Gov. Cuomo Picks Justice Paul Feinman for the High Court

Yesterday, Thursday June 15, 2017, Governor Andrew Cuomo announced that he will nominate Paul G. Feinman to serve on New York's Highest Court. Feinman is currently a Justice on the state's intermediate court, the Appellate Division, and specifically the First Department which sits in Manhattan.

Feinman had been elevated to the Appellate Division by Cuomo in 2012. He was the first openly gay man to sit on that court and, if confirmed by the state senate, he will be the fist openly gay Judge on the Court of Appeals.
(At this time, the Senate Judiciary Committee has not yet scheduled a hearing. The Senate itself finishes its session and departs next Wednesday, June 21.)

Feinman was selected by Cuomo from the list of seven provided to the Governor two weeks ago by the Commission on Judicial Nomination. At the Governor's urging, the Commission completed its business in very short order. Beginning April 14, upon the official notification of the vacancy created by the sudden death of Judge Sheila Abdus-Salaam, the Commission began soliciting applicants, conducting interviews, and producing a list of possible nominees. Instead of the statutory allowance of 120 days, the Commission finished its work in just 1 1/2 months.

Justice Feinman is a graduate of Columbia University and the University of Minnesota Law School. He spent the fist several years of his with the Legal Aid Society of Nassau County and New York. He then served several years as a law clerk to a judge who sat on state Supreme Court (i.e., trial court) and then on the Appellate Division.

In 1996 he was elected to NYC Civil Court and was reelected in 2006. In 2004, he was selected by then-Chief Judge Jonathan Lippman to serve as an Acting Justice of  Supreme Court (highest trial court) Three years later, he was elected to that court and, in 2012, Governor Cuomo elevated him to be a Justice of the Appellate Division.

In short, Feinman has spent a career in government, all of it arguing or serving in and on courts. Beyond that, he has been very active in judicial and bar groups. He has, for example, served as the president and then chair of the supreme court justices association, and as the president of LGBT bar and judicial groups.

Feinman is 57 years old, born in January 1960. Under New York's (moronic) mandatory age-70 retirement for Court of Appeals Judges, he will be able to serve for 13 years of the full 14 year term, retiring at the end of 2030.

Notably, if and when Justice Feinman is confirmed, the composition of the Court of Appeals will include:
1 African-American Judge (Judge Rowan Wilson),

2 Hispanic Judges (Judges Jenny Rivera and Michael Garcia),
3 Women (Chief Judge Janet DiFiore and Judges Rivera and Leslie Stein),
1 Openly Gay Judge (Judge Feinman),
2 Upstaters (Judges Stein [the Capital Region] and Eugene Fahey [Buffalo]),
2 From New York City (Judges Rivera and Feinman [Also, Judge Garcia was born in the City and nominee Wilson works there.]),
2 Who live just north of the City in Westchester County (Chief Judge DiFiore and Judge Garcia),
1 Who lives on Long Island (nominee Wilson),
3 Who were appellate judges (Judges Stein, Fahey, and Feinman),
4 With experience as trial judges (Chief Judge DiFiore and Judges Stein, Fahey, and Feinman),
2 From private practice (Judge Garcia and Wilson),
2 Prosecutors who ran prosecutorial offices (Chief Judge DiFiore [Westchester County District Attorney] and Judge Garcia [U.S. Attorney for the Southern District of New York]),
1 Academic (Judge Rivera),
6 Different law schools (St. John's [DiFiore], Columbia [Abdus-Salaam], Albany [Stein and Garcia], SUNY Buffalo [Fahey], Harvard [Wilson]), and Minnesota [Feinman],
1 Italian-American (Chief Judge DiFiore), 1 Puerto Rican-American (Judge Rivera), 2 Jewish-Americans (Judges Stein  and Feinman), 1 Irish-American (Judge Fahey),
1 Republican (Judge Garcia),
6 Democrats (All the rest).

The Court of Appeals List: The Commission's Recommendations for the Abdus-Salaam Vacancy

The New York Commission on Judicial Nomination released its list of recommended candidates for the state's highest court. Seven names were presented to Governor Andrew Cuomo this past Thursday. He must select from that list to fill the vacancy on the Court of Appeals created by the tragic death in April of Judge Sheila Abdus-Salaam.

By state law, the Governor must make his choice no later than 30 days from when he received the list. The state senate must then act on his nominee, hopefully--as the Governor has made clear he would like--before the close of the legislative session at the end of this month.

As for the list itself, it is another fine one. It continues what has become customary for the Commission to produce strong lists This became especially true in recent years when former Chief Judge Judith Kaye assumed the position of Chair and added considerable gravitas, energy and insight to the application process.

