(Part 2) NY Chief Judge Nominee Rowan Wilson

In Part 1, we tracked Judge Rowan Wilson's eventual nomination by former Governor Andrew Cuomo to the Court of Appeals in 2017--on Wilson's 6th consecutive inclusion on the Commission on Judicial Nomination's list of recommended nominees. We also reprised my suggestion, ten years ago, that he would be an "ideal choice" to be Chief Judge. (I'm hardly clairvoyant, but I do believe my suggestion even more strongly today.)

Now that Governor Kathy Hochul has nominated Wilson for that center seat on New York's highest court, let's review some of his opinions that do strengthen my view. Specifically, let's review some of his dissenting opinions. Only a few will do.

As I've discussed many times, dissents are the most revealing opinions. They are often "pleas for greater justice, decency, and wisdom" in which their authors "felt compelled--by principles higher than consensus and unison--to protest publicly what their colleagues had decided." (See Great Dissents: 'Matters of High Principle' at the Court of Appeals, 94 N.Y. ST. B.J. 23 (Nov./Dec. 2022).

Let's start with just two Wilson dissents in criminal cases.

People v. Tiger, 32 N.Y.3d 91 (2018)

By a 5-2 vote, the Court held that, except in a case of newly-discovered DNA evidence, a defendant who initially pleaded guilty was never permitted to subsequently claim actual innocence on appeal. The majority, insisting that a guilty plea was incompatible with innocence, emphasized the need for the finality of criminal convictions and the conservation of judicial resources. The majority gave no weight to the fact that, subsequent to her guilty plea and conviction, the defendant had been exonerated of any wrongdoing in a civil case. Nor did it give weight to the unanimous conclusion of the Appellate Division (New York's intermediate appeals court) that the defendant had established a prima facie showing of innocence.

Judge Wilson decried the majority's rigid rule and its indifference to the injustice it perpetuates. As he put it:

Natascha Tiger pleaded guilty but is innocent. 

Ms. Tiger is neither the first nor last innocent person to plead guilty. Ms. Tiger's case...provides a compelling example...Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. 

Subsequently, when the [victim's] family sued Ms. Tiger[, e]ven though [they] had to satisfy only the "preponderance of the evidence" standard, and not the "beyond a reasonable doubt" standard, the jury found that Ms. Tiger did not cause the [victim's] injury.... 

We know that some completely innocent people plead guilty...[I]nnocent defendants may be motivated to plead guilty for a variety of reasons: most prominently, the threat of a more serious charge and a far longer sentence upon electing to go to trial [and] concerns about the defendant's lawyer or the availability of evidence that would conclusively demonstrate innocence. 

Wilson then quoted former Chief Judge Jonathan Lippman:

"Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible." 

Today's decision inexplicably and unnecessarily denies that mission.

[I have written previously about this case: NYCOA: Criminal Appeals (Part 4c)--More Recent Dissents That Should Have Been Majorities, 3/27/2019. A former student has done so as well: Olivia Harvey, People v. Tiger, “[M]ore than it should and less than it seems:” The Court of Appeals’ Over-Emphasis on Finality and Conservation of Judicial Resources, 2/1/2023.]

People v. Dawson, 38 N.Y.3d 1055 (2022)

In a two-paragraph unsigned opinion, another 5-2 majority rejected a right to counsel claim. The majority simply deferred to the determination of the trial judge that the defendant, who was being interrogated at the police station, was not sufficiently clear that he wanted to speak with an attorney.

Judge Wilson's dissenting opinion showed that the evidence was just the opposite. And because the 19-year-old defendant--who had been brought to the police station in handcuffs, shackled to a chair in the interrogation room, and left isolated for a couple of hours--did make it clear, his waiver of Miranda rights and consent to be questioned in the absence of an attorney was invalid.

To show that the defendant did indeed want to speak to a lawyer, Wilson spelled out a transcript of the conversation in the interrogation room:

Detective: “Do you understand each of your rights?”

Dawson: “Yeah, definitely. I just wish that I'd memorized my lawyer's number. He's in my                         phone. Is it possible for me to like call him or something?”

Detective: “Do you want your lawyer here?”

Dawson: “Right now?”

Detective: “Yeah.”

Dawson: “If I could get a hold of him ‘cause I don't know his number; it's in my phone.”

Detective: “OK.”

Dawson: “But you could still tell me what's going on though, right?.”

Detective: “No, I can't talk to you if you if you want your lawyer here and you already                         said you did, so let's, you know what, let's give him a call.”

Dawson: “And if he don't answer then can you come talk to me?”

Detective: “No.”

Dawson: “So what happens if he don't answer?”

Detective: “Ah, I mean, we'll, we'll deal with that if it happens. Let's hope he answers. I                         mean, from the sound of it, it sounds like you understand your Miranda                             rights and you want your attorney.”

