Come the new year, New York's highest court will be 2 Judges short. That is, in the absence of the Governor and the Senate near-miraculously completing their respective nominating and confirming duties, the Court of Appeals will begin 2015 with only 5 of its 7 seats filled.
As we've been discussing, Judge Victoria Graffeo's 14-year term expired in late November. Governor Andrew Cuomo disregarded the legal deadline. He took an extra 2 weeks to render his nomination decision. (I.e., deciding not to reappoint Graffeo and, instead, to nominate Appellate Division Justice Leslie Stein.) The Senate, apparently having as little regard for the law as the Governor did and, perhaps, even less, is now 4 weeks past its legal deadline. It has yet to hold or even schedule confirmation proceedings. (The Senate Judiciary Committee's website currently states: "This committee currently does not have any public events scheduled." So who knows?)
That's one of the vacancies. Then there's number two.
Judge Robert Smith turned 70 this year. Under New York's [yes, moronic] mandatory age-retirement law, he is automatically removed from the Court at midnight on December 31. The Commission on Judicial Nomination has already submitted its 7-name list of possible replacements to the Governor. (Oh, the Commission has actually been abiding by the Judiciary Law's deadline.) The Governor now is legally required to make his nomination pick from that list between the 1st and 15th of January. The Senate then has 30 days to confirm or reject the Governor's choice.
Soooo, again, short of a political and logistical miracle, New Year's day will arrive with a 5-member Court of Appeals. (See/listen, interview with Karen DeWitt: New York's Highest Court Begins New Year Down Two Judges, Dec. 2, 2015. Also see the correction at the end of this post.)
Now it is true, the Court can technically function with only 5 members. Under the state constitution, 5 Judges is a quorum, and a decision can be rendered as long as 4 Judges agree on a disposition.
But any such quorum and any such decisions are reached without the perspectives and insights that the 2 missing Judges would provide. Worse than that, any case resulting in a 3-2 split--i.e., any case with 2 Judges disagreeing with the majority--is a case without a decision.
Yes, the lack of a 4-Judge majority precludes a decision. And no, the Court may not vouch-in a judge or judges from another court to insure that some 4-Judge majority is reached.
The state constitution does authorize the Court to "designate" a judge from a lower court (i.e., state supreme [trial court] or the Appellate Division [intermediate appeals court]) under certain circumstances. But not to remedy an actual vacancy on the Court. Not when a position on the Court is actually unfilled. Not, for example, when a Judge on the Court has retired, resigned, or died, or whose term has expired. No. No vouching-in, or designating, under those circumstances. (NY Const Art. VI, sec. 2 a.) Hence, no vouching-in or designating to temporarily remedy the 5-Judge Court.
The constitution does authorize the Court to vouch-in, or designate, but only when there is a "temporary absence" of a current member of the Court. For example, if one of the Court of Appeals Judges had to recuse herself from a case, or was too ill or otherwise unable to participate temporarily, then a judge from outside the Court could be "designated" to sit in that absent Judge's place. That is a very different scenario than what the Court of Appeals is now facing.
The long and the short of all this is that, come the new year, the Court will not be able to vouch-in, or "designate," some other judge or judges to temporarily compensate for the 1 or 2 existing vacancies. So until the Governor and the Senate fulfill their duties under the state constitution to complete the appointment of 2 new Judges to the Court of Appeals, New York's high court will be shorthanded.
Correction: To the extent I misspoke on air about the Court vouching-in a judge or judges to temporarily fill the vacancy or vacancies--i.e., saying that the Court could do so under these circumstances--I trust the foregoing clarifies the matter.
I don't want to sound like a court that's trying to distance itself from--or overrule--its own prior decision without simply admitting that it was wrong. So, more plainly, I was mistaken--as in simply wrong--about the vouching-in ability of the Court and I stand corrected.
When I observed such vouching-in, or "designating," while clerking at the Court of Appeals, the circumstances apparently involved the "temporary absence" of one of the Judges--not an actual vacancy.