Mayor Builds Legacy With Appointments of 'Highly Qualified' Civil, Family Court Judges

Bloomberg Builds Legacy With Appointments of 'Highly Qualified' Civil, Family Court Judges
The New York Law Journal by Daniel Wise  -  December 12, 2011

On the day before Thanksgiving, Mayor Michael R. Bloomberg carved two hours out of his schedule to interview eight candidates for Criminal and Family Court.  "We are a nation of laws, and the independence of the judiciary is a bedrock of our society," Mr. Bloomberg said in an e-mail to the Law Journal. "It is a principle on which this nation was founded and essential to the success of our country. So appointing the highest quality individuals to the bench is a responsibility I take very seriously."  The candidates Mr. Bloomberg selects in the next several weeks to fill vacancies on the Criminal and Family courts and for interim Civil Court positions will join 58 new judges the mayor has appointed since taking office in January 2002. With more than two years left in his third and final term, he is likely to match or surpass the 67 named by his immediate predecessor, Rudolph Giuliani, during his two terms.  By now, Mr. Bloomberg has put his stamp of approval on many of the Giuliani appointments as well. In addition to his own choices, the mayor has reappointed 119 judges selected by his predecessors in the continuation of a "merit" selection process instituted by Mayor Edward I. Koch in 1978. In fact, Mr. Bloomberg has appointed or reappointed virtually all of the city's authorized Family and Criminal Court judges. His own choices represent 55 percent of the judges sitting in Criminal Court and 34 percent of those in Family Court. When reappointments are added, he has had a hand in the careers of 62 percent of the judges sitting in Criminal Court and 76 percent of those in Family Court. (Elected Civil Court judges also are assigned to sit in those courts.) Moreover, Mr. Bloomberg's influence extends beyond the courts where the state Constitution grants him appointment authority. Eighteen Bloomberg appointees have been named as acting justices in Supreme Court, where they preside over felony cases and large commercial disputes.  Finally, state court administrators have named eight to supervisory positions, including Edwina Richardson-Mendelson, the current administrative judge of the city Family Court, and Barry Kamins, who oversees all criminal courts in Brooklyn.  "It's a huge legacy, and he's proud of it," said Robert G.M. Keating, the vice president for strategic planning at Pace University, the vice chair of the mayor's Advisory Committee on the Judiciary. An interview with Mr. Bloomberg is the culmination of an appointment process that can take up to eight months to complete. The mayor has "followed the process to a T," said Corporation Counsel Michael A. Cardozo. In an executive order the mayor issued in March 2002, he committed himself, as did former mayors, to naming new judges only from a list of three "highly qualified" candidates nominated for each position by the 19-member advisory committee. Mr. Bloomberg's final choices are subject to a public hearing and to further screening by the New York City Bar. Elizabeth Donoghue, chair of the city bar's Judiciary Committee, said that the mayor's committee and the city bar have developed a "highly professional, very smooth relationship. They have done an excellent job advancing high-quality candidates." The advisory committee also screens candidates for reappointment, sending a single name to the mayor if it is satisfied that he or she meets its and the mayor's stringent criteria for serving on the bench.

Consumer of Legal Services

At the final interviews, Mr. Bloomberg shows an "uncanny ability" to elicit information, often plucking details from "left-field" on a resume, to help him determine whether candidates have the "intelligence and people skills" to make a good judge, said Mr. Cardozo. Mr. Cardozo said that Mr. Bloomberg often quizzes prospective judges about ideas for reforming the courts. The mayor is "very interested in 'change agents,'" said Mr. Keating. Mr. Cardozo is one of four top mayoral aides who talk to judicial candidates before Mr. Bloomberg sits down with them. The others are John Feinblatt, the mayor's criminal justice coordinator, Deputy Mayor Carol Robles-Roman and Norma Abbene, Ms. Robles-Roman's chief of staff. Mr. Bloomberg said that he relies on the advice of his aides, "particularly their views on the candidates' experiences and judgments as lawyers. But the final decision is mine, and the interview I conduct is an absolutely essential part of the decision-making process." Mr. Bloomberg's own background as a businessman represents what may be the most significant change in the way judges are appointed. Unlike his three predecessors—Mr. Giuliani, a former U.S. attorney, David N. Dinkins and Mr. Koch—Mr. Bloomberg was not trained in the law.  Mr. Bloomberg approaches his appointment responsibilities as a "consumer of legal services" rather than as a lawyer, said Zachary Carter, a partner at Dorsey & Whitney who has chaired the judicial advisory committee since 2002. "In selecting judges my goal has been to appoint exceptional people of the highest quality. They must represent a wide spectrum of the legal community and of our city," Mr. Bloomberg told the city bar in 2003. They must possess uncommon wisdom, knowledge and experience. They must understand how to better serve New Yorkers, by administering justice in innovative and creative ways. They must be tough and compassionate. They must have common sense and impeccable honesty."

