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: 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.