Veterans of Bench Apply To Replace Kaye as Chief

Veterans of Bench Apply To Replace Kaye as Chief
The New York Law Journal by Joel Stashenko - September 15, 2008

ALBANY - At least five bench veterans are seeking to succeed Judith S. Kaye as New York's top judge. Judges Carmen Beauchamp Ciparick and Eugene F. Pigott Jr. of the Court of Appeals have confirmed that they have asked the state Commission on Judicial Nomination to be considered to replace Chief Judge Kaye when she is forced to step down by mandatory retirement rules on Dec. 31. Presiding Justice Jonathan Lippman, of the Appellate Division, First Department (See Profile); Justice Steven W. Fisher of the Second Department (See Profile); and Supreme Court Justice Fern A. Fisher, the administrative judge of the New York City Civil Court (See Profile), all said they also have applied for the chief judgeship. A third Court of Appeals judge, Theodore T. Jones Jr., was known to be interested in the chief judge's post and was widely expected to apply. Judge Jones, thought by court observers to be among the strongest candidates for the job, did not return repeated calls last week seeking confirmation that he is a candidate. The deadline for applying for the post was Sept. 8.


Judicial Nomination Commission Members
John F. O'Mara, chairman, Davidson & O'Mara, Elmira
Edward F. Cox, Patterson Belknap Webb & Tyler
Michael C. Finnegan, J.P. Morgan Securities
Gerald B. Lefcourt, Gerald B. Lefcourt P.C.
Alan Mansfield, Greenberg Traurig
E. Leo Milonas, Pillsbury Winthrop
Margaret S. Morton, NYC Department of Cultural Affairs
David M. Schwartz, Ruskin Moscouo Faltischek, Uniondale


Non-Attorneys
Ruth Friendly
Janet M. Kassar
Elena H. Kiam
Richard P. Nathan

The commission will evaluate and schedule interviews for the leading candidates, said Stephen P. Younger of Patterson Belknap Webb & Tyler. Mr. Younger is counsel to the commission.

By law, the commission must submit the names of seven candidates to Governor David A. Paterson on Dec. 1, and the governor must nominate a new chief judge between Jan. 1 and Jan. 15, 2009, subject to confirmation by the state Senate. While the commission can submit between three and seven names to a governor when an associate judgeship is being filled on the Court of Appeals, it must submit the maximum number of choices when the chief judge's post is open. Members of the commission and its staffers are prohibited by law from publicly discussing the application and selection process, including who applied or how many people are seeking consideration. Though the governor may select a non-judge to the Court of Appeals - Chief Judge Kaye had no judicial experience when she was named an associate judge in 1983 by then-Governor Mario Cuomo - speculation among court observers about the strongest candidates for the chief judgeship has focused on sitting judges with administrative experience.

The chief judge is both the leader of the Court of Appeals and of the Unified Court System. Judge Jones, 64, was administrative judge for Brooklyn Supreme Court from January 2006 to January 2007, when he was named by then-Governor Eliot Spitzer to the Court of Appeals. There has been considerable speculation that Mr. Paterson, who is black, might want to pick a chief who is a member of a minority group. Judge Jones is also black.

Judge Ciparick, 66, the only Hispanic on the Court of Appeals, will be the longest-tenured member once Chief Judge Kaye retires. Judge Ciparick was initially selected to the Court by Mr. Cuomo in 1993 and reappointed by Mr. Spitzer to a second term last year. Judge Pigott, 61, was presiding justice of the Appellate Division, Fourth Department, between 2000 and 2006, when he was named to the Court of Appeals by then-Governor George E. Pataki. Justice Lippman, 63, was chief administrative judge under Chief Judge Kaye from 1996 to 2007, when he was appointed as presiding justice of the First Department Mr. Spitzer. Justice Steven Fisher, 62, spent six years as administrative judge of the Queens Supreme Court before being named to the Second Department bench in 2004 by Mr. Pataki. Justice Fern Fisher, 54, a Supreme Court justice since 1993, was named Civil Court administrator in 1997.

