Thursday, November 6, 2014

Part 2 [Renominations Historically] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo

We'll be taking a look at Judge Graffeo's record on the Court of Appeals, and we'll then be trying to get some sense of what Judge Stein's record at the Appellate Division portends. 
But first...

Let's look at the history of sitting Court of Appeals Judges who were up for renomination. Specifically, those Judges who had completed a 14-year term, but were eligible for retention because they had not yet reached the mandatory retirement age of 70. The history is interesting, and quite telling.

Reviewing the entire last century:
  • Matthew Jasen--reappointed by Gov. Hugh Carey (1981)
[Previously, Court of Appeals Judges ran for election.]
  • Adrian Burke--cross-endorsed by the Democratic and Republican Parties for reelection (1968)
  • Stanley Fuld--cross-endorsed for reelection (1960)
  • Marvin Dye--cross-endorsed for reelection (1958)
  • Charles Desmond--cross-endorsed for reelection (1954)
  • Albert Conway--cross-endorsed for reelection (1954)
  • Irving Lehman--cross-endorsed for reelection (1937)
  • Frederick Crane--cross-endorsed for elevation to Chief Judge (1934)
  • Cuthbert Pound--cross-endorsed for reelection (1930)
  • [Must note Benjamin Cardozo--cross-endorsed for elevation to Chief Judge prior to the completion of his 14-year term]
  • Irving Vann--cross-endorsed for reelection (1910)
  • Albert Haight--cross-endorsed for reelection
  • Edward Bartlett--cross-endorsed for reelection (1907)
  • Denis O'Brien--cross-endorsed for reelection (1903)
  • John Gray--endorsed by the Democrats; challenged by the Republicans; reelected (1902)
In short, in the last century:
  • Every single eligible Court of Appeals Judge was retained.
  • Every single Court of Appeals Judge who ran for reelection was reelected.
  • Every single Court of Appeals Judge who ran for reelection was cross-endorsed by both major political parties, except for one, at the very beginning of the century--i.e., John Gray, who was still reelected.
  • The single Judge eligible under the then-new appointment system was reappointed.
  • Stated otherwise, not a single Court of Appeals Judge was denied retention. 
But then, in this century, there was Governor George Pataki. He was deplorably hyper-partisan and hyper-ideological about criticizing the Court and in making appointments. He also broke the century-plus bi-partisan tradition of retention by refusing to reappoint Judge George Bundy Smith--a Gov. Mario Cuomo appointee, who was the only African-American on the Court.
[N.B., 6 Pataki appointees, but not a single minority. Not a single Democrat either. Apparently, unlike his predecessor, Mario Cuomo, neither racial nor ethnic nor political diversity was a particular concern.]

So here's what this century looked like prior to the Judge Graffeo vacancy:
  • George Bundy Smith--denied reappointment by Gov. George Pataki (2006)
  • Carmen Beauchamp Ciparick--reappointed by Gov. Eliot Spitzer (2007)
  • Judith Kaye--reappointed by Gov. Eliot Spitzer (2007)
And now, Gov. Andrew Cuomo--following in the steps of George Pataki, rather than the other Governors and both the Democratic and Republican parties over the course of more than a century--has denied reappointment to Judge Victoria Graffeo.

Indeed, Andrew Cuomo's break with the long bi-partisan tradition is arguably far worse than Pataki's.

At least in Pataki's case, it could be argued that the Judge he chose not to reappoint had only a year of eligibility left on the Court before retirement age and, moreover, that this was Pataki's last chance to put his imprint on the Court before the end of his tenure as Governor.

In Andrew Cuomo's case, Judge Graffeo was eligible for 8 more years and, moreover, Andrew Cuomo has several appointment opportunities to come. He will, in fact, be making another appointment very shortly. He will be filling a vacancy that arises because Judge Robert Smith faces mandatory retirement age (70) this year. He will then be filling a vacancy in each of the next 3 years when--in this order--Chief Judge Jonathan Lippman, Judge Eugene Pigott, and Judge Susan Read must retire.

So there it is. Going back at least as far as the beginning of the last century, every single Court of Appeals Judge eligible for retention has been retained, regardless of party affiliation, and virtually always with bi-partisan support.
The sole exceptions: Judge George Bundy Smith denied reappointment by Pataki, and now, Judge Victoria Graffeo denied reappointment by Andrew Cuomo.

Anyone who cares about having a strong Court of Appeals, anyone who would hate to see the New York Court devolve into the polarized partisan disaster that is the current U.S. Supreme Court, should be extremely concerned. What George Pataki began, what Andrew Cuomo has now followed, is more than a break with a long bi-partisan tradition. What they have done mirrors the hyper-partisan, hyper-ideological pattern of Presidential appointments over the last several decades that has severely damaged the quality, integrity, and reputation of the Nation's high court.

The New York Court of Appeals has historically been a great court. In large part, that is because strong Judges have historically been retained without regard to party affiliation and without regard to the ideological bent of the renominating or reappointing authorities. Let's hope that Gov. Pataki's approach to the Court and, now, Gov. Andrew Cuomo's, remain aberrations.

[Lest there be any confusion, my criticism of Gov. Pataki's public bashing of the Court of Appeals and his approach to appointments is not a reflection on his appointees themselves. Indeed, Judge Pigott, who Pataki appointed instead of reappointing Judge G.B. Smith, and Judge Graffeo, who Pataki appointed but Andrew Cuomo has declined to reappoint, have both served on the Court with considerable distinction. To be fair to Pataki, he has placed some exceptional Judges on the Court.]