Mr. Bloomberg in his e-mail said, "I am not looking for someone who will agree with me on every issue presented, but rather someone who will look at the facts and the law, and then drawing on his or her experiences and knowledge, reach an independent, practical, well-reasoned judgment." The mayor's approach has translated into a more diverse crop of appointees according to some measures. For one thing, he has greatly increased the number of defense attorneys named to the bench. He also has named more women and minorities in a quest for diversity that has involved extensive outreach by advisory committee members, said Ms. Robles-Roman and others. Mayor Michael Bloomberg swears in Criminal Court judges he has reappointed during a January 2009 ceremony at the Emigrant Industrial Savings Bank Building. Carol Robles-Roman, deputy mayor for legal affairs, stands behind the mayor. Of his appointments, 34 have been for Criminal Court and 20 for Family Court. Another four are serving as interim Civil Court judges, temporary positions that often function as way stations and training grounds on the road to appointment to the other courts.  All told, 30 of Mr. Bloomberg's 58 new judges have been women, 17 minorities and three openly gay. Twenty-one have been prosecutors and 20 Legal Aid attorneys. Twenty-nine have worked in the state and federal court system in some capacity. Six have served in the city Law Department and 11 in other city agencies. Twenty-six have put in time in private practice, five at the time of their appointments. They have lived in all five boroughs.

Ms. Robles-Roman said that the mayor fosters diversity of "every manner possible," whether it is racial and ethnic background, professional experience or neighborhood ties.  In fact, said Mr. Carter, the advisory committee sees "lots of different combinations of skills."  Ms. Robles-Roman added that the committee and mayor's aides who review its work do not pigeonhole candidates for particular courts. "We try not to say that they have to be this kind of a judge or that kind of a judge," she said.  Thus, Acting Supreme Court Justice Juan M. Merchan initially received an appointment as an interim Civil Court judge stationed in Bronx Family Court and then as a full-fledged Family Court judge even though he had never practiced in that court. Justice Merchan, a former prosecutor, had what Ms. Robles-Roman calls "a rich portfolio." Senator Charles Schumer has recommended Judge Merchan for a spot on the federal district court.  However, some criminal defense lawyers complain that Mr. Bloomberg's appointees are not always familiar with the way things are done in Criminal Court.  "They don't know how to assess the risk posed by a defendant and fail to understand which cases are going to end up on the junk heap," said one defense attorney.  The defense attorneys complain that inexperienced judges sometimes lack the ability to set appropriate bail. This has resulted in cases where bail was too high for defendants charged with minor offenses or low enough to allow dangerous suspects to be released too soon, they contend.  Moreover, one member of the advisory committee suggested that recent court personnel cuts may put a premium on candidates who already know how the courts work, Family Court attorney referees, for example.  Mr. Carter said that feedback from practitioners about the quality of Mr. Bloomberg's appointments has been "very, very positive," a fact that was generally confirmed by attorneys interviewed by the Law Journal.  Nevertheless, some lawyers faulted the temperament of individual judges. Thus, one lawyer said of a Bloomberg appointee in Criminal Court, "it's very, very difficult to practice law in front of him; it's as if no one ever practiced law except him. He gives the prosecution and defense a hard time." Another acknowledged that the judge "is smart" but added that he is "nasty and curt when there is no reason for it."

