165. Cratering

One of my colleagues clerked for a justice of the state Supreme Court who followed a simple rule when deciding whether to grant review of a decision of the intermediate appellate court: if the Court of Appeals' opinion was more than 10 pages long, it needed to be reviewed, because that length indicated the judges were up to something.

It sounds silly at first.  But as a rule of thumb it's pretty reliable, because there are few legal problems that can't be resolved within 10 typewritten pages - if, that is, the court is applying existing law.  You don't have to justify your adherence to precedent.  Greater length generally means that the judge isn't applying pre-existing law, but is doing something he or she feels compelled to explain.

Another useful rule of thumb is that judges reserve their "eloquence" for opinions that need a little bolstering.  No judge uses fancy language to follow existing law.  So you don't really need to wade through the 82 pages of the Second Circuit's recent decision concerning New York's method of selecting judges to get the bottom line.  It's enough to read the first sentence:

This case requires us to peer inside New York State's political clubhouses and determine whether party leaders have arrogated to themselves a choice that belongs to the people.

Gee, wonder which way the case comes out?  That attempt at eloquence is the responsibility of Judge Chester Straub, a one-time New York State Assemblyman and State Senator.  Straub knows quite a bit more about the way judges pull out their patronage plums than most people.  This is from his official biography:

 Judge Straub was Chair of Gov. Mario Cuomo’s New York Statewide Judicial Screening Committee from 1988 until 1994 and of the First Department Screening Committee from 1983 until 1994. He was a member of Senator Daniel Patrick Moynihan’s Judicial Selection Committee from 1976 until 1998.

And that, boys and girls, is how you get to be a federal judge: you provide service to the party and make yourself useful to powerful politicians.  There's something indescribably aromatic about federal judges condemning the ghosts of Tammany's tigers for trying to replicate the federal system in miniature.

So from a judicial selection system heavily weighed toward the federal style of backroom deals, New York will presumably move to a system in which doing favors / paying one's dues / serving as a bagman will be more evenly balanced with big money media campaigns. 

The sense that there's something seriously wrong with New York's judicial selection process is not a new feeling.  Richard J. Tofel's Vanishing Point: The Disappearance of Judge Crater, and the New York He Left Behind doesn't provide much information about the famously retiring judge that wasn't already conveyed in Morris Markey's October 11, 1930 New Yorker article. 

But Tofel's entertaining book does provide a detailed glimpse of the sort of bargaining that promoted Joseph Crater to a seat on a Manhattan trial court.  I don't think "corrupt" is the right word at all.  "Pragmatic" gets a little closer to the key point, which is that there are many reasons other than legal acumen for turning a lawyer into a judge.  People got appointed to the bench because their appointments made sense, once you understand the point was to minimize the number of powerful men made unhappy by the choice.  Somehow I suspect that Judge Straub's stab at top-down reform won't make much difference in the long run.

Crater got appointed to the bench because he had spent many years being useful to Robert Wagner, Sr., and took care to avoid making himself obnoxious either to reform Governor Franklin Roosevelt or the gangsterish Tammany bosses, which allowed him to succeed as a compromise candidate.   Here's an American Heritage capsule summary of his famously thorough disappearance. 

(My own guess is that Crater, an appellate specialist during his years in private practice, discovered too late that life on a trial bench was unpleasantly fast-paced and stressful.  Having cashed in the political chips he had spent so many years amassing, he felt unable to free himself from a job he had asked for but experienced as a burden.   And the prospect of campaigning to keep a job that had become the focus of his clinical depression was just too painful to bear.  His wife's strange behavior following the disappearance makes sense if she was simultaneously dealing with the shock and trying to follow the instructions her husband left in a note explaining how to avoid the suicide exclusion in his life insurance policy.)