Let me start by repeating that it is a disgrace that three sitting members of the Court of Appeals were excluded from the list of candidates for Chief Judge. Those three--Jenny Rivera, Rowan Wilson, and Shirley Troutman--were the Judges whose voting records have been more philosophically liberal than the others on the Court. It's hard to believe that the nominating commission that chose the seven candidates for Chief Judge was primarily motivated by merit as opposed to politics and ideology.
See e.g., Chief Judge Shortlist Excluded Court’s Sitting Liberals, DiFiore Opponents, by Sam Mellins, NY Focus, Dec. 1, 2022:
Several court observers expressed dismay at the exclusion of Rivera, Troutman, and Wilson.“I think it’s a disgrace that none of them were placed on the list,” said Vincent Bonventre, an expert on the Court of Appeals and professor at Albany Law School. “If the commissioners were looking at pure merit, somebody like Wilson is just absolutely brilliant.” In 2015, the last time the chief judge position opened up, Wilson was on the shortlist.But the idea that merit is the only factor is “laughable,” Bonventre said. “Of course there are politics involved.”Rivera’s and Wilson’s liberalism and frequent dissents from DiFiore likely hurt their chances at making the shortlist, Bonventre said. Of the 12 panelists who picked the shortlist, DiFiore and her ally Cuomo appointed seven, and Republican legislative leaders appointed another two. In order to advance to the shortlist, applicants need at least eight votes.“If you’re a commissioner who was appointed by Chief Judge DiFiore, or you are a commissioner who was appointed by the Republicans, you might feel pretty unfavorably towards especially Wilson and Rivera,” due to their liberal dissents, Bonventre said.
And Hochul’s Big Choice: Picking New York’s Most Powerful Judge, by Rebecca Davis O’Brien, NY Times, Dec. 13, 2022:
The court’s three liberal judges, all of them people of color, two of whom had more seniority than Judge Cannataro, were among 41 applicants for the post, according to people familiar with the process. None of the liberal judges were approved by the commission. (The exclusion of the three liberal judges was reported earlier by New York Focus.)“It’s just totally inexcusable,” said Vincent Bonventre, a professor at Albany Law School and a longtime court observer. He pointed in particular to the omission of one judge, Rowan D. Wilson, who had been on the commission’s short list for the chief judge spot in 2015, when it last became open.
If those glaring omissions are disregarded--yes, it's difficult to ignore such deplorable exclusions--it must be acknowledged that the list of seven is a strong one. Here it is:
- Governor Hochul's pick from the list, Hector D. LaSalle, Presiding Justice of the Appellate Division, Second Department (courthouse in Brooklyn)--one of 4 departments of the state's intermediate appellate court and the busiest among them, as well as the busiest appellate court in the country; he has worked in the Suffolk County District Attorney's Office and in the state Attorney General's Office and has been an appellate judge for 9 years.
- Anthony Cannataro, a current Judge on the Court and the internally selected Acting Chief Judge--although the precise procedure is not clear--until a nominee of the Governor is confirmed by the Senate; he has considerable administrative experience, having supervised NYC's civil court before being appointed to the Court of Appeals in 2021; early in his career he clerked on the Court for Judge Carmen Ciparick.
- Abbe R. Gluck, a Professor of Law and Professor of Internal Medicine at Yale; among other positions, she served as a law clerk for Supreme Court Justice Ruth Bader Ginsburg and as Special Counsel to President Biden.
- Jeffrey K. Oing, a Justice of Appellate Division, First Department (courthouse in Manhattan); early in his career he served as a law clerk to Chief Justice Wilentz of the New Jersey Supreme Court and later as a law clerk to judges on state Supreme Court (the misleading name of NY's top trial court); he has been an appellate judge for 5 years.
- Alicia Ouellette, President and Dean, Albany Law School; early in her career she served as a law clerk for Court of Appeals Judge Howard Levine and then as an Assistant Solicitor in the state Attorney General's office where she argued over 100 appellate cases; she has served as Dean and President of Albany Law School for the last 9 years.
- Edwina G. Richardson-Mendelson, Deputy Chief Administrative Judge for Justice Initiatives; in addition to a law degree, she has a Ph.D. in criminal justice; among other positions, she has worked as an attorney for The Legal Aid Society and for NY County Family Court; she has considerable administrative experience both in supervisory positions in Family Court in NYC and as a Deputy Chief Administrative Judge for the state; she has also served as a trial judge for 20 years.
- Corey L. Stoughton, Attorney-in-Charge, Special Litigation and Law Reform, The Legal Aid Society; early in her career she served as a law clerk to Sixth Circuit Court of Appeals Judge Cornelia Kennedy; she later served for 10 years as a supervising attorney for the NYCLU, then as a senior counsel in the US DOJ Civil Rights Division, and the last few years with The Legal Aid Society.
