Wednesday, August 2, 2017

Gorsuch, Part 6: The Now-Justice Like the Then-Judge

We've seen how Neil Gorsuch's record as an appeals court judge was ultra-conservative. Reviewing those cases where he stuck his neck out to disagree publicly with his colleagues by writing a dissenting opinion--presumably because he felt strongly that his colleagues were wrong on an important issue--reveals a clear ideological pattern. (See Part 4 and Part 5.)

In civil cases, he repeatedly sided against the worker and for the employer; sided against consumer protection; sided against Planned Parenthood; sided against the separation of church and state. In criminal cases, he argued that correction and police officers should be immune from liability despite majority findings that the vindicated suspects' constitutional rights had been violated; and he argued that convictions should be upheld despite findings that the defendants' lawyers were ineffective, or that Miranda rights were violated, or that the incriminating evidence was unconstitutionally obtained.

Perhaps most notable (and in my view most worrisome), is that even when Gorsuch sided with the defendant, he set forth the very narrow, literalist view of the 4th Amendment that it does not prohibit unreasonable searches or seizures. Rather, it only prohibits unreasonable searches and seizures if they involve one of the few particular items mentioned in that amendment--i.e., "persons, houses, papers, and effects." But nothing else. This is a view, by the way, based on long-overruled decisions of the Supreme Court from an earlier era. This also just happens to be the same narrow, literalist view of search and seizure protections taken by Gorsuch's hero, the late Justice Antonin Scalia, to whose vacancy he was appointed. And it is the view condemned in recent years by, among others, conservative Justice Samuel Alito, whose separate concurring opinion in U.S. v. Jones, 565 US 400 [2012] exposed the dangers of that view which was embraced in Scalia's opinion in that case.

Sooooooo, has Gorsuch's record on the federal appeals court been reflected in his record to date at the Supreme Court? He has been a justice for only a short time. Confirmed by the Senate in April, he has only participated in those cases which the Court considered as it was wrapping up its term. And yet....

Let's take a look.

Death Penalty
McGehee v. Hutchinson: In Gorsuch's first public vote, he sided with execution. He broke the Court's 4-4 tie to allow Arkansas to proceed with several executions that the state wanted to complete before its supply of lethal drugs expired. Each of the death inmates had already been imprisoned for 10 years; a few for more than 20. Each of them had legal claims challenging their convictions or sentences or even insisting on innocence. State and federal courts at various stages of the litigations had found some merit in their claims. But the Supreme Court declined to review the claims and, with Gorsuch's vote making a bare majority, approved the executions.

Campaign Finance
Republican Party of Louisiana v. FEC: The Supreme Court majority summarily affirmed--in a four word entry--the decision of the court below to uphold a particular provision of the federal campaign finance law (the Bipartisan Campaign Finance Reform Act of 2002, aka “McCain-Feingold”). The provision in question prohibits the use of unregulated contributions made to political parties for federal election activities. Gorsuch, together with Justice Thomas, noted his disagreement with the majority's disposition of the case and would have proceeded with the full review process.

Indigent Criminal Defense
McWilliams v. Dunn: The Alabama courts had denied the death penalty defendant the assistance of a mental health expert. By a typical 5-4 ideological split, with Justice Kennedy casting his vote with the liberals, the Court held that indigent defendants who have raised serious mental health issues do have such a right, and it sent the case back to the lower courts to apply the law correctly. Gorsuch joined Justice Alito's dissenting opinion, taking the position that the decision of the state courts should have been affirmed, because the Supreme Court had not previously "clearly establish[ed] that a defendant is entitled to an expert."

Employee Grievance
Perry v. Merit Systems Protection Board: A 7-2 majority of the Court ruled that an employee could seek judicial review of his "mixed" grievance (i.e., discrimination underlying a civil service grievance) in federal district court; significantly, such a court is not required to defer to an administrative ruling which, in this case, was adverse to the employee. Gorsuch dissented. In an opinion joined by Thomas, Gorsuch argued that an employee seeking judicial review of an adverse administrative ruling on his civil service grievance can do so only in the Federal Circuit Court. And, again here's the significance: that court must affirm the employee-adverse administrative ruling unless it is utterly irrational.

