Regrettably, David Saxe is misinformed.  In his January 24, 2019 “Perspective” column in the Law Journal, the now-retired Appellate Division justice describes his concerns several years ago when he learned that, as part of the Chief Judge's Excellence Initiative, judicial performance statistics were to be reviewed by the Administrative Board of the Courts in its consideration of candidates for certification for continued judicial service pursuant to Judiciary Law §115.

The purpose and importance of such statistical review are obvious.  Each grant of a two-year judicial certification decision costs the State of New York approximately $1 million (in judicial and chambers staff salary and related expenses); review of numerical measurements of past performance demonstrates both fiscal prudence and a commitment to the highest standards of judicial excellence.

Yet, contrary to Mr. Saxe's assertion, the Administrative Board has never focused on the number of Appellate Division Justices' dissenting opinions.  Rather, among the range of factors the Board considers is how Appellate Division (and Supreme Court) Justices' decisions have fared on appeal, an entirely appropriate and relevant factor that has long been evaluated in the certification process.

In positing that the statistical inquiry into judicial performance “portends a change of life for my old court,” Mr. Saxe draws an alarmist conclusion from a mistaken premise, disserves former colleagues undertaking the certification process and distracts us from legitimate challenges to judicial independence against which we all must guard.

Lawrence K. Marks is the Chief Administrative Judge.

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