Again, notwithstanding the nominating commission's inexcusable exclusion of the 3 Judges on the more-liberal wing of the Court of Appeals, it can hardly be denied that this is a strong list It would have been even stronger if....
Both points are critically important. New York's high court needs a strong Chief Judge--perhaps now even more than usual. Governor Hochul herself understands that. As she told Susan Arbetter in an interview on Spectrum News's Capital Tonight, "Think back on the legacy of this Court in the past...I want to get back to that preeminence."
Virtually every close observer of the Court of Appeals with whom I have spoken--lawyers, judges, academics, reporters--are all expressing a similar view. The court has been considerably diminished in the last few years and needs to regain its traditional quality and prestige.
I've been candid when asked my views on these matters.
See e.g., New York chief judge's exit seen by some as an opportunity to raise Court of Appeals' stature, by Susan Arbetter, Capital Tonight, Aug. 31, 2022:
[W]hen asked if DiFiore was a good chief judge in the vein of former Court of Appeals Chief Judges Jonathan Lippman and Judith Kaye, Bonventre said the court has taken a status hit under her watch.“I will say that during her tenure, the court’s reputation has really plummeted. I don’t think you can find anybody serious and candid who will tell you that the court is particularly well-respected today. It’s not. Its reputation has really been on the downside,” Bonventre said.Bonventre, who has written extensively about the Court of Appeals, had favorably compared the court to the U.S. Supreme Court prior to DiFiore’s tenure.“When Jonathan Lippman was chief, I remember chief justices from the, around the country, telling me, ‘Boy this is a great court again’. It was a great court early on in [Judith] Kaye’s tenure, certainly when [Lawrence] Cooke was chief. A lot of [Sol] Wachtler’s tenure, [Charles] Breitel’s, [Stanley] Fuld’s. You can go back and back. It has not been a very good court (lately),” he said.When asked why, Bonventre blamed former Gov. Cuomo.“That’s another interesting question. I don’t think it’s necessarily because of Chief Judge DiFiore. For one thing, look, Gov. Andrew Cuomo didn’t really care much about the court,” Bonventre said. “Pataki wanted to make the court in a particular image. Certainly, Mario Cuomo was very serious about the court. I don’t think Andrew Cuomo was very serious about it.”According to Bonventre, the younger Cuomo would “just bypass” extraordinary candidates that were on the list submitted to him by the Judicial Screening Commission.“Erin Peradotto, Michael Bosworth, Caitlin Halligan. It would have been an extraordinary strong court. He bypassed them,” Bonventre stated.The other issue weighing down the court is the dynamics in play among the judges.“When you have different opinions on the court, different sides, and they’re really nasty towards one another. Or when you get 4-3 decisions, meaning they’re really close, and the majority doesn’t even sign its opinion – it will write some ditty little three or four paragraph unsigned memorandum. And you have 3 colleagues writing long dissents? That kind of shows not much respect for colleagues. It doesn’t show a good dynamism within the court,” Bonventre said.
And In Seven Candidates for Chief Judge With Varied Backgrounds, There's Something for Everyone, by Brian Lee, NYLJ, Nov. 28. 2022:
Albany Law School professor Vin Bonventre called it an “extraordinary” list of applicants whose only “glaring omission” is Court of Appeals Judge Rowan Wilson.
Presuming Wilson applied, Bonventre said, “myself and plenty of other lawyers in New York think it’s a disgrace that he’s not on the list.”
The professor said he suspects Wilson didn’t make the cut because he’s a frequent dissenter on the high court.
“The commission might well be interested in getting a more consensus candidate for chief judge,” said Bonventre, adding “it’s very curious” Cannataro was the only current Court of Appeals judge to emerge from the commission, presuming others applied.
And The ‘extraordinary list’ of 7 that Kathy Hochul will pick from for NY’s top judge, by Zach Williams, NY Post, Nov. 25, 2022:
“It’s a pretty extraordinary list,” Albany Law School Professor Vincent Bonventre, a longtime Court of Appeals watcher, told The Post on Friday. “Each one of them comes with very strong reputations. They have very impressive credentials and backgrounds.”
He added the next chief judge will have their work cut out for them considering how far the Court of Appeals has fallen in recent years from being the role model it once was for the rest of the nation.
“The Court of Appeals is nowhere near the court that it traditionally has been,” Bonventre said. “I don’t think you can find anybody who honestly is going to tell you that it is.”
So those are my views on the Chief Judge list--the inclusions and exclusions--as well as the current state of the Court of Appeals and the critical importance at this time for a strong selection to help restore New York's highest tribunal to its traditional prominence as one of the nation's great courts.
In the next post, we'll look at Governor Hochul's nominee, Hector LaSalle. We'll look at his decisional record at the Appellate Division and, more specifically, at opinions he has authored which seem to have been overlooked by those who are opposing his confirmation.