Dawson: [Inaudible]

Detective: Is that, am I understanding that correctly?”

Dawson: “Well, yeah, I just, to be honest I just really want to know what's going on, you                         said something about [not discernable], you know, I don't know what the hell                      happened, what incident happened. I just really want to know what's going                         on. That's pretty much it.”

Detective: “OK.”

Dawson: “That's all.”

Detective: “OK. So just hang, hang tight for a minute, OK? We'll get your phone, we'll go from there.” 

Wilson  explained what happened next:

At that point, the detective left the interrogation room, purportedly to get Mr. Dawson's phone so he could call his lawyer. [But] Mr. Dawson was not given his phone, was not given any means to contact counsel, and no one attempted to contact his counsel on his behalf. Instead, less than two minutes later, when the detective next entered, he sat down and said, “Here's the deal, I'm just going to ask you flat out...do you want your lawyer here or do you want to just figure this out?” Mr. Dawson replied, “I really just want to figure this out.” The detective administered Miranda warnings again and Mr. Dawson agreed to speak to police. 

Wilson then reminded his colleagues that the "right to counsel in New York is robust and one our court has vigilantly guarded." And specific to this case:

[A]n unequivocal request does not require “magic words.” [Wilson's citation to Court of Appeals precedent omitted here.] We have found statements to police to be unequivocal even when suspects have used conditional language or spoken without absolute confidence about their desire for representation. In People v. Harris, we upheld the Appellate Division's determination that the defendant's statement “I think I want to talk to a lawyer” was unequivocal. [Citation omitted.] In People v. Esposito, the defendant told police, “I might need a lawyer.” [Citation omitted.] We held the statement “constituted a request for counsel.” Finally, in People v. Porter, we reversed the Appellate Division's determination that the defendant's statement to police “I think I need an attorney” was insufficient to unequivocally inform the police of his desire for counsel, determining the record could support no other reasonable interpretation of the request. [Citation omitted.]....

 As is clear from the quoted portion of the colloquy with the detective, [Mr. Dawson] twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson's phone so he could call counsel....

Judge Wilson began to conclude with a question and observation about the majority of the Court:

The detective repeatedly stated that he understood Mr. Dawson to have requested counsel. Why doesn't the majority? I have no good answer, only an observation. Today's holding is like several others in which our Court has imposed a high and unrealistic linguistic burden on criminal defendants – where the intent is clear, but some better choice of words can be imagined, often finding ambiguity in deferential language. [My emphasis.]

In the two cases discussed above, it's difficult to miss a certain rigidity and indifference in the majority's position, and the plea for equity, common sense, and the protection of basic rights and justice in Judge Wilson's dissenting opinions. Moreover, these two cases are not exceptions. They have been fairly typical in the criminal cases when Wilson has dissented.

In the next post, we'll take a look at a couple of civil cases in which Judge Wilson's dissents give us insight--like the two criminal cases just discussed--into his jurisprudence.

(Inasmuch as the state's Senate Judiciary Committee has scheduled its hearing on the Wilson nomination for tomorrow [Monday, April 16, 2023], he may be confirmed by the time the next post is published.)

NY Chief Judge Nominee Rowan Wilson (Part 1)

It's been a long and winding road for Rowan Wilson to first be selected to sit on New York's highest court and, ultimately, to be selected for the center seat as Chief Judge of the court and the state.

It was ten years ago that Rowan Wilson's name first appeared as a potential nominee for the Court of Appeals. His name was among those on the list of seven that the Commission on Judicial Nomination submitted to then-Governor Andrew Cuomo in 2013 to fill a vacancy on New York's high court. Cuomo chose to nominate someone else.

The following year, Wilson's name appeared on two more lists that the Commission submitted to Cuomo to fill two more vacancies on the Court of Appeals that had arisen in the interim. Cuomo again selected others for those slots.

In 2015, the Commission included Wilson on a list to fill the vacancy in the position of Chief Judge when Jonathan Lippman reached the mandatory retirement age, 70, for Judges on the Court. Cuomo again chose someone else.

That same year, the Commission produced another list for a seat on the Court. Cuomo chose someone else.

Finally, in 2017, the 6th time the Commission included Wilson among its recommended possible nominees, Cuomo did select him.

Five years later, the story would continue.

In 2022, when the sitting Chief Judge, Janet DiFiore, resigned, the Commission produced a list to fill that vacancy. To the utter puzzlement of many who follow the Court and New York government generally, several names that would be expected to be included were not. To be sure, it was a strong list. But it somehow did not include three sitting members of the Court of Appeals who had applied, including Judge Wilson. Nor did it include the state's former Solicitor General, Caitlin Halligan, who had been included on five previous lists and who many believed should have already been sitting on the Court.

