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.

Monday, December 1, 2014

NYCOA: The List for the Smith Vacancy (Part 1)

Well, at least the Commission abides by the law's deadline!
[See Senate To Miss Deadline to Approve Court Pick  and Part 4 [The Guv's Delay]--NY Court of Appeals: The List for the Graffeo Seat]

Earlier today, the Commission on Judicial Nomination released its list of 7. That is, candidates for the Court of Appeals--possible gubernatorial nominees--to fill the vacancy that will arise at the very end of this year, as a result of New York's (moronic) mandatory 70-age retirement for the high court's Judges. Once again, it is a very strong list.
[Available at]

Yes, what must be said must be said. Although some lists under New York's so-called "merit appointment system" (adopted in the late 1970's to replace the election system) have been pretty mediocre, the lists have consistently been very strong since former Chief Judge Judith Kaye became Chair of the Commission.

Those lists should be very strong. Not only because we are talking about filling positions on one of the nation's great courts, but also because we are talking about replacing some very strong Judges.

So, for example, it was about replacing Judge Victoria Graffeo the last time.
[See Part 3 [The Seasoned, Admired Judge Graffeo ] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo]

This time, it's about replacing Judge Robert Smith--a brilliant Gov. Pataki appointee who has helped invigorate the decision-making at the Court by, among other things, his rigorous questioning at oral arguments and his enthusiasm for penning insightful (but never disagreeable) dissenting opinions. It's good that there's such a strong list of candidates to fill his vacancy.

We'll discuss more about the list in future posts.
[I mean, come on, the Senate has not even held hearings yet on Governor Andrew Cuomo's nominee to replace Judge Graffeo, despite the legal deadline 2 weeks ago.]

But for now, a few observations on the list as a whole:
1st, as already noted, the list was delivered to the Governor on time--December 1, as required by statute (Judiciary law sec. 68).
2nd, again as already noted, a very strong list.
3rd, not only very strong, but also quite diverse--even 2 Republicans.
4th, here's a demographic breakdown (as best as I can determine at this point):

  • 1 Asian
  • 1 Latino
  • 1 African-American
  • 3 Women, 4 Men
  • 2 Republicans (about time!), 5 Dems
  • 2 Judges, 5 Private Practitioners
  • 5 litigators, 1 former Prosecutor
  • 2 former Appellate Law Clerks (1 federal, 1 on the NYCOA itself)
  • 3 Repeat Names, 4 New Ones
  • 2 Upstaters, 5 from the City
  • Law Schools: Albany, Buffalo (2), Columbia, Harvard, Penn, St. John’s
Well, that is quite a group.

In a future post we'll look at each of the 7 individuals.

Monday, November 24, 2014

Part 3 [The Seasoned, Admired Judge Graffeo ] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo

As most readers know, Gov. Andrew Cuomo disregarded the Judiciary Law's nomination deadline, and now the Senate has disregarded the deadline for confirmation.
There's no issue here as there is regarding the President's executive order power. No. Both the Governor and the Senate have unambiguously and unashamedly violated the law. (Interview with Karen Dewitt, Senate To Miss Deadline to Approve Court Pick .)
But now, Judge Graffeo.

Victoria A. Graffeo's 14-year term on the Court of Appeals, New York's highest tribunal, comes to an end this week. A highly regarded and well-loved jurist, she was widely supported for reappointment by members of the bench and bar, regardless of party affiliation or political ideology.

The Governor chose otherwise. He chose to follow the example of former Governor George Pataki, rather than that of his father and, indeed, of every other Governor--as well as of both major political parties, throughout the last century, during which selection and re-selection was by election. (See Part 2 [Renominations Historically]) Presuming that the Senate will eventually convene and confirm Cuomo's pick--the well-qualified Appellate Division Justice Leslie Stein--the Graffeo seat on the Court will be filled and she will have been replaced.

Well, actually, it will take some time before Judge Graffeo can be "replaced" in any sense of experience, wisdom, and well-earned esteem. She has evolved over the course of her 14 years on New York's highest Court to rank among the most admired Judges of the modern era. Those seasoned jurists who understand the judicial role; exercise it with insight, independence, impartiality, and exquisite judgment; and, as a result, render decisions and author opinions that reflect those qualities, uphold the most cherished principles, and are recognizable as precedents that will stand the test of time.

