New York Civic by Henry J. Stern - February 11, 2009
Sheldon Silver is, in some ways, the de facto Governor of New York State. He has been Speaker of the Assembly since 1994, and his authority and influence have increased over the years. His counterpart, former Senate majority leader Joe Bruno, resigned last year and now faces a major Federal indictment. The Governorship, once held by his rival, George Pataki, went to Eliot Spitzer, who lacked the stability to be effective politically. When Spitzer was forced to resign, his lieutenant, David Paterson, became governor. Although right on principle on budget cuts, Paterson seems to have turned that into a losing hand. The Senate selection process was totally mishandled. Now, the Speaker has extended his sway by persuading Paterson, the de jure governor, to appoint Silver’s childhood friend, neighbor, and lifelong protégé, Jonathan Lippman, as chief judge of the Court of Appeals. The Senate this afternoon confirmed Judge Lippman’s nomination by voice vote, as reported by the New York Law Journal. The judge will take the center seat at the courthouse at 20 Eagle Street in Albany tomorrow. He will serve through 2015, when he will reach the mandatory retirement age of 70.
Wayne Barrett’s lead story in today’s Village Voice chronicles Lippman’s rise. The cover features an excellent cartoon by Robin Eley, and the story begins on p14. The p1 headlines are: SHELLY SILVER GAMES THE GOVERNOR TO GET A CHILDHOOD PAL THE STATE’S TOP COURTS JOB and PATERSON DUPED AGAIN.
Barrett details Lippman’s ascent through the court system over forty years. He tells how Silver manipulated Lippman’s election to the Supreme Court in 2005 by securing the nomination of all five parties for him, which involved getting a law passed creating a new court seat and bartering away an existing seat to a Republican hack. In January, Silver is said to have made a deal with Paterson to get Lippman appointed Chief Judge by pledging his support for Caroline Kennedy for Senator, whom he had previously opposed but not defamed. As luck would have it, Paterson soured on Kennedy and went with Congresswoman Kirsten Gillibrand, daughter of a lobbyist who is close to former Senator Al D’Amato. Kirsten’s career as a lawyer and shill for Big Tobacco is detailed in Tom Robbins’ informative article on p16 of today’s Voice.
The Times this morning gives a more complimentary portrait of Lippman in a story by John Eligon that starts on pA25. It deals with a number of the issues Barrett raises, but in a matter-of-fact way, as if there were nothing unusual about what happened. I have never heard of John Eligon. Judging from his article, he is a literate, conscientious journalist, but certainly not a muckraker, nor is he really familiar with the characters he writes about. The assignment editor should probably have given the story to an old hand rather than a newbie. Compare the Times story with the Voice account of events. Jonathan Lippman is highly regarded by many people for his career as a court administrator. He has many admirers, principally his mentor and sponsor, retiring Chief Judge Judith Kaye. There is nothing wrong with cultivating the people you work with, as long as it does not affect your mission to reform the courts. It is certainly better than antagonizing people, as so many politicicans appear to do so effortlessly.
The fact that Lippman was a childhood friend of Silver on Grand Street on the lower east side does not disqualify him from judicial service. On the other hand, it should not be the principal reason that he was appointed. Experienced jurists who have earned respect for their learning and wisdom have been passed over to make a man who hardly if ever practiced law, and who is a newly-minted political judge, with the scantiest of published opinions, the Chief Judge of the Empire State. It just does not add up, except that… Sheldon Silver was indispensable to Lippman’s becoming a Supreme Court judge. Hopefully, he will see Lippman as an ornament to his career, rather than an agent of his views, which over the years have demonstrated particular concern for plaintiffs and criminals. There is a connection. They are, after all, the fee-paying clients of private attorneys, and Silver today receives undisclosed but substantial income from a negligence law firm whose interests he has gone to some lengths to support, presumably because he shares their values. On the vicarious liability issue, for example, it took an intervention by the United States Congress to upset a doctrine already rejected by 49 ½ state legislatures, and only maintained by the New York State Assembly under the influence of the Speaker, who went so far as to appoint three new committee members the morning of a meeting to keep the bill blocked in committee. That was legal.
