideological allies--e.g., the decisions in which a typically conservative-voting Justice voted with the typically liberal-voting Justices and/or for the more liberal side of the Court's division on an issue. Together, the voting alignments and the "breaking ranks" will tell us a lot about each Justice. E.g., the Justice's usual allies, the strength of those alliances, and the kinds of issues which supersede those alliances and on which the Justice takes positions that diverge from his/her normal ideological leanings.
As is plain from Graph #1 above, this series of posts begins by focusing on Chief Justice John Roberts. Let's take a another look at that first graph, but this time let's order those same voting alignment percentages from highest to lowest. (Yes, "descending order." So I'll put that on the graph's title.)
GRAPH 2: Chief Justice Roberts
Voting Alignments (%) in Descending Order
(click to enlarge)
Voting Alignments (%) in Descending Order
(click to enlarge)
What's clear from Graphs #1 & #2 is the wide range of Roberts' alignment with his colleagues. From a high with Samuel Alito to a low with Ruth Bader Ginsburg. 83% to 43%. Stated in the number of decisions out of the total of 15, that represents a wide range from 12 1/2 to 6 1/2. (So what's with the 1/2 decisions, you ask? Read below.)
[As explained in earlier posts (see, Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 4, 2008), the votes in each case are generally counted as either on one side of the issue decided by the Court or the other. In some cases, however, some votes seem more accurately treated as half and half. So, e.g., in Baze, on the constitutional validity of execution by lethal injection, the plurality opinion of Roberts was midway between the dissent of Ginsburg (joined by Souter), which argued that there were fatal constitutional problems, and the separate concurring opinion of Thomas (joined by Scalia), which saw no possible problem with lethal injection. So Roberts' vote, as well as the votes of those who joined him and his reasoning, is treated as in half agreement with the dissenters and half agreement with the separate concurrers. Similarly, in Moore, on the constitutional validity of a search conducted in violation of state law, although Ginsburg voted with the rest of the Court to uphold the conviction in question, her separate concurring opinion made clear that she took a significantly less pro-prosecution position than her colleagues. So her vote is treated as half with and half against the majority--which included Roberts. ]
Roberts' alignments can be grouped quite readily. Highly aligned with--i.e., he saw eye to eye a lot with--Alito (83%; 12 1/2 out of 15 decisions) and Anthony Kennedy (80%; 12 out of 15), and then Antonin Scalia (73%; 11). Minimally aligned with Ginsburg (43%; 6 1/2) and David Souter 47%; 7), and then Steven Breyer (57%; 8 1/2). So Roberts was highly aligned with 2 conservatives, Alito and Scalia, and with swing voter Kennedy. He was minimally aligned with 3 liberals, Ginsburg, Souter and Breyer.
Interestingly, Roberts aligned equally with liberal John Paul Stevens and conservative Clarence Thomas (67%; 10).
In short, what seems most telling, is that Roberts aligned the most with the somewhat moderate conservatives, Alito and Kennedy. He aligned the least with strong liberals Ginsburg and Souter. Additionally, Roberts did not align with staunch conservative Thomas at a very high rate. In fact, no higher than he did with Stevens, who is a pretty consistently liberal vote on the Court.
Now let's take those same voting alignments, but replace the percentages depicted in the first 2 graphs with the actual number of decisions (out of the total of 15) in which Roberts agreed with each other Justice. Let's also include non-alignment figures--i.e., the number of decisions in which Roberts disagreed with (and voted differently than) each of the others.
First, here's with the Justices in order of seniority, and including the Court as a whole.
GRAPH 3: Chief Justice Roberts
Voting Alignments/Non-Alignments (#)
(click to enlarge)
And now, here it is reorganized, with Roberts' alignments in descending order.Voting Alignments/Non-Alignments (#)
(click to enlarge)
GRAPH 4: Chief Justice Roberts
Voting Alignments/Non-Alignments (#) in Descending Order
(click to enlarge)
The value of re-depicting the data this way in these last 2 graphs is the visual contrast it provides between the frequency of Roberts' agreement and disagreement with each of his colleagues. The graphs make vivid that Roberts agreed with some Justices much more than he disagreed. And with others, he disagreed almost as much as he agreed. Depicting the data this way in these 2 graphs also visually underscores the fact that Roberts did have a not insignificant (ok, significant) amount of disagreement even with some of his ideological allies. So, for example, he disagreed with Thomas fully 1/2 as much as he agreed with him. And he disagreed with Scalia almost as much.
This leads us to the other important matter to cover in this post. On what cases--more pointedly, what kinds of issues--did Roberts break with his usual allies and take a position somewhat atypical of his normal ideological leanings. In short, on what issues did he break with conservatives and vote with, and more like, a typical liberal Justice.
With Roberts, there were 6 "breaking ranks" cases (actually, 4 + 1/2 + 1/2) among the 15 "defining decisions." And they seem to have a pretty clear common thread.
Keep in mind that on most of the "cultural issues," "law & order," and "political process" decisions, Roberts voted for the more conservative position. In virtually all of those cases he voted for the same position as Thomas and Scalia. (Again, the "defining decisions" and the 4 different categories of cases included therein were spelled out previously on New York Court Watcher. See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in that series which are cited therein.)
But then there are the "discrimination" decisions. And there are 3 others: one categorized as both "cultural" and "law & order," one only as "law & order," and one as "political process." Indeed, the possibility of discrimination is present in all but one of these cases in which Roberts broke ranks. And even that one exception, dealing as it does with the death penalty, has at least the inseparable racial implications.
Among the decisions specifically categorized as "discrimination," Roberts broke with the conservative Justices and voted with the liberals in CBOCS (a claim against an employer for retaliating because of a racial discrimination complaint), Snyder (racial discrimination in jury selection), and Federal Express (an age discrimination lawsuit after an unheeded informal request to the EEOC for remedial action). He voted in favor of the claimant in each of those cases, and in doing so he took the opposite side from Scalia and Thomas.
The other 2 decisions with discrimination implications were: Kimbrough ("law & order"--upholding a sentence below the harsh guidelines for crack cocaine [n.b. the racial implications in the typically disparate treatment for crack versus powder cocaine]), and Crawford ("political process"--upholding a state voter identification law, but only on its face, thus allowing a future showing of discriminatory administration and impact; as opposed to Scalia, Thomas, & Alito who argued that such laws were justified period, regardless of possible incidental burdens; Roberts' vote in this case counts as 1/2 "breaking ranks").
The last case--the apparent exception to the common thread of discrimination--was Baze ("cultural" & "law & order"--upholding lethal injection only because not shown to cause unecessary suffering; as opposed to Thomas & Scalia who argued that only the most barbaric punishments such as drawing and quartering and burning alive would offend the Constitution; Roberts' vote in this case also counts as 1/2 "breaking ranks").
So there are the Roberts' "breaking ranks" votes. Of the 6 "defining decisions" involved, 5 clearly dealt with discrimination. The 6th involved the death penalty--again, never too far removed from concerns of disparate racial treatment. And in all 6, Roberts took a position at odds with the more conservative side of the issue in question.
So Roberts' record is generally quite conservative and he can be expected generally to vote with his colleagues on the right wing of the Court. On the other hand, where a case raises serious concerns about discriminatory treatment--and especially racial discrimination--Roberts displays a more liberal leaning and he frequently splits from his usual conservative allies.
In the next post in this series, we'll take a look at the Court's senior associate Justice--John Paul Stevens, one of the Court's more liberal members.
Voting Alignments/Non-Alignments (#) in Descending Order
(click to enlarge)
The value of re-depicting the data this way in these last 2 graphs is the visual contrast it provides between the frequency of Roberts' agreement and disagreement with each of his colleagues. The graphs make vivid that Roberts agreed with some Justices much more than he disagreed. And with others, he disagreed almost as much as he agreed. Depicting the data this way in these 2 graphs also visually underscores the fact that Roberts did have a not insignificant (ok, significant) amount of disagreement even with some of his ideological allies. So, for example, he disagreed with Thomas fully 1/2 as much as he agreed with him. And he disagreed with Scalia almost as much.
This leads us to the other important matter to cover in this post. On what cases--more pointedly, what kinds of issues--did Roberts break with his usual allies and take a position somewhat atypical of his normal ideological leanings. In short, on what issues did he break with conservatives and vote with, and more like, a typical liberal Justice.
