Saturday, September 6, 2014

NY Court of Appeals: The List for the Graffeo Seat (Part 1)

Saratoga's done. Summer break's over. The new semester's started.
Time to get back to reality--and the New York Court Watcher.

New York's Commission on Judicial Nomination has just submitted its list of seven recommended names to Governor Andrew Cuomo. He now has 30 days to choose someone from that list to fill a vacancy on the Court of Appeals, the state's highest court.

The vacancy on the high court will arise at the end of November. That's when Judge Victoria Graffeo's 14 year term on the Court expires. Interestingly, and perhaps most importantly for this entire process, Judge Graffeo is eligible to fill that vacancy herself. She has many years before reaching New York's [moronic] mandatory retirement age of 70. So the Governor can choose her.

Oh yes, she is on the list.
[And in the interest of full disclosure, I'm rooting for her.] 

Let's take a look at that list. It's a strong list. More immediately conspicuous than that, it's a very diverse list:
4 women, 3 men
1 Black man
1 Indian-American woman
1 openly gay man
3 Upstaters (1 from Western New York), 4 Downstaters
3 sitting judges
2 private practitioners
1 government lawyer
1 currently in academe
6 Democrats
1 Republican 

A Republican! Yes. The first and only one to be named on any of the last 3 lists. That is, the first and only one to be named on any of the 3 lists produced by the Commission since Andrew Cuomo's been Governor.

Maybe the reason is that very few Republicans even bother to apply. Maybe Republicans who might otherwise apply simply figure that they have no chance to be chosen by Democrat Cuomo. Or maybe the Commission itself believes the same so doesn't bother placing Republicans on the list. Or maybe the Commission just hasn't thought the Republican applicants have been as good as the Democrats.

I don't know. The Commission does not release the names of all the applicants, so there's no opportunity to check how many Republicans have actually applied. Nevertheless, despite the racial, ethnic, gender, geographic, career, and other diversity on this list, one thing that does stand out--especially when also considering the previous 2 lists--is the dearth of Republicans.

Let's place this virtual absence of political party diversity in perspective. Let's consider the record of the current Governor's father.

When Mario Cuomo was Governor, he was given lists that included Republicans. And he took advantage of that. He appointed as many Republicans as Democrats to the Court of Appeals. Indeed, some of his very finest picks were Republicans. Richard Simons, Stewart Hancock, and Howard Levine were some of the very best high court Judges of the last few generations. Mario Cuomo even appointed a Republican to be Chief Judge--i.e., Sol Wachtler, who proved to be a very strong leader on the Court.

In that very important regard, Governor Mario Cuomo behaved far differently than have our last several Presidents. For the last few decades, our Presidents' appointees to the Supreme Court have been extremely partisan. Not surprisingly, those appointees have largely acted like extreme partisans on the bench--i.e., rather than like more detached judges. That's one of the reasons--if not THE reason--that the Supreme Court today is so dreadful. Not because it's too conservative or too liberal. Or too activist or restrained. But because the Justices--except perhaps Anthony Kennedy--are shamelessly partisan.
[This was discussed and demonstrated graphically in a many-part series not too long ago. See e.g., Part 11: A Court of Shameless Partisans. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)]

The New York Court of Appeals is a far better court today. There are surely some Judges on the Court who are more conservative than others, and some who are more liberal. But there's no shameful politically partisan divide as there is on the Supreme Court.

Also, the Judges on the Court of Appeals happen to be pretty darn good. And one of them happens to be Victoria Graffeo--who also happens to be the first and only Republican to have made the last 3 nomination lists.

We'll discuss her and the others on the current, strong list in the next post.

[Meantime, John Caher reviewed the list and the reactions to it in yesterday's New York Law Journal: Experts Weigh Benefits to Cuomo of Graffeo Reappointment, Sept. 5, 2014.]