Trump's Travel Ban
Trump v. Int'l Refugee Asst Project: The Court unanimously agreed to review the constitutionality of President Trump's executive order that suspended the entry of certain foreign nationals into the United States. At the same time, by a  6-3 majority, the Court mostly upheld the orders of the courts below that had temporarily barred enforcement of the executive order. The Court did, however, partially reverse the courts by allowing the executive order to be enforced "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." Gorsuch joined Thomas's dissenting opinion, arguing that the executive order should be allowed to be enforced in its entirety--i.e., including its enforcement against those with "a close familial relationship" with an American--because the "Government’s interest in preserving national security" outweighed the resulting hardships to affected individuals.

Church-State Separation
Trinity Lutheran Church v. Comer: By a 5-2-2 majority, the Court held that Missouri engaged in unconstitutional religious discrimination when it denied the church's request for funding for its playground--which funding was generally available to non-religious institutions. [Missouri is one of those state's with an strict (originally anti-Catholic immigrant) prohibition against aiding religious institutions.] Chief Justice Roberts' majority opinion, in a footnote, underscored that "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Gorsuch, joined by Thomas, wrote a separate concurring opinion disassociating himself from that limiting footnote. Anticipating other applications of law to religious institutions, he wrote that "general [constitutional] principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else." [Hmmm, such as laws requiring equal treatment of gays and lesbians and same-sex married couples, even in the face of religious objections? And see immediately below!]

Gay Rights
Pavan v. Smith: This case involved Arkansas's refusal to include the name of a biological mother's same-sex spouse as a parent on the child's birth certificate. By a 6-3 majority, the Court summarily granted review and reversed on the ground that, in accord with the Court's 2015 decision in Obergefell v. Hodges, same-sex married couples are equally entitled to “the constellation of benefits that the State has linked to marriage.” Gorsuch dissented. In his opinion joined by Thomas and Alito, Gorsuch insisted that "nothing in Obergefell indicates that a birth registration regime based on biology...offends the Constitution."

Gun Rights
Peruta v. California: The Court declined to review a decision of the 9th Circuit that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” The California law, which generally prohibits concealed guns in public places, was thus upheld. Gorsuch joined Thomas's dissent. The dissenters complained that the majority's decision not to take the case "reflects a distressing trend: the treatment of the Second Amendment as a disfavored right." They were also unequivocal about their position on the California law. As Thomas concluded for himself and Gorsuch: "the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right."

Well there it is. By his votes and separate opinions in these ideologically-laden cases, Neil Gorsuch has in short order left little doubt about his strong ideological leanings. And beyond ideology or political philosophy or jurisprudence, consider his partisan bent. How would a typical Republican politician vote on these issues? Not a judicially retrained judge or strict constructionist or believer in federalism (i.e., states' rights) or any other actual, coherent judicial or political philosophy. But a partisan Republican.

What's the common thread through his positions on issues as varied as gun rights and gay rights, Trump's travel ban and campaign finance, worker rights and rights of the accused? That's right, connect the dots. His record on the Supreme Court already screams "ultra-conservative partisan Republican."

Some--like the Federalist Society and the Heritage Foundation and other very conservative groups and individuals who recommended him to Trump--undoubtedly are pleased with Justice Gorsuch's record thus far. Others, more moderate or liberal, much less so. But whether pleased or not with Gorsuch's Supreme Court record to date, it is undeniably what it is: politically partisan, conservative Republican.

Sunday, July 16, 2017

Gorsuch, Part 5: Criminal Cases--His Past IS Prologue

In the last post, we began to look at now-Justice Neil Gorsuch's record as a federal appeals judge. [See Part 4.] We looked at his dissenting opinions--those very revealing writings--during his time on the 10th Circuit Court of Appeals, which is where he sat immediately preceding his appointment to the Supreme Court. We focused on civil cases.

Gorsuch with Scalia
CNS photo/via Reuters
On issues as varied as worker rights, consumer protection, the right to choose, and separation of church and state, there was a clear, unmistakable pattern: ideologically ultra-conservative. Some will view that positively; others negatively. Regardless, Gorsuch's record was what it was: ideologically ultra-conservative.

Now let's turn to the criminal appeals. Again, we'll look at those opinions in which he felt strongly enough to disagree publicly with the majority of his colleagues by authoring a dissent.

