The New York Law Journal by Joel Stashenko - December 18, 2008
ALBANY - The state commission criticized by Governor David A. Paterson and Attorney General Andrew M. Cuomo for nominating seven men - six of them white - for the state's chief judgeship defended its search yesterday as diligent and far-reaching. The Commission on Judicial Nomination released a letter its chairman, Elmira attorney John F. O'Mara, sent to Mr. Paterson explaining its search methods and expanding on the biographical information it provided to the governor's office when reporting on Dec. 1 the names of the candidates it found "well qualified." Mr. O'Mara said the unprecedented release of additional information on the commission's candidate list was in response to Mr. Paterson's "observations" about the screening and nominating process (NYLJ, Dec. 4). Mr. Paterson said he was "outraged" that the list did not include the names of any women he could select as the successor to Chief Judge Judith S. Kaye. He also questioned how aggressively the commission had informed the legal community of the chief judge's impending retirement and how aggressively the commission recruited applicants to provide more diversity to the list.
"The Commission and its staff carefully reviewed the voluminous applications provided by each applicant, which included extensive information concerning professional qualifications, writings, and background," wrote Mr. O'Mara, of Davidson & O'Mara. "Commission staff conducted numerous confidential interviews with leaders of the bench regarding each candidate whom the Commission interviewed. In the case of sitting judges, we spoke with attorneys who had recently appeared in their courts." As far as soliciting applications, the commission notified all newspapers in the state beginning in June 2008, Mr. O'Mara said. Members of the commission's staff also "encouraged applications from dozens of potential candidates from a wide range of backgrounds, including college and law school deans, professors, state solicitor generals, former prosecutors, in-house counsel and prominent attorneys in private practice," Mr. O'Mara told the governor. "As a result of these efforts, this Chief Judge vacancy was one of the most widely publicized and discussed in the history of the Commission," he said. Confidentiality laws do not permit the commission to disclose the names of applicants or of the candidates it interviews. Sources familiar with the commission's work said it interviewed 12 candidates on Nov. 10 and Nov. 11. According to Mr. O'Mara, the commission is not obligated by law to detail its outreach efforts and had never done so before.
The commission also issued expanded resumés for the seven candidates, including, in the case of the four sitting judges, a sampling of appellate rulings they have issued. Mr. O'Mara, who was appointed to the nominating committee by former Governor George E. Pataki, said confidential information about the candidates' personal finances have been made available to Mr. Paterson's counsel. By law, Mr. Paterson must choose from the list when he nominates Chief Judge Kaye's successor to the state Senate between Jan. 1 and Jan. 15. The list consists of Court of Appeals Judges Eugene F. Pigott Jr. and Theodore T. Jones Jr.; Appellate Division, First Department, Presiding Justice Jonathan Lippman; Second Department Justice Steven W. Fisher; and three private practitioners, George F. Carpinello of Boies, Schiller & Flexner in Albany, Evan A. Davis of Cleary Gottlieb Steen & Hamilton and Peter L. Zimroth of Arnold & Porter (NYLJ, Dec. 2). Mr. Jones, who is black, is the only minority on the list.
Judge Carmen Beauchamp Ciparick, a name Mr. Paterson is believed to have wanted on the list, did not make the final cut. She is the senior associate judge on the Court of Appeals and its only Hispanic. Judge Ciparick and Fern A. Fisher, chief administrative judge of New York City Civil courts, acknowledged applying for Chief Judge Kaye's seat. While conceding that he probably must choose from the list, Mr. Paterson earlier this month asked Mr. Cuomo to examine whether the governor has any options other than nominating one of the seven candidates selected by the commission. Mr. Cuomo said last week that his review would be completed within a week or two. Morgan Hook, a spokesman for Mr. Paterson, said the governor's office was reviewing the letter and would have no immediate comment. Mr. Cuomo did not immediately return a call for comment. Joel.Stashenko@incisivemedia.com