Changes in the Road Ahead

Judith Smith Kaye, the first female chief judge of New York’s highest court, the Court of Appeals, was a superb lawyer. A clear and analytic thinker; an elegant writer and even more incisive editor; a forceful and persuasive oral advocate; a thoughtful, courageous, and foresighted judge; and an ethical actor in all she did, Judy personified for me the highest bar that everyone in my (former) profession should strive to reach. And though I never matched her efforts or achievements, I was blessed to have her as a mentor during my first years as a litigation associate in the firm in which she was a partner before she became a judge.

And I was even more blessed to have her as a friend.

She accomplished all that she did through grit, determination, and most importantly of course, immense talent. Though graduating near the top of her class, it was hard for her to find a job because there were so few slots available for women, and those who did get jobs were treated poorly. For example, she once told me of an early job interview, where the first question she answer was about her husband (Steven R. Kaye, a scholarly luminary in the New York bar with a penchant for winning major cases while wearing flamboyant braces.) The follow-up question was about what type of birth control she used.

After she finally found a (different) job, the sailing didn’t get smoother quickly. Early on, she was second seat in a trial, and when the judge called for a bench conference and she started to stand up, he told her, “Not you, Mrs. Kaye. Women attorneys don’t attend bench conferences in my court.” (Exaggeration, you think? Well, E. Margaret Burbidge, one of the stellar astronomers of the 20th century, as Margalit Fox described her in a recent New York Times obituary, was denied a fellowship from the Carnegie Institute of Science to work at the Mount Wilson Observatory because in the 1940s women weren’t permitted to use its telescope.) The golden age that some look back to with such fondness was more than a bit tarnished for many.

In addition to her teaching me much about what it means to be a lawyer and a litigator, Judy was a major influence on the way I write. There were others as well. They include the late Leo Taubes, a Teaneck resident for many years, whose freshman English course I took at YU, and Bryan Garner, the legal writing guru of the last 30 plus years, whose seminars I loved and learned from, and whose books still occupy a place of honor on my shelves.

But Judy had the strongest impact. I would sit down with early drafts of affidavits and briefs I had sweated over, which were covered with Judy’s red-ink cross-outs, comments, and rewriting, and then carefully review and try to understand the reason for each one. (With other partners, I often would just submit the marked-up copy to the pre-word-processing steno pool for retyping.) And while I understood most edits — clarity always was her hallmark — if there was one I didn’t, I’d ask her to explain, which she would, in her always gracious manner and gentle voice. My personal (approximate) box score is that 95 percent of her changes made my drafts better, 3 to 4 percent were judgment calls or equally valid style choices, and in 1 to 2 percent my version was better. But I wouldn’t bet a lot that I was right about that last category.

In addition to her legal talent, Judy also was the epitome of class in the way she looked and dressed. Once we were preparing for oral argument before the Second Circuit. (Parenthetical interruption for legal nerds of a certain age. Our firm was representing one defendant in a multi-defendant case. Another defendant was being represented by an Arthur Liman-led Paul Weiss team. Arthur not only ceded his argument time to Judy but also insisted that she be the sole oral appellate advocate on behalf of all defendants.)

Back to the story. In the midst of our preparation, she told me she had to take a short shopping break. Responding to my puzzled look, she explained that she needed to go to Bloomingdale’s to buy the red dress and matching shoes she had her eye on. She planned to wear it to oral argument. Getting a new outfit for important court appearances was de rigueur for her. And while it was her brilliant advocacy (and having the law and facts on our side), and not her clothing, that were the most important factors in our winning the case (see Miller v. New York Produce Exchange, 550 F.2d 762 (2d Cir. 1977)), it certainly made her stand out (in addition to being outstanding).

In my last year at the firm, however, this highly stylish woman began wearing sneakers to work. No, it wasn’t a fashion statement. Rather, the 12-day New York City transit strike of April 1980 caused many changes in commuting, and women wearing sneakers to work was one of them. And after the strike ended, while Judy went back to wearing her traditional high heels, many women did not.

I often think about Judy while writing a column, mainly because of her influence on my technique and style. (Only the positive parts, of course; all blame for infelicitous prose rests solely on my shoulders). In this age of COVID-19, however, I’m also thinking of Judy and her sneakers, and of all the women whose commuting, work dress, and foot comfort never have been the same since that 1980 strike. And I wonder, just like changes arising from a transit strike, what societal and Jewish changes will we see as a result of the coronavirus?

Will there be increased, or decreased, shul attendance? Will people wash their hands and use sanitizers more often, shake hands less, and give up social kissing and hugging entirely? Will wearing masks become mainstream behavior, like it was in many Asian countries before the pandemic? Will anyone ever complain again about Pesach preparation, overly long sedarim, or going to a bar or bat mitzvah or a wedding? Will we call/FaceTime/Skype/email/ WhatsApp/ Zoom more with our (grand)parents, (grand)children, wider family, and friends? Will part-time working at home become more prevalent? Will online shopping increase as brick-and-mortar stores decline further, or will the latter make a comeback? Will home cooks continue to try new recipes and will jigsaw puzzle sales soar even higher? Will we get out of our houses more and watch Netflix less? Will we actually look forward to going to the gym? (Nah, to the last question.)

