Judith Kaye in 2013 in her office at Skadden, Arps, Slate, Meagher & Flom, where she was of counsel. (NYLJ/Rick Kopstein)
Judith Kaye, the first woman to become a judge on New York’s Court of Appeals and the longest-tenured chief judge in state history, died at her home in Manhattan early Thursday. She was 77. The cause was cancer.
Her successor as chief judge, Jonathan Lippman, said that true to her nature, Kaye did not let her illness deter her from her duties at Skadden, Arps, Slate, Meagher & Flom, where she was of counsel, or from the public service obligations she took on after stepping down as chief judge at the end of 2008 due to mandatory retirement rules.
“She was fighting this health problem for a number of years but, as is typical of Judith Kaye, she was in the office every day, going about her business,” said Lippman, who himself retired on Dec. 31. “She didn’t know how to do anything other than to do it full-blast and she did that until the end.”
Gov. Andrew Cuomo, whose father Mario made Kaye the first woman to hold a seat on the Court of Appeals in 1983 and then the first female chief judge a decade later, ordered that flags be flown at half staff Friday on state buildings in Kaye’s honor. New York City Mayor Bill de Blasio said the same would be done on city buildings.
“She stood for justice and equality for all people, and embodied the spirit of integrity in public service like none other,” Cuomo said in a statement Thursday. “Chief Judge Kaye’s passing is a true loss to our state, and I have no doubt that her legacy will continue to be felt for years to come.”
De Blasio called her a “truly steadfast champion for justice.”
Eric J. Friedman, executive partner at Skadden, said in a statement: “Judge Kaye’s life was one of service to the state of New York, the legal system, the legal profession and the children of New York; her contributions cannot be overstated.”
Those praising Kaye pointed to numerous examples Thursday of her legacy as chief judge, ranging from the reforms enacted to make jury duty less onerous for New Yorkers to the landmark Court of Appeals rulings that blocked utilization of the death penalty to her forceful dissent in a case where the majority refused to recognize same-sex marriage as legal.
Lippman, who worked as chief administrative judge under Kaye from 1996 to 2007, said Kaye transformed the role of the chief judge from that of top jurist on the seven-member Court of Appeals to an advocate for change and innovation in the courts, the law and the bar.
“She really in many ways wrote the script for the modern-day head of the judiciary, for the chief judge, where the courts have to be responsible for the problems of society that find their way to our doorstep,” Lippman said. “She was such a vivid personae of what a chief judge, a judicial leader, should be.”
Judith Ann Smith was born on Aug. 4, 1938, in Monticello, Sullivan County, to Polish-Jewish immigrants who founded and ran a women’s clothing store.
She planned as a student at Barnard College in the 1950s to go into journalism, and worked for a time as the society reporter at the Hudson Dispatch in Union City, New Jersey. She said later that she believed law school would enhance her goal of becoming a foreign correspondent but, while at New York University School of Law, became interested in a career as an attorney.
She graduated from NYU in 1962 and joined Sullivan & Cromwell as an associate, where she met her husband, Stephen Rackow Kaye. They were married in 1964.
Stephen Kaye became a partner at Proskauer Rose. He died in 2006.
After a break to give birth and care for the couple’s three children, Kaye joined Olwine, Connelly, Chase, O’Donnell & Weyher in 1969, first as a part-time associate. A specialist in commercial law whose clients included Ralston Purina Co. and the Singer Company, Kaye became the firm’s first female partner in 1975.
Though she was to become an institution in New York courts, her initial nomination by Mario Cuomo was not without controversy. The Women’s Bar Association deemed her “not qualified” for an associate judgeship on the Court of Appeals when she was on a list of candidates sent in 1983 by the Commission on Judicial Conduct.
The Women’s Bar Association preferred Justice Betty Ellerin, whose name was also on the list of candidates, to become the state’s first woman on the court.
The governor, however, nominated Kaye. Among the campaign promises Cuomo made in 1982 was to appoint a female to the state’s highest court if elected governor.
Kaye later said the snub may have focused attention on her nomination because it ran counter to the positive evaluations she received from other bar groups. At any rate, she said later, she learned to put it behind her.
“They were wrong,” she said in 2008 of the Women’s Bar Association’s assessment of her 15 years earlier.
Ellerin, senior counsel at Alston & Bird, said Thursday that Kaye “exuded stature and integrity” and left a “wonderful legacy” as chief judge. “She enhanced, not only that position, but the judiciary.”
Cuomo nominated Kaye to become chief judge in 1993 after the nearly eight-year tenure of Sol Wachtler ended due to his arrest for harassing a former girlfriend and subsequent resignation.
Soon after becoming chief judge, Kaye’s name was reportedly among those being reviewed by the Clinton White House for nomination to an opening on the U.S. Supreme Court created by the retirement of Byron White. Kaye pulled her name from consideration, saying she could not leave New York in good conscience after the instability in the courts during that period.
Kaye was reappointed in 2007 by Gov. Eliot Spitzer to an abbreviated term ending on Dec. 31, 2008.
Kaye’s 15-year, 10-month tenure as chief judge was by far the longest in New York state history, easily besting the 10 years Frank Hiscock spent as chief judge from 1917-26.
In all, she was on the Court of Appeals for 25 years and four months, the third-longest tenure in that court’s history behind Stanley Fuld, who held a seat for 27 years, and Charles Desmond, 26 years.
Read the Law Journal’s 2008 special report on Kaye’s tenure as chief judge, featuring a list of notable cases and developments, words of praise from her colleagues, and a photo essay.
