Wednesday, May 24, 2023
The Buffalo News ran an article the other day about the system New York uses to select judges for our highest court. The piece was mildly critical: the implication was that the members of the Commission on Judicial Appointments are lawyers who appear before the Court, and that the process isn't particularly transparent. Outside Counsel has frequently posted about judicial selection, so I quickly wrote 1,500 words for a My View column- then cut it to 645 words when I realized that I'd written something twice as long as the News would accept. I don't know if the paper will run the piece, but here it is:
The proper method for selecting judges has been wrestled with by scholars, lawyers and the drafters of the Constitution since at least the founding of the Republic. A recent article in the Buffalo News by Chris Bragg (“The insular process of picking New York’s top judges”, May 22, 2023) cast a light on the way our Court of Appeals judges are appointed, which is valuable. Regrettably the article implied that the merit selection process is tainted because the members of the State Commission on Judicial Appointments, which makes the list of recommendations from which the governor selects nominees is made up of attorneys who appear before our highest court. This is unfair. There is no perfect system for judicial selection, but this process has an established record of selecting candidates that is non-partisan, merit based, and effective.
It is true that the lawyers who are appointed to this panel may argue before the Court; it is also true that there is probably no better qualification for evaluating a judicial candidate than to be a lawyer who understands what the Court does and how it does it.
The complaint in the News’ article is apparently that the system lacks transparency, but that is not entirely true, accurate, or fair. The list of candidates that the Commission sends to the governor is public. Sometimes multiple vacancies occur, and sometimes there are serial vacancies, and not all prospective nominees apply for every opening, so we can’t read anything into the fact that sometimes someone doesn’t show up on a particular list. The qualifications of the candidates that make the lists are obvious to anyone who follows this process.
For the most part- and particularly at the appellate level- a judge's job is to make rulings on the law, rather than to respond to popular opinion about what a ruling should be. You want someone to respond to popular opinion? That's what the other two branches of the government are all about. Judges aren't supposed to make the popular decisions-- they are supposed to make the correct decisions, based on the law, regardless of whether the decisions they make will be popular. The best judges should be knowledgeable about the law- that’s the baseline. They should also bring a sense of fairness and proportionality to their reasoning as well as a finely tuned temperament and intellectual curiosity. It should also be mentioned that the Commission’s merit selection process is only part of how Court of Appeals judges are appointed. After the Commission promulgates its list the governor reviews it, and the Judiciary Committee conducts a hearing, and the State Senate votes. As we have just witnessed these are not pro forma steps. The fact that a prospective nominee was just rejected tells us that everyone takes their role seriously, and the fact that this sort of rejection is rare tells us that the Commission has historically done its job well.
Of course judicial selection is political. The question is how do we best insulate the judicial selection process from the political process? At the Philadelphia Constitutional Convention in 1787 Benjamin Franklin proposed that lawyers ought to decide who should sit on the federal courts. After all, Franklin quipped, the attorneys would select "the ablest of the profession in order to get rid of him, and share his practice among themselves." Although Dr. Franklin’s rational for this proposal was tongue-in-cheek, his system pretty closely resembles the merit selection process of the State Commission on Judicial Appointments. Moreover, it works. At a moment when the United States Supreme Court is polling at historically low confidence numbers the New York Court of Appeals is highly respected by the attorneys who appear before it, and by the courts of other states – including federal circuit courts of appeal- which routinely cite New York authority in their opinions. #30
Thursday, May 11, 2023
For a while a regular feature of Outside Counsel was pieces on New York State Courthouses. The Alphonse D'Amato Federal Courthouse was one such, and it's nice to see that the experience there hasn't changed. One feature of the building that I did not mention in my earlier post is that the Feds lease out a portion of the building to the New York court system. In federal court they confiscate your phone when you go in, but in state court phones are permitted- except in the D'Amato building. Used to be that courthouses had many phone booths, but that was long ago.Back then I always had a roll of quarters in my briefcase. Now, if you need to make a call in the D'Amato courthouse you have to go downstairs, retrieve your phone, then go outside. It really adds to the charm and efficiency of the whole experience
Wednesday, May 10, 2023
As long as I'm writing about saxophone players, here's a fine essay detailing the background on John Coltrane and Johnny Hartman's Lush Life. Trane had previously recorded an instrumental version of the title track. Incredibly this version was the first take.
Monday, May 08, 2023
Sometimes when reading a review of a biography I run across the reviewer saying something like, "this is what all future biographies of this person will be built on." I used to wonder why future biographies would be necessary, but Aidan Levy's Sonny Rollins bio has given me an answer. Saxophone Colossus is an impressive feat of research and scholarship, meticulously researched and documented- but in some ways it feels like it is inside-out. The main text details every gig, frequently down to what Rollins wore, but the best quotes from his sidemen, and the contemporary reviews of his recordings, and a lot of Rollins' own words are found in the footnotes. There's a lot that seems missing, too. More photographs would have been welcome. The footnotes are off-shored to Dropbox. Why not more pix there? A comprehensive discography would have been useful. But mainly what I went into it wanting was the answer to a question: what made the guy who wrote Freedom Suite, and played on Brilliant Corners and all the rest decide that he wanted to become Grover Washington, Jr?
