Monday, April 12, 2021

The NY Court of Appeals List

 (Emerging from the pandemic-related delays and extra work preparing for remote teaching, etc.
Anyway, back to Court Watcher.)
Last week, the Commission on Judicial Nomination released its list of nominees to fill the vacancy on the state's highest court which will arise on June 4th--the day on which Judge Leslie Stein had previously announced she would retire. The Commission received 45 applications, interviewed 17 of the applicants, and presented Governor Andrew Cuomo with a list of seven on April 8th. Under the state law, the Governor must select his nominee for the Court from that list, and he is supposed to do so within 30 days.

So, what about that list?

Well, the headline is that list is composed entirely of women. First time? Yep. But....the first time for an all one-gender list? Not even close!

Indeed, among the prior 32 lists, fully 1/2 had either no women or only one. The first list in 1979 had no women. Of the first 8 lists, only 2 had a woman. As late as the 24th list in 2008--to replace the first woman on the Court, Judge and then Chief Judge Judith Kaye--there was not a single woman among the seven recommended! Adding up all the numbers, of the 216 total names on the previous 32 lists, only 51--or fewer than 1/4--were women.

To be sure, it's inconceivable that the Commission did not find any men, among all the applicants from this state--the legal capital of the world--to be exceptionally qualified for the list and the Court. Of course, it's also inconceivable that, in the past, so few women were deemed worthy of the list or the Court. This is not to say that an all-woman list is justified as a pay back for the many all-men, or nearly all-men lists in the past. But, in choosing the best applicants for the list, the Commission no doubt did--and should have--considered what was best for the Court itself. And having more than just 2 women remaining on the Court seems a pretty compelling need.

So, what to make of this all-women list?

Well, as for gender, it's pretty obvious that the Commission did think it compelling that Judge Stein be replaced by another woman. Otherwise, the 7-member Court would be left with only 2 women, Chief Judge Janet Defiore and Judge Jenny Rivera. Now that would be embarrassing, hardly representative of the state or the legal profession, and would once again marginalize the women on the Court to a less than 1/3 minority.

So, beyond gender, what?

Well, the list is very diverse, as well as very strong. There is a impressive amount and array of experience, proven talent, and general background on this list. Here are just a few noteworthy characteristics about the seven:
  • 3 are Appellate Division Judges (Valerie Brathworth Nelson, 2nd Dept. [Brooklyn], Andrew Cuomo appointee;  Erin M. Peradotto, 4th Dept. [Western NY], Pataki appointee;  and Shirley Troutman, 4th Dept., Andrew Cuomo appointee).
  • 4 have experience as trial judges (Nelson; Peradotto; Troutman; and Ellen Nachtigall Biben [Court of Claims and Acting Supreme Court Justice])
  • 5 have worked in a District Attorney's office or for the Attorney General of the State (Biben [DA of NY and AG];  Caitlin J. Halligan [DA of NY and AG (and served as Solicitor General)];  Peradotto [AG];  Madeline Singas [DA of Queens and of Nassau (and currently is the Nassau County DA)];  and Troutman [DA of Erie and AG (as well as Asst. U.S.Atty for WDNY).
  • 2 are currently litigators in private law firms (Kathy Hirata Chin [Crowell & Moring, NYC];  and Halligan [Selendy & Gay]).
  • 3 others have previously worked in private practice (Biben; Nelson; and Peradotto).
  • 7 different law schools (Biben [USC];  Chin [Columbia];  Halligan [Georgetown]; Nelson [GW];  Peradotto [Buffalo];  Singas [Fordham];  Troutman [Albany]).
  • Very Multi-ethnic and racial ([skipping the "-American"] Jewish, Asian, Irish, Black [2], Italian, and Greek--how's that for a healthy--if incomplete--swath of America!) 
  • 3 are list-repeaters (Chin [3rd time];  Halligan [4th time];  Peradotto [4th time]).
A few other notables about each nominee on the list:
  • Hon. Ellen Nachtigall Biben--law clerk to Judge Alan Nevas, U.S. District of Connecticut, 1992-94; Special Deputy Attorney General of NY for Public Integrity, 2007-11.
  • Kathy Hirata Chin, Esq.--Member, New York City Commission to Combat Police Corruption, 2003-present; actively involved in pro bono matters, including assisting families of uniformed personnel who perished on 9/11.
  • Caitlin J. Halligan, Esq.-- Law clerk to Supreme Court Justice Stephen Breyer, 1997-98; to Judge Patricia Wald, United States Court of Appeals, D.C. Circuit, 1995-96.
  • Hon. Valerie Brathwaite Nelson--Law clerk, Occupational Safety and Health Review Commission, 1978-79; attorney, National Labor Relations Board, 1979-86.
  • Hon. Erin M. Peradotto--Member, New York State Ethics Commission for the Unified Court System, 2011-present; Member, Attorney Grievance Committee, 8th Judicial District, 2001-03.
  • Hon. Madeline Singas--Supervisor of Training, Narcotics Trial Bureau, Queens County DA, 1999; Deputy Chief of that Bureau, 2000-06.
  • Hon. Shirley Troutman--Currently, Co-Chair of the Franklin Williams Commission, advising the New York Court System on issues affecting employees and litigants of color; currently, President-Elect of the National Association of Women Judges, New York Chapter.
That's the list. Of course there's much more about each of the nominees, but hopefully the foregoing gives a sense of the strength and the diversity of the list the Commission has provided to Governor Cuomo.

Under the Judiciary Law, Cuomo is now required to choose from the list no sooner than April 23 and no later than May 8--i.e., between 15 and 30 days from the release of the list to him on April 8. The state Senate then has 30 days from the time of the Governor's selection--which this Governor has not always made within the time set by law--to confirm or reject by a majority vote.

When Cuomo's selection is made, we'll analyze it here on New York Court Watcher.

But next up, we'll return to the newest Supreme Court Justice, Amy Coney Barrett, and finish the series begun when she was first nominated.