Some of the negative comments may come from attorneys who have not obtained good results from particular judges. However, Mr. Cardozo acknowledged that "not everybody is perfect." Screeners add that they do not have a "crystal ball" with which to predict how a rookie judge will react to the challenges he or she faces when on the bench.  But judges often are initially named for short terms, and must face the committee and the mayor as often as three times in three years, a frequency that provides a check on rookie mistakes and unjudicial conduct. More than half of Mr. Bloomberg's picks—33—have had to convince him that their performance merits reappointment.  Mr. Cardozo said that some judges do not seek reappointment because they have reached the mandatory retirement age or are simply tired of the job. Others may see the "writing on the wall" and not bother to put in their names. Only "a few" actually have sought reappointment and been turned aside by the committee, he said.  Mr. Bloomberg has made all his choices from the lists of three highly qualified candidates forwarded to him, said Desirée Kim, the committee's executive director.  Nor has he denied reappointment to any candidates sent to him, though five have been given less than full terms. All five ultimately received full terms.  Ms. Robles-Roman said that the mayor has had "absolutely outstanding" candidates to choose from among the 423 attorneys who have applied for judicial posts—some more than once—while he has been in office. The aspirants have had "a real commitment to and desire for public service," she said, "a personal mandate to make people's lives better."  Applicants have been "superb, just superb," said Mr. Keating.  However, although they say that there has been a steady stream of highly qualified candidates, officials have been troubled by the fact that many "senior public servants"—experienced lawyers holding top positions in government agencies—are not applying because they would have had to endure a huge pay cut if selected.  "Judicial salaries pose a significant hurdle in our efforts to attract a broad cross-section of the legal community from which to select potential candidates," Mr. Cardozo testified at a hearing called by a commission on judicial compensation last summer. "There are many qualified practitioners whom we simply never have an opportunity to consider, individuals who wish to serve the public as judges but for whom the economic sacrifice we ask of them is simply too great."  The disparity between the salaries of judges and top-level prosecutors, Legal Aid attorneys and assistant corporation counsels has widened since 1999, when judges had their last raise. Mr. Cardozo notes, for example, that the head of his office's appeals division would have to take a 20 percent pay cut to accept a judgeship.  Ironically, however, there is some evidence that mayoral appointments have gotten older and, presumably, more experienced. The average age of Mr. Bloomberg's appointees has been 48, compared to 44 for Mr. Giuliani.  In any case, officials hope that more candidates will come forward now that a commission has recommended that judges receive a raise. Under its proposal, the salaries of Criminal and Civil Court judges would go to $143,000 from $125,600 on April 1, 2012, and to $159,900 by 2014 unless the governor and the Legislature block the pay hikes. Family Court judges, now paid $136,700, would receive $160,000 next year, ultimately rising to $174,000.

Family Court Challenges

The 20 new judges that Mr. Bloomberg has named to Family Court "have strengthened" the bench and "made it a much better bench than it was," said Martin Guggenheim, a nationally recognized expert on the court who served on the mayor's committee.  That is important, he explained, because the court is a "very difficult place to work," an overcrowded arena where judges must quickly make emotionally wrenching decisions that disproportionately affect the lives of poor minority group members.  Mr. Guggenheim said that the mayor must choose judges "willing to push the city's Administration for Children's Services to move cases where children have been removed from their homes because delay is destructive of family bonds." Likewise, he said, the bench should be diversified so its judges will be more sensitive to the needs and problems of the people that come before it.  Minority group members represent 35 percent of Mr. Bloomberg's appointments, twice the 18 percent of Mr. Giuliani. Moreover, while Mr. Giuliani's appointments were primarily drawn from prosecutors, Mr. Bloomberg's choices have been spread more broadly across lawyers who represented different categories of litigants.  Only one of Mr. Bloomberg's 20 Family Court appointees had spent the bulk of his career as a prosecutor. Three of Mr. Bloomberg's Family Court appointees spent all, or nearly all, of their careers at the Legal Aid Society. By contrast, more than half of Mr. Giuliani's Family Court choices (13 of 22) were lawyers with extensive experience prosecuting juveniles or adults.  Four of the new judges could be described as insiders, having spent most of their careers working for the court, while four others had significant experience dealing with Family Court matters. However, four of Mr. Bloomberg's choices had little previous experience in the court.  Attorneys interviewed by the Law Journal gave rave reviews to several of Mr. Bloomberg's appointments to the challenging court.  One lawyer gave an "A+" to Ronald H. Richter, who was appointed to Queens Family Court in January 2009 and left in September to take over the ACS. The lawyer said Mr. Richter was "very personable on the bench and highly sensitive of the rights of parents as well as the need to protect children in danger." Another called him "brilliant and progressive." A third said "he never spoke down or demonized a parent no matter how serious the abuse charges."

