Portrait of a judge: Judith S. Kaye, dichotomies, and state constitutional law.

AuthorHerman, Susan N.
PositionNew York Court of Appeals - Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts - Testimonial

    First, let me say how honored and delighted I am to be here to start us out on this afternoon's project, which I would describe as all of us working together to compose a verbal portrait of Chief Judge Judith S. Kaye to go along with the very impressive physical portrait now gracing the back wall of this courtroom. In painting a portrait, we all start with our sketches and our mental snapshots of particular scenes or moments. So before getting to the topic on which I've been asked to speak, Chief Judge Kaye's scholarship, I want to start by sharing with you a few of the snapshots in my mind--my own personal memories and impressions of Chief Judge Kaye over the years--because they are a key part of the background for my piece of the portrait we are creating today.

    1. Judith Kaye and the New York Jury

      The first time that I saw Judith Kaye in action was when I'd been called for jury duty in New York City some years ago. I was sitting among the pool of prospective Brooklyn jurors when a video came on featuring Judith Kaye speaking to all of us there. This was something that had never happened before--that anybody, no less the Chief Judge of New York State, really tried to explain to prospective jurors what they were being asked to do and why it was important, rather than just intoning some Law Day homilies and then deluging them with commands and cattle-herding bureaucracy. But there was Chief Judge Kaye up on the screen explaining eloquently and inspiringly why she believed jury duty to be a critical part of our constitutional system. Her remarks signaled that I, along with everyone else in the room, was being taken seriously as an integral part of the justice system and was entitled to respect. In addition, this video (which I'm sure Chief Judge Kaye supervised because no detail went unnoticed) used filmmaking and storytelling arts to communicate with people--in a way that could really capture their imaginations--why they were being asked to give up a part of their personal lives to perform this public function. Instead of just assuming that jury service was a fact of life, the video treated the opinions of the prospective jurors about their jury service as important. And so the video took pains to educate, explain, and persuade so that the prospective jurors would have a basis for deciding for themselves that they were doing something valuable.

      I don't know how many of you may have seen this video, and I actually don't know if it's still being shown. But even though I don't recall exactly how long ago I was called to jury duty on that occasion, I vividly recall that in this video--while the voices of Judge Kaye and other experts talked admiringly about the nature and history of our jury system--the viewer was shown a reenactment of an alternative system of justice from our Anglo-American past: trial by ordeal. A woman dressed in appropriate period costume was being led into the water by uniformed purveyors of justice to see if she would sink or float. My fellow Brooklynites hooted at the idea that whether or not the water rejected her could be regarded by anyone as a reasonable basis for deciding whether or not this woman was a witch, a rather questionable charge to begin with. After seeing this video, I was not the only person in the room who then thought: Of course I want to be part of a reasonable and fair system for protecting people against unjust punishment. Even that brief reenactment--inviting viewers to empathize with the woman being subjected to such terrifyingly arbitrary treatment--helped to persuade the viewers that such outmoded forms of trial are no way to make a decision and certainly not a way they would want important decisions about their own lives to be made. That perception made the prospect of disrupting one's own everyday life for jury service sting a little less.

      That video, of course, was just one part of Chief Judge Kaye's important campaign--one of her priorities on assuming her position as Chief Judge--to transform the experience of jury duty for all the people of the State of New York. And as a first glimpse of Judge Kaye, the campaign reveals features of its architect that have become confirmed through later experience: brilliance tempered with humanity and humility, a deep and abiding love and respect for our Constitution and system of justice, devotion to efficiency without neglecting the humanity of the people affected by the system in question, and a view of the arts as a partner of the law.