With Kaye now deceased, the interim Chair, Leo Milonas--former Chief Administrative Judge of the New York State court system, former Appellate Division Justice, former president of the New York City Bar Association, etc. etc.--has by all accounts taken that legacy quite seriously. Together with a staff that includes the highly regarded Henry Greenberg as Counsel (notably, among many other things, a former law clerk to Kaye), the Commission would seem to be in very good hands indeed. And that is very good news for our high court.

Now what about that list?

Ok, here are the seven individuals:
(Photo from the New York Law Journal, "Commission Names 7 Potential Nominees for Court of Appeals," by Andrew Denney, June 1, 2017.)

(click to enlarge)

In alphabetical order (and in the photo clockwise from upper left):
Eric O. Corngold, Esq., Friedman Kaplan Seiler & Adelman LLP (Manhattan)
Paul G. Feinman, Justice, Appellate Division, 1st Department (Manhattan)
Judith J. Gische, Justice, Appellate Division, 1st Department (Manhattan)
Rosalyn H. Richter, Justice, Appellate Division, 1st Department (Manhattan)
Mary Kay Vyskocil, U.S. Bankruptcy Court Judge (Manhattan)
Troy Karen Webber, Justice, Appellate Division, 1st Department (Manhattan)
Gerald J. Whalen, Presiding Justice, Appellate Division, 4th Department (Rochester & Buffalo)

Here's another way to break down the list:

• Current Judges, 6: all but Corngold
• Current appellate judges, 5 : Feinman, Gische, Richter, Webber, Whalen
• Judicial career (20+ years), 4: Feinman, Gische, Richter, Webber
• Current private practice, 1: Corngold
• Private practice career (20+ years), 3: Corngold, Vyskocil, Whalen
• Manhattan, 6: all but Whalen
• I.e., Upstate, 1: Whalen
• Women, 4: Gische, Richter, Vyskocil, Webber
• African-American, 1: Webber
• Republican, 1: Vyskocil
• Openly Gay/Lesbian, 2: Feinman, Richter
• Physically disabled, 1: Richter
• Law Schools:
• Brooklyn (Richter [Go BLS!])
• Buffalo (Gische & Whalen)
• Minnesota (Feinman)
• NYU (Webber)
• St. John's (Vyskocil)
• Yale (Corngold)

Quite a diverse group. Certainly quite a contrast from what we see at the Supreme Court. And diversity has been a real strength at the Court of Appeals. It is for any high court.

The members of such courts, whether the Court of Appeals or some other state's highest court or the U.S. Supreme Court, simply cannot escape exercising judgement when deciding the close, policy-laden cases that come before them. These are cases where there are strong legal reasons for both--or all--sides. Where the plain words of some legal provision or the judicial precedents do not dictate a particular result. Where the judges judgements must be exercised to pick and choose and thus to decide how to resolve the issues.

In this type of an enterprise, i.e., appellate decision-making on a court of last resort, diversity is a huge plus. Different backgrounds, schools, careers, experiences, perspectives, deeply held beliefs and values all come into play and all contribute mightily to a wiser, more knowledgeable and insightful result. Stated otherwise, they help to avoid more narrow-minded, more ignorant decisions.

Now politically speaking, sure, would a governor like Andrew Cuomo like to please constituents and even make history with his selection? Of course! (Just like a governor in a much more homogeneous state or a president with a "traditional-values" base would want to appeal to their constituents.)

So let's suppose that Governor Cuomo looks at the list given to him by the Commission and does decide to widen the Court of Appeals' diversity. He also decides that he'd like to make history. Now, no matter who he chooses from among the seven names, that individual will have an impressive resume and comes to him well-regarded and recommended by the independent commission. He can hardly go wrong.

So let's say the Governor goes with selecting the first openly gay judge for the high court. Suppose, for example, he chooses Rosalyn Richter. (Among other reasons, I use her as an example because we are fellow alums of Brooklyn Law. I don't know her personally, but by reputation.) If the Governor were to do so, no doubt some would scoff at the selection as being based solely on Richter's being gay or disabled or both. Also no doubt, others would praise the Governor for doing just that. And further no doubt, the Governor would have scored some political points for enhancing the Court's diversity and for making history.

But beyond all that, or perhaps prior to all that, Judge Richter does have a strong reputation as being a very smart, conscientious, and gutsy judge and, by all accounts relayed to me, would be a very fine choice.

The point of this is not to single out Rosalyn Richter (although, again, I did use her as an example because of our Brooklyn Law connection). Rather, it is to endorse the quality and diversity of the Commission's list, the quality and diversity of the current Court of Appeals owing to previous lists and this Governor's selections, and the continued enhancing of both quality and diversity on our high court.