Ineffective Counsel
Williams v. Jones: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ordered the lower court to provide relief to the defendant whose constitutional right to counsel was violated. The attorney--whose deficiency was not in dispute--had threatened to withdraw when the defendant wanted to accept the prosecution's very lenient plea offer; afterwards, the defendant was tried and received a very harsh sentence. Gorsuch dissented; among other things, he argued that the defendant was not prejudiced by his lawyer's incompetence, because the ensuing trial was fair.

Hooks v. Workman: The majority reversed the defendant's death sentence on the ground that his lawyer was "woefully inadequate" at the sentencing hearing. The court explained that, in the lawyer's presentation, "[e]vidence of family and social history was sorely lacking; the mental-health evidence presented was inadequate and quite unsympathetic; and the lawyer not only failed to rebut the prosecution’s case in aggravation but actually bolstered it." Gorsuch dissented; he argued that the defendant was not prejudiced by the lawyer's "alleged deficiencies" because the jury would likely have voted for the death penalty anyway.

Section 1983 Liability/Immunity for Unconstitutional Action
Webb v. Thompson: The majority, siding with the former suspect, ruled that the correctional officers at the local county jail would be liable to him under 1983 for a deprivation of his constitutional rights, if the facts showed that they caused his illegally prolonged detention before he was brought before a judge for a probable cause hearing; at the eventual hearing, the prosecution dropped all the charges. Gorsuch dissented; he argued that, even if the officers caused the suspect's excessively long detention, it was not their duty to get him to a judge.

Cortez v. McCauley: The majority ruled that the suspect's arrest was constitutionally unreasonable and could support a claim against the police under 1983; the arrest was based solely on information that was attributed to a "barely-verbal two-year old child," that had been relayed to the police in a telephone call by a nurse, who in turn had heard it from the mother, who had allegedly heard it from the two-year old. Gorsuch dissented; he argued that the police could not be liable because, in his view, it had not been clear that the officers should not rely on the relayed alleged statement of a two-year old to make an arrest.

U.S. v. Bernard: The majority vacated the defendant's guilty plea; he had entered it only after the trial judge refused to suppress statements he previously made to the police who had handcuffed him, placed him in custody, and then questioned him without advising him of Miranda rights. Gorsuch dissented; he argued that the Miranda violation was a harmless error because the defendant probably would have pleaded guilty anyway.

Search & Seizure
U.S. v. Dutton: The majority ruled that the search in question was unconstitutional and the evidence obtained should be suppressed because the warrant, which did not connect the defendant to the place to be searched, was patently invalid. Gorsuch dissented; he argued that the police presumably acted in good faith and relied on the warrant.

U.S. v. Carloss: [This one requires close attention.] The majority ruled that the defendant's rights were not violated when FBI agents went to the home where he was staying, walked to the front door and knocked, and then spoke to the defendant when he came outside from the back door; the defendant never referred to the signs saying “Private Property No Trespassing” or otherwise objected to the agents' presence. Gorsuch dissented, this time siding with the defendant on the ground that the agents had trespassed on the house despite the signs. Yes, he sided with the defendant.
BUT--and this is what's most significant here--he did so by echoing the very narrow, literal view of search and seizure rights that his hero, and the justice he replaced, the late Antonin Scalia, had taken. That is, that the 4th Amendment does not prohibit unreasonable searches. Rather, it only prohibits unreasonable searches of the specific items mentioned in the amendment--i.e., "persons, houses, papers and effects."
Soooo, the Constitution does protect a house, such as defendant's in this case. But, according to this narrow, literal view, the Constitution does not protect private property other than one's house. Nor does it protect the airspace immediately above one's house. Nor does it protect private conversations. Nor does it protect a person's comings and goings or whereabouts. Etc., etc., etc. Why not? Because none of those things are specifically mentioned in the 4th Amendment.
This is precisely the position Scalia argued in search and seizure cases, and it is precisely the position Gorsuch took in his dissent in this case.
This is what Gorsuch wrote:
The Fourth Amendment, we know, prohibits “unreasonable” searches of particular places and things: “persons, houses, papers, and effects.” U.S. Const. amend. IV. So even if an officer commits a common law trespass when searching your wheat fields, he does not commit a Fourth Amendment violation...[A] 'search' occurs when the government physically enters a constitutionally protected area. [Bold added.]
And just what authority did Gorsuch rely upon for his narrow, literal view of 4th Amendment search and seizure protections? Two opinions by Scalia insisting on that narrow, literal view, as well as some earlier decisions of the Supreme Court that allowed searches--without any warrant or even probable cause--of a person's private property beyond the home or from the air above the home.
[For more on this narrow, literal view of search and seizure rights as applied by Scalia, see Justice Scalia's Record (Part 6: Technological Surveillance); and see conservative Justice Samuel Alito's separate concurring opinion in U.S. v. Jones, 565 US 400 (2012), harshly condemning Scalia's view as being based on decisions that the Supreme Court had actually overruled a long time ago and as contrary to the Court's "legitimate expectations of privacy" jurisprudence.]

