A Court System for the 21st Century

GUEST: Judge Judith S. Kaye
VTR: 12/08/08

I’m Richard Heffner, your host on The Open Mind.

And I’m never as regretful that I didn’t have the good sense to go to law school as a young man as when my guest is the extraordinary woman who has now served longer than any other person in our history as Chief Judge of New York State and Chief Judge of its highest court, the Court of Appeals.

For had I, then perhaps I could do more justice to the crucial role that my dear friend Chief Judge Judith S. Kaye has played in creating “a court system for the 21st century” all during her 25 years as the first woman on New York’s high court and her unprecedented near-16 years as its Chief Judge.

But I’ll try, anyway, my task made somewhat easier …

KAYE: (laughter)

HEFFNER … by the characteristic lucidity of her final “State of the Judiciary, 2008″ – her “swan song”, if you will, for by the time you witness this Open Mind conversation, Chief Judge Kaye will have left the Court, due to a mandatory retirement rule in the state Constitution.

And I suppose I should first ask Judith Kaye what she most wants her legacy as Chief Judge to be – aside from the great good will and admiration expressed by all who worked with her and came before her in court, aside from the civility and indeed the unanimity that she always sought and quite frequently achieved among her colleagues, aside from the tributes everyone offers to her capacity for thoroughness, thoughtfulness, hard work and skilled writing.

And since Judge Kaye titled her “swan song”, her final “State of the Judiciary, 2008″, very simply “A Court System for the 21st Century”, let me ask her first what must it be to achieve justice in our time.

KAYE: (Laughter)

HEFFNER: What’s that system got to be?

KAYE: A great question. I can’t avoid noting the irony that I left a career in the media, in journalism, that was my aspiration … and so there you are … thinking what the world would have been had you gone to law school.

And I am thinking … well maybe I’d be looking for another job today as a former journalist. Right?

HEFFNER: But the world would be a loser and it wasn’t, in my case. Serious, Judith, what, what are the elements, as you created your final “swan song” here?

KAYE: Well, I thought long and hard about what I wanted to say. Obviously, any good journalist would. And I think … I, I put the title on last. Again, I wrote my headline last, “Court System for the 21st Century”.

The demands of the 21st century are immense. And every day changing. I would want a court system that at its heart functioned well for the litigants. And I would hope that there would be a public appreciation of … by that I mean “understanding” … perception, that our court system is meeting the needs and demands of the new century. And I say that is every day changing. And I, I tried to pick a slice of life. For example, in the … on the civil side where maybe we see most of the crises today that are, that are caused by the economic collapse. Starting with the housing court … people are losing their homes. Losing their apartments, they’re being evicted in, in the thousands and thousands and thousands … how do we manage that?

That, that is a real challenge, that is a crisis. Moving over to the homes we have the foreclosure crisis, which has landed hard in the court system, if you think about it. Every foreclosure ends in a court order. How do we do that better? How, how do we not just be a stop, but be a constructive intervention. Whether the problem is loss of an apartment, an eviction or loss of a home or foreclosure, or moving along on the civil scale .. some massive global merger collapse, you know, in our commercial division.

How do we, how do we assure that our interventions are meaningful … because so, so much goes into a court intervention. So much in terms of time and resources. I want to be sure that it’s positive. That’s its efficient, that it’s respectful of the litigants and that it’s a positive, constructive use of our time. And that really was the theme that drove my swan song because I hope it is the theme that has driven my tenure as Chief Judge. The role of a lifetime.

HEFFNER: You know, you say, “the role of a lifetime”, I’m going to stop right there. Why, why do you say that?

KAYE: I cannot imagine anything, anything that equals the role of Chief Judge of the State of New York. There is the adjudicative part. The Chief Judge sits as the head of the seven member Court of Appeals which is the State’s highest court and for all practical purposes, the very last word on matters of tremendous significance. Every case that comes to the Court of Appeals, by definition is, or we try to make it so … a state-wide issue, a novel state-wide issue.

And so there I sit. That in itself, it consumes easily 80% of my time. Being the Chief Judge of the State of New York, of the Court of Appeals of the State of New York, I had that role … only that role, for ten years, as an Associate Judge.

I called it “lawyer heaven”, it is lawyer heaven. In addition to lawyer heaven as the Chief Judge of the Court of Appeals, I am the Chief Judge of the entire unified court system of the State of New York … 15,000 employees. And by the way, having our employees satisfied, happy, productive, that’s important to me, too.

Three hundred sixty three courthouses. We’ve got 40 new courthouses in my tenure. We’ve renovated and refurbished dozens. That’s important to me, too, because, because of the people who are in our courts, they should know that we don’t have a shabby, deteriorated court facilities. We think more of them and the matters that they bring to us.