In the present situation, neither Lippman nor Silver has been accused of a crime or any corrupt or immoral act. . It does show how far reaching is the Speaker’s influence, and how the Governor is not fully aware of facts that might help him make a sound judgment. His inexperienced and squabbling staff does not serve him well, but how can they when he himself is said to decide issues on whims or on the basis of who had last dibs at him. Paterson needs a strong successor to Charles O’Byrne, who was forced from his staff in October for failure to file tax returns. In other matters, O’Byrne showed good judgment. The ex-Jesuit is also close to the Kennedy family. One opinion Judge Lippman wrote may give some indication as to his thinking. In Nash v. Port Authority, 51 A.D. 3d 337 (2008), the Appellate Division upheld a jury verdict holding the Port Authority 68% responsible for the 1993 bombing of the World Trade Center and the terrorist bombers 32% responsible. That opinion was based on the Port Authority’s failure to do anything to protect its garage despite numerous reports indicating potential danger from terrorists .
Although it seems ludicrous for terrorists to blow up and building and get only one third of the blame for such a horrible crime, we suggest you read the court’s opinion and make your own decision. Our view is that the victims should be compensated by assets seized from Al Qaeda. We believe in criminal responsibility, and would not sue the United States Navy if we were injured at Pearl Harbor. But then again, we do not make a living by filing lawsuits and collecting our fees from the proceeds. Speaker Silver probably agrees with the Nash decision. He is, and has been for most of his professional life, a plaintiff’s lawyer as well as a lawmaker. We hope his sometime protégé, Jonathan Lippman, who has won high marks as a court reformer, does not share his mentor’s views on these issues. Many appellate court decisions come down to what is considered reasonable. The answer to that question varies from judge to judge. With a skimpy judicial record, Judge Lippman cannot be pigeonholed. There are probably more qualified jurists in the court system (Judge Richard Andrias comes to mind, among others). On the other hand, there are many judges who are undoubtedly less qualified. But the governor has appointed this one man to be Chief Judge.
It would be helpful if Judge Lippman’s interest and expertise in court reform bears substantial fruit as he uses the powers of his new office. It is likely that his influence with Speaker Silver will lead to the pay raise that judges have been seeking since 1999. The speaker has tied this issue to pay increases for legislators, a decision which pleases his hungry supporters in the Assembly. A Two differences between the legislators and the courts on the salary issue are l) legislators receive substantial lulus, and 2) they are allowed to practice law privately or operate private businesses, including consulting for state contractors—unless and until they are convicted for such conduct, which they believe to be legal. Former Chief Judge Irving Lehman, brother of Governor Herbert H. Lehman, is said to have purchased his robes, as was the custom in the 1930’s and earlier. Nonetheless, he was a good and honest judge. Obtaining a judgeship by cronyism is better than getting it through bribery, but it is not as good as being selected on the basis of merit, hard as that may be to determine.
The proof of the pudding will come in how well and how wisely Judge Lippman performs on the bench for the six years he will serve (until he turns 70). . We hope he turns out to be moderate and sensible, making decisions based on the law except in those rare cases where there is a social imperative to provide additional rights to the people or even to the state in case of emergency. We hope that the Chief Judge will not think of himself as a state legislator or a community organizer, a second guesser on appropriations or a judicial aggrandizer. Nor do we want a rigid defender of the status quo, nor a judge bound by technicalities and ignoring equity. Above all, we want an honest judge, free from external influences, even from his friends and sponsors. (Although I do not know the judge personally, I knew his late father, Ralph Lippman, who was a leader in the co-operative movement on the Lower East Side. Mr. Lippman was a very good man, devoted to his neighbors and the community, and widely respected. That is a good sign.)
A native New Yorker, Henry J. Stern has served in various capacities in New York City government. In 1973, and again in 1977, he was elected to the City Council as a member-at-large from Manhattan, a position he held for nine years before being appointed commissioner of Parks and Recreation by Mayor Koch on February 14, 1983. He served seven years in the Koch administration, until the end of the mayor’s term, during which he founded the Natural Resources Group, an environmental watchdog for New York City. In 1994, he was re-appointed parks commissioner by Mayor Giuliani and served in that position until 2002.
As commissioner, Mr. Stern was credited with improving the cleanliness and safety of New York City’s 1,700 parks and playgrounds. Most notably, Central Park was largely restored, in partnership with the Central Park Conservancy. He also acquired several thousand acres of new parkland for the city, created over 2,000 "Greenstreets" at traffic intersections, erected 2,500 historic signs, and built over a billion dollars worth of park improvements as part of the capital construction program of Mayor Koch and Mayor Giuliani.
Mr. Stern has received numerous honors in recognition of his environmental protection efforts, including the National Audubon Society Lifetime Achievement Award and the City Club Earthling Award for Environmental Excellence.