Benchwarmers

Everything you never wanted to know about picking judges for an important court you've never heard of

I was warned against writing this column.

"You might think twice about doing that judges story," were the exact, ominous words.

OK, the threat came from my editor, who added: "Nobody cares how judges get picked. Where is that S&M piece you promised?" I did not knuckle under. As you may know, this paper is currently owned and operated by out-of-towners and recent transplants, so I was able to convincingly argue that, aside from rent hikes and Alex Rodriguez, there is no subject New Yorkers get more passionate about than the selection of appellate judges. Please do not cross me up on this.

Here, then, is the unvarnished truth—which only the Voice will tell you—about how New York came to select a rookie judge with a powerful ally as the presiding justice for the busiest and most powerful appeals court in the state.

Already you're thinking, "Appellate court? Presiding justice? Alex Rodriguez?" Bear with me. Part of the problem here is the purposely obscure nomenclature employed by lawyers, who are the only ones who really do care about judges. They care so much that they see the judges' faces in their Grape-Nuts every morning. They address their cereal, practicing small, obsequious remarks like: "Heard Your Honor hit a par four last week. Nice."

Many people erroneously assume that the state's most important court is the Court of Appeals in Albany, which supposedly settles all the big cases. See? You're already the victim of legal obscurantism. Albany? Are you kidding? The state's most important court is right here where it belongs, in Manhattan, at the corner of Madison Avenue and East 25th Street, where is found the magnificent marble headquarters of the Appellate Division, First Judicial Department.

The few non-lawyers who stumble across this structure are immediately struck dumb by the big Greek columns and the statues of half-naked men and women on the roof. This is a building for judges and lawyers only; jurors are not allowed, not only because no jury trials are held here, but because they would befoul the building with dark splotches of chewing gum and half-completed Sudoku puzzles. Oh, yes, there is a also a cadre of heavily armed court officers who are charged with keeping jurors out and making sure there are parking spots for the 16 appellate judges who work here.

You are wondering: Why do they need to drive? What are they, firefighters? This is another sad example of reader ignorance. The former governor, George Pataki, a Republican from Putnam County (I can only tell you it is near the Taconic Parkway), recognized after taking office that New York City's appellate courts were severely segregated. Local judges, overwhelmingly Democrats, held most positions. To remedy this outrage, Pataki commenced a bold integration scheme in which he bussed in judges from upstate to sit on the city's appeals courts. Surprisingly, most of his choices were white Republicans like himself. Opponents of this measure complained (quietly, so as not to be seen as bigots) that the imports were generally of a lower IQ than the locals. Plus, they took up all the parking spots because, of course, they didn't really take a bus to work.

This was the situation that greeted newly elected governor Eliot Spitzer (a Democrat from Manhattan, though he also has a residence in Columbia County, apparently farther up the Taconic). It was day one and everything had to change, so he got right to work on the appellate courts, starting with the First Department in Manhattan, because it handles all the most important cases. Would you want some hick court in Elmira ruling on the likes of High Risk Opportunities Hub Fund Ltd. v. Credit Lyonnais? Of course not.

Spitzer's first task was to appoint a new presiding justice, an opportunity that made the governor's people ecstatic. This plum had fallen into their laps thanks to a display of stunning ingratitude by one of Pataki's own picks. Everyone knew that Pataki had intended, on his way out of office, to name his pal and former counsel, Justice James McGuire, to this top job. McGuire had been especially helpful to Pataki when a federal grand jury in Brooklyn began asking why his administration had granted parole to felons whose parents gave a lot of money to his campaign. McGuire did well: Only a couple of Koreans and some low-level parole aides were convicted.

If he'd been appointed, McGuire would have held this post until 2018, making him Pataki's proudest legacy. (OK, his only legacy.) Sadly, this plan fell apart when the then-presiding justice, one John Buckley, an import from Oneida County (no idea, look it up), refused to step down. Buckley was reluctant to do so because he would've had to go back to wherever Oneida County is. December 31, 2006, came and went. Buckley was still there. This gave Spitzer the right to choose the new presiding justice when Buckley turned 70, which he soon did.

(To quickly recap: The presiding justice runs a big building with Greek columns where many important legal cases are heard and where you, in all likelihood, will never enter.)

Because he wanted to do things properly, Spitzer appointed a special panel to advise him on whom to appoint. This is called "merit selection." It is preferable to elections, because voters are notoriously ignorant (see Bush, George W., Election of). Choosing a new P.J. (common vernacular for "presiding justice"—please memorize) is especially important because he also gets to pick the watchdogs who penalize wayward attorneys. Since Manhattan's hordes of attorneys all live in terror of being cited for wrongdoing, this causes the P.J. (see above) to be viewed as somewhere north of God. His jokes are the funniest ever heard, his wisdom unfathomable.

Unfortunately, Spitzer's panel didn't fully grasp the "merit" part. It selected five candidates as "highly qualified," yet somehow neglected to include two of the First Department's most distinguished members: Richard Andrias, a Vietnam vet with a Bronze Star who is considered such a stellar judicial performer that he has been nominated five times for the Court of Appeals, and David Saxe, another appellate Hall of Famer who is widely considered the best writer on the bench since the late William O. Douglas.

Cynics maintain that the absence of stars like Andrias and Saxe made it easier for the governor to select the judge he ultimately chose, Jonathan Lippman. An amiable insider, Lippman was for many years the court's able administrator and served as a loyal deputy to the state's top judicial officer, Chief Judge Judith Kaye of the Court of Appeals. As for actual judging, Lippman had a late start in the business: He never heard a case until 2004 and wasn't elected to the bench until 2005.

While this may seem an unlikely résumé for someone selected to head the state's busiest court, Lippman's many fans insist he is otherwise superb. The fact that he and his boss, Judge Kaye, have failed to get a raise for the state's judges for nine years should not be held against them, the fans say. And Judge Kaye's reluctance to go along with demands from scores of irate judges who want to sue the governor's ass to get that raise is also irrelevant.

Moreover, Lippman is so good that he is already being touted as a likely successor to Kaye when she has to step down late next year. Recommendations for that post will be made by another special gubernatorial panel.

That is how merit selection works. Who else are you going to trust to pick judges—editors?

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