September 11, 2008 1:40 PM

Bush Nominates Preska, Paragon of Patience, for Second Circuit Post

Posted by Brian Baxter

We here at The Am Law Daily were pleasantly surprised earlier this week when the Bush administration nominated Judge Loretta Preska from U.S. district court in Manhattan to serve on the U.S. Court of Appeals for the Second Circuit.

The nomination itself comes as little surprise given Preska's Federalist Society credentials, but about 14 months ago we had the distinct pleasure of serving as a juror in Preska's court in a civil case involving an incarcerated pro se plaintiff suing several corrections officers at New York's Riker's Island for alleged civil rights violations.

Preska's efficiency and patience in dealing with the plaintiff--who, observed from the jury box, appeared to be stark, raving mad--impressed us during the weeklong case. After we, the jury, returned a unanimous decision in favor of the corrections officers, Preska entered the jury room and explained why she chose not to dismiss the case despite the plaintiff's frequent outbursts and utter disregard for courtroom procedure. "Everyone," she said, "is entitled to their day in court."

Preska has received more publicity recently for her decision dismissing claims brought by a driving instructor and two etiquette teachers against makers of the comedy/documentary Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan. For those just back from a couple years in a cave, the enormously successful film starred an anti-Semitic "journalist" who traveled across the U.S. in pursuit of his dream girl: Pamela Anderson. The defendants claimed they were tricked into signing releases for interviews that subjected them to ridicule.

In her September 3 ruling that tossed the case--courtesy of How Appealing--Preska noted that those same defendants had also accepted money from filmmakers and signed agreements releasing them from any potential liability.

But Borat is not the only Preska decision to get tongues wagging. In August 2007 she issued a scathing sanctions order against several lawyers from New York's Cleary Gottlieb Steen & Hamilton, accusing them of showing "a willingness to operate in the murky area between zealous advocacy and improper conduct."

The case pitted Cleary's client, the Republic of Congo, against several distressed debt investors, also known as vulture funds. The Am Law Daily wondered in June whether Cleary had been "Swift-Boated" in the case.

Preska is married to Thomas Kavaler, a litigation partner at New York's Cahill Gordon & Reindel and a member of the firm's executive committee. And the Albany-born judge (as an aside, we too were born in the shadow of New York's beautiful upstate capital) stands by her man.

In March 2007 she refused to step down in a case involving the music industry even though her husband and Cahill Gordon had represented several music company defendants in related litigation.

"Granting the motion for recusal would clearly represent a waste of judicial resources of this court," Preska said in her ruling.

Now it looks like one of those resources, a valuable one at that, is moving on.

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