Wednesday, January 28, 2015

Supreme Court: Justices' Voting in Gay Rights Cases (Part 2)

So what can be gleaned from the list of gay rights decisions and the Justices' votes which we laid out in the last post? A few interesting facts emerge.

Of the 7 cases--from Bowers v Hardwick in 1986 to U.S. v Windsor in 2013--all but one resulted in a deeply divided Court. In that one exception, Hurley v Irish American Gay, Lesbian, and Bisexual Group (1995), the unanimous Court sided with the organizers of Boston's St. Patrick's Day Parade who, contrary to Massachusetts' anti-discrimination law, refused to permit openly gay and lesbian marchers.

In Hurley, Republican and Democratic Justices, conservatives and liberals, joined together to favor the expressive rights of parade organizers over the equal rights of gays and lesbians.

But that unanimity was an outlier. Typically--meaning, in all the other cases--there has been division, strongly worded dissents, bitterness separating the Justices.

There have been Justices who adamantly and consistently have opposed gay rights. Justices seemingly opposed to recognizing any gay rights or protections whatsoever. Not just when gay rights are in competition with the [apparently sacrosanct] rights of parade organizers.

So, Justices Scalia and Thomas--as well as Rehnquist while he was on the Court--have always voted against gay rights. They favored parades-as-free-speech over equal protection for gays and lesbians, just as the other Justices did, in Hurley. But they also sided with a state law that denied gays and lesbians the right to sue for discrimination (Romer v Evans). Sided with the Boy Scouts' claimed right of association to exclude gay troop leaders (Boy Scouts of America v Dale). Sided with state laws that made gay and lesbian intimacy a crime (Lawrence v Texas). Sided with a student religious group that refused to admit gay and lesbian members (Christian Legal Society [CLS] v Martinez). And sided with a federal law (i.e., the so-called Defense of Marriage Act [DOMA]) that denied any recognition and all marriage benefits to legally married same-sex couples (U.S. v Windsor).

In short, Scalia and Thomas--and Rehnquist while he was on the Court--have sided with whatever interest might have competed with or conflicted with the rights of gays and lesbians.

Among the more recently appointed Justices, Roberts and Alito have voted in 2 of the cases. In both, they opposed the assertion of gay rights. In CLS, they voted to support a student group's entitlement to state college benefits, despite the group's membership policy to exclude gays and lesbians. In Windsor, they approved DOMA's denial of federal recognition and benefits to state married same-sex couples.

Notably, all 5 of the aforementioned anti-gay rights voting Justices--Rehnquist, Scalia, Thomas, Roberts, and Alito--are Republicans, were appointed by Republican Presidents, and had worked in Republican administrations, Notably also, all of them have voting records that, as a whole, are strongly politically conservative.

On the other end of the spectrum, there's Justices Ginsburg and Breyer--as well as Stevens and Souter while they were on the Court. Other than in the unanimous Hurley (St. Patrick's Day parade) decision, these Justices voted to protect gay rights in every case in which they participated. So whether it was the state law denying gays and lesbians the right to sue (Romer), the Boy Scouts excluding gays as troop leaders (BSA v Dale), state laws criminalizing same-sex intimacy (Lawrence), the college group denying membership to gays and lesbians (CLS), or the federal law disqualifying legal same-sex marriages from federal recognition and benefits (Windsor), these Justices always supported equal protection and due process rights for gays and lesbians over the asserted opposing interests.

The most recently appointed members of the Court, Sotomayor and Kagan, have cast a total of only 3 votes between them in these cases. Sotomayor in CLS, and both Sotomayor and Kagan in Windsor. All 3 of those votes were cast in support of gay rights.

Justices Ginsburg, Breyer, Sotomayor, and Kagan are all Democrats, appointed by Democratic Presidents, and have voting records that overall are politically liberal--from moderately to strongly so.

As for Stevens and Souter, however, they are each Republicans who were appointed by Republican Presidents. But both of them compiled voting records that turned sharply politically liberal over the course of their tenures on the Court. They were reliable pro-gay rights votes.

