Friday, June 16, 2017

Gov. Cuomo Picks Justice Paul Feinman for the High Court

Yesterday, Thursday June 15, 2017, Governor Andrew Cuomo announced that he will nominate Paul G. Feinman to serve on New York's Highest Court. Feinman is currently a Justice on the state's intermediate court, the Appellate Division, and specifically the First Department which sits in Manhattan.
Feinman had been elevated to the Appellate Division by Cuomo in 2012. He was the first openly gay man to sit on that court and, if confirmed by the state senate, he will be the fist openly gay Judge on the Court of Appeals.
(At this time, the Senate Judiciary Committee has not yet scheduled a hearing. The Senate itself finishes its session and departs next Wednesday, June 21.)

Feinman was selected by Cuomo from the list of seven provided to the Governor two weeks ago by the Commission on Judicial Nomination. At the Governor's urging, the Commission completed its business in very short order. Beginning April 14, upon the official notification of the vacancy created by the sudden death of Judge Sheila Abdus-Salaam, the Commission began soliciting applicants, conducting interviews, and producing a list of possible nominees. Instead of the statutory allowance of 120 days, the Commission finished its work in just 1 1/2 months.

Justice Feinman is a graduate of Columbia University and the University of Minnesota Law School. He spent the fist several years of his with the Legal Aid Society of Nassau County and New York. He then served several years as a law clerk to a judge who sat on state Supreme Court (i.e., trial court) and then on the Appellate Division.

In 1996 he was elected to NYC Civil Court and was reelected in 2006. In 2004, he was selected by then-Chief Judge Jonathan Lippman to serve as an Acting Justice of  Supreme Court (highest trial court) Three years later, he was elected to that court and, in 2012, Governor Cuomo elevated him to be a Justice of the Appellate Division.

In short, Feinman has spent a career in government, all of it arguing or serving in and on courts. Beyond that, he has been very active in judicial and bar groups. He has, for example, served as the president and then chair of the supreme court justices association, and as the president of LGBT bar and judicial groups.

Feinman is 57 years old, born in January 1960. Under New York's (moronic) mandatory age-70 retirement for Court of Appeals Judges, he will be able to serve for 13 years of the full 14 year term, retiring at the end of 2030.

Notably, if and when Justice Feinman is confirmed, the composition of the Court of Appeals will include:
1 African-American Judge (Judge Rowan Wilson),
2 Hispanic Judges (Judges Jenny Rivera and Michael Garcia),
3 Women (Chief Judge Janet DiFiore and Judges Rivera and Leslie Stein),
1 Openly Gay Judge (Judge Feinman),
2 Upstaters (Judges Stein [the Capital Region] and Eugene Fahey [Buffalo]),
2 From New York City (Judges Rivera and Feinman [Also, Judge Garcia was born in the City and nominee Wilson works there.]),
2 Who live just north of the City in Westchester County (Chief Judge DiFiore and Judge Garcia),
1 Who lives on Long Island (nominee Wilson),
3 Who were appellate judges (Judges Stein, Fahey, and Feinman),
4 With experience as trial judges (Chief Judge DiFiore and Judges Stein, Fahey, and Feinman),
2 From private practice (Judge Garcia and Wilson),
2 Prosecutors who ran prosecutorial offices (Chief Judge DiFiore [Westchester County District Attorney] and Judge Garcia [U.S. Attorney for the Southern District of New York]),
1 Academic (Judge Rivera),
6 Different law schools (St. John's [DiFiore], Columbia [Abdus-Salaam], Albany [Stein and Garcia], SUNY Buffalo [Fahey], Harvard [Wilson]), and Minnesota [Feinman],
1 Italian-American (Chief Judge DiFiore), 1 Puerto Rican-American (Judge Rivera), 2 Jewish-Americans (Judges Stein  and Feinman), 1 Irish-American (Judge Fahey),
1 Republican (Judge Garcia),
6 Democrats (All the rest).