Gary Giddins interviewed George Benson once, and Benson defended his decision to record pop stuff because he was a professional who wanted to sell records- and I get that. "Selling out" is a value judgment that frequently comes from a place of privilege- if Chevy wants to buy your song to sell pickup trucks you haven't done a damn thing wrong- you've won. So did Sonny Rollins win? I'd like to know if he made money on things like The Way I Feel. In terms of sales how did it compare with, say, Miles Davis' Water Babies, released the same year? Herbie Hancock was in his Headhunter's period- how were his sales? Weather Report's Heavy Weather came out in 1977. I'm not a big fan of that phase of Wayne Shorter's career, but it'd be interesting to compare sales. Rollins was touring a fair bit in this period- was ha making most of his income from festivals and college appearances or record sales?
I can certainly hear how a Rollins show would have been fun to hear- he plays with power, and as Robert Christgau says in his review of the Giddins-curated Silver City anthology of the Milestone recordings, "[Rollins uses the] entire vocabulary of the saxophone, from follow-the-notes melody reproduction to squeaks and blats that know no tonal referent, as a sound-palette that is its own reason for being." Giddins and Christgau are my go-to critics and they thought Silver City was just swell, but I'm mostly not hearing it, and Saxophone Colossus doesn't really inform me as to why.
Thursday, May 04, 2023
One of the things that Ray Acito used to say to me was that "Jurors want to do a good job." It's an important advocacy point, of course. If, as I am, you are usually on the defense side of the caption it's important to recognize that the natural inclination of most people is to sympathize with someone who feels aggrieved and that unless they have a good reason to find against the plaintiff you are very likely to lose your case. On the criminal side jurors are likely to favor the prosecution unless they are persuaded that the forces of the government have been unfairly brought to bear against the defendant. So now we have the Proud Boys, who tried that approach, convicted of seditious conspiracy and in a week in which the Supreme Court has never looked worse I find myself thankful for a judicial process that seems to have worked. I've also been following the testimony and the rulings made by the Hon. Lewis Kaplan in E. Jean Carroll's case against Trump and thinking that this is a trial that seems to be being conducted well. So I haven't lost faith in the judicial system yet, but I'm not ruling it out
Friday, April 28, 2023
The Assumption of Risk doctrine as applied in New York is an incoherent mess. It pretty much exclusively applies to persons engaged in sport or recreational activities, and amounts to a declaration, as a matter of law, that because a plaintiff was aware of the risks inherent in the activity, and voluntarily participated there is no duty owed. As the Court of Appeals says in yesterday's Grady v. Chenango Central Valley School District decision this doctrine, "may not sit comfortably within the landscape of comparative fault". Nevertheless, because New York's comparative fault statute specifically references assumption of risk it is still a part of our tort universe and must be addressed when raised.
The incoherence of the doctrine is nicely illustrated in Grady, which is actually two cases. In one summary judgment was granted; in the other it was denied.
The plaintiff in Secky v. New Paltz Central School District was an experienced basketball player. who was injured during a drill in which the players competed to retrieve a rebound. Plaintiff's coach had explained that the boundary lines of the court would not apply during the drill and that only major fouls would be called. At the time of the drill, bleachers stationed near the court were retracted. Plaintiff was injured when, pursuing a loose ball from the top of the key towards the bleachers, another player collided with him, causing plaintiff to fall into the bleachers and sustain an injury to his right shoulder.
The plaintiff in Grady was an experienced baseball player who was injured during a drill involving two coaches hitting balls to players stationed in the infield, with one coach hitting to the third baseman, who would then throw to first base, while another coach hit to the shortstop, who would throw to the second baseman who would, in turn, throw to a player at “short first base,” positioned a few feet from regulation first base. Because the drill required baseballs from two parts of the infield to be thrown to two players in the same area by first base, the coaches had positioned a protective screen, measuring seven by seven, between the regulation first baseman and the short first baseman. Plaintiff, in the group of players assigned to first base, was injured when an errant ball, intended for the short first baseman, bypassed the short first baseman and the protective screen and hit him on the right side of his face, causing serious injury to his eye including significant vision loss.
Can you tell in which case the assumption of risk doctrine was applied? Me neither. What's the takeaway? Plead assumption of risk and take the appeal- you never know, the horse might talk.
Tuesday, April 11, 2023
I miss liner notes. I am up to roughly 1957 in Aidan Levy's Sonny Rollins bio and I'm forming an impression of Rollins that is surprising me. If you are familiar with Rollins at all this is the period that you are probably best aware of, and most people who are into this sort of thing will have a copy of A Night at the Village Vanguard on their shelves. It's a pretty great set, but it's also true that Rollins couldn't keep a band together between the matinee and the evening set, and this seems to have been a consistent pattern. Unlike Miles Davis, who understood that a working band was the way to greatness, Rollins is all about finding cats to play behind his improvisations. This, I think, gets to the heart of a longstanding discussion about jazz: is it composed, is it improvised, or is it both? In the period leading up to 1957 Rollins was playing with Clifford Brown and Max Roach (along with Richie Powell and George Morrow), as well as with Thelonious Monk and on those sides everyone takes solos. After 1957/58 Rollins doesn't record as a sideman really, and seems to only rarely record with peers, and I think there is a drop-off in quality, no matter his wood shedding on the Williamsburg Bridge. People tell me that he was a very Zen cat, and he comes off like that in interviews, but I'm beginning to think that there's a kind of arrogance there, and that the reason that, for example, John Coltrane's sound kept evolving was that Trane, and Miles, and a lot of Rollins' other contemporaries made a point of playing and recording with musicians that would push them. It also seems to me that this may be part of the reason Rollins was unhappy with his recordings (at least according to Eric Nisenson's Open Sky. I've spent a lot of time over the last year listening to Rollins, and I don't regret it. I do regret that I never saw him perform.