As required under state law, Governor Kathy Hochul, who had succeeded Andrew Cuomo when he resigned, chose a nominee from the list that the Commission did give her. But then, when Hochul's choice from that list, Presiding Justice Hector LaSalle of the Appellate Division, 2nd Department, was rejected, the Commission went back to work to produce a second list, also as the law required.

A few weeks later, the Commission produced a second Chief Judge list. In another surprise, this list didn't simply replace Justice LaSalle. Rather, five of the seven names on this new Chief Judge list were different. Most notably, Wilson and Halligan were among the replacements.

Now, Governor Hochul has nominated Judge Wilson to be Chief Judge, and Caitlin Halligan to fill the vacancy resulting from Wilson's very likely confirmation by the state Senate. Governor Hochul has made it plain that she wants to restore the prestige of New York's highest court--a nice way of acknowledging that most Court observers believe that its stature has fallen considerably in recent years.

It would certainly seem that with these two picks, Wilson and Halligan--together with her first appointee last year, Judge Shirley Troutman--Hochul is going a long way towards doing exactly that.

But for now, let me just go back to 2013, when Rowan Wilson's name first appeared on a Commission list for the Court of Appeals. Here's what I wrote then. Other than the number of years he would get to serve and the fact that he has now been a Judge on the Court for the past 6 years, my thoughts today are much the same. 

This is from New York Court Watcher, NYCOA: Who's on the List for the Jones' Vacancy? (Part 2: Rowan Wilson), Wednesday, March 27, 2013:

I'd like to discuss Rowan Wilson first. That's what we'll do in this post.
Rowan D. Wilson

Perhaps the most interesting name on the list. More important than that, it's hard to beat his vita.

Sure, no judicial experience. Not and never a government official. Nor a political party official. Nor advisor to a governor or senator. Nor a legal academic.

No, he's not the typical nominee for the Court of Appeals. Not a judge on a New York State appellate or trial court, as were 6 of the 7 members of the high court when Andrew Cuomo became Governor. No, not Rowan Wilson.
Oh, and he was born in California.

But, again, hard to beat.

Harvard undergraduate and law school.
Clerkship with the chief judge of a federal circuit court of appeals.
A partner at Cravath--one of the, or THE, most prestigious law firm in New York and the nation.
Litigator for clients such as Time Warner, Royal Dutch Shell, IBM, and Pricewaterhouse Coopers. [They don't hire no slacks!]
Complex antitrust, copyright, trade secret, and securities fraud litigation. [Slacks can't handle those!]
And, he also [Perhaps for penance--just kidding!] has handled civil rights litigation, worked in support of affirmative action, and serves as the chair of the Neighborhood Defender Service of Harlem.

And, he's only 52.

Soooo, at the end of 2015, when Chief Judge Lippman must retire [because of New York's moronic mandatory age-70 retirement], Rowan Wilson will only be 55 or 56. If selected by Governor Cuomo to fill the current vacancy, he will have served 2 1/2 years on the Court of Appeals by that time, and he'll have a full 14 years till his 70th birthday.

He might just be the ideal choice--and politically ideal choice--to succeed Lippman as Chief.

Governor Cuomo's father made history with several firsts. When he was Governor, Mario Cuomo appointed the first woman, the first African-American, and the first Hispanic members to New York's highest court. He also appointed the first female Chief Judge.

With Rowan Wilson, Governor Andrew Cuomo could make his own historic appointment. The first African-American Chief Judge.

And come on, at least based on Wilson's extraordinary credentials and career to date, who could question his qualifications?

Yes, he's a most interesting name on the list. Not surprisingly, Court of Appeals watchers are abuzz about him.

Based upon Judge Wilson's record on the Court of Appeals over the last several years, I'm only more persuaded of my original assessment. Let's hope I'm right, for our Court, for the law, and for the people of New York.

Next, we'll look at a few highlights of his record thus far on the Court of Appeals. Specifically, we'll look at some of the most revealing opinions he's authored these past six years.

Hochul's Pick for Chief Judge (Part 2): LaSalle's Record

In Part 1, we looked at the list of seven candidates for Chief Judge recommended to Governor Kathy Hochul by the Commission on Judicial Nomination. We discussed the strong inclusions, the shameful exclusions, and the need for a strong Chief Judge to help restore the New York Court of Appeals to its traditional preeminence. 

Let's now take a look at Judge Hector D. LaSalle's record. Ever since he was selected from the list by Governor Hochul as her nominee to preside over the state's high court, he has faced strong opposition. Some Democratic senators, progressive organizations, and law professors have openly protested Hochul's pick as being too conservative. In their view--as well as that of most close observers of the court--the Court of Appeals has recently become much less protective of workers' rights, women's equality, the rights of the accused, and other hallmarks of its historic role in state governance and as a national leader. They argue that the court needs a progressive chief judge who can turn the court around, but that LaSalle is the very opposite of that.