Then there is Justice Kennedy. Other than in the Boy Scouts case, in which he voted with the Republican Justices to uphold the claimed associational right to exclude gay troop leaders, Kennedy has been with the liberal Justices in each case. So he supported gay rights against the state law denying gays and lesbians the right to sue for discrimination (Romer), against state laws criminalizing homosexual intimacy (Lawrence), against the student group that excluded gays and lesbians (CLS), and against the federal law denying recognition and benefits to same-sex marrieds (Windsor).

Ironically, Kennedy is not only a Republican whose overall record is at least moderately conservative, but he was appointed by Ronald Reagan, perhaps the most politically conservative Republican President in modern history. Beyond that, Kennedy has not only been a, if not the, deciding vote in cases supporting gay rights, but as Supreme Court watchers know, he has authored many of the majority opinions. And he has done so in grand, lofty language that certainly suggests that his support for gay rights is not tepid, but rather that he places gay rights alongside the nations' other great civil rights struggles.

To sum this all up, as it now stands the Court has 4 virtually certain votes to support a constitutional right to marry for same-sex couples. Yes, Ginsburg, Breyer, Sotomayor, and Kagan. To be sure, it would be a shock if any of them voted otherwise.

It also seems pretty reasonable to expect that Justice Kennedy will vote the same and, thus, assure a pro same-sex marriage majority. A contrary vote by Kennedy would not be as much of a shocker as would be such a vote by one of the 4 liberal Democratic Justices. Nevertheless, it is hard to imagine that Kennedy will suddenly halt the direction in which he has been a leader in taking the Court.

On the far opposite side of the Court's ideological spectrum, it is equally hard to imagine that Scalia or Thomas would suddenly switch course and support same-sex marriage. They have been utterly and vehemently unsympathetic to every claim of right by gays and lesbians. As already noted, those 2 have opposed gay rights in every case in which they've voted. They have, instead, found every and any asserted competing interest to be superior to equal protection and due process for gays and lesbians.

Similarly, if not identically, Roberts and Alito have thus far displayed little sympathy for gay rights. They have, however, participated in only the 2 most recent cases, CLS and Windsor. Of those two Justices, Alito's record seems the more conservative and traditional, and he will likely vote to uphold the right of states to ban same-sex marriage.

But, who knows. Alito's dissenting opinion in Windsor (the DOMA case) was more about whether the Court should go so far so soon while, in his view, the jury was still out about the societal ramifications of same-sex marriage. His argument might not have been terribly sympathetic to gay rights. But neither was it the sort of hateful, disingenuous anti-gay nonsense we've come to expect from others. So Alito's vote is likely a no on same-sex marriage, but a yes would not seem entirely out of the question.

As for Roberts, again, he has shown little sympathy for gay rights. But--and this is the critical but--does he want to go down in history as being on its wrong side? Does he want to go down in history as the Chief Justice who opposed what surely represents the inevitable progress of enlightened, free societies throughout the civilized world to recognize equal rights for gays and lesbians? Does he want to go down in history as the Chief Justice who opposed his own Court's march in that direction?

Roberts' political background, his clear ideological leanings, his voting record all say one thing: no to same-sex marriage. But his leadership, his reputation, his legacy--what history will say about "The Roberts Court"--suggest his support. We shall see.

Tuesday, January 27, 2015

Supreme Court: Justices' Voting in Gay Rights Cases (Part 1)

We'll return to Gov. Cuomo's two yet-to-be-confirmed nominees to New York's Court of Appeals. But first, last post's look at the party affiliation of gubernatorial appointees to the high court suggested a brief detour. Let's review the party affiliation and ideological leaning of the Supreme Court Justices' votes in cases involving equal treatment for gays and lesbians.

Everyone with the slightest interest in national politics is aware that the United States Supreme Court has agreed to decide the issue of same-sex marriage. Virtually every federal court to have confronted the issue has invalidated state bans on gay and lesbian marriages. These courts have all agreed that there is simply no legitimate reason for denying same-sex couples the same right to marry that is enjoyed by opposite sex couples.

