Photo provided by Skadden Arps. Read our 2012 profile of Judith Kaye, who passed away in 2016. She joined the firm in 2009 after serving as Chief Judge of the New York Court of Appeals.
Judith Kaye retired last year from her position as Chief Judge of the New York Court of Appeals, the state’s highest court. She was the longest serving judge on the court as well as the first woman to occupy that post. As she opens a new chapter in her life as of counsel at Skadden Arps, Kaye shared her thoughts with Lawdragon on the court system and her battle to improve judicial compensation.
Among her many accomplishments on the bench was the development of problem-solving courts for cases involving domestic violence, mental-health issues and drug abuse. These courts focus on job training, rehabilitation, anger management and other alternative strategies to traditional prison sentences. Kaye discussed her views on judicial innovation, the courts’ approach to issues affecting children and her goals for the future.
Lawdragon: It’s quite a big change to go to a firm after all these years on the bench. How do you feel about the change?
Judith Kaye: I feel both excited and apprehensive about coming into a new world, but I put excited first—very excited. I’m pleased that I have this opportunity, which I think is a great opportunity on many fronts. I’ve been meeting a lot of people in the firm, which has been fun and interesting. This firm has a tremendous depth of involvement in public service.
LD: What kind of work and projects will you be taking on at Skadden?
JK: That’s the first thing I am trying to determine. I am concerned about children, especially in the court system. Of course I’ve had a lot of other projects, but I’ve really settled upon children as a topmost area of concern because so many kids just lose their lives either physically or virtually. They have no opportunity because they have years and years, or even decades, floating around from one foster family to another. Nobody seems to care about them. They have no stability, no permanence. Especially as Chief Judge, I became enormously interested in seeing what we could do so that kids had an opportunity. And I am bringing that here with me.
LD: You’ve been a huge proponent of court innovation. What got you away from the traditional judicial approach and into innovative solutions?
JK: I started with the Matrimonial Commission and then suddenly I was Chief Judge and the Commission came in with its recommendation, which made so much sense to me. And maybe that was my first taste of moving away from the traditional response, the ordinary reaction, moving off that to try to figure out a better way to do our business in the court system. Almost contemporaneously, I had the report of the Jury Commission, which was a blueprint that the court system was able to implement. It took a number of years and I think we got to every recommendation of the Jury Commission. When you get a taste of being able to move immovable forces, it’s very intoxicating. I got a taste of being able to change things for the good of the people I was serving. Judges told me this is what I became a judge to do, and the difference is terrific. People stopped me on the street and said, thank you, it’s so much better to be a juror. We just knew we were on the right track and it was inspiring.
LD: What are you thoughts on the Center for Court Innovation — the courts’ think tank and its goal of helping the courts to administer justice faster, more effectively and at less cost?
JK: I feel so proud of that. In this day and age, when I talk about turning the prism, isn’t that what we should be doing in the court system? Why do court systems not have a research and development arm like other entities do? Why shouldn’t the court system be looking to the future and finding better ways to do things? The answer is, of course, the court system should do that. And that’s what the Center for Court Innovation does. As society continues to evolve, we need to look for better ways to conduct the business of the court system.
LD: How about your views on the problem-solving courts and their proactive approach to reducing recidivism?
JK: I feel tremendously encouraged. We need to focus on what’s right and sensible—to try to work things out short of, in the criminal context, sending somebody off to prison. We can figure out a better way to serve the justice interest and to serve the human interest. Very often, in the criminal context, in the drug area for example, the defendant is just right back out on the street again. Sometimes time served is the sentence and the defendant ends up in the very same place doing the very same thing when a little bit of turning the prism could make a much better result for the human being caught in this, the defendant, and for society too. It’s equally true in divorce and for children who are caught up in the family court system.
