The Eminence and Experience
--and Exhaustion--
of Being New York's Chief Judge
The 14th Annual Chief Judge Lawrence H. Cooke Symposium
Albany Law School, April 25, 2024
Showing posts with label Judicial Experience. Show all posts
Showing posts with label Judicial Experience. Show all posts
Saturday, May 25, 2024
Monday, June 14, 2010
Kagan Nomination--Questions for Her & Her Questioners ("Judicial Activism" & the Constitution)
Like the topic addressed in the immediately preceding post on New York Court Watcher (judicial experience), this one will be somewhat easy to deal with. (See Supreme Court: Kagan Nomination--the "No Judicial Experience" Bugaboo, June 2, 2010.)
The issue of "judicial activism" itself is NOT easy to deal with. THAT's what's easy.
Any suggestion to the contrary--i.e., that "judicial activism" is a simple issue--is nonsense. Any suggestion, intimation or outright insistence by Senators at the confirmation hearings or by commentators that judicial activism is inappropriate, illegitimate or even evil is based on ignorance, amnesia, crass political posturing or ideological blindness. "Judicial activism," like virtually anything else of consequence, is not a simple yes or no matter. THAT--not "judicial activism" itself--is easy.
To illustrate, let's consider the issue of judicial activism at work. And we won't put it to work in the context of some obscure, ambiguous, or technically complicated legal text. Let's see how it works in the context of some familiar, unequivocal, and clear (pellucidly so!) law. Let's take a well-known provision of the Constitution. Not something buried in one of the Articles. But something prominent and right up front.
The First Amendment, for example. Specifically, the guarantees of freedom of religion, free speech and free press. The language could not be more direct. "Congress shall make no law...prohibiting the free exercise thereof [i.e., "religion"--the term previously stated and being referred to]; or abridging the freedom of speech, or of the press."
Elena Kagan, President Obama's Supreme Court nominee, will surely be questioned about judicial activism. She'll be asked about (and no doubt warned against) making law rather than merely applying it, about loosely or expansively interpreting the law rather than strictly doing so, about injecting her own views into the law rather than reading it objectively, etc., etc.
She'll be asked in a variety of ways about whether she will be restrained as a Justice or be an "activist." Whether she will simply apply the law itself to the facts of the cases that come before her? Or whether she will apply her own sense of what's wise and foolish, what's just and unjust, what makes sense and what does not, what's true to the nation's ideals and what isn't, what's good for the Republic and what is not?
The Senators doing the asking should themselves be asked--or ask themselves--if they've really given much thought to those questions. If they've really considered the ramifications of those questions. If they really believe what they are suggesting about restraint versus activism. About simply and strictly applying the law (the apparently unvarnished good). Versus injecting a Justice's own view of what makes sense and what is just (the supposedly self-evidently bad).
So for Kagan and the Senators questioning her, let's put that to work on the very first Amendment to the Constitution. "No law prohibiting the free exercise of religion." "No law abridging the freedom of speech." "No law abridging the freedom of the press."
The issue of "judicial activism" itself is NOT easy to deal with. THAT's what's easy.
Any suggestion to the contrary--i.e., that "judicial activism" is a simple issue--is nonsense. Any suggestion, intimation or outright insistence by Senators at the confirmation hearings or by commentators that judicial activism is inappropriate, illegitimate or even evil is based on ignorance, amnesia, crass political posturing or ideological blindness. "Judicial activism," like virtually anything else of consequence, is not a simple yes or no matter. THAT--not "judicial activism" itself--is easy.
To illustrate, let's consider the issue of judicial activism at work. And we won't put it to work in the context of some obscure, ambiguous, or technically complicated legal text. Let's see how it works in the context of some familiar, unequivocal, and clear (pellucidly so!) law. Let's take a well-known provision of the Constitution. Not something buried in one of the Articles. But something prominent and right up front.
The First Amendment, for example. Specifically, the guarantees of freedom of religion, free speech and free press. The language could not be more direct. "Congress shall make no law...prohibiting the free exercise thereof [i.e., "religion"--the term previously stated and being referred to]; or abridging the freedom of speech, or of the press."
