Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 2012 Judge Bernard S. Meyer: First Merit Appointee to the New York Court of Appeals Vincent R. Johnson St. Mary's University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Law Commons Recommended Citation Vincent R. Johnson, Judge Bernard S. Meyer: First Merit Appointee to the New York Court of Appeals, 75 Alb. L. Rev. 963 (2012). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. 15 JOHNSON 3/14/2012 4:40 PM JUDGE BERNARD S. MEYER: FIRST MERIT APPOINTEE TO THE NEW YORK COURT OF APPEALS Vincent R. Johnson* To Bernard S. Meyer (1916–2005), Judge of the New York Court of Appeals (19791986), who, with integrity, keen intellect, and tireless effort, championed the rights of those who needed help most.1 ARTICLE CONTENTS I. THE CHALLENGE OF A LIFETIME AT AGE 63 .......................... 965 II. SELECTING LAW CLERKS ....................................................... 971 A. Treating Law Clerks as Equals ...................................... 972 B. The Best State Court in the Nation ................................ 974 C. The Learning Curve........................................................ 976 III. TAKING THE OATH IN NEW YORK CITY .................................. 977 IV. ARRIVING IN ALBANY IN THE MIDDLE OF THE NIGHT ............ 979 V. PERSISTING IN THE FACE OF POLITICAL ADVERSITY ............. 980 A. The 1969 Race ................................................................ 980 * Professor of Law and Director of the Institute on Chinese Law and Business, St. Mary‘s University, San Antonio, Texas. LL.M., Yale University; J.D., University of Notre Dame; B.A., LL.D., St. Vincent College. Law Clerk to the Honorable Bernard S. Meyer, 197980. Professor Johnson is a member of the American Law Institute. He served as a Fellow at the Supreme Court of the United States and a Fulbright Scholar in China and Romania. He writes in the fields of torts, professional responsibility, legal malpractice, and ethics in government. His works have been cited by the highest courts of Arizona, Iowa, Kansas, Maryland, Missouri, Nebraska, New York, Ohio, Tennessee, Texas, and the Territory of Guam, and by numerous federal tribunals. Valuable historical research for this article was provided by Katy Stein, Faculty Services Librarian and Assistant Professor of Law at St. Mary‘s University. Other assistance was furnished by the following law students at St. Mary‘s University: Raven M. Bady, Ernesto C. Ballesteros, Aftan Cavanaugh, Sarah E. Fleischer, David Hyer, Christian Neumann, Luis C. deBonoPaula, Lori Gansel, Joseph King, Karen A. Oster, Brandon J. Prater, Miguel A. Sanchez, and Lee Simmons. Carol Mason (who served as Judge Meyer‘s secretary at the Court of Appeals from 1979 through 1986) and Morgan Kelly (who clerked for Judge Meyer from 1979 to 1981) reviewed a draft of this article and offered helpful comments. 1 SUSAN SAAB FORTNEY & VINCENT R. JOHNSON, LEGAL MALPRACTICE LAW: PROBLEMS AND PREVENTION iii (2008) (dedication by the author). 963 15 JOHNSON 3/14/2012 4:40 PM 964 Albany Law Review [Vol. 75.2 B. The 1972 Race ................................................................ 982 C. The 1973 and 1978 Openings ......................................... 985 VI. PROGRESSIVE REFORMER ...................................................... 986 A. Respect for the Law......................................................... 986 B. Civil Libertarian ............................................................ 988 C. Judicial Activist and Friend of Those in Need .............. 989 D. Frequent Dissenter.......................................................... 992 VII. ELOQUENT AUTHOR ............................................................... 994 A. Quotable .......................................................................... 995 B. Precise Sentences ............................................................ 996 C. Insights from the Academy ............................................. 998 D. Attention to Legislative History ...................................... 