The Fund for Modern Courts and Albany Law School hosted the fourth annual Judge Hugh R. Jones Memorial Lecture on Monday, September 12, 2005 at Albany Law School. The Honorable Richard D. Simons., Associate Judge (retired) of the New York Court of Appeals, delivered the address. Named for former New York State Court of Appeals Associate Judge Hugh R. Jones, the lecture series examines important themes in the justice system through research and writing by an experienced and well-respected jurist.
The Honorable Richard D. Simons
Albany Law School, September 12, 2005
I am honored to be with you today and to present the 2005 Hugh R. Jones Memorial Lecture. My friendship with Judge Jones goes back to a time, long before I was a judge, only a young practitioner, and he one of the leaders of the bar. Subsequently I became a Supreme Court justice and Judge Jones, or Mr. Jones as he was then known, appeared as counsel in my court. I finally joined Judge Jones as a junior member of the Court of Appeals in 1983 and had the pleasure of working with him until his retirement a few years later. Our contacts in these various settings confirmed that he was an excellent lawyer, an outstanding judge and a warm and congenial friend.
Judge Jones and I were neighbors in Oneida County, he from the village of New Hartford, I from the city of Rome. The “buzz” following Justice O’Connor’s retirement that a woman would be appointed her successor on the United States Supreme Court because this was a “woman’s seat” reminded me of our time together on the Court of Appeals. The idea that a county the size of Oneida was “entitled” to one, let alone two, seats on the Court of Appeals was preposterous. Nevertheless Judge Jones and I kept up a banter with the 5 other judges on the Court of Appeals about the 2 Oneida County seats and what we insisted was our County’s due, retaining those seats, when we retired. Notwithstanding our claims, the two seats were quickly filled with judges from other areas of the state upon our retirement
Judge Jones had an illustrious career as a practicing attorney and as a jurist. Certainly one of his outstanding contributions to legal literature was his monograph “Cogitations on Appellate Decision Making.” It is a penetrating review of the judicial process and the concerns moving judges to arrive at decisions they earnestly hope will constitute not only justice to the parties but adherence to accepted legal principles. His views have been addressed with wisdom and discernment by the Judges of the Court of Appeals who have preceded me on this platform. They added their own insights and experiences to demonstrate what guides the decision making process and to identify the fundamental concerns that influence a judge.
I commend the lectures to those of you who were not fortunate enough to hear them because they canvass the subject thoroughly. Moreover, the lectures give substantial insight into some of the qualities important for those seeking and holding judicial office, a question we face again with the newest vacancy on the Supreme Court. That is the subject I want to address this afternoon: The qualities a candidate for high judicial office should possess.
It has become popular when vacancies arise, particularly on the Supreme Court, to categorize potential nominees. They are liberals or conservatives, activists or strict constructionists or, occasionally, adherents to some obscure theory of constitutional interpretation. It appears that any academically qualified attorney is an acceptable candidate for nomination as long as he or she embraces the appropriate judicial philosophy.
Although we sense what a liberal judge or a conservative judge is, the terms “strict constructionist” and “activist” are variously defined and their meanings are often elusive. An activist is generally described by elected officials as a judge who intrudes into areas reserved to them. The criticism rests on the premise that in a democracy the majority rules and policy choices belong solely to elected officials. As elected officials representing the majority, it is they, elected officials claim, who are solely responsible for making policy choices, not “activist” judges. Paradoxically, the term strict constructionist is sometimes applied to a judge who construes the constitution to limit the executive or legislative power of our elected representative, for example, by narrowly construing the interstate commerce clause to limit the power of Congress.
To my mind these terms are not helpful. They are political code words, imprecise and offering little help in informing us about a judge’s qualifications.
What qualities, then, should our elected officials look for in candidates for judicial office and what qualities should we as citizens expect our elected officials to require of their nominees.
Governor Cuomo, a New York City Democrat, appointed me, a judge from a small town upstate and a registered Republican voter, to the Court of Appeals. I was his first appointment and our manifest differences provoked a number of questions of the Governor by the press about how my views would harmonize with his as I addressed the work of the Court. The Governor’s reply was always the same – those political considerations are irrelevant in choosing a judicial candidate and unimportant to the work of the Court.
His statement, no doubt, reflected influences from his early career.