Elena Kagan, President Obama's Supreme Court nominee, will surely be questioned about judicial activism. She'll be asked about (and no doubt warned against) making law rather than merely applying it, about loosely or expansively interpreting the law rather than strictly doing so, about injecting her own views into the law rather than reading it objectively, etc., etc.
She'll be asked in a variety of ways about whether she will be restrained as a Justice or be an "activist." Whether she will simply apply the law itself to the facts of the cases that come before her? Or whether she will apply her own sense of what's wise and foolish, what's just and unjust, what makes sense and what does not, what's true to the nation's ideals and what isn't, what's good for the Republic and what is not?
The Senators doing the asking should themselves be asked--or ask themselves--if they've really given much thought to those questions. If they've really considered the ramifications of those questions. If they really believe what they are suggesting about restraint versus activism. About simply and strictly applying the law (the apparently unvarnished good). Versus injecting a Justice's own view of what makes sense and what is just (the supposedly self-evidently bad).
So for Kagan and the Senators questioning her, let's put that to work on the very first Amendment to the Constitution. "No law prohibiting the free exercise of religion." "No law abridging the freedom of speech." "No law abridging the freedom of the press."
Wednesday, June 2, 2010
Supreme Court: Kagan Nomination--the "No Judicial Experience" Bugaboo
This is probably the easiest consideration to deal with, and to dismiss.
In fact, it is so clearly a non-issue for any serious student of the Supreme Court, that any Senator or critic of Elena Kagan who raises it as a concern is either ignorant of Supreme Court history or simply being a bit less-than-clever in using it as a proxy for something else. Maybe something less speakable.
Felix Frankfurter--the FDR confidant and then Court appointee, who might well have been the most influential man in American national policy at the time--might have been exaggerating. But just a bit. In his famous lecture addressing the subject, he made no bones about it: "One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero."
Zero! And history seems to confirm his assessment.
Chief Justice William Rehnquist had no judicial experience when he was first appointed to the Court by President Nixon. Neither did Chief Justice Earl Warren when Eisenhower appointed him. (That's one of the leading conservatives in the Court's history, and one of its leading liberals. There's no partisan or ideological side to this issue.)
Among other Chief Justices, there's Harlan Fiske Stone (when first appointed to the Court by Coolidge), Charles Evan Hughes (when first appointed by Taft), and the universally acclaimed "Great" John Marshall (appointed by John Adams, his only experience being a "recorder" in a city court in Richmond, Virginia for a couple of years early in his legal career).
Indeed, about 40% of all Justices had no prior judicial experience. More pointedly, among the truly great Justices in the Court's history, most had no or virtually no prior judicial experience.
There is considerable consensus about who the "great" Justices were. And of the dozen or so widely considered to be the greatest in Court history--in repeated studies, rankings and polls of Court scholars (law, political science and history)--virtually all of them were judicial-experience-challenged. Let's take a quick survey.
In fact, it is so clearly a non-issue for any serious student of the Supreme Court, that any Senator or critic of Elena Kagan who raises it as a concern is either ignorant of Supreme Court history or simply being a bit less-than-clever in using it as a proxy for something else. Maybe something less speakable.
Felix Frankfurter--the FDR confidant and then Court appointee, who might well have been the most influential man in American national policy at the time--might have been exaggerating. But just a bit. In his famous lecture addressing the subject, he made no bones about it: "One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero."
Zero! And history seems to confirm his assessment.
Chief Justice William Rehnquist had no judicial experience when he was first appointed to the Court by President Nixon. Neither did Chief Justice Earl Warren when Eisenhower appointed him. (That's one of the leading conservatives in the Court's history, and one of its leading liberals. There's no partisan or ideological side to this issue.)
Among other Chief Justices, there's Harlan Fiske Stone (when first appointed to the Court by Coolidge), Charles Evan Hughes (when first appointed by Taft), and the universally acclaimed "Great" John Marshall (appointed by John Adams, his only experience being a "recorder" in a city court in Richmond, Virginia for a couple of years early in his legal career).
Indeed, about 40% of all Justices had no prior judicial experience. More pointedly, among the truly great Justices in the Court's history, most had no or virtually no prior judicial experience.
