Saturday, September 6, 2014

NY Court of Appeals: The List for the Graffeo Seat (Part 1)

Saratoga's done. Summer break's over. The new semester's started.
Time to get back to reality--and the New York Court Watcher.

New York's Commission on Judicial Nomination has just submitted its list of seven recommended names to Governor Andrew Cuomo. He now has 30 days to choose someone from that list to fill a vacancy on the Court of Appeals, the state's highest court.

The vacancy on the high court will arise at the end of November. That's when Judge Victoria Graffeo's 14 year term on the Court expires. Interestingly, and perhaps most importantly for this entire process, Judge Graffeo is eligible to fill that vacancy herself. She has many years before reaching New York's [moronic] mandatory retirement age of 70. So the Governor can choose her.

Oh yes, she is on the list.
[And in the interest of full disclosure, I'm rooting for her.] 

Let's take a look at that list. It's a strong list. More immediately conspicuous than that, it's a very diverse list:
4 women, 3 men
1 Black man
1 Indian-American woman
1 openly gay man
3 Upstaters (1 from Western New York), 4 Downstaters
3 sitting judges
2 private practitioners
1 government lawyer
1 currently in academe
6 Democrats
1 Republican 

A Republican! Yes. The first and only one to be named on any of the last 3 lists. That is, the first and only one to be named on any of the 3 lists produced by the Commission since Andrew Cuomo's been Governor.

Maybe the reason is that very few Republicans even bother to apply. Maybe Republicans who might otherwise apply simply figure that they have no chance to be chosen by Democrat Cuomo. Or maybe the Commission itself believes the same so doesn't bother placing Republicans on the list. Or maybe the Commission just hasn't thought the Republican applicants have been as good as the Democrats.

I don't know. The Commission does not release the names of all the applicants, so there's no opportunity to check how many Republicans have actually applied. Nevertheless, despite the racial, ethnic, gender, geographic, career, and other diversity on this list, one thing that does stand out--especially when also considering the previous 2 lists--is the dearth of Republicans.

Let's place this virtual absence of political party diversity in perspective. Let's consider the record of the current Governor's father.

When Mario Cuomo was Governor, he was given lists that included Republicans. And he took advantage of that. He appointed as many Republicans as Democrats to the Court of Appeals. Indeed, some of his very finest picks were Republicans. Richard Simons, Stewart Hancock, and Howard Levine were some of the very best high court Judges of the last few generations. Mario Cuomo even appointed a Republican to be Chief Judge--i.e., Sol Wachtler, who proved to be a very strong leader on the Court.

In that very important regard, Governor Mario Cuomo behaved far differently than have our last several Presidents. For the last few decades, our Presidents' appointees to the Supreme Court have been extremely partisan. Not surprisingly, those appointees have largely acted like extreme partisans on the bench--i.e., rather than like more detached judges. That's one of the reasons--if not THE reason--that the Supreme Court today is so dreadful. Not because it's too conservative or too liberal. Or too activist or restrained. But because the Justices--except perhaps Anthony Kennedy--are shamelessly partisan.
[This was discussed and demonstrated graphically in a many-part series not too long ago. See e.g., Part 11: A Court of Shameless Partisans. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)]

The New York Court of Appeals is a far better court today. There are surely some Judges on the Court who are more conservative than others, and some who are more liberal. But there's no shameful politically partisan divide as there is on the Supreme Court.

Also, the Judges on the Court of Appeals happen to be pretty darn good. And one of them happens to be Victoria Graffeo--who also happens to be the first and only Republican to have made the last 3 nomination lists.

We'll discuss her and the others on the current, strong list in the next post.

[Meantime, John Caher reviewed the list and the reactions to it in yesterday's New York Law Journal: Experts Weigh Benefits to Cuomo of Graffeo Reappointment, Sept. 5, 2014.]

Monday, July 14, 2014

Saratoga Highlights--2013 (Part 8: Recap) [final installment; mostly photos!]

Ok, 4 more days till the 2014 meet opens. Here's the final look back at last year's highlights.
(click on any Highlight # to see related post)

Highlight # 1
Will Take Charge, winning
the Travers
(click to enlarge any photo)
Willie (center) in Deep Stretch
Palace Malice (left) & Moreno (right)
(Orb, not pictured, on the rail)
by Adam Coglianese

Princess of Sylmar, winning
the CCA Oaks & the Alabama
Princess trounces
in the CCA Oaks
by Bob Mayberger

Highlight # 3
Wise Dan, winning
the Fourstardave
Another Fourstardave
for Dan
by Adam Coglianese

Royal Delta, winning
the Personal Ensign
Royal Delta
by nearly 5 lengths
by Adam Coglianese

Highlight # 5
Alpha, winning the Woodward
Alpha (right front)
Holding the W-W Lead
by Bob Mayberger

Sunday, July 13, 2014

Saratoga Highlights--2013 (Part 7: The Humans)

Just 5 more days--this coming Friday--opening day of the Saratoga 2014 meet. Season seats and admission passes in hand, I'm ready. So is the Capital Region. Exciting!
Let's wind up last year's highlights with a few humans who made their mark.
We'll do a quick recap next post.

John R. Velazquez, #694
Johnny V!
(click to enlarge any photo)
Johnny V,
Breaks Record
held by Jerry Bailey (right),
with mentor Angel Cordero (left)
by Adam Coglianese
Synonymous with the best in thoroughbred racing. And if it weren't already so, synonymous with Saratoga after the 2013 meet.

Earlier in the meet, he passed the 5,000 win mark for his career.
One month after the meet, he became North America's leading money-earning jockey of all time.

