Despite the hard feelings in Albany that not a single name on the list reflected the glory of diversity, Governor Patterson has selected Jonathon Lippman as the new Chief Judge to replace Judith Kaye.  As announced yesterday at the WSJ Law Blog, and appears in today’s New York Law Journal, the current Presiding Justice of the Appellate Division, First Department, is moving upstate.

Justice Lippman is both an expected, and curious, choice.  At age 63, he’s got about 7 years to look forward to in Albany before aging out at 70, hardly enough to get to know his way around the courthouse but for the fact that he served as Chief Administrative Judge under Kaye from 1996 to 2007.  From what I can tell, Justice Lippman has never run for office, having spent his judicial career as an appointed Court of Claims judge and, for the most part, serving in administrative capacities until arriving at 25th Street on 2007.

When we speak of a judge, we usually use the phrase “taking the bench.”  The problem is that Justice Lippman really never did.  Check out his resume:

Judicial experience: presiding justice, Appellate Division, First Department, 2007-present; chief administrative judge, 1996-2007; Westchester County state Supreme Court justice, 2006; judge, Court of Claims, 1995-97 and 1998-2005

Other experience: deputy chief administrator, Office of Court Administration, 1989-95; principal court attorney, chief clerk and executive officer, Supreme Court, Civil Term, Manhattan, 1977-89; law clerk to Supreme Court Justice Samuel A. Spiegel, 1975-76; law assistant, Supreme Court, Manhattan, 1968-74

While he’s obviously been around a long time, there is one huge, glaring hole in his experience: He’s never actually practice law.  He’s never met a deadline, dealt with a recalcitrant client or faced down a hard-nosed judge when a defendant’s life was on the line.

While this has nothing to do with Jonathon Lippman personally, it is somewhat shocking that a person can be a lawyer for so long and have been told to be in two courtrooms at the same time or had to take the subway home by himself after a jury returned a guilty verdict.  These are experiences that every judge should have. 

These are the experiences that teach a judge what the law really means.  It’s unclear to me that Justice Lippman has ever looked a client in the face to tell them the bad news that another innocent person will spend the rest of their life in prison.  This shapes one’s comprehension of the law.  It doesn’t mean that he is unaware of these things.  Just that he’s never personally experienced any of them.  But personal experience is very different than having someone else tell you a story.

Even from the judicial side of the room, Justice Lippman’s focus has been on running the courthouses rather than running the docket.  As a long-term court administrator, which is part of the Chief Judge’s job, I doubt anyone will be more familiar with facility management than he.  But understanding what it means in a cold, hard Appellant’s Brief to have been denied confrontation by a lying, miserable skel has nothing to do with how many janitors it takes to adequately sweep the hallway floors.

All that aside, Justice Lippman has had nearly a year at the helm of the Appellate Division, First Department, to show who he is as a judge, and what we’ve seen is someone who does seem to have his heart and head in the right place, even if his language has been a bit strained.  Who will ever forget the words :

Attenuation, however, does not lie in an imagined differential, but in an appreciable diminution of the coercive sequelae of prior illegality.

It’s amazing that they haven’t found their way into a modern folk song.  I guess its just hard to find words that rhyme with “sequelae”.

Despite my long-time advocacy of substantially broader depth of experience in those who take the bench (oops, there I did it again) so that they can understand and appreciate the significance of their function in the very real life of very real people, and despite Justice Lippman’s spartan record on substantive legal issues and reasoning, I have faith that he will be a fine Chief Judge. 

It’s now up to him to decide whether he is going to be a leader, to return the New York Court of Appeals to a position of national prominence and to assert itself as a court that reflects a strong and independent state jurisprudence, as it did under Sol Wachtler, or whether it will be a rubber stamp, toeing the line of federal constitutional law, abandoning the state’s once-strong position on individual rights and freedoms, and elevating the speed of decision-making over the quality of its decisions, the consensus of judges over the integrity of the ruling.

To Chief Judge Jonathon Lippman, I wish the best.  The Court of Appeals is now yours to lead. Surround yourself with people who possess the experiences in life from which you’ve been cloistered, and listen to them. Make your legacy one of restoring New York’s courts to its historical strengths of mercy, freedom and humility.