Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 2)

Yesterday's post on the New York Court Watcher looked at Justice Ruth Bader Ginsburg's ideological voting record in the "defining decisions" of the Court's last term. It outlined and graphed how she voted--and how her voting compared with that of her colleagues. Her record was viewed for the 15 cases taken as a whole, as well as for each of 4 categories of cases within that total: anti-discrimination, cultural issues, law and order, and political process. (See Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part I), Feb. 22, 2009.)

In this 2d part of our focus on Ginsburg, we'll take a look how frequently Ginsburg has been in the Court's majority, and how frequently she has taken a position at odds with that adopted by the Court. In short, the frequency with which she has been on the winning and losing sides of the Court's decisions.

First, how often has Ginsburg been part of the Court's majority? Graph 1 shows the number of "defining decisions" in which the Court adopted the same position that Ginsburg voted for, and for comparison purposes, it shows the same for each of her colleagues.

GRAPH 1: Justice Ginsburg
Frequency in Majority (#)
(click to enlarge)

As Graph 1 makes clear, Ginsburg has not been part of the Court's majority nearly as often as many of her colleagues. She has voted with the majority considerably less, for example, than Justices Anthony Kennedy and John Paul Stevens and Chief Justice John Roberts. Placing Ginsburg's record among those of the other Justices, in order of frequency in the Court's majority, underscores the extent to which Ginsburg has typically not been part of the Court's governing coalition. This is depicted in the next graph.

GRAPH 2: Justice Ginsburg
Frequency in Majority (#)
(In Order of Frequency)
(click to enlarge)

As shown in this graph, 5 Justices were in the majority--on the winning side of the Court's decisions--more frequently than Ginsburg. In fact, she was among 3 Justices (Antonin Scalia and David Souter, in addition to herself) who were on the losing side of the Court's decisions more frequently than the others, except for Clarence Thomas. Ginsburg's majority record contrasts most starkly with that of Justice Kennedy, who was on the Court's winning side in every one of the "defining decisions." That's not surprising inasmuch as Kennedy has been the Court's swing vote--especially since the departure of Justice Sandra Day O'Connor--and, thus, has pretty reliably been the determining factor in the close cases. But Ginsburg's majority record also pales in comparison with that of 3 other Justices: Roberts, Stevens, and Alito. (For more discussion on the Justices' majority voting records, see Supreme Court: Justices In The Majority (Part 2--And Compared to In Dissent), Dec. 17, 2008; and Supreme Court: Justices In The Majority, Dec. 8, 2008.)

Looking at the flip side of this--i.e., looking at the dissent records of Ginsburg and her colleagues--provides another perspective. Same data, different view. It underscores how frequently Ginsburg opposed the Court's decisions, and how her record in that regard compares with that of her colleagues. Take a look.

GRAPH 3: Justice Ginsburg
Frequency in Dissent (#)
(click to enlarge)

As depicted in Graph 3, only Justice Thomas opposed the Court's decisions more frequently than Ginsburg. Only he was on the losing side in more of the cases than she. Her dissent record, together with that of Justices Scalia and Souter, was the Court's highest--again, except for Thomas's. Clearly, she was on the losing side of the "defining decisions" much more often (twice or more, in fact) than Justices Kennedy, Steven, Alito, and Chief Justice Roberts. (For more discussion on the Justices' dissent voting records, see Supreme Court: Justices In The Majority (Part 3--In Dissent Over What?) , Dec. 20, 2008.)

Let's put all this together--majority and dissent records, Ginsburg and her colleagues--and do so in rates, i.e., percentages. It's a picture that says an awful lot about Ginsburg and her colleagues, and about who has typically been part of the Court's winning coalition and who hasn't been.

GRAPH 4: Justice Ginsburg
Frequency in Dissent/Majority (%)
(click to enlarge)

Compare Ginsburg's record to Kennedy's and to Thomas's. Kennedy has clearly been winning, or at least he's been voting on the winning side of the Court's decisions. Indeed, in 100% of the "defining decisions." Ginsburg, by sharp contrast, has been winning, or voting that way, much less frequently. The flip side is that while Kennedy was never in dissent in these cases, Ginsburg was quite frequently. 40% of the time.

