Wednesday, March 11, 2009

Court of Appeals: The Jewish Seat(s) on the Court

Guest Contributor:
Bennett Liebman, Esq.
Executive Director, Government Law Center, Albany Law School

There were a number of subplots involved in Governor Paterson’s naming of Judge Jonathan Lippman as Chief Judge of the Court of Appeals in January. There was the controversy over whether there was an intentional or indifferent absence of women and Latinos from the selection list submitted to Governor Paterson. There was the continuity inherent in naming Chief Judge Judith Kaye’s longtime Chief Administrative Judge as her replacement. Lost in these controversies, however, was the fact that Lippman’s elevation to the Court of Appeals continued a near century old tradition. There has been a Jewish Judge on the Court of Appeals since 1914.
The first Jew on the Court of Appeals was Benjamin Cardozo in 1914. Cardozo was elected to State Supreme Court in 1913, and Governor Martin Glynn quickly designated him to the Court of Appeals. The system under which Cardozo went to the Court was far different than the traditional elective system (where the Governor only made appointments for interim vacancies) or the current merit appointment system which has been in place since 1978. When Cardozo was appointed, there was an odd system that mixed elections and appointments. Based on a 1900 change to the State Constitution, there were seven permanent, elected Judges. There were also up to four additional, temporary Judges designated by gubernatorial appointment. Cardozo was initially one of those additional, temporary Judges.

Cardozo was reappointed by Governor Charles Whitman in 1917, and then elected in 1917 as the nominee of both the Republican and Democratic parties. In 1926, he was elected Chief Judge, again as the nominee of both major parties. Cardozo served in that position until 1932, when he was appointed by President Herbert Hoover to replace Oliver Wendell Holmes on the Supreme Court.

Cardozo had been joined on the Court of Appeals by Abram Elkus, who served on the Court for one year following his 1919 appointment by Governor Alfred E. Smith. Elkus had run for election to the Court unsuccessfully as a Democrat in 1913. He was again unsuccessful when he ran for election in 1920 to retain his appointed position. (After his year on the Court, Elkus was appointed to an international commission to determine the question of whether Sweden or Finland owned the Aaland Islands.)

When Cardozo’s associate position was filled in 1927 by Governor Smith’s appointment of John F. O’ Brien, the New York Times noted that Judge O’Brien was Catholic, and “the point that at least one member of the Court of Appeals should be of that faith has been stressed.”

During the second half of Cardozo’s tenure on the Court, he was joined by Irving Lehman. Initially appointed to the Court by Governor Smith, Lehman was cross-endorsed and elected in 1923. He was similarly reelected with cross-endorsement in 1937, and both major parties again endorsed Lehman in his successful run for Chief Judge in 1939. (From 1940 to 1942, Lehman’s Chief Judgeship overlapped with his brother Herbert’s tenure as Governor.)

When Cardozo left for the Supreme Court, Lehman was the sole Jew on the Court of Appeals. Cardozo remained very close to Lehman. In fact, it was in Lehman’s home that Cardozo stayed while trying to recuperate from heart disease and ultimately passed away in 1938. It was also in Lehman’s home where Cardozo’s memorial service was held.

Upon Lehman’s death in 1945, Governor Thomas Dewey replaced him with George Medalie, who died less than six months later. Dewey then named Stanley Fuld to the Court. For the next twenty years, from 1946 to 1967, Fuld was the sole Jew on the Court. Thus, from 1932 until 1967--with Lehman replaced by Medalie, and Medalie replaced by Fuld--there was one Jew on the Court of Appeals.

Fuld was elected Chief Judge in 1966. Shortly thereafter, Governor Nelson Rockefeller named Charles Breitel to Fuld’s former spot as associate Judge. Notably, Medalie, Fuld, and Breitel were all associated in their public lives with Governor Dewey. Medalie would have been considered--if the term has been in use in the 1930’s--Governor Dewey’s mentor. Medalie was the United States Attorney for the Southern District in New York who appointed Dewey an Assistant United States Attorney in 1930. He started Dewey’s public life. Dewey later led the mourners at Medalie’s funeral, and, in its obituary, the New York Times referred to Medalie as Dewey’s “political godfather.”

As for Fuld, while Dewey was the District Attorney in New York County, Fuld was his chief of the indictment bureau and then of the appeals bureau. As for Breitel, he was Dewey’s trial assistant, assistant chief of the indictment bureau, and then chief of that bureau. Later, when Dewey was elected Governor, Breitel served as his counsel for seven years.

With the election of Sol Wachtler to the Court in 1972, he became the first Jewish candidate to win a seat on the Court of Appeals in a contested campaign. He also became the third sitting Jewish Judge together with Fuld and Breitel.

There continued to be three Jewish Judges on the Court until 1986. Fuld retired from the Court in 1973, the year after Wachtler’s election, and he was succeeded as Chief Judge by Breitel who won a contested election. Early the next year, Governor Malcolm Wilson named Samuel Rabin to fill Breitel’s vacated associate position. Rabin did not run for election later that year, but the election of Jacob Fuchsberg insured the continuing presence of three Jews on the Court, i.e., Breitel, Wachtler, and Fuchsberg. (Notably, in that 1974 election, Democrats Fuchsberg and Lawrence Cooke defeated the two Republican candidates in what turned out to be the last Court of Appeals election.)

When Breitel reached retirement age in 1978, Governor Hugh Carey elevated Cooke to Chief Judge under the new merit appointment system for selection to the Court of Appeals. Carey then appointed Bernard Meyer to fill Cooke’s vacated associate position.

When Judge Fuchsberg resigned in 1983, Governor Mario Cuomo replaced him with Judith Kaye. Three years later, the number of Jews on the Court dropped to two when Meyer retired and Cuomo appointed Joseph Bellacosa to the resulting vacancy.

The number remained the same for twelve years. In the interim, in 1993, several months after then-Chief Judge Wachtler left the Court, Cuomo elevated Kaye to replace him. Cuomo then appointed Howard Levine to the Court to fill Kaye’s associate position.

The number of Jews on the Court returned to three in 1998, when Governor George Pataki selected Albert Rosenblatt to replace retiring Judge Vito Titone. Thereafter, Levine retired from the Court in 2003, and Rosenblatt in 2006. Pataki replaced Levine with Susan Read and Governor Eliot Spitzer replaced Rosenblatt with Theodore Jones. That left Kaye as the sole remaining Jew on the Court.

With Governor David Paterson’s selection of Jonathan Lippman to replace Kaye as Chief Judge this year, a 95 year old tradition continues. There have been 14 Jewish Judges on the Court of Appeals, and at least one Jew continuously since Cardozo’s initial temporary appointment in 1914.

Assuming that Chief Judge Lippman, who is now 63, serves until the mandatory retirement age of 70, there will have been a century of Jews serving on New York’s highest Court.