Judge Preska (NYLJ/Rick Kopstein)
Editor’s Note: The following interview is the first in an occasional series designed to familiarize our readers with New York’s federal judges, exploring their judicial philosophy, style and background. Over time, this feature will include district judges, magistrate judges and circuit judges.
Q: How does a district judge become chief judge?
A: As some of my colleagues periodically remind me, one does not become chief judge by divine right, election or merit. Rather, the chief judge is the most senior active judge in the district who has not yet turned 65. [See 28 U.S.C. §136(a)(1)(A)]. One may decline to serve as chief, as Judge Amalya Kearse did in the Second Circuit some years ago, and may serve any period up to the maximum term of seven years. [See id. §136(a)(3)(A),(d)]. My term as chief began on June 1, 2009 when former Chief Judge Kimba M. Wood stepped down.
Q: How do you learn to do the chief judge job?
A: There is no one way to do the job of chief, but one does learn by observing one’s predecessors. Judge Charles L. Brieant, Jr., who was chief when I came on, was the consummate politician in the best sense of the word. Because of that great skill, he succeeded in getting two badly-needed courthouses for our district: the Moynihan Courthouse in Foley Square and the courthouse that now bears Judge Brieant’s name in White Plains. Judge Brieant also reorganized and expanded the Pro Se Office to deal with the growing pro se case volume, appointed a committee under the Civil Justice Reform Act of 1990 to develop a plan for case flow management, ADR and addressing delays in reporting motions and bench trials. He also oversaw the addition of a district judgeship and several magistrate judge positions.
Judge Thomas P. Griesa ran the court with an informality that encouraged full discussion of all issues. He continued oversight of the construction of the Moynihan and Brieant courthouses and worked with Chief Judges John Walker and Dennis Jacobs in planning the infrastructure upgrade of the Thurgood Marshall Courthouse. Judge Greisa also appointed a joint SDNY-EDNY committee that undertook a major review of and re-numbering of the local rules to comply with national rules. That committee, chaired by Guy Struve, a partner with Davis Polk & Wardwell, then reviewed judges’ individual practices and suggested templates that are still in use today.
Judge Michael B. Mukasey minimized the number of meetings judges were subjected to and improved the efficiency of the court’s processes. With almost superhuman strength and resolve, he maintained court operations in the aftermath of the 9/11 attacks, provided counseling services for judges and staff, led the efforts to develop a Continuity of Operations Plan (that has become a model for federal courts nationwide), provided emergency preparedness training (in cooperation with the Marshals Service), began screening courthouse mail, and upgraded courthouse mechanical and security systems. Judge Mukasey also oversaw the preliminary design proposal for the security screening pavilion only now under construction.
Judge Kimba M. Wood presided with great grace and undertook an effective outreach to the bar. She acted with consideration for all in taking various steps to reduce the number of old motions. She also managed the hiring of a new clerk of court, district executive, chief probation officer and chief pretrial services officer and increased the role and importance of the SDNY judges’ committee system. She led the effort to design the renovation of the 90,000 square feet at the Moynihan Courthouse into temporary chambers for judges ousted from the Marshall Courthouse during renovations and to install security systems in courtrooms used for terrorism trials.
To the extent that being chief judge is a learned job, the Federal Judicial Center runs an orientation for new chief district judges. In recent years, I have been privileged to teach parts of the program and to lead the break-out group of large court chiefs.
Mostly though, the role of chief judge can be distilled into one phrase: persuasive begging—persuading colleagues to work on a court project or committee, persuading the Administrative Office of the U.S. Courts or Congress to provide adequate funding, persuading court staff to be even more customer-friendly than they already are, and persuading GSA to provide basic maintenance in our courthouses.
Unlike in the state court, the chief judge has no power to assign cases. Indeed, virtually the only power the chief has is to appoint judges to committees, which play a key role in SDNY governance.
Q: How does the court operate?
A: The court is run by the Board of Judges, essentially a committee of the whole, and all of the business comes to the board through the committees of the court.
Those committees are important and cover all aspects of the business of the court: assignments, bankruptcy liaison, bar liaison, clerk’s office, collegiality, criminal law and probation, defender services, district executive’s office, equal opportunity, grievances, house and space, judicial improvements, libraries, magistrate judges, media access, mediation services, pro se litigation, rules of practice and procedure, security, and technology.