But the question I personally think about most is how Zoom (and Zoom-like technology) will affect us. I’ll leave the question of its impact on children’s education and health to experts like three of my daughters, two middle school educators and one child therapist, who’ve been using Zoom extensively in their work, and parents like my fourth daughter and her husband in Toronto, whose three children have been the recipients of such remote education. Rather, I’m thinking about the following live panels, lectures, college classes, drashot, and shiurim I’ve had the privilege of “attending” since quarantines were imposed (and this is just a partial listing):

(a) by (and I’m omitting all honorifics and professional titles), Zev Eleff, Elisheva Baumgarten, Shai Held, Michael Sandel, Ilana Kurshan, Yosef Adler, Micha Goodman, Channa Lockshin Bob, Jonathan Sarna, Sara Wolkenfeld, Tova Warburg Sinensky, Rena Goldin, J.J. Schacter, Steven Pinker, Rivkah Press Schwartz, Irvin Unger, Hayyim Angel, Shulamith Z. Berger, Joey Rosenfeld, Jenna Weissman, Adam Mintz, and Tova Lichtenstein;

(b) on topics including (and they’re not matched with the order of the above speakers), various aspects of the coronavirus and Pesach (of course); the personalities and history of Solomon Schechter, Louis Finkelstein, Bernard Revel, Yitzchak Yaakov Reines, Vladimir Jabotinsky, and the Rav; Hosea; Torah study; women’s participation in and exclusion from Pesach ritual; spirituality; Shabbat HaGadol; relationships; the Szyk Haggadah; Safaria; and Jewish food in America;

(c) from Chicago, Jerusalem, Los Angeles, Cambridge, Efrat, Connecticut, as well as locally (Teaneck and the Upper West Side).

In normal times I would have had a chance to hear several of these presentations; some are given locally as a matter of course, and more distant speakers might have been invited to the New York area. But many would not have been available to me. So I wonder whether we’ll continue to be enriched in Torah and scholarship by large-scale use of remote learning technologies for adults.

And it extends beyond education. My wife, Sharon, and I joined in Zoom funerals and telephone/Zoom shivas. Certainly, in-person participation in such activities is preferable; human connection, both actual as well as figurative — being in the same physical location — has meaning and touches souls in ways that technology, however interactive, cannot replace. But even without the coronavirus, in-person participation isn’t always possible, for often-valid reasons like distance and illness. So why not Zoom all funerals after this crisis ends (speedily I pray)? Indeed, for someone like me, who is a kohen and can’t attend funerals regularly (standing outside is not really an option the community should be satisfied with — more on that perhaps in a future column), Zoom might be a way for many more to feel included as members of the community when tragedy strikes.

Similarly, for some who truly can’t attend shul (I’m speaking of those more severely disabled, ill, immunocompromised, and too-distant on Shabbat and yom tov, not those too lazy or looking for an easy out), might not Zoom type technology and halachic innovation and courage work hand-in-hand to make religious ritual and practice more accessible to the homebound? On the last night of chol hamoed, Sharon and I participated in a Zoom Yizkor ceremony led by our rabbi, and I know other shuls and rabbis did the same. I certainly don’t want to replace Yizkor in shul. But for those who can’t personally be in shul, wouldn’t this be a welcome addition to our religious practice?

And then there are family events. One of the highlights of our family’s Pesach experience, in a holiday burdened by isolation, separation, worry, uncertainty, and fear was a Zoom pre-Pesach semi-model seder. Forty-seven extended family members participated, from four countries and 16 separate locations. The event, scheduled for one hour, lasted for two, with everyone connecting through laughter, singing, storytelling, divrei Torah, show and tell, the recital in Hebrew of Mah Nishtana by the youngest, followed by, in Kaplan family tradition, its recital in several other languages including American Sign Language, and even more traditional schmoozing.

I fervently hope we’re not separated next year. But that doesn’t mean we shouldn’t make this pre-yom tov Zoom get-together an annual event.

My questions (or at least most of them) are not rhetorical; I don’t have, and don’t expect others to have, hard and fast answers at the present time. But we all feel the predominantly adverse effects of the coronavirus as well as some very few aspects that shine a bit of light and bring us some small comfort. Thus, this could be just the right time for thinkers, scholars, talmedei chachamim, educators, experts, and religious, civil, and community leaders to begin to think seriously about a future that can regain the wonderful things we’ve lost over the past weeks while being more inclusive and open to all.

Scientists are desperately seeking to find a vaccine and cure for covid-19, and one of the places they’re looking is in the antibodies caused by the virus itself. Similarly, perhaps we can mitigate a few of society’s ills by using social antibodies arising from this plague. It won’t be a silver lining — the thunderclouds are too gray for that. But maybe we can at least find some sneakers to make us feel more comfortable.