Monday, May 3, 2021

The New York Court of Appeals Latest List

For the second time in one month, the State Commission on Judicial Nomination released a list of nominees for New York's highest court. Earlier last month, on April 8th, the Commission gave Governor Andrew Cuomo a list from which to replace Judge Leslie Stein who will be leaving the Court in June. (See The NY Court of Appeals List, April 12, 2021.) Late last week, on April 29th, the Commission reported another list from which to fill the vacancy created by Judge Paul Feinman's sudden resignation and death.

This second list, like the earlier one, has seven nominees. It was chosen from an applicant pool of 75. That pool included all the 45 applicants for the Judge Stein seat and an additional 30 who newly applied for the Judge Feinman vacancy. It is a strong list. And it is as curious as it is strong.

Of the seven applicants who made the earlier list—all of whom were again considered for this second list—five are now missing. Ellen Nachtigall Biben, Administrative Judge for Criminal Matters in the First Judicial District in Manhattan, is not on this new list. Kathy Hirata Chin, a partner in the Manhattan office of the Crowell & Moring law firm, is now absent. Valerie Brathwaite Nelson, a Justice on the Appellate Division, Second Department in Brooklyn, is not included on this list. Madeline Singas, the Nassau County District Attorney, did not make this list. And Shirley Troutman, a Justice on the Appellate Division, Fourth Department in Western New York, is not on the list either.

Without being privy to the Commission's deliberations, one can only speculate why those five, having been deemed worthy of a seat on the Court of Appeals in early April, were somehow viewed as less so later in the same month. Perhaps, the five new nominees on the list were viewed as even more highly qualified. That would seem to be what the Commission is officially indicating with this new list. (A different possibility, of course, is that the previous five were excluded for reasons unrelated to merit. Who knows?)

But let me offer some realistic possibilities—which, nevertheless, may well be off the mark. Ms. Chin, who was deemed well qualified by the Commission on three previous occasions, is in her late sixties and would only be able to serve on the Court for a couple of years because of the state's (moronic) mandatory retirement age of 70. Justice Nelson, who has plenty of judicial experience, including at the appellate level since 2016, is also in her late sixties and would likewise be forced to retire before long.

Judge Biben and District Attorney Singas, on the other hand, are considerably younger and would be able to serve on the Court for many years. But those two received lower ratings from the State Bar Association than any others on that first list—a bare "Qualified" rather than the "Well Qualified" received by all the others. Similarly, the Albany County Bar Association gave each of them a bare "Qualified" rating. The State Women's Bar Association "Approved" them while rating the others "Highly Qualified. And the State Criminal Defense Lawyers gave them its lowest rating: "Not Recommended." Whatever the merits of these ratings, it is hard to imagine that they did not cause the Commission some embarrassment and did not give the commissioners serious pause.

The fifth exclusion from this new list is the most curious—indeed, downright mystifying. Justice Troutman, in her early sixties, is as young as many other recent appointees to the Court, and she received the highest ratings from the various bar associations. So that can't be it.

To make that exclusion even more curious is the inclusion, this time, of Troy Karen Webber. Like Troutman, Webber is a Justice on the Appellate Division (the First Department in Manhattan) and is African-American. Also like Troutman, Webber was an applicant for both lists. Somehow, Troutman made only the first list; Webber made only the second. Moreover, with Justices Troutman and Nelson missing, Webber is the sole African-American on the list. 

Speaking of identity politics, with the departures of Judges Leslie Stein and Paul Feinman, there will be no Jewish or openly gay Judges on the Court. As for replacing Feinman, it is certainly no surprise that the Commission would try to include openly gay nominees on the list. And, in fact, there are two. 

One, Michael S. Bosworth, has a truly extraordinary resume: Princeton undergrad, Yale for law, prestigious federal clerkships including one with Supreme Court Justice Stephen Breyer, experience as an assistant U.S. Attorney, Special Counsel to the FBI, Deputy Counsel to President Obama, and a partnership at Latham & Watkins in Manhattan. Although his career seems more fitting for a federal judgeship, there is no quibbling about its impressive quality and, if Governor Cuomo focuses on identity, Bosworth would fill both the Jewish and openly gay gaps.

The other openly gay nominee on this new list is Anthony Cannataro, the Citywide Administrative Judge of New York City Civil Court. A graduate of Columbia University and New York Law School, he began his career in Corporation Counsel's Office in New York City and then clerked at the Court of Appeals for Judge Carmen Ciparick. Having served as a judge on several different courts in the state, in addition to serving as a clerk on New York's highest court, he has a breadth of experience and knowledge of the state judiciary.

Another name on the new list is Judith J. Gische, a Justice on the Appellate Division, First Department in Manhattan. Gische is no stranger to Court of Appeals lists. This is her fourth time. A graduate of SUNY Buffalo for both undergrad and law, she has been a permanent, well-regarded fixture in the state judiciary for over 30 years. Unfortunately, because of the (again, moronic) mandatory 70-age retirement, she would only be able to serve on the Court for a few years.

Similarly, Denise A. Hartman, a graduate of Cornell undergrad and Syracuse law, enjoys a strong reputation as a judge in the state judiciary. She litigated as an Assistant State Solicitor General for three decades and, since 2015, has served on the state trial bench as a Court of Claims Judge and Acting Supreme Court Justice. Unfortunately, because of the (once more, moronic) mandatory 70-age retirement, she too would only be able to serve on the Court for a few years.

That leaves two nominees on this new last. They were both on the previous list as well. In fact, both Caitlin J. Halligan and Erin M. Peradotto have been on Court of Appeals lists four times before. Regardless of the year, the vacancy, the membership or leadership of the Commission on Judicial Nomination, these two have consistently been viewed as worthy of appointment to New York's highest Court. The various statewide and local bar associations have agreed. The State Bar Association, the Albany County Bar Association, and others have given both Halligan and Peridotto their highest ratings. To be blunt, it would have been a travesty if either of these two did not make both the previous list and this one.

Halligan, a partner at Selendy & Gay in Manhattan, is a graduate of Princeton and Georgetown Law. She clerked for Judge Patricia Wald of the D.C Circuit and for Supreme Court Justice Stephen Breyer. She litigated many years in both state and federal courts in the State Attorney General's Office and, ultimately, as the Solicitor General of New York. She has a reputation for brilliance and exceptional skill in the courtroom.

Peradotto, a graduate of SUNY Buffalo for undergrad and law, worked in private practice as a trial attorney and later in the State Attorney General's Office. She was elected to State Supreme Court in 2004 and, shortly thereafter, was elevated to the Appellate Division, Fourth Department (Western New York). She enjoys the very highest reputation as an appellate judge among other judges and court watchers —regardless of party or ideology.

As I previously mentioned, it would have been a travesty if Halligan and Peradotto did not make both lists. To some, myself included, it would also belie the notion that this appointment system is about merit if neither of these two was appointed to fill either of the two vacancies.

A final comment on the composition of this newest list. Once again the Commission has offered up a very diverse one. Six different law schools are represented: Yale, New York Law, SUNY Buffalo (twice), Georgetown, Syracuse, and NYU—alas, no Albany Law this time. There are federal and state, trial and appellate clerkships among the resumes. There is private practice and government litigation. Trial and appellate judgeships. And multi-cultural? There's Black and White; Gay and Straight; Catholic, Protestant, Jewish, African-American, and (at least based on surnames) Irish-American, Italian-American, and German-American.

The Governor is required by law to select from the list no later than 30 days from April 29 when the list was reported to him. Let's hope he makes his selection—from this list, as well as from the previous one—based on what is best for the Court and the people of the State.