With Roberts, there were 6 "breaking ranks" cases (actually, 4 + 1/2 + 1/2) among the 15 "defining decisions." And they seem to have a pretty clear common thread.
Keep in mind that on most of the "cultural issues," "law & order," and "political process" decisions, Roberts voted for the more conservative position. In virtually all of those cases he voted for the same position as Thomas and Scalia. (Again, the "defining decisions" and the 4 different categories of cases included therein were spelled out previously on New York Court Watcher. See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in that series which are cited therein.)
But then there are the "discrimination" decisions. And there are 3 others: one categorized as both "cultural" and "law & order," one only as "law & order," and one as "political process." Indeed, the possibility of discrimination is present in all but one of these cases in which Roberts broke ranks. And even that one exception, dealing as it does with the death penalty, has at least the inseparable racial implications.
Among the decisions specifically categorized as "discrimination," Roberts broke with the conservative Justices and voted with the liberals in CBOCS (a claim against an employer for retaliating because of a racial discrimination complaint), Snyder (racial discrimination in jury selection), and Federal Express (an age discrimination lawsuit after an unheeded informal request to the EEOC for remedial action). He voted in favor of the claimant in each of those cases, and in doing so he took the opposite side from Scalia and Thomas.
The other 2 decisions with discrimination implications were: Kimbrough ("law & order"--upholding a sentence below the harsh guidelines for crack cocaine [n.b. the racial implications in the typically disparate treatment for crack versus powder cocaine]), and Crawford ("political process"--upholding a state voter identification law, but only on its face, thus allowing a future showing of discriminatory administration and impact; as opposed to Scalia, Thomas, & Alito who argued that such laws were justified period, regardless of possible incidental burdens; Roberts' vote in this case counts as 1/2 "breaking ranks").
The last case--the apparent exception to the common thread of discrimination--was Baze ("cultural" & "law & order"--upholding lethal injection only because not shown to cause unecessary suffering; as opposed to Thomas & Scalia who argued that only the most barbaric punishments such as drawing and quartering and burning alive would offend the Constitution; Roberts' vote in this case also counts as 1/2 "breaking ranks").
So there are the Roberts' "breaking ranks" votes. Of the 6 "defining decisions" involved, 5 clearly dealt with discrimination. The 6th involved the death penalty--again, never too far removed from concerns of disparate racial treatment. And in all 6, Roberts took a position at odds with the more conservative side of the issue in question.
So Roberts' record is generally quite conservative and he can be expected generally to vote with his colleagues on the right wing of the Court. On the other hand, where a case raises serious concerns about discriminatory treatment--and especially racial discrimination--Roberts displays a more liberal leaning and he frequently splits from his usual conservative allies.
In the next post in this series, we'll take a look at the Court's senior associate Justice--John Paul Stevens, one of the Court's more liberal members.
Thursday, January 8, 2009
New York Court of Appeals: This List, Past Lists, the Guv...(Part 6: The Guv's Selection & My Own Ratings)
The last 2 posts on New York Court Watcher dealt with 1) the Nominating Commission's December 17 letter and supplemental report to the Governor, and 2) the ratings of the Commission's candidates issued by 3 bar associations: the State Bar, the Women's Bar, and the New York City Bar. To recap those posts: #1 was helpful, #2 were pretty worthless. (See New York Court of Appeals: This List, Past Lists, the Guv...(Part 5: The Guv's Selection & Bar Ratings Games [Cont'd.]), Jan. 7, 2009, and (Part 4: The Guv's Selection & Bar Ratings Games), Jan. 4, 2009.)
At the end of the last post, I promised to give my own ratings of the candidates. Not because the Governor or anyone else might really care or be persuaded by them. But more because I think it only fair to stick my own neck out after criticizing others' ratings.
So here goes. And the virtue of my humble ratings, if there is any, is not necessarily some special insight or wisdom. But candor. I'll be honest, and I'll avoid adding to the officious, pretentious blather.
Eugene Pigott. I've got to admit, I really like him. Yes, he's a somewhat conservative Republican (and I'm a somewhat liberal Democrat). But he's a stand-up, gutsy, independent guy. He seems a natural leader.
I saw him give a talk last Spring at my law school and he was great--confident, funny, sincere, insightful, lively. Plus, his subject, his favorite judge in Court of Appeals history, was Matthew J. Jasen. I worked for Jasen as his law clerk for 3 years and thought the world of him. And Pigott did a great job capturing Jasen.
Related to that, Pigott--like Jasen--is from the Buffalo area. I love that place. My favorite place of all the places I've lived. The people are hardy and down-to-earth, and love to eat. (I've always found the latter characteristic to be a strong positive.)
Plus, Pigott's a Vietnam Vet. Didn't run away. Didn't cower. Didn't hide behind flat feet or some other nonsense. Didn't suddenly hate his country or the military or finagle some cush position in the Texas Air Guard. (OK, you see where I'm going.) As a Vietnam-era Vet, I count being a Vietnam Vet as big plus. Being a Vet, period.
In addition to all that, Pigott was the Presiding Justice of the Appellate Division, 4th Department for 6 years. He knows what it takes to run a court. And as an appellate judge for over 10 years, he knows how decisions are really made.
Ever since former Court of Appeals Judge Stewart Hancock introduced me to Pigott about 10 years ago, I've corresponded with him on occasion and have always liked him.
I think he'd be a terrific Chief.
Theodore Jones. I've only met him a couple of times and, then, only to say hello. I did, however, hear him speak at that symposium last Spring, where each Court of Appeals Judge spoke about his favorite judge in court history. Jones, speaking about Harold Stevens, the first African-American on the court, was mesmerizing. Nothing short of that. Powerful, poignant, gripping, emotional--wow! Well, that sold me--and many others present that day--on him.
Along related lines, it would be historic to have the first African-American Chief. And, yes, I'm partial to that. Not only as an American and a New Yorker would I be thrilled to see that milestone reached. But also as a Bonventre. Like an increasing number of families in this country, we count among our blessings a number of mixed marriages. (To us that means Italian and anything else.) Our family includes African-American spouses, and in-laws, and chlidren, godchildren, nieces and nephews. The appointment of the first African-American Chief Judge would be a triumph to be celebrated. (As much as would be the appointment of the first Italian-American.)
Also, Jones is a Vietnam Vet. Again, a big plus in my book. (See my comments on Pigott.)
Additionally, he has shown himself to be independent and willing to take a stand--both while a trial judge and since he's been on the Court of Appeals. (See, e.g., the discussion in New York Court of Appeals: The Jones Factor in Criminal Cases , Aug. 8, 2008, and (Part 2), Aug. 19, 2008.)
He would help move the Court in a more progressive (alright, liberal) direction.
I'd be thrilled if he were appointed.
George Carpinello. While I'm being tribal, let me also admit right off the bat that I'd be thrilled to see Carpinello appointed because he'd be the first Italian-American Chief Judge. Beyond that, I know him from his days as a professor at Albany Law. He is extremely bright and energetic and talented and he's a natural leader.
His educational pedigree is absolutely first rate. Princeton (probably America's finest undergraduate institution) and Yale Law (probably its finest law school). And he was very successful at both. Magna and Phi Beta Kappa at Princeton; an editor of the Law Journal at Yale.
His career: a federal clerkship, professor at Albany Law, Director of the Government Law Center, practitioner at a premiere law firm, including sophisticated litigation. A record of bar and community service.
I love his Mom. (A magnificent Sicilian woman who raised an extraordinary family--which also includes former Appellate Division Justice Anthony Carpinello. She worked at Albany Law School for many years.)
George is an exceptional guy who'd make an exceptional Chief Judge.
Evan Davis. Don't know him; only know of him. No getting around it, his education, career experience, and achievements are simply extraordinary. No ifs, ands, or buts. This is someone whose vita would place him on a par with the most qualified candidates for the United States Supreme Court.
Let me just rattle off a few things: Harvard College, Columbia Law (Magna), Editor-in-Chief Columbia Law Review, D.C. Circuit and Supreme Court clerkships, U.S. House Judiciary Committee staff investigating Watergate, Counsel to Governor Cuomo, President NYC Bar Association, partner at one of the world's premiere law firms, litigation at the highest and most sophisticated levels. Whew!!
Ok, 'nough said. Extraordinary. Would certainly help move the Court of Appeals back where it belongs, as one of the nation's very strongest courts.
Peter Zimroth. Don't know him; only of him. Like Davis (see above), no getting around it, his education, career experience, and achievements are simply extraordinary.
