Setting a Precedent: A Q&A with Judith Kaye

In 1983, Gov. Mario Cuomo appointed Judith Kaye to the New York State Court of Appeals, making her the first woman to serve on the state’s highest court. A decade later she was elevated to chief judge, a role in which she implemented groundbreaking court reforms and weighed in on issues like same-sex marriage and the death penalty.

Two weeks after Mario Cuomo’s death at the age of 82, City & State Senior Correspondent Jon Lentz spoke with Kaye about her historic appointment, Mario Cuomo’s legal background and how both Cuomo and Kaye had a shot at the U.S. Supreme Court—and how both shot it down.

The following is an edited transcript.

City & State: What is your favorite memory of former Gov. Mario Cuomo?
Judith Kaye: It’s when I got the call telling me that I was his choice to be the first woman judge of the high court of the State of New York, which was not everybody’s expectation. And it was a bold, gutsy choice, I must say. So, beyond that, I was on the court for 25 years, and I can’t pick a single memory because we had many wonderful meetings and lunches and times together. He was just a totally unique, remarkable, outstanding human being.

C&S: When he appointed you, you became the first woman to serve on the state’s highest court. What did that mean to you?
JK: Well, it was just a historic moment in time. The court was then about 140 years old, and there had never been a woman on the court. Mario pledged that he would try to put one on. One thing I will say about him is that it’s very significant that he served as a clerk at the Court of Appeals. He was law clerk to Judge Adrian Burke upon his graduation from law school, and he was there for two years. Fabian Palomino was his co-clerk. And when you spend two years at the Court of Appeals, you really get a sense of the place, especially if you love the law and the justice system, as he did. And he was a great scholar of the legal system, a great practical observer of the legal system. With those two years he watched how the Court of Appeals did its business. He could see what strengths were required for a judge of the Court of Appeals. He had a unique vision of the Court of Appeals, and he loved the Court of Appeals. So I think that helped me enormously, if you consider that I traveled an irregular route. By that I mean that I didn’t come up through trial court, intermediate appellate court. What was unique about me was not only my gender, it was also the fact that I came directly from 21 years of private practice in law firms in the City of New York. So it took guts for Mario to do what he did. What could come close to being named a judge of the Court of Appeals? Wow! I don’t know that others would have done what he did back then anyway, back in the year 1983. It was a very, very bold act.

C&S: Obviously, he was nearly a nominee to the U.S. Supreme Court himself.
JK: Yes, you’ve heard the back and forth about that and I have too. I think he would have been a great justice of the United States Supreme Court. He was so thoughtful about the law and our system, and how it works to serve society, and works to serve a progressive society and a progressing society. He would have been a terrific Unites States Supreme Court Justice. And did you hear that when he withdrew, he told them to call me? Did you hear that?

C&S: I did not know that.
JK: Yes. But I also withdrew my name from that.

C&S: Why?
JK: Why did I withdraw my name? Because I had just become chief judge of the State of New York. It would have been the year 1993, and I, first of all, loved the position to which I had just been appointed. Second of all, I thought it would be a chaotic and terrible thing for the Court. We had just endured the arrest of our chief judge and the chaos that followed, and I did not think that putting my interest ahead of the Court, of being the chief judge, was the right thing to do. But Mario has boasted about that. And in fact it was Bernie Nussbaum who was the general counsel to President Clinton. And he called me when I withdrew my name, and he said, “What is it with you people in New York?” He said, “It must be the water!” I remember that line. But anyway, Mario—oh goodness— he was such a distinctive thinker and leader. So I can’t think of a match that fills the model of Mario. And you can understand why in my life he held such a very special place.

C&S: We recently interviewed Sol Wachtler who was also on the Court of Appeals, and he talked about how diverse Mario Cuomo’s were, obviously picking you, Democrats and Republicans, and minorities. I’m wondering what impact—
JK: Did Sol give you the line that he used?

C&S: That a grand jury could indict a ham sandwich?
JK: No, no. This other great line. Mario made 11 appointments to the Court of Appeals during his term as governor, and I believe there were four non-Democrats. Sol’s great line when he appointed Sol, who was a Republican, was that, “We suspected that Mario would be making his appointments from the political clubhouse. We didn’t know it would be the Republican clubhouse.” And that is a Sol Wachtler line. I promise. I cannot take credit for it myself. 

