Monday, October 20, 2014

NY Court of Appeals: Cuomo Chooses Stein Over Graffeo (Part 1)

(Link to today's interview on Fred Dicker: Live at the State Capitol below)

Last Friday, Governor Andrew Cuomo made his selection for the Court of Appeals, New York's highest court.
He appointed a very fine judge, Leslie Stein, instead of re-appointing the very fine incumbent, Victoria Graffeo.

A Few things.

He did so 2 weeks after the law required him to do so. [See Judiciary. Law § 68 (1d) & (2).]
(This was discussed on New York Court Watcher in the previous post, Part 4 [The Guv's Delay].)

He did so by press release. Not a press conference. Not standing proudly with his nominee, introducing her to the citizens of the State, and underscoring how important--even momentous--nominations to the high Court are.
(I certainly recall Governor Mario Cuomo introducing his nominees. He understood the importance of the Court of Appeals and he held it in the highest esteem.)

He did so in the wake of public outcries, against the moderately conservative Judge Graffeo, by certain women's rights and gay rights groups, who suddenly became vocal during the Governor's 2 week delay.
(Whether the Governor caved in to the pressure of these outcries, or whether he or his cronies instigated the outcries themselves--and there are those who follow these things who are suggesting each of those possibilities--that would represent a level of politicizing nominations that hasn't been seen since Governor Pataki's shameful public bashing of the Court and his announced crusade to appoint "law and order" Judges.)

He did so with no explanation whatsoever why he was declining to reappoint Judge Graffeo--who was widely supported by members of the bench and bar, Democrats as well as Republicans.
(In doing so, he joined the rank of former Governor Pataki, who passed over Judge George Bundy Smith and, until now, was the only Governor to reject a sitting Court of Appeals Judge--let alone one so highly regarded.)

He did so appointing his 3rd Democrat--at the expense of bi-partisanship, and with the cost of depriving the Court of Appeals and the people of New York of the invaluable experience and wisdom of an exceptional judge--who happened to be a Republican.
(Sorry to sound like a broken record, but in doing so he again follows the lead of former Governor Pataki, who only nominated members of his own party: 5 nominations, 5 Republicans, 5 he chose to be "law and order" judges. And not at all like former Governor Mario Cuomo who appointed as many Republicans as Democrats, conservatives as well as liberals.)

In the long run, this last matter--together with caving to or instigating public outcries--is the most troubling. Are New York Governors henceforth going to follow the example of Presidents in their judicial nominations? Is the New York Court of Appeals going to be turned into the same kind of hyper-partisan disaster as the Supreme Court?

We know what has happened to the Supreme Court. Conservative Republican Presidents appoint conservative Republican Justices. Liberal Democratic Presidents appoint liberal Democratic Justices. The result? A hyper-partisan, hyper-ideological appointment process. And a Supreme Court deeply divided over--NOT judicial philosophy or some other legitimate judicial concern--but hyper-partisan, hyper-ideological disagreements.
(We've discussed this at length in New York Court Watcher. See e.g., Part 11: A Court of Shameless Partisans.)

So Republican Presidents appoint the likes of Justices Scalia, Thomas, Roberts, and Alito. Democratic Presidents appoint the likes of Justices Ginsburg, Breyer, Sotomayor, and Kagan. And on virtually every controversial issue, both groups vote along party/ideological lines.
(Only Justice Kennedy--the swing vote--breaks from the party line with some regularity.
And, oh, he was President Reagan's 3rd choice, much to the chagrin of conservative Republicans, after their 2 preferred choices embarrassed Reagan in the appointment process.)

Consider how predictably the Justices divide, along partisan lines, on the hot-button issues:
Religious freedom versus contraceptive coverage?
Campaign finance?
Gun rights?
Gay rights?
Reproductive rights?
Affirmative action?
Voting rights?
Death penalty?
Etc., etc., etc.

The dueling partisan, ideological appointments of consecutive Republican and liberal Democratic Presidents have led to a Court where the Justices--at least 8 out of 9--consistently vote as dueling partisan, ideological camps.

The Court of Appeals is much better than that.
Governor Mario Cuomo's nominations were much better than that--Republicans as well as Democrats, conservatives as well as liberals, etc., etc.
Governor Pataki's were not.
(Yes, Pataki nominees such as Victoria Graffeo developed into truly exceptional judges. But the basis of his nominations was partisan and ideological, and the Court and its reputation suffered for quite a while as a result.)

Thus far, particularly with his very disappointing decision not to reappoint Judge Graffeo, Governor Andrew Cuomo is behaving much more like Governor Pataki than the 1st Governor Cuomo.
If he continues on this path, and subsequent Governors behave likewise, the Court of Appeals risks degenerating into the hyper-partisan, hyper-ideological disaster that is the current state of the Supreme Court.

Next posts we'll look specifically at Judges Graffeo and Stein.

Meanwhile, here's my interview with Fred Dicker:

Fred Dicker: Live from the State Capitol!
MONDAY: ALBANY LAW SCHOOL PROF. VINCENT BONVENTRE, WHO PREDICTED THE RENOMINATION OF COURT OF APPEALS JUSTICE VICTORIA GRAFFEO, ON GOV. CUOMO'S SELECTION OF JUDGE LESLIE STEIN. 

Sunday, October 12, 2014

Part 4 [The Guv's Delay]--NY Court of Appeals: The List for the Graffeo Seat

As all Court watchers and political junkies in New York know, Governor Andrew Cuomo deliberately chose not to make his pick for the Court of Appeals by the deadline. Instead, on that day, Friday, October 3--the end of the 30-day period in which he was required to do so under the law--he announced on Susan Arbetter's Capitol Pressroom that he wouldn't. He would wait another 14 days.

The Guv said he was doing so to reduce the politics in the appointment process.

Monday, September 29, 2014

Part 3a [Correction]--NY Court of Appeals: The List for the Graffeo Seat

As now added to the previous post, Part 3, the Albany County Bar Association changed its rating of Preeta D. Bansal upon appeal from "Not Qualified" to "Qualified." As reported by Joel Stashenko in the New York Law Journal:
The Albany County Bar Association's list...initially found nominee Preeta Bansal to be "not qualified." But the group said its executive committee met...to hear an appeal of the rating made by its Court of Appeals Judicial Screening Committee and changed the assessment of Bansal to "qualified."
Albany County Bar Association President Peter Crummey did not return a call seeking an explanation for the group's change of heart.
(http://www.newyorklawjournal.com/id=1202670536794/All-Court-of-Appeals-Candidates-Deemed-Qualified)
Thanks to several readers of New York Court Watcher for providing that update.

Sunday, September 28, 2014

Part 3--NY Court of Appeals: The List for the Graffeo Seat

In the last post we looked at the 3 sitting judges on the nomination list for the Court of Appeals, New York's highest court. Let's now look at the non-judges--the remaining 4 names on the list.
(Again, I just feel like avoiding alphabetical order, so we'll look at them by descending age.)

Saturday, September 27, 2014

Part 2--NY Court of Appeals: The List for the Graffeo Seat

Governor Andrew Cuomo has 30 days from September 3--the date the Commission on Judicial Nomination presented him with its list of 7 names--to nominate one of them for New York's highest court, the Court of Appeals. So this coming Friday, October 3, is the deadline.

Let's take a quick look at the 7 candidates. We'll start with the judges on the list. (There had to be some order, and I just didn't feel like alphabetical.)