Saturday, June 3, 2017

The Court of Appeals List: The Commission's Recommendations for the Abdus-Salaam Vacancy

The New York Commission on Judicial Nomination released its list of recommended candidates for the state's highest court. Seven names were presented to Governor Andrew Cuomo this past Thursday. He must select from that list to fill the vacancy on the Court of Appeals created by the tragic death in April of Judge Sheila Abdus-Salaam.

By state law, the Governor must make his choice no later than 30 days from when he received the list. The state senate must then act on his nominee, hopefully--as the Governor has made clear he would like--before the close of the legislative session at the end of this month.

As for the list itself, it is another fine one. It continues what has become customary for the Commission to produce strong lists This became especially true in recent years when former Chief Judge Judith Kaye assumed the position of Chair and added considerable gravitas, energy and insight to the application process.

With Kaye now deceased, the interim Chair, Leo Milonas--former Chief Administrative Judge of the New York State court system, former Appellate Division Justice, former president of the New York City Bar Association, etc. etc.--has by all accounts taken that legacy quite seriously. Together with a staff that includes the highly regarded Henry Greenberg as Counsel (notably, among many other things, a former law clerk to Kaye), the Commission would seem to be in very good hands indeed. And that is very good news for our high court.

Now what about that list?

Ok, here are the seven individuals:
(Photo from the New York Law Journal, "Commission Names 7 Potential Nominees for Court of Appeals," by Andrew Denney, June 1, 2017.)
(click to enlarge)

In alphabetical order (and in the photo clockwise from upper left):
Eric O. Corngold, Esq., Friedman Kaplan Seiler & Adelman LLP (Manhattan)
Paul G. Feinman, Justice, Appellate Division, 1st Department (Manhattan)
Judith J. Gische, Justice, Appellate Division, 1st Department (Manhattan)
Rosalyn H. Richter, Justice, Appellate Division, 1st Department (Manhattan)
Mary Kay Vyskocil, U.S. Bankruptcy Court Judge (Manhattan)
Troy Karen Webber, Justice, Appellate Division, 1st Department (Manhattan)
Gerald J. Whalen, Presiding Justice, Appellate Division, 4th Department (Rochester & Buffalo)

Here's another way to break down the list:
  • Current Judges, 6: all but Corngold
  • Current appellate judges, 5 : Feinman, Gische, Richter, Webber, Whalen
  • Judicial career (20+ years), 4: Feinman, Gische, Richter, Webber
  • Current private practice, 1: Corngold
  • Private practice career (20+ years), 3: Corngold, Vyskocil, Whalen
  • Manhattan, 6: all but Whalen
  • I.e., Upstate, 1: Whalen
  • Women, 4: Gische, Richter, Vyskocil, Webber
  • African-American, 1: Webber
  • Republican, 1: Vyskocil
  • Openly Gay/Lesbian, 2: Feinman, Richter
  • Physically disabled, 1: Richter
  • Law Schools:
    • Brooklyn (Richter [Go BLS!])
    • Buffalo (Gische & Whalen)
    • Minnesota (Feinman)
    • NYU (Webber)
    • St. John's (Vyskocil)
    • Yale (Corngold)
Quite a diverse group. Certainly quite a contrast from what we see at the Supreme Court. And diversity has been a real strength at the Court of Appeals. It is for any high court.

The members of such courts, whether the Court of Appeals or some other state's highest court or the U.S. Supreme Court, simply cannot escape exercising judgement when deciding the close, policy-laden cases that come before them. These are cases where there are strong legal reasons for both--or all--sides. Where the plain words of some legal provision or the judicial precedents do not dictate a particular result. Where the judges judgements must be exercised to pick and choose and thus to decide how to resolve the issues.

In this type of an enterprise, i.e., appellate decision-making on a court of last resort, diversity is a huge plus. Different backgrounds, schools, careers, experiences, perspectives, deeply held beliefs and values all come into play and all contribute mightily to a wiser, more knowledgeable and insightful result. Stated otherwise, they help to avoid more narrow-minded, more ignorant decisions.

Now politically speaking, sure, would a governor like Andrew Cuomo like to please constituents and even make history with his selection? Of course! (Just like a governor in a much more homogeneous state or a president with a "traditional-values" base would want to appeal to their constituents.)