Again, rattling off a few things: Columbia undergraduate, Yale Law, Editor-in-Chief Yale Law Journal, D.C. Circuit and Supreme Court clerkships, assistant U.S. Attorney, Deputy Chief D.A. in Manhattan, NYU law professor, Corporation Counsel of NYC, partner at one of the world's premiere law firms, litigation at the highest and most sophisticated levels. Again, whew!!
Like Davis, he is one of the strongest candidates for the Court of Appeals since the "merit" appointment system took effect 30 years ago. He too would help restore the court to its traditional prominence.
Jonathan Lippman. Don't know him; only of him. I do hear very good things about him.
First and foremost, he was the trusted Chief Administrative Judge to now-retired Chief Judge Kaye for about 10 years, and he was the Deputy for 6 years before then. The word is that Kaye would like to see him get the nod. That's a pretty good endorsement in my view. Also, in addition to Kaye, lawyers and judges I know personally speak highly of Lippman and even speak of him endearingly.
My own personal view is that he does not have the kind of experience--cum track record--in tackling complex, difficult, consequential legal-societal issues that I believe is an extremely important qualification for someone to serve on the Court of Appeals, or on any high court whose primary and most critical function is to decide such questions. (For related discussions on this point, see New York Court of Appeals: Memo to the Governor & the Commission, Nov. 17, 2008 [esp. points 4 & 5], and New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selecting a Great Chief JUDGE), Jan. 2, 2009.) Such experience might come from prior judicial service, from high-level litigation as a government or private lawyer, from holding high public office, from academic study and scholarship, from related public interest work, etc. etc. Admin work is, obviously, important, especially for the position of Chief Judge. But a background of work that involves tackling, arguing, studying, analyzing, or otherwise participating in the resolution of the fundamental legal-societal issues that confront high court judges seems to me to be much more essential.
Now regarding admin work, Lippman is the champ. No question. It's a pretty good bet that at this point, after all his years as Deputy and then Chief Admin Judge, he knows the New York State court system inside out.
If, however, judicial administration is to be an appointee's strong suit, then I would prefer that it be something akin to that of a judge presiding over an appellate court. The kind of position that entails leading a body of independent judges who each have a vote equal to your own. Judges who can openly disagree in dissent, and even lead the court against your position by being more persuasive and gathering more votes than you. Presiding over that, leading those judges under those conditions, for the purpose of resolving those fundamental legal-societal issues. That's the kind of admin leadership that seems to me to be primary and most critical for a great chief presiding over a great court.
That being said, there must be something to Lippman that cannot be determined by simply examining his resume. I say this because a lot of people who know him are telling me he'd be a terrific Chief Judge. And they're saying it in private.
[It would, of course, have helped if the Women's Bar Association and City Bar Association, for example, had offered a little more than the pretty worthless boilerplate in the "Exceptional" ratings they each gave Lippman.]
Steven Fisher. I discuss him last only because I know the least about him.
I will say that absolutely everything I have heard about him is very good. He was a great trial judge. He is very smart. He's scholarly. He has made 3 prior Nominating Commission lists for the Court of Appeals. Apparently he's very impressive and has impressed many people.
I know that he presided over the trial in People v. Taylor, the Wendy's case in Queens several years ago. He was smart enough to avoid the constitutional sentencing infirmity which the Court of Appeals later found to effectively invalidate the state's death penalty law. (The Court of Appeals still overturned the capital sentence imposed in Taylor on the ground that the statute itself, not just the flaw avoided by Fisher, was invalid.)
I also know that Fisher is a grad of my own law alma mater--Brooklyn Law School. I obviously like that.
Upon graduation, he worked as an ADA for a few years in Brooklyn. He later served as a law clerk for several years to the then-Presiding Justice of the Appellate Division, 2d Department, and, for the last 5 years, he has been a justice on that court. What this tells me is that he has been dealing with difficult, consequential legal issues for many years--as a criminal prosecutor, as an appellate law clerk, and as an appellate judge. And as the confidant of the Presiding Justice of an appellate court, he knows first hand what leading a collegial body of judges entails.
From what I know, it looks like he'd be a pretty darn good pick.
So there it is. Those are my personal, candid views--ratings if you must--of the candidates for Chief Judge. I could fudge a bit, eliminate some of the considerations that might seem non-professional, enlarge upon others that would seem more serious or appropriate for a job application. But then that wouldn't represent what I'm really thinking, the unvarnished and unpretentious truth. But the point here was not to say what others might think I should think or say. So there you have it.
At the end of the last post, I promised to give my own ratings of the candidates. Not because the Governor or anyone else might really care or be persuaded by them. But more because I think it only fair to stick my own neck out after criticizing others' ratings.
So here goes. And the virtue of my humble ratings, if there is any, is not necessarily some special insight or wisdom. But candor. I'll be honest, and I'll avoid adding to the officious, pretentious blather.
Eugene Pigott. I've got to admit, I really like him. Yes, he's a somewhat conservative Republican (and I'm a somewhat liberal Democrat). But he's a stand-up, gutsy, independent guy. He seems a natural leader.
I saw him give a talk last Spring at my law school and he was great--confident, funny, sincere, insightful, lively. Plus, his subject, his favorite judge in Court of Appeals history, was Matthew J. Jasen. I worked for Jasen as his law clerk for 3 years and thought the world of him. And Pigott did a great job capturing Jasen.
Related to that, Pigott--like Jasen--is from the Buffalo area. I love that place. My favorite place of all the places I've lived. The people are hardy and down-to-earth, and love to eat. (I've always found the latter characteristic to be a strong positive.)
Plus, Pigott's a Vietnam Vet. Didn't run away. Didn't cower. Didn't hide behind flat feet or some other nonsense. Didn't suddenly hate his country or the military or finagle some cush position in the Texas Air Guard. (OK, you see where I'm going.) As a Vietnam-era Vet, I count being a Vietnam Vet as big plus. Being a Vet, period.
In addition to all that, Pigott was the Presiding Justice of the Appellate Division, 4th Department for 6 years. He knows what it takes to run a court. And as an appellate judge for over 10 years, he knows how decisions are really made.
Ever since former Court of Appeals Judge Stewart Hancock introduced me to Pigott about 10 years ago, I've corresponded with him on occasion and have always liked him.
I think he'd be a terrific Chief.
Theodore Jones. I've only met him a couple of times and, then, only to say hello. I did, however, hear him speak at that symposium last Spring, where each Court of Appeals Judge spoke about his favorite judge in court history. Jones, speaking about Harold Stevens, the first African-American on the court, was mesmerizing. Nothing short of that. Powerful, poignant, gripping, emotional--wow! Well, that sold me--and many others present that day--on him.
Along related lines, it would be historic to have the first African-American Chief. And, yes, I'm partial to that. Not only as an American and a New Yorker would I be thrilled to see that milestone reached. But also as a Bonventre. Like an increasing number of families in this country, we count among our blessings a number of mixed marriages. (To us that means Italian and anything else.) Our family includes African-American spouses, and in-laws, and chlidren, godchildren, nieces and nephews. The appointment of the first African-American Chief Judge would be a triumph to be celebrated. (As much as would be the appointment of the first Italian-American.)
Also, Jones is a Vietnam Vet. Again, a big plus in my book. (See my comments on Pigott.)
Additionally, he has shown himself to be independent and willing to take a stand--both while a trial judge and since he's been on the Court of Appeals. (See, e.g., the discussion in New York Court of Appeals: The Jones Factor in Criminal Cases , Aug. 8, 2008, and (Part 2), Aug. 19, 2008.)
He would help move the Court in a more progressive (alright, liberal) direction.
I'd be thrilled if he were appointed.
George Carpinello. While I'm being tribal, let me also admit right off the bat that I'd be thrilled to see Carpinello appointed because he'd be the first Italian-American Chief Judge. Beyond that, I know him from his days as a professor at Albany Law. He is extremely bright and energetic and talented and he's a natural leader.
His educational pedigree is absolutely first rate. Princeton (probably America's finest undergraduate institution) and Yale Law (probably its finest law school). And he was very successful at both. Magna and Phi Beta Kappa at Princeton; an editor of the Law Journal at Yale.
His career: a federal clerkship, professor at Albany Law, Director of the Government Law Center, practitioner at a premiere law firm, including sophisticated litigation. A record of bar and community service.