There is considerable consensus about who the "great" Justices were. And of the dozen or so widely considered to be the greatest in Court history--in repeated studies, rankings and polls of Court scholars (law, political science and history)--virtually all of them were judicial-experience-challenged. Let's take a quick survey.
Wednesday, January 21, 2009
New York Court of Appeals: The New Chief's Judicial Record (Part 1: An Overview of Not Too Much)
Anyone who bothers to read the posts on this blog almost certainly keeps abreast of Court of Appeals developments and knows that Governor Paterson chose Jonathan Lippman to succeed Judith Kaye as New York's Chief Judge. The Governor made his announcement at a press conference with Lippman on Wednesday, January 14.
First things first. Let's hope he's a great Chief Judge. For the Court of Appeals, for the fundamental law of New York, for the people of New York. But beyond the wishin' and hopin' and thinkin' and prayin' [Yes, Dusty Springfield singin' Burt Bacharach.].......
Lippman's selection breaks a tradition going back more than a century. Not since 1898 has a non-member of the Court of Appeals become Chief Judge. The last one was Alton Parker. [He later ran for President against Teddy Roosevelt. Do I need to say who won?]. And before Parker was elected Chief Judge [that was ~80 years before the current appointment system], he actually had a few years of prior experience on the Court of Appeals. To be precise, he had served on the court's "Second Division." This was a sort of second string Court of Appeals. It was formed to help alleviate the court's enormous caseload at the time.
In contrast to Parker, and to every one of his successors since 1898, the new Chief Judge nominee, Jonathan Lippman, is not a current or former member of the Court of Appeals--first or second string.
Pointing that out, however, is not to suggest something necessarily negative. In fact, if we look to the Supreme Court for perspective on this, it is notable that some of the strongest Chief Justices came from off the Court. There's the great John Marshall for starters. Ok, you say, but that was when the Court was fairly new and still finding its way. Well, what about William Howard Taft (appointed by Harding in 1921)? Or Earl Warren (appointed by Eisenhower in 1953)? And, of course, there's the current Chief Justice, John Roberts (appointed by Bush 43 in 2005). So a newbie to a court can certainly succeed--indeed excel--as its chief.
There is a closely related fact, however, that is much more significant and raises concerns. At the least, it makes Lippman's appointment a question mark. Consider the Chief Justices just mentioned. Marshall was a Secretary of State. Taft had been President. Earl Warren was Governor of California. Roberts clerked at the Supreme Court, was a litigator at the highest levels (including before the Court itself), and then he was a judge on the D.C. Circuit. In short, all of them had previous careers tackling difficult and consequential issues of a legal, governmental, and societal nature.
Lippman comes to the center seat of the Court of Appeals with precious little, if any, such experience. He was a court administrator. And, yes, he was that at the highest levels. But that is not the same as confronting and trying to resolve legal-governmental-societal issues either as a President or a member of a President's cabinet or a Governor or a law clerk at a high court or a litigator before a high court or a judge on such a court. Lippman's experience does not include that--unless one counts his 1 and 1/2 years on the Appellate Division.
Let me be clear by repeating a point I've made before on the New York Court Watcher and elsewhere. I am not suggesting the need for a lot of judicial experience--or for any at all. That is only one way to gain the experience vital to serving on a high court. (See New York Court of Appeals: Memo to the Governor & the Commission [esp. point 5], Nov. 17, 2008.) What's important is experience dealing with the kinds of difficult and consequential issues that high courts decide. (That, in addition to understanding the real nature of the judicial process--not the typical nonsense that's spouted by politicians and lots of judges too. But the actual nature of judicial decision-making that necessarily involves making law. See New York Court of Appeals: Memo to the Governor & the Commission [esp. point 4], Nov. 17, 2008.)
Lippman may well turn out to be a great Chief Judge--i.e., a great JUDGE who is the Chief. (For a discussion on this latter point, see an earlier post on New York Court Watcher: 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.) And some who know him personally, and understand the nature of decision-making on a high court, DO think he is a great choice for Chief. So he might well be. And anyone who cares about the Court of Appeals, and about the fundamental law of New York, and about New York itself, certainly must hope so. But, in truth, there just is not much in his record that tells us how great a Chief JUDGE he will be. There simply is precious little to tell us how well he deals with those legal-governmental-societal issues that he will now confront regularly, and on which he will lead the court in resolving.