The Court of Appeals has historically been viewed as one of the great courts of the United States and as a young law school graduate, the Governor had joined the Court as a law assistant. He saw the Judges at work and participated in the processes of the Court. The future Governor formed his own ideas of what made a judge strong and what made the Court great. They were the views of a man trained as a lawyer who had the benefit of observing the inner workings of the court. The Governor concluded that there are more fundamental concerns in assessing candidates than political or philosophical views.
The Governor’s response to the press was defensive, meant for reporters and quite probably for many members of his Democratic Party but his view was a considered one based upon his experience.
I disagree with him in part. The background and experience of a candidate are important. All of us are prisoners of our past to some extent and we view legal issues through that prism. Moreover it is understandable that when appointing judges a Governor or President should prefer someone who shares his views. But I agree with the Governor that political views are not decisive. I think most experienced appellate judges would agree also.
Shortly after I was appointed to the Court of Appeals, Newsday – a newspaper from Long Island – decided to do an in depth analysis of the Court, its work and its judges. Reporters moved about the courthouse for a week watching the court at work, interviewing court employees and spending over an hour interviewing each judge privately. The reporters tried to categorize the judges. Each was asked “Are you a liberal, a conservative or a moderate judge?” Though the members of the Court came from political and cultural backgrounds that varied dramatically, each judge regarded himself as moderate. Each was there to do the work of the Court. Whether their assessments were correct or not, the point is that none had any interest in being viewed a force for dramatic change in the law.
The proper focus of the inquiry for judging a candidate for high judicial office is not the candidate’s belief system but his or her understanding of the institution he or she is joining and the responsibilities of the position to be assumed. A candidate should know and understand the historical mission of the courts and how the judiciary relates to the other branches of government. He or she should understand the Court’s relationship to the judicial system as a whole and, most importantly, the candidate should be aware of what his or her relationship to the court to which he or she has been appointed will be and the institutional responsibilities and obligations that will be undertaken by accepting the appointment.
These concerns are paramount whether the appointment is to the Supreme Court or to a high state court. The work of the United States Supreme Court is more visible to the public but high state courts address similar problems with equal importance to their constituencies. In just this last year the New York Court of Appeals has addressed such matters as the competing interests of the governor and the legislature in the state budgeting process , the expansion of legalized gambling and the validity of the death penalty statute. It appears that the Court will soon be faced with an appeal addressing the subject of same sex marriages. New York’s problems are no less consequential than those of the rest of the country and they present policy determinations which must be resolved by the judiciary as the branch of government charged with interpreting and applying the law.
You have known since high school civics that, by design, the judiciary was intended to be removed from political influences while the members of the other branches of government were intended to be responsive to the public will.
This structural difference is crucial. In our system of government certain questions must be decided free of the transitory and emotional influences of the majority. The courts are called upon to decide such issues because they are the only institutions created in a manner that enables them to withstand political pressure. Criminal defendants are convicted or acquitted after fair trials based upon constitutionally admitted evidence, not by a vote of the majority. The powers of the President, the Governor or the Legislature are granted to each respectively by the constitution and each must act within their authority. If they fail to do so the court’s obligation is to invalidate these unconstitutional acts. The courts are charged with the responsibility of defining and protecting the constitutional rights of individuals. Our forebears surrendered many of their freedoms in exchange for an ordered society of limited government. It has fallen to the courts to ensure that the powers surrendered do not operate to dilute the freedoms citizens retained. Democratic government cannot exist without this temporizing influence of the judiciary.
Nominees should understand also that our federal and state constitutions set forth more than governmental structures and relationships. They embody the hopes and aspirations of our people and set forth the means for their eventual fulfillment. Each branch of government has its responsibility for reaching that goal, but legislators and executives necessarily deal with people in the mass. Judges must act case by case; and only in the context of a set of facts. Judges see litigants as individual plaintiffs and defendants whose problems can be visualized from the evidence before them and whose grievances are decided as a matter of principle —- not as a matter of generalized policy or political power.
The critics are correct when they say judges create law. When the courts decide cases, they necessarily make value choices, they do create law. But that is the system this nation has developed–a system that provides balance in the governing process by delegating to the courts a small but important role in deciding the rules of the game by which our society lives. It is a system that permits the courts, in the words of Professor Ronald Dworkin, to hold out to our People the promise “that the deepest, most fundamental conflicts between individual and society will once, someplace, finally become questions of justice”.