I love his Mom. (A magnificent Sicilian woman who raised an extraordinary family--which also includes former Appellate Division Justice Anthony Carpinello. She worked at Albany Law School for many years.)
George is an exceptional guy who'd make an exceptional Chief Judge.
Evan Davis. Don't know him; only know of him. No getting around it, his education, career experience, and achievements are simply extraordinary. No ifs, ands, or buts. This is someone whose vita would place him on a par with the most qualified candidates for the United States Supreme Court.
Let me just rattle off a few things: Harvard College, Columbia Law (Magna), Editor-in-Chief Columbia Law Review, D.C. Circuit and Supreme Court clerkships, U.S. House Judiciary Committee staff investigating Watergate, Counsel to Governor Cuomo, President NYC Bar Association, partner at one of the world's premiere law firms, litigation at the highest and most sophisticated levels. Whew!!
Ok, 'nough said. Extraordinary. Would certainly help move the Court of Appeals back where it belongs, as one of the nation's very strongest courts.
Peter Zimroth. Don't know him; only of him. Like Davis (see above), no getting around it, his education, career experience, and achievements are simply extraordinary.
Again, rattling off a few things: Columbia undergraduate, Yale Law, Editor-in-Chief Yale Law Journal, D.C. Circuit and Supreme Court clerkships, assistant U.S. Attorney, Deputy Chief D.A. in Manhattan, NYU law professor, Corporation Counsel of NYC, partner at one of the world's premiere law firms, litigation at the highest and most sophisticated levels. Again, whew!!
Like Davis, he is one of the strongest candidates for the Court of Appeals since the "merit" appointment system took effect 30 years ago. He too would help restore the court to its traditional prominence.
Jonathan Lippman. Don't know him; only of him. I do hear very good things about him.
First and foremost, he was the trusted Chief Administrative Judge to now-retired Chief Judge Kaye for about 10 years, and he was the Deputy for 6 years before then. The word is that Kaye would like to see him get the nod. That's a pretty good endorsement in my view. Also, in addition to Kaye, lawyers and judges I know personally speak highly of Lippman and even speak of him endearingly.
My own personal view is that he does not have the kind of experience--cum track record--in tackling complex, difficult, consequential legal-societal issues that I believe is an extremely important qualification for someone to serve on the Court of Appeals, or on any high court whose primary and most critical function is to decide such questions. (For related discussions on this point, see New York Court of Appeals: Memo to the Governor & the Commission, Nov. 17, 2008 [esp. points 4 & 5], and New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selecting a Great Chief JUDGE), Jan. 2, 2009.) Such experience might come from prior judicial service, from high-level litigation as a government or private lawyer, from holding high public office, from academic study and scholarship, from related public interest work, etc. etc. Admin work is, obviously, important, especially for the position of Chief Judge. But a background of work that involves tackling, arguing, studying, analyzing, or otherwise participating in the resolution of the fundamental legal-societal issues that confront high court judges seems to me to be much more essential.
Now regarding admin work, Lippman is the champ. No question. It's a pretty good bet that at this point, after all his years as Deputy and then Chief Admin Judge, he knows the New York State court system inside out.
If, however, judicial administration is to be an appointee's strong suit, then I would prefer that it be something akin to that of a judge presiding over an appellate court. The kind of position that entails leading a body of independent judges who each have a vote equal to your own. Judges who can openly disagree in dissent, and even lead the court against your position by being more persuasive and gathering more votes than you. Presiding over that, leading those judges under those conditions, for the purpose of resolving those fundamental legal-societal issues. That's the kind of admin leadership that seems to me to be primary and most critical for a great chief presiding over a great court.
That being said, there must be something to Lippman that cannot be determined by simply examining his resume. I say this because a lot of people who know him are telling me he'd be a terrific Chief Judge. And they're saying it in private.
[It would, of course, have helped if the Women's Bar Association and City Bar Association, for example, had offered a little more than the pretty worthless boilerplate in the "Exceptional" ratings they each gave Lippman.]
Steven Fisher. I discuss him last only because I know the least about him.
I will say that absolutely everything I have heard about him is very good. He was a great trial judge. He is very smart. He's scholarly. He has made 3 prior Nominating Commission lists for the Court of Appeals. Apparently he's very impressive and has impressed many people.
I know that he presided over the trial in People v. Taylor, the Wendy's case in Queens several years ago. He was smart enough to avoid the constitutional sentencing infirmity which the Court of Appeals later found to effectively invalidate the state's death penalty law. (The Court of Appeals still overturned the capital sentence imposed in Taylor on the ground that the statute itself, not just the flaw avoided by Fisher, was invalid.)
I also know that Fisher is a grad of my own law alma mater--Brooklyn Law School. I obviously like that.
Upon graduation, he worked as an ADA for a few years in Brooklyn. He later served as a law clerk for several years to the then-Presiding Justice of the Appellate Division, 2d Department, and, for the last 5 years, he has been a justice on that court. What this tells me is that he has been dealing with difficult, consequential legal issues for many years--as a criminal prosecutor, as an appellate law clerk, and as an appellate judge. And as the confidant of the Presiding Justice of an appellate court, he knows first hand what leading a collegial body of judges entails.
From what I know, it looks like he'd be a pretty darn good pick.
So there it is. Those are my personal, candid views--ratings if you must--of the candidates for Chief Judge. I could fudge a bit, eliminate some of the considerations that might seem non-professional, enlarge upon others that would seem more serious or appropriate for a job application. But then that wouldn't represent what I'm really thinking, the unvarnished and unpretentious truth. But the point here was not to say what others might think I should think or say. So there you have it.
Wednesday, January 7, 2009
New York Court of Appeals: This List, Past Lists, the Guv...(Part 5: The Guv's Selection & Bar Ratings Games [Cont'd.])
The last post in this series on New York Court Watcher looked at the Nominating Commission's December 17 letter and supplemental report to the Governor (some good steps forward) and the ratings of the 7 Court of Appeals candidates by 2 different bar groups: the State Bar Association and the Women's Bar Association (puzzling at best, because inaccurate and misleading, as well as lacking in any helpful explanation). (See New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selection & Bar Ratings Games), Jan. 4, 2009.)
Notably, there were a number of strong responses to my criticism of the bar ratings. All were even more critical, identifying additional flaws in the ratings systems. And these came from prominent lawyers and other close observers who would know--really know.
Let's now look at one last set of ratings. Those given by the New York City Bar Association. Deemed "Exceptionally Well Qualified" were New York City attorney Evan Davis and Appellate Division Justice Jonathan Lippman. "Well Qualified" were Appellate Division Justice Steven Fisher, Court of Appeals Judges Theodore Jones and Eugene Pigott, and New York City attorney Peter Zimroth. "Not Well Qualified" was Albany attorney George Carpinello.
What can one say? I guess, why? Indeed, why?
Who knows??!! Other than the unhelpful blather that the City Bar applied the state "constitutional and statutory criteria" of "character, temperament, professional aptitude and experience" in evaluating all the candidates, there is no explanation whatsoever for the ratings given to the 7 who made the Nominating Commission's list--all of whom the Commission found to be well qualified.
Why did the City Bar disagree with the Nominating Commission about Carpinello? On which criterion or criteria did they reach a different conclusion? Did the City Bar use a different standard or set of standards? Did they use the same but came to a different conclusion? And for what reason? Who knows?
And why single out Davis and Lippman as being above the rest? Maybe they are, but why? Who knows?
And why give Court of Appeals Judges Pigott and Jones the acceptable "Well Qualified" rating as opposed to the "Exceptionally Well Qualified" one--or even the "Not Well Qualified" one? Who knows? Ditto for Fisher and Zimroth.
Maybe legal education is part of the key to solving the puzzle. Davis and Lippman graduated from elite schools in New York City--Columbia and NYU, respectively. Carpinello and Zimroth only went to Yale in New Haven. Fisher and Jones did go to school in the City, but only to Brooklyn and St. John's. And Pigott, please! He went to school in God-forsaken upstate Buffalo. (Actually, that's Western NY.)
Maybe it's law review credentials. But then--as noted in the last post--Davis (EIC Columbia), Zimroth (EIC Yale) and Carpinello (Editor, Yale) would be the choices for "Exceptionally Well Qualified."
Maybe it's judicial experience. But then--as also noted in the last post--Fisher, Jones and Pigott would be the "Exceptionally" choices. Davis would be out--he has none. And so, in all candor, would be Lippman--he has very little.
