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 proactive measures taken by judges to payback the legislators will not be taken kindly. Judge Kaye wants to be kind to legislators. She’s a kind person. Legislators, however, are not always kind. But they do know how to push Judy Kaye’s buttons, apparently. According to the New York Lawyer, this is an email directed to the wayward judges:
“Our many friends and supporters tell us quite frankly,” Chief Judge Kaye advised in an e-mail, “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.”
While it’s painful to watch the last bastion of the legal profession slide down the slippery slope of maintaining “dignity”, there’s nothing dignified about poverty. Rather than deal with the problem, the big boys in Albany are using playing their stomachs.
“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,” Mr. Paterson said Wednesday at a news conference.
One can’t help but love the high-minded arguments to keep the judicial inmates happily locked within the asylum. But what has occurred to some of our judges is that platitudes don’t fill empty stomachs. The judges didn’t create this problem, and 9 years without so much as a nickel raise due to New York politics is long enough to let dignity alone direct their actions.
If the Albany gang wants to maintain confidence in the New York bench, then just give them the raise that is long past due. They could pay for it out of Bruno and Silver’s member money alone. Bing, problem solved. But how much more disingenuous can the politicians be then to blame the judges for doing something about their being the lunchmeat in the Albany political sandwich?
This aura of dignity argument is a play on the fragile psyche of the judiciary, an appeal to judges to “stay the course” and rise above the fray while they are being treated as a joke by the other branches of government. I have no doubt that the judiciary wants to do exactly what Judge Kaye says. They don’t want to screw with the mechanics of the courthouse. It brings no joy to their heart to be forced to get down off the bench and fight.
Does it “diminish confidence in the judiciary” for judges to start doing something to level the playing field? I don’t think so. Not at all. And while I can understand why Judge Kaye feels compelled to appease the powerful in Albany, it’s time for her to take a stand as well. Maybe I still remember the old activist years of the 60s too well, but the judges didn’t ask to be treated like dirt by the legislative and executive branches, and they are not to blame for it. If they don’t stand up for themselves, who will?
Yes, it would make Judge Kaye and the rank and file feel much better about themselves if all the lawyers in the trenches marched on the picket line on their behalf, thus allowing them to preserve their dignity while we did their dirty work. But this isn’t going to happen. If the judges won’t stand up for themselves, lawyers won’t sacrifice for them. If Judge Kaye wants to truly be the leader of the New York State judiciary, then it’s time to take a firm, clear and proactive stance.
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 pushy-bottom of government whenever somebody screams “dignity”. Go get ’em, and let’s hope that their leader understands why.
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Scott, I strongly disagree with you. It is not a matter of dignity (and you know how often I deride our profession’s Dignity Police at my weblog); it is a matter of duty. No judge has the right to fabricate reasons to recuse himself or herself as they are doing here in order to pressure legislators.
I believe that judicial salaries should be higher, but that does not justify using a judicial variant of the Blue Flu. If pay is intolerably low, then an individual judge should resign. There are dozens of competent lawyers (some making far less now and some much more) who would gladly fill their slots on the bench at current salary levels.
This work action will indeed cause the judiciary (and unfortunately the entire justice system) to lose the respect of the average New Yorker.
Duty, like so many things, is a two way street. While the judges could resign en masse, and most likely be easily replaced, it does nothing to end what is tantamount to a constitutional crisis. The problem must be solved, not just the emergency. The Leg and Exec are depending on the judiciary to lack the ability stand up and do something, whether it’s called dignity, or duty, or anything else.
They may suffer a loss of respect. They may not. But that’s as much a concern for the Leg and Exec branches as it is for the judiciary. Why should the judiciary shoulder the burden while the others take no responsibility?
Because we rightly expect judges to respect the law and the system of justice — hold them to a higher standard — but have no such expectation of politicians and bureaucrats.
Also, Scott, the won’t resign en mass. In many locales across this state, the judges are among the best paid lawyers in the County. And, the perks/power of office are also worth a lot to many a judge.
We do expect judges to respect the law. And elected officials to serve the people. By that, I’m not referring to the cookbook. Still a two-way street.
Jama
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