We want them to have court facilities that are respectful of their problems. And of their presence. And jurors, too, needless to say. So here I have both roles. I think, I, I say each takes about 80% of my time. And I have both of them. How could this not be the role of a lifetime?

How could anything come close to the privilege I have had?

HEFFNER: But let’s not be unfair to the problems that go with it. You describe yourself to … you mention it, in a throwaway, because you don’t want to be negative, as you leave the high court … the chief litigant, too, in a sense that you are bringing pressure, legal pressure upon the state to enable the next Chief Judge to have a happier court.

People who are decently, fairly paid. What happened to the whole business of compensation for judges?

KAYE: Well, I, I might say that has definitely taken joy from every single thing that I’ve done as Chief Judge. To have this, this really terrible, terrible compensation situation. It’s, it’s very hard to explain, to understand. It, it’s just, just been … it’s been tragic really.

HEFFNER: What’s the fact?

KAYE: Well, the fact is that it’s the Legislature that has the power of the purse.

HEFFNER: MmmHmm.

KAYE: You know, I wish I could change that a little bit, I think I would have done a very responsible job with the power of the purse. But the Legislature has the power of the purse, that’s true on the Federal level, that’s true on the State level.

So it is for the Legislature to approve the compensation of judges. For 11 … we’re now in our 11th year that the judges compensation has been frozen … absolutely frozen, not a cost of living increase … nothing. Nothing. This …

HEFFNER: That’s insanity.

KAYE: … I, I think that’s a fair description. Yes. And certainly I, I say that looking from the outside and looking from the inside, terribly, terribly demoralizing to the judiciary. As it would be anybody.

And so as Chief Judge I, I have been the chief battler for the past ten years … I say we’re now in our 11th year. Starting with Governor Pataki … who openly supported cost of living increases for the judges. There was never a bit of controversy about the fact that the judges deserved to have a cost of living increase.

Then we went to Governor Spitzer. Again he was outspoken in his support of cost of living increases for the judiciary. We even talked of a retroactivity … back to a time when Governor Pataki was the governor. And I might tell you, Governor Patterson, again … totally supportive of the cost of living increases for the judges. Of course, nobody speaks of that today as, as there are so many economic disasters.

But we’re talking about ten, 11 years of completely, completely frozen compensation. And what has been the difficulty all along … I know the reason … I say I can’t explain or understand … it has no logic, it has no justice. The reason is that judges will get an increase when our Legislators get an increase.

Some of the Legislators have been very outspoken. I’ve heard some of them say, “Show me the money” and things like that in the, in the past. And there’s never been a moment’s secrecy about it.

Judges will get an increase when Legislators get an increase. And that’s what it comes down to.

HEFFNER: Is it a political concern on the part of Legislators, they’re afraid they’ll damage themselves politically?

KAYE: Well, it’s certainly morphed into that. I don’t know what the … all the considerations were at the beginning … we’re talking about a decade of history. And there have been different reasons at different times.

Sometimes it was what will go into the package to trade off for Legislative increases which will then turn into judicial pay increases. But I say “over time” with the, with the terrible tensions in the economy … reasons change.

But back a decade ago … yes, it was just if they got the increases, we would get the increases.

HEFFNER: Well, I, I know that this pains you … you say so in your State of the Judiciary Address … it pains you to make any reference at all to being chief litigant in that sense.

So let’s go back to the, to the other aspects of the changes that you think should take place. I, I notice that … I was reading your first State of the Judiciary …

KAYE: I haven’t looked at that in a long time.

HEFFNER: Well, I have the advantage of just having done so, and then contrasting it with this last one and I come across the expression “green justice.” What do you mean by that?

KAYE: I’m excited about that. Well, we are, in addition to everything else … or we should be good citizens … shouldn’t we? And just think of what the court system consumes.

Let’s just take paper. Enormous, enormous quantities of paper. This is a brand new initiative and I think probably we’re the first court system in the nation to announce a Green Justice Program.

And by the way, I, I’ve talked about my role of a lifetime … I, I was determined until midnight on the 31st of December to be the Chief Judge and to do everything that I could think of to improve the court system and not to be thinking about my next life.

So I think Green Justice was one of the last initiatives … we, we released it …

HEFFNER: You mean you’re going to get rid of paper?

KAYE: (Laughter) I don’t think we’re going to get rid of paper because we, we’ve been trying to do that for a long time. We announced paperless courts a few years ago. I don’t go back and read former State of the Judiciary since I think it might be a bit embarrassing. But, that’s one point where we did announce paperless courts some years ago and here we are, vast consumers of, of paper.

So, I don’t think we’ll get rid of it. But maybe we’ll use it better and use it more minimally and thoughtfully and I, I think we could go much more toward electronic, electronic means of communication.