Maybe it's administrative experience. But then--again as noted in the last post--Davis would not be an "Exceptionally" pick. Lippman would. But so would Fisher and, especially, Pigott (former PJ of the Appellate Division, 4th Dept).
What about "temperament"? "Aptitude"? Who knows? Not a clue here.
What ARE the standards used by the City Bar (and the other bar associations engaged in ratings)? How are they applied? What's the methodology? On which standards did some of the candidates excel more than others? And how so?
Who is applying these standards? That's a big question. WHO exactly is determining these ratings? What are THEIR qualifications to rate candidates for the Court of Appeals? For Judge or Chief Judge. What exactly do THEY know and understand about the work of the Court of Appeals? About the realities of appellate judicial decision-making? Of appellate judicial decision-making at a court of last resort? Who knows????????
AND, like the other bar ratings, there are absolutely no reasons given for the particular rating given each candidate. (Yes, the Women's Bar did offer a line about its recommendation of Lippman. But that was unhelpful and even misleading. [Again, see the last post if interested in more on that.])
If these bar association ratings are going to be so unhelpful and unsupported by any explanation, why bother? And why should anyone take them seriously? Including the Governor. The problem, of course, is that some casual observers and readers do take them seriously as the considered judgement of respected organizations. Unfortunately, like the Wizard of Oz, there seems very little to take seriously behind the curtain. Or at least nothing that the bar groups are revealing.
So why even bother?
[In the next post, I'll stick my own neck out and give my own ratings. In my own way, using my personal--but candid--criteria.]
Notably, there were a number of strong responses to my criticism of the bar ratings. All were even more critical, identifying additional flaws in the ratings systems. And these came from prominent lawyers and other close observers who would know--really know.
Let's now look at one last set of ratings. Those given by the New York City Bar Association. Deemed "Exceptionally Well Qualified" were New York City attorney Evan Davis and Appellate Division Justice Jonathan Lippman. "Well Qualified" were Appellate Division Justice Steven Fisher, Court of Appeals Judges Theodore Jones and Eugene Pigott, and New York City attorney Peter Zimroth. "Not Well Qualified" was Albany attorney George Carpinello.
What can one say? I guess, why? Indeed, why?
Who knows??!! Other than the unhelpful blather that the City Bar applied the state "constitutional and statutory criteria" of "character, temperament, professional aptitude and experience" in evaluating all the candidates, there is no explanation whatsoever for the ratings given to the 7 who made the Nominating Commission's list--all of whom the Commission found to be well qualified.
Why did the City Bar disagree with the Nominating Commission about Carpinello? On which criterion or criteria did they reach a different conclusion? Did the City Bar use a different standard or set of standards? Did they use the same but came to a different conclusion? And for what reason? Who knows?
And why single out Davis and Lippman as being above the rest? Maybe they are, but why? Who knows?
And why give Court of Appeals Judges Pigott and Jones the acceptable "Well Qualified" rating as opposed to the "Exceptionally Well Qualified" one--or even the "Not Well Qualified" one? Who knows? Ditto for Fisher and Zimroth.
Maybe legal education is part of the key to solving the puzzle. Davis and Lippman graduated from elite schools in New York City--Columbia and NYU, respectively. Carpinello and Zimroth only went to Yale in New Haven. Fisher and Jones did go to school in the City, but only to Brooklyn and St. John's. And Pigott, please! He went to school in God-forsaken upstate Buffalo. (Actually, that's Western NY.)
Maybe it's law review credentials. But then--as noted in the last post--Davis (EIC Columbia), Zimroth (EIC Yale) and Carpinello (Editor, Yale) would be the choices for "Exceptionally Well Qualified."
Maybe it's judicial experience. But then--as also noted in the last post--Fisher, Jones and Pigott would be the "Exceptionally" choices. Davis would be out--he has none. And so, in all candor, would be Lippman--he has very little.
Maybe it's administrative experience. But then--again as noted in the last post--Davis would not be an "Exceptionally" pick. Lippman would. But so would Fisher and, especially, Pigott (former PJ of the Appellate Division, 4th Dept).
What about "temperament"? "Aptitude"? Who knows? Not a clue here.
What ARE the standards used by the City Bar (and the other bar associations engaged in ratings)? How are they applied? What's the methodology? On which standards did some of the candidates excel more than others? And how so?
Who is applying these standards? That's a big question. WHO exactly is determining these ratings? What are THEIR qualifications to rate candidates for the Court of Appeals? For Judge or Chief Judge. What exactly do THEY know and understand about the work of the Court of Appeals? About the realities of appellate judicial decision-making? Of appellate judicial decision-making at a court of last resort? Who knows????????
AND, like the other bar ratings, there are absolutely no reasons given for the particular rating given each candidate. (Yes, the Women's Bar did offer a line about its recommendation of Lippman. But that was unhelpful and even misleading. [Again, see the last post if interested in more on that.])
If these bar association ratings are going to be so unhelpful and unsupported by any explanation, why bother? And why should anyone take them seriously? Including the Governor. The problem, of course, is that some casual observers and readers do take them seriously as the considered judgement of respected organizations. Unfortunately, like the Wizard of Oz, there seems very little to take seriously behind the curtain. Or at least nothing that the bar groups are revealing.
So why even bother?
[In the next post, I'll stick my own neck out and give my own ratings. In my own way, using my personal--but candid--criteria.]
Sunday, January 4, 2009
New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selection & Bar Ratings Games)
Various bar associations have now reported their evaluations of the 7 Chief Judge candidates. These followed on the heels of the Nominating Commission's supplemental letter and "report" to the Governor about the efforts it undertook to obtain recommendations and applications for the Chief Judge vacancy, and about the qualifications of the 7 applicants who made its list. (For previous discussions on the New York Court Watcher about the Commission's list and the Governor's initial reaction, 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.) Each of these reports merits some comment.
Let's begin with the Commission's public missive to the Governor on December 17. (The Commission's letter and supplemental report are available at: http://www.nylawyer.com/adgifs/decisions/121808nominees.pdf.) This was a response to the Guv's criticism of the Commission for its failure to produce a more diverse list of Chief Judge candidates. The Commission's Chair, Elmira attorney John O'Mara (who is one of two holdover Pataki appointees on the 12 member Commission), made clear the Commission's outreach to obtain recommendations and applications--as opposed to simply waiting for applications to review. As O'Mara put it:
As an addendum to the letter, the Commission offered a more detailed explanation than it had originally given of the qualifications of the 7 applicants who made the list. Besides the boilerplate--i.e., this applicant was found to be "well qualified based on character, temperament," blah, blah, blah--this supplemental "report" elaborates on each of the 7 candidates' education, career experience, and achievements.
This may not be the more extensive report which many, myself included, would like to see explaining the Commission's selections, but it is certainly more extensive than past reports have been. Indeed, these reports do give some pretty clear indication of what it was in each of the candidates' backgrounds that the Commission deemed to particularly well-qualifying for the position of Chief Judge. (Previous posts in this series have discussed the role of the Commission in identifying potential Court of Appeals candidates and the Commission’s “report” to the Governor. 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, and (Part 1), Dec. 3, 2008.) I for one thought the Commission's letter and supplemental report represented very welcome indications of the Commission's moving toward a role of more actively searching for highly qualified Court of Appeals candidates, as well as toward a more helpful report in understanding the choices it has made for its lists.
Now for the bar association ratings.
The State Bar Association rated all 7 on the Commission's list "well qualified," except for Albany Attorney George Carpinello. Because there is no indication why Carpinello was deemed less distinguished than the other 6, we can only speculate as to what comparative weakness was found in his "background, experience and temperament"--the 3 factors mentioned in the association's letter to the Governor.
Maybe it's Carpinello's lack of judicial experience. But that would also eliminate New York city attorneys Evan Davis and Peter Zimroth. Maybe it's his not being editor-in-chief of his law school's law review. But that would eliminate everyone on the list BUT Davis and Zimroth. And, in any event, he was in fact an editor of the Yale Law Journal--no mean achievement. It can't be his education--i.e., Princeton (magna cum laude and Phi Beta Kappa) and Yale Law (again, a Yale Law Journal editor). It can't be a lacking of intellectual aptitude or knowledge of the law--he was a law professor and he chairs the state advisory committe on civil practice. It can't be his lack of practical experience--he is prominent attorney and litigator, he was a law clerk to a federal judge, and he's actually argued before the Court of Appeals. Maybe it's Carpinello's temperament. Beats me. Maybe the Bar association disagreed with the Nominating Commission on some other particular point. Who knows.
