Thursday, February 12, 2009

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

A quite unfavorable account was written by Wayne Barrett in the Village Voice on February 10th

John Eligon in the Times offered both some pro and con views
[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.