February 28, 2007

Thursday we sent you "The Longest Article Ever", which told how and why the selection process for the Court of Appeals of the State of New York changed from popular election to appointment by the governor from a list recommended by a screening panel.
 
The change was accomplished by an amendment to the State Constitution, approved by the voters in 1977. The adoption of that amendment thirty years ago did not, however signal that all judges should be appointed, or that justices other than those sitting on the Court of Appeals should be elected.  The vote was what is called in law “sui generis.”

We continue today with what will be a short series on judicial selection.  We will try to describe some of the qualities we want, and those that we do not want in judges or justices.  Our language will be more sedate than the headline.

How best to choose judges is an extremely difficult question to answer. Varying election methods will result in different types of lawyers who will become judges, as well as different individuals with different backgrounds and supporters..

We all want, or should want, judges who are honest, intelligent and diligent.  We specifically do not want judges who have paid bribes for their nominations, are obligated to politicians or anyone else who will exert improper influence, or hold personal notions of justice which they wish to impose on the community regardless of the law..
 
We want judges who are thoroughly familiar with the law, and will not be intimidated by lawyers who may be more polished and elegant than they are, and most likely wealthier, owning newer cars,  finer suits (that is one advantage of judicial robes) and larger homes. We do not want judges who tyrannize the courtroom, abuse litigants, intimidate witnesses and attorneys, and see themselves as the alpha and the omega of judicial proceedings.

We want judges who will respect the law as it is generally understood, and who have sympathy and understanding for the people who appear before them on both sides of a case.  We do not want lazy judges, who arrive at the courtroom late, who leave early, take long lunches, and postpone cases to satisfy their personal desires.
 
We want judges who are of diverse backgrounds, from all parts of the legal community,  but we do not want merit and fitness to be disregarded while judges are chosen primarily on the basis of their race, religion, gender, national origin, sexual orientation or lack of it, disability or the absence of disability, public office held or not held, or any other factor extrinsic to their ability to serve fairly and effectively..
 
And we want all this in a man or woman, to whom we will pay a salary which is less than starting attorneys earn in first-class law firms. We rightly forbid judges from practicing law or receiving other earned income. This, however,  leaves them dependent on unearned income (dividends and interest); savings from their previous career as lawyers; the earnings of their spouses; or the bounty of their parents or siblings. Without these additional sources of income, they must adhere to a very moderate life style, particularly if they have families of their own to support and educate..    

Nonetheless, we have many more people who want to be judges than there are seats on the bench in the State Supreme Court, Civil Court, Surrogate's Court, Court of Claims, Criminal Court and Family Court.  There are administrative law judges and judicial hearing officers, the Federal courts have magistrates, and all these judges are supported by an even larger number of non-judicial personnel.  The true (or false) administration of justice is a major business in itself.

There are, however, plusses.  A judgeship provides many gratifying experiences apart from the paycheck.  The first is security, you will be employed for life, or for a term of many years. Unless you do something very wrong, you will most likely be reappointed or reelected when your term expires. If you are a Federal judge, you can retire at full pay and participate in the adjudication of cases as a senior judge. 

Another highly valued quality is “judicial temperament”, which usually refers to one's behavior on the bench. A judge should neither be partisan or biased nor passive and disinterested.  Each case should be regarded as important because it is important, at least to the litigants who are having their day in court. 

A difficult question to answer is, what is the judge to do when one party or a witness is obviously lying to the court. .  Should the jurist sit back like a tennis referee in his high chair and the let the stronger lawyer overwhelm the weaker advocate, even if that means justice is not served?. Should judges take an intermediate posture between partisanship and disinterest?  Justice is represented as blind (presumably to bias), but should it also be blind to reality.  Others may differ, but we think judges have a responsibility to do the best they can to see that substantial justice is done.  Real cases are not like moot courts, contests, where one picks a winner by judging the skill of the contestants, rather than the merits of the case..

There is also the prestige, the robes, the attendants, being addressed not by name but as "Your Honor”, having people rise to their feet when you enter the courtroom. You live in a world where courtiers (but not necessarily courtesans) are habitually subservient to you (or pretend to be).  None wishing to incur your displeasure, they laugh at your witticisms and observations no matter how lame or trite they may be.  As a judge, you are king of the world, as long as your world is bounded by the four walls of the courtroom.

Right after law school I had the privilege of working four years in the New York County Supreme Court (with occasional months in the Bronx, overlooking Yankee Stadium) and I learned that there was no more insular climate than that which surrounded the judiciary.  Judges were lionized by attorneys who may today or someday have matters before them.  They were invited as guests to various events, some providing food and offering drinks. Some judges receive honors and awards over the years from various charities, with accompanying plaques, which they display on the walls of their chambers. There is probably less stratification and fewer perks in the courts now than at the bygone era when I apprenticed there, but courts are distinctly hierarchical and scarcely models of social equality.
 
