Judicial Reports: Recuse or Lose

By Scott H. Greenfield
Posted 05-14-08

Various governmental leaders have been telling the judges in the State of New York who have gone a decade without a raise that they should uphold the dignity of their offices. That's rich.

While Chief Judge Judy Kaye cajoles the judges she considers to be under her care and feeding to maintain the dignity of their office, they are busily eating Spam during the luncheon recess. The rank and file are quietly realizing that if they don't stand up for themselves, and perhaps take a hit, the best they can hope for is "pie in the sky when they die." Some have no plans on dying anytime soon.

Judge Kaye likes to send memos to the troops. It helps to keep their morale up, or so she's been told. Somebody has been whispering in her ear that any active measures taken by judges to pay back the legislators will not be viewed kindly. Some prefer to recuse themselves whenever Assembly Speaker Sheldon Silvers’s firm, Weitz & Luxembourg, is involved. Others want nothing to do with a state claim. Still others just aren’t in the mood to work as hard as they used to.

Maybe it’s not hardcore payback. Just small change, but enough to show that you will not go quietly into the night. Judge Kaye wants to be kind to legislators. She's a kind person. Legislators, however, are not always kind. So far, they haven’t been kind at all.

Kaye sent a message to potentially wayward judges: “Our many friends and supporters tell us quite frankly, that we reduce our effectiveness and weaken our cause when we publicly engage in conduct that is perceived as retaliatory, such as denigrating public officials and using recusal as a strategy rather than as a matter of individual conscience.”

Who are these many friends and supporters? Certainly not Senate President Joseph Bruno or Speaker Silver, whose joint grasp on the Legislature suggests that they own the Spam monopoly. Not our new Governor, David Paterson, who found the time to make sure one of his earliest announcements was that there would be no love for judges this year.

While it's painful to watch the “last bastion of dignity” of the legal profession slide down the slippery slope of maintaining "dignity," there's nothing dignified about watching your static paycheck get shrink-wrapped by inflation every year. Rather than deal with the problem, the big boys in Albany are piping up with platitudes, while judges are holding their stomachs.

Even the Commission on Judicial Conduct, while issuing what was widely reported as a warning to salary-inspired recusers, made clear that the judges really have a free hand. The Commission announced that it “would benefit neither the judiciary nor their justifiable interest in a fair compensation package for the Commission to be constrained to consider complaints against judges alleged to have violated these or other sections of the Rules in connection with the salary issue.” (In case you were unclear, this is more passive than aggressive.)

"You just have to be careful that if you protest in ways that diminish the capacity of your neighbors to access the courts, you are contributing to the diminished confidence that exists with the government and the judiciary," Governor Paterson said at a news conference.
One can't help but love the high-minded arguments to keep the judicial inmates happily locked in the asylum. If the Governor is so concerned about diminishing confidence in the government and judiciary, why not take the lead and do something to change it? Of course, it’s just so much easier to shift the burden onto the judges. After all, judges must be dignified. It’s their “duty.”  

How much more disingenuous can the politicians be then to chastise and blame the judges for doing something when they are the victims of political games? Does it "diminish confidence in the judiciary" for judges to try to level the playing field? The judges didn't ask to be treated like dirt by the Legislative and Executive branches, and they should not be made to feel badly for finally acting in their own self-interest. Standing up for oneself is a great American tradition, and shifting the blame is a great political tradition.

Of course it would make Judge Kaye and the rank and file feel much better about themselves if they could preserve their dignity while someone else did their dirty work. But this isn't going to happen, as the past nine years (or 13, according to how your view it) have shown. It’s not for lack of sympathy or promises, but the “friends and supporters” who tell the judges not to rock the boat don’t have to live with the problem. The time has come to put an end to this situation.

The Judiciary is a co-equal branch of government, not the slaves of the system. The Legislature takes off half the year. The Executive goes on vacation. It's time for the Judiciary to establish its rightful place in the Albany hierarchy and stop being the weakest link of government whenever somebody screams "dignity."

If Bruno, Silver, or Paterson are so deeply concerned for the "dignity" of the Judiciary, they can fix this problem at any time. But they haven’t. And they won’t. And that’s why it’s time for judges to push their Spam aside and take matters into their own hands.

Should they shut the courthouses down? Should they leave Legislators’ law firms out in the cold? What about just slowing the calendar down enough to remind Albany what they do, sitting there on a bench all day long. Each judge who is so inclined needs to figure out just how far he or she is willing to go to make a point. But if they don’t make their point, then they have no one to blame for being a political pawn but themselves.

They didn’t start the fight, but it’s up to them to end it.

The writer is a Manhattan-based criminal defense lawyer with 25 years of experience in the trenches. He is a former Vice-President and Director of the New York State Association of Criminal Defense Lawyers.

Posted by Dirk on May 14, 2008 12:43 AM to Judicial Reports