You know the paper is costly not just for the court system. You know we require 10 copies of this and 10 copies of that. And I, I just think we need to be much more thoughtful in, in how, how we light the courts, how we heat the courts, how we … you know, just, just want us to be good citizens.

HEFFNER: It’s interesting to me because part of that, of course, and you just referred to it a moment ago, in passing … to do with juries and juries … the citizens who join you in achieving justice. What an improvement you’ve made in the jury system in New York.

KAYE: Well, I never liked to put anything in the past tense. Because nothing is done, nothing is complete, everything is unfinished business and, and you’ve put your finger on something where … which is the perfect example of, of what I’ve said.

I think we have made enormous strides in the State of New York in, in improving the jury system. And, as I’m sure you know, because you’ve read my past reports … that’s been an initiative from Day One. I can’t exactly tell you why it started … maybe, maybe it was just to know that we’re doing better in the courts. Maybe it was for that second reason I mentioned, to earn better points … with the public …

HEFFNER: MmmHmm.

KAYE: … not aggravating them so much by bringing them in every two years to sit there for two useless weeks. So I, I think we’ve done a nice job in so many respects in making jury service genuinely service, more service than duty.

But, there’s … I say there’s a perfect example because society evolves, society moves ahead. The jury … jury reform has swept the nation in the past decade. And we’ve learned so many more things. So I think while we’ve done a fine job of using juror time … bringing people in more efficiently, certainly treating them much better. When people stop me and say “Judge Kaye, thank you for all the wonderful things you’ve done, I only had to serve for one day (or two days) and I don’t have to come back again for four years or six years or eight years”. I say, “No, no, no … that’s not the purpose of the jury system.

The purpose of the jury system is to get you on a jury. You know this is the anchor, it anchors us to our Constitutional principles, the jury system does. It’s an opportunity for citizens to see justice and do justice.

Not to see the inside of a courthouse every six years, but to get on a jury. To have the experience of serving in a case, on a case, to verdict … to, to just internalizing what it means to deliver justice. That’s what jury system is about. So we have so much to do. We have so much to do to make it better.

HEFFNER: What has that led, to the degree that you’ve been able to measure it, to public attitudes toward our justice system?

KAYE: I hope and believe that it has moved up a tick the public attitude toward the justice system. Of course there’s so much negativity. We’re, we’re so negative, aren’t we? So cynical and so much in, in the media. You know if, if somebody falls or something … that’s news. Or where there’s a horrible murder or, goodness, something goes amiss in the court system … that’s what’s news and not, not the good things. So, we’re struggling against a mighty mountain of public cynicism. But I, I think because of a positive experience that so many people are having, that perhaps that, that we have moved up a notch … just a tiny notch.

HEFFNER: What about numbers? My …the, the statistics you use in your final report are mind-blowing. I mean the number and the growing, increasing number of activities in the court system of the State of New York, which I’m sure is true all over the country is just appalling. I mean how do you get a grip on that?

KAYE: On … which part?

HEFFNER: On the part of numbers. On the number of …

KAYE: The numbers coming into the court system.

HEFFNER: The numbers coming into the court system.

KAYE: I, i know and you know what really amazed me when I delivered this swan song … we had, we had a nice audience, it’s the first time I’ve done it in New York City instead of in Albany, and I got nice large audience.

What shocked me was the number of lawyers who came up afterwards to say, “I didn’t realize we had four million new filings in the court system of the State of New York.” Yes we do. Our numbers are in the millions in the New York State Court system.

How do you get a grip on it? A piece at a time. A piece at a time. And you … getting a grip on it is the essential role of the Chief Judge of the State of New York. To, to follow our numbers, to study our numbers, to see what we can do better.

We started our foreclosure initiative … oh, I’d say many, many, many months ago with the fact that we had 15,000 pending foreclosure proceedings in the country of Queens.

Now we have to do something about that. We’re … we … you know … we have to just rally the people around and, and the best I do, as the Chief Judge … is to convene the people who can solve the problem. It’s the Chief … the Chief Judge is the Chief convener. The Chief Judge brings together the people who can help to solve the problem. I can’t. I can identify it. I can look to the people who can help and who bring knowledge and diligence whether it’s the judges or the, the lawyers. We have a very vital partnership with the bar.

And we devised ways to try to cope with the, with the foreclosure situation. This is just one example. We piloted Queens because the numbers were so huge. And learned lessons which we can now carry to other parts of the state. This is one example.

HEFFNER: Can you carry those lessons to other parts of the state? Or could others carry those lessons to other states? Without hugely expanding the judiciary?

