New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 3: The Governor's Selection Criteria)

[Back from the Christmas. Hope your holiday—whatever and however you celebrate—was wonderful. Mine was. Except for the 2 days spent in a car traveling between home in the Albany area to and fro family in southern Virginia via that absolutely God-awful Interstate 95, enduring the traffic in the New York metro area, then on the New Jersey Turnpike, then thru Baltimore, then around D.C., then thru Richmond—UGH! I mean, REALLY UGH!! Makes one re-appreciate the beauty and serenity of upstate New York. Yep, this New York City native (who also worked in D.C.) could not be more grateful for being able to live and work up here. The Buffalo area, then Syracuse, and now Albany—I’ve absolutely loved living and working in all of them. Ok, so now back to the matter at hand.]

Thus far in this series of posts on the New York Court Watcher suggestions have been made about 1) qualifications for membership on the Nominating Commission, 2) the Commission’s “report” to the Governor, and 3) the role of the Commission in identifying potential Court of Appeals candidates. (See 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), Dec. 15, 2008; (Part 1), Dec. 3, 2008.) This post will address the Governor’s selection of an appointee from the list given him by the Commission.

We’ve previously discussed the current list and Governor Paterson’s initial reaction to it. (See New York Court of Appeals: The Guv Rejecting the Commission's List?, Dec. 2, 2008, and New York Court of Appeals: A Very Strong List for Chief Judge Just Announced, Dec. 1, 2008.) Now let’s consider some factors that ought to guide the choice from that list. Yes, factors other than—or in addition to—the inevitable political considerations.

It’s usually a bit disdainful to quote one’s self, particularly when doing so bears the pretentious air of self-anointed authority. On the other hand, sometimes it does have the virtue of avoiding the pretense that one is saying something new. With the latter in mind, please excuse my repeating what I’ve said previously, on this blog and elsewhere, to begin this next point in this series of posts.

Four, the Governor's selection.
(From an op-ed I did for Newsday, Dec. 14, 2008: "Court of the Utmost Import" available on-line at: http://www.newsday.com/news/opinion/ny-opbon5963196dec14,0,1688928.story.)
"With an appointment system, there is no substitute for a governor who cares about picking great judges. At least some of former Gov. Mario Cuomo's appointments fit that description. He had no narrow partisan objective and appointed as many Republicans as Democrats, conservatives as liberals. In addition to Kaye, his selections of upstate Republicans Richard Simons, Stewart Hancock and Howard Levine were among his very best appointments as governor....
"The task for Gov. David A. Paterson is clear, and the unusually strong list of candidates just presented by the commission makes that task easier....[He] needs to take a cue from a predecessor. Don't allow politics or partisanship or posturing to compromise the selection. Do what Cuomo did when he disregarded party and ideological considerations. Pick a great judge for our top court."

(From an earlier post on this blog: New York Court of Appeals: Memo to the Governor & the Commission, Nov. 17, 2008.)
"[A]ppointing a great judge and making a great court. If the will is there, it's not that difficult. There is no mystery here....And though there's rarely universal agreement about the single best possible next appointee [That happened once for the Court of Appeals and once for the Supreme Court--yes, the same gentle Ben.], still, those potential appointees who are truly the most exceptional are usually quite readily recognizable and distinguishable from the rest. Some individuals and some qualifications simply stand out.
"Take for example the Supreme Court of Arizona. [Just happens to be one of the courts I like to watch.] The justices of that court are selected by an appointment system somewhat similar to New York's. But the results in Arizona are striking. Strikingly good that is. Three of that court's five members were law clerks for justices on the United States Supreme Court. Now that is hardly a required qualification for a great state judge, or a guarantee of one. But it is unquestionably an indication of exceptional ability. [There are other unmistakable indications as well, and these should be essential considerations in making a selection.]...
"Of course, considerations of politics, geography, philosophy, diversity, and other criteria have and will always play a part in judicial selection. Understood. But...there is absolutely no excuse to sacrifice the most imperative consideration--great judges to make a great court.