On the other hand, Ginsburg's majority/dissent record is close to that of her ideological opposite on the Court, Thomas. Her relatively low rate in the majority and high rate in dissent are not much different than his. Thomas's majority/dissent record is at the opposite end of the Court's spectrum from Kennedy's, and Ginsburg's record resembles Thomas's much more than it does Kennedy's. Indeed, the only Justice on the Court with a lower majority rate and higher dissent rate than Ginsburg is Thomas. And her majority rate is not much higher-- her dissent rate not much lower--than his.

In the next post, we'll take a look at how frequently, or infrequently, Ginsburg voted on the same side with each of her colleagues. In short, which Justices have been her usual allies, and which her usual adversaries.

Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part I)

With Justice Ruth Bader Ginsburg battling cancer for the second time in several years, thoughts naturally go to the possibility of her leaving the Court. More than that, what would the Court be losing if she left? What has her record been? How has she sided on the issues? Which Justices has she been aligned with? Which Justices has she opposed? How frequently has she been on the winning side? How often has she taken issue with the majority? In short, how has she been voting, and where does it place her within the Court?

A series of posts on the New York Court Watcher has been examining the record of the Court and of the individual Justices in the "defining decisions" of the Court's last term--i.e., Fall '07 to Spring '08. As explained previously, these are 15 particularly revealing decisions from last term. (For a discussion of these decisions, see Supreme Court's 2007-08 Term: The Defining Decisions (Intro), September 11, 2008, as well as 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.)

In this post, the first of 2 parts (or maybe 3), we'll look at Ginsburg's record in these "defining decisions." Her record is pretty clear. Where she stands on the issues and where she fits within the Court is pretty straightforward.

First, on the 15 "defining decisions" as a whole, the following graph depicts her "liberal/conservative" voting record, and her position within the Court's ideological spectrum. Specifically, it depicts the frequency--in terms of percentage of the 15 cases--in which Ginsburg and each of her colleagues voted for the liberal and conservative positions respectively.

GRAPH 1: Justice Ginsburg
Discrimination + Cultural Issues + Law & Order + Political Process Decisions
(click to enlarge)

As is plain from Graph 1, Ginsburg's voting record is considerably more liberal than that of the Court as a whole (i.e., the Court's decisional record) and, in fact, considerably more liberal than the records of most of her colleagues. Justice David Souter's voting was the closest to hers, followed by Justices Stephen Breyer and John Paul Stevens. Together, those 4 comprise the Court's liberal wing. Ginsburg's record places her well within that wing and, indeed, at its most liberal end. Viewed from a different perspective, her record is the diametrical opposite of that of Justices Clarence Thomas and Antonin Scalia, who are at the most conservative end of the Court's ideological spectrum. (For more discussion on the records of all the Justices in the "defining decisions" as a whole, see GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008.)

Not surprisingly--almost, necessarily--Ginsburg's record in each of the 4 different categories within the "defining decisions" is also quite liberal. The first category, anti-discrimination cases (i.e., cases in which the Court resolved a claim of some form of illegal discrimination), there were 4 decisions. The following graph depicts how Ginsburg and each of her colleagues voted. Specifically, it depicts the number of cases, out of the 4, in which Ginsburg and each of her colleagues took the liberal and conservative positions, respectively (i.e., voted in favor or against the party complaining of discrimination.)

GRAPH 2: Justice Ginsburg
(Anti-)Discrimination Decisions

(click to enlarge)

As shown in Graph 2, Ginsburg sided with the discrimination claimant in all of the 4 cases. She was joined by most of her colleagues. Her anti-discrimination voting record does, however, distinguish her most strikingly from Thomas and Scalia. While she always voted to sustain the discrimination claim, they never did. (For more discussion on these anti-discrimination cases and the Justices' voting, see Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination), September 16, 2008.)

In the "cultural issues" cases, Ginsburg's record was similarly 100% liberal. Whether guns, the death penalty, Gitmo detainees or the other issues which the Court confronted in these 5 "defining decisions," Ginsburg took the position favored by political liberals each time.

GRAPH 3: Justice Ginsburg
Cultural Issues Decisions

(click to enlarge)

While Souter voted with Ginsburg every time, and Breyer nearly so, her diametrical opposites again were Thomas and Scalia. She and they took the opposing positions in each of the 5 cases. Her position on these "cultural issues" was also opposed by Chief Justice John Roberts and Justice Samuel Alito to virtually the same extent. (For a fuller discussion on these "cultural issues" cases and the Justices' voting, see Supreme Court's 2007-08 Term: The Defining Decisions (Part 2: Cultural Issues), Sept. 20, 2008.)

