NO TIME FOR RETREAT
When Presiding Justice Bernard Botein was awarded the Association’s Medal in 1963, he praised the Association for its capacity for righteous indignation. This is a distinction that is thrust upon us. Indeed, some may think that the harm that the political powers that be in Albany endlessly inflict on our judicial system will soon exhaust our capacity for outrage. They will be wrong.
For many years the Association of the Bar of the City of New York has opposed the election of judges. In New York there is no right of ballot access for a Supreme Court candidate. You can’t get on the ballot by collecting signatures. There is no primary. Only the party can put you on the ballot. The only choice available to the public is the party’s choice.
This means that if you are not a party person you are not going to become a Supreme Court Justice. Forget about being an independent. Upstate you must be a Republican and in New York City you must be a Democrat. The political parties and the law, moreover, give to the party leaders in each county the major role in selecting candidates. If you really want to be a Supreme Court Justice, you must cultivate both the party and the county leader.
One doesn’t need a degree in political science to know the consequences. One clear consequence is that the pool of talent is restricted. All those people who would make well qualified judges but don’t have political entrée are out in the cold. This consequence is particularly sad when one thinks of the talent pool of lawyers of color which is already restricted due to public and private practices that disadvantage people of color. This is a talent pool we should be expanding, and it is a sin to curtail it.
A second clear consequence is the damage done to public trust and confidence in the judicial system. The recent problems in Brooklyn are the most recent events giving rise to the appearance that party politics and the courts are closely linked. The measures we are considering to restore confidence are to varying degrees disruptive, burdensome and disparaging of the many able judges who become judges under the current system. These harsh measures would be largely unnecessary if judges were not elected.
Another cause for righteous indignation is Albany’s failure to enact fee increases for the assigned counsels who represent poor people. The indigent clients represented by assigned counsel have a constitutional or statutory right to counsel. However, the fees are so low ($25 an hour for out-of-court time and $40 for in-court time) that few sign up.
Here again, one doesn’t need a degree to know the consequences. Judges, stenographers, court officers, parties, witnesses, and other attorneys wait and wait for an assigned counsel to show up so the matter can proceed. Massive amounts of money and time are wasted. Productivity is a joke. The right to counsel is a joke. The interests of the litigants and the public are prejudiced by delay. Domestic violence victims, and children and their parents, are denied their due justice.
Still another cause for righteous indignation is the refusal of the Legislature to allow the creation of a Fifth Department to ease the workload in the Second Department. For many years the Appellate Division in the Second Department has been so overburdened that fewer judges sit on an appeal there than they do elsewhere in the State. Over fifty percent of all appeals go to the Second Department.
The solution is obvious. Create a new department. The Legislature has refused to put the necessary constitutional amendment before the voters because a Fifth Department might change the balance between Democratic and Republican Appellate Division Justices.
Finally there is the utterly derelict failure of the Legislature to put before the voters a constitutional amendment to merge the Courts. In New York City we have a Civil Court, a Criminal Court, a Family Court, a Surrogate’s Court and a Supreme Court. These are, for the most part, not true special purpose courts. Indeed, some types of cases, some domestic violence cases for example, have to be heard in two or three courts at the same time. All kinds of reasonable proposals to rationalize the current inefficient structure have been ignored. Again one does not need a degree to know the sad consequences for the people whose ready access to justice is denied.
The unrelenting indifference we encounter in Albany no doubt does stress our capacity for righteous indignation. That capacity, however, is rechargeable. In particular, the recent events in Brooklyn should recharge our determination. The City Bar has repeatedly confronted crises of public confidence in the justice system. The Tweed Ring created such a crisis and that crisis let to the founding of the Association. Tammany Hall created another crisis, and that too we met. If we do not meet the crisis of today, we are letting down those who went before us.
We must go beyond righteous indignation just as we have in the past. We must hold our leaders accountable. We must demand a response, a position, a vote. We must educate the public and make full use of our advocacy skills. We must be persistent. We must see to it that the facts are exposed. We must insist on progress even if we cannot achieve all we want. We must join forces with Chief Judge Kaye and Chief Administrative Judge Lippman who share our concerns. Doing all this will not guarantee that we prevail, but it will allow us to know we did our best.