NYCOA: Cuomo's Latest Two Nominees (Part 2--Some Perspective)

Governor Andrew Cuomo has now nominated 4 Judges for New York's 7-member Court of Appeals. Hence, if Appellate Division [The state's mid-level appeals court.] Justices Leslie Stein and Eugene Fahey are confirmed by the state's Senate, as is widely expected, this Governor will have appointed a majority of New York's high court.

Selection by appointment was adopted for the state's high court Judges in 1977--thus ending the previous system of partisan elections. Since then, 3 Governors have had the opportunity to appoint a majority of the Court's sitting members. Those 3 are Mario Cuomo, George Pataki, and now Andrew Cuomo.

Let's take a look at their appointments.

Mario Cuomo
Richard Simons (Republican, Upstate)
Judith Kaye (Democrat, NYC) [Assoc. Judge & Chief Judge]
Sol Wachtler (Republican, L.I.) [elevated to Chief Judge]
Fritz Alexander (Democrat, NYC)
Vito Titone (Democrat, NYC)
Stewart Hancock (Republican, Upstate)
Joseph Bellacosa (conservative independent. Upstate/NYC)
George Bundy Smith (Democrat, NYC)
Howard Levine (Republican. Upstate)
Carmen Ciparick (Democrat. NYC)

George Pataki
Richard Wesley (Republican. Upstate)
Albert Rosenblatt (Republican. Upstate)
Victoria Graffeo (Republican. Upstate)
Susan Read (Republican. Upstate)
Robert Smith (Republican. NYC)
Eugene Pigott (Republican. Upstate)

Andrew Cuomo
Jenny Rivera (Democrat. NYC)
Sheila Abdus-Salaam (Democrat. NYC)
Leslie Stein (Democrat. Upstate)
Eugene Fahey (Democrat. Upstate)

Governor Mario Cuomo's nominations were truly diverse. Not only by gender, race, ethnicity, and geography, but by political party as well. Indeed, even the ideological diversity of his appointees could hardly have been more pronounced.
Regarding the latter, there was Vito Titone and Carmen Ciparick, both Democrats and both compiled unmistakably liberal records. Then there was Richard Simons and Joseph Bellacosa, one Republican and one independent, but both had records just as unmistakably conservative.

Governor George Pataki's nominees, by sharp contrast and design, were a veritable sea of red. Expressly insistent on placing tougher law and order Judges on the Court, he appointed all Republicans. Beyond that, his 6 appointees have, in fact, all been at least somewhat ideologically conservative. They have ranged from the  moderately so, such as Albert Rosenblatt, to the more staunchly and consistently so, such as Susan Read.

Governor Andrew Cuomo's nominees, as we have noted on other occasions, have all been Democrats. The pattern of his 4 nominees to date has been more like Pataki's than like his father's. Partisan uniformity. Political homogeneity. All 4 the same political party. All 4 at least somewhat liberal--from moderately so to very much so.

Let me be clear. Andrew Cuomo's nominees will likely vote more like I prefer, and like I would, than the Republicans appointed either by his father or by Pataki generally would. I will most likely be delighted by the increasing protection of the rights of the accused, the worker, women, minorities, and the environment--to name just a few matters--that can be expected with a Democratic majority on the Court.
(And I'll go further: there are other Democrats I would love to see appointed to the Court.)

But there is a danger in politically uniform appointments, in appointments along party lines. A variety of perspectives--political, ideological, philosophical, etc., etc.--is always healthy. Some balance. Some variety. A mix.

Not a "mix" like the U.S. Supreme Court. No, not like that. Not like the Supreme Court with both major political parties represented in almost equal number, but each side so resolutely one sided, closed-minded, bitter and blind to the merits of the other. Republican presidents appointing intensely conservative ideologues. Democratic presidents appointing equally intense liberals. No, that's a recipe for disaster. And, sure enough, that's what the Supreme Court is today.

But if Republican governors are intent on appointing only conservative Republican Judges, and Democratic governors respond by appointing only liberal Democratic ones--if the Governors of New York persist in a pattern of  back-and-forth political party purity, instead of following the example that had been set by Mario Cuomo--then New York's esteemed high court risks going the way of the extremely polarized and indisputably mediocre Supreme Court. A court that is hopelessly and predictably (if not robotically) divided on most tough issues along political party lines.

One last point about all this.
Consider the Republican Judges placed on the Court of Appeals by liberal Democrat Mario Cuomo.
Consider Richard Simons. Stewart Hancock. Howard Levine.
These were all extraordinarily fine Judges.
Those who follow the Court of Appeals--whether Democrat or Republican, liberal or conservative, Upstate or Downstate--understand that these are some of the most highly and widely admired Judges to have sat on our high court in the last few generations.

Consider too: Democratic President Woodrow Wilson appointed Republican Louis Brandeis to the Supreme Court.
Republican Herbert Hoover appointed Democrat Benjamin Cardozo.
Republican Richard Nixon appointed Democrat Lewis Powell.
In the eyes of many, those were among the finest acts of those presidents.

Democrat Mario Cuomo's appointments of Republican Judges Simons, Hancock, and Levine were, likewise, among the finest acts of his governorship.
Many of us court watchers--perhaps, particularly those of us who have worked at the Court, who as New Yorkers are proud of it, and who view it as historically one of the truly fine institutions of this state and, indeed, of the nation--would hope to see the example of Governor Mario Cuomo's non-partisanship in appointments become more the rule than the exception.

In the next installment of this series, we'll see what can be made of nominee Leslie Stein's record while on the Appellate Division.

Part 2 [Renominations Historically] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo

We'll be taking a look at Judge Graffeo's record on the Court of Appeals, and we'll then be trying to get some sense of what Judge Stein's record at the Appellate Division portends. 
But first...