In the "law and "order" cases, Ginsburg again had the Court's most liberal voting record. There were 6 cases in this category: 1 was also an anti-discrimination case (race-based jury selection), 2 were also "cultural issues" cases (death penalty cases), and 3 were exclusive to law and order.

GRAPH 4: Justice Ginsburg
Law & Order Decisions

(click to enlarge)

As depicted in Graph 4, Ginsburg sided with the accused, voting for the position more favorable to the rights of the accused, more frequently than any of her colleagues. She did so in every case but one. And in that case, she actually took issue with the position adopted by the Court and, in a separate concurring opinion, argued for one that was less pro-prosecution. Souter's voting record was, again, most similar to hers. Thomas's 100% pro-prosecution record was at the Court's opposite extreme from Ginsburg's. Alito's, Scalia's, and Roberts's records, though slightly less pro-prosecution than Thomas's, were also at the opposite end of the Court's spectrum from Ginsburg. (For more discussion of these "law and order" cases and the Justices' voting, see Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 14, 2008.)

In the 3 "political process" cases (campaign spending, judicial selection, and voter ID), Ginsburg shared the Court's most liberal record with Souter and Breyer. In 2 of those cases (campaign spending and voter ID), she voted for the politically liberal position.

GRAPH 5: Justice Ginsburg
Political Process Decisions

(click to enlarge)

As shown in Graph 5, Ginsburg's record contrasted most sharply with that of Thomas, Alito and Scalia. She voted the opposite of them in 2 of the 3 cases. They had taken the politically conservative position in all 3 cases. (For more discussion on the "political process" cases and the Justices' voting, see Supreme Court's 2007-08 Term: The Defining Decisions (Part 4: Political Process), Nov. 8, 2008.)

Now let's add up all the cases--all the "defining decisions." Here's how Ginsburg's cumulative voting record in the 15 cases looks, and how her record contrasts with that of her colleagues and the Court's decisional record.

GRAPH 6: Justice Ginsburg's Record
Voting Record in 15 "Defining Decisions"
(click to enlarge)

Again--hopefully the repetition has not become ad nauseam--Ginsburg's voting record is the most liberal on the Court. It is not as liberal as Thomas's or Scalia's are conservative. But like those two, her record places her at one end of the Court's ideological spectrum. As her voting in the 15 "defining decisions" cases strongly suggests--both in total and in the 4 individual categories of cases--she has simply been the most consistent liberal on the Court.

If Ginsburg's medical condition should cause her to leave the Court [Every decent human being, of course, hopes that she recuperates fully and does well for a long long time.], it will have lost its most reliable liberal vote. It's most consistent vote on the opposite side of the Court's political spectrum from Thomas and Scalia--as well as their frequent allies, Roberts and Alito. The vote most often taking issue with the Court's generally politically conservative jurisprudence.

Presumably, if President Obama had to replace Ginsburg, he would choose an appointee with liberal bona fides. He's not going to appoint a conservative. Anything is possible, but that is most unlikely. On the other hand, there is no guarantee that his appointee would remain a liberal on the Court. Presidents have been known to be mightily disappointed--even fooled. (See Bush 41 appointing Souter.)

So nothing is a sure bet. But one thing is pretty sure. Ginsburg has a track record. It's liberal. There is no indication she is changing. Indeed, there is every indication that her voting is pretty liberal across the board and can be counted on to be so in most "hot button," controversial, ideologically and politically charged cases. That may be a good or bad thing depending on the beholder's own ideological and political perspective. But as long as Ginsburg remains on the Court, it is a pretty clear and reliable thing.

In the next post, we'll look at Ginsburg's voting alignments among the Justices and her frequency in the Court's majority and dissent.

New York Court of Appeals: Chief Judge Lippman's Senate Confirmation and Press Reviews

As most readers of this blog would know, Jonathan Lippman was confirmed yesterday.

Yes, the State Senate confirmed Governor Patterson's nominee to be Chief Judge. The vote was unanimous. That vote immediately followed a hearing of the Senate's Judiciary Committee. The vote there, to recommend confirmation, was also unanimous. There actually were some abstentions. But they were a protest against the Judicial Nominating Commission for presenting the Governor with an all-male list of nominees, not against Lippman. So all the Senators who voted--Republican as well as Democrat, conservative as well as liberal as well as something in between or beyond--voted for Lippman. Not a single nay.