Or maybe the Bar Association is anti-Italian. Of course, that's probably as silly as the Bar Association singling Carpinello out with a low rating.
Then there's the Women's Bar Association of the State of New York. It "approved" all 7 on the list. (Guess Carpinello did nothing to upset them.) But the Women's Bar singled out Appellate Division Justice Jonathan Lippman for its recommendation because of his "superlative qualifications"--which, apparently, the other 6 lacked. Elaborating, the Women's Bar mentioned Lippman's "extensive administrative and judicial experience" and his "innovative solutions for...administrative and judicial issues," as well as his "support of women in the law."
As for that last factor, is the suggestion that some others on the list don't support women in the law? If so, who? They shouldn't be on the list at all. Or maybe the suggestion is that some on the list don't support women as much as him. They probably shouldn't be on the list either. In any event, we're not told what the intended implications and contrasts to be drawn from this statement are. So I'll presume that this is a very positive attribute of Lippman that is most likely shared by others on the list. But maybe the other named qualities actually distinguish him from the rest.
The easiest is "extensive judicial experience." Actually, Lippman has much less judicial experience than others on the list. He has been a judge engaged in judging (as opposed to purely administrative matters) for about 3 years. (As best as can be determined from several official sources, which are somewhat murky on this point, he began engaging in judicial decision-making on state supreme court in Westchester County in the latter part of 2005. His first opinion found on Westlaw, after several searches, was in November 2005. Prior to that time, Lippman was officially a judge, but he was involved in judicial administration.) By contrast, Appellate Division Justice Steven Fisher has been a judge--engaged in judging--since 1983; that's 25 years. Court of Appeals Judge Theodore Jones has been judging since 1990; that's 17 years. Court of Appeals Judge Eugene Pigott since 1997; 10 years.
What about judging at the appellate level? Lippman was appointed to the Appellate Division in May 2007. His first published opinion--again found on Westlaw--was in January 2008. So he's been engaged in appellate judging for about 1 and 1/2 years. Fisher's been on the Appellate Division since May 2004; 4 and 1/2 years. Jones has been an appellate judge since February 2007; that's just a bit longer than Lippman. But it has been on the Court of Appeals. Pigott has been an appellate judge since his appointment to the Appellate Division in 1998; that's over 10 years. And more than 2 years of that has been on the Court of Appeals. Sooooo, it's not judging or appellate judging experience that separates Lippman from others on the list.
[2 points should be made. 1) Nothing here is intended to suggest that Lippman's judicial opinions are weak. I've looked at all 28 on Westlaw and, at least on a quick read, they seem quite good. 2) Nor is anything here intended to suggest that judicial experience is somehow a prerequisite to being a great high court judge. It most certainly is not. I only discuss this because the Women's Bar has emphasized judicial experience in its singling out Lippman for recommendation. (On judicial experience as not being a qualification for appointment to the Court of Appeals, see New York Court of Appeals: Memo to the Governor & the Commission, Nov. 17, 2008.)]
What about the Women's Bar's singling out Lippman for "extensive administrative experience" (and "innovative solutions for...administrative and judicial issues," which I gather is part of the same). Well, there's no arguing with that. More than anyone on the list. By far. Indeed, virtualy his entire career has been as a court administrator. Most significantly, as the Deputy Chief Administrator of the entire New York State court system from 1989 to 1995, and then the Chief until his appointment to the Appellate Division in 2007. And the word is that he was pretty darn good.
But--there's always a "but"--what about presiding over a court? Being the top judge of a appellate court, leading colleagues in rendering decisions? Let's not forget, THAT is the primary and most critical function of the Chief Judge. Decision-making and leading a collegial court in decision-making. (See discussion in New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selecting a Great Chief JUDGE), Jan. 2, 2009.) On that score, Lippman has been the Presiding Justice of the Appellate Division, First Department (and been participating in decision-making on that court) since May 2007; around 1 and 1/2 years. Pigott led the Appellate Division, Fourth Department as Presiding Justice from from 2000 till his appointment to the Court of Appeals in 2006; over 6 years. (Fisher was the Administrative Judge for state supreme court in Queens County--overseeing the operation of that behemoth. To be sure, that is not the same kind of leadership as being PJ of the Appellate Division, nor is it the same as being the chief administrator of the entire state system, but it does have its own challenges which require considerable administrative ability to do well.)
The point here being that the next Chief Judge will have a Chief Administrative Judge--just like Chief Judge Kaye had Lippman. But the Chief Judge will only have himself to preside over the Court of Appeals itself, and to preside over the more-important-than-all-else decision-making. And on that score, Lippman's "extensive administrative experience" is not as "extensive" as Pigott's. Indeed, it's not "extensive" at all.
Before ending this post--we'll continue with the New York City Bar Association's [yes, I know, it's the "ABCNY"] ratings next post--let's make this clear. The point of the last few paragraphs is NOT to suggest that Judge Lippman is not qualified to be Chief Judge. Or even well qualified or exquisitely qualified or magnificently qualified. He might well be all that, and there are many who know him who think so.
The point is just that these ratings are sometimes silly. Not because ratings themselves are silly. But because ratings which are not explained by the rating organization, or which are accompanied by unhelpful or superficial or misleading explanations only conceal the real reasons for the ratings. So really why the State Bar gave Carpinello a lower rating than all the others, and really why the Women's Bar gave Lippman a higher rating than all the others, are left unknown. Insiders may know. And rumors--supposedly on inside information--swirl about these things. But the official releases to the Governor and the public explain virtually nothing. They only lead to guessing, instigate rumors, and raise suspicions about what's going on behind those doors when the ratings are decided.
Let's begin with the Commission's public missive to the Governor on December 17. (The Commission's letter and supplemental report are available at: http://www.nylawyer.com/adgifs/decisions/121808nominees.pdf.) This was a response to the Guv's criticism of the Commission for its failure to produce a more diverse list of Chief Judge candidates. The Commission's Chair, Elmira attorney John O'Mara (who is one of two holdover Pataki appointees on the 12 member Commission), made clear the Commission's outreach to obtain recommendations and applications--as opposed to simply waiting for applications to review. As O'Mara put it:
[Commission staff] encouraged applications from dozens of potential candidates from a wide range of backgrounds, including college and law school deans, professors, state solicitor generals, former prosecutors, in-house counsel and prominent attorneys in private practice....As a result of these efforts, this Chief Judge vacancy was one of the most widely publicized and discussed in the history of the Commission.In short, we made efforts to obtain a diverse pool of applicants. Any lacking in that regards is the result of other factors, not our lack of trying.
As an addendum to the letter, the Commission offered a more detailed explanation than it had originally given of the qualifications of the 7 applicants who made the list. Besides the boilerplate--i.e., this applicant was found to be "well qualified based on character, temperament," blah, blah, blah--this supplemental "report" elaborates on each of the 7 candidates' education, career experience, and achievements.
This may not be the more extensive report which many, myself included, would like to see explaining the Commission's selections, but it is certainly more extensive than past reports have been. Indeed, these reports do give some pretty clear indication of what it was in each of the candidates' backgrounds that the Commission deemed to particularly well-qualifying for the position of Chief Judge. (Previous posts in this series have discussed the role of the Commission in identifying potential Court of Appeals candidates and the Commission’s “report” to the Governor. 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, and (Part 1), Dec. 3, 2008.) I for one thought the Commission's letter and supplemental report represented very welcome indications of the Commission's moving toward a role of more actively searching for highly qualified Court of Appeals candidates, as well as toward a more helpful report in understanding the choices it has made for its lists.
Now for the bar association ratings.
The State Bar Association rated all 7 on the Commission's list "well qualified," except for Albany Attorney George Carpinello. Because there is no indication why Carpinello was deemed less distinguished than the other 6, we can only speculate as to what comparative weakness was found in his "background, experience and temperament"--the 3 factors mentioned in the association's letter to the Governor.