All of the chief judges named since 1977, when the appointive system for judges was adopted - Lawrence Cooke, Sol Wachtler and Chief Judge Kaye - already were on the Court at the time of their elevation to the center seat. In fact, even when chief judges were elected by voters, Edgar M. Cullen was the last chief judge not to have already been on the Court when he took the job in 1904. A number of non-judges who have applied to the Commission on Judicial Nomination candidate lists for recent openings on the Court of Appeals said the dual demands of the chief judge's job - top judge and top administrator - had kept them from applying for the slot. "I know that looking at Chief Judge Kaye's schedule, I would suspect she is spending at least one half of her time on administration," said Michael J. Hutter of Powers & Santola in Albany. "With the administrative stuff, you've got to like it, and if you don't, forget it. And that's even with a chief administrative judge to help out." Mr. Hutter, who is white, also speculated that Mr. Paterson would lean toward picking a minority as chief, giving the inside track to Judges Ciparick or Jones. "With Jones and Ciparick applying, it's got to go in-house and it appears to be a minority position," Mr. Hutter said in an interview.

Another candidate for past openings on the Court said many non-judges are thinking Mr. Hutter's way, that Mr. Paterson may well tap Judges Ciparick or Jones for the chief's position. That, in turn, would create an opening for an associate judge on the bench that practitioners may have a better shot at than chief judge. "I know a lot of people who are waiting for that associate's slot," said the attorney, who asked not to be identified. Of the judge candidates, only Justice Fern Fisher would be able to serve a full 14-year term if appointed as chief.

Both Judges Ciparick and Jones would be unable to serve full 14-year terms as chief. Like Chief Judge Kaye, they will be required to retire at the end of the year in which they turn 70. Luke Bierman, 51, an instructor at Albany Law School who is general counsel to state Comptroller Thomas P. DiNapoli, said he had applied for the chief judgeship. But several prominent attorneys said they decided not to apply, including Stephen C. Krane of Proskauer Rose, Jeh C. Johnson of Paul, Weiss, Rifkind, Wharton & Garrison, Jeremy G. Epstein of Shearman & Sterling, and Zachary W. Carter of Dorsey & Whitney.

Mr. Johnson said his role as a senior policy adviser to Democratic presidential candidate Barack Obama would keep him on the sidelines. "I am too involved in the Obama campaign to be involved in a judgeship," he said. Mr. Krane cited unspecified personal reasons for not applying. "I'm going to sit this one out," he said. "It's not for a lack of interest in the position." Supreme Court Justice James A. Yates of Manhattan (See Profile), who agreed in March to become Mr. Paterson's counsel but changed his mind and stayed on the bench (NYLJ, April 24), also did not apply. Justice Yates, whose name has appeared three times on commission lists for openings on the Court, declined to say why he had not applied for the latest vacancy. Mr. Paterson has said nothing publicly about the chief judge's opening, his spokesman Errol Cockfield said Friday.

"The Judicial Nominating Commission is an independent body and the governor is awaiting recommendations from the panel before he names a replacement for the chief judge," Mr. Cockfield said. In the relatively few judicial appointments he has made since succeeding Mr. Spitzer in March, however, Mr. Paterson has indicated a sensitivity toward diversity. All three of his appointees to Appellate Division openings - Justices Helen E. Freedman, Leland G. DeGrasse and Dianne T. Renwick, all in the First Department - were minorities or women. As of Friday, none of the 12 members of the Commission on Judicial Nomination had been selected by Mr. Paterson, though Mr. Cockfield said the governor was on the "verge" of appointing his first member. The term of Michael C. Finnegan, Mr. Pataki's former counsel, expired in March and Mr. Finnegan has remained on the commission as a holdover. The commission is chaired by Elmira attorney John F. O'Mara, who also served in Mr. Pataki's administration in various capacity. Four members of the commission are appointed by the chief judge, four by the governor and four by the majority and minority leaders of the state Legislature.  Joel.Stashenko@incisivemedia.com