On the Other Side of the Bar

Judith Kaye, the chief judge of the New York Court of Appeals, loves jurors. In her time as chief judge, she has overhauled the juror selection system in New York to make it almost impossible to skirt jury duty (but does give litigants a true jury of their peers).

Kaye was called to jury duty herself in the mid-1990s, though she wasn't selected. She loves jurors so much that she waged a long and often quixotic campaign to convince the U.S. Postal Service to issue a stamp honoring jurors. (It finally did last fall.)

Now that Kaye is bringing a lawsuit, it's a shame that she will not get a jury of her own. This afternoon, she sued Sheldon Silver, speaker of the New York Assembly, and other state officials. She wants a trial on her long-running dispute with state lawmakers over judges' pay.

New York state judges's salaries have been frozen for 10 years at $136,700. Not bad money, but as Kaye points out it's at least $20,000 less than what any big law firm pays a first-year associate.

The issue has been stalled because the legislature wants to tie the judges' pay increase to their own — although the state's part-time politicians are free to work on the side; its full-time judges are not.

Essentially, this is a separation of powers fight — as constitutional as it gets — and Kaye's suit digs deep to find evidence of fault.

Kaye's complaint invokes John Quincy Adams, who, in 1842, argued that "it would be a mockery" for the legislature to bear the power of impeachment over the president yet lack the power to "obtain the evidence and proofs on which the impeachment is based."

Indeed. Kaye is known for her incomparable soft and feminine voice. But in this case, she is carrying a big stick: She chose as her representative none other than Wachtell, Lipton, Rosen & Katz, a high-powered law firm that's usually associated with protecting corporate boards against assaults by shareholder activists.

Her lawyer, Bernard Nussbaum, was chief counsel to President Bill Clinton in the early years of his presidency, and has a longstanding connection to Kaye: They got to know each other when both were editing their college newspapers, hers the Barnard Bulletin and his the Columbia Spectator.

Nussbaum says that Kaye's predecessor, Sol Wachler, sued the New York legislature over budget issues. But this is the first lawsuit on the subject of pay. "It's unconstitutional to hold them hostage," Nussbaum says of the stall on the judges' pay raise.

Nussbaum, by the way, is representing Kaye pro bono. "And I happy to do that for her," he says.

by Karen Donovan

• This item was updated to show that the matter will not be presented to a jury, but will be decided by a judge.