Maybe it's Carpinello's lack of judicial experience. But that would also eliminate New York city attorneys Evan Davis and Peter Zimroth. Maybe it's his not being editor-in-chief of his law school's law review. But that would eliminate everyone on the list BUT Davis and Zimroth. And, in any event, he was in fact an editor of the Yale Law Journal--no mean achievement. It can't be his education--i.e., Princeton (magna cum laude and Phi Beta Kappa) and Yale Law (again, a Yale Law Journal editor). It can't be a lacking of intellectual aptitude or knowledge of the law--he was a law professor and he chairs the state advisory committe on civil practice. It can't be his lack of practical experience--he is prominent attorney and litigator, he was a law clerk to a federal judge, and he's actually argued before the Court of Appeals. Maybe it's Carpinello's temperament. Beats me. Maybe the Bar association disagreed with the Nominating Commission on some other particular point. Who knows.
Or maybe the Bar Association is anti-Italian. Of course, that's probably as silly as the Bar Association singling Carpinello out with a low rating.
Then there's the Women's Bar Association of the State of New York. It "approved" all 7 on the list. (Guess Carpinello did nothing to upset them.) But the Women's Bar singled out Appellate Division Justice Jonathan Lippman for its recommendation because of his "superlative qualifications"--which, apparently, the other 6 lacked. Elaborating, the Women's Bar mentioned Lippman's "extensive administrative and judicial experience" and his "innovative solutions for...administrative and judicial issues," as well as his "support of women in the law."
As for that last factor, is the suggestion that some others on the list don't support women in the law? If so, who? They shouldn't be on the list at all. Or maybe the suggestion is that some on the list don't support women as much as him. They probably shouldn't be on the list either. In any event, we're not told what the intended implications and contrasts to be drawn from this statement are. So I'll presume that this is a very positive attribute of Lippman that is most likely shared by others on the list. But maybe the other named qualities actually distinguish him from the rest.
The easiest is "extensive judicial experience." Actually, Lippman has much less judicial experience than others on the list. He has been a judge engaged in judging (as opposed to purely administrative matters) for about 3 years. (As best as can be determined from several official sources, which are somewhat murky on this point, he began engaging in judicial decision-making on state supreme court in Westchester County in the latter part of 2005. His first opinion found on Westlaw, after several searches, was in November 2005. Prior to that time, Lippman was officially a judge, but he was involved in judicial administration.) By contrast, Appellate Division Justice Steven Fisher has been a judge--engaged in judging--since 1983; that's 25 years. Court of Appeals Judge Theodore Jones has been judging since 1990; that's 17 years. Court of Appeals Judge Eugene Pigott since 1997; 10 years.
What about judging at the appellate level? Lippman was appointed to the Appellate Division in May 2007. His first published opinion--again found on Westlaw--was in January 2008. So he's been engaged in appellate judging for about 1 and 1/2 years. Fisher's been on the Appellate Division since May 2004; 4 and 1/2 years. Jones has been an appellate judge since February 2007; that's just a bit longer than Lippman. But it has been on the Court of Appeals. Pigott has been an appellate judge since his appointment to the Appellate Division in 1998; that's over 10 years. And more than 2 years of that has been on the Court of Appeals. Sooooo, it's not judging or appellate judging experience that separates Lippman from others on the list.
[2 points should be made. 1) Nothing here is intended to suggest that Lippman's judicial opinions are weak. I've looked at all 28 on Westlaw and, at least on a quick read, they seem quite good. 2) Nor is anything here intended to suggest that judicial experience is somehow a prerequisite to being a great high court judge. It most certainly is not. I only discuss this because the Women's Bar has emphasized judicial experience in its singling out Lippman for recommendation. (On judicial experience as not being a qualification for appointment to the Court of Appeals, see New York Court of Appeals: Memo to the Governor & the Commission, Nov. 17, 2008.)]
What about the Women's Bar's singling out Lippman for "extensive administrative experience" (and "innovative solutions for...administrative and judicial issues," which I gather is part of the same). Well, there's no arguing with that. More than anyone on the list. By far. Indeed, virtualy his entire career has been as a court administrator. Most significantly, as the Deputy Chief Administrator of the entire New York State court system from 1989 to 1995, and then the Chief until his appointment to the Appellate Division in 2007. And the word is that he was pretty darn good.
But--there's always a "but"--what about presiding over a court? Being the top judge of a appellate court, leading colleagues in rendering decisions? Let's not forget, THAT is the primary and most critical function of the Chief Judge. Decision-making and leading a collegial court in decision-making. (See discussion in New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selecting a Great Chief JUDGE), Jan. 2, 2009.) On that score, Lippman has been the Presiding Justice of the Appellate Division, First Department (and been participating in decision-making on that court) since May 2007; around 1 and 1/2 years. Pigott led the Appellate Division, Fourth Department as Presiding Justice from from 2000 till his appointment to the Court of Appeals in 2006; over 6 years. (Fisher was the Administrative Judge for state supreme court in Queens County--overseeing the operation of that behemoth. To be sure, that is not the same kind of leadership as being PJ of the Appellate Division, nor is it the same as being the chief administrator of the entire state system, but it does have its own challenges which require considerable administrative ability to do well.)
The point here being that the next Chief Judge will have a Chief Administrative Judge--just like Chief Judge Kaye had Lippman. But the Chief Judge will only have himself to preside over the Court of Appeals itself, and to preside over the more-important-than-all-else decision-making. And on that score, Lippman's "extensive administrative experience" is not as "extensive" as Pigott's. Indeed, it's not "extensive" at all.
Before ending this post--we'll continue with the New York City Bar Association's [yes, I know, it's the "ABCNY"] ratings next post--let's make this clear. The point of the last few paragraphs is NOT to suggest that Judge Lippman is not qualified to be Chief Judge. Or even well qualified or exquisitely qualified or magnificently qualified. He might well be all that, and there are many who know him who think so.
The point is just that these ratings are sometimes silly. Not because ratings themselves are silly. But because ratings which are not explained by the rating organization, or which are accompanied by unhelpful or superficial or misleading explanations only conceal the real reasons for the ratings. So really why the State Bar gave Carpinello a lower rating than all the others, and really why the Women's Bar gave Lippman a higher rating than all the others, are left unknown. Insiders may know. And rumors--supposedly on inside information--swirl about these things. But the official releases to the Governor and the public explain virtually nothing. They only lead to guessing, instigate rumors, and raise suspicions about what's going on behind those doors when the ratings are decided.
Friday, January 2, 2009
New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selecting a Great Chief JUDGE)
The next Chief Judge should be someone who is, or will be, a great judge. A great JUDGE.
Great Chief Judges are great judges who make great courts. They are judges who lead their courts. They lead their courts to advance the law and thereby help improve life in a free society under the rule of law. Making the law more fair, more wise, better balancing freedom and authority, better reconciling individual and societal interests, better resolving competing interests among the citizens whose lives and conduct it regulates.
Yes, chief judges are also administrators. More than that actually. They are the chief executives of the judicial branch. And a chief judge who is a poor administrator, a poor executive--or a poor delegator of administrative responsibilities--will not likely be successful in advancing initiatives to improve the organization, internal operations, personnel administration, and intergovernmental relations of the judicial branch.
But the primary and most critical function of the judiciary is adjudication. The primary and most critical function of a judge is deciding cases. On a court of last resort such as the Court of Appeals, the primary and most critical function of the judges' is to resolve those legal issues which are the most important. Not to the parties alone, but to society at large. And the primary and most critical function of a chief judge is to lead the court, to lead the judges, in making the fairest and wisest decisions in resolving those legal/societal issues.
A great chief judge must be a great judge and leader, who enjoys the highest professional and personal respect of his/her colleagues. Someone who thus evokes the best from them in collectively rendering the best decisions and who, as a result, creates a great court. A court which is viewed as great, not just by sycophants from the bench and bar and academia, or at official bar functions and graduations, or in official and semi-official publications. But one which is viewed as great by detached observers, by courts elsewhere which are influenced by its decisions, and by the next generation that is much better off because of those decisions.
A chief judge doesn't have to be the most brilliant judge on the court. Doesn't have to be the best judge period. But he/she must be a great enough judge to have the highest respect of even a more brilliant judge. And by dint of that respect as a judge, be able to lead--even that judge. Not administer. Not organize. Not be the comptroller. Not be the executive director. Ok, yes, all that too. But that's secondary at best. The great chief judges are first and foremost great judges.
For example....
Benjamin Cardozo was a great chief judge, and his court a great one. He and his court moved the common law forward, improved the law in so many areas in New York and influenced its development throughout the country. We remember him and his court as among the very best in the nation's history for that reason. He was a great judge who led his court to render great decisions.
