The following is an adaptation of remarks given by Alphonso B. David, Chief Counsel to the Governor of the State of New York, on behalf of Gov. Andrew M. Cuomo, at the investiture ceremony of Hon. Paul G. Feinman—the first openly gay judge to sit on New York’s highest court. The ceremony took place on Oct. 18, 2017, at Court of Appeals Hall in Albany, N.Y.
Today is a very special day. It is an historic day. Since its inception in 1847, the New York Court of Appeals has been a cornerstone of American jurisprudence. The Court has a proud record of leadership and courage, and a history of groundbreaking decisions that have changed the face of New York, and the face of this country.
We are gathered in the home of the Court of Appeals, a classic Greek Revival temple that is one of the most beautiful shrines to justice in the nation. We have come here to join Paul Feinman as he is sworn in as Judge of the Court of Appeals, one of the most prestigious positions any lawyer could aspire to.
Although we have assembled to celebrate a happy occasion, we gather during a period of tumult and unrest—politically, socially, and culturally. Today, we are often faced with paths to divisiveness and disruption, not collaboration and solutions. Large, impersonal forces, such as globalization and technological innovation, are changing our social and economic order in ways we do not yet fully comprehend, while older institutions are losing their power. Attacks on “the other” and long suppressed fears have arisen to the surface.
Nevertheless, we must remain confident that the future holds great opportunity, and that our best days lie ahead—but only if we can weather this disruption, and build a path forward, together.
Our judiciary was built to help us navigate tumultuous times. When our ship is battered by storms of controversy, when waves of fear and anger and anxiety send us off course, when tides of emotion drive us from the path of reason, the Constitutions of New York and of the United States are the compasses that steer us forward—fairly and justly. By serving as the guardian of justice, our judiciary protects the very idea that lies at the heart of the entire American enterprise.
For freedom without justice is license. Equality without justice is domination. Authority without justice is despotism. Democracy without justice is mob rule. And a world without justice is a world without peace. “If you want peace,” Pope Paul the Sixth taught us, “work for justice.” If we hope to emerge from the tumult in our times, we must adhere to our principles of justice.
In the Federalist Papers No. 78, Alexander Hamilton wrote that the Judicial branch of the proposed government would be the weakest of the three branches because it had “no influence over either the sword or the purse … . It may truly be said to have neither FORCE nor WILL, but merely judgment.”
Perhaps Mr. Hamilton was simply trying to reassure some skeptics who wondered if it would be a good idea to place great power in the hands of judges who would not be elected. But there has been nothing “mere” about the judgment of the people who have sat on New York’s Court of Appeals. There is nothing mere about Benjamin Cardozo or Frederick Crane, about Stanley Fuld or Charles Breitel, about Jonathan Lippman or Judith Kaye or Sheila Abdus-Salaam. And there is nothing mere about the decisions they issued that defined generations to come.
The members of this Court, as led by Chief Judge Janet DiFiore, have been, and are now, our best legal minds—learned, thoughtful, people of impeccable character, and absolutely devoted to the ideal of justice. That devotion is the most important characteristic, because of all the ideals upon which our state and nation are based, first and foremost is justice.
Today, Paul Feinman brings his devotion to justice and his legal aptitude to this bench.
Judge Feinman’s story is a great New York story. A life-long New Yorker, born in Hempstead and raised in Merrick, Paul is the third of five children. His mother was a bookkeeper and his father owned a company in the garment district. He is a graduate of John F. Kennedy High School in Bellmore, Columbia University, and the University of Minnesota Law School. Paul currently makes his home in Greenwich Village with his spouse, Robert Ostergaard.
His life has been devoted to justice. As a legal intern, he helped underserved communities obtain social services. His first job after law school was with the Legal Aid Society, during the devastating crack epidemic. Later he worked as an appellate lawyer.
Most of his professional career has been devoted to adjudication. He spent seven years as a law clerk to Justice Angela Mazzarelli. In 1996, he was elected to the Civil Court. In 2007, he was elected to the State Supreme Court. In 2012, Gov. Andrew Cuomo named him to the Appellate Division, First Department, where he sat alongside Justice Mazzarelli. And now Governor Cuomo has elevated him to the Court of Appeals.
Judge Feinman has been the face of the legal system in matters simple and complex. He has presided over all sorts of cases, from ordinary arraignments to matrimonial cases to complicated cases involving multiple parties, including overseeing the scores of cases arising out of the 41st Street Steam Pipe Explosion, and the 91st Street Crane Collapse in 2008, in which two men died.
The fortunes of such prominent businesses as Barclays and Dow Jones have waited for his rulings. And if any of you have ever wondered who wrote the opinion in the historic First Amendment case of People v. Spiegel, 181 Misc.2d 48 (Crim. Ct. 1999), in which the court held that releasing a box of crickets during a public meeting cannot be considered free expression—Judge Feinman is the culprit.
During the course of any given day, a judge may be called upon to be a scholar, an umpire, a ringmaster, and the voice of justice. Judge Feinman has played all of those roles with aplomb. He is respected as impartial, diligent, scholarly, and pragmatic. He has said that he takes great pride in crafting well-reasoned decisions that explain the law to the litigants and the public. We should all admire that quality. We do so much to accentuate the majesty of the law, but it’s important for judges to remember that the law affects and interfaces with real people.
In considering this appointment, Governor Cuomo knew that Judge Feinman had been an important advocate for the lesbian, gay, bisexual, and transgender community, and would become the first openly gay member of the state’s high court. With this selection, we would have an opportunity to deliver a message that can never be stressed too much: Ours is an open society. Everyone is equal before the law, including those who dispense it.
And there is a second message that is important for everyone to realize: In a democracy, things can change for the better.
As U.S. Supreme Court Justice Oliver Wendell Holmes said, “The life of the law has not been logic; it has been experience.” Anyone seeking evidence of that statement need look no further than the life of this Court.
The New York Court of Appeals was established in 1847, and judges took the bench. But none of those judges were black, or any other race or ethnicity other than white. Nor were any of them female. Or openly gay. In fact, it was not until the following year, in 1848, after George Vashon passed the bar exam, could a black man even practice law in New York. And it was not until almost 40 years later in 1886, when Kate Stoneman became the first woman to pass the bar exam, that a woman could even practice law in this state. And it was not until 1980 that the laws against homosexuality were overturned as unconstitutional in this state (see People v. Onofre, 51 NY.2d 476 (1980)). Prior to that court ruling, the act of intrinsic self-expression based on sexual orientation was illegal. It took the rest of the country and the federal government more than two decades to catch up.
It has been experience that has enabled these changes. Experience that has sharpened our minds and led us to see things in a new way: reflective of true fairness and equality. On the Court today, we see the experience in each judge that shapes and protects the ideals of fairness, equality, and justice. Each piece is separate and distinct, an impressive portrait of judicial excellence and public service. And though distinct, each is complementary to the others in creating a whole that is greater than the sum of its parts, a portrait that is richer and more powerful.
The members of the Court of Appeals reflect the New York experience. They are from various regions in the state, and bring experience as advocates, politicians, practitioners, prosecutors, civil rights and worker rights advocates, professors, and administrators. And they have lived New York: the opportunities and the obstacles, the promise and the peril.
And now to this bench comes Judge Paul Feinman, with his intellect and his courage, his experiences and his insight, to place his hand on the tiller and help us reach the state of justice, which must always be our goal.
Welcome, Judge Feinman, and congratulations.