Outside Counsel

I've just started using New York's e-filing system, and I am pleased to report that many of the things that the federal courts' system gets horribly wrong are corrected here in the Empire State. Civil Procedure geeks (like me) are fond of e-filing because in theory it simplifies the experience. With the stroke of a key you can commence an action, or make a motion, or whatever. The constraints of time and space are abolished! The reality is somewhat more complicated. Although filings need no longer be made during business hours, the process of document preparation can still be a chore, and there is a downside to being able to push filings to the very limit of the clock.

Here's what New York gets right: the process is not mandatory. This is huge. The interface is helpful. Links and buttons and the like are clearly marked, and the next step in the process is apparent at each step. Your user name and password are the same throughout the system-- I have a different user name and password for each of the four federal district courts, and it makes me nuts. The New York system lets me view documents for free. No doubt that will change, but it shouldn't-- the cost to the system is de minimus, and among the virtues of e-filing are supposed to be low cost and transparency.

The "what's on his/her iPod" test is not very meaningful-- the capacity of the device means that I have quite a bit on mine that is not very indicative of my taste and the fact that I mostly use the device when I'm either traveling or in the kitchen means that the music that I play on it is not necessarily what I generally listen to. "In a Silent Way", for example, isn't what I want to hear when the seatback table comes down. Still, it is interesting that Caroline Kennedy's iPod is filled with Al Green, Grateful Dead, and Bob Marley if only because this suggests that she is something of a stoner. The tattoo probably should have been our first clue.

You never reach a place in our glamor profession where you've seen it all, but after a few years you start to recognize people's fingerprints. When I saw that counsel for New York County Surrogate-elect Nora S. Anderson is arguing that she should still be sworn in even though the Manhattan district attorney is currently prosecuting her on felony charges of concealing improper political contributions during her campaign for the bench one name popped into my mind: Godosky! As it happens, In re Cornelius, 48 N.Y.2d 1014 (N.Y. 1980)actually support's Dick's position. I can picture him in my mind's eye, handing up a photocopy of the decision. The part of the argument that has Ms. Anderson being the sole support of her aged, ill mother is the argument that he could make in his sleep, but having a Court of Appeals case up his sleeve is vintage Dick Godosky. Where he really had fun, I'm sure, was attacking the administrator of the state Commission on Judicial Conduct for not including the Cornelius decision in his submission. Dick has a great capacity for turning purple with indignation, and I'll bet he was glowing like a Monsignor's vestments for that.

For what it's worth, Judge Cornelius was cleared, and went on to a long career on the bench. I tried a few cases in front of him myself, and I'll bet Dick Godosky has too.

I'm mostly okay with the idea of Caroline Kennedy being tapped to finish out HRC's senate term, even though the tiny little gene pool of New York politics troubles me. I figure Caroline would be pretty dependably on the side of the issues that I favor, and after racking my brain I haven't been able to come up with the name of another woman or member of a minority that I like better, other than just about any of my friends. None of them are contenders, unfortunately, so if Basil Patterson's son picks JFK's daughter to fill the seat that her uncle once held, instead of picking Mario Cuomo's son, what's the problem? I am troubled that Caroline doesn't seem to vote much, though. Getting elected to things isn't a qualification that I care too much about, but voting is important, and Ms. Kennedy missed the primaries in 1989, 1993, 1994,1997, 2002 and 2005 (all years in which Republicans won the NYC Mayor's race). She missed the general election in 1994 and 2002. The Daily News, which is probably picking a fight because the Post seems to be lining up behind Caroline, says that "of the 38 contested elections since 1988, Kennedy skipped about half, almost all of them primaries." That is Not Cool. Know how many elections-- primaries, general elections, school board elections, special elections-- I've missed since 1975? None. Never missed one. Voting is really important to me, and I'd like to hear why Ms. Kennedy missed so many. Lots of people will tell you that voting is an empty gesture, and that one vote won't change anything. None of those people are Al Franken, but there is some truth to the argument. I vote because I think that turnout is important. I want the people who run government to feel as though they are accountable to more than just the people their efforts brought to the polls. I don't have a great record for picking winners, but rain or shine, in sickness and in health, I show up. On those occasions when I've been traveling, I've voted absentee. Of course, voting isn't everything-- it appears that Ms. Kennedy contributes dough to campaigns, and although I wish that campaigns were less about raising dough than they are, when you have money and you are political, contributing money is important too.

