Judge Bernard S. Meyer: first merit appointee to the New York Court of Appeals.

• Author: Johnson, Vincent R.

To Bernard S. Meyer (1916-2005), Judge of the New York Court of Appeals (1979-1986), who, with integrity, keen intellect, and tireless effort, championed the rights of those who needed help most. (1)

ARTICLE CONTENTS I. THE CHALLENGE OF A LIFETIME AT AGE 63 II. SELECTING LAW CLERKS A. Treating Law Clerks as Equals B. The Best State Court in the Nation C. The Learning Curve III. TAKING THE OATH IN NEW YORK CITY IV. ARRIVING IN ALBANY IN THE MIDDLE OF THE NIGHT V. PERSISTING IN THE FACE OF POLITICAL ADVERSITY A. The 1969 Race B. The 1972 Race C. The 1973 and 1978 Openings VI. PROGRESSIVE REFORMER A. Respect for the Law B. Civil Libertarian C. Judicial Activist and Friend of Those in Need D. Frequent Dissenter VII. ELOQUENT AUTHOR A. Quotable B. Precise Sentences C. Insights from the Academy D. Attention to Legislative History E. Fascinating Issues F. National Prominence VIII. CRUSHING WORKLOAD A. The Caseload of the Court 1. Sessions in Albany 2. Dividing the Work 3. The Range of Tasks 4. Prompt Decisions B. Peripatetic Judging C. Before Computers D. Constantly Moving the Office E. Keeping Track of Everything IX. MASTERING THE NEW JOB A. Midtown Manhattan B. Temporary Chambers with No Books C. Home Chambers in the Bar Building D. Secretarial Support E. Endless Reading F. Long Hours G. Mystery and Majesty H. Clerks' Mischief I. The Pace During Intersessions J. Law as Both Vocation and Avocation K. The Great Arcania of Court of Appeals Practice X. LIFE AFTER THE BENCH A. ABA Standards on State Judicial Retirement B. Intellectual Historian C. Legacy INTRODUCTION

Bernard S. Meyer's great professional ambition was to be a judge on the New York Court of Appeals. (2) However, when he finally reached that goal, he found being a member of the state's highest tribunal was not quite what he expected. As he humorously explained to the Albany County Bar Association after almost eight months in office, "notwithstanding my long-held aspiration to be on the Court, I really did not know before I got there where I was going ...." (3) This is the story of Judge Meyer's exhilarating, exhausting, and highly productive first year on the New York Court of Appeals.

1. THE CHALLENGE OF A LIFETIME AT AGE 63

   A Marylander by birth (June 7, 1916) and education, Bernard S. Meyer received his undergraduate degree at Johns Hopkins University (1936) (4) and graduated "first in his class" (5) at the University of Maryland School of Law (1938). (6) As a boy, he "caught the legal bug by hanging around his uncle's law office in Baltimore." (7)

   Meyer was admitted to the Maryland bar (1938) and, after three years in practice, accepted a position in the office of the General Counsel for the United States Department of the Treasury. (8) He moved to New York in 1947 (9) following service in the World War II Pacific theatre from 1943 to 1946. (10)

   Meyer became a member of the New York bar in 1947, (11) apparently without needing to take a New York bar examination, (12) because of privileges accorded to veterans. (13) In New York, Meyer established himself in private practice, handling "commercial, corporate, estate and real estate cases." (14) He was also active in local politics, serving as the Democratic County Chairman in Nassau County (1957-1958). (15)

   In 1958, Meyer was elected a Justice of the New York Supreme Court, 10th Judicial District (Nassau County), where he served a full fourteen-year term as a trial judge. (16) Before that term ended at the close of 1972, Meyer had earned a sterling reputation as a jurist, (17) and had come tantalizingly close to winning a seat on the high court. (18) Indeed, as the end of Meyer's term neared, Governor Nelson Rockefeller, a Republican, took the "unusual" step of issuing a statement praising Meyer, a Democrat. (19) Rockefeller recognized Meyer's "distinguished services to the judicial process" and declared that "[i]t is most important that the judicial system does not lose ... a man of outstanding ability, who has rendered great service to the people." (20)

   However, Meyer's first two bids for a seat on the New York Court of Appeals had failed in 1969 (21) and 1972. (22) Despite an invitation to accept the deanship at Hofstra University School of Law, (23) Meyer returned to private practice in 1973. (24)