So, in this post, let's look at the bases for their opposition. Next, in Part 3, we'll look at revealing parts of his actual record which have largely been overlooked.

LaSalle's opposition complains about a few cases in which he participated at the Appellate Division--i.e., New York's intermediate court on which he sits and over which he is now the Presiding Justice of its Second Department (which covers 10 downstate counties, with its courthouse in Brooklyn). But a careful and somewhat closer look at those cases does not actually show LaSalle to be the ideological conservative that his opponents claim.

Here they are:

    Evergreen Ass'n, Inc. v. Schneiderman (2017).

Some opponents have claimed that "The decision is shocking...This opinion suggests to us that Justice LaSalle does not understand the severity of the threat to women’s rights posed by anti-abortion activists and their funders."

The case involved an investigation of a not-for-profit corporation that offers information about alternatives to abortion to pregnant women. The issue concerned the breadth of the state Attorney General's subpoena which demanded a wide range of documents about, among other things, the corporate structure and facilities, the names, education, and credentials of all of its staff members, the materials it provides to clients, its medical services, equipment, and supplies, and the source of its funding. 

The Appellate Division, in a unanimous opinion which Judge LaSalle joined, ruled that the 1st Amendment prohibits subpoenas "used to intimidate or harass" those with unpopular views. Therefore, the subpoenas were only valid to the extent that they sought information necessary for the government's legitimate investigatory purposes.

As the court put it:

[W]e limit in scope the demands set forth in the subpoena to require the disclosure of only those documents that are substantially related to the Attorney General's legitimate need to gather evidence to determine whether [the not-for-profit corporation] has engaged in the unauthorized practice of medicine and which do not unnecessarily intrude on [the corporation's members] First Amendment right to freedom of association.

Hardly a "shocking" threat to women's rights.

    Cablevision Sys. Corp. v. Commc'ns Workers of Am. Dist. 1 (2015)

In this case, in which Judge LaSalle voted with the majority, supposedly "the decision is puzzling [and] suggests an unexpected hostility to labor."

The case involved a company's lawsuit against a union and its representatives for allegedly defamatory criticisms. The Appellate Division held that the suit against the union itself and against the individuals acting as officers of the union had to be dismissed under the law governing labor-management relations. But the court ruled that the lawsuit could proceed against those individuals who allegedly defamed the company while acting on their own, having nothing to do with their roles in the union.

Indeed, the court--with LaSalle's vote--was applying, as it must, the precedent set by the Court of Appeals in its 1951 decision in Martin v. Curran.  As the Appellate Division explained:

[N]either the Martin rule nor any other authority precludes causes of action from being asserted against individual members of the union defendants in their individual capacities (see Martin v. Curran, 303 N.Y. at 279). In Martin, only the claims asserted against union members in their representative capacities as officers of the union were dismissed. Notably, the Court of Appeals specifically allowed the libel claims in that action to proceed against the same defendant union members, in their individual capacities (see Martin v. Curran, 303 N.Y. at 279), which is determinative here. [Emphasis added.]

Really anti-union or worker?

    People v. Corbin (2014)

In this case, the claim is that "LaSalle rode roughshod over due process [and] was so extreme, it was repudiated by the conservative Court of Appeals five years later."

The case involved a plea of guilty to a weapons offense in which the defendant, as part of the arrangement with the prosecutor and upon the advice of his attorney, waived his right to appeal. Nevertheless, the defendant did seek to appeal, arguing that the police search which uncovered the incriminating evidence against him was illegal.

The majority at the Appellate Division, which LaSalle joined, held that the defendant had clearly, voluntarily, and knowingly waived his right to appeal after being advised by his attorney, and that the trial judge insured that the defendant understood what he was doing. Under Court of Appeals precedent, a few constitutional issues, such as the right to counsel, do survive a waiver of appeal, all others--such as whether evidence should have been suppressed--do not. As the Appellate Division explained its decision:

[T]he record demonstrates that the waiver of appeal was valid and entitled to enforcement, since it establishes that the defendant appreciated the consequences of the waiver and knowingly and voluntarily accepted them. [Citing to Court of Appeals precedent.]

When the [trial judge] correctly advised the defendant that some constitutional issues would survive his waiver, the defendant indicated that he understood the meaning of this information. He did not express any confusion or question the court or his attorney (with whom he had an adequate opportunity to discuss the matter) regarding the waiver, nor did he inquire as to whether any particular issue would survive the waiver. 

