Michael Mukasey and Me

November 21, 2008, Washington, D.C. -- Attorney General Michael Mukasey is in good condition after collapsing Thursday night while giving a speech in Washington.
Doctors kept him overnight for further observation, and he was released early Friday.
A spokesperson for the Justice Department say that doctor's report Mukasey's vitals are strong, and it appears the 67 year old had a fainting spell brought on by working long hours...


99.9% of all Americans and probably 90% of all Orthodox Jews do not know that Michael Mukasey is the first Orthodox Jew ever to serve in the Cabinet of the President of the United States. Yes, he is Sabbath Observant and eats only kosher food.

And I myself probably wouldn't know this about him, were it not for the fact that he once saved my sorry ass from going to jail.

About 5 years ago, in the fall of either 2003 or 2004, I was second seat at a civil trial in the federal court of the Southern District of New York in Manhattan. The case was before Justice Constance Baker Motley, a (once) legendary figure in jurisprudence.

Constance Baker Motley was a law clerk for the chief counsel for the NAACP, Thurgood Marshall, when they brought Brown v. Board of Education in the 1950's. She had a distinguished career of her own as a civil rights attorney. She argued 10 cases on her own before the Supreme Court of the United States, but she wasn't all that good at it - she only won NINE!

She was the first Black woman appointed to the Federal bench, which is an appointment for life. And therein lay our problem.

She was 83 years old when we appeared before her. In pre-trial conferences we had told her that we - both attorneys for the plaintiff - were Orthodox Jews and that we would not be able to attend afternoon sessions on Fridays in November. She said that she understood and that the trial would be held 4 1/2 days each week. We were thrilled.

However, she had already started to lose a little bit off her fastball due to age. The rule in the federal courts is that you need to retire yourself from the bench; except for gross misconduct, you cannot be fired or retired against your will. Judge Motley refused to retire. She got a lighter load and achieved "senior judge" status (reduced trial hours). Eventually, it became a bit difficult for her to remember everything that had been said or agreed to in a trial. She made no major errors that could lead to something that objectively could be called "a miscarriage of justice." But as she was losing it more and more - and we were witness to a number of such incidents during our trial - things were getting weirder and weirder - and the Chief Administrative judge was assigning her "lighter and lighter" cases.

On the day that trial started, she empaneled a jury and announced to the jury that the trial would be in session five full days, including Fridays till 5 p.m. This was going to be impossible for us - the two lawyers for plaintiff - as we lived over an hour away and the Sabbath started at about 4:20 those weeks. We asked for a sidebar where we reminded her of the pre-trial deal. She said she didn't remember it and would not agree to it! She said that the trial would be in session on Friday afternoon and if we were not there for any reason, she'd find us in contempt and throw us in jail (at the end of the trial).

This was NOT good news and we clearly needed some outside help getting her to "see the light." The irony was not lost on us that here was one of the best known CIVIL RIGHTS ATTORNEYS in the nation discriminating against two Orthodox Jews! It was wild.

Chaim Book, the lead attorney on this trial, sent me out to the telephones on a break to call Avi Moskowitz, senior partner in the firm, to get him to figure out what to do. Avi immediately said he would call Chief Administrative Judge, Michael Mukasey - who Avi knew - to get him to intervene on our behalf with the Judge. I, naively but innocently, asked Avi why he thought Mukasey might be more sympathetic to our plight that was Judge Motley. He said, "because Mukasey himself won't be in the building when she throws you in jail. He's shomer shabbos (sabbath observant), too!"

Avi called Mukasey who called Motley, but Motley refused to budge. She said it wasn't Rosh Hashanah or Yom Kippur, and therefore she did not understand the problem. (I find it hard to believe that she NEVER KNEW about the Sabbath coming weekly; I believe she just simply 'forgot.') When Friday rolled around and she announced the lunch break, we packed up all our trial papers and gave our client (who wasn't Jewish) a script to read. Basically, before the jury was brought in for the afternoon session, he asked to address the Court (the Judge) and told her that he had no representation by counsel and could not proceed with the trial. She agreed, called in the jury, announced an early weekend break without additional comment and sent everyone home.

When we arrived on Monday morning, she admonished us and told us that what we did on Friday was unforgivable, that we were in contempt of court, that she would deal with us after the trial was over and that she would not let this incident prejudice her against us or our client.

We again beseeched Judge Mukasey to intervene on our behalf and reportedly he did. We heard nothing back from him, however, and when the trial ended, Judge Motley said nothing about us being in contempt. We don't know to this day if Mukasey prevailed in his argument with her or if she simply dropped the matter on her own - or forgot about it.

About a year later, Judge Motley passed away while sitting on a trial. (Not literally in the courthouse, but while she was in the middle of presiding over a trial.) She died, so to speak, with her boots on. I commented to friends and colleagues that after she died she was still presiding over trials, but was just taking a lighter load.

To whatever extent Michael Mukasey helped keep us out of jail, I am grateful for his efforts, was very proud of his appointment as AG, and am glad to hear that he seems to have fully recovered from whatever caused him to faint.