Likewise, Irving Lehman was a great chief judge because he was a great judge. Like his predecessor and dear friend Cardozo, Lehman was a legal realist. He understood the role of the judiciary and the nature of judicial decision-making. He too was held in the very highest esteem by his colleagues. New York and the nation are the beneficiaries of his and his court's decisions--freedom of religion and state constitutional law among the notable areas. He was a great judge who led his court to render great decisions.
Stanley Fuld was a great chief judge and his court a great court, because he was a great judge. Perhaps no judge in Court of Appeals history--with the possible exception of Cardozo--influenced so much development in so many areas of the law, and was so admired by both state and federal judges nationwide as he. From employment law, to rights of the accused, to freedom of the press , to conflicts of law, etc., etc., Fuld's opinions advanced the law in New York, influenced its development in other state courts, and even served as guideposts for the United States Supreme Court when it began to protect individual rights vigorously under Chief Justice Earl Warren. Fuld was a great judge who led his court to render great decisions.
Speaking of Chief Justice Warren, what about the great chiefs of the Supreme Court?
Same thing. They're the great judges who lead their courts to render great decisions. And if Earl Warren and his court were too liberal for your taste, let's consider both liberal Warren and conservative William Rehnquist. Both were very strong chief justices because both were very strong judges. They enjoyed the admiration of their colleagues and, thus, were able to lead their courts to render great decisions. [Alright, if you didn't like one of those chief's and his court, let's just call those decisions very consequential.] Warren led his court to render decisions which vigorously--expansively--enforced individual constitutional rights. Rehnquist led his court to render decisions which effectively trimmed what some viewed as excesses of Warren's court. Agree with them or not, both were great chiefs. Even their ideological opposites on their courts thought so. Both these chiefs helped make their courts strong and led them to render consequential (ok?) decisions.
Now the opposite you ask? Let's just consider the chief justice in between Warren and Rehnquist. Warren Burger. Very few would accuse him of having been a strong, let alone great, chief. Very few would regard the court he led as strong, let alone great. The reason? Burger was not a particularly strong judge. He didn't enjoy much respect from his colleagues as a judge. Indeed, he was viewed by his colleagues--as well as by those who studied his court--as among the weakest, if not THE weakest, judge on the court. Not surprisingly, he was unable to lead the court effectively. Unlike the Warren and Rehnquist courts, the Burger court vacillated and waffled and, like its chief, is almost uniformly viewed as having been weak and undistinguished.
And yet, Burger was an active and energetic administrator. He devoted himself to governing the federal judicial branch. He is responsible for countless administrative initiatives. Probably no chief justice since William Howard Taft in the 1920's was more involved and more devoted to judicial administration than Burger. But unlike Taft, because Burger was not a great or even particularly strong judge, he was a weak leader of his court which, in turn, was undistinguished.
Oh, and one more thing about the great chiefs. Warren and Rehnquist and their courts are known and will be remembered because of their decisions. Not because of administration. Ask anyone who thinks that Warren and his court were great. Not one will say because Warren was a great administrator of the federal judicial branch. Same for Rehnquist.
And the same in New York judicial history. Ask anyone about Cardozo and his court. Lehman and his. Fuld and his. No one will say those chief judges were great because they were great administrators.
Great Chief Judges are great judges who make great courts. They are judges who lead their courts. They lead their courts to advance the law and thereby help improve life in a free society under the rule of law. Making the law more fair, more wise, better balancing freedom and authority, better reconciling individual and societal interests, better resolving competing interests among the citizens whose lives and conduct it regulates.
Yes, chief judges are also administrators. More than that actually. They are the chief executives of the judicial branch. And a chief judge who is a poor administrator, a poor executive--or a poor delegator of administrative responsibilities--will not likely be successful in advancing initiatives to improve the organization, internal operations, personnel administration, and intergovernmental relations of the judicial branch.
But the primary and most critical function of the judiciary is adjudication. The primary and most critical function of a judge is deciding cases. On a court of last resort such as the Court of Appeals, the primary and most critical function of the judges' is to resolve those legal issues which are the most important. Not to the parties alone, but to society at large. And the primary and most critical function of a chief judge is to lead the court, to lead the judges, in making the fairest and wisest decisions in resolving those legal/societal issues.
A great chief judge must be a great judge and leader, who enjoys the highest professional and personal respect of his/her colleagues. Someone who thus evokes the best from them in collectively rendering the best decisions and who, as a result, creates a great court. A court which is viewed as great, not just by sycophants from the bench and bar and academia, or at official bar functions and graduations, or in official and semi-official publications. But one which is viewed as great by detached observers, by courts elsewhere which are influenced by its decisions, and by the next generation that is much better off because of those decisions.
A chief judge doesn't have to be the most brilliant judge on the court. Doesn't have to be the best judge period. But he/she must be a great enough judge to have the highest respect of even a more brilliant judge. And by dint of that respect as a judge, be able to lead--even that judge. Not administer. Not organize. Not be the comptroller. Not be the executive director. Ok, yes, all that too. But that's secondary at best. The great chief judges are first and foremost great judges.
For example....
Benjamin Cardozo was a great chief judge, and his court a great one. He and his court moved the common law forward, improved the law in so many areas in New York and influenced its development throughout the country. We remember him and his court as among the very best in the nation's history for that reason. He was a great judge who led his court to render great decisions.
Likewise, Irving Lehman was a great chief judge because he was a great judge. Like his predecessor and dear friend Cardozo, Lehman was a legal realist. He understood the role of the judiciary and the nature of judicial decision-making. He too was held in the very highest esteem by his colleagues. New York and the nation are the beneficiaries of his and his court's decisions--freedom of religion and state constitutional law among the notable areas. He was a great judge who led his court to render great decisions.
Stanley Fuld was a great chief judge and his court a great court, because he was a great judge. Perhaps no judge in Court of Appeals history--with the possible exception of Cardozo--influenced so much development in so many areas of the law, and was so admired by both state and federal judges nationwide as he. From employment law, to rights of the accused, to freedom of the press , to conflicts of law, etc., etc., Fuld's opinions advanced the law in New York, influenced its development in other state courts, and even served as guideposts for the United States Supreme Court when it began to protect individual rights vigorously under Chief Justice Earl Warren. Fuld was a great judge who led his court to render great decisions.
Speaking of Chief Justice Warren, what about the great chiefs of the Supreme Court?
Same thing. They're the great judges who lead their courts to render great decisions. And if Earl Warren and his court were too liberal for your taste, let's consider both liberal Warren and conservative William Rehnquist. Both were very strong chief justices because both were very strong judges. They enjoyed the admiration of their colleagues and, thus, were able to lead their courts to render great decisions. [Alright, if you didn't like one of those chief's and his court, let's just call those decisions very consequential.] Warren led his court to render decisions which vigorously--expansively--enforced individual constitutional rights. Rehnquist led his court to render decisions which effectively trimmed what some viewed as excesses of Warren's court. Agree with them or not, both were great chiefs. Even their ideological opposites on their courts thought so. Both these chiefs helped make their courts strong and led them to render consequential (ok?) decisions.
Now the opposite you ask? Let's just consider the chief justice in between Warren and Rehnquist. Warren Burger. Very few would accuse him of having been a strong, let alone great, chief. Very few would regard the court he led as strong, let alone great. The reason? Burger was not a particularly strong judge. He didn't enjoy much respect from his colleagues as a judge. Indeed, he was viewed by his colleagues--as well as by those who studied his court--as among the weakest, if not THE weakest, judge on the court. Not surprisingly, he was unable to lead the court effectively. Unlike the Warren and Rehnquist courts, the Burger court vacillated and waffled and, like its chief, is almost uniformly viewed as having been weak and undistinguished.
And yet, Burger was an active and energetic administrator. He devoted himself to governing the federal judicial branch. He is responsible for countless administrative initiatives. Probably no chief justice since William Howard Taft in the 1920's was more involved and more devoted to judicial administration than Burger. But unlike Taft, because Burger was not a great or even particularly strong judge, he was a weak leader of his court which, in turn, was undistinguished.
Oh, and one more thing about the great chiefs. Warren and Rehnquist and their courts are known and will be remembered because of their decisions. Not because of administration. Ask anyone who thinks that Warren and his court were great. Not one will say because Warren was a great administrator of the federal judicial branch. Same for Rehnquist.
And the same in New York judicial history. Ask anyone about Cardozo and his court. Lehman and his. Fuld and his. No one will say those chief judges were great because they were great administrators.
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