KAYE: I think so. I think, I think we … I have identified in that report where we desperately need more resources, more judges and that’s in the Family Court, which I for years have been asking for more Judges for the Family Court.

In other respects and definitely today more than ever, we have to find ways to use what we have better and to make more partnerships together within the State of New York, across state lines and I’m so pleased you mentioned other states because there is an organization called The Conference of Chief Justices, the National Center for State Courts.

We do probably more than ever look across state lines to see what other people are doing. And again, I’m staying with the foreclosures because it’s, it’s kind of the big headline news today.

Other states, our neighbor Pennsylvania, the State of Ohio, other people are doing things. We watch them. We watch what they do and they watch what we do. So I think today especially the by-word is efficiency and better use of our, our resources to solve growing problems. I think, I think that’s the important challenge.

HEFFNER: In the few minutes that we have left …

KAYE: I’m sorry to hear that.

HEFFNER: … our subject …

KAYE: … we could go on forever.

HEFFNER: I wish we could. But a subject … I don’t know how well you will take it, but it has to do with politics, elections, the role of the judiciary there. Should we still be electing judges … in your estimation?

KAYE: Ahmm … well, I, I’m … first of all as you noted a little earlier … overwhelmingly … I am an optimist. And I think that is the first, the first requirement for the Chief Judge.

The second is I am a realist. I function in the real world and I know we have an elective system, and we have an appointed system. I think both bring excellent judges to the bench. I think what we have to do is focus on making each of those better, rather than spending … wasting a bit of time trying to uproot one in favor of the other. Both have problems, both have benefits.

So I spent a long time studying the elective system for our judiciary. And what we came up with, the solution we came up with … the best we could do, which I think is good … is Qualifications Commissions. So that if you know that every person standing for judicial office is a well-qualified person, it doesn’t much matter whether they arrive by the elective system or the appointive system.

And by the way, I except from that my court, the highest court of the State, where I am thrilled that we have an appointive system because of the money that, that you see other states … ah, ah, the problems that other states have … tens of millions of dollars going into elections for the highest court. But short of that, I think we should focus our time and energy on making the elective system work better and the appointive system work better. And I think we have … because we have good evidence that we have good judges …

HEFFNER: Judith …

KAYE: … I support them both.

HEFFNER: … does that mean you’ve given up on the possibility of appointive judges … all?

KAYE: Oh, long time ago, yes. I, I, I have devoted myself for a couple of years to just improving the elective system and congratulating our judges who arrive … by whichever means.

HEFFNER: What about around the rest of the country … what, what do you have to say about the judiciary … in just a couple of minutes left.

KAYE: The judiciary …

HEFFNER: Yes.

KAYE: … wow … what a challenge. First of all, I’ll reserve for my next appearance …

HEFFNER: Okay …

KAYE: … a more thoughtful comment. But I, I feel very proud … I’ve told you about this national organization I’m part of … in fact, I was the President of it at one point. I think, I think we have a really outstanding judiciary that honors our founders vision. And does deliver justice and struggles every day to do a better job. That, I hope, is what we do in New York State. And I know we will continue under my successor. And I believe that is true of the judiciary throughout the United States. A very proud third branch of government.

HEFFNER: If you had one wish …

KAYE: (Laughter)

HEFFNER: … going back …

KAYE: Oh, goodness …

HEFFNER: …what would it be?

KAYE: … one wish … well I’ve told you that the compensation system has robbed everything I’ve done of, of some joy. It really has. So, I’m sorry to end on that, I would like to end on a loftier note … but this has been …

HEFFNER: Please …

KAYE: … it’s been brutal, it’s been just brutal to be so, so disparagingly treated by our partners in government. Really, nothing short of brutal. So I would change that simply so that the rest of … everything else …I could continue the effort with joy.

HEFFNER: Well, I think whatever you do … whatever you’re going to do now …

KAYE: (Laughter)

HEFFNER: … as Chief Judge … what is it Chief Judge Emeritus …

KAYE: I am the first female former Chief Judge of the State of New York.

HEFFNER: Former Chief Judge.

KAYE: I will continue that distinction. First female former Chief Judge.

HEFFNER: You were also the first female Judge …

KAYE: I was, as a matter of fact, yes … first female Court of Appeals Judge.

HEFFNER: How does it feel to be a pioneer that way?

KAYE: (Laughter) I feel relieved. I think that … I think it’s been a good run, I don’t mean to be too self-aggrandizing, it’s been a good run. And honest, I worried from day one that, that if, if I fouled up it would be “Look what she did”, or “What she wrote” or … and so I’m glad for myself, for my sisters and for everybody else …it’s been a good run.

HEFFNER: Chief Judge Kaye, thank you so much for joining me again on The Open Mind.

KAYE: My pleasure, my pleasure.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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