Decades ago someone asked why this Editorial Board “cares so much about the courts, it’s not the New York Law Journal?”
We cared then and we care now because the Third Branch of government, at both the federal and state levels, is as important as the other two (the co-equal legislative and executive, for those who forget civics class) but gets far less scrutiny than the political branches.
Who are the judges? How do they get their positions? What are the rules and procedures for the courts? It all matters and it’s all of tremendous public concern. And we don’t just mean hugely consequential situations like abortion before the U.S. Supreme Court or the various trials of Donald Trump.
New York State and New York City are at the center of the legal profession in the country and those lawyers practice before the most convoluted, confusing and complicated state court system anywhere with 10 different trial courts. At the top is the Court of Appeals. Even that is confounding, since 49 other states logically call their highest bench “Supreme Court.” Here the Supreme Court is one of the 10 trial courts.
What is also unique about New York is that cameras are banned from court when witnesses are giving testimony, an archaic restriction from the Lindbergh trial days that our sister states have managed to get beyond.
Today, we focus on a court that does allow cameras, the Court of Appeals, which in the past few months has heard two cases of national significance: the balance of power in the House of Representatives and the fate of rapist Harvey Weinstein, whose predations when exposed changed the perception of sexual harassment and sexual abuse.
In both cases, which were decided on 4-3 votes, the judge who could have made for a different outcome sat out the proceedings. Caitlin Halligan is the newest judge on the court, having started just a year ago. She recused on both of these cases because she claimed a conflict stemming not from any of the parties to the cases, but from an amicus curiae brief, the Latin term for “friend of the court,” filed by an outside group.
Rather than participating, Halligan exited and allowed Chief Judge Rowan Wilson to substitute a lower court judge, who happened to side with Wilson, producing a majority.
Last week, the Court of Appeals ended this nonsense by changing its rules to state: “Amicus curiae relief will be denied where acceptance of the amicus curiae submission may cause the recusal or disqualification of one or more Judges of the Court.”
Better to keep the judge and lose the brief than the other way around. We still think that Halligan erred in absenting herself based on amicus curiae briefs, as she could have stayed and been impartial, but from now on she will have no such excuses to excuse herself.
Having fixed this problem, what still needs a remedy is full transparency on exactly how Wilson selects substitute judges when a judge does have to step aside on a case. The process must be put in writing and published. It should be entirely at random or on some fixed rotation that is not subject to subjective discretion that gives the appearance of judge shopping.