Monday, December 15, 2008

New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 2 finished: w/ ice storm tales and Harriet Miers)

[Feel free to skip this personal rambling and proceed to the meat of this post which follows the bracketed italics.

The ice storm wreaked havoc in the Albany area, knocking out power for nearly 200,000 homes and businesses. My humble abode was one of them. Two days and nights in the cold darkness already, and the estimates are a few more to go. It's sub-freezing outside, just a bit warmer than that in the living room. No heat, no light, no juice for the desk tops or cellies, so the Mrs. and I have basically pitched tent at the local Panera's. It's warm and bright, the folks are friendly and accommodating, the coffee's hot--actually, better than that--the food flavorful (especially that "Cobblestone" muffin which has become one of my favorite treats of all time-- ok, it's not a cannoli; but what is?), and the place has wi fi, as well as plenty of outlets to recharge the laptops and cellies.

IAE, all that and a couple of other matters have consumed my time and kept me from getting back to the New York Court Watcher for a few days. So here I go. Evening and blogging at Panera's.

Oops, just got a call from Phillips Hardware that the kerosene space heaters are in. Gotta go. pick mine up, assemble it, and get it going. Especially for the kitties who are wondering what this sudden medieval living is all about....

One more night in the cold. Well, a bit more heat and light. Got the space heater and got it going. Some warmth and light. Wow, these things really work. Woke up in the middle of the night--we were all cuddled in the living room (humans and felines)--and, though the temp was 0 outside, the thermostat inside was reading 65! Amazing.

The power returned this afternoon. Three days and nights without power. Don't think I've roughed it this much since the Army--sleeping in the cold darkness and going without a shower or warm water. (OK, I did cheat and went to the gym, worked-out, and showered there.) But we're now back in the 21st century. We're cleaned up and out the door for steak and eggs at the Latham 76--one of the great diners around Albany. There's also the Wolf Road Diner where we dined luxuriously last night after assembling that space heater. And there's also the Halfmoon Diner just south of Saratoga and the Blue Ribbon Diner on the way to Schenectady and the Gateway Diner just west of Albany....Lots of good diners around here for diner aficionados like me. (I was weaned on Scobees Grill in Queens when I grew up in Douglaston.)

IAE, back to the named subject at hand.]

Several days ago--seems like forever ago--the first post in this sequence on the New York Court Watcher discussed two areas for examination, if the Governor and the Attorney General are serious about looking for ways to improve the current system for selecting Court of Appeals judges: qualifications for nominating commission members and the commission's "report" to the Governor. (See New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 1) , Dec. 3, 2008; see also my first attempt at this Part 2 where I at least was able to complete some prefatory comments: New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 2 beginning)) Here continues a list of suggestions with the next:

Three, identifying potential candidates. Under the current state of the law, the Commission's responsibility is to announce that it is accepting applications to fill a vacancy on the Court of Appeals, upcoming or sudden, and then to review those applications in deciding who to interview and, ultimately, who to place on the list from which the Governor must make his appointment. Perhaps that role should be adjusted so that the Commission serves more as a search committee. I.e., rather than awaiting and reviewing applications, the Commission would perform a more active function of identifying individuals who should be considered; aggressively seeking recommendations; conducting a thorough exploration of government offices, private law firms, academic institutions, and other possible sources of candidates across the state; and otherwise engaging in proactive efforts to compile a list of the most qualified potential candidates.

Those who the Commission identifies would be asked if they could be considered, rather than being asked if they would like to apply. There is likely a large number of the most highly qualified potential candidates--and those who therefore are typically the busiest and most committed to their present work-- who would not object to being considered, but who might not respond to a public announcement inviting applications. Once the Commission produces a list of 10 - 15 finalists from all those identified (that's double the number candidates currently required to be placed on the list presented to the Governor), then those individuals would be advised that they are among the finalists and asked to submit the kind of information currently required in the applications to the Commission. From those finalists, the Commission would then agree upon a list for the Governor.

This process would be more like that used by the President's staff to generate a list of potential Supreme Court appointees for him to consider. And just think, even the dysfunctional Bush (#43) White House staff produced Chief Justice John Roberts and Justice Samuel Alito. To be sure, some might not prefer their ideological predilictions. (On that score, see GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions [Discrimination+Cultural Issues+Law & Order+Political Process], Nov. 26, 2008, and the several preceding posts in the series on the New York Court Watcher which are cited therein; see also Supreme Court: Justices In The Majority, Dec. 8, 2008.) Nevertheless, Roberts' and Alito's extraordinary qualifications and abilities can hardly be denied. The President and his staff don't simply invite applications. They search for the best--however they define that.

Now, some are saying: "Yeah, what about Harriet Miers?" Yeah, exactly. The President might have wanted her, but his staff--which recommended Roberts and Alito to him--were among the strongest opposition to her appointment and contributed to her ultimate decision to withdraw.

And suppose a New York version of Harriet Miers had submitted an application for a seat on the Court of Appeals? There is little doubt that she would have been included on the Commission's list--especially on one of the last several lists when the Commission was receiving few applications. And there is little doubt that this New York Harriet Miers would have been nominated by the Governor and then, as typical, been rubber stamped by the State Senate.

That's how weak our current selection system has been. Certainly much weaker than the Presidential appointment system for the Supreme Court. And yet there is no doubt whatsoever that New York State has a pool of quality and ability the equivalent of a Roberts or an Alito. Yes, the Commission has engaged in some outreach--especially this past time (and it shows). But instead of outreach as a self-assumed activity to encourage additional applications, a thorough statewide search for potential candidiates should be an essential part of the Commission's operation. The current invitation-to-apply system should be changed to a vigorous search-for-consideration system.

Next post: a continuation of my humble list of suggestions for the Court of Appeals selection system.
And I have not forgotten about the Commission list(s) of the past which others--was a friend, but now is friends, former COA clerking colleagues, and other court junkies--have proffered as also having been strong. In fact, I'm currently looking over all the lists of the past. Could be there was a gem or two along the way that was as strong as the current Commission list. I will get to that soon in a later post