How bi-partisan. How harmonious. How devoid of politics. How nice. How utterly worthless. Not Lippman being confirmed. But the Senate and its process.

No purpose was served but to rubber stamp the Governor's choice for top judge. No light was shone on that choice. Nothing of substance was learned about Lippman's qualifications to serve on the state's highest court and to resolve the complicated, contentious, consequential cases that come before it. Nothing of substance about his qualifications to sit in the court's center seat and lead the court's other judges in deciding those cases. Nothing about his experience with such cases. Judging them. Litigating them. Studying them.

There were assertions from various Senators about Lippman being an exceptional judge who would make an exceptional Chief Judge. But based on what? If the Senators had good reason to believe that Lippman was a great choice for the Court of Appeals--in deciding the difficult legal-societal questions that come before the court and in leading the other judges in making those decisions--it was not clear at all what the reason or reasons might be. Indeed, there was little reason to think they had any reason.

Where was the scrutiny of Lippman's judicial record? It's thin, but it's something. Where was the discussion about that record? Questioning about that record? Discussion or questioning about it being thin? About why that does or does not matter? Any discussion, questioning or--God forbid--some actual debate about what that record is, what it shows, whether it's good or bad, strong or weak, wise or foolish, commendable or dubious, and why? Anything at all?

It would not have been too too difficult to explore his judicial record. The ground work was already done. In fact, previous posts on the New York Court Watcher laid out much of it. (See New York Court of Appeals: The New Chief's Judicial Record (Part 3: His Civil Opinions), Feb. 8, 2009, and (Part 2: His Criminal Opinions), Jan. 28, 2009.) And there surely must have been other sources for the Senators to consult as well. Even if the staffers were asked simply to make copies of the opinions cited in the previous posts on this blog and to prepare an outline for their Senators, it would have been obvious that there was much to discuss and to question. To discuss among themselves, with Lippman himself, with the witnesses. To question Lippman, the witnesses, others. To debate among themselves.

Is it incompetence? Ignorance? Indifference? Don't any of the Senator's want to know Lippman's judicial philosophy? Don't any of them want to know his views on judicial activism versus restraint? Strict versus loose construction? Originalism versus the necessities of the time? His views on constitutional principles? Judicial federalism? Statutory analysis? The Court of Appeals Judges in history that he's most fond of and why? Same for Supreme Court Justices? And same for the decisions of those two courts?

Is it possible that the Senators would not want to know, for example, what Lippman thinks of the jurisprudence of the now-deceased Court of Appeals Judge Vito Titone--probably the most liberal judge in modern Court of Appeals history? Is it possible that their own assessments of Lippman would not be affected by his answer? Same for what Lippman thinks about the jurisprudence of the now-deceased Supreme Court Chief Justice William Rehnquist--a very conservative jurist. Again, is it possible that their own assessment of Lippman would not be affected by his answer.

What about Lippman's views on controversial Supreme Court decisions such as Roe v. Wade? Miranda? decisions on affirmative action? free exercise of religion? the exclusionary rule? What about similarly controversial Court of Appeals decisions such as Hernandez v. Robles (no same sex marriage)? Catholic Charities (narrowing the state's protection of free exercise of religion)? decisions breaking with conservative Supreme Court rulings in criminal cases? and in free speech and press? What about the very role of the Court of Appeals in New York government and in the American federal system?

But no discussion by the Senators. No such questioning of Lippman. Not even of the witnesses.

Oh, and the witnesses. Court of Appeals Judges Carmen Ciparick and Theodore Jones, former Appellate Division Justice Gail Prudenti, and State Bar Association President Bernice Lieber. Wonderful people all. But does anyone seriously believe that any of them would give a brutally candid assessment of Lippman's qualifications to be on the Court of Appeals and to be its Chief? Could anyone expect anything but glowing reviews from those individuals? What's the possibility, for example, that a Judge on the Court of Appeals who would be working under Lippman's leadership would say anything to the Senators--anything whatsoever--except that Lippman is wonderful and wonderfully qualified? That's not a close one folks! And the same for another member of the judicial club from the Appellate Division. And the President of the State Bar! Come on. What could she possibly say about someone about to become Chief Judge?

So all that is nice. But it contributes not a wit to candidly examining the Lippman nomination. And not much more than a wit to deciding how to vote on the actual merits of the nomination.

