The rumors are swirling. Too many different people working at the Capitol or speaking to people at the Capitol are hearing it. Too many, that is, to simply dismiss the rumors entirely as idle political chatter.
Everyone who's been following the process for selecting a new Chief Judge is now aware of the Governor's public reaction to the list of candidates presented to him Monday by the Commission on Judicial Nomination. He is apparently disappointed, "disturbed." Apparently because the list is insufficiently diverse.
But more recently there's even more news. (Yes, yesterday's news is old news in these days of the instantaneous transmission of the latest developments.) A lot of people are now hearing that the Governor is actually contemplating rejecting the Commission's list outright. Refusing to appoint anyone on the list. Insisting that the Commission give him different names. Or just additional names. Or maybe just one different, additional name. A name or names, presumably, that the Commission should have included on its list. A name or names that the Commission would have included if it had performed its duties more wisely or conscientiously. And if the Commission won't cooperate, then the Governor will simply not nominate anyone. Or at least not anyone from the Commission's list. Hmmm.
Let's just allow our imaginations to go wild. Imagine not only that the rumors are true, but that the Governor is serious about such a course of action. More than that, imagine that the Governor actually does take such action. Then what? The Commission caves? (Does the law allow that?) Or the Governor eventually rethinks his position? Or there is a constitutional power struggle that ultimately must be settled by the then-Chief Judgeless Court of Appeals?
Before we ever get there, can we consider a few relevant matters? A few pretty critical matters in fact.
First, the law of New York State is straightforward. The Commission is obligated to produce a list of recommended candidates. The Governor is obligated to select his appointee from that list.
The state's highest law, the New York Constitution, has a single line about the Governor's choice in making an appointment to the Court of Appeals. It states quite plainly in article 6, section 2: "The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission." There's just no wiggle room there.
If that isn't clear enough, the state's Judiciary Law--the statute providing details for the process--hammers it home. It does so no less than six times. Yes, six times that law repeats without any qualification: "The governor shall make his appointment from among those persons recommended to him by the commission." Again, there's just no wiggle room there. The law (specifically in section 68 which deals with the Governor's selection of an appointee) provides for the various situations and times of the year in which a vacancy on the Court of Appeals might arise. For every one--and there are six such provisions which, thus, account for the six repetitions--it's the same. Almost like a mantra. The Governor must pick from the list.
Second, and more briefly, the foregoing is a fundamental point of the selection process. New York governors don't get to choose whomever they want. They only get to choose from among those who are first approved by the Commission and placed on the recommended list. Yes, that limits a governor's options. BINGO !! That's the purpose. To limit the governor's discretion. To limit the governor's ability to make an appointment to the court for (heaven forbid!) purely partisan or political reasons, with little or no consideration given to merit. The Commission's explicit duty is to consider merit. And governors only get to choose from among those who the Commission believes (agree with it or not) have the most.
Third, there is a great deal of merit on this list. Come on, there's no denying that this list is exceptional. There is enormous talent and intelligence (even brilliance) and experience and leadership on this list. Has there been a better list? Has there been a more impressive group of candidates? Has there been a list where everyone on it is simply superb and would make an excellent addition to the court?
Even the harshest critics of the selection system and how it has operated in the past (and I have been one), must acknowledge that the individual and collective caliber of the Commission's current recommendations is extremely high. It is difficult to imagine that anything but some non-merit related consideration or agenda would lead to a denunciation of this latest list. (For more on the strength of the list, see the immediately preceding post on New York Court Watcher: New York Court of Appeals: A Very Strong List for Chief Judge Just Announced, Dec. 1, 2008.)
Fourth, the list is diverse. Let's be serious about this.
Ok, yes, it is unfortunate that there are no women candidates on the list. Most unfortunate. This is a glaring absence. Apparently, however, few women applied. The word circulating is that there were only two. Unless one insists that the Commission should have simply included one of them on the list, regardless of an honest assessment of merit, or unless one believes that there is a candidate or two on the list of clearly inferior merit, it's hard to fault the Commission. And especially because the list is otherwise quite diverse.
The list is geographically diverse: upstate, downstate, and western New York. It is politically diverse: Democrat and Republican. Ideologically diverse: liberal and conservative. Religiously diverse: Catholic, Protestant, and Jewish. Career diverse: government service and private practice, criminal defense and prosecution, trial and appellate adjudication and litigation, etc., etc. Educationally diverse: St. John's, Brooklyn, Buffalo, NYU, Columbia, and Yale. Racially and ethnically diverse: white, African-American, Northern European, Southern Mediterranean (as in Sicilian-American; yes, once again, I notice), etc., etc. And I'm surely missing some other categories of diversity.
Finally, Governor Mario Cuomo didn't much like the first list he was presented with either. His agenda was diversity. The court certainly needed it then, and Cuomo ultimately succeeded beautifully. The first woman, and the second. The first African-American, and the second. The first Hispanic. The first woman Chief Judge. And more.
But Governor Cuomo's tale is instructive. He complained about the list. He wanted a different one. But soon enough he realized that the list is the list. That a governor must work with it. So what did he do? This downstate, liberal, Democrat? He chose an upstate, conservative Republican. Justice Richard Simons of the Appellate Division, Fourth Department. Cuomo crossed party and ideological lines.
That turned out to be a great appointment. Simons was a great choice for the court. One of Cuomo's very best appointments to the court--and Cuomo had a few. It was undoubtedly one of the finest appointments Cuomo made while Governor, in the judicial or executive branch. The Court of Appeals was much the better for it. And Cuomo earned a good deal of admiration for his selection.
The list that the Commission has presented to Governor Paterson is chock full of superb potential appointees. The Governor--as well as the Court of Appeals and the State--would do well to get past the grumbling about the list and proceed to make a great choice.