The court system tests these problem-solving approaches and is careful about them. It has really proved over the past 15 years that this approach can work and it makes a lot more sense than what has traditionally been done—just bringing in a case, marking it disposed and going on to the next case. And that’s really what we were doing with the problem-solving courts—not just recycling people through the court system. So I think it is at the core—the same kind of issue—stepping back, being more thoughtful, being open to new ideas, turning the prism. Can we do this better? Almost invariably the answer is, yes we can. As a society we can do better.
LD: How involved should judges be in resolving cases?
JK: If you look at the problems focused on in the problem-solving courts, they are not strictly legal kinds of issues. They are human issues. Look at the mental health courts, the domestic violence courts. Resolving the law issue doesn’t resolve the problem. I mentioned the drug courts a moment ago, where defendants will just go right back to the same conduct that got them there in the first place and in the domestic violence case, there will just be escalating violence. And the mental health situation—someone will just be put away. We’re maybe a little more careful with analysis and working with the people who can help to bring about a better result for the defendant and for society. Just incarcerating people hasn’t gotten us all that far, has it?
LD: Is the judiciary supportive of the approach being taken by the problem-solving courts?
JK: Yes. Not every judge wishes to do this. Not every judge is the right judge to do this. So it’s selecting the best judges to do this problem-solving initiative. These are the people who constantly have new ideas for making the process work better and these are the people who say this is what I became a judge to do. I love to listen to them. The judge out in Brooklyn, Matt D’Emic, who overseas the mental health court, whenever I ask him how he’s doing I’m on the phone for 45 minutes. He just loves to talk about the cases he’s handling. It’s very inspiring.
LD: This may sound silly, but what are your thoughts on the TV judges like Judge Mathis and Judge Judy and their proactive approach? Should judges be that outspoken?
JK: Well you have to remember that they are entertainment. A lot of the things they do are certainly wonderful things. But you wouldn’t necessarily want judges to behave that way in the courtroom. I think TV judges sometimes give people the wrong impression about what it’s like being in a courtroom. If you are litigating, you want to be heard. It’s important for people to be respected in the courtroom.
LD: Which of your decisions do you feel had the greatest impact or that really stand out for you?
JK: Oh my goodness. That’s very hard to answer. So many cases come to mind. I was going to say my rule against perpetuities decision, which gives lawyers hives. And then someone this morning mentioned a condemnation decision. Which had the greatest impact? I don’t know. I think the cases that really have helped create debate and an ongoing discussion, like the same-sex marriage case. [The case wasHernandez v. Robles, in which the majority ruled that the state constitution “does not compel recognition of marriages between members of the same sex.”] While I didn’t succeed in persuading a majority of my colleagues, the dissent continues to be cited and is part of the ongoing debate.
I was also pleased that no one was executed during my 25 years. When I went on the bench the first year, we had the death penalty in New York State. As a first year Court of Appeals Judge, I wrote finding the death penalty unconstitutional and, at the end of my tenure on the Court of Appeals, I also wrote finding a new death penalty statute unconstitutional in People v. LaValle.
LD: What would you say is the greatest challenge facing the judiciary going forward?
JK: I could have a very, very long list. There are so many problems, starting with the pay issue and the fact that there are 4 million cases a year in the state’s courts. I think that in this economy, the caseloads will rise and the resources will shrink. I think you essentially have to be a great optimist because the problems can bring you way down to the bottom of the universe. So we look a lot at the things that pull us down, but we look at the ways to change them and to make them better. And, right now, that’s what I’m doing too from my new vantage point from the 41st floor of 4 Times Square. I am trying to find ways that I can be a partner in this, and the firm can be a partner in making the system even better.
LD: Looking back, how do you feel about your years on the bench?
JK: I loved that magic island that I was on for 25 years. I was very privileged to be on it. I look back and I think those were very good years. I enjoyed everything except for the compensation issue. That’s a sore point. But if I could take that out of the equation, everything else I totally enjoyed, especially being with great colleagues. And now that I’ve located to a new place, I want to build again because I see that there is so much to be done.