NY Chief Judge Story Suggests Continuation of Corruption

Heir Unapparent
Judicial Reports by Jesse Sunenblick - November 5, 2008
jsunenblick@judicialstudies.com

The departure of Chief Judge Judith S. Kaye might herald significant change — but not in the ways that you might think. The imminent retirement of Chief Judge Judith S. Kaye has observers across New York speculating about a possible shift in the ideological balance of the State’s highest court. In fact, that’s not likely at all. Gov. David Paterson is all but guaranteed to replace one liberal Democrat (Kaye) with another. And with none of the four appointees by former Gov. George Pataki up for reappointment until 2014 — the court’s political equilibrium is unlikely to change. Judges Theodore Jones, Jr., and Carmen Ciparick will continue to constitute a reliable liberal voting bloc (with whoever joins them on the court), while Judges Victoria Graffeo, Susan Read, Eugene Pigott, and Robert Smith will still lean to the right (though Smith is a bit of a wild card). The favorites to replace Kaye include another liberal Democrat, former Chief Administrative Judge Jonathan Lippman — who in May 2007 was appointed Presiding Justice of the Appellate Division, First Department — as well as Jones and Ciparick. And their effect on the day-to-day workings of the Third Branch of New York government will likely be as, or more, important than their jurisprudence.

THE FAVORITES: A QUICK LOOK

Lippman has fought the “career administrator” label, despite writing a string of noteworthy opinions since joining the Appellate Division. Among those rulings was the court’s unanimous verdict in Nash v. Port Authority, in which it upheld a landmark 2005 jury verdict finding the Port Authority primarily responsible for the 1993 terrorist bombing of the World Trade Center. Although “[t]errorism has for decades posed a dire threat to ordered life in free and open societies,” Lippman wrote, “its specter cannot justify the view that performance of the duties we have traditionally relied upon as essential to the preservation of our security may be generally excused as futile.”

Jones, the court’s newest member, and Ciparick, its ranking elder, are both minorities. But they are also a study in contrasts. Jones is an African American who practiced law with Clarence Norman, the Brooklyn Democratic Party boss subsequently convicted of accepting illegal campaign contributions. In 1990 Jones won election to State Supreme Court (he was re-elected in 2004), and in 2006 he was selected as Administrative Judge in the Civil Term in Queens. Since being appointed to the Court of Appeals by then-Gov. Eliot Spitzer in early 2007, he apparently has shifted his fellow jurists in a measurable way. Ciparick, by contrast, has been a close jurisprudential ally of Kaye’s. Appointed by then-Gov. Mario Cuomo in 1994, Ciparick is the first Hispanic ever to serve on the State’s highest court. In her six dissents since Jones joined the court, only twice did Ciparick team with somebody other than Kaye; indeed, their voting records are almost identical since 2001. Her opinions, moreover, are known for having a soft touch. (She was, of course, not leading the Court at the time.)

A QUESTION OF INFLUENCE

If Ciparick gets the nod, the question well might be how she will react without Kaye by her side. “There’s nothing from her past, her writing, that suggests she’ll be the kind of Chief that will push the court strenuously, be an arm-twister, particularly adamant about pushing her agenda,” said Albany Law School Professor Vincent Bonventre. “Her promotion may allow the Pataki constituency to wield a stronger stick.” But Bonventre also notes that her diplomacy has had its advantages. Ciparick’s tactful opinion in the hotly contested 1995 case, Campaign for Fiscal Equity V. New York State — in which the court held that the New York State Constitution ensured a “sound basic education” for all public school students and that further school funding was required — might well have prevented legislators from stiffening their resistance.

Jones, on the other hand, has dissented eight times since his arrival, teaming up with every sitting judge except Ciparick. And in 16 split decisions since his arrival, Jones has voted for the defense a staggering 88 percent of the time — which, according to statistics compiled by Bonventre, has caused the court’s six other judges to swing leftward, too. (For the full analysis, see the statistics here.) “Whenever there seems to be a strong argument for the accused, Jones is there,” said Bonventre. “Numerical breakdowns like that have so many variables because the sample size is just too small,” said former Court of Appeals Judge and Poughkeepsie attorney Albert Rosenblatt. “You need to do an analysis of every single case to draw reliable conclusions.” But Bonventre disagreed. “I’ve been doing this for 20 years, and some people always say that. In a collegial court like this, judges only dissent when it’s a matter of high principle. The divided cases you see publicly are only a fraction. When you take that into account, it indicates how revealing these cases really are. For the judges, these are hot button issues. Normally, there’s a centripetal force to get as much unanimity as possible.

“We can’t necessarily ascribe this to Jones’ leadership — he may or may not be going in there and beating everybody up. But something is happening here, and it’s coterminus with him being promoted to the Court.” According to Abraham Gerges, who took over Jones’s job as Administrative Judge in the Civil Term of the Brooklyn Supreme Court, if Jones is somehow wielding his influence, it comes less from aggressiveness than persuasiveness. “He knows how to make people feel good even though it may be a hard task,” said Gerges. “He has a wonderful way of saying things to people and making them feel good about themselves. People really loved him here. It’s a soft spoken style. There are people who scream, and there are people who can get things done by talking nicely.”

A QUESTION OF COLLEGIALITY

Personality might well matter on a court noted for a tradition of consensus. What Bonventre calls a “collegial court” is rooted in historical perspective. “I’ve been arguing cases there since 1965,” said Brooklyn Law School professor William Hellerstein. “It was never a court that was really fractured the way the U.S. Supreme Court or circuits were. In all the years, I never sense that kind of cleavage. There were very few dissents, and almost none with snippy retorts. There was never that kind of tension, just the sense of resolution on an issue.” “Kaye was always someone who liked to bring people together, not apart,” added Hellerstein. “She doesn’t like discord. She’s a person who likes to reason together and come to an agreement.” But the vetting of Patterson’s choice might well focus on administration, more than judicial philosophy. At least half of the Chief Judge’s job is to act as CEO for the State’s huge Third Branch of government.

That’s why the State Senate Judiciary Committee, which has 30 days after the Governor makes his selection to confirm or reject the choice, seems unlikely to pursue the issue of Jones’s voting record — even if the panel is still chaired by pro-death penalty Republican Senator John DeFrancisco. In an interview, DeFrancisco stressed the position’s administrative responsibilities, though he was careful not to express any preference for Lippman, despite his specialty in this area. “We’d hope to select someone willing to cut back on the ever expanding administration in [the Office of Court Administration], DeFrancisco says, “someone who will cut the beaurocracy that’s developed over the past few years. Especially now that Governor is calling for cuts — everybody has to participate, including OCA.” “More and more people are administering what happens in the court, as opposed to being judges,” he continued. “We have commissions upon commissions, studies upon studies. But the more efficient way to move cases and dispense judgment is to provide the resources at the court level, as opposed to the administrative arm. If I’m still chairman, we’ll bring it up during confirmation his year.” “The choice is up to the governor, said OCA spokesman David Bookstaver, while declining further comment.