One federal appeals court has recently decided otherwise. Now, with this newly arisen conflict among the federal courts, the Justices have agreed to settle the question for the entire country--i.e., do laws that prohibit same-sex marriage violate the federal constitutional guarantees of equal protection, or of due process, or of the right to marry? (Or, maybe, of the federal taxing power which Chief Justice Roberts dredged up to uphold Obamacare? Just kidding).

Of course, the answer to whether same-sex marriages are constitutionally protected depends upon 5 out of 9 votes. If 5 of the Justices vote that gay and lesbian couples have the same constitutional right as do straight couples, then that's what the Constitution guarantees. If 5 of them say the opposite, then the Constitution provides no such guarantee.

Sorry, but to borrow from Oliver Wendell Holmes, Constitutional law just ain't some brooding omnipresence already out there. In a nation with judicial review, and with the Supreme Court as the final arbiter of federal law, the Constitution is what a majority of the Justices say it is. And before the Court actually rules, constitutional law is--again to borrow from Holmes--little more than a prediction of what the Justices will do. Of course, it certainly helps to know the voting records.

So with that in mind, let's take a look at how the Justices have voted in previous cases dealing with gay equality issues. Specifically, as mentioned above, let's look at the party affiliation and overall ideological leaning (i.e., across all issues) of the Justices and their votes in those past decisions.

In the modern era, there have been 7 major cases in which the Supreme Court has ruled on some substantive question of equal treatment for gays and lesbians. (There may be other decisions. But I've tried to include all those--pro or con--that directly confronted an issue of discrimination on the basis of sexual orientation.)

Here they are, together with the Justices, their votes, and their party affiliations and overall ideological leanings:

Ruling: 5-4; states may criminalize homosexual intimacy.
(I hasten to add that this decision was rendered in Justice Byron White's shameful, hateful, dishonest opinion for the majority--one of the Court's all-time worst--based on his contemptuous and contemptible argument that there is no fundamental constitutional right to engage in "homosexual sodomy." It was explicitly overruled in Lawrence v Texas [see below].
Indeed, Justice Lewis Powell, who gave the majority its 5th and winning vote, later identified this vote as one of the mistakes of his career.)
Majority against gay rights:
Warren Burger (Republican [Nixon appointee], moderate conservative)
Byron White (Democrat [Kennedy appointee], moderate liberal/turned increasingly conservative)
Lewis Powell (Democrat [Nixon appointee], moderate conservative/Court centrist)
William Rehnquist (Republican [Nixon appointee], conservative)
Sandra Day O'Connor (Republican [Reagan appointee], moderate conservative)
Dissent for gay rights:
William Brennan (Democrat [Eisenhower appointee], liberal)
Thurgood Marshall (Democrat [Johnson appointee], liberal)
Harry Blackmun (Republican [Nixon appointee], moderate conservative/turned liberal)
John Paul Stevens (Republican [Ford appointee], moderate conservative/turned liberal)

Ruling: 9-0; state anti-discrimination law cannot be enforced against private parade organizers who wish to exclude openly gay participants.
Unanimous vote against gay rights:
William Rehnquist (Rep [Nixon/Reagan], conservative)
John Paul Stevens (Rep [Ford], moderate conservative/turned liberal)
Sandra Day O'Connor (Rep [Reagan], moderate conservative/Court centrist)
Antonin Scalia (Rep [Reagan], conservative)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
David Souter (Rep [Bush Sr.], liberal)
Clarence Thomas (Rep [Bush Sr.], conservative)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)

ROMER v EVANS (1996)
Ruling: 6-3; states may not deny gays and lesbians the right to sue against discrimination.
Majority for gay rights:
John Paul Stevens (Rep [Ford], moderate conservative/turned liberal)
Sandra Day O'Connor (Rep [Reagan], moderate conservative/Court centrist)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
David Souter (Rep [Bush Sr.], liberal)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
Dissent against gay rights:
William Rehnquist (Rep [Nixon/Reagan], conservative)
Antonin Scalia (Rep [Reagan], conservative)
Clarence Thomas (Rep [Bush Sr.], conservative)

