Monday, January 19, 2015

NYCOA: Cuomo's Latest Two Nominees (Part 1--Common Denominators)

End of semester, exams, grading, Christmas, and away for the break. Yes, it's more than time to return to New York Court Watcher.

Justice Leslie Stein
As everyone knows who follows New York's highest court, or New York's Governor, or New York's government generally, or the news from one of New York's dailies or news stations, Governor Andrew Cuomo has nominated two more individuals for seats on the Court of Appeals.

In October, he nominated Leslie Stein to replace Victoria Graffeo, whose 14 year term had expired--though she was still eligible for reappointment. Then, a few days ago, he nominated Eugene Fahey to replace Robert Smith, whose tenure on the Court came to an end as a result of New York's (yes, moronic) age-70 mandatory  retirement.
Justice Eugene Fahey

As of today, the Senate has yet to schedule confirmation hearings for either nominee. Under the state's Judiciary Law, the Senate has 30 days from the date of a nomination to confirm or reject the governor's pick. So the Senate must act on the Fahey nomination by mid-February. With regard to Stein, the legal deadline for confirming or rejecting her has long since passed--albeit without any legal consequence under the governing statute. (See NYCOA: Vacancies and (no) Vouch-Ins, 12/16/2014; and Karen DeWitt, Senate To Miss Deadline to Approve Court Pick, 11/14/14.)

Ultimately, the Senate Judiciary Committee will conduct hearings for each nominee. By all accounts and reactions of the senators who have commented, both Stein and Fahey will--and should--be confirmed.

Before we examine the records of the two nominees and see if any conclusions--e.g., leanings, predictions, etc.--can be drawn, let's consider what these two represent. Specifically, there are some credentials and traits shared by these nominees, as well as some common characteristics and ramifications in the nominations themselves.

Here are a few of the more notable:
Both Stein and Fahey have plenty of judicial experience.
Both have experience as both trial and appellate judges.
Both successfully ran for election to the trial bench.
Both were serving on the Appellate Division, the state's intermediate appellate court, when nominated for the Court of Appeals.

Both are Upstaters.
(To Downstaters, they come from somewhere other than the NYC Metropolitan Area and Long Island. To Upstaters, they come from the Capital Region [Albany area] and Western New York [specifically Buffalo], respectively.)
Both attended law school Upstate--i.e., Albany Law School and SUNY Buffalo, respectively.

Both served as confidential judicial law clerks early in their careers.
Both then engaged in private practice before being elected to the bench.

Both are Democrats.
Both--presuming confirmation--are replacing Republican Judges.
Both are replacing appointees of Gov. George Pataki.
Both are replacing Republican Pataki appointees who, in turn, had replaced a Republican Judge or a very conservative "independent" Judge.

Both, in short, are taking seats on the Court that have not been held by a Democrat in a very long time.
Both will contribute to making a Democratic majority on the Court for the first time since the first term of Gov. Pataki.
Both will contribute to a 5-2 Democratic edge on the Court for the first time since the Court of Appeals appointment system was adopted in 1977.
Both will contribute, in fact, to the first 5-2 Democratic edge on the Court in modern history--whether selection was by appointment or election.

So, these are some of the common denominators and some of the consequences of Gov. Andrew Cuomo's two latest nominations to New York's high court. We will look more closely at each of the two nominees in forthcoming posts in this series.

In the very next post, however, we will look at the composition of the Court--again, presuming Stein and Fahey will be confirmed. More specifically, we will review the appointments of each of the Court's 7 Judges, who appointed them, who they replaced, who appointed the Judges they replaced, and the political affiliation of each Judge and of the Judge that was replaced.