What was the supposed "repudiation" of that Appellate Division decision by the Court of Appeals that LaSalle's opponents pointed to? People v. Thomas (2019). But here's what the Court of Appeals actually addressed in that very different case:

We reiterate that, when a trial court has utterly "mischaracterized the nature of the right a defendant was being asked to cede," an appellate "court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights. [Emphasis added.]

There was nothing in the Appellate Division's Corbin case suggesting that the trial judge "mischaracterized" what the defendant was waiving. What has been mischaracterized is the Court of Appeals Thomas decision as having supposedly "repudiated" Judge LaSalle's vote in Corbin.

People v. Delvillartron (2014) 

This additional case identified by some opponents,  supposedly proves that Judge LaSalle has "a clear pro-prosecution bias, voting to affirm convictions even when injustice has clearly occurred."

The question, in this case, was whether the police had probable cause justifying their arrest of the defendant. Not whether the police had reason to believe the defendant was guilty beyond a reasonable doubt or even by a preponderance of the evidence. But whether there were reasonable grounds to believe that the defendant was probably guilty. 

The facts were that the police were chasing the two suspects who had just been identified by the victims of an armed home robbery. When the police caught the suspects, they were closing the rear door of a vehicle they had just entered. The defendant was in the driver's seat trying to start the car.

The majority of the Appellate Division held that the police should not have arrested the defendant, because it was just as likely that he was entirely innocent as opposed to being the driver of the getaway car. LaSalle dissented. As he saw it:

[The chased suspects] entered the rear of a nearby vehicle, and [the police] observed the defendant fumbling with the keys, attempting to put them in the ignition.

Contrary to the conclusion of the majority, in evaluating the totality of the circumstances, I do not believe the defendant's behavior can be viewed as “innocuous.” Indeed, in my view, the totality of the facts and circumstances would lead a reasonable person possessing the same expertise as the arresting officer to conclude that the defendant was acting in concert with [the chased suspects], in attempting to assist them to flee the scene of the home invasion.

Does LaSalle's analysis really demonstrate a "clear bias" or that "injustice has clearly occurred" under these facts? Or was his view of the existence of probable cause an entirely reasonable one? [In fact, as a self-acknowledged liberal, I would have agreed with LaSalle in this admittedly close case.]

So there it is. Those are the cases and the votes and dissenting opinion of LaSalle that apparently disqualify him from being Chief Judge. His opponents claim that these prove him to be some ultra-conservative whose appointment as Chief Judge would have "severe implications for New Yorkers’

rights and our democratic institutions."

Again, in Part 3, we'll look at important aspects of his decisional record which his opponents have overlooked.

Hochul's Pick for Chief Judge: The Commission's List and LaSalle's Record (Part 1)

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."

(See One-On-One Interview with Gov. Hochul, Susan Arbetter, Capital Tonight, Aug. 24, 2022.)

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.

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. 

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.

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.

Janet DiFiore (Part 3--Notes from the Hearing)

Janet Marie DiFiore
photo:John D'Annibale/Times Union

Well, we actually had a hearing. A substantive, meaningful, revealing confirmation hearing.

On Wednesday, January the 20th, New York's Senate Judiciary Committee held a hearing on Governor Andrew Cuomo's nomination of Janet DiFiore to be Chief Judge of the state and of its highest court, the Court of Appeals. It was a superb hearing, and the nominee's exceptional performance earned the unanimous vote she received.

(I am trying to be detached and clinical. But the fact is that, as a New Yorker, I left the hearing proud of what I witnessed from both the Committee and the nominee. I have not hesitated to be critical of confirmation hearings, state and federal, or of the oftentimes simplistic, disingenuous, nonsensical queries of the senators and responses of the nominees. But this hearing and the nominee's responses were superb. Let me acknowledge that the confirmation hearing conducted by the Committee a few years ago for now-Judge Jenny Rivera was as tough as I've witnessed in New York--that's a compliment--and she was more than up to the challenge.)

Here are a few notes from the DiFiore  hearing. Let's start with the Judiciary Committee itself and then offer a few comments about the nominee's performance.