Yes, that has been Judge Graffeo and her work on the Court of Appeals.

Let's take a look at just a few of her opinions over this last year of her term. It will more than demonstrate my point:

People v. Marquan M.--The local cyberbullying law at issue, intended to protect minors, was constitutionally invalid because it was overbroad.
"[T]he text of the statute...'create[d] a criminal prohibition of alarming breadth.' The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children."
Wallach v. Town of Dryden--Local zoning ordinances prohibiting hydrofracking in their municipalities are not preempted by state oil and gas law.
"These appeals are not about whether hydrofracking is beneficial or detrimental [but] whether the state legislature eliminated the home rule capacity of preserve the existing character of their communities."
People v. Rivera--A trial judge's instruction, outside the presence of the defendant, to a deliberating juror who requested clarification requires reversal of the conviction.
"A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury."
People v. Washington--A driver who consents to a breathalyzer still has a right to consult with counsel before he performs that test.
"The fact that the defendant not dispositive since the defendant, after consulting with counsel, could have revoked her consent...The police must therefore advise the accused that a lawyer has made contact." 
People v. Tyrell--Where the trial record does not show that the defendant understood the rights he was waiving by pleading guilty, the conviction must be reversed.
"[T]o constitute a knowing, voluntary and intelligent [guilty] plea, there must be 'an affirmative showing on the record' that the defendant waived his constitutional rights."
Holmes v. Winter--A New York journalist will not be ordered to comply with an out-of-state subpoena to appear in a proceeding and reveal confidential sources.
"There is no principle more fundamental or well-established [in New York] than the right of a reporter to refuse to divulge a confidential source...[A]n order from a New York court directing a reporter to appear...would offend our strong public policy--a common law, statutory and constitutional tradition." (See NY Court of Appeals: Freedom of the Press Taken Seriously.)
People v. Wells--The guilty plea based solely on the trial judge's erroneous denial of a suppression motion should be vacated.
"Harmless error...can be 'difficult to apply to guilty pleas'--especially in cases involving 'an improper denial of a pretrial motion to supress'--since 'a defendant's decision to plead guilty may be based on any factor inside or outside of the record.' Consequently, convictions premised on invalid guilty pleas generally are not amenable to harmless error review."

Well, those are a few of the significant majority opinions authored by Judge Graffeo--just over the past 12 months.
Now is that the kind of record that demonstrates clearly that the authoring Judge deserved reappointment, and emphatically so?
A pretty strong consensus of the bench and bar certainly think so.

Now consider this: Is that the kind of record that suggests some overriding partisan--i.e., Republican--bent?
Is it the kind of record that evinces some strong ideological--i.e., conservative--leaning?
Is it the kind of record that demonstrates some pattern of hostility to positions generally favored by liberal Democrats?
Well of course not.

And yet, curiously--very curiously--in the 2 weeks following Governor Andrew Cuomo's decision to delay his selection for the Court of Appeals, public opposition to Graffeo's reappointment suddenly emerged, suggesting just that. Individuals and groups claiming that she was too conservative suddenly found their voices and aired their complaints. Those opposition voices, instigated into action or not, provided some political cover for the Governor who would surely be criticized for not reappointing Judge Graffeo--as he has been. And justifiably so. That 2 week ordeal not only violated the Judiciary Law deadline, but it was just plain unseemly.

More importantly, however, the ultimate result is that the Court of Appeals, and indeed New York State for which it decides the most fundamental issues, is now denied the judicial services of a truly fine Judge. An experienced and wise Judge. (Let alone a wonderful, committed, caring  human being--also pretty good qualities for a Judge.) A Judge who has served on New York's high court with exceptional distinction. Who brought great credit to the Court, enhanced its reputation, set an example of extraordinary dedication, and leaves a record that is worthy of this nation's best courts and best Judges.

Thank you Judge Victoria Graffeo for your great service.