Bruce Reed notes, "In the century since the 17th Amendment provided for direct election to the Senate, about 180 senators have been appointed to fill vacancies. When their appointed terms ran out, those senators met with three fates in equal measure. One-third of them ran for election and lost. One-third ran and won. One-third decided not to run at all. So as a general rule, only one-third of all appointed senators win the voters' blessing in their own right, and half of appointed senators who run for election lose their seats." While it is true that this is, by "congressional standards... an astonishingly low survival rate." I'm not so sure that a raw tally like that really tells the whole story. Without going back and doing the counting myself I can't say for sure, but it seems likely that quite a few of the one-third that decided not to run for re-election were appointed as placeholders. There used to be a tradition of appointing the wife of a senator who died in office, for example. (Muriel Humphrey served out the remainder of her husband's term as I recall.) Nate Silver breaks it down more scientifically over the period from 1956.

It is an interesting test for Governor Patterson. My hunch is that when he took the spot on the ticket with Client 9 there was a tacit understanding that if HRC won the Presidency, Patterson would be tapped to take the seat, but I have no basis for that. In any event, Patterson has really stepped up to the plate since becoming governor, and it is pretty clear that he takes the appointment power seriously. It's interesting to think about the fact that in two years New York will have an election that features both Senate seats and the governor's office.

The New York Law Journal reports that John F. O'Mara, the chair of the Commission on Judicial Nomination has released a statement (pdf file) explaining how it is that the candidates it submitted to the governor were all men.

Don't get me wrong-- I respect and like Judge Pigott, and I hope he gets the nod. From what I can tell about the others they all deserve the sobriquet of "well qualified" also. I believe in merit selection, and I think that the Commission on Judicial Nomination has traditionally done a fine job. The results speak for themselves-- our appellate bench, and particularly our Court of Appeals are everything New York's courts should be. Even so, it seems peculiar that Judge Ciparick, a sitting Court of Appeals Judge, isn't on the list.

I don't think I know any of the people on the Commission, although a couple of the names are familiar. This disappoints me-- I like to think that I've been around long enough to be acquainted with some of these sorts of behind the scenes power players. It really wouldn't be appropriate to ask any of them about it. ("Yo, Gerald B. Lefcourt, WTF? E. Leo Milonas, how come no chicks?") I guess the best we can say about the situation is that there has been some consciousness raising, which is a good thing.

I wanted to mail a pair of shoes to the White House, but I was concerned that the Secret Service-- a bunch notably deficient in the sense of humor department-- might not cotton to the gesture. A donation to the George W. Bush Presidential Library is what's called for.

Rounding out my "Exile on Main Street" research I watched "Performance" last night-- the first time I've seen it. It's an interesting document, and a lot better done than I'd expected. Very 60's, but I don't mean to be reductive or dismissive by saying that-- it has the fingerprints of the French New Wave on it, and the fashions are Mod England, but these things still seem fresh. It's funny to think that Mick Jagger was probably the most conservative principal involved in the making of the film. Or maybe what I mean is that ol' bums rush Jagger became the most conservative person-- a Peer of the Realm and all. Consider, though, that the (terrific) soundtrack was the work of Jack Nitzsche, as dangerously crazy a figure as rock'n'roll has produced. It was co-directed by Donald Cammell and Nicolas Roeg, an audacious creator in the world of film who planted his flag in the ground with this movie. Cammell likewise is a facinating figure, who fell in, at more or less consecutive points in his career, with the French New Wave and with the London criminal set.

