Monday, February 8, 2016

Michael Garcia: the Court of Appeals Nominee and the Confirmation

Michael J. Garcia
Photo: Julie Jacobson/AP
Michael J. Garcia, Governor Andrew Cuomo's sixth nominee to the seven member Court of Appeals, New York's highest court, is Cuomo's first Republican selection. Garcia's stellar credentials and his party affiliation make his confirmation by the Republican led Senate a virtual certainty.

Hopefully, however, the Senate--and more specifically, the Senate's Judiciary Committee--will still exercise its constitutional "advice and consent" responsibility conscientiously. Hopefully, it will actually examine the Governor's choice, do so rigorously, and render an informed, independent judgement.

(Unfortunately, the Judiciary Committee's confirmation hearing for Michael Garcia at the Capitol today is scheduled to overlap with the ceremonial investiture of Chief Judge Janet DiFiore at the Court of Appeals. Some of us would have liked to attend both, but the Senate's scheduling has made that impossible.)

Let's outline Michael Garcia's professional background and experience, and then consider the kind of inquiries that would be worthwhile for the Senate in assessing the qualities, character, and overall fitness of a Court of Appeals Judge Garcia.

Background and Experience
  • Undergraduate degree from SUNY Binghamton
  • Masters degree in English literature from the College of William & Mary
  • Law degree--summa cum laude and valedictorian--Albany Law School
  • A few years as an associate at the Cahill Gordon law firm in Manhattan 
  • Confidential law clerk to then-Judge Judith Kaye at the Court of Appeals, 1990-92
  • Assistant U.S. Attorney for the Southern District of New York (i.e., federal prosecutor in New York City), 1992-2001
  • Assistant Secretary in the U.S. Department of Homeland Security [Pres. George W. Bush administration], 2003-05
  • U.S. Attorney for the Southern District of New York (i.e., the top federal prosecutor in the New York City office, overseeing the work of more than 200 attorneys in a wide variety of criminal and civil matters) [appointed by Pres. George W. Bush], 2005-08
  • Litigation partner at the Kirkland & Ellis law firm in Manhattan, 2009- present
  • Investigation Chair of the Ethics Committee of FIFA (i.e., the international soccer governing organization), 2012–2014
Relevant Areas of Confirmation Inquiry
  • Being the Governor's sole Republican nominee to the Court--and with the only other Republican on the Court retiring this year--will Garcia view his role as standing firm on his likely more-ideologically conservative views than his Democratic colleagues, or will he view his role as going along with the majority? [And, of course, ideology and judicial philosophy matter greatly and do influence judicial decisions, regardless of the reluctance of judicial nominees and Judges to acknowledge it, or their typical outright denial of it.]
  • Generally, his view on consensus versus dissent?
  • How will his experience as a federal prosecutor, and as one with a reputation for being zealous, influence the kind of Judge he will be?
  • Specifically regarding his having been a federal prosecutor, what is his understanding of the different roles of  state and federal law, of state and federal courts, and most importantly, of the Court of Appeals and the U.S. Supreme Court--especially when those courts deal with similar issues under state and federal law respectively?
  • Along the same lines--and of critical significance for a judge on a high state court--what are his views about independent state decision-making? That is, what are his views about state high courts construing fundamental rights under state law independently of the U.S. Supreme Court's decisions under corresponding federal law? Does he view the uniformity of state and federal law to be more important? [Garcia's former boss, then-Judge Judith Kaye, was a nationally renowned advocate for independent state decision-making.]
  • As far as having been a zealous prosecutor, how will he balance the concerns of crime control versus due process as a high court judge? That is, does he view the role of a judge as one who should generally defer to law enforcement (whether the police or measures taken by the legislative and executive branches), or to protect constitutional rights of the accused to the fullest? [Constitutional prohibitions on unreasonable  searches and compelled confessions, as well as constitutional mandates for due process, counsel in criminal cases, etc., have no predetermined calculus. Judges--especially those on high courts--must necessarily exercise discretion and judgement in choosing between crime control (law enforcement) and due process (rights of the accused) in all criminal cases. Different judges, of course, weigh the competing interests differently.] 
  • As someone reputed to have political ambitions--and as a young man with plenty of time to pursue them--is he willing to disavow them completely and to pledge that any supposed political ambitions will be given absolutely no consideration in his work as a Judge on the Court of Appeals? [Clearly, political aspirations--whether for higher judicial office or for elected political office--cannot help but color one's judgement. And in that regard, judges are no different than other humans.]

To be sure, there is much more. But for now, here's hoping that the Senate Judiciary Committee does its job today and has a real, substantive hearing--as it did for now-confirmed Chief Judge Janet DiFiore. And here's hoping that Michael Garcia demonstrates that the extremely high regard in which he is held by those who know him and have worked with him is well-earned, and that following the virtually assured confirmation, he will honor the name of the Judge for whom he clerked--Judith Kaye--and will serve with great distinction on our distinguished high court.