What little there is can be found in his judicial record. There's not much there. But that's what we have.
Lippman served on the Appellate Division for about 1 and 1/2 years--i.e, since his appointment in May of 2007 as Presiding Justice of the First Department in Manhattan. While on that court, he authored 13 opinions. 11 were opinions for the court; 2 were dissents. Prior to that time, he was a trial judge on state "Supreme Court" [Yes, an anachronistic, inappropriate, and highly confusing name.] He served on that bench since late 2005--a brief, not-quite 1 and 1/2 year period And he was occupied during that time serving as Chief Judge Kaye's Chief Administrative Judge. A search on both Westlaw and Lexis-Nexis reveals 22 Lippman opinions--some unpublished in the official reports. 20 were decisions at trial court; 2 were dissents at Appellate Term.
3 of his Appellate Division opinions were in criminal cases. 2 of his Supreme Court opinions were as well--including one which was a dissent at Appellate Term. His other Appellate Division opinions involved a range of civil matters including legal malpractice, punitive damages, municipal liability, workers' compensation, the attorney-client relationship, a sport spectator's assumption of risk, the adequacy of pleadings, and child custody. His trial opinions in civil cases included zoning appeals, motor vehicle law, municipal employee benefits, and exhaustion of administrative remedies.
So there's a total of 35 opinions--most of them trial court decisions--over a period of little more than 3 years during which Lippman was a judge actually engaged in judging. That's not much to mine for clues about his decision-making. But it's something.
The next post in this series will begin examining these opinions to see what, if anything, they reveal about New York's next Chief Judge--as a judge. If the Senate Judiciary Committee conducts its confirmation hearings in the same fashion as it has in the past, they will tell us nothing. Those hearings have typically been entirely worthless as a vehicle to learn anything about a Court of Appeals nominee's abilities or philosophies as a judge. They're typically rubber stamps of a Governor's selection, providing only a venue to hear friends tell how wonderful the nominee is.
So we'll (I'll) try to do some examining of the nominee's (Lippman's) record on this blog in case anyone is interested. Actually, I do know that there are many who really do care and are interested. So I'll continue with this in the next post within the next couple of days.
First things first. Let's hope he's a great Chief Judge. For the Court of Appeals, for the fundamental law of New York, for the people of New York. But beyond the wishin' and hopin' and thinkin' and prayin' [Yes, Dusty Springfield singin' Burt Bacharach.].......
Lippman's selection breaks a tradition going back more than a century. Not since 1898 has a non-member of the Court of Appeals become Chief Judge. The last one was Alton Parker. [He later ran for President against Teddy Roosevelt. Do I need to say who won?]. And before Parker was elected Chief Judge [that was ~80 years before the current appointment system], he actually had a few years of prior experience on the Court of Appeals. To be precise, he had served on the court's "Second Division." This was a sort of second string Court of Appeals. It was formed to help alleviate the court's enormous caseload at the time.
In contrast to Parker, and to every one of his successors since 1898, the new Chief Judge nominee, Jonathan Lippman, is not a current or former member of the Court of Appeals--first or second string.
Pointing that out, however, is not to suggest something necessarily negative. In fact, if we look to the Supreme Court for perspective on this, it is notable that some of the strongest Chief Justices came from off the Court. There's the great John Marshall for starters. Ok, you say, but that was when the Court was fairly new and still finding its way. Well, what about William Howard Taft (appointed by Harding in 1921)? Or Earl Warren (appointed by Eisenhower in 1953)? And, of course, there's the current Chief Justice, John Roberts (appointed by Bush 43 in 2005). So a newbie to a court can certainly succeed--indeed excel--as its chief.
There is a closely related fact, however, that is much more significant and raises concerns. At the least, it makes Lippman's appointment a question mark. Consider the Chief Justices just mentioned. Marshall was a Secretary of State. Taft had been President. Earl Warren was Governor of California. Roberts clerked at the Supreme Court, was a litigator at the highest levels (including before the Court itself), and then he was a judge on the D.C. Circuit. In short, all of them had previous careers tackling difficult and consequential issues of a legal, governmental, and societal nature.