The Judiciary Committee

• In his capacity as Chair, Senator John Bonacic, has always shown himself to be extremely well-prepared for these hearings, and this one was no exception--both regarding the nominee, the role of a Judge on the high court, and the role of Chief Judge.
• More than that, it was evident that the other Senators on the committee came prepared to this hearing as well. It seemed as though every member of the committee posed at least one serious question or offered a substantive comment about the nominee, the role of the Court, or that of Chief Judge.
• Bonacic and the other Senators on the committee explored the nominee's background, experience, fitness and other qualifications to be Chief Judge.
• They pressed the nominee about her ability and commitment to be independent of the Governor who nominated her and with whom she has been politically connected.
• They pressed the nominee about her understanding of the judicial role, as opposed to that of the legislative and executive branches.
• The similarly pressed her about her understanding of the legal role of a Judge on the high court and the administrative and policy-making role of the Chief Judge of the state.
• They asked her about the approaches--some different--of her predecessors as Chief Judge, both as the presiding judges of the Court and as the administrators of the judicial branch.
• They asked about judicial role models.
• They asked for her views about many substantive areas of the law and about running the state's mammoth judicial branch.
• Unlike the confirmation hearings at the federal level, there was no partisan bickering, there were no "gotcha" questions, there was no nonsense about simply applying law and not making it, and there was no ranting and raving and pandering to the home crowd.
• There was some serious commentary cum urging offered by several of the Senators about respect for legislative prerogatives, about addressing inequities in the justice system, and about judicial ethics and integrity.
• There were also some lighthearted moments as when at least two of the Senators expressed their disagreement with the nominee's choice of favorite Judge in Court of Appeals history (discussed below), and they each named Judge Eugene Pigott as theirs--he happened to be present in the room, and he has indeed been a truly exceptional jurist on New York's high court.
• There were also a few snickers when one of the Senators remarked--more than a bit inappropriately in such a setting--that the nominee was much better looking than her photographs.  (The nominee was gracious and treated it as a welcomed compliment.)
• One last note: Senator John Defrancisco, a relentless and well-prepared virtual interrogator of  nominees in the past, attended the hearing and posed questions even though he is no longer a member of the committee. In fact, he came so armed with queries and comments, that the Chair eventually had to (good-naturedly) cut him off.
• All in all, a terrific job done by the Chair and his committee.

The Nominee

• Though nominated to be Chief Judge by Governor Andrew Cuomo and though having been appointed by him to other government positions, Janet DiFiore assured the committee on no uncertain terms about her absolute resolve to be scrupulously independent of any political or personal influence.
• The term she used repeatedly to describe what would be her independent approach to the cases: "inviolate."
• In terms of being an "activist." she made clear her intention to continue the work of her immediate predecessors as Chief Judge to address the inequities in the justice system, especially those that impact the young, the poor, minorities, and other vulnerables. Indeed, she unabashedly pledged that she would be an advocate for those and other justice matters.
• She also made clear that her approach to cases would be based on examination of the law, on legal principles and on the consequences of a decision as well.
• Notably, she did not engage in the robotic nonsense often voiced at confirmation hearings, both state and federal, that "Judges-should-not-make-law-or policy-but-should-only-apply-the-law-and-policy-as-given-[and as supposedly already well-settled]-to-the-facts-of-the-case."
• Notably also, she did not embrace any particular interpretive methodology. That too is in sharp contrast to the claims of many nominees and sitting judges, state and federal, who avow an aversion to "judicial activism" and, in supposed opposition, espouse so-called textualism or originalism or strict construction or specific legislative intent, or some other variant of "judicial restraint."
• Instead, she unreservedly proclaimed that her goal in decision-making was to insure equity, justice, and fundamental fairness.
• She appropriately declined to express an opinion on the validity of certain laws, proposals, or other measures--executive as well as legislative--that might well come before her in cases at the Court.
• When asked, she unhesitatingly identified her favorite Judge in Court history as Stanley Fuld. (Although she was not asked for an explanation, there are several reasons which likely informed her choice. First, Fuld was one of the truly great and most influential jurists, state or federal, of the last century. Beyond that, he served as Chief Judge and, as such, is one of her most eminent predecessors. And perhaps most significantly for DiFiore, Fuld's background--like hers--was being a prosecutor and, despite that, was one of the Court's and the nation's foremost advocates for protecting the rights of the accused.)
• In one of the most surprising and amusing highlights of the hearing, we learned that Janet DiFiore is--to borrow a phrase popularized by a certain personality who once ran for Vice-President--a "Mamma Grizzly!" Not only does she believe in gun rights but, when asked, revealed that she herself has a concealed carry permit.
• On a more relevant note, nominee-DiFiore delivered her opening remarks and responded to all of the Senators' inquiries with exceptional confidence and poise and knowledge and dignity. It was a bravura performance on her part.

Of course, one never knows for sure how any particular judge will perform once confirmed and sitting on the bench. But the Judiciary Committee did a fine job examining the nominee and assuring itself that she is as enormously qualified to be Chief Judge as she certainly appears to be.

As for the nominee herself, what ran through my mind as I observed her and heard her through the hearing was this. She seems to possess many of the best qualities of her immediate predecessors. Like Sol Wachtler, she has a strong, commanding, yet exceedingly charming presence. Like Judith Kaye, she displayed that distinctive class, eloquence, and warmth. And Like Jonathan Lippman, she exuded that overriding concern for those in need, for basic human decency, and for doing the right thing.