There are also ad hoc committees appointed from time to time, for example, the ad hoc construction committee for the Marshall Courthouse on which Judge Paul Crotty and former Judge Barbara Jones served, the ad hoc committee on electronic devices chaired by Judge Crotty, and the new judges’ orientation committee, chaired by Judges Denise Cote, Paul Gardephe and Kimba Wood. This year, Judges Deborah Batts and P. Kevin Castel are co-chairing a committee on the court’s 225th anniversary, which we will celebrate for a year beginning with a special session of the court on Nov. 4, 2014.
Within the court, I work closely with the committees to develop recommendations to put before the Board of Judges. For example, the rules committee, chaired by Judge Naomi Reice Buchwald, worked very hard to amend our Related Case Rule, Rule 13 of the Rules for the Division of Business, to maximize the randomness of assignment of cases, to regularize the process and to make it more transparent and more predictable in its operation.
I also work with District Executive Edward Friedland, Clerk of Court Ruby J. Krajick, Chief Probation Officer Michael J. Fitzpatrick, Chief Pretrial Services Officer Art Penny, Chief Bankruptcy Judge Cecelia Morris, and Clerk of the Bankruptcy Court Vito Genna to plan our budget. It was only through their conscientious stewardship that the court did not suffer more layoffs and greater diminution in service during the recent budget unpleasantness.
Q: Describe your role internally and externally.
A: Inside the court, the work is sometimes unexpected. For example, the Foley Square courthouses were largely closed during the aftermath of Hurricane Sandy. Electricity was out, and our generators provided minimal power, our Internet service was down for a day or so, and the Bankruptcy Court at Bowling Green was flooded. Primarily because of the organizational and communication skills of Ed Friedland, two of our courtrooms were wired virtually overnight to run off our generator, and a bail hearing and a hearing in a Hague Convention on Civil Aspects of International Child Abduction case were held.
Because of the graciousness of Eastern District Chief Judge Carol Amon and her colleagues, our Bowling Green bankruptcy judges were housed and holding court promptly in the Eastern District. And with the assistance of then-Marshal Joseph Guccione, a truck was escorted across the George Washington Bridge carrying fuel for pumping the water out of the Verizon switch on the lower west side, a necessary step to restoring Internet service.
Our judges and staff were fully informed as we progressed, and thanks to the continuity of operations plan updated to become a national standard after 9/11 by Judge Cote, orders were issued automatically extending various deadlines such as the time to file a notice of appeal. I also recall carrying mountains of food and drink downtown for those working to get the court up and running.
More recently, I was called to the first floor to witness the unhappy scene following a sprinkler head’s spraying water on checked cellphones and laptops. Life in the Southern District is never dull!
Outside the court, former District Executive Clifford Kirsch, Ed Friedland and I have spent innumerable hours pressing the AO, GSA, our Congressional appropriators, OMB and others to build a security screening pavilion for the Moynihan Courthouse. The need was apparent, at least since 9/11, and happily has been recognized. Last May, funding for the pavilion was announced at an event attended by Congressmen Peter King, Gerald Nadler, and Jose Serrano, all of whom, together with the other members of our Congressional delegation, were supportive of our efforts. Work on the pavilion has begun and is scheduled to be completed in August of 2015.
Q: What has been your most difficult challenge as chief?
A: The most difficult challenge I have faced during my tenure has been the budget crisis. Two years of flat funding, which, with ever-increasing “must pay” items like benefits and rent, constitutes a cut in available funding, was followed by across-the-board cuts imposed by sequestration. The cumulative effect on the court was devastating. Vacant positions were not filled, and some employees were offered buyouts to decrease payroll. At the worst moment, for example, our probation office was short 29 officers, and funding for drug, mental health and sex offender treatment was slashed 43 percent. The clerk’s office was down approximately 50 positions from 2008 staffing levels, while caseloads and the number of judges had increased. Even with all these steps, for the first time ever, the court was forced to lay off staff. Federal Defenders also laid off staff and was contemplating closing its office in White Plains.
On Aug. 13, 2013, Chief Judge Gerald Rosen of Detroit and I drafted and sent a letter on behalf of chief district judges to the Congressional leadership explaining the problem, and we encouraged chief judges who signed on to attach addenda detailing the situation in their respective courts. Eighty-six district chiefs signed, and the letter received a fair amount of publicity. Many bar associations joined in the fight for adequate funding. For example, all of our court unit executives and I testified at the hearing held by the New York County Lawyers Association on the crisis, and Federal Bar Association member W. Allen West testified before Congress with Judge John Bates, director of the AO, Judge Julia Gibbons, chair of the Judicial Conference Budget Committee, and Michael Nachmanoff, Eastern District of California Public Defender.
