NY Daily News EDITORIAL on NY HIgh Court Judicial Joke

Court of limited appeal: Top legal talent has given up on applying for New York's top bench
EDITORIAL - The New York Daily News - January 8, 2009

To serve on New York State's highest court - potentially as the state's chief judge - should be an honor much sought by lawyers. It once was. Vacancies on the Court of Appeals once drew scores of remarkable applicants. No more. Today, the best and the brightest of New York's bench and bar have pretty much given up on pursuing appointments to the court because there's no point trying - unless you happen to combine talent with the right political pedigree. Twenty five years ago, when just-retired Chief Judge Judith Kaye was first appointed to the high court, a special state commission that assesses applicants' qualifications interviewed more than 40 contenders, according to press reports at the time. This time, the panel interviewed only a dozen lawyers and forwarded the names of seven to Gov. Paterson as highly qualified for appointment. None of the nominees were women.

The declining interest in joining a court viewed as the nation's most prestigious state bench is also reflected in the backgrounds of applicants. Founded in 1979, as New York switched from electing top judges to appointing them on merit, the Commission on Judicial Nomination started out attracting a variety of comers. In its early years, federal judges, appointed by the President and confirmed by the Senate, asked for the panel's consideration. Four were nominated from 1979 to 1987. The commission also often recommended law professors, including deans of New York University, Fordham and Albany law schools. But that was then. Now, such candidates know better than to apply because of the well-founded belief that it's fruitless to compete against those who enter the process as the governor's preferred choice.

Under former Gov. George Pataki, a Republican, and John O'Mara, the lobbyist he named to chair the commission 11 years ago, every one of the six judges named to the court was a politically active Republican. By comparison, Pataki's Democratic predecessor, Mario Cuomo, appointed four Republicans and six Democrats. That record explains why, over the last 10 years, the commission under O'Mara returned time and again to the same applicants - a paltry 22 men and six women - for the eight vacancies that occurred on the court. Plainly, with the acquiescence of the governor's office and the terrible leadership of O'Mara, the commission has fallen far short of its legally mandated responsibility to recruit a broad array of highly qualified lawyers for gubernatorial consideration. The obligation to do so was a fundamental premise for appointing judges on merit. Which is not to denigrate the high qualifications of the men and women who serve on the court. But it is to say that New Yorkers were promised a far more credible process for ensuring that the Court of Appeals maintains top stature.