"[U]nderstanding the judicial process. Please, this should be the bare minimum for anyone seriously considered for the court....Potential court appointees...should have some appreciation of the nature of the judicial role beyond the typically trumpeted blandishments: judges must be fair, impartial, neutral, honest, ethical, knowledgeable, above reproach, able to get along with colleagues, discreet, avoid conflicts, etc. etc. etc. Fine. But what about some understanding of how judges decide cases? Actually decide cases? About the qualities and abilities that are essential to performing that function well? About their philosophy of judging and how the judiciary fits in our tripartite form of government?
"And I do not mean the grade school recitation of, 'the legislature makes the laws, the executive enforces the laws, and the judiciary applies the laws.' What I do mean is something beyond the simplicity we all learned in 4th or 5th grade social studies, and what we hear from politicians taking cheap or ignorant shots against judges and courts while on the stump.
"In fact, any potential appointee to the court...who utters the nonsensical 'judges should just apply the law, not make it' should be sent home packing. Maybe even with a copy of Holmes or Cardozo or another of this country's greatest judges who understood that judges unavoidably and necessarily make law. That judge-made law is a given. That, to be sure, judging and legislating are different. But judges--especially appellate judges--do make law no less than legislators.
"And this couldn't be more important....[O]nly applicants for the court with that minimal understanding should even be considered for appointment.

"[P]rior judicial experience. It's way overrated. The most difficult and consequential issues decided by the Court of Appeals—like the Supreme Court—are about fundamental policy and principles. They are about freedom and authority, society and the individual, government power and civil liberty, the underlying propositions that govern relations between citizens, and the like. They are about balancing competing interests, reconciling conflicting rules, making current sense of old principles. These are not legalistic questions. They do not call for the skills of a trial judge. And they do entail the burden, not borne by intermediate appeals judges, of rendering final resolution of unsettled questions. They require wisdom, perspective, an understanding of free and equal government; some sense of history, economics and political theory certainly help.
"Felix Frankfurter said that the relevance of prior judicial experience to qualification to be on the Supreme Court is 'zero'. He said so for the same reasons I've outlined above for the Court of Appeals. But even if the relevance is not zero, it's not much more than that. Among recent Court of Appeals judges, Judith Kaye and Hugh Jones had no prior judicial experience. Now that's not too bad. [The more recently appointed Robert Smith had no prior judicial experience either. We're still keeping tabs on him!] In fact, some of the finest jurists to serve on the Supreme Court had absolutely no judicial experience before they were appointed--e.g., Louis Brandeis, Hugo Black, Robert Jackson, Felix Frankfurter, Lewis Powell, Earl Warren, and William Rehnquist.
"So there's no good reason to pass up a highly qualified potential appointee solely because she or he has not previously been a judge....Of course, there are some great potential appointees who ARE currently judges. The only point is that judicial experience should not be too weighty a factor."

There's one more point I'd like to add about the Governor's selection. It's ancillary to the last one, but even more compelling. While judicial experience per se should not be considered particularly important for appointment to the Court of Appeals, decision-making ability—i.e., the capacity for resolving difficult and consequential issues with a very high level of legal acumen and wisdom—is an absolutely essential quality. It should be the primary criterion. And that is no less true for appointing a Chief Judge than for appointing any other member of the court.

Since this post is already long enough, let's leave that discussion for the next post.

Supreme Court: Justices In The Majority (Part 3--In Dissent Over What?)

In this post, we'll take a quick look at each Justice individually. Specifically, we'll see the cases in which each Justice broke with the Court and dissented from its decision. What kinds of decisions did each Justice disagree with strongly enough to take a public stand against a majority of his/her colleagues? Now the answer to that question tells us a good deal. In other words, what's so important that it's worth dissenting? And what are the types of issues? Let's get going.

First, here's a graph that rehashes--in a way more immediately relevant to this post--the data and graphs in the previous posts in this series on the New York Court Watcher. (See Supreme Court: Justices In The Majority (Part 2--And Compared to In Dissent), Dec. 17, 2008; Supreme Court: Justices In The Majority, Dec. 8, 2008.) This graph simply depicts how often each Justice dissented--wrote or joined a dissenting opinion--in the "defining" cases.