C&S: What impact did Cuomo’s appointments have on the Court of Appeals and its rulings?
JK: You can start with the fact that he appointed the entire court. When I told you he made 11 appointments—the court has seven judges. So by the time the first couple of years were up, he had changed the entire court. It’s only seven, but a couple of those reached age 70 and he had to make more appointments. So for many years he had appointed the full court. I can tell you, I spent 10 years as an associate judge of the Court of Appeals. We were a fabulous court, really, and I think that Mario’s appointments were thoroughly outstanding. I became chief judge in 1993, and he lost the 1994 election, but those were 10 years when the whole court was appointed by him. I credit a lot to the human makeup of Mario Cuomo, meaning his love of the law, his love of America, his love of the justice system. But I also credit a lot to his familiarity to the Court of Appeals, what it could do, what it did do. And I think he brought those unique features to his selection of candidates to the court. I’ve thought of an irony that in the year 1994, the major issue was the death penalty, right? Do you remember that?

C&S: Yes.
JK: And Mario, probably that was a major factor in his losing the election as governor. But George Pataki came into office and immediately the death penalty was enacted, but you know, we held every single death penalty case unconstitutional. Did you know that?

C&S: I see.
JK: We never put anybody to death. And the interesting thing is how much over the years societal attitudes have changed to come more in line with Mario’s thinking. Not that we had philosophical views against the death penalty. Believe me, we didn’t. But we found every one of the cases—we had about a half dozen cases—every case was a 4-3 decision. Having gone back to look, I could tell you, the last case one of the Pataki appointees was part of the vote of four. So it was just really a good court, a court of integrity. And the Legislature could easily have changed the statute to fix the problem that the court identified, and reinstated the death penalty, but social attitudes had changed so much by 2007. It’s just a very interesting thing to see, isn’t it?

C&S: That’s a good segue to my next question, in terms of changing societal views. In terms of same-sex marriage, you filed a famous dissenting opinion in 2006 when your colleagues voted to refuse to recognize the right of gay people to marry. Do you feel vindicated that New York in 2011 went on to legalize same-sex marriage?
JK: Well, since I felt it was a basic right, I certainly did feel, not vindicated, but I felt good about it. But the truth is in our state, probably the issue goes back a little further to a decision few people talk about—they probably don’t even know—which was a decision concerning whether gay partners can adopt a child. And that was a case we decided again by a 4-3 vote years earlier, years earlier, probably in 1999 or 2000. And again, I say it was a divided court, but we said, hey, there’s a statute that says that parental rights benefit the child, and that the child is benefitted by two parents. And that we’re going to look at the best interest of the child. So I think the seeds were there before it—that was a statutory case. The Hernandez case, of course, was constitutional. It was a great disappointment to me that our court went the way it did. Again, what we’re talking about, in the death cases and the same-sex marriage cases is the very elusive question of how much courts change—influence—societal change. How much do courts promote changes in society? And if you just stay with the two subjects that we’re talking about, look at the movement in society. Have you seen a greater social change than the same-sex marriage issue? I have not, and I feel the same way about the death penalty, because I do monitor the papers, and I notice state after state now reconsidering the death penalty. How much do courts have a role in that? Because we have issues, we have constitutional responsibilities we have to enforce. What does due process of law mean? You can’t look it up in the dictionary, you have to figure out what it means. What does cruel and inhumane treatment mean? Again, these are for judges to decide. The constitution gives us not only that responsibility, but that right. That’s what we’re supposed to do. So how much do we factor political climate changes into our decisions? In the same-sex marriage issue, I was very much influenced by the U.S. Supreme Court’s decision in a case called Loving, where in our country interracial marriage used to be unconstitutional. Imagine that, that you couldn’t have an interracial marriage. The Court of Appeals is a law court vested with the responsibility to enforce not only the federal Constitution, but also the New York State Constitution. We can give greater rights under the New York State Constitution. We’re charged with interpreting statutes, with creating common law, so I think Mario was just uniquely plugged in, both by his birth, his brain, constituency, and his experience on the Court of Appeals to make this huge contribution to the court and the law. But do I have any objectivity about him? No.