   Meyer made other efforts to reach the Court of Appeals during the ensuing years, and in 1975 conceded to the New York Times, '"I will certainly never lose my interest in the bench."' (25) However, up until 1979, he had not succeeded in his quest for the top court. That year he would turn sixty-three. Many persons might have concluded that his chances of sitting on the Court of Appeals were fading. Retirement of judges is mandatory in New York at age seventy. (26) However, the cause was not yet hopeless. In Meyer's era, some men had been even older when they reached the high court: in 1966, Kenneth Keating ascended as he "approached age" sixty-six; (27) in 1970, James Gibson was almost sixty-eight years of age. (28)

   Importantly, New York State had recently changed its system of selecting judges for the Court of Appeals. The change was due in part (29) to the rancorous (30) election race for Chief Judge in 1973 between Charles D. Breitel (31) (who won) and Jacob D. Fuchsberg (32) (who lost the race for Chief Judge, but was elected an Associate Judge in 1974). (33) After decades of filling positions on the Court of Appeals via bipartisan political party agreements, (34) New York had experimented briefly in the 1970s with contested partisan elections. (35) That experiment, widely judged to be a disaster, (36) had come to an end. Instead, as the result of a state constitutional amendment passed in 1977, judges for the Court of Appeals would thereafter be selected by the governor based on "merit," with the choice made from a list of candidates compiled by the Commission on Judicial Nomination. (37)

   As the end of the decade drew near, an opening on the Court of Appeals arose because Chief Judge Breitel was required to retire due to age at the end of 1978. (38) Associate Judge Lawrence H. Cooke was then elevated by Governor Hugh Carey to Chief Judge in early 1979. (39) Carey therefore had the task of nominating a candidate for the resulting vacancy on the seven-member high court. That person would become the first individual to reach the Court of Appeals as an appointee under the new system. (40)

   Based on a reputation for integrity and a record of professional accomplishment, Meyer was chosen as the first merit appointee to the New York Court of Appeals. (41) As future Chief Judge Judith S. Kaye later explained, "Judge Meyer was the first to arrive on the Court of Appeals via the appointment route, though he also had the dubious distinction of being the last to taste the disappointment of the election route...." (42)

   Meyer's nomination was "something of a surprise," which had been helped by "laudatory newspaper editorials" about him and "a letter of support ... from several law school deans....:" (43) However, it is difficult to imagine that there was a better candidate to prove the merits of a merit-based system of judicial selection. As Professor Vincent Bonventre of Albany Law School later remarked, Meyer was "an exceptionally capable judge of the court from 1979 to 1986." (44)

   Meyer was unpretentious, (45) intelligent, open-minded, hardworking, scholarly, (46) and compassionate. (47) Respected professionally (48) and self-effacing, (49) "he combined a youthful energy and sparkle-eyed sense of humor with the judgment and wisdom of the elder statesman." (50) And, at the time of his appointment, there was nothing Meyer was more interested in doing than being a judge on the New York Court of Appeals.

2. SELECTING LAW CLERKS

   I had not heard of Bernard S. Meyer until I saw his picture in the New York Times on April 20, 1979, announcing his appointment the day earlier. (51) I was finishing my studies at Yale Law School, and my plans for the coming year were unsettled. Armed with the newspaper, I went directly to the library in the Sterling Law Building, looked Meyer up in a large printed volume called the Martindale-Hubbell Law Directory, and called Meyer's office on a WATS line (52) located in the Yale Law School placement office (53) to ask whether he would need a law clerk. A secretary at Meyer's firm told me (even after I had mispronounced the judge's name) (54) that I could submit a resume. I mailed a letter of application that same day, and soon after doing so, was invited to Mineola, New York for an interview.

   On the appointed date, I took the New Haven Railroad to Grand Central Station and then, after a walk and a quick look from a distance at the United Nations headquarters, transferred to Penn Station for the Long Island Railroad. After about a fifty-minute train ride, I arrived in Mineola. I found somewhere to change into my suit, which I had carried with me because I wanted it to look fresh, then walked to the offices of Meyer, English, Cianciulli & Peirez, P.C. (55) I had only been to New York State once before, for a visit of less than two days.

   I had never known anyone who began what was essentially a new career at age sixty-three. That was what Judge Meyer was about to do. In my family, virtually all of the men had been blue-collar factory workers, mainly in the steel industry. They looked forward to retiring as early as possible, typically at age sixty-two, which is what my father did a decade later.

   1. Treating Law Clerks as Equals

      It was a serious interview. Nothing was superficial. I remember that Judge Meyer and I talked about his work on fair trial-free press issues (he had been "a member of the American Bar Association's Advisory Committee on Fair Trial and Free Press which drafted the ABA standards"); (56) pattern jury instructions (he had "served as the first chair of the Committee on Pattern Jury Instructions-Civil," (57) which produced an influential two-volume work); (58) and...