Introduction of Hon. Jed S. Rakoff at the Benjamin N. Cardozo Lecture
By Hon. Raymond Lohier
Judge, United States Court of Appeals for the Second Circuit
The following remarks were delivered at the New York City Bar Association, where, on October 23, 2024, Judge Jed S. Rakoff, Senior Judge of the U.S. District Court in the Southern District of New York, delivered the Benjamin N. Cardozo Lecture. A video of the program, including these remarks and a welcome by City Bar President Muhammad U. Faridi, is here. More information on the City Bar’s Benjamin N. Cardozo Lecture Series is here.
Good evening.
Of the several dozen very distinguished jurists, academics, and lawyers who’ve delivered the Cardozo lecture since 1941, less than a handful have done so as trial judges, state or federal. As Muhammad referenced, Judge Jack Weinstein of the Eastern District of New York delivered his lecture in 2008. 50 years ago another great federal district judge, Marvin Frankel of the Southern District, spoke about the Judge’s Search for Truth. And only a few years before he was promoted to the Appellate Division – some here might say before he was demoted to the Appellate Division – Judge Wyzanski of New York State Supreme Court held forth on “A Trial Judge’s Freedom and Responsibility.”
It’s somewhat puzzling that so few federal trial judges have been tapped to deliver a lecture of this stature that bears Justice Cardozo’s name. If the Supreme Court is the federal judiciary’s eldest child, and the Circuit Court is its forgotten middle child, then the federal district court represents the favorite child, the jewel of the federal judicial system. Since the first session of a district court in lower Manhattan in November 1789, its basic function is as well known in the popular imagination as that of the US Supreme Court.
Justice Cardozo himself would almost certainly have been a great federal district judge. He had his chance. In 1908 or 1909 he was offered a judgeship in the Southern District by United States Attorney General George Wickersham, one of the founders of the Cadwalader firm and a former president of this very bar association. Cardozo declined the offer, citing the low pay. Some things never change. Justice Cardozo’s explanation for declining the judgeship was that he had two sisters to support, and the annual salary of $6,000 – the equivalent of about $199,000 today – was not enough to cover their high costs of living. Barely four years later, though, Justice Cardozo accepted a judgeship on the New York State Supreme Court, which “paid far more than the federal salary at that time.” Some things apparently do change.
Although he’s best known today for his appellate work on the New York Court of Appeals and, to a lesser extent, on the US Supreme Court, Justice Cardozo fully comprehended the central role of a great trial judge in developing the law in a way that not only meets the needs both of the particular case and of the recurring problems that prompt it, but also impartially advances the basic demands of justice. The great trial judge understands, as Justice Cardozo understood, that “logic and history and custom and utility and the accepted standards of right conduct are the forces which singly or in combination shape the progress of the law.” “Which of these forces [will] dominate in any case,” Cardozo explained, “depend[s] largely on the comparative importance or value of the social interests that will be thereby promoted or impaired.” And “one of the most fundamental social interests” he emphasized, “is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even of arbitrary whim or faithfulness.”
Today’s lecturer, my friend and colleague the Honorable Jes S. Rakoff, epitomizes the judge whom Benjamin Cardozo surely had in mind when he wrote those words. It’s altogether fitting that Justice Cardozo has been described as his “legal hero.” He’s one of this country’s best and best known federal judges, not only because of his incisive decisions, but also because of his courageous role as a public intellectual who shines a light on our legal system. He helps us all better understand the values that animate the best aspects of our judicial system, as well as the failures that inform its worse features. He is a critic unafraid to help the public broadly understand not only our core legal deficiencies as a nation, but also the public’s own central and independent role in advancing justice and upholding the rule of law. No one familiar with him will be surprised to learn that his recent book, with the provocative title “Why the Innocent Plead Guilty and the Guilty Go Free, and other Paradoxes of our Broken Legal System,” starts this way: “A sense of justice is central to human endurance, no matter what wrongs we suffer or misfortunes we withstand, the belief that justice will ultimately prevail is part of what keeps us going. Nowhere is this belief more deeply felt than in the United States.”
I would add that in no one is this belief more deeply felt or experienced than in Judge Rakoff. It’s that sense of justice, fortified by a profound understanding of American law, its possibilities, and its limitations, that impels him in virtually everything he does, says and writes.
But he also recognizes, as I do, and as Justice Cardozo once famously said, that “the facts drive the law.” The unique superpower of the district courts is their power to find facts, what Judge Rakoff once called the “gritty details of a particular case.” The law is, he said in an article, “first and foremost engaged in the resolution of practical disputes, and if the application of a principle of law to the facts of various cases repeatedly leads to resolutions that seem nonsensical, it’s probably because there are other, offsetting . . . principles that need to be recognized – and have not yet been – in order to arrive at a just and balanced result.”
Now, it would take me a long, long time to describe Judge Rakoff’s biography and his many, many accomplishments and awards. So let me focus on just a few. He’s authored over 1,900 opinions in his day job as a district court judge. He is a regular contributor to the New York Review of Books. He teaches at both NYU and Columbia Law Schools, and he’s a member of both the American Academy of Arts and Sciences, and the American Law Institute, an organization that is close to my own heart. In 2014 he served as a co-chair of the National Academy of Sciences committee on eyewitness identification, which led to specific and immensely important reforms relating to the use of eyewitness evidence in the court and by law enforcement. That same year, he was listed by Fortune Magazine as one of the World’s 50 Greatest Leaders. It’s not clear to me how you make it on to that particular list, but I’m sure that I was number 51 and just missed the cut.
Enough. My friends, it’s my great honor and privilege to introduce the Honorable Jed S. Rakoff to deliver this year’s Cardozo Lecture.