      So this is a good beginning for one of my themes for today, which is to note that any portrait of Chief Judge Kaye has to be multifaceted because Judith Kaye cannot be pigeonholed into a few 'this is what she's like' adjectives. Somehow Chief Judge Kaye manages to bridge what people often regard as dichotomies. Take Aristotle's dichotomy of the man (or woman) of theoretical wisdom and the man (or woman) of practical wisdom--supposedly two distinct and defining models of not people think. (1) Even in this little video about jury duty, Kaye shows her theoretical wisdom: the intellectual rationalization and eloquent articulation of the importance of the jury trial and its role in the American justice system. At the same time, the transformation of the experience of jurors in New York State worked on a very practical level. In addition to offering inspiration, Chief Judge Kaye was also paying attention to promoting the physical comfort of jurors and prospective jurors, to treating them with dignity, and to figuring out ways to avoid wasting their time. But this was more than just a case of accomplishing two unrelated goals with one set of actions. The theory--that jury service is one way in which the Constitution empowers the People--was integrally tied to these practical innovations. Taking jurors seriously is more than just kindness. It is the result of recognizing that jurors are one-half of our judicial system, and therefore should not be treated as ignorant, surly, temporary servants of judges who show up only because they are compelled to do so, and need to be manhandled into serving their function. By treating jurors with respect, we show them that the constitutional theory that "We, the People" are the true government (2) is actually being put into practice. This attention to both the theory (3) and practice of jury service has been an invaluable contribution to the people of New York State and to justice generally.

      So that video and that campaign are snapshot number one.

    2. Judith Kaye, Interviewee

      The first time that I actually spoke with Chief Judge Kaye was in anticipation of a program in which we were both involved. The National Association of Women Judges had planned a Saturday night dinner during its annual conference and had decided that the entertainment at the end of the dinner would be something of great significance to all the women judges in the room: an interview with the first woman justice on the United States Supreme Court, Sandra Day O'Connor, and the first woman judge on the New York Court of Appeals, Judith Kaye. I was invited to conduct that after-dinner interview. As my husband quipped, it was my chance to be Oprah.

      We had planning calls: I spoke with both Justice O'Connor and Chief Judge Kaye on the telephone. When I spoke with Judith Kaye, the first thing she said to me was, "I see we both went to Barnard and to NYU Law School." Now isn't this typical? As busy as she must have been, she had taken the time to look me up and had done research on me. She told me atone point that she was a bit nervous about what I might ask her during the interview--which she needn't have been, as she handled all of the questions beautifully. Here again, Judith Kaye bridged a dichotomy: between her own superstar stature and a genuine humility that is not always easy for such a public figure to maintain.

      The conference at which this dinner was scheduled to take place--and did take place--was held during the first week of October 2001, just a few weeks after 9/11, in New York City. The dinner had originally been scheduled to take place at the elegant Windows on the World restaurant atop the World Trade Center, a restaurant which had suddenly and shockingly ceased to exist.

      What was quite remarkable was that so many of those women judges were willing to come to New York anyway, resisting the climate of fear that surrounded New York City at the time, and that the planning committee was able to hastily relocate the dinner to a hotel in midtown. In this highly charged atmosphere, the interview was especially moving and the audience was rapt. Justice O'Connor wryly referred to herself as the FWOTSC (First Woman on the Supreme Court, an acronym for the way in which she was so frequently described) and Judith Kaye shone as the FWOTNYCA (First Woman on the New York Court of Appeals) as well as the FWCJOTNYCA (First Woman Chief Justice of the New York Court of Appeals).

    3. Judith Kaye and Law and ...

      The third vignette that I want to share with you occurred in this very courtroom. After the Court of Appeals building had been renovated (a process of which Judge Kaye was justifiably proud because it came out beautifully), Chief Judge Kaye decided to celebrate the new courthouse by holding a lecture series featuring multidisciplinary topics, like law and architecture, instead of just law. I was invited to speak on a law and literature topic: the People v. Gillette case (4)--the New York case which was one of the models for Theodore Dreiser's great novel, An American Tragedy. (5) Interestingly enough, the person who was paired with me to speak that evening was Francesca Zambello, who had recently directed the Metropolitan Opera production of an opera based on An American Tragedy. (6) Chief Judge Kaye clearly delighted in the literature aspect every bit as much as the law, and in managing to include her beloved world of opera within the...

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