Remembering Judith – A Colleague Responds to Judith S. Kaye: In Her Own Words

By Robert S. Smith

Remembering Judith

Judith Kaye completed the writing, but not the editing, of her autobiography before she died. She had begun, her daughter tells us in a prefatory note, to rearrange her narrative into chronological order, but had not finished the job. Her children, finding it presumptuous to finish it for her and “too weird” to publish the unedited and edited sections together, decided to go back to the original manuscript, in which, it seems, the sections appear in the order Judith felt like writing them. Chapter 9 is “The Afterlife” (about her life after retiring from the bench). Chapter 10 is “From Day One Through Law School.”

The Kaye children made the right decision. The result is a funny combination of order and spontaneity that, to my mind, is characteristic of Judith herself, who did her demanding jobs (including autobiography-writing) with business-like efficiency and spontaneous human warmth.

The book consists of a memoir of about 100 pages, followed by a 350-page collection of her writings – judicial opinions, articles and speeches. Probably few readers will go through the whole thing in order from beginning to end, and many may prefer to read even the memoir in the way Judith wrote it, by going haphazardly to whatever appeals them at the moment. The readers will include many who loved and admired Judith (a group of which I am a proud member) and many who agree with most of her views on law and other subjects (that’s not me). It will include friends and co-workers from various times and places, and among those will be the dozen or so still living, of whom I am one, who were her colleagues on the New York Court of Appeals.

For us and for many others, the best thing about the book is that it brings so much of Judith back. There she is, in the distinctive, graceful written prose of which she was quietly but intensely proud. Her preface begins: “By nature, I am first and foremost a writer.” She began her career as a journalist and went to law school, she tells us, only because she thought it might get her a decent job with some newspaper or magazine. As a judge she had a talented staff to draft writings for her, but I’m sure none ever left her desk without her personal touch. She kept an eye on her colleagues’ writing too, because she thought part of the Chief Judge’s job (as though she didn’t have enough else to do) was to make sure that everything that came out of the Court – not just what we said, but how we said it – was of at least respectable quality. The first time I drafted an opinion for the Court, she was gracious with compliments, as she always was, but she suggested that I change the first sentence to the active voice. That moment came back to me as I sat down to write this review, first beginning “The writing, but not the editing… was completed,” then changing to the form Judith would, rightly, have preferred.

Another bit of Judith that comes back in reading her memoir is the depth of her feelings, both of joy and sadness, and her willingness to share them. She makes her readers understand how much she adored three things – her family, her career on the Court, and life itself – and how painful it was for her, in her last decade, to lose Stephen, her beloved husband of more than 40 years (“While I cannot swear that our marriage was absolute perfection . . . it came pretty close”), to face mandatory retirement after a quarter-century on the Court (“Then the curtain came down. Thud.”) and to receive a devastating diagnosis (“The statistics on stage four lung cancer are grim”). But the memoir is more joyful than sad, and even when it is sad it is not depressed or depressing. She survived Stephen by nine years, her retirement by seven and her diagnosis by five, and I doubt there was a moment when she even thought about lying down, literally or figuratively, to wait for the end. Writing of her first five years back in private life, as a partner at a high-powered law firm, she says that she is “enormously busy and productive,” and everyone who knew her in those years knows it is true. “I can honestly say,” she writes of those same years, that she has “passions, purposes, projects . . . that could happily make up the last day of my life.” In her eulogy for her mother, Luisa Kaye described finding her mother’s remains in bed on that last day: “She was sitting up.”

But nothing comes back more strongly, nothing seems more a part of Judith to me, than the kindness of her heart. Her unfailing warmth to her colleagues – including those, like me, who sometimes took an unworthy delight in thwarting her powerful will – was more than professional courtesy, or even a sense of a common calling. She went out of her way to be kind to, and she truly cared about, everyone she came in contact with, including the courthouse employees whose job it was to drive cars or empty wastebaskets, clerks in stores and waiters in restaurants, and a person of borderline sanity who loved her and followed her everywhere. In this memoir, her strongest feelings of pride seem to be attached not to her extraordinary professional achievements, but to the actual good she has done for human beings: jurors whose service she labored, through her Jury Project, to make pleasant and rewarding; sufferers from mental illness and drug addiction who were given a second chance by the “problem-solving courts” she fostered; the children cared for at the “children’s centers” established in the state’s courthouses for kids of people who had to be in courtrooms.

She was a tough woman, but she was a soft touch, for children especially. I remember her calling me to agonize about a termination of parental rights case in which I was writing an opinion: she wanted to know which result would give the child involved, a girl called Annette, a better chance at happiness (an unanswerable question). The Adoption Now Program she established reduced by 50 percent the number of children awaiting adoption in New York. It was this that led Judith’s and my colleague Judge Victoria Graffeo to say (I am quoting, from memory, remarks made at one of the many tributes to our Chief when she retired): “Her real legacy is not in the New York Reports. It is in the children who have parents today because of Judith Kaye.” Certainly, that is not Judith’s only legacy. But reading this memoir did not shake my feeling that none better reflects the finest qualities of this great judge.

Judith S. Kaye: In Her Own Words: Reflections on Life and the Law, with Selected Judicial Opinions and Articles edited by NYSBA President Henry Greenberg, Luisa M. Kaye, Marilyn Marcus, and Albert M. Rosenblatt, is published by SUNY Press (2019).

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