Judicial Independence: Is It Preserved or Impaired by the Election of Judges?

HUGH JONES LECTURE ALBANY LAW SCHOOL NOVEMBER 13, 2013 Thank you so very much Judge Lippman, for that remarkable, but highly exaggerated introduction. For the last year Judge Lippman has had the most unfortunate task of introducing me at various venues. And he never disappoints. I've said it before and I will repeat it here that you have not been introduced if you haven't been introduced by Chief Judge Jonathan Lippman. And thank you to my wonderful colleagues from the Court of Appeals who are all here tonight. You know many changes have occurred at the Court since last year's Hugh Jones lecture. Our beloved Judge Theodore Jones passed away just a year ago. (1) I retired from the court in December. (2) And we welcomed Judge Jenny Rivera and Judge Sheila Abdus-Salaam to the court earlier this year. (3) Welcome ladies. We again have a majority of women on the court. Thank you also to Dean Penny Andrews and Albany Law School for once again hosting this event and special thanks to the Fund for Modern Courts, for being in the forefront of court reform for over six decades, and for contributing to the preservation of independence--my subject today--by its efforts that include merit selection of judges, campaign finance reform, and accountability of judges. And thank you Milton Williams, Jr. and others for your support in our attempt to raise the retirement age of judges. It was not to be--this time. You have asked me to continue the tradition of relevant and important lectures in honor of our esteemed former colleague at the Court of Appeals, the Honorable Judge Hugh Jones. Thank you for this wonderful opportunity to address you. It is somewhat difficult to follow Chief Judge Judith Kaye, last year's Hugh Jones lecturer, who regaled us with stories of her personal interactions with Judge Jones. I have no such stories as Judge Jones had left the Court before I came on, but I do remember, twenty plus years ago, when I started my quest for a seat on the New York State Court of Appeals, that Judge Hugh Jones, then a retired member of the court, chaired the Commission on Judicial Nomination, before which I appeared three times, and he was always so very kind and supportive of my candidacy. He was familiar with my work as a trial judge, as he had had the opportunity on many occasions to review my decisions on appeal. In preparing for tonight's remarks I had occasion to re-read Judge Jones' Cogitations on Judicial Decision-Making, (4) and I hope that my decision-making spanning over thirty-four years of service, fifteen years as a trial judge, and nineteen as an appellate judge, in some small measure would have met Judge Jones' high standards. As I indicated earlier my topic for tonight, one that I have been passionate about my whole professional life is judicial I start with the proposition that when impartial judges are free from external pressures and conflicts so that they can decide cases fairly and impartially, in accord with the applicable facts and the law, they are functioning within a system of independence. But, unfortunately, this is not always the case. Judges themselves can impair the independence of the judiciary by failing to conform to high standards of conduct. And we, as concerned citizens, should strive to remove the influences on judges that conflict with their using their best judgment in applying the law fairly. A judge who worries that a decision on the merits may impede, even end, his or her career is on the brink of acting unethically and losing independence. Seeking office presents similar risks. A judge who suggests to the electorate, or the appointing authority, how he or she will decide cases, on issues that concern the public, impairs independence, not only for that judge, but also for the judiciary in general. And a judge, who makes a decision that is not on the merits, but is intended to cater to a perception of what the public wants, violates his or her oath of office. …