Thursday, January 8, 2009

New York Court of Appeals: This List, Past Lists, the Guv...(Part 6: The Guv's Selection & My Own Ratings)

The last 2 posts on New York Court Watcher dealt with 1) the Nominating Commission's December 17 letter and supplemental report to the Governor, and 2) the ratings of the Commission's candidates issued by 3 bar associations: the State Bar, the Women's Bar, and the New York City Bar. To recap those posts: #1 was helpful, #2 were pretty worthless. (See New York Court of Appeals: This List, Past Lists, the Guv...(Part 5: The Guv's Selection & Bar Ratings Games [Cont'd.]), Jan. 7, 2009, and (Part 4: The Guv's Selection & Bar Ratings Games), Jan. 4, 2009.)

At the end of the last post, I promised to give my own ratings of the candidates. Not because the Governor or anyone else might really care or be persuaded by them. But more because I think it only fair to stick my own neck out after criticizing others' ratings.

So here goes. And the virtue of my humble ratings, if there is any, is not necessarily some special insight or wisdom. But candor. I'll be honest, and I'll avoid adding to the officious, pretentious blather.

Eugene Pigott. I've got to admit, I really like him. Yes, he's a somewhat conservative Republican (and I'm a somewhat liberal Democrat). But he's a stand-up, gutsy, independent guy. He seems a natural leader.
I saw him give a talk last Spring at my law school and he was great--confident, funny, sincere, insightful, lively. Plus, his subject, his favorite judge in Court of Appeals history, was Matthew J. Jasen. I worked for Jasen as his law clerk for 3 years and thought the world of him. And Pigott did a great job capturing Jasen.
Related to that, Pigott--like Jasen--is from the Buffalo area. I love that place. My favorite place of all the places I've lived. The people are hardy and down-to-earth, and love to eat. (I've always found the latter characteristic to be a strong positive.)
Plus, Pigott's a Vietnam Vet. Didn't run away. Didn't cower. Didn't hide behind flat feet or some other nonsense. Didn't suddenly hate his country or the military or finagle some cush position in the Texas Air Guard. (OK, you see where I'm going.) As a Vietnam-era Vet, I count being a Vietnam Vet as big plus. Being a Vet, period.
In addition to all that, Pigott was the Presiding Justice of the Appellate Division, 4th Department for 6 years. He knows what it takes to run a court. And as an appellate judge for over 10 years, he knows how decisions are really made.
Ever since former Court of Appeals Judge Stewart Hancock introduced me to Pigott about 10 years ago, I've corresponded with him on occasion and have always liked him.
I think he'd be a terrific Chief.

Theodore Jones. I've only met him a couple of times and, then, only to say hello. I did, however, hear him speak at that symposium last Spring, where each Court of Appeals Judge spoke about his favorite judge in court history. Jones, speaking about Harold Stevens, the first African-American on the court, was mesmerizing. Nothing short of that. Powerful, poignant, gripping, emotional--wow! Well, that sold me--and many others present that day--on him.
Along related lines, it would be historic to have the first African-American Chief. And, yes, I'm partial to that. Not only as an American and a New Yorker would I be thrilled to see that milestone reached. But also as a Bonventre. Like an increasing number of families in this country, we count among our blessings a number of mixed marriages. (To us that means Italian and anything else.) Our family includes African-American spouses, and in-laws, and chlidren, godchildren, nieces and nephews. The appointment of the first African-American Chief Judge would be a triumph to be celebrated. (As much as would be the appointment of the first Italian-American.)
Also, Jones is a Vietnam Vet. Again, a big plus in my book. (See my comments on Pigott.)
Additionally, he has shown himself to be independent and willing to take a stand--both while a trial judge and since he's been on the Court of Appeals. (See, e.g., the discussion in New York Court of Appeals: The Jones Factor in Criminal Cases , Aug. 8, 2008, and (Part 2), Aug. 19, 2008.)
He would help move the Court in a more progressive (alright, liberal) direction.
I'd be thrilled if he were appointed.

George Carpinello. While I'm being tribal, let me also admit right off the bat that I'd be thrilled to see Carpinello appointed because he'd be the first Italian-American Chief Judge. Beyond that, I know him from his days as a professor at Albany Law. He is extremely bright and energetic and talented and he's a natural leader.
His educational pedigree is absolutely first rate. Princeton (probably America's finest undergraduate institution) and Yale Law (probably its finest law school). And he was very successful at both. Magna and Phi Beta Kappa at Princeton; an editor of the Law Journal at Yale.
His career: a federal clerkship, professor at Albany Law, Director of the Government Law Center, practitioner at a premiere law firm, including sophisticated litigation. A record of bar and community service.
I love his Mom. (A magnificent Sicilian woman who raised an extraordinary family--which also includes former Appellate Division Justice Anthony Carpinello. She worked at Albany Law School for many years.)
George is an exceptional guy who'd make an exceptional Chief Judge.