Yes, there was another witness. A negative witness actually. But she is well known for believing that most if not all of New York judges are hopelessly corrupt. And whatever she offered was easy for the Senators to disregard.

So the Senate Judiciary confirmation hearing was worthless. Ok, they did conduct a vote. And the same for the entire Senate. Make no mistake, this was not a serious exercise in governance. Again, out of either incompetence, ignorance, or indifference, the Senate performed its "advise and consent" role in a pathetically indolent and useless fashion.

And for all the Senators who had little clue about Lippman, and who sought and received little from the committee hearing or the full Senate session, but voted for confirmation anyway, just one more thing. If Lippman turns out to be a Court of Appeals Judge who "coddles criminals"--a favorite refrain of conservative Republicans about liberal judges--you conservative Senators have no right to complain. You utterly failed to examine his record or to question him about any relevant matters. So if he favors the rights of the accused over law and order, or if he turns out to favor plaintiffs' right to sue over stemming the "litigation explosion," you lost your chance to find out before it was too late. Before you voted to confirm him anyway.

And for you liberal Senators, likewise. If Lippman turns out to favor crime control a bit too much over due process, or if he turns out to favor judicial tort reform by discouraging lawsuits with legal technicalities, you have no right to complain. You too voted to confirm him without demanding to know more about him or from him.

Same-sex marriage. Child custody. Equal protection. Search and seizure. Right to counsel. Interrogations. Public education funding. Executive and legislative powers. Freedom of religion. Of the press. Municipal liability. Right to die. Right to choose. Etc, etc., etc. Senators, you had your chance to examine Lippman's record and question him. If not about specific issues, then about the legal, judicial and constitutional principles that he would and would not apply in deciding such issues. But you didn't. Utter failure.

Let me make clear that this is not a rant against now-Chief Judge Lippman. Indeed, I would have voted for him. And I certainly wish him well. Wish he turns out to be the best Chief Judge New York's ever had. This is a heartfelt, frustrated criticism of the State Senate's confirmation process. It is utterly flawed. It is an utter waste of time and of taxpayer dollars. It is an utter abdication of the constitutional role of the Senate as a full participant in the selection of Judges for our highest court.

The Senate Judiciary Committee has been holding hearings on the perceived failures of the Judicial Nominating Commission in the Court of Appeals selection process. It ought to have hearings to examine its own utter failure in that process. And that's not being cute. Such an examination of the Committee's and the full Senate's role is desparately needed.

[Disclosure. I actually feel bad being so critical of the Senate, particularly the Senate Judiciary Committee. The Chair of the Committee, John Sampson is a fella' from Brooklyn, like me. He's also a grad of Albany Law School, where I teach. And everything I hear about him from anyone who knows him is that he's a great guy. In any event, he is brand new as the Chair. I'm willing to give him the benefit of the doubt that he was merely continuing the customary way he inherited in which that Committee has been handling Court of Appeals nominations--i.e., as a rubber stamp for the Governor's choice. Here's hoping he makes some significant changes.]

Before closing, the title mentions press reviews. Three are of particular interest. One appeared in the New York Law Journal, one in the Village Voice, and the third in the New York Times. They represent a spectrum of perspectives on Lippman and his nomination.

A favorable treatment was provided by Joel Stashenko in the Law Journal on February 13th
(at http://www.law.com/jsp/nylj/PubArticleNY.jsp?hubtype=FeaturedContent&id=1202428214317).

A quite unfavorable account was written by Wayne Barrett in the Village Voice on February 10th
(at http://www.villagevoice.com/2009-02-11/news/paterson-duped-again-shelly-silver-gets-childhood-pal-jonathan-lippman-state-s-top-courts-job/).

John Eligon in the Times offered both some pro and con views
(at http://www.nytimes.com/2009/02/11/nyregion/11lippman.html?emc=eta1).
[Disclosure. I'm quoted in this one, so I naturally think it's a great piece of journalism. Actually, he does do a superb job. And this is not typical for the Times when covering the Court of Appeals.]

So there it is for now. And as I've said before, all New Yorkers of good will wish Chief Judge Lippman the very best.