Ruling: 5-4; state anti-discrimination law cannot be enforced against Boy Scouts who wish to exclude gays as troop leaders.
Majority against gay rights:
William Rehnquist (Rep [Nixon/Reagan], conservative)
Sandra Day O'Connor (Rep [Reagan], moderate conservative/Court centrist)
Antonin Scalia (Rep [Reagan], conservative)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
Clarence Thomas (Rep [Bush Sr.], conservative)
Dissent for gay rights:
John Paul Stevens (Rep [Ford], moderate conservative/liberal)
David Souter (Rep [Bush Sr.], liberal)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)

Ruling: 6-3; states may not criminalize homosexual intimacy--overruling Bowers v Hardwick.
Majority for gay rights:
John Paul Stevens (Rep [Ford], moderate conservative/turned liberal)
Sandra Day O'Connor (Rep [Reagan], moderate conservative/Court centrist)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
David Souter (Rep [Bush Sr.], liberal)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
Dissent against gay rights:
William Rehnquist (Rep [Nixon/Reagan], conservative)
Antonin Scalia (Rep [Reagan], conservative)
Clarence Thomas (Rep [Bush Sr.], conservative)

Ruling; 5-4; a state college may deny recognition and benefits to a student religious group that excludes gay and lesbian students from membership.
Majority for gay rights:
John Paul Stevens (Rep [Ford], moderate conservative/turned liberal)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
Sonia Sotomayor (Dem [Obama], liberal)
Dissent against gay rights:
John Roberts (Rep [Bush Jr.], conservative)
Antonin Scalia (Rep [Reagan], conservative)
Clarence Thomas (Rep [Bush Sr.], conservative)
Samuel Alito (Rep [Bush Jr.], conservative)

U.S. v WINDSOR (2013)
Ruling: 5-4; federal law ("Defense of Marriage Act") may not deny federal marriage benefits to legally married same-sex couples.
Majority for gay rights:
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
Sonia Sotomayor (Dem [Obama], liberal)
Elena Kagan (Dem [Obama], liberal
Dissent against gay rights:
John Roberts (Rep [Bush Jr.], conservative)
Antonin Scalia (Rep [Reagan], conservative)
Clarence Thomas (Rep [Bush Sr.], conservative)
Samuel Alito (Rep [Bush Jr.], conservative)

(I have not included Hollingsworth v Perry [2013]--the case involving California's Proposition 8--despite the ultimate consequences of the Court's decision, because the ruling was based on the procedural/jurisdictional concept of standing, not on any substantive question of gay rights.)

Well there are the 7 major gay rights cases, spanning a 30 year period of Supreme Court decision-making.
Anything to glean from the foregoing?
Numbers, patterns, implications?

In the next post, we'll see what we see, as well as what we might be seeing.

Saturday, January 24, 2015

NYCOA: Cuomo's Latest Two Nominees (Part 2--Some Perspective)

Governor Andrew Cuomo has now nominated 4 Judges for New York's 7-member Court of Appeals. Hence, if Appellate Division [The state's mid-level appeals court.] Justices Leslie Stein and Eugene Fahey are confirmed by the state's Senate, as is widely expected, this Governor will have appointed a majority of New York's high court.

Selection by appointment was adopted for the state's high court Judges in 1977--thus ending the previous system of partisan elections. Since then, 3 Governors have had the opportunity to appoint a majority of the Court's sitting members. Those 3 are Mario Cuomo, George Pataki, and now Andrew Cuomo.

Let's take a look at their appointments.

