Monday, December 1, 2008

New York Court of Appeals: A Very Strong List for Chief Judge Just Announced

The Commission on Judicial Nomination has just released its list of seven candidates to replace retiring Judith Kaye as Chief Judge of New York. Under New York's appointment system for the Court of Appeals, Governor Paterson must select his nominee for Chief Judge from that list. And fortunately for New York and the state's highest court, this is a very strong list. Here it is in alphabetical order:
George Carpinello
Evan Davis
Steven Fisher
Theodore Jones
Jonathan Lippman
Eugene Pigott
Peter Zimroth

This is perhaps the strongest list, whether for Chief Judge or Associate Judge, in the three decade history of the Commission and the appointment system. By virtually any measure, this is surely a much much stronger list than most have been. This list should restore optimism about the Commission and the appointment system to those critics--myself included--who have decried the relatively weak lists that have typically emerged despite the enormous legal talent available in New York. There simply is no excuse for a list that is less than exceptional. And this list is exceptional. I mean, this is one heck of a list!

Here is the list again, with a few important highlights [well, what I think is important] for each candidate. Currently sitting judges first [as a matter of protocol, not at all because I believe judicial experience is a prerequisite], then the others in alphabetical order.

Eugene Pigott--currently Associate Judge on the court, appointed by Gov. Pataki in 2006. He previously served on the Appellate Division, Fourth Department, and as the Presiding Justice--and hence as the chief executive of that department--for the last 6 years prior to his elevation to the Court of Appeals. He was formerly the Director and then President of the Legal Aid Society in Erie County, and he's a Vietnam Vet (Army). [As a Vietnam-era Army veteran myself, I put lots of stock in that.]
Also, his favorite Court of Appeals Judge of the past is Matthew J. Jasen, and he delivered a presentation explaining why at the Albany Law School symposium, "Judges on Judges, " earlier this year. (Podcast available at:
[As a former law clerk to Judge Jasen, that naturally has endeared me to Judge Pigott.]

Theodore Jones--currently Associate Judge of the court appointed by Gov. Spitzer in 2007. He previously served as a state Supreme Court Justice in Brooklyn and was the Administrative Judge of civil term just prior to his elevation to the Court of Appeals. Before that he was a criminal defense attorney for the Legal aid Society in New York City, and he too is a Vietnam Vet (Army).
His favorite Court of Appeals Judge of the past is Harold Stevens, about whom Judge Jones gave a stirring presentation at the "Judges on Judges" symposium. (Podcast available at:

Jonathan Lippman--currently the Presiding Justice of the Appellate Division, First Department. He has a great deal of experience as an administrator in the New York court system, including as Deputy Chief and then Chief Administrative Judge of the Unified Court System for 6 years and 11 years respectively--the latter tenure serving under Chief Judge Kaye until last year.

Steven Fisher--currently an Associate Justice of the Appellate Division, Second Department. He previously served as an ADA with the Brooklyn District Attorney's Office and then principal law clerk to the PJ of the AD, 2d Dept. He was a trial judge since 1983, including service as an administrator since 1998, until his elevation to the AD in 2004.

George Carpinello--currently a partner in the Boies law firm in Albany, he is a graduate of Princeton and of Yale Law. He previously was a professor at Albany Law School and Director of its Governemnt Law Center, during part of which time he also served as President of the Legal Aid Society of Northeastern New York. [A personal note: he's also a Sicilian-American, like the late great Vito J. Titone--and moi. I count that as a big plus! As well as the fact that I know and love his Mom.]

Evan Davis--currently a partner in Cleary Gottlieb in Manhattan, he is a graduate of Harvard and then Columbia Law, where he was Editor-in-Chief of the law review. He clerked for Harold Leventhal of the D.C. Circuit, and then for Supreme Court Justice Potter Stewart. He served as Counsel to Gov. Cuomo, President of the Bar Association of the City of New York, etc., etc. Incredible resume. Extraordinary career. What else can be said.

Peter Zimroth--currently a partner at Arnold & Porter in Manhattan, he is a graduate of Columbia and Yale Law, where he was Editor-in-Chief of the law journal. He clerked for David Bazelon of the D.C. Circuit, and then for Supreme Court Justice Abe Fortas. He was an Assistant U.S. Attorney in Manhattan, a professor at NYU Law, an Assistant District Attorney in Manhattan, Corporation Counsel of NYC, etc., etc. Incredible resume. Extraordinary career. What else can be said.

OK. Now that's a list!!
[And I can't help but believe that the strength of the list is in some not-so-small measure attributable to the input of three former Court of Appeals law clerks (all Albany Law grads btw), all of whom now serve on the Commission's staff: Counsel to the Commission, Stephen Younger, Deputy Counsel John Halloran, and Assistant Counsel Norman Kee.]
IAE, more about the candidates on the list in subsequent posts on the New York Court Watcher.

One glaring absence. Judge Carmen Ciparick.
With only 4 years remaining until her mandatory age retirement from the Court of Appeals, Judge Ciparick may well have been excluded for the same reason that Judges Matthew Jasen and Bernard Meyer were excluded from the list for Chief Judge in 1984. Additionally, the Commission may well have believed that Ciparick's strengths are other than in administration, a huge component of the Chief Judge's position. She has a very strong voting and opinion record in safeguarding civil liberties, the rights of the accused, and equal protection. Her record is similar to that of Chief Judge Kaye, and her opinions manifest the sort of compassion, concern, and generosity of spirit that were also the hallmark of her favorite Court of Appeals Judge, Vito Titone. (Her presentation at "Judges on Judges" is available on podcast at:

Those who care deeply about civil rights and liberties, the development of independent state constitutional law, and the progressive direction of the Court of Appeals and, thus, New York's fundamental law, look forward to Judge Ciparick's continued service on the court--perhaps much less distracted than she might otherwise have been if she were also burdened with the enormous administrative responsibilities of being Chief Judge.