Lippman comes to the center seat of the Court of Appeals with precious little, if any, such experience. He was a court administrator. And, yes, he was that at the highest levels. But that is not the same as confronting and trying to resolve legal-governmental-societal issues either as a President or a member of a President's cabinet or a Governor or a law clerk at a high court or a litigator before a high court or a judge on such a court. Lippman's experience does not include that--unless one counts his 1 and 1/2 years on the Appellate Division.
Let me be clear by repeating a point I've made before on the New York Court Watcher and elsewhere. I am not suggesting the need for a lot of judicial experience--or for any at all. That is only one way to gain the experience vital to serving on a high court. (See New York Court of Appeals: Memo to the Governor & the Commission [esp. point 5], Nov. 17, 2008.) What's important is experience dealing with the kinds of difficult and consequential issues that high courts decide. (That, in addition to understanding the real nature of the judicial process--not the typical nonsense that's spouted by politicians and lots of judges too. But the actual nature of judicial decision-making that necessarily involves making law. See New York Court of Appeals: Memo to the Governor & the Commission [esp. point 4], Nov. 17, 2008.)
Lippman may well turn out to be a great Chief Judge--i.e., a great JUDGE who is the Chief. (For a discussion on this latter point, see an earlier post on New York Court Watcher: 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.) And some who know him personally, and understand the nature of decision-making on a high court, DO think he is a great choice for Chief. So he might well be. And anyone who cares about the Court of Appeals, and about the fundamental law of New York, and about New York itself, certainly must hope so. But, in truth, there just is not much in his record that tells us how great a Chief JUDGE he will be. There simply is precious little to tell us how well he deals with those legal-governmental-societal issues that he will now confront regularly, and on which he will lead the court in resolving.
What little there is can be found in his judicial record. There's not much there. But that's what we have.
Lippman served on the Appellate Division for about 1 and 1/2 years--i.e, since his appointment in May of 2007 as Presiding Justice of the First Department in Manhattan. While on that court, he authored 13 opinions. 11 were opinions for the court; 2 were dissents. Prior to that time, he was a trial judge on state "Supreme Court" [Yes, an anachronistic, inappropriate, and highly confusing name.] He served on that bench since late 2005--a brief, not-quite 1 and 1/2 year period And he was occupied during that time serving as Chief Judge Kaye's Chief Administrative Judge. A search on both Westlaw and Lexis-Nexis reveals 22 Lippman opinions--some unpublished in the official reports. 20 were decisions at trial court; 2 were dissents at Appellate Term.
3 of his Appellate Division opinions were in criminal cases. 2 of his Supreme Court opinions were as well--including one which was a dissent at Appellate Term. His other Appellate Division opinions involved a range of civil matters including legal malpractice, punitive damages, municipal liability, workers' compensation, the attorney-client relationship, a sport spectator's assumption of risk, the adequacy of pleadings, and child custody. His trial opinions in civil cases included zoning appeals, motor vehicle law, municipal employee benefits, and exhaustion of administrative remedies.
So there's a total of 35 opinions--most of them trial court decisions--over a period of little more than 3 years during which Lippman was a judge actually engaged in judging. That's not much to mine for clues about his decision-making. But it's something.
The next post in this series will begin examining these opinions to see what, if anything, they reveal about New York's next Chief Judge--as a judge. If the Senate Judiciary Committee conducts its confirmation hearings in the same fashion as it has in the past, they will tell us nothing. Those hearings have typically been entirely worthless as a vehicle to learn anything about a Court of Appeals nominee's abilities or philosophies as a judge. They're typically rubber stamps of a Governor's selection, providing only a venue to hear friends tell how wonderful the nominee is.
So we'll (I'll) try to do some examining of the nominee's (Lippman's) record on this blog in case anyone is interested. Actually, I do know that there are many who really do care and are interested. So I'll continue with this in the next post within the next couple of days.
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: http://www.nylawyer.com/adgifs/decisions/121808nominees.pdf.) 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:
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.
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: http://www.nylawyer.com/adgifs/decisions/121808nominees.pdf.) 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.
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