Mario Cuomo
Richard Simons (Republican, Upstate)
Judith Kaye (Democrat, NYC) [Assoc. Judge & Chief Judge]
Sol Wachtler (Republican, L.I.) [elevated to Chief Judge]
Fritz Alexander (Democrat, NYC)
Vito Titone (Democrat, NYC)
Stewart Hancock (Republican, Upstate)
Joseph Bellacosa (conservative independent. Upstate/NYC)
George Bundy Smith (Democrat, NYC)
Howard Levine (Republican. Upstate)
Carmen Ciparick (Democrat. NYC)

George Pataki
Richard Wesley (Republican. Upstate)
Albert Rosenblatt (Republican. Upstate)
Victoria Graffeo (Republican. Upstate)
Susan Read (Republican. Upstate)
Robert Smith (Republican. NYC)
Eugene Pigott (Republican. Upstate)

Andrew Cuomo
Jenny Rivera (Democrat. NYC)
Sheila Abdus-Salaam (Democrat. NYC)
Leslie Stein (Democrat. Upstate)
Eugene Fahey (Democrat. Upstate)

Governor Mario Cuomo's nominations were truly diverse. Not only by gender, race, ethnicity, and geography, but by political party as well. Indeed, even the ideological diversity of his appointees could hardly have been more pronounced.
Regarding the latter, there was Vito Titone and Carmen Ciparick, both Democrats and both compiled unmistakably liberal records. Then there was Richard Simons and Joseph Bellacosa, one Republican and one independent, but both had records just as unmistakably conservative.

Governor George Pataki's nominees, by sharp contrast and design, were a veritable sea of red. Expressly insistent on placing tougher law and order Judges on the Court, he appointed all Republicans. Beyond that, his 6 appointees have, in fact, all been at least somewhat ideologically conservative. They have ranged from the  moderately so, such as Albert Rosenblatt, to the more staunchly and consistently so, such as Susan Read.

Governor Andrew Cuomo's nominees, as we have noted on other occasions, have all been Democrats. The pattern of his 4 nominees to date has been more like Pataki's than like his father's. Partisan uniformity. Political homogeneity. All 4 the same political party. All 4 at least somewhat liberal--from moderately so to very much so.

Let me be clear. Andrew Cuomo's nominees will likely vote more like I prefer, and like I would, than the Republicans appointed either by his father or by Pataki generally would. I will most likely be delighted by the increasing protection of the rights of the accused, the worker, women, minorities, and the environment--to name just a few matters--that can be expected with a Democratic majority on the Court.
(And I'll go further: there are other Democrats I would love to see appointed to the Court.)

But there is a danger in politically uniform appointments, in appointments along party lines. A variety of perspectives--political, ideological, philosophical, etc., etc.--is always healthy. Some balance. Some variety. A mix.

Not a "mix" like the U.S. Supreme Court. No, not like that. Not like the Supreme Court with both major political parties represented in almost equal number, but each side so resolutely one sided, closed-minded, bitter and blind to the merits of the other. Republican presidents appointing intensely conservative ideologues. Democratic presidents appointing equally intense liberals. No, that's a recipe for disaster. And, sure enough, that's what the Supreme Court is today.

But if Republican governors are intent on appointing only conservative Republican Judges, and Democratic governors respond by appointing only liberal Democratic ones--if the Governors of New York persist in a pattern of  back-and-forth political party purity, instead of following the example that had been set by Mario Cuomo--then New York's esteemed high court risks going the way of the extremely polarized and indisputably mediocre Supreme Court. A court that is hopelessly and predictably (if not robotically) divided on most tough issues along political party lines.

One last point about all this.
Consider the Republican Judges placed on the Court of Appeals by liberal Democrat Mario Cuomo.
Consider Richard Simons. Stewart Hancock. Howard Levine.
These were all extraordinarily fine Judges.
Those who follow the Court of Appeals--whether Democrat or Republican, liberal or conservative, Upstate or Downstate--understand that these are some of the most highly and widely admired Judges to have sat on our high court in the last few generations.

Consider too: Democratic President Woodrow Wilson appointed Republican Louis Brandeis to the Supreme Court.
Republican Herbert Hoover appointed Democrat Benjamin Cardozo.
Republican Richard Nixon appointed Democrat Lewis Powell.
In the eyes of many, those were among the finest acts of those presidents.

