[It's now almost evening. Seven mugs of coffee, answering phone calls since early morn, nothing yet to eat [and I love to eat, especially breakfast], folks questioning me, agreeing with me, scolding me, adding their own input, making suggestions, etc., etc. A fascinating, invigorating and enervating day for a court junkie. A day highlighted by a call from my Mom, in Douglaston, that she saw my name in the Daily News, her favorite paper. Forget about anything else I might have done in life. Being in the Daily News puts me over the top.]
So the Governor is apparently not going to challenge the Commission or its list after all. Not really surprising. Not just because the law is clear about the Governor's obligation to make Court of Appeals appointments from the list. (See yesterday's New York Court Watcher post: New York Court of Appeals: The Guv Rejecting the Commission's List?, Dec. 2, 2008.) But because the Governor has a reputation for being a most sensible man. Respected on both sides of the aisle. Not a political hack. Not one who deals in cheap political tricks. Thank you Governor Paterson. Thanks for not dragging the state through a futile, highly visible imbroglio, that would serve to do little but undermine confidence in your eventual appointee (who would ultimately have to be made from the list) and in you and your office. Good call.
It's also a good call, made by the Governor and the Attorney General, to examine the Court of Appeals selection process. There's absolutely nothing wrong with taking a good, hard, non-partisan, conscientious look at how the judges on our highest court are selected. Indeed, it's long overdue. There have been good faith, non-partisan, thoughtful criticisms of the selection system repeatedly since its inception three decades ago. I myself have been one of the harshest and most vocal critics. (How thoughtful my own criticisms have been is for others to decide.) So fine. An examination should be welcomed by anyone who's serious about having the best possible Court of Appeals and the best possible system for achieving that.
It is ironic, however, that the call for an examination actually comes after the Commission has produced so strong a list. A list that is much stronger than others have been. There was not a whisper about an examination or about making changes following the making of much lesser lists. There have, of course, been a few persistent critics. Including me. And as for me, I was only expressing openly what many were saying privately. Individuals who follow the court, follow the selection process, and are very familiar with them both. They were making the same complaints to me personally that I was making publicly.
In a recent post, I offered some suggestions about getting back to a great Court of Appeals. A court which for a long time was widely recognized as one of America's very best and most influential. In fact, viewed by many as THE very best and THE most influential. Second, if at all, only to the U.S. Supreme Court. (See New York Court of Appeals: Memo to the Governor & the Commission, Nov. 17, 2008.)
Here now are a few matters of serious concern--the frequent subjects of informed complaint--that should be addressed as part of any examination of the selection system:
One, the membership of the Commission. Only slightly less important than insuring Court of Appeals candidates of the highest qualification is insuring the same for Commission members. Surely, those who choose the list of candidates from which the Governor must choose an appointee should be familiar with the role of the court. And that does not mean a mere ability to recite that the judges interpret the law, that the Court of Appeals has the final word on the meaning of New York law, and that the judges must thus be smart lawyers. No!!
Commission members should be well versed in the actual nature of judicial decisionmaking on a high court. They should also, then, understand the talents and abilities and qualities essential to that function. So they know what to look for. So they know what questions to ask. So they know which individuals might actually make great Court of Appeals judges.
Among those well suited for membership on a nominating commission like New York's would be individuals with significant service on a high court, or with significant high court litigation experience, or who study or are otherwise expert in the work of high courts. There are certainly others. But the irreducible common denominator is a knowledge and understanding of the what high appellate courts actually do, how they actually do it, and what their role actually is.
Two, just what does the Commission do, and how and why? In short, in the favored parlance of the day, transparency. At the least, the "report" that the Commission is required to present to the Governor when it presents its list should provide some explanation for the Commission's choices. At the least, the "report" should give reasons that the members of Commission concluded that the individuals on the list would make great, or even good, members of the Court of Appeals.
The state constitution (article 6, section2) requires the Commission to "evaluate the qualifications of candidates" and to "prepare a written report." The statute implementing that provision (Judiciary Law section 63) states unambiguously that the "report...shall include the commission's findings relating to the...qualifications" of each candidate to serve on the Court of Appeals. If any of this means anything, it must at least mean that the Commission must prepare something in writing that satisfies the bare minimum of a "report."
Again, the state constitution specifically calls for an "evaluat[ion]" of the candidates' qualifications. The statute calls for "findings" about these qualifications. Unless these words and these mandates mean nothing, they must at least mean more than a bare recitation of schools attended, jobs and positions held, and the phrase "best qualified." But that is what the Commission provides as a "report." That is what it did with the current list. That is what it has done in the past. Surely that practice should be re-examined. Surely the Governor cannot be faulted for suggesting that the Commission explain its recommendations a bit more than that.
Numbers Three and Four, and maybe more, in a continuation of this discussion tomorrow.
It will include a Court of Appeals list of the past that a dear friend, and fellow court junkie, insists was far superior to the current list and which, therefore, proves that my assertions about the comparative merit of the current list are dead wrong.