The last post in this series on New York Court Watcher looked at the Nominating Commission's December 17 letter and supplemental report to the Governor (some good steps forward) and the ratings of the 7 Court of Appeals candidates by 2 different bar groups: the State Bar Association and the Women's Bar Association (puzzling at best, because inaccurate and misleading, as well as lacking in any helpful explanation). (See New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selection & Bar Ratings Games), Jan. 4, 2009.)
Notably, there were a number of strong responses to my criticism of the bar ratings. All were even more critical, identifying additional flaws in the ratings systems. And these came from prominent lawyers and other close observers who would know--really know.
Let's now look at one last set of ratings. Those given by the New York City Bar Association. Deemed "Exceptionally Well Qualified" were New York City attorney Evan Davis and Appellate Division Justice Jonathan Lippman. "Well Qualified" were Appellate Division Justice Steven Fisher, Court of Appeals Judges Theodore Jones and Eugene Pigott, and New York City attorney Peter Zimroth. "Not Well Qualified" was Albany attorney George Carpinello.
What can one say? I guess, why? Indeed, why?
Who knows??!! Other than the unhelpful blather that the City Bar applied the state "constitutional and statutory criteria" of "character, temperament, professional aptitude and experience" in evaluating all the candidates, there is no explanation whatsoever for the ratings given to the 7 who made the Nominating Commission's list--all of whom the Commission found to be well qualified.
Why did the City Bar disagree with the Nominating Commission about Carpinello? On which criterion or criteria did they reach a different conclusion? Did the City Bar use a different standard or set of standards? Did they use the same but came to a different conclusion? And for what reason? Who knows?
And why single out Davis and Lippman as being above the rest? Maybe they are, but why? Who knows?
And why give Court of Appeals Judges Pigott and Jones the acceptable "Well Qualified" rating as opposed to the "Exceptionally Well Qualified" one--or even the "Not Well Qualified" one? Who knows? Ditto for Fisher and Zimroth.
Maybe legal education is part of the key to solving the puzzle. Davis and Lippman graduated from elite schools in New York City--Columbia and NYU, respectively. Carpinello and Zimroth only went to Yale in New Haven. Fisher and Jones did go to school in the City, but only to Brooklyn and St. John's. And Pigott, please! He went to school in God-forsaken upstate Buffalo. (Actually, that's Western NY.)
Maybe it's law review credentials. But then--as noted in the last post--Davis (EIC Columbia), Zimroth (EIC Yale) and Carpinello (Editor, Yale) would be the choices for "Exceptionally Well Qualified."
Maybe it's judicial experience. But then--as also noted in the last post--Fisher, Jones and Pigott would be the "Exceptionally" choices. Davis would be out--he has none. And so, in all candor, would be Lippman--he has very little.
Maybe it's administrative experience. But then--again as noted in the last post--Davis would not be an "Exceptionally" pick. Lippman would. But so would Fisher and, especially, Pigott (former PJ of the Appellate Division, 4th Dept).
What about "temperament"? "Aptitude"? Who knows? Not a clue here.
What ARE the standards used by the City Bar (and the other bar associations engaged in ratings)? How are they applied? What's the methodology? On which standards did some of the candidates excel more than others? And how so?
Who is applying these standards? That's a big question. WHO exactly is determining these ratings? What are THEIR qualifications to rate candidates for the Court of Appeals? For Judge or Chief Judge. What exactly do THEY know and understand about the work of the Court of Appeals? About the realities of appellate judicial decision-making? Of appellate judicial decision-making at a court of last resort? Who knows????????
AND, like the other bar ratings, there are absolutely no reasons given for the particular rating given each candidate. (Yes, the Women's Bar did offer a line about its recommendation of Lippman. But that was unhelpful and even misleading. [Again, see the last post if interested in more on that.])
If these bar association ratings are going to be so unhelpful and unsupported by any explanation, why bother? And why should anyone take them seriously? Including the Governor. The problem, of course, is that some casual observers and readers do take them seriously as the considered judgement of respected organizations. Unfortunately, like the Wizard of Oz, there seems very little to take seriously behind the curtain. Or at least nothing that the bar groups are revealing.
So why even bother?
[In the next post, I'll stick my own neck out and give my own ratings. In my own way, using my personal--but candid--criteria.]