Thursday, February 5, 2015

Part 3 [Judge Stein's 'Tendencies']--NYCOA: Cuomo's Latest Two Nominees

Back to New York's highest court and Governor Cuomo's 2 yet-to-be-confirmed nominees. (Senate hearings will apparently be conducted early next week.)

There is a "stream of tendencies" in each of us, judges no less than the rest.

In a seminal insight into judicial decision-making, Benjamin Cardozo--the revered American jurist, who led New York's high court before reluctantly accepting an appointment to the Supreme Court--discussed the typically unexpressed and unconscious forces that underlie the choices a judge makes. Culture, customs, deeply held beliefs, a view of life and the world, all influence a judge's decisions. They form common threads that eventually reveal themselves upon analysis of a judge's body of work.

To put it in more colloquial terms than did Cardozo--who, together with Robert Jackson, may have penned the most elegant opinions in our legal history--we can "connect the dots" if we examine decisions rendered, votes cast, and opinions written. Indeed, we all kind of know this. Even as we speak in broad terms of "liberal" and "conservative" judges. Even as many judges bristle at the notion that they are anything less than perfectly neutral, ideologically-pure intellects.

No. One need not be a Cardozo--or an Oliver Wendell Holmes, or one of the eminent scholars who have explored much the same field of judicial studies over the past several generations. A bit of effort and time and willingness in examining a judge's record is usually all it takes to yield revelations. No special genius or magic needed.

So, with little more than some effort, time, and willingness on my part, here are a few revelations that seem to emerge from an examination of Judge Leslie Stein's record at the Appellate Division, New York's intermediate appeals court, where she has served for the past seven years.

More specifically, the focus is on her dissenting opinions (which are always the most personal and deeply felt writings of a judge, who is taking a stand against the majority of her colleagues), and on her opinions for a majority of a divided court (where she necessarily has disagreed with a dissenting colleague and has had to defend her position against his).

Her positions on review by the Court of Appeals
Perhaps the most salient aspect of Judge Stein's record is what happened to the positions she took when cases in which she wrote an opinion were reviewed on appeal by the Court of Appeals. Not simply whether the high court as a whole happened to adopt or reject her position. But which Court of Appeals Judges typically agreed with her.

Well, those Judges who agreed with her most regularly have been Chief Judge Jonathan Lippman, former Judge Carmen Ciparick, and the late Judge Theodore Jones. The common denominator there? These Judges have been part of the ideologically more-liberal wing of the high court. Yes, on issues involving the rights of the accused, of workers, of injured plaintiffs, etc., these Judges all have records that are more sympathetic on these matters than other members of the Court. And they are the ones who often sided with Judge Stein's opinion below.
[Notably, recently appointed Judge Jenny Rivera--another member of the Court's more-liberal wing--was not involved in any of the cases in this pool.]

Among those cases are People v Weaver (2009) [Lippman, Ciparick, and Jones--with Pigott--sided with Stein's dissenting opinion that search and seizure rights were violated by the warrantless GPS surveillance]; M/O NYS OCFS v Lanterman (2010) [ Lippman and Ciparick, in dissent, sided with Stein's dissenting opinion favoring a terminated teacher's right to arbitration]; M/O NYS OASAS v Ortiz (2010) [Lippman and Ciparick, in dissent, agreed with Stein's majority opinion that a terminated state employee was entitled to arbitration]; People v Harnett (2011) [Ciparick and Jones, in dissent, agreed with Stein's dissent that a sex-offender defendant must be advised of the possibility of post-release civil confinement prior to a guilty plea]; and M/O Ithaca Sch. Dist. v NYS DHR (2012) [Lippman, Ciparick, and Jones, in dissent, agreed with Stein's majority opinion that a school district could be liable for failing to protect a student from racial harassment].

Yes, positions taken by Judge Stein, whether in a dissenting or majority opinions, were agreed with by the more ideologically liberal Judges on the Court of Appeals. Why? Pretty obvious. Her positions were the more ideologically liberal ones taken at the Appellate Division.

Now none of this suggests that Judge Stein has been a lopsided or one-sided liberal ideologue at the Appellate Division. Not at all. The issues involved in these cases were close. They divided the Appellate Division and they divided the Court of Appeals.

What these cases do suggest, however, is that in these very close cases where the issues have been ideologically tinged, her leanings--that "stream of tendencies"--have been more ideologically liberal than not.

We'll continue with other noticeable aspects of Judge Stein's record in the next post.