John R. Velazquez
Saratoga's All-Time Top Jockey
by Bob Mayberger
Several years ago, he had set the Saratoga record for 6 wins in one day.
A couple of years ago, he was inducted into the Racing Hall of Fame in Saratoga.
He has won virtually every big race at Saratoga.

And last year, he became the winningest jockey of all-time at Saratoga, passing Jerry Bailey's previous record of 693.

D. Wayne Lukas, Travers at 77 & Hopeful at 78
The trainer's trainer. "The Coach."
His proteges (e.g., Todd Pletcher, Kiaran McLaughlin, Mike Maker, Dallas Stewart ) have become some of America's top trainers.

D. Wayne Lukas (right)
in the
Travers' Winner's Circle
by Bob Mayberger
Perhaps the most successful trainer of thoroughbreds in horse racing history, he was the first to earn more than $100 million, then $200 million. He led the nation's trainers in annual money earned 14 times. He has won the Eclipse Award for Outstanding Trainer 4 times, and last year the Eclipse Award of Merit for lifetime achievement.

"The Coach"
Hopeful Victory at 78

by Bob Mayberger
At Saratoga 2013, he scored 2 of the meet's biggest prizes. He won the meet's signature race for 3 year olds, the Travers, with Will Take Charge. (And he proceeded to victories with Willie in the Pennsylvania Derby and the Clark Handicap, as well as a fast closing second in the Breeders' Classic--to earn Willie the Eclipse Award for Outstanding 3-Year Old.)

He finished the meet by winning Saratoga's premiere race for 2 year olds, the Hopeful, with Strong Mandate. It was the final day of the meet, and The Coach's birthday. It was also 35 after he began training thoroughbreds, and D. Wayne Lukas was still winning the big ones.

Tuesday, July 8, 2014

Supreme Court, 2013-14 Term: Quick Recap (Part 3: a few more cases)

To conclude this series, here are 3 additional significant decisions--one that I should have included in part 1, and two others that don't fit very well in either part 1 or 2.

Free Speech
McCutcheon v Federal Election Commission--Campaign Finance--[5-4] Restrictions on how much money someone may contribute to a political candidate or party violate the 1st Amendment.
(My take--disagree: Unlike the Citizen's United decision which specifically dealt with spending money in order to produce a political message independent of any candidate or party, this case dealt with giving money directly to a candidate or party, which creates a far greater risk of undue influence, bribery, and related corruption.

American Broadcasting Companies v Aereo--Transmission of TV Broadcasts--[6-3] Selling a service that transmits TV programs selected by individual subscribers to be watched over the internet violates the copyrights of the program owners.
(My take--agree: Program owners are entitled to compensation for this for-profit transmission of their property, just as they are from cable providers.

Utility Air Regulatory Group v Environmental Protection Agency--Greenhouse Gas--[5-4] The Clean Air Act does not authorize the EPA to regulate greenhouse gas emissions from sources the agency may not otherwise regulate; but [7-2] the EPA may regulate greenhouse gas emissions--and insist on "best available control technology" [BACT]--from sources that the agency is already authorized to regulate based on their emission of more conventional chemical pollutants.
(My take--disagree; agree: Greenhouse gases are air pollutants that endanger the public health (as the Court recognized 7 years ago) and would, therefore, seem to fall squarely within the EPA's regulatory authority, period.)

Well, that's it for the quick recap. When we return next to the Court's term, we'll look at a few of the decisions more closely, as well as decisional and voting patterns.

Sunday, July 6, 2014

Supreme Court, 2013-14 Term: Quick Recap (Part 2: criminal cases)

Let's now move to the Court's decisions in criminal cases. As we did with civil rights and liberties decisions in the previous post, we'll take a quick, bare-bones look at some of the most significant cases.

Search & Seizure
Riley v California--Cell Phone Search--[9-0] In the absence of some exigent circumstances, a warrant is required to search the digital data on an arrestee's cell phone.
(My take--agree: A most welcome limitation to the Court's atrocious decisions automatically permitting full warrantless searches incident to arrest, for any offense, regardless how minor, and regardless of any connection to the offense.)

Fernandez v California--Warrantless Home Search--[6-3] A warrantless search is permitted with the consent of any occupant, as long as the occupant who is the target of the investigation--and who had already refused to give permission--is not home.
(My take--disagree: If there actually is some legally sufficient reason to search the home of the non-consenting target, then get a warrant!)

Navarette v California--Auto Stop--[5-4] An anonymous call to 911 that the driver of a described truck ran the caller off the road provided reasonable suspicion for a traffic stop.
(My take--agree: A 911 tip, especially a detailed one about an incident this serious, seems sufficiently reliable to justify a brief stop to investigate.)

Death Penalty
Hall v Florida--Mental Disability--[5-4] Florida's rigid threshold of an IQ test score of 70 is invalid because it creates an unacceptable risk that a mentally disabled person will be executed.
(My take--agree: A single test score without any other consideration seems much too unreliable.)

Abramski v U.S.--Deceptive Purchase--[5-4] Falsely stating on a federal form that a gun purchase is for oneself, when it is actually for another, constitutes a false statement crime even if the other person would be an eligible purchaser.
(My take--agree: Would there even be an issue if this "straw purchase" was not about guns?

Chemical Weapons
Bond v U.S.--Chemical Weapons Treaty--[9-0 / 6-3 on broader meaning] The use of a toxic substance by one person to commit a simple assault against another is not a federal crime under the Chemical Weapons Treaty, but under local law.
(My take--agree: A simple assault is a far cry from the warfare concerns underlying the Chemical Weapons Treaty and Congress's implementation of it should be construed accordingly.)

That's it for part 2 which was supposed to conclude these quick recaps. But I miscalculated. A part 3 is needed to cover decisions otherwise omitted from this series. That's the next post.