Captain Of The Mother Court: Judge Loretta Preska

Loretta Preska '73 in Law 360, February 19, 2014

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New York Southern District Chief Judge Loretta Preska sits at the helm of the oldest federal court in the country, an institution home to a revolving door of headline-grabbing court battles and so steeped in American judicial history it is often referred to as the Mother Court.

Having inherited the chief judge mantle in 2009, Judge Preska's tenure has lately been defined by her ongoing fight against a post-downturn funding shortfall she says threatens to hobble the federal judicial system.

That fight came to a head six months ago, when she rallied a coalition of 85 fellow chief judges in sounding the alarm over the growing fiscal emergency and its potentially dire consequences.

Congress eventually took notice and carved out a slate of appropriations in last month's budget deal, but in a recent interview with Law360, Judge Preska warned that funding levels are still nowhere near where they need to be to guarantee the effective functioning of the nation's courts.

"The new appropriation just passed brings us approximately to the pre-sequestration level, though in actuality it is less because of the costs we can't control," Judge Preska said. "Where are we now? We are still at crisis levels."

While the new appropriations have helped forestall more severe consequences by returning funding levels to the meager benchmarks of 2011, Judge Preska says that ledger entries like rent and employee benefits have continued to grow and a flat funding program effectively amounts to a budget cut.

The public safety consequences of these cuts include a spike in the average caseload of New York City probation officers and the simultaneous decimation of funding for proven crime deterrents like substance abuse and mental health programs, Judge Preska says.

Meanwhile, the inability of the Southern District clerk's office to return to precrisis staffing levels is causing serious administrative difficulties in a court that saw nearly 12,000 case filings over the last year, according to the judge.

"Whereas previously the court had a 95 percent same-day docketing rate, the Southern District is now operating at around 60 percent," Judge Preska says. "Some of this is important, market-moving information."

How to Talk for a Living

The budget fight has been particularly galling to Judge Preska, a pragmatic, numbersoriented woman who preaches a gospel of public service and often refers to litigants as her "customers."

Born and raised in a small town outside Albany, N.Y., Judge Preska initially appeared poised for a career in the hard sciences, studying chemistry at the College of St. Rose and winning a National Science Foundation grant the summer before her senior year.

She recalls that summer as a turning point, saying she realized she could not see herself spending the rest of her life in a lab and pointing to a piece of sage advice from a professor who had taken notice of her formidable talent for communication.

"My professor said, 'Even if you talk to those molecules nicely they won't necessarily do what you want ... but if you talk to people, they might,"' Preska recalls. "She said you have to do what you like to do. And I had heard tell you could make a living by talking as a lawyer."

Preska went on to study at Fordham Law School, where she was one of eight women in a class of 100, and subsequently spent nearly two decades in private practice with Cahill Gordon & Reindel LLP and Hertzog Calamari & Gleason LLP, which would later be absorbed by Winston & Strawn LLP.

President George H. W. Bush tapped Preska for a seat on the Southern District in 1992, where she quickly distinguished herself in the male-dominated judiciary.

"The stereotypical federal judge, even more then than now, was an older man who was appointed at the end of his private sector career, maybe in his 60s," recalls former clerk Maura Monaghan, now a partner at Debevoise & Plimpton LLP. "And here she was, a youngwoman with two elementary school-age kids."

A decade-and-a-half later, Judge Preska's name was rumored to be on George W. Bush's short list for a possible Supreme Court vacancy, and while she was put forward in 2008 as a candidate for the Second Circuit, the move carne near the end of Bush's tenure in the White House and no action was taken on the nomination.

The following year, however, Judge Preska was chosen to replace Judge Kimba Wood as chief of the Southern District, a position many say has proven to be a perfect fit for her service-first mindset.

Seward & Kissel LLP partner Michael McNamara, who has known Judge Preska for nearly 20 years and worked closely with her on budget issues as a task force leader with the New York County Lawyer's Association, says the true scope of Judge Preska's responsibilities as chief judge is largely unknown to the public and even to many lawyers in the Southern District.

"One of the things I learned working with her is that in addition to her day job as a judge with a full docket, she also has very important administrative responsibilities," McNamara says. "She dedicates substantial personal time to those duties, and performs them exceptionally well."

Much of the day-to-day operation of the court is conducted through nearly two dozen committees tackling issues ranging from the selection of magistrate judges to the courthouse's cellphone and camera policy, and the smooth operation of the committee process falls under the purview of the chief judge.

In addition, Judge Preska works closely with the courthouse staff, mediates employee disputes, engages in outreach to the bar, develops programs to make courthouse operations rrore user-friendly and generally functions as an arrbassador for the Southern District.

Because the authority of a chief judge does not provide a mandate over other members of the bench, Judge Preska's role when dealing with her colleagues relies on diplomacy and persuasion - a natural fit for a woman who conmunicates with the soothing authority of a National Public Radio host and wields statistical data with the wonkish cogency of a tenured professor.