Democrat Mario Cuomo's appointments of Republican Judges Simons, Hancock, and Levine were, likewise, among the finest acts of his governorship.
Many of us court watchers--perhaps, particularly those of us who have worked at the Court, who as New Yorkers are proud of it, and who view it as historically one of the truly fine institutions of this state and, indeed, of the nation--would hope to see the example of Governor Mario Cuomo's non-partisanship in appointments become more the rule than the exception.

In the next installment of this series, we'll see what can be made of nominee Leslie Stein's record while on the Appellate Division.

Monday, January 19, 2015

NYCOA: Cuomo's Latest Two Nominees (Part 1--Common Denominators)

End of semester, exams, grading, Christmas, and away for the break. Yes, it's more than time to return to New York Court Watcher.

Justice Leslie Stein
As everyone knows who follows New York's highest court, or New York's Governor, or New York's government generally, or the news from one of New York's dailies or news stations, Governor Andrew Cuomo has nominated two more individuals for seats on the Court of Appeals.

In October, he nominated Leslie Stein to replace Victoria Graffeo, whose 14 year term had expired--though she was still eligible for reappointment. Then, a few days ago, he nominated Eugene Fahey to replace Robert Smith, whose tenure on the Court came to an end as a result of New York's (yes, moronic) age-70 mandatory  retirement.
Justice Eugene Fahey

As of today, the Senate has yet to schedule confirmation hearings for either nominee. Under the state's Judiciary Law, the Senate has 30 days from the date of a nomination to confirm or reject the governor's pick. So the Senate must act on the Fahey nomination by mid-February. With regard to Stein, the legal deadline for confirming or rejecting her has long since passed--albeit without any legal consequence under the governing statute. (See NYCOA: Vacancies and (no) Vouch-Ins, 12/16/2014; and Karen DeWitt, Senate To Miss Deadline to Approve Court Pick, 11/14/14.)

Ultimately, the Senate Judiciary Committee will conduct hearings for each nominee. By all accounts and reactions of the senators who have commented, both Stein and Fahey will--and should--be confirmed.

Before we examine the records of the two nominees and see if any conclusions--e.g., leanings, predictions, etc.--can be drawn, let's consider what these two represent. Specifically, there are some credentials and traits shared by these nominees, as well as some common characteristics and ramifications in the nominations themselves.

Here are a few of the more notable:
Both Stein and Fahey have plenty of judicial experience.
Both have experience as both trial and appellate judges.
Both successfully ran for election to the trial bench.
Both were serving on the Appellate Division, the state's intermediate appellate court, when nominated for the Court of Appeals.

Both are Upstaters.
(To Downstaters, they come from somewhere other than the NYC Metropolitan Area and Long Island. To Upstaters, they come from the Capital Region [Albany area] and Western New York [specifically Buffalo], respectively.)
Both attended law school Upstate--i.e., Albany Law School and SUNY Buffalo, respectively.

Both served as confidential judicial law clerks early in their careers.
Both then engaged in private practice before being elected to the bench.

Both are Democrats.
Both--presuming confirmation--are replacing Republican Judges.
Both are replacing appointees of Gov. George Pataki.
Both are replacing Republican Pataki appointees who, in turn, had replaced a Republican Judge or a very conservative "independent" Judge.

Both, in short, are taking seats on the Court that have not been held by a Democrat in a very long time.
Both will contribute to making a Democratic majority on the Court for the first time since the first term of Gov. Pataki.
Both will contribute to a 5-2 Democratic edge on the Court for the first time since the Court of Appeals appointment system was adopted in 1977.
Both will contribute, in fact, to the first 5-2 Democratic edge on the Court in modern history--whether selection was by appointment or election.

So, these are some of the common denominators and some of the consequences of Gov. Andrew Cuomo's two latest nominations to New York's high court. We will look more closely at each of the two nominees in forthcoming posts in this series.

In the very next post, however, we will look at the composition of the Court--again, presuming Stein and Fahey will be confirmed. More specifically, we will review the appointments of each of the Court's 7 Judges, who appointed them, who they replaced, who appointed the Judges they replaced, and the political affiliation of each Judge and of the Judge that was replaced.