In November, Judge Kimba Wood devoted her remarks upon receiving the Federal Bar Council’s Emory Buckner Award to the budget crisis. No doubt all of these efforts contributed to the modest improvement the Judiciary enjoyed in its funding for FY 2014. But we must remain vigilant, and additional work remains to be done.
On other issues, I worked with other district chiefs, including Judge Amon, to assure the continuation of “24/7″ security personnel at our courthouses. Also, with the assistance of Judges Ronnie Abrams, the late Harold Baer, John Koeltl, Alison Nathan, Richard Sullivan and Laura Taylor Swain, I worked with other district chiefs in the northeast corridor to keep the federal prison at Danbury open for female inmates, instead of transferring those inmates to distant and difficult-to-reach locations.
And, under the leadership of former Second Circuit Chief Judge Dennis Jacobs and with the assistance of Judge Crotty, former Judge Barbara S. Jones, Ed Friedland and Jason Smith, the district court architect, our beautiful Thurgood Marshall Courthouse is now completely renovated and home to 13 district judges and two magistrate judges.
Q: What is the most satisfying part of the job?
A: Aside from the weddings, the happiest work we do is swearing in the new members of our bar and the new citizens. The new lawyers are often sponsored by a parent, and the new citizens, often attired in stars and stripes, are accompanies by hundred-year-old grandmothers and cooing newborns. In the 1990s, the Immigration and Naturalization Service proposed having all naturalizations done as part of an administrative process, but the SDNY opted to continue its practice of having judges swear in the new citizens rather than turning it over to the INS. There are few aspects of our job so satisfying as shaking a new citizen’s hand.
Another very satisfying part of being chief is working with our outstanding professional team: Ed Friedland, Ruby Krajick, Mike Fitzpatrick, Art Penny, Marshal Eric Timberman, our judges and all of the folks who make the court run.
My intention upon becoming chief was to make the court as much of a customer service organization as possible. Customer service includes, for example, the attitude and demeanor of the security officers at the doors, the clerks at the pro se window and in the arraignment section. (Pro Se Intake Clerk Vicky Noreiga and Arraignment Section Supervisor Danny Ortiz receive frequent letters of well-deserved praise.) Customer service also includes our hard-working magistrate judges, and three superb ones have been chosen by our court recently: Judges James Cott, Sarah Netburn, and Judith McCarthy.
Our mediation department, under the leadership of Rebecca Price, has dramatically increased the number of mediations conducted under the auspices of the court, leading to faster resolution of cases with the expenditure of fewer judicial resources. Our customers also include unrepresented individuals, and under now-Magistrate Judge Netburn and Margaret Malloy, counsel to the chief judge for pro se matters, new handbooks have been prepared for our litigants opportunities for mediation increased.
Although some people say that being a judge is isolating, I have also enjoyed the interaction with people—with the jurors, the litigants, and the lawyers—that the job affords. When we choose juries, we learn a great deal about each individual during voir dire. That, combined with our being together in such a concentrated manner during a trial and our post-trial good-byes, make us all feel very close.
After one particularly lengthy trial where the guilty verdicts as to each of the two defendants were difficult for the jurors to reach, the foreperson said “when we started, many of us did not want to be here. But as we went on, and particularly during the last nine days [of deliberations], we all said to each other how lucky we were to live in a country like this where people like us make these decisions.” He began to cry; I began to cry; and eventually we were all there in tears.
Working with litigants, particularly during settlement discussions, is intensely personal. As the late Judge Milton Pollack told me years ago, “to settle a case, you have to understand what the parties want and what the parties need.”
I know I have to allow the parties to vent, either about the terrible thing that happened to plaintiff or the defendant’s outrage at being sued. It is only after they have vented that they will listen to my concerns about their cases. I remember particularly a day-long settlement conference with an individual who had opted out of the class action settlement. In his view, he had done everything right; he had read the financials, and made his own inquiry but was powerless to avoid the disaster.
At one point, he began talking about his father, a combat pilot in who had been lost in Vietnam, and he began to tear up. The only appropriate thing to do was to give him a hug. These types of intense personal moments are common in settlements, and it is very gratifying to be able to help the parties lift the weight of litigation from their shoulders.