999 E. Fascinating Issues .........................................................1000 F. National Prominence .....................................................1001 VIII.CRUSHING WORKLOAD .........................................................1002 A. The Caseload of the Court .............................................1003 1. Sessions in Albany ...................................................1005 2. Dividing the Work ....................................................1006 3. The Range of Tasks ..................................................1007 4. Prompt Decisions .....................................................1008 B. Peripatetic Judging .......................................................1008 C. Before Computers ..........................................................1011 D. Constantly Moving the Office ........................................1012 E. Keeping Track of Everything .........................................1013 IX. MASTERING THE NEW JOB ....................................................1014 A. Midtown Manhattan .....................................................1014 B. Temporary Chambers with No Books ...........................1015 C. Home Chambers in the Bar Building............................1016 D. Secretarial Support .......................................................1017 E. Endless Reading ............................................................1017 F. Long Hours ....................................................................1020 G. Mystery and Majesty .....................................................1021 H. Clerks‘ Mischief .............................................................1023 I. The Pace during Intersessions .......................................1024 J. Law as Both Vocation and Avocation ...........................1024 K. The Great Arcania of Court of Appeals Practice ...........1026 X. LIFE AFTER THE BENCH ........................................................1027 A. ABA Standards on State Judicial Retirement ..............1029 B. Intellectual Historian ....................................................1031 C. Legacy ............................................................................1032 15 JOHNSON 3/14/2012 4:40 PM 2011/2012] Judge Bernard S. Meyer 965 INTRODUCTION Bernard S. Meyer‘s great professional ambition was to be a judge on the New York Court of Appeals.2 However, when he finally reached that goal, he found being a member of the state‘s highest tribunal was not quite what he expected. As he humorously explained to the Albany County Bar Association after almost eight months in office, ―notwithstanding my long-held aspiration to be on the Court, I really did not know before I got there where I was going . .‖3 This is the story of Judge Meyer‘s exhilarating, exhausting, and highly productive first year on the New York Court of Appeals. I. THE CHALLENGE OF A LIFETIME AT AGE 63 A Marylander by birth (June 7, 1916) and education, Bernard S. Meyer received his undergraduate degree at Johns Hopkins University (1936)4 and graduated ―first in his class‖5 at the University of Maryland School of Law (1938).6 As a boy, he ―caught the legal bug by hanging around his uncle‘s law office in 2 See Judith S. Kaye, Chief Judge, New York Court of Appeals, Keynote Address at the Nassau County Supreme Court: Tribute to Hon. Bernard S. Meyer 4 (Sept. 19, 2005) (―As we know, from the age of six or seven, when he abandoned his ambition to be a streetcar conductor, he wanted only to be a lawyer, ultimately a judge, and finally a Judge of the Court of Appeals.‖) (on file with Albany Law Review); see also Maurice Carroll, Bernard Meyer, Nassau Democrat, Named by Carey to Appeals Court, N.Y. TIMES, Apr. 20, 1979, at A1 (―Mr. Meyer told reporters in Albany that his only ambition had been to be a judge and that to sit on the Court of Appeals was ‗the highest honor bestowed upon a practicing lawyer.‘‖). 3 Bernard S. Meyer, Address to the Albany County Bar Association 2 (Jan. 10, 1980) (on file with Albany Law Review) [hereinafter Meyer‘s Address to Albany Cnty. Bar Ass‘n]. Meyer illustrated his point with a story, which he credited to Judge Hugh Jones, about Justice Oliver Wendell Holmes, who sat with the United States Supreme Court ―until he was well on in years.‖ Id. As Meyer explained, Travel in those days was by train, and the setting of the story is with Mr. Justice Holmes on a train out of Washington during one of the Court‘s intersessions. When the conductor came by collecting tickets the good Justice, search as he would through his pockets, could not find his. As he continued to search, the conductor, who recognized the justice, said to him ―Mr. Justice, please don‘t bother. I‘m sure the railroad would be happy to have you send in the ticket when you find it or a check for the fare, if you don‘t,‖ to which Holmes rejoined ―Young man you just don‘t understand my problem. I don‘t know where I‘m going.‖ Id. 4 Sal Ferlazzo, Bernard Stern Meyer, in THE JUDGES OF THE NEW YORK COURT OF APPEALS: A BIOGRAPHICAL HISTORY 785–86 (Albert M. Rosenblatt