GRAPH 1: Frequency in Dissent (#)
(click to enlarge)

The graph has the Justices in the order of their frequency in dissent--yes, that's obvious. The purpose--undoubtedly just as obvious--is to underscore the contrast from one end of the dissent (or out-of-the-majority) spectrum to the other. Look's pretty stark. For the discussion of each Justice, however, let's proceed in order of seniority. [For no particular reason other than that I'm a wee bit obsessive-compulsive. Actually more than a wee bit. God help my poor wife and kids who put up with me.]

John Roberts: He was with the Court majority in all but 3 of the defining decisions (i.e., 20% dissent).
He broke with the Court on the "cultural issues" in Kennedy (no death penalty for child rapists) and in Boumediene (habeas corpus for Gitmo detainees). He took the harsher/tougher stance against both rapists and detainees. He also disagreed with the Court in one of the discrimination cases, Gomez-Perez (treating retaliation for an age discrimination claim as prohibited age discrimination), on the ground that another remedy already existed.

John Paul Stevens: He was part of the Court majority in all of the defining decisions but 2 (13% dissent).
In Heller (the 2d Amendment provides an individual right to bear arms), he took the more limited view that the gun right is tied to the defensive needs of state governments; in Davis

(campaign finance restrictions on self-financed candidates violate free speech), he continued his support for campaign finance laws.

Antonin Scalia: He departed from the Court majority in 6 of the 15 cases (40% dissent).
He dissented on the same 2 "cultural issues" and in the same one discrimination case as Roberts (see Roberts, above). Plus, he disagreed with the Court majority in the other 3 discrimination decisions as well--CBOCS West (treating retaliation for a racial discrimination complaint as prohibited under anti-discrimination law), Federal Express (request for "change" satisfies pre-condition for an age-discrimination lawsuit), and Snyder (prosecutor's exclusion of juror was illegally race-based). He found no legitimate discrimination claim in any of these 3 cases, as he didn't in Gomez-Perez either.

William Kennedy: Part of the majority in every case (0% dissent). Now that's being the Court's center and swing.

David Souter: He departed from the Court's majority in 6 of the 15 decisions (40%).
He took more politically liberal positions in the "cultural issues" and "political process" cases. Regarding "cultural issues," in Heller (gun right is individual), Baze (upholding lethal injection), and Medellin (states not bound by Int'l. Ct. of Justice ruling, even w/ the President's endorsement), he voted in dissent, respectively, that the gun right was intended for state governments, that the current method of lethal injection has too high a risk of unnecessary pain, and that international law is binding under the Constitution. Analogously, in Williams (upholding child pornography criminal law), he dissented against the conservative cultural position and found 1st Amendment problems.
In the "political process" cases, he dissented from the Court's holdings in Crawford (upholding voter ID law) and Davis (invalidating campaign finance restrictions). He took the position that the ID law was an undue burden on voting rights and that campaign finance laws did not violate free speech.

Clarence Thomas: He took a different position than the Court majority in 7 of the 15 cases (47%).
Like Scalia, he dissented in all 4 discrimination cases, finding no legitimate discrimination claim in any of them. (See Scalia, above.) In the "cultural issues" cases, he, like Roberts and Scalia, voted to allow harsher treatment of Gitmo detainees (Boumediene) and child rapists (Kennedy). (See Roberts, above.)
Analogously, in Kimbrough (upholding a sentence more lenient than the guidelines for crack cocaine), he dissented to insist on the harsher punishment provided by the guidelines.

Ruth Bader Ginsburg: She broke with the Court majority in 6 of the 15 cases (40%).
Like Souter on the "cultural issues" (see Souter, above), she dissented in Heller (gun right), Baze (lethal injection) and Medellin (international court decision), as well as Williams (child pornography), taking the more liberal position. Same for the "political process" cases, Crawford (voter ID law) and Davis (campaign finance). (See Souter, above.)

Stephen Breyer: He was on the opposite side of the Court majority in 4 of the 15 cases (27%).
Like Souter and Ginsburg, he took the more liberal position in dissent in the "cultural issues" cases, Heller (gun right) and Medellin (international court decision)--but not in Baze (lethal injection) or Williams (child pornography). (See Souter, above.)
In the "political process" cases, he was again on the same side as Souter and Ginsburg, dissenting from the Court's holdings in Crawford (voter ID law) and Davis (campaign finance restrictions). (See Souter, above.)