Evan Davis. Don't know him; only know of him. No getting around it, his education, career experience, and achievements are simply extraordinary. No ifs, ands, or buts. This is someone whose vita would place him on a par with the most qualified candidates for the United States Supreme Court.
Let me just rattle off a few things: Harvard College, Columbia Law (Magna), Editor-in-Chief Columbia Law Review, D.C. Circuit and Supreme Court clerkships, U.S. House Judiciary Committee staff investigating Watergate, Counsel to Governor Cuomo, President NYC Bar Association, partner at one of the world's premiere law firms, litigation at the highest and most sophisticated levels. Whew!!
Ok, 'nough said. Extraordinary. Would certainly help move the Court of Appeals back where it belongs, as one of the nation's very strongest courts.

Peter Zimroth. Don't know him; only of him. Like Davis (see above), no getting around it, his education, career experience, and achievements are simply extraordinary.
Again, rattling off a few things: Columbia undergraduate, Yale Law, Editor-in-Chief Yale Law Journal, D.C. Circuit and Supreme Court clerkships, assistant U.S. Attorney, Deputy Chief D.A. in Manhattan, NYU law professor, Corporation Counsel of NYC, partner at one of the world's premiere law firms, litigation at the highest and most sophisticated levels. Again, whew!!
Like Davis, he is one of the strongest candidates for the Court of Appeals since the "merit" appointment system took effect 30 years ago. He too would help restore the court to its traditional prominence.

Jonathan Lippman. Don't know him; only of him. I do hear very good things about him.
First and foremost, he was the trusted Chief Administrative Judge to now-retired Chief Judge Kaye for about 10 years, and he was the Deputy for 6 years before then. The word is that Kaye would like to see him get the nod. That's a pretty good endorsement in my view. Also, in addition to Kaye, lawyers and judges I know personally speak highly of Lippman and even speak of him endearingly.
My own personal view is that he does not have the kind of experience--cum track record--in tackling complex, difficult, consequential legal-societal issues that I believe is an extremely important qualification for someone to serve on the Court of Appeals, or on any high court whose primary and most critical function is to decide such questions. (For related discussions on this point, see New York Court of Appeals: Memo to the Governor & the Commission, Nov. 17, 2008 [esp. points 4 & 5], and New York Court of Appeals: This List, Past Lists, the Guv, the AG, and the Selection System (Part 4: The Guv's Selecting a Great Chief JUDGE), Jan. 2, 2009.) Such experience might come from prior judicial service, from high-level litigation as a government or private lawyer, from holding high public office, from academic study and scholarship, from related public interest work, etc. etc. Admin work is, obviously, important, especially for the position of Chief Judge. But a background of work that involves tackling, arguing, studying, analyzing, or otherwise participating in the resolution of the fundamental legal-societal issues that confront high court judges seems to me to be much more essential.
Now regarding admin work, Lippman is the champ. No question. It's a pretty good bet that at this point, after all his years as Deputy and then Chief Admin Judge, he knows the New York State court system inside out.
If, however, judicial administration is to be an appointee's strong suit, then I would prefer that it be something akin to that of a judge presiding over an appellate court. The kind of position that entails leading a body of independent judges who each have a vote equal to your own. Judges who can openly disagree in dissent, and even lead the court against your position by being more persuasive and gathering more votes than you. Presiding over that, leading those judges under those conditions, for the purpose of resolving those fundamental legal-societal issues. That's the kind of admin leadership that seems to me to be primary and most critical for a great chief presiding over a great court.
That being said, there must be something to Lippman that cannot be determined by simply examining his resume. I say this because a lot of people who know him are telling me he'd be a terrific Chief Judge. And they're saying it in private.
[It would, of course, have helped if the Women's Bar Association and City Bar Association, for example, had offered a little more than the pretty worthless boilerplate in the "Exceptional" ratings they each gave Lippman.]

Steven Fisher. I discuss him last only because I know the least about him.
I will say that absolutely everything I have heard about him is very good. He was a great trial judge. He is very smart. He's scholarly. He has made 3 prior Nominating Commission lists for the Court of Appeals. Apparently he's very impressive and has impressed many people.
I know that he presided over the trial in People v. Taylor, the Wendy's case in Queens several years ago. He was smart enough to avoid the constitutional sentencing infirmity which the Court of Appeals later found to effectively invalidate the state's death penalty law. (The Court of Appeals still overturned the capital sentence imposed in Taylor on the ground that the statute itself, not just the flaw avoided by Fisher, was invalid.)
I also know that Fisher is a grad of my own law alma mater--Brooklyn Law School. I obviously like that.
Upon graduation, he worked as an ADA for a few years in Brooklyn. He later served as a law clerk for several years to the then-Presiding Justice of the Appellate Division, 2d Department, and, for the last 5 years, he has been a justice on that court. What this tells me is that he has been dealing with difficult, consequential legal issues for many years--as a criminal prosecutor, as an appellate law clerk, and as an appellate judge. And as the confidant of the Presiding Justice of an appellate court, he knows first hand what leading a collegial body of judges entails.
From what I know, it looks like he'd be a pretty darn good pick.

So there it is. Those are my personal, candid views--ratings if you must--of the candidates for Chief Judge. I could fudge a bit, eliminate some of the considerations that might seem non-professional, enlarge upon others that would seem more serious or appropriate for a job application. But then that wouldn't represent what I'm really thinking, the unvarnished and unpretentious truth. But the point here was not to say what others might think I should think or say. So there you have it.