Three for the Nine

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Where are the New Yorkers on the list of judges that Donald Trump intends to consider for the Supreme Court? It’s a diverse list, but nary a New Yorker. What are our judges, chopped liver? It is a cheerful question, asked only because it happens that there are at least three New York judges who strike us as having just the right stuff for America’s highest bench — particularly given the priorities Mr. Trump marked during the campaign.

Our list includes two former federal prosecutors, Reena Raggi and Debra Livingston, who were elevated by President George W. Bush to the federal appeals bench, where they ride the Second Circuit, and a recently retired judge of New York’s highest state court, Robert Smith. We’ve recently had opinions from them in terrorism, capital punishment, and federalism cases that jibe perfectly with positions taken by Mr. Trump.

Judge Raggi’s was a dissent in a case known as Turkmen v. Ashcroft. It involves a campaign to hold two of America’s top lawmen, former attorney general John Ashcroft and Robert Mueller of the FBI, personally liable for the harsh handling of suspects rounded up after the 9/11 attacks. The suit is being levied by the same left-wing law firm that has sued the NYPD over stop-question-and-frisk and Muslim surveillance.

The case involves a rare maneuver called a Bivens Action. It is named for Webster Bivens, who sued federal narcotics agents who humiliated him in a warrantless search of his apartment in Brooklyn. His claim for damages was allowed by the Supreme Court in 1971. When Turkmen sought to try that against an attorney general and FBI director, the Second Circuit folded like a cheap suit — over Judge Raggi’s dissent.

In October, the Supreme Court agreed to hear the case and could yet vindicate Judge Raggi and those New York values that Donald Trump spoke of when, answering the jibes of Senator Cruz, he spoke of the way the city arose after 9/11. Judge Raggi’s view would vouchsafe federal authority of the kind that Mr. Trump is going to need against those seeking to spread terror here.

Judge Livingston’s opinion is a carefully-crafted dissent from a decision to spare a cop-killer the electric chair. He’d been convicted, on overwhelming evidence, of slaying two undercover NYPD narcotics officers. He shot one, a father of two, in the head and then the other, the father of three, as he begged for his life. Prosecutors said he wrote rap lyrics bragging about the murders, and the killer mocked the grieving family members in court.

Yet the killer’s death sentence was vacated by the Second Circuit in opinion pettifogging about the prosecutors marking the killer’s lack of remorse. Judge Livingston deferred to the jury, which the trial court had said was among the most attentive and serious it had ever seen. Her kind of judgment, and courage, are just what the Nine will need as Mr. Trump seeks to back our police.

Judge Smith’s wisdom showed in a case — Hernandez v. Robles — on how to decide same-sex marriage in New York. The court ruled that same sex marriage was neither permitted by state statute in the state nor required by the state constitution but rather was a matter for the legislature in Albany. Judge Smith pointedly warned against the idea that opposition to same sex marriage could be grounded only in bigotry.

Advocates of same-sex marriage saw Judge Smith’s opinion as a setback. But it turned out to illuminate the road by which same-sex marriage was established in the Empire State. When same-sex marriage finally reached the United States Supreme Court, the first words spoken were a reference to Judge Smith’s opinion. His preference for state-by-state legislative action is similar to what Mr. Trump favors for abortion.

In offering to the Great Mentioner the names of these sages, it is not our intention to suggest that anyone owes New York another seat. The court already includes three New Yorkers — Justices Ginsburg (Brooklyn), Sotomayor (the Bronx), and Kagan (Manhattan). The vacant seat was held by, in Justice Scalia, a product of Queens (though he was born at Trenton).

Yet it may be no coincidence that so many New Yorkers have acceded to the High Bench. The city is full of savvy, skepticism, and disputation (the most difficult ratification fight for the Constitution was in New York; in the course of it the Madison, Jay, and Hamilton wrote the Federalist Papers). As to the suggestion that, at 72, Judge Smith could too old (meaning, wise), we’d take ten of his years to 20 of some of the youngsters in contention.


The New York Sun

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