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February 13, 2023
The New York County Lawyers Association – a bar association that represents more than 7,000 attorneys – has a strong history of responding publicly when members of the judiciary are unfairly attacked. We do this because, in light of their office, they are generally not able to respond to such attacks themselves. In that capacity, we feel compelled to address certain comments that constituted a veiled attack on First Department Presiding Justice Rolando Acosta by Senator Brad Hoylman-Sigal during a February 7 public hearing on the 2023 Executive Budget Proposal. These unfair remarks threaten judicial independence and the rule of law.
Senator Hoylman attacked a thoughtful Op-Ed in which Presiding Justice Acosta discussed the importance of judicial independence. Concerning the role of an independent judiciary in ensuring the rule of law, Justice Acosta powerfully wrote: “[T]he separation of powers is crucial to a functioning democracy. To shortchange that fundamental principle of our governance is to break faith with democracy itself. … It is not enough to decry those who sabotage the process. The only way to preserve the process is for each of the three branches to ensure that it is honored, even if the outcome may not be what particular individuals may wish.” He also correctly wrote that judicial independence requires that Second Department Presiding Justice Hector LaSalle be given a fair hearing in the state Senate in connection with his nomination as Chief Judge of the New York Court of Appeals (a position we echoed in a Letter to the Editor that same day).
During the February 7 hearing, Senator Hoylman-Sigal (who chairs the Judiciary Committee that has so far deprived Justice LaSalle of a vote in the full Senate) – questioning Robert Tembekjian, Administrator and Counsel for the Commission on Judicial Conduct – noted that a “sitting judge” had written an “Op-Ed” in which he “urged for fair hearing” for “the nominee for the Chief Judge of the Court of Appeals.” He then asked Mr. Tembekjian: “Are there ethical rules for judges proactively weighing in on political matters when there isn’t a case before them?” The Senator did not mention Justice Acosta by name, but the reference was unmistakable.
Mr. Tembekjian responded that wide latitude is given to statements by judges involving the law, the legal system and the administration of justice where there is no pending case. He added that given its “reverence for the First Amendment,” the Commission is “very cautious about inhibiting public comment.” Indeed, he emphasized that as long as no case is pending, such comment is not only “permissible”; “some would even say it’s encouraged.”
We applaud Mr. Tembekjian’s answer to the Senator’s question. But we also respectfully submit that the Senator’s question in the context of a budget hearing was entirely irrelevant and coercive. The question could only have been a thinly veiled threat against a member of the judiciary: an attempt to chill any critical comment rather than a true request for information. And regardless of Mr. Tembekjian’s response, the chilling effect of the Senator’s actions will persist.
To those who treasure the rule of law, Justice Acosta’s words expressed manifest truths. Sitting judges are subject to limits on what they may comment on publicly; however, as Mr. Tembekjian made crystal clear, Justice Acosta’s piece did not approach, much less cross, that line. Instead, Senator Hoylman’s remarks ironically present precisely the danger about which Justice Acosta warned: they attempt “to pressure the courts into compliance” or “demoniz[e] judges simply because of disagreement with one or more of their” positions.