"Performance" is where "Memo from Turner" comes from-- the greatest Stones song that isn't a Stones song (there is a version of it on "Metamorphosis", but it doesn't touch the original); the performance that suggested that there was a context outside of the Stones where Mick could function. Rock stars frequently want to be movie stars it seems to me, but the skill sets don't match up particularly well, and the crossover is pretty rare. There is a case to be made for Elvis-- he had a career, even if the movies weren't much. In an earlier, pre-rock star time there was Bing, and Sinatra, of course. Of the Beatles only Ringo really made a run at acting, and he's pretty good. David Bowie has worked at it, and is probably as good at it as he is because he came at rock'n'roll as an actor first, musician second. I think one could come away from "Performance" underrating the acting job Jagger does, thinking, "Well, he's really just playing a version of himself." That assessment is probably unfair. Jagger has said that he had his late colleague Brian Jones in mind, and while to anyone other than a Stones fan the difference might seem trivial, to Jagger it was certainly significant. Looking past the screen, the distinction matters because he was playing opposite Anita Pallenberg-- formerly Jones' lover, and Keith Richards' lover at the time. Jagger is a genuine presence here, with all of the androgyny and energy that made him irresistible, and the touch of Robert Johnson that makes him authentic too.

In some ways "Performance" seems like two movies-- once it gets rolling the first part is a violent English gangster story, then, when the character played by James Fox is obliged to go to ground he hides out in the London mansion of a reclusive rock star. Sex and drugs ensue, and it gets very metaphysical. I think it holds together better than that, and I think that it's a tribute to the editing job that this is so-- it could just as easily been a mess. The DVD has not been available until pretty recently, and it looks like a decent effort has been made to clean up the print-- someday someone will pay for the shoddy way the artifacts from this time were preserved. Worthwhile, even if nobody else in my house could stand to be in the room with it.

The Paris Review "Writer's At Work" interview series is great stuff, and one of the things that the interviewer usually gets around to asking is about the actual physical process of putting words to paper. Hemingway wrote standing up, Truman Capote typed in bed, that sort of thing. Writer lore is full of stuff like that, now that I think about it-- I forget where I learned it, but Samuel Clemens desk faced a blank wall, so he wouldn't be distracted. One of my favorite parts about our glamor profession is that a fair amount of what I do is writing. Unfortunately quite a bit of that writing is about stuff that is not so interesting. Even writers who are writing about interesting stuff get stuck, and although you don't hear of many who say the hell with it and go off to dig ditches, most writers will cheerfully complain about what hard work it is. There are tricks to it, things to get started, and at the moment I'm working on a set of motion papers that has required me to use several of them. This post is one such, actually. Because I just finished a section I am rewarding myself by writing something that is less like trying to pass a kidney stone. When I am done here I will go back and turn in another couple of pages. You might think that what I'm really doing is procrastinating, but I'm not. Sharpening pencils, sorting socks, or even doing research-- that's procrastinating. Putting off putting words down is what is deadly to the process. One of the things that I've done on the present project is to write about it. I've written summaries of the arguments the other side has raised; I've made abstracts of the case law that they have cited; and I've written notes about how I want to frame my argument. It would be easier to just write the thing, but I couldn't until I could, and when I could all of those other things helped me to put the project together. I've never really been one for outlines, but that's another trick that sometimes works. It is tempting to go looking for other devices, but that would be sorting socks, and now I need to get back to my papers.

A note for our "Perils of an Elected Judiciary" file: Manhattan Surrogate-Elect Arrested on Campaign Finance Charges. Surrogate's Court-- New York's probate court, although it has slightly broader jurisdiction, is a system for spreading graft, so all that is really surprising about this is that Ms. Anderson was clumsy enough to get caught. Usually you get the graft later, but the New York Surrogate's race has gotten so expensive lately.

I knew that Dorothy Parker had left her estate to the Rev. Martin Luther King, and that Lillian Hellman, her literary executor, had been a poor guardian of her memory, but I hadn't known the details. In her Paris Review interview she talked about F. Scott Fitgerald: "Terrible about Scott. When he died I said, 'Poor son of a bitch', and everyone took it as a crack.'" The same might have been said for poor Dottie, whose remains rested in Paul O'Dwyer's file cabinet for 21 years. I haven't read Brenden Gill's introduction to "The Portable Dorothy Parker"-- Hellman picked Gill for the assignment, and he had little kind to say. It is rotten to think that a soft assignment like that resulted in a piece of work that was insulting to its subject, yielding years of residuals to Gill, but it appears that's just the sort of thing that happened to Parker, alive or dead. I hadn't thought I could think less of him, but I do now.