So let's suppose that Governor Cuomo looks at the list given to him by the Commission and does decide to widen the Court of Appeals' diversity. He also decides that he'd like to make history. Now, no matter who he chooses from among the seven names, that individual will have an impressive resume and comes to him well-regarded and recommended by the independent commission. He can hardly go wrong.

So let's say the Governor goes with selecting the first openly gay judge for the high court. Suppose, for example, he chooses Rosalyn Richter. (Among other reasons, I use her as an example because we are fellow alums of Brooklyn Law. I don't know her personally, but by reputation.) If the Governor were to do so, no doubt some would scoff at the selection as being based solely on Richter's being gay or disabled or both. Also no doubt, others would praise the Governor for doing just that. And further no doubt, the Governor would have scored some political points for enhancing the Court's diversity and for making history.

But beyond all that, or perhaps prior to all that, Judge Richter does have a strong reputation as being a very smart, conscientious, and gutsy judge and, by all accounts relayed to me, would be a very fine choice.

The point of this is not to single out Rosalyn Richter (although, again, I did use her as an example because of our Brooklyn Law connection)Rather, it is to endorse the quality and diversity of the Commission's list, the quality and diversity of the current Court of Appeals owing to previous lists and this Governor's selections, and the continued enhancing of both quality and diversity on our high court.

Saturday, May 13, 2017

Gorsuch--Yes, Backward and Extreme (Part 3--Criminal Justice)

We've seen how the Scalia-esque approach to judicial decision-making avowed by now-Justice Gorsuch would have precluded cherished landmarks in American history. [See Part 2; Part 1.] His "focusing backward, not forward," insisting on what constitutional provisions specifically meant "at the time" they were drafted and ratified, is directly at odds with the vigorous enforcement of the overarching, fundamental principles at the heart of those provisions.

We've discussed how that Gorsuch-Scalia approach to constitutional decision-making has been employed to fight, and then to condemn, virtually every advance in the fulfillment of equal protection, of due process, and of freedom from government intrusion into private matters. Indeed, virtually every cherished advance in the protection of our civil rights and liberties.

The same is true for the rights of the accused. Those fundamental rights in our criminal justice system which we now take for granted.

Most of those cherished criminal justice rights became protected because of landmark decisions that rejected traditional, "focusing-backward" practices that were based on what the Constitution was believed to permit "at the time." In those landmarks, the Gorsuch-Scalia jurisprudence--many will object to even calling it "jurisprudence"--was repeatedly rejected in the interests of much higher constitutional values.

Of course, most of those who espouse that Gorsuch "backward-looking," "at the time" approach are actually far too embarrassed to denounce those landmarks today. But their ilk did exactly that when those landmarks were being considered and decided. And they condemned those advances in criminal justice--and some still do--using the same so-called "originalist-textualist" arguments embraced by Gorsuch and Scalia.

