The problem with making threats is that they mean nothing if you don’t follow through.  After more than a year of threatening, New York’s Chief Judge, Judith Kaye, filed papers yesterday against the Assembly’s Shelly Silver, the Senate’s Joe Bruno and Governor David Patterson.  

The Turk provides some of the history leading up to the filing.  Slater at  the WSJ calls it “going big.”   Niki Black says Judge Kaye has “thrown down the gauntlet.”   Judicial Reports says it’s “breaking the bank.”

The Chief Judge’s counsel, Bernard W. Nussbaum — the former Clinton White House Counsel who is now a Wachtell, Lipton, Rosen & Katz partner — held a press conference Thursday after filing the suit.

“By freezing judicial salaries for the last decade, judges have been singled out and held hostage — and that’s unconstitutional,” he said, wearing a dapper fedora on the sun-drenched courthouse steps at 60 Centre Street. The court filing called for immediate action, requesting that the trial “commence on or about May 14, 2008.”

Bernie Nussbaum was an interesting choice as the attorney to represent the judges of New York.  Who’s shoes are big enough, white enough, to service a “client” that important?  Even his decision to wear a fedora on the nicest day of the year, a throwback to a time when judges weren’t forced to beg for crumbs from the political branches, held meaning.

But after so much talk, so many words spilled over the question of how the judges could sue for raise, could even a persona as large as Nussbaum pull it off?

The 30-page suit makes three primary claims: that the New York judiciary is entitled to “adequate compensation,” that State judges were unfairly discriminated against by the State Legislature, and that the judicial branch pay raises are unfairly attached to Legislative pay raises.

The papers aren’t the sort one typically finds in a lawsuit.  They are largely a polemic with a caption at the top.  To anyone even vaguely familiar with the situation, the lengthy rhetoric is neither new nor interesting.  It is another of the  beloved op-ed pieces that our Chief Judge hoped would persuade politicians to do the right thing.

While framed as if it was really a summons and complaint, I don’t believe that is how it’s meant.  This isn’t a complaint of a group that seriously expects to litigate and intends to win.  It’s a complaint designed to make headlines, to enlighten the citizens of the State of New York, to capture the hearts and minds of New Yorkers and engage them to push their legislators to give judges their raises already. 

As PR gimmicks go, it’s a good one.  It will get the front page of papers across the state.  It will elevate the profile of the issue so that New Yorkers become aware of the problem.  And then it will fade from the media’s focus, and the memories of New Yorkers, when the next brutal murder displaces it.  That’s how things go in the press, and even a lawsuit by the Chief Judge is no match for a hot, sexy, brutal crime.

Politicians will ultimately go back to work and the big bang of this lawsuit will have turned into another whimper in Albany.  It’s not that the rhetoric of the complaint isn’t true.  It most assuredly is.  But after the initial impact, assuming it fails to force the powers in Albany to fix the problem overnight, the judges are ultimately left with an actual lawsuit to litigate.

“We are seeking a salary identical to what federal judges across the street are making,” concluded Nussbaum. Federal District Court Judges earn about $165,000, a year, and the State judges are asking for retroactive pay back to January 2005.

Frankly, this strikes me as damning proof that the judges aren’t serious.  Federal judges are similarly ready to take up arms to get a salary increase, and this is the measure that state judges hope to attain?  Still well below the going rate for a first year associate at Biglaw, matching existing federal judicial salaries can’t be anything other than a public relations ploy.  If they were serious, the number should be up around $250,000.  A big jump, for sure, but at least it offers some negotiating room.

After reading all the rhetoric, the complaint finally gets around to a few causes of action.  The first argues discrimination against the judicial branch by the legislative and executive branches, violating the separation of powers.  It’s thrust is one that should start a constitutional crisis, where our tripartite government pulls apart when the checks and balances finally fail. 

But that won’t happen here.  Indeed, it’s almost the exact opposite, with checks and balances working exactly as planned.  It’s just that the judges don’t like the choice one tiny bit.  The political branches hold the purse strings for a reason, and have chosen to keep the purse shut tight on our judges.  This financial stranglehold, blatantly political and self-serving in motivation, is politics at its most pungent.  And unfortunately for our judges, it is precisely why the legislature holds the purse and not the judiciary.  Spending the people’s money is a political act, for better or worse. 

The problem for the judiciary is that their claim won’t ripen until they drop the real bomb.  It’s not enough that one branch of government feels really bad about their salaries.  As long as they keep the courthouse doors open, the system works as it should.  In fact, it works pretty well, since the people save money while the judiciary goes on as normal.  The only way the complaint has meaning is if the judiciary of the state packs up its robes and goes back to the farm.  Only upon a failure of a branch of government does the complaint have meaning.

This, of course, will not happen.  The judges, bitter as they are, aren’t prepared to give up their benches.  They worked too hard to get there, and they don’t really have a farm to go home to anyway.  Maybe a few will walk, but not enough to make a dent.  There will be no constitutional crisis today.  When I walk into court this morning, there will be a judge on the bench and she will do her job. Situation normal.

There is, of course, an irony in all of this.  So many causes of action demand a painful choice by a plaintiff, a commitment to their allegations demonstrated by suffering the painful sacrifice they claim has been thrust upon them.  The judiciary is no different.  If they cannot continue, then they have to stop.  Since they won’t close the courthouse doors, and will continue to put their robes on every day and cash their paychecks, they will not force the issue.

A sideshow to this lawsuit is the question of who will hear it.  What judge can sit in judgment of his own salary?  What judge can rule against his own brethren?  While a curiosity, it really won’t prove to be that difficult.  The judges may be angry, as well they should be, but whoever gets the dirty job of holding the bag on this suit knows that it will be subject to scrutiny like no other lawsuit, and will maintain his dignity lest he become the greatest victim of this publicity stunt.  The judge will have no other choice.

This is a terrible embarrassment for all involved.  It shows the legislators as the political manipulators they are, and the judiciary as the weakest of all branches.  It makes New York look very bad all around.  This is the impetus for the lawsuit, to embarrass the state government in the eyes of its citizens. 

Will Albany let their judiciary debase themselves in this lawsuit by turning their back on it?  I hope not.  But given the way legislators think, they may see this as an attempt at extortion by the judges, and respond that they will not be forced to act, even by another branch of government.  But such a view is absolutely wrong.  This is not an act of extortion, but of desperation. 

The legislature has given them no other option but to do something or accept the fact that the judiciary is truly at the mercy of the politicians.  That’s the problem in a nutshell.  Should this prove to be a constitutional crisis, it will be one started at the hand of the legislature for its stranglehold on judicial salaries.  Even if the public relations ploy fails to generate the immediate heat needed to force Albany’s hand, there will still be the issue of legislators holding the judiciary hostage for no better reason than it can.  Hopefully, it won’t come to this.

But doing the right thing for the right reason hasn’t happened yet in Albany.  What are the chances it will happen now?