So, who's the Lieutenant Governor of Illinois, and who do you reckon he's going to pick? Blagojevich makes Spitzer look pretty good, and Patterson looks better by the minute.

I've mentioned If Charlie Parker Was a Gunslinger, There'd Be a Whole Lot of Dead Copycats previously; every now and then it's fun to dip in and think about what it was like back when men wore hats. The last time I was there I noticed that they have a gallery called "American Mouthpieces", which is where I found this image. I saw Kunstler once, back when I was in the Bronx on a more or less daily basis. He was defending a guy who had shot some cops, and as I recall the theory was that the cops had been using his client as an informant and decided to kill him because he knew too much. Something like that-- with a lot of criminal lawyers it seems like a crucial job skill is to believe that the entire machinery of the law enforcement world has somehow settled upon persecuting your client, the Last Honest Man. Kunstler certainly had that knack, as well as an undeniable flair for the dramatic. We were in the Men's room, it was just before 2:00 o'clock, when the courtrooms were about to re-open and resume business. Kunstler washed his hands, and then ran them through his leonine shock of grey hair, tussling it to the state of desired dishevel, then exited, off to fight injustice wherever it might be found. He was a true believer, and you have to respect that-- the system fails if there aren't people like William Kunstler around- guys who believe that that the game is fixed, the cards are marked, and that it is worth playing anyway, because sometimes justice happens, and even if it doesn't the hypocrisy of the system needs to be exposed. It's close to the exact opposite of what I believe, actually, but I can't quite bring myself to say that it is unreasonable to think that way. Who else would have defended Larry Davis? Who else could have sold that story, and got an acquittal? Who knows? Maybe it was true.

Although Brian Higgins' name is frequently floated as a prospective pick to fill HRC's Senate seat, I don't see it. Higgins is a rising star in the House, and is apparently after a seat on the Ways and Means Committee. With a Representative on Ways and Means, and Louise Slaughter chairing Rules Western New York would have a pretty potent delegation-- and one that would probably be more useful to the region than having a junior Senator.

The 10 things Bush should regret most. Why stop at ten? Is there a single thing that he did right? It doesn't have to be a big thing-- maybe he went a whole day remembering to always say "please" and "thank you". Maybe he made his bed for a whole week.

Somewhere I got the notion that the Judicial Nominating Committee's list for the spot being vacated by Chief Judge Judith Kaye had already been announced. I was wrong--it came out yesterday. George Carpinello, Evan Davis, Steven Fisher, Theodore Jones Jr., Jonathan Lippman, Eugene Pigott Jr., and Peter Zimroth are the men on the list, which does not include any other sorts of people. Governor Paterson is upset about this. Judge Jones, who is presently an Associate Judge on the Court of Appeals, is African-American, the rest of the fellas are white. With the departure of Judge Kaye there will be three women on the Court; they are all white. The only one of the candidates whose political affiliation I am sure of is Judge Pigott, who is a Republican. Judge Fisher has been recommended for the Court of Appeals five times-- basically, every time there has been an opening since the year 2000.

A look at the credentials of these people is a pretty powerful argument for merit selection-- Patterson could use a dartboard and do okay, although I'd like to see Judge Pigott get the nod. Moving him into the middle chair would give Governor Patterson a second pick (as would moving Judge Jones, obviously), and it would allow the selection committee to re-boot. Justice Fisher would reapply, because he really wants this gig, and presumably there would be some candidates from different backgrounds that would submit applications as well.

UPDATE: Apparently Carmen Beauchamp Ciparick, the senior associate judge on the Court, did apply. I've appeared before Judge Ciparick, back when she was a Supreme Court Justice, and I am surprised that she did not make the cut. I don't know enough about the way the Commission goes about its process to comment beyond that, but it does explain why Patterson is put out. It makes sense that he should have had all three of the presently sitting Associate Judges who applied to pick from.