Here are a few of those advances in criminal justice:
  • The right to have an attorney when being criminally prosecuted, even if poor and can't afford one--the Supreme Court in Gideon v. Wainwright (1962) ruled that such a right to counsel is a constitutional guarantee because of the “noble ideal [of] fair trials," despite the absence of any specific mention in either the 6th Amendment (federal trials) or the 14th Amendment (state trials) about providing the poor with a lawyer, and despite precedent to the contrary.
  • The right to be protected from unreasonable searches into our private lives--the Court in Katz v. U.S. (1967) held that constitutional search and seizure rights protected our legitimate privacy interests, not just those very few specific places and items that happen to be mentioned in the 4th Amendment; and the Court overruled "originalist-textualist" decisions to the contrary.
  • The right to a jury trial in criminal cases--the Court in Duncan v. Louisiana (1968) ruled that to be a constitutionally guaranteed option for an accused as a necessary protection against sometimes overzealous prosecutors and callous judges; the Court overruled precedent and disregarded the absence of any specific words or meaning of words in the 14th Amendment (state trials) about guaranteeing jury trials.
  • The rights against against compulsory self-incrimination and double jeopardy--in Malloy v. Hogan (1964) and Benton v. Maryland (1969), respectively, the Court overruled a line of precedents and ruled that those rights were constitutionally guaranteed because they were among the "principles of a free government" and "fundamental to the American scheme of justice," even though those rights were not identified and not specifically meant by the words of the 14th Amendment (state trials).
  • The right to be informed of one's rights to silence and to an attorney before being interrogated--the Court in Miranda v. Arizona (1966) required the recitation of the now well known Miranda warnings to insure that persons being interrogated understood the constitutional rights they were being asked to waive; there is no mention of such warnings anywhere in the Constitution and such warnings were not intended by any words in the relevant 5th, 6th, or 14th Amendments.
  • The prosecution must prove guilt beyond a reasonable doubt--the Court in In re Winship (1970) explicitly adopted the very protective reasonable doubt standard for criminal trials, even though not explicitly stated in the Constitution or explicitly meant by the words "due process" in the 5th (federal trials) or 14th (state trials) Amendments; the Court did so because of "a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."
  • The right to take the stand and testify on one's own behalf in a criminal prosecution--in Rock v. Arkansas (1987), the Court held that the Constitution guaranteed that right because "There is no justification today for a rule that denies an accused the opportunity to offer his own testimony [my emphasis]," notwithstanding the absence of any mention of such a right in the Constitution, and despite the historical, "at the time" refusal to permit accused persons to testify at their own trials.
Each one of these criminal justice landmarks and countless others were possible because the Supreme Court avoided the Gorsuch approach. Instead of simply "focusing-backward" and applying what the words specifically meant "at the time" they were enacted, the Court gave life to the broader principles of justice, equity, and decency that underlie the constitutional provisions dealing with the rights of the accused. In fact, the "focusing-backward," "at the time," so-called "originalist-textualist" arguments were used to oppose those landmarks and are still used today to denounce, disparage, dilute, or try to undo some of them.

Should we go back, before these landmarks, before the right to counsel was enforced in Gideon? Or privacy in Katz? Or protections against double jeopardy and against compulsory self-incrimination as in Malloy and Benton? Etc., etc.

And what about advances in the future? Improvements and greater fulfillment of fundamental constitutional principles? Do we really want to forego that?

Well, that going back and foregoing advances is precisely the meaning and heritage of the Gorsuch-Scalia  "focusing-backward," "at the time," so-called "originalist-textualist" approach to constitutional decision-making.

Next in this series, we'll look at some of the actual decisions and opinions authored by now-Justice Gorsuch while he was an appeals court judge.

Monday, May 8, 2017

Gorsuch--Yes, Backward and Extreme (Part 2)

It's now Justice Neil Gorsuch, having been confirmed by the Senate following the Republicans' deployment of the nuclear option. I've been tied up with (over)commitments--not that I could have affected the outcome--but let's continue with this series because Gorsuch's record is at least as important now as it was when he was a nominee.

We saw how Judge, now Justice Gorsuch's avowed approach to judicial decision-making is "focusing backward, not forward." It's viewing constitutional rights in accordance with "what a reasonable reader at the time...would have understood the law to be." Judicial decision-making is "not a forward-looking but a backward-looking authority." Those are his words. That is his judicial creed. That is what he has reaffirmed repeatedly in speeches and writings, and applied in cases.

At first blush, Gorsuch's approach might sound perfectly reasonable. You know, it's a specie of the bromide that "judges should just apply the law and not make it." But any thoughtful consideration exposes Gorsuch's judicial creed as drastically reactionary. As a prescription for undoing our nation's cherished advances in fundamental constitutional protections.

That is no exaggeration. That is just plain fact and history. That might be his and others' preference. But that is what it is.

Gorsuch's judicial creed, which had been famously professed by his predecessor, Antonin Scalia, is part of a tradition that has opposed constitutional advances and has condemned those advances after they have been made. Yes, opposed them and condemned them--at least until those advances have become part of our culture, a cherished part of our culture, and to oppose them any longer is too embarrassing.