Samuel Alito: He broke with the Court majority in 3 of the 15 cases (20%).
Like Roberts, Scalia and Thomas in 2 "cultural issues" cases, he opposed the majority's more lenient/protective treatment of Gitmo detainees (Boumediene) and child rapists (Kennedy). (See Roberts, above.) Likewise, he was on the same side as Thomas in Kimbrough (sentence for crack cocaine), dissenting to insist on the harsher punishment provided by the sentencing guidelines.

Now for each Justice, you know what to do: connect the dots! Once each Justice's dissents are laid out as we've just done, the common denominators and, thus, the patterns become pretty evident. As do the contrasts between the Justices.

For the next post, probably the last in this series, we'll look at those cases in which each Justice seemed to break--not with the Court majority--but with his/her typical political or ideological pattern. I.e., on what issues did a liberal Justice vote for the more conservative resolution, and vice-versa ? Or otherwise break from some voting pattern?

Supreme Court: Justices In The Majority (Part 2--And Compared to In Dissent)

GRAPH 1: Frequency in Majority (#)

(In Order of Frequency)
(click to enlarge)

Here's a reorganization of the data from GRAPH 1 of the first post in this series. The Justices are positioned from left to right in the descending order of their frequency in the majority, and the frequencies are in absolute numbers (out of the 15 "defining decisions") instead of percentages. Simple enough reorganization, but an even starker picture of what we're talking about. E.g., Justice Kennedy first on the graph, having been in the majority in all 15 cases; Justice Thomas last, in only 8 of the 15, the least among his colleagues. (This post will deal with different matters within the data than did the previous post which, of course, is still available for anyone who missed it or who would like a refresher: see Supreme Court: Justices In The Majority, Dec. 8, 2008.)

The graph below is yet another reorganization. This one highlights how frequently each Justice was out of the majority--i.e., in dissent, having written or joined a dissenting opinion. Also, the frequencies are in percentages of the defining decisions. This reorganized graph will hopefully help to underscore the extent to which each Justice breaks with the Court's/majority's decisions--or did so in the defining decisions in the '07-'08 term--and the nature of those departures. The latter is, in fact, the focus of the discussion following the graph.

GRAPH 2: Frequency in Dissent/Majority (%)
(In Order of Dissent Frequency)
(click to enlarge)

The contrasting amounts of the two colors for each of the Justices sums it up pretty vividly. Just contrast the relative amounts of red [maroon? burgundy? garnet?] representing dissents and blue [yep, blue] representing majorities for Thomas, the first Justice on the graph; then the same for Kennedy at the other end; then contrast the two. Now that's a heck of a picture for a heck of a contrast. It reflects the difference within the Court between Thomas at one ideological end of the Court (the right/conservative end) and Kennedy in the center and as the swing vote.

Look also at the contrasting amounts of garnet [I've now settled on that, since it's the color of my undergraduate alma mater, Union College in Schenectady.] for Scalia, Souter and Ginsburg on the one hand, and Roberts, Alito and Stevens on the other. The former group of three was more out of synch with the Court as a whole in the defining cases, and the latter group of three more in synch.

In the next post, we'll take a look at each Justice's particular departure's from the Court majority.

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

Supreme Court: Justices In The Majority

GRAPH 1: Frequency in Majority (%)
(click to enlarge)

This graph (along with the reorganized one at the end of this post) depicts how frequently each Supreme Court Justice was part of the Court's majority in the "defining decisions" discussed in several earlier posts. In other words, the graph shows the percentage of those particularly revealing cases decided in the '07-'08 term in which each Justice voted with the winning side. The figures reflect a fairly wide range among the Justices of agreement, or alignment, with the Court's decisions. From Justice Kennedy's 100%, to Justice Thomas's 53%.

Following Kennedy, Justice Stevens and then Chief Justice Roberts and Justice Alito were most frequently in the Court's majority. Following Thomas, Justices Scalia, Souter and Ginsburg were equally in the majority the least. Justice Breyer fell midway between the two groups.

