Monday, September 28, 2009

NY Court of Appeals: The Paterson v. Skelos Decision--Graphs for the Grumbling!

Last week's post reviewing the Court of Appeals decision in PATERSON v. SKELOS evoked considerable response. Among the most salient (if least substantive) was a complaint that the somewhat lengthy text was unaccompanied by any graphs. Yes, those graphs that have been a mainstay of this blog. Well, that confirmed what I have suspected all along. Some readers of the New York Court Watcher prefer a few pictures--uh, "visual aids"--to my unadorned droning. Fair enough.

Herewith, then, are a few graphs to help visualize the essence of what I was trying to say about that case.
The Votes in PATERSON
(by seniority)

As depicted in Graph 1, the vote was 4 to 3. The majority, as we all know, ruled in Governor Paterson's favor--i.e., that he did have the legal authority to appoint a Lieutenant Governor to fill the vacancy created when he became Governor upon Eliot Spitzer's resignation. Chief Judge Lippman, and Judges Ciparick, Read, and Jones comprised the 4 vote majority. (Note the color blue, as in Democratic/blue states, for the 4 Judges who sided with the Democratic Governor. Clever, huh?)

Judges Graffeo, Smith, and Pigott voted against Paterson--i.e., that he did not have such an appointment power. (Note the color red, as in Republican/red states, for the 3 dissenters who sided with Republican Senator Skelos, the plaintiff challenging the Governor's appointment.)

Chief Judge Lippman wrote the opinion for the majority. Judge Pigott for the dissenters. (This is indicated by the bold outline of the bars representing Lippman's and Pigott's votes.)

Graph 1 was organized by the Judges' seniority. Now let's reorganize by vote.GRAPH 2
The Votes in PATERSON
(by vote)

Ah, that makes the voting a bit clearer. One interesting fact mentioned in the earlier post, but made more vivid when graphed, especially in this order, was the political make-up of the majority and dissent.

The majority (siding with Paterson) included all 3 Judges appointed by Democratic Governors--i.e., Lippman, Ciparick and Jones. All 3 dissenters (against Paterson) were Republican appointees--i.e., Pigott, Graffeo and Smith.

The swing vote in the case was Judge Read. She was appointed by Republican Governor Pataki (who also appointed all 3 dissenters). But she voted with the Democratic appointees. In short, Read broke political party ranks, and she was the only member of the 7-Judge court to do so.

None of this is intended to suggest that the Judges must have voted in bad faith, choosing to take partisan positions rather than honestly applying the law as they saw it. But, as in any case--indeed, as in any matter involving members of the human species--when the choice is between 2 positions that are very close, two positions that are both legitimate and supported by strong considerations, personal experience and wisdom and insight and perspective will tilt the scales. And when 6 out of 7 votes in an appellate decision are along party lines, the odds are pretty slim that political party values, sympathy, predisposition, or other influence have played no part whatsoever. Come on, judges are not robots. And, of course, thank God for that.

In any event, after watching oral arguments on line (Amazing, isn't it!), I was interviewed for my observations. I made clear that the Judges seemed "hot"--i.e., well prepared and very actively engaged in questioning the lawyers. I also noted that Kathleen Sullivan was brilliant in arguing for Paterson. (That constitutional scholar and former Stanford Dean seems generally extraordinary.) And it seemed that the court was leaning toward Sullivan's argument and quite skeptical of her adversary's. When asked about a prediction, I did say that I believed the court would rule for Paterson, and that the vote would be 4 to 3 (or better if any of the Republican appointees concluded that Skelos didn't even have standing to bring the lawsuit).

I said that all 3 Democratic appointees--based primarily on the questions that they asked, supplemented by their voting patterns and political affiliations--would very likely vote for Paterson. I was also pretty confident--for much the same reasons--that 2 of the Republican appointees, Graffeo and Smith, would vote against Paterson.

That left the remaining 2 Republican appointees, Read and Pigott. It was not easy to read Read. (Yes, I know what I just typed.) She asked little that showed her hand on the merits. She did, however, express considerable skepticism about Skelos's standing. Based on that, I thought she could end up being an additional vote for Paterson. But based on her voting patterns and political affiliation, I thought she would more likely vote with her fellow Republican appointees against Paterson on the merits. And I was wrong.

As for Pigott, his questions showed that he was quite skeptical that the office of Lieutenant Governor had to remain vacant until the next quadrennial gubernatorial election--as the attorney for Skelos had insisted. Pigott seemed to think that such a scenario makes little sense. Additionally, his voting record gives little reason to expect that he will vote like a Republican rather than a Democrat, especially in big cases. So based on his expressed skepticism at oral argument, as well as his typical preference for decisions that seem the most sensible--rather than legally nit-picky--I figured that he was a likely vote with the Democratic appointees for Paterson. And I was wrong.

So my predictions were wrong on Read and Pigott. But because those 2 simply switched the votes I had predicted, my overall predictions about the court's ruling and the raw vote count turned out to be right. Sometimes you win for losing! (It's like the time this summer I mistakenly bet on the wrong horse at Saratoga. He won. The horse I actually intended was a big loser.)

But I've now gone on for a few paragraphs without a graph. And this post is supposed to be compensation for the last graphless post. So without further ado, here's a graph depicting what I've just discussed: my predictions versus the Judges' actual votes.
The Votes in PATERSON
Prediction vs. Actual
(by seniority)

My predictions are represented by the very pale bars. Note the symmetry with the bars representing the Judges' actual votes, except for those for Read and Pigott. Alternatively, note the asymmetry with the bars for Read and Pigott, depicting how I had the voting of those 2 Judges reversed--i.e., had those 2 wrong.

Now, as before, let's reorganize the graph by vote--actual vote.

The Votes in PATERSON
Prediction vs. Actual
(by actual vote)

Again, that reordering seems to make things a bit clearer. The 4 actual majority votes; the 3 actual votes in dissent. The predicted 4 to 3 votes. The contrast between actual and predicted votes for both Read and Pigott.

In my Judicial Process Seminar this afternoon, I had the class watch the court's video of the oral arguments. Their impressions of Read and Pigott were interesting.

Based on her questions, the students had mixed views about Read's leanings in the case. As for Pigott, however, there was a fairly strong consensus: whatever his initial leanings, he seemed clearly to reject the answers given him by Skelos's attorney and, therefore, seemed likely to vote for Paterson. Indeed, watching the oral arguments this second time, I came away with those same impressions--my first impressions-- reinforced. I would still have predicted that Pigott was going to vote for Paterson. So, I wonder....

Was Pigott playing judicial poker? Was he trying to elicit an argument from Skelos's lawyer that might make more sense? Did he change his mind after oral argument? Was he deliberately trying to keep the lawyers, his colleagues, or court watchers off balance? Or is this exercise of making predictions from Judges' questions at oral argument simply fraught with a good deal of uncertainty by its very nature?

The latter is definitely true. But making predictions, however tentative, is still too much fun to stop doing so. And who knows, maybe one of those other possibilities was also true in this case. Well, maybe I'll suggest that to Judge Pigott when I next see him. That would be more fun than simply admitting that I--together with my brilliant Judicial Process students--simply got him wrong.