(Yeah, what can I say, I thought she was wonderful and I'm hopeful she will do wonderful things as Chief.)

As the confirmation hearing came to a close, Senator Bonacic proclaimed what, I believe, everyone was thinking, that DiFiore was an "exceptional" nominee. Then, with the standing room only audience still in the room and the nominee herself still at the table, he called for an immediate vote. It was unanimous, and Bonacic announced it in enthusiastic, forceful fashion.

The full Senate confirmed DiFiore unanimously as well the next day. And this Monday, in that glorious courtroom in that magnificent courthouse on Eagle Street, there will be the ceremonial investiture of the new Chief Judge. I'll be there, Court geek and proud New Yorker.

Janet DiFiore (Part 2--The Confirmation Hearing)

Chief Judge Nominee Difiore
photo: Rick Kopstein/NYLJ

It's now up to the Senate Judiciary Committee. The confirmation hearing for Janet DiFiore to be Chief Judge of New York has been scheduled for this Wednesday.

The Judicial Nomination Commission, chaired at the time by former Chief Judge Judith Kaye (since deceased), did its job, and did it extremely well. The commission encouraged applications, interviewed applicants, and in November of last year it provided the Governor with an extremely impressive list of 7 recommended candidates.

Governor Andrew Cuomo did his job, also extremely well. In December, he picked a candidate who, by virtually all accounts, is a truly exceptional choice. Her background and experience would strongly suggest she is. (See Janet DiFiore, New York Chief Judge Nominee.)

Now it's time for the Judiciary Committee to do its job, and to do it well.

The Senate has already missed the legal deadline. By law, the Governor's nominee was supposed to be confirmed or rejected within 30 days. But being late is not a reason for the Senate to engage in a perfunctory rush job. Filling a vacancy on the Court of Appeals--let alone that of Chief Judge of the state--demands nothing less of the Senate than a serious, informed, independent exercise of  its constitutional "advice and consent"responsibility.

Unfortunately, since the time New York adopted an appointment system for the selection of Judges to its highest court, the hearings conducted by the Judiciary Committee have typically been a fairly worthless exercise. They have typically been little more than a rubber stamp for the Governor's choice.
(I've discussed this before in New York Court Watcher: New York Court of Appeals: Chief Judge Lippman's Senate Confirmation and Press Reviews, Feb. 12, 2009; Jenny Rivera, Part 2: The Coming Senate Hearings, Jan. 21, 2013.)

Typically, a few witnesses--friends and associates of the nominee--testify how wonderful the nominee is. Typically, then, a few words of praise are offered and innocuous questions posed by the Senators to the nominee.

Typically, there is precious little that is probing. Precious little that should actually satisfy the Senators, or the state's citizens, that the merits of the nomination have been assured. Precious little that constitutes meaningful participation by the Senate in the selection process.

On occasion, the Senate has engaged meaningfully. But those have been the rare exceptions.
(See e.g., The Rivera Hearings: The Committee & The Nominee Prove Themselves, Feb. 4, 2013.)

This is not a call for the kind of partisan circus into which the confirmation hearings for U.S. Supreme Court Justices has degenerated. Nor is this a call for unreasonable delay in the process or an unwarranted challenge to the Governor. Nor for unjustifiably undermining the nominee, the position of Chief Judge, or the stature of the Court.

But this is a call for seriously examining the nominee and the nominee's qualifications. For the care and effort necessary to render an intelligent, independent determination about the character and fitness of the nominee--in this case, to be Chief Judge.

To be fair, the chair of the Judiciary Committee, Senator John Bonacic, has always run highly dignified hearings. It should also be noted that he and a few others on the committee (such as Senator John DeFrancisco who, unfortunately, is no longer a committee member) have always seemed well informed about the nominees before them. Moreover, they have always seemed well aware of the importance of the judicial position to be filled and of their role as Senators to participate meaningfully in filling it.

But whether because of time constraints, or political considerations, or lack of interest or understanding, the committee itself has typically fallen far short of its constitutional responsibility. No, a confirmation hearing ought not to be just another occasion for partisan bickering and scoring political points (as it has become at the federal level). But neither should it be a hasty, careless, or indifferent approval of the Governor's choice.

At the least, the Senate, through its Judiciary Committee, should satisfy itself that a nominee has some real understanding of the judicial role--especially that of a judge on a high court and of a high court itself. That the nominee has some real understanding of the difference between the legislative function on the one hand and, on the other, the law-making and policy-making that are inherent in decision-making on a court of last resort.

That the nominee has some judicial philosophy--whether it be literalism or originalism or some other specie of strict interpretation. Or whether a judge should give effect to broader underlying purposes and principles in the law and be particularly mindful of the consequences of a decision.