"For her, the job of being chief judge is not cererronial," McNamara says. "It's not an honorific. She looks at it as a very serious responsibility."

Walking the Line

Like any high- profile merrber of the bench, Judge Preska has courted her share of

Her dismissal of a U.S. Equal Employment Opportunity Commission lawsuit against
Bloomberg Inc. spurred condemnations from the National Organization for Women and others, and she became the focus of heated online invective after saddling Anonymous-linked hacker Jeremy Hammond with a 10-year prison sentence.

Even a seemingly innocuous photograph of Judge Preska in her charmers sparked
unexpected outcry after some took issue with an American flag carpet on the floor of her patriotically bedecked office.

While she acknowledges that it's increasingly impossible to fully insulate oneself from criticism in the press and online, she maintains that having an awareness of that criticism does not mean it affects one's decision making.

"You hear some of it, and it doesn't matter if it's something silly like [the flag controversy] or about one of your cases," Judge Preska says. "You have to take the good with the bad."

Judge Preska's work on the bench is often guided by her belief in the tenet that certain limitations have built into the judiciary and are necessary to maintain the balance of power between the three branches of government.

"Obviously sometimes there are ambiguities that require interpretation," Judge Preska said. "We interpret, and if Congress doesn't like the way we interpreted the law, they change the law. This happens all the time."

Her major 2005 opinion dismissing American Electric Power Inc. v. Connecticut - in which several states and environmental groups sought to force six top power producers to reduce their carbon dioxide emissions - provides a telling look at Judge Preska's belief that courts must be wary of encroaching on the policymaking authorities of Congress and the executive branch.

In that opinion, Preska asserts that political questions "are not the proper domain of judges" and warns that the judiciary's lack of accountability to other branches means allowing judges to resolve such questions would threaten to erode America's bedrock principles of checks and balances.

"That case to me cried out as a political question," Judge Preska recalls. "What leapt out at me was that it laid out a policy, one that required balancing the benefits of clean air versus business interests."

Judge Preska is nonetheless careful to acknowledge that hers is not an absolutist philosophy, and that such determinations are ultimately up to the individual jurist.

"I don't begrudge folks who do policy arguments," Judge Preska said. "Brown v. Board of Education had a lot of policy arguments. But we have to be cognizant of which branch of government we're in. We're in the third, not in the first or second where they make these policy decisions."

Judge Preska says it has been her experience that judges who have spent time as
commercial litigators prior to joining the bench tend to have a more finely tuned ability to locate the line between findings of fact, conclusions of law and "veering off into policy."

"You have to know where the line is and decide if you're going to step over it," she adds. "It's up to each and every judge."

A 'Down-to-the-Bone Civilized' Jurist

Those who know Judge Preska best say her style on the bench is defined by her respect for litigants and an abiding belief in the right of everyone who comes before her to receive a fair and full hearing.

Monaghan recalled her former mentor's handling of an especially bizarre immigration
fraud case early in her tenure on the federal bench as particularly demonstrative of the compassion and composure that are Judge Preska's trademark.

The case was against an outlandish pro se defendant who claimed he did not recognize the authority of the U.S. government and pledged allegiance to the Free Moorish Zodiac Constitution, and Monaghan says Judge Preska "bent over backward" from the start to sure he had every opportunity to present his case.

As Monaghan tells it, she and many others in attendance considered the oddball defendant to be harmless and "kind of amusing" - right up until the moment he flew into a fit of rage, flipped over the massive counsel's table and lunged violently toward the bench.

The man was quickly subdued by marshals, after which Judge Preska immediately returned to chambers and began researching how to best protect the constitutionally guaranteed rights of a criminal defendant who has turned violent, according to Monaghan.

"Judge Preska didn't bat an eye," Monaghan says. "Even though he had actually physically threatened her, she was still very protective of the process and his rights."
Nearly two decades later, Monaghan looks back on Judge Preska's reaction as a revealing glimpse into the unflappable demeanor and respect for fairness that have defined her time on the bench.

"She's down-to-the-bone civilized in a way you don't always see in litigation," Monaghan said. "I never saw her lose her cool, no matter how many things were going on. She was always courteous, and gave every litigant a fair chance to be heard."

Stroock & Stroock & Lavan LLP partner James L. Bernard, another of the legion of former clerks for Judge Preska who have since risen to leadership positions at some of the top firms in the nation, says his former mentor's communication skills have also made her a notoriously effective mediator.

"Different judges have different views on mediation, but Judge Preska is firmly of the view it is time well spent," Bernard says. "She's a good listener and really empathizes with parties, and both parties will come away from mediation feeling that they've had their day in court."

Judge Preska attributes her prowess in mediation to the late Milton Pollack, the long-tenured Southern District institution who remained active in the court until his 2004 death at the age of 97 and who played a vital role in Judge Preska's early career.

"He had more of a head- bashing style of settlement, and I could no more emulate his style than I could fly out this window," Judge Preska said. "But what he taught me about settlement was that you have to listen to people to understand what it is they want and need, even though sometimes they don't say explicitly what that is."