So, for  example, as mentioned previously [See Part 1.], the Gorsuch-Scalia creed would have precluded the landmark protections of equal rights for African-Americans, for women, for gays and lesbians, etc. Consider again the consequences if the Supreme Court had adopted the Gorsuch-Scalia approach to decision-making--i.e., looking "backward" to what the constitutional provisions meant "at the time":

  •  Racial segregation would have been upheld, not outlawed--the Supreme Court in Brown v. Board of Education (1954) deliberately re-construed the 14th Amendment to prohibit segregation, contrary to what had long been permitted and to what that amendment meant "at the time" it was ratified in 1868.
  • State laws preventing women from owning property or running a business or going to law school, etc., would have been upheld, not overruled--the Supreme Court in Reed v. Reed (1971) extended "equal protection" beyond what it meant "at the time" of ratification and invalidated laws that treated men better than women.
  • State laws that discriminated against and even criminally punished gays and lesbians would have been upheld, not declared unconstitutional--the Supreme Court in Lawrence v. Texas (2003) held that "equal protection" and "due process" protected gays and lesbians, even though those constitutional provisions certainly did not mean that "at the time."
  • And so many others, such as Loving v. Virginia (1967) [invalidating laws that prohibited inter-racial marriage]; Griswold v. Connecticut (1965) [invalidating laws that prohibited birth control]; Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung (1964) [upholding civil rights laws that prohibit racial discrimination in privately owned lodging and restaurants]; West Virginia v. Barnette (1943) [upholding the right of religious-objecting Jehovah Witnesses not to salute the flag].
In every one of those landmark cases, and so many others, the Supreme Court rejected the Gorsuch-Scalia approach. Instead of confining constitutional provisions to what might have been their narrow, specific meanings "at the time" they were written and ratified, the Court gave life to the overriding, fundamental principles that those provisions reflected.

So the 14th Amendment's guarantee of "equal protection" in those cherished landmarks was not confined to "separate but equal" treatment for the newly freed black slaves. Instead, overruling Plessy v. Ferguson (1896) and breaking from the "backward-looking" "at the time" meaning of the 14th Amendment, the Court in Brown gave life to the overriding principle of equality under the law to put an end to legalized segregation of the races. Likewise, repudiating a long series of precedents that permitted disparate treatment of women, including some then-recent decisions, the Court in Reed expanded "equal protection" to invalidate gender as well as racial discrimination. And so forth.

Historically, the Gorsuch-Scalia brand of "backward-looking," "at the time," so-called "originalist-textualist" jurisprudence has always reared its head--yes, its ugly head--whenever the Supreme Court has advanced equal rights for minorities or women. Whether the Court was outlawing segregation, or protecting inter-racial marriages, or upholding the civil rights laws, or requiring that women have the same rights as men, or invalidating laws that discriminated on the basis of sexual orientation, the jurisprudence embraced by now-Justice Gorsuch has always been used to oppose those advances and to denounce them as illegitimate.

Yes, the repeated condemnation of all those cherished landmarks and so many others has been the same: "That's not what the constitutional provision meant at the time; that's not its original meaning." Fortunately for our country, that "originalist-textualist" approach has historically been rejected whenever the Court has understood that fundamental equality and fairness and decency were far more important constitutional principles than some avowed method of interpretation.

And it's not just the equal rights and privacy rights landmarks. The same is true for those landmarks that gave life to the rights of the accused. The Gorsuch-Scalia jurisprudence would have precluded those advances in criminal justice as well. We'll take a look at some of those in the next part of this series.

Wednesday, April 12, 2017

Judge Sheila Abdus-Salaam, RIP

Shocking, tragic, and heartbreaking. Those are the first words that come to mind in reacting to the loss of Court of Appeals Judge Sheila Abdus-Salaam.

She was an absolutely lovely person and a magnificent judge. She was loved and admired by her colleagues and by all of us who were fortunate to get to know her.

Here she is recently with Albany Law students to whom she generously gave her time and openly shared her enthusiasm, humility, and insights about being a Judge on New York's highest court:

Judge Abdus-Salaam with Albany Law School's
 Court of Appeals Seminar students

Judge Abdus-Salaam's death is an enormous loss to the Court, to the state, to the law, and to all those who have been the beneficiaries of her wisdom, decency, and exquisite professional and personal example.