New York Court of Appeals: The New Chief's Judicial Record (Part 3: His Civil Opinions)

The last post in this series on the New York Court Watcher looked at Chief Judge Nominee Jonathan Lippman's criminal opinions. There were 4 in all. He wrote 3 while on the Appellate Division, and 1 (a dissent) while on "Supreme Court" serving on an Appellate Term panel. As we saw, Lippman took positions more favorable to the accused in each of those cases. That observation may not justify a definitive conclusion. Not with so few opinions. But it certainly provides an indication, a clue, maybe even a rebuttable presumption. And those 4 opinions revealed some other things as well. (See New York Court of Appeals: The New Chief's Judicial Record (Part 2: His Criminal Opinions), Jan. 28, 2009.)

In this post we'll take a look at Lippman's opinions in civil cases. We'll focus on those non-criminal opinions he wrote as an appellate judge--while on the Appellate Division (as Presiding Justice of the First Department, which sits in Manhattan) and on an Appellate Term panel (when a trial judge on "Supreme Court" Justice in Westchester County). Of the 14 total opinions Lippman has written as of this date while on the AD, 11 were non-criminal. Of those 11, 9 were written as opinions for the court, 2 were written in dissent. Of his 2 opinions while on AT, 1 was non-criminal, and it was a dissent. That's a total of 12 civil opinions. Let's look quickly at several of these, and see what they tell us. Following a brief rundown of the opinions, I'll offer some observations.

Braddock v. Braddock (AD, Jan. 6, 2009)--Lippman wrote a dissent against a 3 - 2 majority, arguing that the court should have dismissed a fraud complaint brought by a former investment banker. According to Lippman, there was no allegation that the defendant, who had persuaded the plaintiff to join his high risk venture, had done so with a deliberate misrepresentation.

Castle Village Owners Corp. v. Greater NY Mutual Ins. Co. (AD, Dec. 2, 2008)--Lippman wrote for a unanimous court, refusing to dismiss a complaint for engineering malpractice. He rejected the engineers' claim that the complaint was insufficiently specific.

Gotay v. Breitbart (AD, Nov. 6, 2008)--Lippman wrote the opinion for a 3 - 1 majority, refusing to dismiss a complaint for legal malpractice (against the plaintiffs' lawyers in an underlying medical malpractice matter). He rejected the lawyers' claim that they had long ago ended the attorney-client relationship and, therefore, that the lawsuit against them was time-barred.

Fabiano v. Philip Morris (AD, July 22, 2008)--Lippman wrote for a unanimous court, dismissing a claim for punitive damages against tobacco companies. He explained that the issue had already been determined in the State Attorney General's action against the companies.

Bloomingdales v. NYC Transit Authority (AD, May 15, 2008)--Lippman wrote for a 4 - 1 majority, reinstating the retail store's lawsuit against the Transit Authority. He rejected the argument that the statute of limitations had expired, explaining that the Authority's negligent cutting of the store's drain pipe was causing a continuous interference with the store's property.

Nash v. Port Authority of NY & NJ (AD, April 2008)--Lippman wrote for a unanimous court, upholding a jury verdict against the owner of the World Trade Center. He agreed that the authority could be held liable for failing to take reasonable precautions against car bombings, thereby leaving the plaintiffs vulnerable to the 1993 terrorist attack.

Bellamy v. Columbia University (AD, Jan. 2008)--Lippman wrote for a 3 - 2 majority, refusing to dismiss a lawsuit brought by a worker who hurt himself slipping and falling in one of the University's kitchens where he worked. He rejected the University's position that it was necessarily immune from this negligence claim under the Workers' Compensation Law.

Roberts v. Boys & Girls Republic (AD, Jan. 2008)--Lippman wrote for a 4 - 1 majority, dismissing a lawsuit brought by the mother of a little league baseball player; she was injured when she walked by a player practicing swinging his bat. Lippman agreed with the defendants that the mother had assumed the risk when she walked alongside the playing field.

Iny v. Collum (AT, Aug. 2006)--Lippman wrote a dissent against the 2 -1 majority at Appellate Term The majority had reversed a small claims judge's award of damages to the plaintiff for the damage done to his property. Lippman argued that the plaintiff was entitled to the award, which was based on the damage already done to his garage by his neighbor's tree; it was not enough simply to require the neighbor to remove the tree.