Tuesday, December 16, 2014

NYCOA: Vacancies and (no) Vouch-Ins

Come the new year, New York's highest court will be 2 Judges short. That is, in the absence of the Governor and the Senate near-miraculously completing their respective nominating and confirming duties, the Court of Appeals will begin 2015 with only 5 of its 7 seats filled.

As we've been discussing, Judge Victoria Graffeo's 14-year term expired in late November. Governor Andrew Cuomo disregarded the legal deadline. He took an extra 2 weeks to render his nomination decision. (I.e., deciding not to reappoint Graffeo and, instead, to nominate Appellate Division Justice Leslie Stein.) The Senate, apparently having as little regard for the law as the Governor did and, perhaps, even less, is now 4 weeks past its legal deadline. It has yet to hold or even schedule confirmation proceedings. (The Senate Judiciary Committee's website currently states: "This committee currently does not have any public events scheduled." So who knows?)

That's one of the vacancies. Then there's number two.

Judge Robert Smith turned 70 this year. Under New York's [yes, moronic] mandatory age-retirement law, he is automatically removed from the Court at midnight on December 31. The Commission on Judicial Nomination has already submitted its 7-name list of possible replacements to the Governor. (Oh, the Commission has actually been abiding by the Judiciary Law's deadline.) The Governor now is legally required to make his nomination pick from that list between the 1st and 15th of January. The Senate then has 30 days to confirm or reject the Governor's choice.

Soooo, again, short of a political and logistical miracle, New Year's day will arrive with a 5-member Court of Appeals. (See/listen, interview with Karen DeWitt: New York's Highest Court Begins New Year Down Two Judges, Dec. 2, 2015. Also see the correction at the end of this post.)

Now it is true, the Court can technically function with only 5 members. Under the state constitution, 5 Judges is a quorum, and a decision can be rendered as long as 4 Judges agree on a disposition.

But any such quorum and any such decisions are reached without the perspectives and insights that the 2 missing Judges would provide. Worse than that, any case resulting in a 3-2 split--i.e., any case with 2 Judges disagreeing with the majority--is a case without a decision.

Yes, the lack of a 4-Judge majority precludes a decision. And no, the Court may not vouch-in a judge or judges from another court to insure that some 4-Judge majority is reached.

The state constitution does authorize the Court to "designate" a judge from a lower court (i.e., state supreme [trial court] or the Appellate Division [intermediate appeals court]) under certain circumstances. But not  to remedy an actual vacancy on the Court. Not when a position on the Court is actually unfilled. Not, for example, when a Judge on the Court has retired, resigned, or died, or whose term has expired. No. No vouching-in, or designating, under those circumstances. (NY Const Art. VI, sec. 2 a.) Hence, no vouching-in or designating to temporarily remedy the 5-Judge Court.

The constitution does authorize the Court to vouch-in, or designate, but only when there is a "temporary absence" of a current member of the Court. For example, if one of the Court of Appeals Judges had to recuse herself from a case, or was too ill or otherwise unable to participate temporarily, then a judge from outside the Court could be "designated" to sit in that absent Judge's place. That is a very different scenario than what the Court of Appeals is now facing.

The long and the short of all this is that, come the new year, the Court will not be able to vouch-in, or "designate," some other judge or judges to temporarily compensate for the 1 or 2 existing vacancies. So until the Governor and the Senate fulfill their duties under the state constitution to complete the appointment of 2 new Judges to the Court of Appeals, New York's high court will be shorthanded.

Correction: To the extent I misspoke on air about the Court vouching-in a judge or judges to temporarily fill the vacancy or vacancies--i.e., saying that the Court could do so under these circumstances--I trust the foregoing clarifies the matter. 
I don't want to sound like a court that's trying to distance itself from--or overrule--its own prior decision without simply admitting that it was wrong. So, more plainly, I was mistaken--as in simply wrong--about the vouching-in ability of the Court and I stand corrected.
When I observed such vouching-in, or "designating," while clerking at the Court of Appeals, the circumstances apparently involved the "temporary absence" of one of the Judges--not an actual vacancy.