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.