(As noted previously, that's 9 of Lippman's 12 total opinions in civil cases. 8 of the 11 at the Appellate Division, and the 1 at Appellate Term. The 3 Appellate Division opinions which were not included are somewhat technical and, thus, considerably less revealing--if at all--of ideological, philosophical, jurisprudential, and similar leanings.
The 3 not included are Ficus Investments v. Private Capital Management [AD, Jan. 2009--involved investment banking, mortgages, loans, misappropriation, etc.], Pellegrino v. Oppenheimer & Co. [AD, Jan. 2008--involved a motion for attorney disqualification because of alleged conflict of interest], and In re Michael McC. v. Manuela A. [AD, Dec. 27, 2007--jurisdiction to modify an Italian court's child custody order].
There may well be something to uncover in those 3. But whatever that might be is not so apparent. And, in any event, there are the 9 opinions just identified which collectively do provide some clues.)

So what can be drawn from those 9 opinions?

What is most apparent, perhaps, is that Lippman is not hostile to civil litigation. Out of these 9 opinions, he wrote 6 in favor of the plaintiff. He is not anti-plaintiff.

More than that, some of the opinions that Lippman wrote favoring the plaintiff came in divided cases--i.e., in cases close enough to split the court and cause at least one member to write a dissent. In Gotay (3-1), to allow the legal malpractice action to continue; in Bloomingdales (4-1), to allow the store's action for nuisance and trespass against the Transit Authority; in Bellamy, (3-2) to allow the worker's slip and fall action to continue; and in Iny (2-1), dissenting in favor of the property owner who sued his neighbor.

Even more than that, Lippman wrote opinions favoring a variety of plaintiffs, against a variety of defendants, in a variety of different causes of action, against a variety of defenses. In Castle Village, he favored the residential property owning plaintiffs against engineers, for their negligence, and rejected their argument that the complaint was too general. In Gotay, he favored the medical malpractice client-plaintiffs against lawyers, for their legal malpractice, and rejected their statute of limitations defense. In Bloomingdales, he favored the retail store plaintiff against a government agency in New York City, for nuisance and trespass, and rejected the defense that the store should have commenced the action shortly after the initial act of negligence. In Nash, he favored the personal injury plaintiffs against a bi-state government agency, for negligence, and rejected a host of defenses including the unliklihood of the 3d party terrorists' criminal conduct. In Bellamy, he favored the worker-plaintiff against a university employer, for negligence resulting in a slip and fall, and rejected a defense of workers' compensation law immunity. And in Iny, he favored the homeowner-plaintiff against a neighbor, for nuisance resulting from the neighbor's encroaching tree, and disagreed with the defendant and with his own colleagues that the plaintiff was not entitled to compensation for the damage to his property as long as the defendant removed the tree.

So, Lippman does not seem hostile--not particularly at least, and certainly not blindly--to civil suits against either individuals or professionals or businesses or even government agencies. And he's willing to write against his colleagues who may disagree with his pro-plaintiff positions.

But this should not be taken to suggest that Lippman is, then, necessarily blindly or lopsidedly pro-plaintiff. Out of the 9 civil opinions of his that we've considered, he sided against the plaintiff in 3 of them. In fact, he did so even when he had to write against colleagues--including when he had to write against a majority of them. So he is certainly willing to favor the defendants in civil cases, and even in the close cases.

Recall that, in Fabiano, he wrote the opinion, for a unanimous court, siding with the tobacco companies against the plaintiffs who were seeking punitive damages. In Braddock, he wrote a dissent, against a 3-2 majority, arguing that the fraud cause of action should be dismissed. And in Roberts, he wrote the opinion, for a 4-1 majority, dismissing a personal injury lawsuit on the theory that the plaintiff had assumed the risk.

So there we are. Lippman does not at all appear to be adverse to civil lawsuits. He certainly does not appear on a mission to stem some real or imagined civil litigation explosion. He has written opinions favoring plaintiffs in tort cases, and more so than he has written favoring defendants. Moreover, he has done so even when the cases were close.

On the other hand, Lippman does not appear entirely plaintiff-happy either. He has written opinions favoring tort defendants. And he has done so even in close cases as well.

In short, Lippman seems somewhat pro-plaintiff, but not lopsidedly so.

Well, between the previous post and this one, that's a brief annotated recap of Lippman's criminal and civil opinion record. In the meantime, the Senate Judiciary Committee has not held confirmation hearings. These hearings have traditionally been pretty worthless--mere rubber stamps of the Governors' picks. But they are necessary nonetheless, to complete the appointment. Whenever that does take place, there will surely be something of interest to report and comment upon on this blog.