Notably, the division between those Justices who were most frequently in the majority and those who were least frequently does not break down along ideological lines. Instead, the breakdown is along the grounds of ideological strength or purity. As would be expected, Kennedy, the moderate swing vote, tops the list as the Justice most often a part of the Court's majority. He was on the winning side in every one of the "defining decisions." He was followed by liberal Stevens (87%) and, then, conservatives Roberts (80%) and Alito (80%). At the other end of the agreement/alignment spectrum are the Justices whose records are even more strongly ideological. Hence, Thomas (53%), perhaps the Court's most ideologically conservative member, was the Justice least often on the winning side. He was followed by three other Justices who also have strongly ideological voting records: very conservative Scalia (60%) and very liberal Souter (60%) and Ginsburg (60%), with the same agreement/alignment records. The remaining Justice, liberal Breyer (73%), fell midway between the highest, Kennedy, and the lowest, Thomas.

This order and these figures are somewhat different than those given by others for the '07-'08 term. For example, Supreme Court litigator and SCOTUS blogger, Thomas Goldstein, has agreement/alignment with the majority in the following order: Roberts, Kennedy, Alito, Scalia, Breyer, Souter, and then Stevens, Ginsburg and Thomas in last place together. (His order is, of course, the same when he considers all the Court's decisions or only the non-unanimous ones. When the pool is limited to non-unanimous decisions, Goldstein's percentages do change. But because the same pool of unanimous cases is removed from all the calculations, the ordering is unaffected.)

The difference between the order and figures determined by others, such as Goldstein, and the ones presented here is simply explained. The pool of cases is very different. Goldstein's calculations, for example, are not based upon a particular set of decisions. Rather, his are based on the entire variety of decisions: the non-ideological as well as ideological, the commercial and technical as well as constitutional and criminal, the purely procedural as well as the substantive and policy-laden, non-political as well as political, the non-controversial as well as the hot-button, etc., etc. As explained in earlier posts on the New York Court Watcher, the focus here has been limited to those especially telling, highly charged "defining decisions" which entail strong ideological, philosophical and cultural values and interests. (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 which are cited therein.) Just as those decisions are more revealing, so too are the order and figures based on them for agreement/alignment with the majority. They tell which Justices are in the majority and not--i.e., winning and not--in the cases which the Justices and the American public care most deeply about, have the strongest feelings about.

The next post will take a closer look at these agreement/alignment order and figures. In the meantime, as promised above, here's another graph. It provides another way to look at the same data depicted in GRAPH 1 above. It puts the Justices in order of their respective agreement/alignment with the majority, the scale is the actual number of decisions rather than percentages, and it also includes the flip-side of agreement/alignment--i.e., voting in dissent.

GRAPH 2: Frequency in the Majority and Dissent (#)
(click to enlarge)

New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 2 beginning)

The tempest has tempered a bit. [The phone inquiries subsided by noon today.] What a difference a day makes.

But the serious considerations, of course, continue. Let's hope that the energy that was displayed this week--both heat and light--will somehow be converted into real efforts to study and improve the Court of Appeals selection system. Although criticism of the system has been leveled in past years, some of it quite pointed and harsh (and oftentimes by me), the response from bench and bar has typically been nonsensical puffery. You know: how wonderfully the system is working and how magnificent the Court of Appeals has been as a result. Those who follow the court and the selection process closely know that the truth is far less positive than that.

But with the hope that this week's political brouhaha about the current list will actually instigate a genuine examination, followed by some genuine proposals, genuinely intended to change the system for the better--here's a continuation of the discussion began in yesterday's post. It's really just a continuation, in turn, of discussions that have and will be posted on the New York Court Watcher about the Court of Appeals, about how its judges are chosen, about the judges themselves, about their decisions, etc., etc., about New York's highest court.

Yesterday's post dealt with...

[Sorry, but a pressing matter calls me away. This post will continue on my return.]

New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 1)

[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.

New York Court of Appeals: The Guv Rejecting the Commission's List?

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.

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:
http://podcasts.classcaster.org/blog/event_podcasts/2008/03/04/judges_on_judges_
the_new_york_court_of_appeals_judges_own_favorites_in_court_history.)
[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: http://podcasts.classcaster.org/blog/event_podcasts/2008/03/04/judges_on_judges_
the_new_york_court_of_appeals_judges_own_favorites_in_court_history.)

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: http://podcasts.classcaster.org/blog/event_podcasts/2008/03/04/judges_on_judges_
the_new_york_court_of_appeals_judges_own_favorites_in_court_history.)

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.