Governor Andrew Cuomo has now nominated 4 Judges for New York's 7-member Court of Appeals. Hence, if Appellate Division [The state's mid-level appeals court.] Justices Leslie Stein and Eugene Fahey are confirmed by the state's Senate, as is widely expected, this Governor will have appointed a majority of New York's high court.
Selection by appointment was adopted for the state's high court Judges in 1977--thus ending the previous system of partisan elections. Since then, 3 Governors have had the opportunity to appoint a majority of the Court's sitting members. Those 3 are Mario Cuomo, George Pataki, and now Andrew Cuomo.
Let's take a look at their appointments.
Richard Simons (Republican, Upstate)
Judith Kaye (Democrat, NYC) [Assoc. Judge & Chief Judge]
Sol Wachtler (Republican, L.I.) [elevated to Chief Judge]
Fritz Alexander (Democrat, NYC)
Vito Titone (Democrat, NYC)
Stewart Hancock (Republican, Upstate)
Joseph Bellacosa (conservative independent. Upstate/NYC)
George Bundy Smith (Democrat, NYC)
Howard Levine (Republican. Upstate)
Carmen Ciparick (Democrat. NYC)
Richard Wesley (Republican. Upstate)
Albert Rosenblatt (Republican. Upstate)
Victoria Graffeo (Republican. Upstate)
Susan Read (Republican. Upstate)
Robert Smith (Republican. NYC)
Eugene Pigott (Republican. Upstate)
Jenny Rivera (Democrat. NYC)
Sheila Abdus-Salaam (Democrat. NYC)
Leslie Stein (Democrat. Upstate)
Eugene Fahey (Democrat. Upstate)
Governor Mario Cuomo's nominations were truly diverse. Not only by gender, race, ethnicity, and geography, but by political party as well. Indeed, even the ideological diversity of his appointees could hardly have been more pronounced.
Regarding the latter, there was Vito Titone and Carmen Ciparick, both Democrats and both compiled unmistakably liberal records. Then there was Richard Simons and Joseph Bellacosa, one Republican and one independent, but both had records just as unmistakably conservative.
Governor George Pataki's nominees, by sharp contrast and design, were a veritable sea of red. Expressly insistent on placing tougher law and order Judges on the Court, he appointed all Republicans. Beyond that, his 6 appointees have, in fact, all been at least somewhat ideologically conservative. They have ranged from the moderately so, such as Albert Rosenblatt, to the more staunchly and consistently so, such as Susan Read.
Governor Andrew Cuomo's nominees, as we have noted on other occasions, have all been Democrats. The pattern of his 4 nominees to date has been more like Pataki's than like his father's. Partisan uniformity. Political homogeneity. All 4 the same political party. All 4 at least somewhat liberal--from moderately so to very much so.
Let me be clear. Andrew Cuomo's nominees will likely vote more like I prefer, and like I would, than the Republicans appointed either by his father or by Pataki generally would. I will most likely be delighted by the increasing protection of the rights of the accused, the worker, women, minorities, and the environment--to name just a few matters--that can be expected with a Democratic majority on the Court.
(And I'll go further: there are other Democrats I would love to see appointed to the Court.)
But there is a danger in politically uniform appointments, in appointments along party lines. A variety of perspectives--political, ideological, philosophical, etc., etc.--is always healthy. Some balance. Some variety. A mix.
Not a "mix" like the U.S. Supreme Court. No, not like that. Not like the Supreme Court with both major political parties represented in almost equal number, but each side so resolutely one sided, closed-minded, bitter and blind to the merits of the other. Republican presidents appointing intensely conservative ideologues. Democratic presidents appointing equally intense liberals. No, that's a recipe for disaster. And, sure enough, that's what the Supreme Court is today.
But if Republican governors are intent on appointing only conservative Republican Judges, and Democratic governors respond by appointing only liberal Democratic ones--if the Governors of New York persist in a pattern of back-and-forth political party purity, instead of following the example that had been set by Mario Cuomo--then New York's esteemed high court risks going the way of the extremely polarized and indisputably mediocre Supreme Court. A court that is hopelessly and predictably (if not robotically) divided on most tough issues along political party lines.
One last point about all this.
Consider the Republican Judges placed on the Court of Appeals by liberal Democrat Mario Cuomo.
Consider Richard Simons. Stewart Hancock. Howard Levine.
These were all extraordinarily fine Judges.
Those who follow the Court of Appeals--whether Democrat or Republican, liberal or conservative, Upstate or Downstate--understand that these are some of the most highly and widely admired Judges to have sat on our high court in the last few generations.
Consider too: Democratic President Woodrow Wilson appointed Republican Louis Brandeis to the Supreme Court.
Republican Herbert Hoover appointed Democrat Benjamin Cardozo.
Republican Richard Nixon appointed Democrat Lewis Powell.
In the eyes of many, those were among the finest acts of those presidents.
Democrat Mario Cuomo's appointments of Republican Judges Simons, Hancock, and Levine were, likewise, among the finest acts of his governorship.
Many of us court watchers--perhaps, particularly those of us who have worked at the Court, who as New Yorkers are proud of it, and who view it as historically one of the truly fine institutions of this state and, indeed, of the nation--would hope to see the example of Governor Mario Cuomo's non-partisanship in appointments become more the rule than the exception.
In the next installment of this series, we'll see what can be made of nominee Leslie Stein's record while on the Appellate Division.