So there it is. Then-Judge Gorsuch opposing his colleagues' decisions when they enforced the rights of the accused, whether the right to effective assistance of counsel, the right to sue the government for violation of one's constitutional rights, the protections against wrongful interrogations, and search and seizure rights. And even when ostensibly supporting the rights of the accused, then-Judge Gorsuch espousing Scalia's very narrow, literal view of 4th Amendment protections.

Unless one simply chooses to be dense, or ideologically argumentative or blind, it can hardly be denied that Gorsuch's criminal law jurisprudence, as evidenced by those especially revealing separate dissenting opinions, is ultra-conservative, law and order, and largely unsympathetic to the rights of the accused. One may approve of that approach or not. But regardless, that IS Gorsuch's jurisprudence.

Next, we'll look at now-Justice Gorsuch's record thus far on the Supreme Court.

Friday, July 14, 2017

Gorsuch, Part 4: His (Backward and Extreme) Past IS Prologue

Then-Judge Gorsuch compiled a distinctive record on the federal appeals court.
Now-Justice Gorsuch has already begun to build another distinctive record at the Supreme Court.
They are very much the same.
Let's look at them both.

At his confirmation hearing, Democratic Senators harped on an opinion that then-Judge Gorsuch had written involving a fired truck driver. In his opinion, Gorsuch took the position that the company was within its rights to fire the trucker who had left his rig on the side of a highway--even though the trucker had done so in order to save his life, which was in danger, because he and his rig were stranded in a severe winter storm.

Whatever one might think about Gorsuch's opinion, it's actually worse, or better, depending on one's point of view. Gorsuch's opinion was a dissent. That is, his colleagues had sided with the trucker who, therefore, won the case and was vindicated. But Gorsuch apparently thought that his colleagues were so wrong, and that it was so important that the company be allowed to fire the trucker, that he authored a dissenting opinion to make public his disapproval of his colleagues' decision favoring the trucker.

At the confirmation hearing, Republican Senators, as well as Gorsuch himself, sought to downplay the Democrats' criticism. They insisted that this particular opinion did not really represent any overall bias against workers, or in favor of business, or reflect a callous indifference or ultra-conservative ideology.


The truth of the matter is this. Anyone willing to actually review Gorsuch's record as a federal appeals court judge, and willing to be honest about what that review revealed, would have to acknowledge that his trucker opinion was fairly typical--not an aberration--and that Gorsuch's record was ultra-conservative. Good or bad, that is what it was. Not moderate. Not balanced. Not neutral in any real sense of that term. But overwhelmingly, ideologically, one-sided.

Of course, that should be no surprise. That is exactly why the Federalist Society and the Heritage Foundation--too institutions that are unabashedly conservative [Again, good or bad.]--recommended Gorsuch to Trump. Nor should that be a surprise to anyone who cared to pay attention to what Gorsuch had previously said and written about the role of judges. And more to the point, about his view of judicial decision-making. In my own view, as I have written previously, it is "extreme and backward." [See Part 3Part 2Part 1.] 

Now that may sound good to some. That may indeed be what some believe to be appropriate for a judge. That is, a judge should strictly adhere to the past, strictly oppose judicial attempts to move the law forward, strictly insist on preserving those "traditional" values such as old school religion, free market capitalism, etc., etc.

