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.