Wachtler, who served on the Court of Appeals with Kaye for 10 years, said she was a “wonderful colleague” who tried to build consensus with other judges.
But he said she could also dig in her heels when she believed she was making a principled stand, even if her colleagues were not in agreement.
“She was a very good listener and a very fair person,” Wachtler said in an interview Thursday. “But when she ‘came to rest,’ as we used to called it—meaning when she had made up her mind—she became a very strong advocate for her viewpoint.”
One of Kaye’s pronouncements most often mentioned by those discussing her legacy came in Hernandez v. Robles, 7 NY3d 338 (2006), when she dissented from a 4-2 majority finding that same-sex couples had no right to marry under New York’s Constitution.
“This state has a proud tradition of affording equal rights to all New Yorkers,” Kaye wrote. “Sadly, the court today retreats from that proud tradition.”
Susan Sommer, Lambda Legal’s director of constitutional litigation, said the sensitivity that Kaye showed in the Hernandez rulings and in other cases toward the rights of same-sex couples and their children marked her as a “champion of human rights” and presaged wide acceptance of her viewpoint.
Administratively, Kaye’s years as leader of the New York Judiciary saw expansion of drug and other “problem-solving” courts; better court facilities; an expansion of the Supreme Court’s Commercial Division; reforms to jury service and expansion of tapping one judge to handle cases involving Family Court and Criminal Court issues.
Colleagues said her biggest disappointment as chief judge was her inability to convince governors and legislative leaders between 1999 and her departure in 2008 to approve raises for state judges. A commission to set new salary levels for judges was created in 2010 and the pay increases finally went into affect in April 2012.
Her imprint has remained on the courts after her departure, too.
Soon after her retirement, Gov. David Paterson appointed her to the state Commission on Judicial Nomination, the panel that nominates lists of candidates to governors when openings occur on the Court of Appeals.
As chairwoman, she pushed through rule changes designed to make the application process easier. She increased outreach to bar groups, law schools and other organizations to broaden the applicant pool for court openings, especially among minorities and women.
Since 2009, the commission has nominated lists of applicants six times to Cuomo for the Court of Appeals, including openings for Lippman’s replacement as chief judge (NYLJ, Dec. 2) and for the seat vacated last year by Susan Phillips Read (NYLJ, Dec. 23).
Of the five Cuomo nominations from the Kaye commission lists, four have been women (Judges Jenny Rivera, Sheila Abdus-Salaam and Leslie Stein and chief judge-nominee Janet DiFiore) and two (Rivera and Abdus-Salaam) are minorities.
Cuomo has yet to nominate Read’s replacement, and the Senate has not yet taken up the DiFiore nomination.
Syracuse attorney John Cirando, a member of the nominating commission, said Thursday that Kaye considered her time on the commission as a continuing fulfillment of her obligation to the Court of Appeals. “After her family, that was her life.”
He said Kaye insisted that every member of the commission be allowed to express their views fully on every candidate as the panel deliberated over the names to send the governor.
“That was the beauty of it,” he said. “Nobody left the room upset.”
In 2010, Kaye was appointed by Andrew Cuomo, who was then state attorney general, to investigate whether Paterson, as governor, had improperly received World Series tickets and committed other ethics violations.
Kaye’s inquiry found that Paterson had given misleading information to investigators, but the Albany County District Attorney’s office said there was not sufficient evidence to pursue perjury charges against him.
At Skadden, she worked on many cases, including Avella v. City of New York, in which Kaye represented the Queens Development Group LLC in its attempt to construct a $3 billion, mall-anchored redevelopment on the former site of Shea Stadium in Queens without state legislative approval. The Court of Appeals has indicated that it would decide the matter (NYLJ, Nov. 30, 2015).
She also conducted an independent review of the athletics program at the State University of New York at Binghamton after allegations of NCAA rules violations within the school’s basketball program were made in 2009 (NYLJ, Feb. 16, 2010).
Accolades and remembrances Thursday often included references to Kaye’s dignified manner and style.
“When you first met her, you were struck by her elegance and how vivacious she was,” Wachtler said. “She never lost any of those things. I saw her just last month and she was still vital, still engaging and, yes, still vivacious.”
When she was retiring as chief judge in 2008, the former state Senate majority leader, Joseph Bruno, recalled how Kaye would sometimes arrive for what promised to be tough negotiating sessions over court policy or budget matters bearing flowers. He called it her “velvet glove” style.
Kaye created a minor stir in the sedate Court of Appeals chambers in 1998 when an Annie Leibowitz photograph of her appeared in Vanity Fair magazine in a story titled “America’s Most Influential Women.”
As related later by former Court of Appeals Judge Richard Wesley for an NYU School of Law publication, the photograph pictured Kaye’s trademark red shoes, but also a bit more of her “shapely” legs than she intended. While Wesley described Kaye as being “mortified” by the picture, her daughter, Luisa, thought it was “perfect, Mom. It reflects power and femininity.”
“That picture is vintage Kaye: confident, unafraid of her femininity, and joyful in her role as leader of the courts of New York,” wrote Wesley, now a judge on the U.S. Court of Appeals for the Second Circuit.
Kaye is survived by her daughter, Luisa Kaye, a partner at Wrobel Markham Schatz Kaye & Fox; sons Jonathan and Gordon; and seven grandchildren.
Read an essay Luisa wrote when Kaye was selected for a Law Journal Lifetime Achievement Award.
Funeral arrangements are pending and will be announced soon.