But whether one believes that being "extreme and backward"--in that sense--is good or bad, preferable and appropriate in a judge or not, it cannot seriously be disputed that Gorsuch's record is just that. Sure, anything can be disputed, just as some of the Senators and commentators disputed any such characterization. And especially if one is entirely unfamiliar with Gorsuch's record, or if one is so ideologically motivated that Gorsuch's actual record is simply denied.

So let's take a look at Gorsuch's record. And since dissenting opinions, like Gorsuch's opinion in the trucker case, are so revealing about what the authoring judge thinks is important--i.e., important enough to disagree openly and take a stand against a majority of that judge's colleagues--let's focus on those.

We'll begin with employment law cases. They demonstrate that siding against workers, even in the most sympathetic cases, was the pattern--not the exception--for Gorsuch.

TransAm Trucking, Inc. v. Administrative Review Board: This is the fired trucker case. The majority of the appeals court held that the need to save his life necessarily justified the trucker's leaving his rig. Judge Gorsuch disagreed; in dissent he argued that the employment contract and the employer's rules did not permit the trucker to leave, regardless of the dire circumstances.

Compass Environmental, Inc. v. Occupational Safety and Health Review Com’n: The majority upheld OSHA's finding that the company committed a serious safety violation by failing to train its now-deceased employee on avoiding an electrocution hazard at work. Gorsuch dissented; he argued that the company only violated its own internal rules.

N.L.R.B. v. Community Health Services: The majority upheld the NLRB's award of backpay to workers where the employer had wrongfully reduced their working hours. Gorsuch dissented; he argued that the workers' backpay should be reduced if they had taken a "second or 'moonlighting' job" to make up for their reduced hours.

Strickland v. United Parcel Service, Inc.: The majority held that the evidence that the female worker was treated worse than her male co-workers entitled her to a jury trial on her sex discrimination claim. Gorsuch dissented on the ground that, in his view, the evidence showed that the employer harassed male workers too.

See a pattern emerging?
Let's continue with a few other civil cases.
(We'll look at criminal cases in the next post.)

Consumer Protection
Ragab v. Howard: The majority held that the plaintiff was entitled to sue the corporate defendants for violating consumer credit repair laws. Gorsuch dissented; he argued that, despite inconsistencies in the parties' several agreements, the "non-essential [procedural] terms" show that the plaintiff should be forced into arbitration.

Right to Choose
Planned Parenthood Association of Utah v. Herbert: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled in favor of Utah Planned Parenthood. The latter had claimed that the governor's stated reason for stopping funding for Planned Parenthood was pretextual, and that his true motivation was to punish the exercise of constitutional rights. Gorsuch dissented; he argued on procedural grounds for a rehearing and on substantive grounds that the governor had the authority to discontinue the funding.

Church-State Separation
American Atheists, Inc. v. Davenport: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that Utah's action, erecting twelve-foot high white crosses along public highways to honor fallen state troopers, was an unconstitutional endorsement of a certain religion. Gorsuch dissented; he argued that the original decision was wrong because only an "observer [who was] biased, replete with foibles, and prone to mistake" would believe that the white crosses were endorsing a religion. [Sic!]

Green v. Haskell County Board of Com’rs: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that the erection of a Ten Commandments monument on county courthouse grounds was an unconstitutional government endorsement of religion. The proposal for the monument had been approved by the county board when a local resident told the officials that "the Lord had burdened [his] heart" to create it. Gorsuch dissented; he argued that only "the perceptions of an unreasonable and mistake-prone observer" would lead to the majority's conclusion that religion was being endorsed.
[Again, sic! One may disagree with the "reasonable observer/endorsement" test to determine a constitutional violation. But it can hardly be denied that a perfectly rational observer might well perceive that religion was indeed being endorsed by a monument to the Decalogue--presented to Moses by God--on government grounds.]

Do those dissents of Gorsuch--those occasions where he felt strongly enough to disagree openly with his colleagues and author an opinion criticizing their decision--demonstrate that he's a moderate? Neutral? Balanced? Or ideologically ultra-conservative?

In the next post, we'll look at Gorsuch's dissents in criminal cases.
(It's not hard to guess what pattern emerges. Hint: it's neither pro-accused nor moderate.)
And following that, we'll look at his record to date on the Supreme Court.

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.