Considerations such as these are extremely important in the appointment of a high court judge They ought to be matters of concern and exploration in the Senate confirmation process.

Now it may be--as it is in the case of the current nominee for Chief Judge--that she has not had the experience of judging on a high court. She may not have had much occasion or opportunity to develop a judicial philosophy or to formulate a coherent perspective on the judicial role of a court of last resort, such as the Court of Appeals. But that doesn't make such matters less important. Nor is it a reason to avoid those matters entirely.

To be sure, some of the very same considerations can be explored and uncovered in different ways. Anyone interested in serving on a high court should surely have given some thought to such matters. Anyone interested in judging and in judges must have given some thought to the kind of judges they admire and, even more specifically, to the particular judges with whom they agree or even view as role models.
(At a symposium at Albany Law School a few years ago, I asked the Judges of the Court of Appeals to pick a favorite Judge in the Court's history--excluding Cardozo--and to explain why. It was extremely revealing to say the least. See Judges on Judges:The Court of Appeals Judges' Own Favorites in Court History, 71 Alb. L. Rev. 1045 [2008].)

If a nominee's favorites are Judges such as Vito Titone and Carmen Ciparick on the Court of Appeals, and Justices such as Ruth Bader Ginsburg and Sonia Sotomayor on the Supreme Court, that certainly reveals a great deal. It clearly bespeaks something much different about the nominee than if she picked Judges Robert Smith and Susan Read, and Justices Antonin Scalia and Clarence Thomas.

Similarly, because we are now dealing with a nomination to be Chief Judge, it would be revealing to learn the nominee's preferences in that specific regard. Not the personalities of those who have previously served in that position, but their policies--both as leader of the Court and of the judicial branch.

So, for example, does the nominee favor Chief Judge Judith Kaye's avowed preference for consensus, compromise, and the merging of individual differences to obtain unanimity or near-unanimity? Or does the nominee agree more with Chief Judge Jonathan Lippman's view that clearer, more sharply reasoned, and less blurred decisions result when differences are aired in dissents and answered by the majority?

As for the administrative role of the Chief Judge, does the nominee favor the approach of activist chief executives of the judicial branch such as Chief Judges Lippman, Kaye, Sol Wachtler and Lawrence Cooke, and, at the federal level, like Chief Justice Warren Burger? Or does she believe it appropriate to be more restrained in that executive role such as earlier Chief Judges (who, by the way, did not enjoy the title of Chief Judge of the State, but simply of the Court of Appeals) and Chief Justice William Rehnquist at the federal level?

Finally, in addition to inquiries about the nominee's view of the role of a Court of Appeals Judge and of the Chief Judge of the state, there are some other matters which should be put to rest. Matters about which questions have arisen and about which the Senators should be confident that any suspicions are baseless.

1. There is the question about Janet DiFiore's ability and willingness to be independent of the Governor who nominated her and with whom she seems to have had close political ties. Of course, in recent Court of Appeals history we have witnessed a Chief Judge sue the Governor who appointed him, as well as a Judge who repeatedly voted against the death penalty to the dismay of the appointing Governor who had believed him to be pro-death penalty. At the federal level, there is the classic example of Chief Justice Burger authoring the decision that ordered the President who appointed him to release the White House tapes. So appointees can certainly be very appreciative and even close to the chief executives who appointed them, and yet be brutally independent once on the high court. The Judiciary Committee should and will likely seek assurances to that effect from the Chief Judge nominee.
2. Then there is the matter of Janet DiFiore's tenure as chair of JCOPE (the Joint Commission on Public Ethics). The business of that commission is shrouded in secrecy and, for that and other reasons, its reputation is tarnished to say the least. Lest any suspicions arise and enlarge after the Chief Judge nominee has already been confirmed, the Judiciary Committee should satisfy itself that any such suspicions are baseless and will not later tarnish the Court's reputation or that of the position of Chief Judge.
3. There is also the concern in some quarters about the failure of the Westchester County DA's Office to secure indictments in several cases where African-American men were fatally shot by police officers. Some even called for the District Attorney's removal from office. This matter should be explored by the Committee. And the Chief Judge nominee should be given the opportunity to erase any doubts about whether she will--as has Chief Judges Lippman, Kaye, and others who have recently held that position--make the equal enforcement of the law a top priority and be absolutely intolerant of racial discrimination and other racial injustices in police work.

Again, it's now up to the Judiciary Committee and the full Senate. We New Yorkers are fortunate to have had such a fine list of candidates produced by the nominating commission. And fortunate that the Governor has made what seems to be such a fine choice from that list. We should be fortunate, as well, that the Senate takes its role in the appointment process seriously, and that it renders an independent "advice and consent" decision based on a careful, intelligent, and fully informed examination of the merits of this Chief Judge nominee.