As for the Federal courts, the magnificent marble palaces which house the judges and their staffs have provided a new dimension of opulence to civic architecture.  The Daniel Patrick Moynihan Courthouse at 500 Pearl Street, said to have cost a billion dollars to construct, is a structure worthy of Cheops.  Judges occupy spacious chambers there and in the 37 story tower at 40 Centre Street (completed in 1936 and now named for Justice Thurgood Marshall). The two courthouses have suites for each judge on the Second Circuit and the Southern District of New York, as well as courtrooms, jury rooms, and cells in the basement, which, a guide pointed out, housed Julius and Ethel Rosenberg while they were on trial upstairs.  

Oddly Federal judges, who work in luxury and can decide cases worth billions of dollars are paid so modestly that, at least in New York, they have a hard time making ends meet. The picture suggests blackbirds starving in a gilded cage. It may be argued that judges also cannot afford to serve are free to leave the bench; the servitude is not involuntary, there will be no shortage of suitors for the vacancies. But that rings hollow when we are searching for excellence.  On the other hand, for public sector lawyers, a judgeship often brings an increase in salary. For those in the private sector, it either means a substantial reduction in compensation, or they are pretty unsuccessful lawyers.  We believe it would be preferable to have a balanced bench, composed of lawyers with a variety of professional backgrounds, public and private.  Although Federal judges often come from private practice, state and local judges frequently are Legal Aid alumni or law secretaries to other judges who have climbed that ladder.. 

In fact, most judges work hard and serve ably.  In no way is this article intended as an attack on judges (They are sensitive, like the rest of us). They feel repressed at not being able to respond to press criticism, which is sometimes fair and sometimes unfair.  Hopefully, they get over it and do not take it out on the litigants before them.

.There are particular problems however, in Brooklyn, the the appointed Federal judges and U.S. Attorneys in the Eastern District are generally substantially more able than the elected State Supreme Court justices, some if whom were selected by former Assemblyman Clarence Norman Jr., the Democratic leader of Kings County.

Norman has now been convicted thrice (he was acquitted once) of acts which are corrupt but relatively minor.  It is said that this is because there is insufficient to evidence to prosecute for what are said to be greater sins, selling judgeships, but we cannot fairly say he is guilty.  Brooklyn D.A. Charles (Joe) Hynes has been both praised and criticized for these prosecutions, but the technique is similar to prosecuting and convicting Al Capone for income tax invasion because the witnesses to the murders he is said to have committed were either deceased or, for some reason, uncooperative.    

We reaffirm our belief that judges are, for the most part, honest and decent men and women working to the best of their ability. There is a substantial question over whether, with present methods of judicial selection, their ability is high enough to provide a high level of justice.  Some judges are exceptionally good, and a few are really bad.  Another factor is that judges'  minds and attitudes change over the long years they are on the job.  Like other people, judges may become senile, arrogant, cranky or bored as their brains shrink over the years.  Such behavior is difficult to punish unless it becomes extreme. A bad judge is like a rotten apple, except that it is much easier to dispose of a bad apple than a rotten judge.
 
The core issue in judicial selection should be which method will lead to better judges, and at the same time be fair to the community, both legal and non-legal.  If knowledge of the law were the only criterion, we could give a civil service tests similar to the bar exam, and select the highest scorers to be judges.  In France, there are competitive examinations for entrance to a two-year school that trains judges, which one attends after completing a three year program at law school.  Their judiciary is appointed from alumni of this elite school; they do not elect the French judiciary. That's one way.

In the next article, we will discuss the pros and cons of various methods of judicial selection.   We invite people with opinions on the issue to send us their views, which we will make available on our blog.

Correction:
A reader, David Levine, now of Hobe Sound, Florida, has advised us, via Jerry Skurnik, that, in 1973, the Conservative Party nominated Justice James Leff for the Court of Appeals, not Judge Charles Breitel, who was the Republican-Liberal candidate. They chose Leff in an unsuccessful effort to defeat Breitel, a liberal Republican who had served under future Governor Thomas E. Dewey, who at the time was New York County District Attorney. 

Amplification
The Judicial Screening Panel for the vacancy on the Court of Appeals caused by the retirement of Justice Albert M. Rosenblatt on December 31, 2006 recommended these seven candidates for consideration by Governor Spitzer:

 Juanita Bing-Newton, administrative judge of the New York City Criminal Court; George F. Carpinello, an Albany lawyer; James A. Yates, Supreme Court justice in Manhattan; Theodore T. Jones, Jr. Supreme Court justice in Brooklyn; and three justices on the Appellate Division: Richard T. Andrias, Steven W. Fisher and Thomas E. Mercure. 

Governor Spitzer appointed Justice Jones to the Court of Appeals on January 14, 2007, where he will be known as Judge Jones.  He may serve until December 31, 2015, the last day of the year in which he will turn 70.

Judges or Justices?
In New York State, the seven members of the Court of Appeals, the state’s highest court, are called Judges (one is Chief Judge). Members of the State Supreme Court, a trial court, and the four departments of the Appellate Division (intermediate appeals courts), are called Justices. 

The reverse style is followed in the Federal court system. The nine members of the United States Supreme Court are called Justices (one is Chief Justice), while men and women on the twelve  circuit courts (intermediate appeals courts) and district courts throughout the country are called Judge.
 
#355  2.28.07   2165wds