Any candidate for high judicial office should understand and accept these principles. Value choices may be narrowed in the construction process but the fundamental purpose and work of the courts remains, and the responsibilities assigned to the judicial branch cannot be abdicated or explained away as representing merely a differing political philosophy.
Second, there is a hierarchy among courts that must be followed to keep the system coherent. Trial judges do not declare laws unconstitutional except in the most egregious cases; intermediate and lower courts apply the law as stated by the highest court, right or wrong.
In the publicity surrounding the nomination of Justice Roberts to the Supreme Court, pro-choice supporters took some comfort from statements during his confirmation hearings for the Circuit Court of Appeals that if confirmed he would recognize and apply the Supreme Court’s decision in Roe v. Wade. Of course he would. As a judge of an intermediate court there was no other responsible position he could take. He could not ignore rulings of a higher court. He was bound by the rules governing the judicial system.
A state court of last resort is much like an intermediate court of appeals when it comes to federal questions. It must defer to rulings of the United States Supreme Court. There is an interesting exception to this rule, however. Our states have their own constitutions and while state courts cannot interpret them to recognize fewer rights than those guaranteed by the federal constitution they can interpret the state constitution to recognize greater individual protections. And that is precisely what many state high courts have done when their judges believed the Supreme Court had applied the protections of the federal constitution too loosely.
For many years the New York Court of Appeals has wrestled with the interpretation of the State Constitution and whether its protections are the same as or greater than those guaranteed by the federal government. In New York, during my term on the Court of Appeals we frequently applied our constitution more broadly than the federal constitution, and we did so even in cases in which the corresponding sections were identical. Thus a search and seizure in New York, valid under federal constitutional principles, might be invalid under the state constitution even though the language of the two provisions is identical. To that extent, at least, the principles of federalism allow deviation from strict hierarchal practices. The judges and courts that act according to such principles of federalism are not activists, they are not liberals . . .they are simply judges and courts doing their constitutionally assigned jobs within our dual constitution structure.
And what of a judge’s relationship to his court and his fellow judges?The courts of the United States and of New York pursue the common law process. We learn from past experience and build on it. You will recognize this as the rule of stare decisis. A rule once formulated remains the law until superceded by legislation or overruled or modified by the court. We cannot re-examine the same question over and over. We must move on. In that way a body of law is developed that provides stability and continuity to our system.
The root of this rule of stare decisis, Chief Judge Breitel said, is the humbling assumption that “. . . no particular court, as it is then constituted, possesses wisdom surpassing that of its predecessors. Without this assumption there is jurisprudential anarchy.” One analogy of the common law process that has appealed to me is that of a book, a novel if you wish, that develops a story, the law, with chapters added by courts over the years. The current court adds a page or a chapter elaborating on the story and continuing it.
There may be occasions, hopefully rare, when a court makes an “errant footprint”, in the words of Chief Judge Breitel, and must overrule a decision. I remember only one in my 14 years on the court. But functioning rules long settled and relied upon are to remain except in the case of manifest error. The story is not radically changed at some later date by tearing out pages of the book to serve an individual’s preferences. There can be no stability in our system of laws if dissenting members of a court insist on reasserting their minority position in case after case as if the issue was still an open question. In the words of the Supreme Court majority in the Planned Parenthood case, when criticizing the frequent legal attacks on the holding in Roe v. Wade “Liberty finds no refuge in a jurisprudence of doubt.”
There is the story of Oliver Wendell Holmes, the great dissenter, who had written a particularly forceful dissent for four members of the court. Two years later he opened an opinion in an appeal addressing a similar issue and, following the earlier majority, said that the issue was now settled law. The practice I have been familiar with allows a full dissent, then when the issue returns a second time, a dissent, without elaboration, “for the reasons stated” in the previous case. The issue is then settled for all judges regardless of their personal beliefs.
The Supreme Court has apparently discarded this discipline. In appeal after appeal dissenters return to argue against a point long since decided giving the appearance that the issue is still open. But even more troublesome are the times when a member persists in a dissenting position until the personnel of the court changes. The dissent may then become the majority opinion, not as a matter of reason but as a matter of raw judicial power. That practice destroys the stability of the legal system and elevates personal conceit over judicial concerns.