Judge Richardson-Mendelson was appointed to a one-year term in Queens in 2003 and to a full 10-year term a year later. She has a good understanding of "the needs of families and a lot of positive belief in the families that come before her to demonstrate the better part of themselves," said one lawyer who practices before her.  Another lawyer called her implementation as administrative judge of the entire court—a job she was given by the state in 2009—of "time-certain" court dates "hugely beneficial, you no longer have to waste a day to conduct a half-hour hearing,"  Several lawyers also described Judge Ann-Marie Jolly, who was Judge Richardson-Mendelson's chief of staff before her appointment in 2010, as an excellent addition to the bench. One lawyer called her "amazingly respectful of lawyers and litigants and willing to go against ACS." Another said "she knows the law and is good at pushing for settlements."  Judge Maria Arias, who headed a legal clinic for battered women at City University of New York School of Law also received high marks. One lawyer said she "bends over backwards to afford litigants as much opportunity as possible to make their cases." Another portrayed her "as very knowledgeable about the law and sensitive to issues of gender, race and sexual orientation."  The application filled out by candidates for judgeships notes that "A judge may be required to handle emergency applications, cope with media scrutiny, issue quick decision, deal with fractious litigants, recall significant amounts of information, and otherwise respond to extremely stressful situations." It asks if they are "able to perform these tasks on your own or with reasonable accommodation."  According to a few lawyers, several of the mayor's judges have been less than successful in handling "stressful situations" in Family Court, an environment well calculated to bring out a judge's impatience and short temper.  For example, one lawyer described a Bloomberg appointment as "really rude to both litigants and case workers." Another said that "people are afraid of her with reason." That being said, however, the lawyer said the judge is "fair across the board."  Another judge is viewed as possessing "a demeanor of impatience, cynicism and general negativity." Nevertheless, while the judge was reluctant to hold hearings, another lawyer said the judge was willing to take an individualized approach to cases.

