Portrait of a Judge: Judith S. Kaye, Dichotomies, and State Constitutional Law

I. INTRODUCTION: A CAREER OF THEORY AND PRACTICE First, let me say how honored and delighted I am to be here to start us out on this afternoon's project, which I would describe as all of us working together to compose a verbal portrait of Chief Judge Judith S. Kaye to go along with the very impressive physical portrait now gracing the back wall of this courtroom. In painting a portrait, we all start with our sketches and our mental snapshots of particular scenes or moments. So before getting to the topic on which I've been asked to speak, Chief Judge Kaye's scholarship, I want to start by sharing with you a few of the snapshots in my mind--my own personal memories and impressions of Chief Judge Kaye over the years--because they are a key part of the background for my piece of the portrait we are creating today. A. Judith Kaye and the New York Jury The first time that I saw Judith Kaye in action was when I'd been called for jury duty in New York City some years ago. I was sitting among the pool of prospective Brooklyn jurors when a video came on featuring Judith Kaye speaking to all of us there. This was something that had never happened before--that anybody, no less the Chief Judge of New York State, really tried to explain to prospective jurors what they were being asked to do and why it was important, rather than just intoning some Law Day homilies and then deluging them with commands and cattle-herding bureaucracy. But there was Chief Judge Kaye up on the screen explaining eloquently and inspiringly why she believed jury duty to be a critical part of our constitutional system. Her remarks signaled that I, along with everyone else in the room, was being taken seriously as an integral part of the justice system and was entitled to respect. In addition, this video (which I'm sure Chief Judge Kaye supervised because no detail went unnoticed) used filmmaking and storytelling arts to communicate with people--in a way that could really capture their imaginations--why they were being asked to give up a part of their personal lives to perform this public function. Instead of just assuming that jury service was a fact of life, the video treated the opinions of the prospective jurors about their jury service as important. And so the video took pains to educate, explain, and persuade so that the prospective jurors would have a basis for deciding for themselves that they were doing something valuable. I don't know how many of you may have seen this video, and I actually don't know if it's still being shown. But even though I don't recall exactly how long ago I was called to jury duty on that occasion, I vividly recall that in this video--while the voices of Judge Kaye and other experts talked admiringly about the nature and history of our jury system--the viewer was shown a reenactment of an alternative system of justice from our Anglo-American past: trial by ordeal. A woman dressed in appropriate period costume was being led into the water by uniformed purveyors of justice to see if she would sink or float. My fellow Brooklynites hooted at the idea that whether or not the water rejected her could be regarded by anyone as a reasonable basis for deciding whether or not this woman was a witch, a rather questionable charge to begin with. After seeing this video, I was not the only person in the room who then thought: Of course I want to be part of a reasonable and fair system for protecting people against unjust punishment. Even that brief reenactment--inviting viewers to empathize with the woman being subjected to such terrifyingly arbitrary treatment--helped to persuade the viewers that such outmoded forms of trial are no way to make a decision and certainly not a way they would want important decisions about their own lives to be made. That perception made the prospect of disrupting one's own everyday life for jury service sting a little less. That video, of course, was just one part of Chief Judge Kaye's important campaign--one of her priorities on assuming her position as Chief Judge--to transform the experience of jury duty for all the people of the State of New York. …