Any serious candidate for high judicial office should understand the court’s role and accept the settled rules for deciding its cases. Candidates should recognize that they assume an institutional obligation. As a member of the court they will be bound to protect and advance its work.
It sometimes happens that members of a court are called upon to relinquish sincerely held views for the good of the court. A notable instance of this was Brown v. Board of Education, the desegregation decision. The decision was so significant, the issue so sensitive, that the full weight and prestige of a unanimous court was important. Such situations in which unanimity of the members of the court is important for practical or institutional reasons are not infrequent. A conscientious judge recognizes those situations and bows to the will of the majority so that the force of the court’s ruling is not diluted. Those with agendas, who want to rewrite the plot in our book of laws, ignore one of the most basic responsibilities of the courts — to stabilize our laws.
Finally, a judge should be a person of high principle. Far more than for any other office, this is a requirement for judicial office.
The judiciary is the weakest branch of government with little power to enforce its decisions. Many judicial decisions run counter to the thinking and sentiments of the public or rest on considerations so equally balanced that either result could be easily justified. Notwithstanding intense and sustained public reaction against some decisions they are generally accepted. Indeed, they must be accepted if civilized government is to continue.
Citizens accept court’s decision because they believe that they have been reached by a neutral process of principled analysis, free of outside or political influence. This legitimacy is the bedrock from which judicial power is derived. It is critical that judges and candidates for judicial office recognize that fact and conduct their personal and professional lives accordingly.
The public may reasonably question whether a decision rests on a neutral and principled analysis of the case when a judge gives speeches addressing the merits of a legal issue pending before the court or when a judge goes duck hunting with a named party after the case is calendared. The harm from such impropriety is magnified when, once identified in a motion to recuse, the judge issues a written opinion attempting to justify conduct that cannot be justified.
Such incidents seriously wound the reputation of a court. They are mistakes of judgment which, if multiplied, injure not just the judge and court involved but the entire judicial branch and if persisted in will eventually undermine its effectiveness.
In sum, judges are not free to act as they will. They are essential actors in a system of law that is charged with settling and enforcing the rights of citizens in a studied and principled manner. This system has existed for centuries. It is esteemed at home and envied throughout the world. If the judicial branch is to deserve this respect, nominees to its courts must have the experience, insight and wisdom to know what their positions will require and what their responsibilities will be. The elected officials who appoint and confirm a judicial nominee must understand and accept these values and insist that the nominee also understand and accept them.
The general philosophies of nominees are important. They can change the direction of the court in the short term. But more important are these fundamental values: an understanding of the mission of the judiciary and its place in our governmental structure, an understanding of a court’s powers and responsibilities and a sensitivity to the requirements of constitutional legitimacy. These are the values that are decisive in the long run and make the United States judicial system a powerful instrument of free government.
. See the discussion of Judicial Activism by Professor Vincent Bonventre. Bonventre, Judicial Activism, Judges’ Speech and Merit Selection, 68 Albany L. Rev. 557, 563 et seq 
. Pataki v. New York State Assembly, Silver v. Pataki, 4 N.Y. 3d 75 (2004)
. Dalton v. Pataki/Kerr v. Pataki, 2005 Sup Op. 03581 [513/05]
. People v. LaValle, 3 N.Y. 3d 88 (2004)
. Dworkin, The Forum of Principle, 56 N.Y.U.L. Rev. 468, 518
. See discussion in Immuno v. Moor-Jankowski, 77 N.Y.2d 235, Part III p. 260, Simons, J (concurring)
. See People v. Johnson, 66 N.Y.2d 413 
. See, People v. P.J. Video, 68 N.Y.2d 296 
. People v. Hobson, 39 N.Y.2d 479, 488 
. Id, supra
. People v. Bing, 76 N.Y.2d 331 
. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 843 (1992)
. Discussed in “Cogitations of Appellate Decision Making”, p. 1238; Mason City v. Fort
Dodge v. Boynston, 204 U.S. 570, 578 (1907) following Madisonville Traction Co. v.
St. Bernard Mining Co., 196 U.S. 239, 257 (1905)
. See e.g. United States v. Dixon 509 U.S. 688 (1993) overruling Grady v. Corbin, 495 U.S. 508 (1990)
. Brown v. Board of Education, 347 U.S. 483 (1954)