Outside Counsel

Here in New York's Eighth Judicial District we are in the midst of an interesting judicial election. The Chief Administrative Judge has been cross-endorsed by the Republicans and the Democrats. The other seat is presently occupied by the former Comptroller of the City of Buffalo, Robert Whelan. The Democratic Judicial Nominating Convention declined to endorse Judge Whelan for re-election, and instead nominated a friend of ours, Paula Feroleto. When we were in law school, Paula was one of the two or three people in our class that everyone knew would make an outstanding judge, and everything she has done since has confirmed this impression. The Republicans nominated a lawyer who is more or less a contemporary, and whose principal credential is that she was the head of the Buffalo office for the worst New York State Attorney General of my lifetime. Before she took that job, I had every reason to believe that she was a capable attorney, but involvement with Dennis Vacco is a lie down with dogs, get up with fleas proposition as far as I am concerned. Justice Whelan is running on third party tickets.

We have made no secret of our despair over the method of judicial appointment by popular vote. It is a terrible way to get judges, with nothing to recommend it. Judicial candidates can't really campaign in any meaningful sense-- what are they going to say? "Vote for me, I'll follow the law?" What the electorate has to go on is name recognition, party affiliation, and, maybe, newspaper endorsements. This endorsement, from the Buffalo News, is a good demonstration of why non-lawyers are poorly equipped to vet the qualifications of judicial candidates. Justice Whelan's Bar Association rating was "qualified"-- which reflects complaints about his judicial temperament. Despite this, the News endorsed him, because of his experience. Think about that for a moment: "By most accounts, Whelan can be abrasive, but attorneys surveyed during this page's endorsement review process also saw him as very bright, with most crediting him as being well-prepared for cases." I'll join in the proposition that Justice Whelan is intelligent-- that is absolutely true. He works at his job, too. Both of those things should be among the absolute minimum qualifications that we expect from our judges. Temperament is the only other qualification that you can look to-- and if you know that a person's temperament is poor, why would you want to perpetuate that person's time on the bench? It's a 14 year term-- that's a long time to have someone who has established a reputation for being "abrasive" deciding things. 28 years (I just did the math) is twice as long. Citing "experience" as the reason to perpetuate the abrasiveness is absurd-- of course he is experienced-- he has just served a 14 year term! What about the experience of the lawyers who have appeared before him for 14 years, and found him abrasive? Shouldn't that count for something?

I've been before Justice Whelan. He is far from the most abrasive judge I have been before, but it is certainly fair to say that he is mercurial, at a minimum. I have a pretty thick skin, but I walk on eggs when I am in his courtroom, and I don't see that this has ever advanced the cause of justice. The News' endorsement impresses me as plainly wrong-headed, amounting as it does to saying that experience trumps temperament. Like hell it does. Anybody can get experience: if you don't die tomorrow, you are a day more experienced automatically. But, as Heraclitus tells us, "A man's character is his fate.". A judicial selection system that wasn't premised upon the whim of the majority might better accommodate this recognition.