Monday, October 20, 2014

NY Court of Appeals: Cuomo Chooses Stein Over Graffeo (Part 1)

(Link to today's interview on Fred Dicker: Live at the State Capitol below)

Last Friday, Governor Andrew Cuomo made his selection for the Court of Appeals, New York's highest court.
He appointed a very fine judge, Leslie Stein, instead of re-appointing the very fine incumbent, Victoria Graffeo.

A Few things.

He did so 2 weeks after the law required him to do so. [See Judiciary. Law § 68 (1d) & (2).]
(This was discussed on New York Court Watcher in the previous post, Part 4 [The Guv's Delay].)

He did so by press release. Not a press conference. Not standing proudly with his nominee, introducing her to the citizens of the State, and underscoring how important--even momentous--nominations to the high Court are.
(I certainly recall Governor Mario Cuomo introducing his nominees. He understood the importance of the Court of Appeals and he held it in the highest esteem.)

He did so in the wake of public outcries, against the moderately conservative Judge Graffeo, by certain women's rights and gay rights groups, who suddenly became vocal during the Governor's 2 week delay.
(Whether the Governor caved in to the pressure of these outcries, or whether he or his cronies instigated the outcries themselves--and there are those who follow these things who are suggesting each of those possibilities--that would represent a level of politicizing nominations that hasn't been seen since Governor Pataki's shameful public bashing of the Court and his announced crusade to appoint "law and order" Judges.)

He did so with no explanation whatsoever why he was declining to reappoint Judge Graffeo--who was widely supported by members of the bench and bar, Democrats as well as Republicans.
(In doing so, he joined the rank of former Governor Pataki, who passed over Judge George Bundy Smith and, until now, was the only Governor to reject a sitting Court of Appeals Judge--let alone one so highly regarded.)

He did so appointing his 3rd Democrat--at the expense of bi-partisanship, and with the cost of depriving the Court of Appeals and the people of New York of the invaluable experience and wisdom of an exceptional judge--who happened to be a Republican.
(Sorry to sound like a broken record, but in doing so he again follows the lead of former Governor Pataki, who only nominated members of his own party: 6 nominations, 6 Republicans, 6 he chose to be "law and order" judges. And not at all like former Governor Mario Cuomo who appointed as many Republicans as Democrats, conservatives as well as liberals.)
[Note: Originally, I had referred to 5 Pataki nominations; I have made the correction to 6.]

In the long run, this last matter--together with caving to or instigating public outcries--is the most troubling. Are New York Governors henceforth going to follow the example of Presidents in their judicial nominations? Is the New York Court of Appeals going to be turned into the same kind of hyper-partisan disaster as the Supreme Court?

We know what has happened to the Supreme Court. Conservative Republican Presidents appoint conservative Republican Justices. Liberal Democratic Presidents appoint liberal Democratic Justices. The result? A hyper-partisan, hyper-ideological appointment process. And a Supreme Court deeply divided over--NOT judicial philosophy or some other legitimate judicial concern--but hyper-partisan, hyper-ideological disagreements.
(We've discussed this at length in New York Court Watcher. See e.g., Part 11: A Court of Shameless Partisans.)

So Republican Presidents appoint the likes of Justices Scalia, Thomas, Roberts, and Alito. Democratic Presidents appoint the likes of Justices Ginsburg, Breyer, Sotomayor, and Kagan. And on virtually every controversial issue, both groups vote along party/ideological lines.
(Only Justice Kennedy--the swing vote--breaks from the party line with some regularity.
And, oh, he was President Reagan's 3rd choice, much to the chagrin of conservative Republicans, after their 2 preferred choices embarrassed Reagan in the appointment process.)

Consider how predictably the Justices divide, along partisan lines, on the hot-button issues:
Religious freedom versus contraceptive coverage?
Campaign finance?
Gun rights?
Gay rights?
Reproductive rights?
Affirmative action?
Voting rights?
Death penalty?
Etc., etc., etc.

The dueling partisan, ideological appointments of consecutive Republican and liberal Democratic Presidents have led to a Court where the Justices--at least 8 out of 9--consistently vote as dueling partisan, ideological camps.

The Court of Appeals is much better than that.
Governor Mario Cuomo's nominations were much better than that--Republicans as well as Democrats, conservatives as well as liberals, etc., etc.
Governor Pataki's were not.
(Yes, Pataki nominees such as Victoria Graffeo developed into truly exceptional judges. But the basis of his nominations was partisan and ideological, and the Court and its reputation suffered for quite a while as a result.)

Thus far, particularly with his very disappointing decision not to reappoint Judge Graffeo, Governor Andrew Cuomo is behaving much more like Governor Pataki than the 1st Governor Cuomo.
If he continues on this path, and subsequent Governors behave likewise, the Court of Appeals risks degenerating into the hyper-partisan, hyper-ideological disaster that is the current state of the Supreme Court.

Next posts we'll look specifically at Judges Graffeo and Stein.

Meanwhile, here's my interview with Fred Dicker:

Fred Dicker: Live from the State Capitol!