April 12, 2008 -- For three years now, New York's chief judge, Judith Kaye, has been demand ing pay raises for all 1,300 of her robed colleagues. They haven't had a salary hike since 1999.
Problem is, Assembly Speaker Sheldon Silver won't OK a pay raise for them unless his members get one, too.
So what's Judge Kaye gone and done? Why, just what you'd expect a lawyer to do: She's hired her own high-powered attorney - former White House counsel Bernard Nussbaum - and sued. Now, we realize that 15 years in Albany likely has made even Justice Kaye oblivious to the inherent conflict of interest here, but how can any judge be expected to preside dispassionately over such a case when his or her own paycheck is riding on the outcome?
Answer: Lawyers, who craft loopholes for a living, have concocted something called the "rule of necessity," which authorizes trial judges to hear cases affecting their own interests. Convenient, no? But what happens if this case winds up before Kaye's own Court of Appeals, the state's top tribunal?
As the named plaintiff, can she pull a super rule of necessity out of some dusty law book and decide the appeal - maybe all by herself? Or would she have to recuse herself - and let her colleagues on the high court decide whether whopping raises for themselves are permissible under the ordinary rule? What Judge Kaye really wants is lawmakers' refusal to grant raises declared unconstitutional. (She can't actually force the Legislature to grant raises, of course; you know, separation of powers, and all that.)
Basically, she wants a judge to order the state (whatever that is under her rule of necessity) simply to bypass the Legislature and start writing checks for the increased pay - to $169,300, a 20 percent hike, retroactive to 2005 - on its own. As it happens, Judge Kaye's financial arguments are not entirely without merit: State judges probably do deserve raises - most of them, anyway. But, again, those salary hikes have been held hostage to Albany politics. Just like a lot of other worthy public-policy goals - tort reform and tax relief, to cite just two.
Maybe Kaye can conjure a "rule of necessity" to deal with them, too. No? Didn't think so. Bottom line: Judges who feel they can't live on their current pay are free to quit. Why should they be exempt from Albany's continuing dysfunction?