Defense Backgrounds

In more than a dozen interviews, defense lawyers gave Mr. Bloomberg's 34 picks for the Criminal Court generally high marks.  Jeffrey Lichtman, who is best known for his representation of organized crime defendants, said that most of the mayor's picks have been good, adding that the mayor's approach to picking judges is no different than his approach to running the city.  "He is looking for judges with real world experience," Mr. Lichtman said, and is "more interested in the system working right than finding judges of an ideological bent."  Particularly welcome has been the selection of Acting Supreme Court Justice Barry Kamins, a Brooklyn-based defense lawyer and former president of the New York City Bar.  Judge Kamins is the author of the treatise "New York Search and Seizure," which one lawyer described as "a bible" that is kept close at hand by prosecutors and defense lawyers alike. Shortly after his appointment, he was designated by state administrators to manage criminal cases in Brooklyn, a position in which he drew good reviews from several attorneys.  Ten of Mr. Bloomberg's appointees, or 29 percent, spent at least 60 percent of their careers doing defense work compared to 4 percent of Mr. Giuliani's selections.  Conversely, 38 percent of Mr. Bloomberg's choices had spent at least 60 percent of their careers prior to appointment as prosecutors; 60 percent of Mr. Guiliani's choices had similar backgrounds. Mr. Bloomberg also has appointed more women to Criminal Court than his predecessors—44 percent of his selections.  Michael Coleman, the executive director of New York County Defender Services, called Mr. Bloomberg's shift toward appointing more former defense lawyers "an extremely positive thing for the bench."  "Historically," he said, "most judges have come from a law enforcement background and having a broader spectrum can only be a benefit and make for a fairer and more balanced system."  But defense attorneys interviewed also praised the approach of some former prosecutors named by Mr. Bloomberg.  Judge Mario Mattei, who was chief of the investigations bureau in the Staten Island District Attorney's Office for 18 years, "is a gentleman who listens and gives you time to make your argument," one lawyer said.  Judge Melissa Jackson, a former veteran Brooklyn prosecutor, is the supervising judge of the Manhattan Criminal Court. A lawyer who has observed her said that she is "a brilliant judge with a sense of street smarts. You respect her decisions even when they don't go your way."  However, some Criminal Court appointees have drawn the ire of attorneys who appear before them.  One lawyer criticized a former longtime prosecutor for "not being actively engaged in settling cases" and "fairly bound to prosecution offers, resulting in clients languishing in jail."  Another, expressing what he said was a common view, described a Bloomberg judge as "punitive to counsel and their clients." The lawyer added, "even though he dismisses cases he feels should not have been brought, he is disdainful to the prosecution and defense alike."

Depoliticizing the Process

Participants in the appointment process insist that neither political influence nor ideology have any effect on Mr. Bloomberg's picks.  "You don't need a rabbi," Mr. Cardozo said. "With this mayor, it doesn't matter who you know or don't know."  Mr. Giuliani was sometimes criticized for not following the advice of his committee and driving judges from the bench because their decisions did not accord with his political views.  In contrast, Victor Kovner, a partner at Davis Wright Tremaine, a former corporation counsel who designed the model for the mayor's screening system, said that Mr. Bloomberg's appointments have "on the whole been totally excellent choices made on a totally non-political basis."  Roger Stavis, a defense lawyer at Gallet Dreyer & Berkey who sat in on the city bar's review of the mayor's judicial candidates, said that Mr. Bloomberg's process is "insulated against political influence, and judges who had done their job conscientiously had nothing to fear about going before the mayor's committee for reappointment even if they had issued controversial decisions." Aides say that Mr. Bloomberg, a Republican-turned-independent, never asks about a candidate's party affiliation. Mr. Carter said that the advisory committee "saw a lot of people who never would have been considered" under a more political process. As a result of the mayor's attitude, Mr. Guggenheim, the former committee member, said members "were willing to say no'' when contacted by the supporters of particular candidates.  Jennifer Baum, a clinical professor at St. John's University School of Law who has held a law school seat on the committee for about 20 months, said that she hears from a lot of people who are convinced that a candidates' success depends on "who you know," but she tells them "they are flat out wrong." Ms. Baum said that Mr. Bloomberg trusts the committee to sift through the qualifications of the exceptionally qualified candidates he receives. "I often forget that the mayor's office is involved at all," she said. Most of the state's judges are elected. While Mr. Bloomberg has said that there are many excellent elected judges, he has been critical of the process by which they are put on the ballot. For example, he wrote in a 2005 New York Daily News column referencing scandals in Brooklyn that a "patronage-driven" process should be replaced by one in which candidates are barred from running unless independent commissions establish that they are qualified.  "We must change the farce of 'electing' judges, which bears more of a resemblance to voting in the Soviet Union than in the United States of America," he wrote.  The mayor's ideas have made little headway, but he is satisfied with his choices made through the appointment process.  "I think the process has worked well and has resulted in some very able and committed candidates being appointed to the bench," he said in his e-mail last week. "I think people understand that to be appointed a judge by me you don't have to have political connections, or belong to any particular party, or have a key person to support you. You don't have to be someone who is 'liberal' or 'conservative.' What you need is to be smart, practical and independent."  Additional reporting by Jeff Storey. Research assistance by Laura Haring.  Jeff Storey can be reached at jstorey@alm.com.


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