Finally, there are the lawyers. Although there is always great whining about the supposedly eroding quality of the bar, I see it the other way: most of the lawyers we see every day, particularly those from some of our big institutional customers, are willing partners in helping us move cases to resolution quickly and efficiently. I for one have a great deal of affection for many of the lawyers I see frequently. Without these strong advocates, the adversary system wouldn’t work.
Q: The Southern District routinely handles high-profile trials. How does this affect the operation of the court?
A: Of course, the core function of a trial court is trials, and our court staff works tirelessly with our judges to make even the most challenging trials run smoothly. Just like Judges Kevin Thomas Duffy, who tried the 1993 World Trade Center bombers, and Michael B. Mukasey, who tried the Blind Sheik Omar Abdel-Rahman before them, Judges Lewis Kaplan in United States v. Abu Ghayth and Unites States v. Ghailani, and Katherine Forrest in United States v. Mustafa Kamel Mustafa, have assured that trials of terrorism defendants go smoothly, Then-District Judge Denny Chin sentenced Bernard Madoff, Judge Laura Taylor Swain presided over a six-month trial of his employees, and Judges Forrest, Gardephe, Jed Rakoff and Richard Sullivan presided over trials of folks accused of high profile financial crimes without incident.
We have such expertise in these high profile matters that we even export our judges for thorny trials. Judge John F. Keenan travelled to the Eastern District of New York this year to preside over a trial in which the defendant was convicted of conspiring to kill a judge and a prosecutor in the EDNY. That defendant was sentenced to two consecutive life terms. In all of these high-profile matters, we are advantaged by the cooperative working relationship between our marshals and the NYPD commissioners, both Raymond Kelly and William Bratton.
And speaking of judges, thanks to Senators Charles Schumer and Kirsten Gillibrand, our court is at full strength, despite a record number of judges’ taking senior status in the last few years. It has been a thrill to swear in 16 new district judges, to get to know them and their families and to integrate them into the life of our court. They have brought enormous energy and broad expertise to our court. Combined with the huge number of cases presided over by our generous senior judges, the court is the busiest it has ever been. For example, last October, there were 36 trials in our court. Despite the need during the budget crisis to eliminate relief courtroom deputies, Courtroom Services Supervisor Rigoberto Landers assured adequate staffing for all of those trials.
Q: How has your style of judging changed over the years?
A: In one respect, I hope not much. I hope I approach the job with humility and with a well-developed (but, I confess, not always unerring) sense of what branch of government I serve in. I try to be cognizant that I serve in the third branch and not in the policy-making political branches.
When I first went on the bench, I had the urge to rush back to chambers to work on all of my opinions. In time, however, I came to believe that our real job as trial judges is to be on the bench serving as the face of justice—to the litigants, the bar, and the greater public. We are there in front of all to let them see for themselves how cases get resolved and, particularly in criminal cases, what the government is up to. It is that role that is so necessary to the rule of law in any developed society.
Q: What do you do in your spare time?
A: On the weekends I like to haunt the farmers market and cook for family and friends. Yoga helps me avoid turning into the tin man, and I enjoy tennis in the summer and skiing in the winter.
Photographs by Rick Kopstein
• B.A., College of Saint Rose in Albany in 1970; J.D., Fordham University School of Law in 1973; LL.M. in trade regulation from New York University Law School in 1978.
• Associate at Cahill Gordon & Reindel; partner at Hertzog, Calamari & Gleason.
• Appointed to Southern District of New York in September 1992. Assumed role of chief judge in June 2009.
• Nominated by President George W. Bush to the U.S. Court of Appeals for the Second Circuit in 2008.
• Awards include: Louis J. Lefkowitz Public Service Alumni Award from Fordham in 1992; Edward J. Weinfeld Award from the New York County Lawyers’ Association Federal Courts Committee in 2001; Stanley H. Fuld Award for outstanding contributions to the development of commercial law and jurisprudence in New York State from the Commercial and Federal Litigation Section of the New York State Bar Association in 2009; President’s Special Award from the New York Women’s Bar Association in 2011.
• Member: Federal Bar Council, Federal Bar Association, New York County Lawyers’ Association, New York State Bar Association. She serves on the New York Federal-State Judicial Council and is a past member of the Committee on Federal-State Jurisdiction of the Judicial Conference and the Board of Directors of the Federal Judicial Center.