The New List for the Court of Appeals

Seven names for the Governor to make her 1st pick for New York's High Court

Judge Eugene Fahey is retiring from the Court of Appeals. Not because he chooses to. But because of the state's infuriatingly moronic mandatory age retirement. Fahey turned 70 this September, so he must go at year's end. A truly fine judge. Extremely thoughtful, caring, judicious, and not captive of any ideological, partisan, or interpretive rigidities. But come December 31 of this year, the Court and the state's citizens will lose this exceptionally fine judge because of an exceptionally idiotic law.

So under New York's selection system for the Court of Appeals, the Commission on Judicial Nomination received applications, conducted interviews, and chose seven candidates for the Governor to consider to fill Fahey's coming vacancy. All the Judges currently sitting on the Court of Appeals were selected by former Governor Andrew Cuomo. This will be Governor Kathy Hochul's first opportunity to put her imprint on the state's highest tribunal.

Particularly notable about the selection Hochul will make is the loss that Fahey's retirement represents for the Court. Besides losing such a distinguished jurist, the Court will be losing its only member with prior appellate judicial experience, as well as the only member from western New York--in fact, the only member from anywhere upstate. Appointed in 2006 by Republican Governor George Pataki to the Appellate Division, 4th Department (which sits in Rochester and hears appeals from the western part of the state), he served there until Democratic Andrew Cuomo elevated him in 2015 to the high court. No other member of the current Court of Appeals had such an appellate background, nor are any from Fahey's hometown of Buffalo--or, again, from western New York or anywhere upstate.

These facts clearly weighed heavily in the Commission's deliberations. Of the seven candidates on its list, five are currently serving as appellate judges, and five are from upstate--with four of these upstaters from western New York.

(click to enlarge)

These are the 5 appellate judges on the list:

Erin Peradotto, who resides in Buffalo, has served on the Appellate Division, 4th Department, since she was first appointed in 2006. Especially noteworthy is the fact that this is the 6th time in which she has been chosen by the Commission as a candidate for the Court of Appeals. Regardless of the year or the vacancy or the composition of the Commission, she has been repeatedly recognized as deserving elevation to New York's highest court. If this selection system actually assured merit appointments, she would already be a Court of Appeals Judge.

Shirley Troutman, also of Buffalo and the Appellate Division, 4th Department to which she was appointed in 2016, is on the Commission's list for the second time. Among the many factors of her background that commend her, she is an alum of Albany Law School! (Okay, being a bit tribal there.)

Joanne Winslow, from the Rochester area, has sat on the Appellate Division, 4th Department, since 2017. Like Troutman, she is also an alum of Albany Law. (Yes, we're proud at the school.) And--one of these days, hopefully soon, it will not be notable to indicate--she is gay.

Stan Pritzker has served on the Appellate Division, 3rd Department (in Albany) since 2017. He had previously served simultaneously on several trial courts where he lives in Washington County. (For you downstaters, that's east of Saratoga and Lake George, on the Vermont border, north of Albany--yes, a vast portion of the state extends even north of Albany!)

Francesca Connolly, of Westchester County, has served on the Appellate Division, 2nd Department (in Brooklyn) since 2016. She also served on the Appellate Term--a lower level appellate court--for two years before that.

The 2 remaining candidates on the list are:

Timothy Murphy, from Niagara County and now working in Buffalo, has a great deal of experience as an appellate lawyer--for the past couple of years in the Federal Public Defender's Office for Western New York and, before that, for 15 or so years with the Legal Aid Bureau of Buffalo.

Corey Stoughton, currently the Attorney-in-Charge of Special Litigation at the Legal Aid Society in Brooklyn, has an extraordinary resume. Among other highlights of her career since her graduation from Harvard Law School, she clerked at the 6th Circuit federal appeals court for Judge Cornelia Kennedy; she then served as the senior supervising attorney for the NYCLU for 10 years; then for 2 years as senior counsel in the Civil Rights Division of the U.S. Department of Justice; and, since 2020, in her current position with Legal Aid in Brooklyn--throughout her career working on a broad range of constitutional and human rights issues.

Well, that's a brief sketch of the 7 candidates for the Court of Appeals.

Here are some notable stats about the list that might help to place it in various perspectives:

• Again, 5 on the list are Appellate Division Justices--Connolly, Peradotto, Pritzker, Troutman, and Winslow.
• 4 were appointed by Governor Andrew Cuomo--Connolly, Pritzker, Troutman, and Winslow.
• 1 was appointed by Governor George Pataki--Peradotto.
• 2 have extensive practice experience in criminal defense and constitutional rights--Murphy and Stoughton.
• 5 are from Upstate--Murphy, Peradotto, Pritzker, Troutman, and Winslow.
• 4 are from Western New York--Murphy, Peradotto. Troutman, and Winslow.
• 2 are from downstate--Connolly and Stoughton.
• 5 are women--Connolly, Peradotto, Stoughton, Troutman, and Winslow.
• 2 are men--Murphy and Pritzker.
• 1 is African-American--Troutman.
• 1 is gay--Winslow.
• 1 is a Republican--Pritzker. (Peradotto was, but her Erie County registration now indicates Democratic Party.)
• 5 are sexagenarians (noteworthy only because they will reach that moronic mandatory retirement age before the end of the 14 year Court of Appeals term)--Connolly, Peradotto, Pritzker, Troutman, and Winslow.
• 6 different law schools--Pace, Dayton, Buffalo, St. John's, Harvard, and Albany (2!)

As previously noted, with Judge Fahey's departure, none of the current members of the Court of Appeals will have had prior Appellate Division experience. This is a major concern of many who follow the Court and who practice before it. Two of the Judges did have previous judicial experience at the trial level--Chief Judge Janet DiFiore and Judge Anthony Cannataro. 

Another major concern is that none of the current members of the Court had much if any experience in criminal defense. On the other hand, 3 of the current Judges were prosecutors--the Chief Judge as District Attorney of Westchester County, Judge Michael Garcia as the U.S. Attorney for the Southern District of New York, and Judge Madeline Singas as DA for Nassau County.

As for the yet-unmentioned current members of the Court, Judge Jenny Rivera came from academia (CUNY law school) and Judge Rowan Wilson from private practice with a major law firm (Cravath, Swaine & Moore).

Under the law, Governor Hochul is required to make her choice for the Court of Appeals to fill the Fahey vacancy between November 15 and December 1.