New York has announced seven potential replacements for the Court of Appeals seat vacated by Judge Susan Read, who retired this year. And New York’s judicial selection for its highest court — and the reason that I write — looks nothing like the potential nominees for Supreme Court of the United States.
As previously noted here when discussing Court of Appeals nominees, I want to see practicing lawyers (or judges that used to be practicing lawyers) get elevated to the top bench. I want to see the same at SCOTUS, using a method I called the “tissue box test,” but that is never seen.
Chief Judge John Roberts: Harvard Law School
Antonin Scalia: Harvard Law School
Anthony Kennedy: Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg: Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School
But it looked like this on New York’s top court:
Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo: Albany Law School
Susan Phillips Read: University of Chicago Law School
Robert S. Smith: Columbia Law School
Eugene F. Pigott, Jr.: University at Buffalo Law School
Theodore J. Jones: St. Johns University School of Law
And what does the line-up of potential judges look like to replace Judge Read? Like this:
One of the problems we currently have in SCOTUS selection is the part about them serving for a lifetime in the same seat. Presidents then try to pick young judges — late 40s or early 50s — that might sit on the bench for 20-30 years. Or potentially longer. With people living longer lifetimes, and slower turnover for a seat, the stakes have risen dramatically from the days the republic was founded. And there are plenty of people out there who think that should change.
Rather than the top court being the capstone of a long career, during which, hopefully, much was learned, it becomes the career itself and folks learn on the job.
But a 14-year term — which is what New York has — and a mandatory retirement age, leads to constantly changing seats. That leads to a different variety of judges, as we don’t have as much stake in any one judge as the federal equivalent.
While I limit myself here to an analysis of law schools — to the degree that this shows some variety — Scott Greenfield over at Simple Justice thinks there is not enough diversity, based instead on philosophy:
But in law, diversity isn’t built on gender or race, or ethnicity or ancestry. It’s built on legal philosophy, and legal experience. And what you don’t see are two things: lawyers who spent a day of their career working in the trenches on behalf of a criminal defendant, and lawyers who didn’t get a (often sizeable) paycheck from an employer.
There are many ways to view diversity, of course. Greenfield says that the lack of a criminal defense attorney or person with solo or small practice experience shows a lack of diversity. I, on the other hand, see the bar that SCOTUS has established with its Harvard/Yale fixation, and am happy to see that bar easily vaulted by people coming from diverse places.
This post isn’t about which New Yorker should sit on our high court, but rather, about the need for limitations on the power of any one individual. And that comes, in large part, from having a constantly changing dynamic bench from a diverse legal background instead of a stagnant one from a homogenous legal background. For the stagnant homogeneous ones attain too much power.
It isn’t often you hear about a judge engaging in fisticuffs with a lawyer appearing before him. Fights may happen in the legislaturesof othercountries, but it just doesn’t happen in an American courtroom with a jurist. Unless, I guess, that courtroom is in Florida where this happened.
As reported in Florida Today, in an incident in Brevard County, Judge John Murphy first said if he had a rock he would throw it at the lawyer and then it went quickly downhill from there, like kids on a playground:
Murphy and assistant public defender Andrew Weinstock exchanged words in a hearing Monday morning. The exchange escalated, and video records Murphy challenging Weinstock: “If you want to fight let’s go out back and I’ll just beat your ass.”
The men disappear off camera, to a hallway behind the judge’s seat, and loud banging and cursing can be heard. The judge emerges, out of breath, but the attorney does not.
The issue was a simple criminal matter where the judge wanted the public defender to waive the right to a speedy trial. He refused to waive and asked for a trial date.
Tempers flared with that very short interaction, the two of them charged to the back hallway, you can hear the words “Do you want to fuck with me?”, a scuffle takes place and the web blows up with stories about it. Just Google “Judge John Murphy and Andrew Weinstock.”
Here is the short video — I found a version without commercials:
Most websites that have covered the matter have excoriated Judge Murphy — who has now taken a leave of absence for anger management classes. This is rightfully so, as no judge should be challenging a lawyer to a fight, then leaving the bench with the person challenged, and then engaging in physical contact with him (and I think I’m safe with the pronoun “him.”)
But since Judge Murphy is such easy pickings for criticism, I’d like to focus on the conduct of the lawyer.
The problem isn’t with any legal argument that he made on behalf of his client. The rule of thumb is simple: Make your argument and then listen to the judge’s ruling. If you expect to lose, it is your job to make sure that it’s all on the record for an appellate court later on.
But what you can’t do, as the lawyer did here, is be belligerent and cutting off the judge when he says “sit down.” This doesn’t help the client. Not. One. Bit. And helping the client is the only reason he is standing in the courtroom well in the first place.
One of the first things a lawyer learns about life in the well of the courtroom is that when the judge speaks, you shut your mouth and listen. Because the judge is in charge, whether you like it or not.
What’s more, when the judge uttered the now-(in)famous words, “If you want to fight let’s go out back and I’ll just beat your ass,” the lawyer charges to the door to go “out back” before the judge is even finished with his rhetorical comment. It was like he was eager to go fight with the judge, either with words or otherwise.
Or at least I presume the judge’s comment was mere rhetorical nonsense based on the tone used, and not a real threat. But whether rhetorical or not, the lawyer’s job is to decline the offer, stay put in the courtroom, and protect the record for the client.
I’ve seen plenty of angry judges in the past, though perhaps not as many as my brethren in the criminal defense bar who carry the baggage of bad apples with them. And I’ve seen plenty of angry lawyers yelling at each other in depositions and in courthouses.
My own tactic for screaming lawyers, which I’ve used several times, is to respond by simply saying, “You’re screaming.” This usually pisses them off and they get louder. Eventually they cool down when they realize they are the only ones engaged that way and making asses of themselves.
When threatened, I have simply ignored the threat and continued doing what I was doing as if it never happened. (Unless the threat relates to a response to this blog, in which case I publish it).
If a judge is out of line, it is not the job of the lawyer to fight, but to make sure it is placed on the record.
The lawyer’s job when faced with a difficult circumstance is to hand the other person the rope with which to hang themselves. And protect the record.
This lawyer fouled up. Because it isn’t about him. It’s about the client. And the record. Which most definitely is not made in the hallway behind the bench.
It isn’t my intention to parse that list here, or the next list that comes out with respect to the late Judge Jones. Rather, it is to remind you that New York has a long tradition of elevating practicing lawyers, and judges that used to be practicing lawyers, to high positions.
While this would seem to be pretty obvious — who but a practicing lawyer could appreciate much of the procedural nuance and nonsense that takes place — it bears repeating due to the stark contrast with the US Supreme Court and the national political stage.
Back in 2009 President Obama needed to fill the seat vacated by Judge Souter. Before he selected Sonia Sotomayor, I wrote about the need for having lawyers who had once practiced in the private sector up on the bench. I called that The Tissue Box Test, based on lawyers knowing what it is like to have sobbing clients in the office, and trying to deal with the legal issues that brought them there.
I urge you to read it.
But if you don’t want to click that link, this is snippet:
I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.
There is more at the link, and what I wrote back then still holds true today. It isn’t just political philosophy that is important, but having a true appreciation for the problems of desperate individuals trying to obtain a small bit of justice.
I hope that, as analysis of the judicial list goes on, that these will be considerations. For all of the judicial philosophizing in the world won’t make up for decisions that treat people as merely “interesting issues.”
In other words, beware those with a lifetime in academia. Beware those that never ran an office, worked on behalf of individuals or made a payroll. Beware those who have not had one-on-one dealings with those frantic for legal service.
And look for those that kept a box of tissues on their desks to hand to the clients in need.