A panel of judges who sit on three separate benches weighed in on the subject of judicial decision-making last week, each stressing that personal familiarity with an issue does not necessarily mean a judge cannot be objective.
Senior Eastern District Judge Frederic Block (See Profile), Justice John Leventhal of the Appellate Division, Second Department (See Profile), and Manhattan Supreme Court Justice Barbara R. Kapnick (See Profile) made up the panel, organized by the Jewish Lawyers Guild and hosted by Stroock & Stroock & Lavan.
The discussion, "How Judges Decide: The Impact of One’s Experiences," gave the audience of more than 120 attorneys the opportunity to hear the judges’ thoughts on matters ranging from judges’ "empathy" toward people who appear before them to when recusal is appropriate.
Moderated by Stroock partner Joel Cohen, the discussion also touched on judicial ethics and level of exposure to the public.
"I don’t think we have to leave everything at the door. I think we have to come in with our life experiences and who we are and what we think our sense of right and wrong [is]," Leventhal said.
On the issue of empathy, Block, the author of, "Disrobed: An Inside Look at the Life and Work of a Federal Judge," which was released last year ( NYLJ, July 25, 2012), said he tries to create a "humanizing" environment in his courtroom.
Cohen, who writes an ethics and criminal practice column for the Law Journal, raised the point that such a trait could complicate situations involving lawsuits where lawyers, for instance, are representing insurance carriers defending against a claim.
"I’m quite confident that the guys representing these [insurance] carriers don’t want a judge with empathy sitting on that case," Cohen said.
Block responded that he tries to keep the channels of communication with attorneys that are as open as possible. "I tell them, ‘You know and I know, your position is one which is a harsh position,’" he said. "But I try to be real, I just try to talk to people in a real way. We all understand this, and even the insurance carriers understand this…because I think it’s important to be open and honest with people."
Three sitting judges explored "How Judges Decide" during a panel discussion at Stroock & Stroock & Lavan on Feb. 6. On the panel were, left to right, Appellate Division, Second Department Justice John Leventhal, Supreme Court Justice Barbara Kapnick, Eastern District Judge Frederick Block, and moderator Joel Cohen, a partner at Stroock. Also in attendance were Alan Klinger, co-managing partner of Stroock and Glenn Jacobson, president of the Jewish Lawyers Guild, which sponsored the event.    NYLJ/Rick Kopstein
Leventhal stressed that he felt judges will always be "colored" by their life experiences, but that doesn’t necessarily mean that "you won’t follow the law."
"If I have an immigration issue, should I disqualify myself because my mother’s an immigrant? I don’t think so. Would I have some empathy? Probably," he said.
Kapnick, who sits on the Commercial Division, said she didn’t think parties want a "robot on the bench."
"I think you’d want somebody that has a little heart, that has a little empathy," she said. "That doesn’t mean that I’m going to say, ‘I really don’t like this law, I’m going to be empathetic, I’m going to change it, I’m not going to follow the law.’ But what I learned early on and in law school, is that things aren’t so black and white and so clear. Many, many cases could go one way or the other."
Cohen also asked the panelists if they felt it "dangerous" for judges to open themselves up to the level of exposure that U.S. Supreme Court Justice Sonia Sotomayor did by granting an interview to CBS’ "60 Minutes" following the publication of her new autobiography, "My Beloved World."
"It seems to be a new day in the judiciary where judges are writing books," Cohen said.
He showed a video clip of the interview in which Sotomayor spoke about her own experience benefiting from affirmative action and how it played a role in her getting admitted to Princeton. Cohen asked whether the panelists thought Sotomayor could be objective about Fisher v. University of Texas at Austin, a case before the U.S. Supreme Court that raises the question of whether a public university can consider race in its admissions decisions.
Kapnick responded that she felt there were differences between "what the federal judiciary does and is allowed to do and what the state judiciary does and is allowed to do," but that were she in Sotomayor’s shoes, "I don’t know if I would want to give that interview…while I was sitting on the bench."
Block said he didn’t envy the situation Sotomayor could find herself in. "If she votes in a way that supports affirmative action, she’s subject to all sorts of criticism," he said. "She’s in a bad spot because of that. I don’t know how you extricate yourself from it."
Cohen posed other scenarios, such as whether a judge who supports the legalization of medical marijuana should disqualify himself from a case where the issue is involved. He referenced the example of former Brooklyn Supreme Court Justice Gustin Reichbach, who wrote an op-ed for The New York Times in May 2012 titled "A Judge’s Plea for Pot," in which he spoke about the benefits of taking medical marijuana as a pancreatic cancer patient. He urged the Legislature to pass a medical marijuana bill.
Reichbach died of pancreatic cancer in July 2012.
"I don’t think there has to be a blanket rule for those things," Kapnick said. "When it comes to the issues I think it’s a harder thing and I think most people should be allowed to make this determination. Knowing [Reichbach] and the situation, he would have been fine."
Leventhal said he felt recusal would have been appropriate had such a case come before Reichbach. "On the other hand, if he’s hearing the case and he wasn’t taking medical marijuana…then I think he can sit on the case," Leventhal said.
@|Suevon Lee is senior editor of Commercial Litigation Insider, a Law Journal affiliate. She can be reached at firstname.lastname@example.org.