Let's look at the history of sitting Court of Appeals Judges who were up for renomination. Specifically, those Judges who had completed a 14-year term, but were eligible for retention because they had not yet reached the mandatory retirement age of 70. The history is interesting, and quite telling.

Reviewing the entire last century:

• Matthew Jasen--reappointed by Gov. Hugh Carey (1981)

[Previously, Court of Appeals Judges ran for election.]

• Adrian Burke--cross-endorsed by the Democratic and Republican Parties for reelection (1968)
• Stanley Fuld--cross-endorsed for reelection (1960)
• Marvin Dye--cross-endorsed for reelection (1958)
• Charles Desmond--cross-endorsed for reelection (1954)
• Albert Conway--cross-endorsed for reelection (1954)
• Irving Lehman--cross-endorsed for reelection (1937)
• Frederick Crane--cross-endorsed for elevation to Chief Judge (1934)
• Cuthbert Pound--cross-endorsed for reelection (1930)
• [Must note Benjamin Cardozo--cross-endorsed for elevation to Chief Judge prior to the completion of his 14-year term]
• Irving Vann--cross-endorsed for reelection (1910)
• Albert Haight--cross-endorsed for reelection
• Edward Bartlett--cross-endorsed for reelection (1907)
• Denis O'Brien--cross-endorsed for reelection (1903)
• John Gray--endorsed by the Democrats; challenged by the Republicans; reelected (1902)

In short, in the last century:

• Every single eligible Court of Appeals Judge was retained.
• Every single Court of Appeals Judge who ran for reelection was reelected.
• Every single Court of Appeals Judge who ran for reelection was cross-endorsed by both major political parties, except for one, at the very beginning of the century--i.e., John Gray, who was still reelected.
• The single Judge eligible under the then-new appointment system was reappointed.
• Stated otherwise, not a single Court of Appeals Judge was denied retention. 

But then, in this century, there was Governor George Pataki. He was deplorably hyper-partisan and hyper-ideological about criticizing the Court and in making appointments. He also broke the century-plus bi-partisan tradition of retention by refusing to reappoint Judge George Bundy Smith--a Gov. Mario Cuomo appointee, who was the only African-American on the Court.

[N.B., 6 Pataki appointees, but not a single minority. Not a single Democrat either. Apparently, unlike his predecessor, Mario Cuomo, neither racial nor ethnic nor political diversity was a particular concern.]

So here's what this century looked like prior to the Judge Graffeo vacancy:

• George Bundy Smith--denied reappointment by Gov. George Pataki (2006)
• Carmen Beauchamp Ciparick--reappointed by Gov. Eliot Spitzer (2007)
• Judith Kaye--reappointed by Gov. Eliot Spitzer (2007)

And now, Gov. Andrew Cuomo--following in the steps of George Pataki, rather than the other Governors and both the Democratic and Republican parties over the course of more than a century--has denied reappointment to Judge Victoria Graffeo.

Indeed, Andrew Cuomo's break with the long bi-partisan tradition is arguably far worse than Pataki's.

At least in Pataki's case, it could be argued that the Judge he chose not to reappoint had only a year of eligibility left on the Court before retirement age and, moreover, that this was Pataki's last chance to put his imprint on the Court before the end of his tenure as Governor.

In Andrew Cuomo's case, Judge Graffeo was eligible for 8 more years and, moreover, Andrew Cuomo has several appointment opportunities to come. He will, in fact, be making another appointment very shortly. He will be filling a vacancy that arises because Judge Robert Smith faces mandatory retirement age (70) this year. He will then be filling a vacancy in each of the next 3 years when--in this order--Chief Judge Jonathan Lippman, Judge Eugene Pigott, and Judge Susan Read must retire.

So there it is. Going back at least as far as the beginning of the last century, every single Court of Appeals Judge eligible for retention has been retained, regardless of party affiliation, and virtually always with bi-partisan support.

The sole exceptions: Judge George Bundy Smith denied reappointment by Pataki, and now, Judge Victoria Graffeo denied reappointment by Andrew Cuomo.

Anyone who cares about having a strong Court of Appeals, anyone who would hate to see the New York Court devolve into the polarized partisan disaster that is the current U.S. Supreme Court, should be extremely concerned. What George Pataki began, what Andrew Cuomo has now followed, is more than a break with a long bi-partisan tradition. What they have done mirrors the hyper-partisan, hyper-ideological pattern of Presidential appointments over the last several decades that has severely damaged the quality, integrity, and reputation of the Nation's high court.

The New York Court of Appeals has historically been a great court. In large part, that is because strong Judges have historically been retained without regard to party affiliation and without regard to the ideological bent of the renominating or reappointing authorities. Let's hope that Gov. Pataki's approach to the Court and, now, Gov. Andrew Cuomo's, remain aberrations.

[Lest there be any confusion, my criticism of Gov. Pataki's public bashing of the Court of Appeals and his approach to appointments is not a reflection on his appointees themselves. Indeed, Judge Pigott, who Pataki appointed instead of reappointing Judge G.B. Smith, and Judge Graffeo, who Pataki appointed but Andrew Cuomo has declined to reappoint, have both served on the Court with considerable distinction. To be fair to Pataki, he has placed some exceptional Judges on the Court.]

NY Court of Appeals: Cuomo Chooses Stein Over Graffeo (Part 1)

(Link to today's interview on Fred Dicker: Live at the State Capitol below)

Last Friday, Governor Andrew Cuomo made his selection for the Court of Appeals, New York's highest court.
He appointed a very fine judge, Leslie Stein, instead of re-appointing the very fine incumbent, Victoria Graffeo.

A Few things.