Surge of Openings Will Allow Governor Cuomo to Shape Judiciary

Surge of Openings Will Allow Cuomo to Shape Judiciary
The New York Law Journal by John Caher  -  November 9, 2011

ALBANY, NY - In his first 10 months in office, Governor Andrew M. Cuomo has had scant chance to appoint judges or to indicate what he is looking for in judicial candidates and how he will approach the process.  That is about to change, in a big way.  On Dec. 1, when Presiding Justice A. Gail Prudenti of the Appellate Division, Second Department, becomes the state's chief administrative judge, Mr. Cuomo will have an opportunity to name the leader of the largest and busiest appellate court in New York.  A month later, when Third Department Presiding Justice Anthony V. Cardona retires, Mr. Cuomo will select the top judge on the Albany-based panel that, because of its location in the capital, decides cases of crucial interest to the administration.  "The Third Department gets all the big government cases and whoever is sitting in that seat can do a lot to help or impede what the governor wants to do," according to an attorney involved in the selection process.  And in the meantime, the Democratic governor can fill two other Appellate Division positions in the First Department, one in the Second Department and another in the Fourth. In addition, there is a Supreme Court vacancy in the Tenth Judicial District—Nassau and Suffolk counties—and three Court of Claims posts available for gubernatorial appointment.  "He will show us, with the quality of these appointments, how much importance he puts on the judiciary, how much care and attention he uses in addressing this," said Mark H. Alcott, a partner at Paul, Weiss, Rifkind, Wharton & Garrison and a former president of the New York State Bar Association. "This will be eagerly watched. He is a man who could be governor for a long time. The bench and the bar will be quite interested."  The Appellate Division positions, and in particular the two presiding justice spots, are garnering considerable speculation in the legal community. With relatively few cases ever getting to the Court of Appeals, the appellate departments often issue the last word on matters of legal significance.  Additionally, since the four presiding justices and Chief Judge Jonathan Lippman make up the policy-making administrative board of the courts, the governor's appointees could significantly impact both the functioning of the courts and the practice of law.  Only elected Supreme Court justices, not acting justices, are eligible for appointment to the Appellate Division.  Candidates are evaluated by screening panels in the four departments and required to fill out a 45-page questionnaire delving into matters as diverse as their bar admissions to whether they have outstanding parking tickets. The governor must choose among those found qualified by the screening panels.

In the Third Department, four current members of the court have applied for the presiding justice position, according to sources close to the process. They are Acting Presiding Justice Thomas E. Mercure, a Republican, and Justices Karen K. Peters, Leslie E. Stein and John C. Egan Jr., all Democrats.  Justice Mercure, who has served as acting presiding justice most of this year because Justice Cardona is ill, is highly regarded among the judges and staff of the Third Department.  One official involved in the selection process suggested it would make sense for the Democratic governor to appoint the Republican judge, especially since Justice Mercure faces mandatory retirement in two years.  "Politically, putting Tom [Mercure] on would be a great move for the governor," said a member of one of the judicial screening panels. "He [Mr. Cuomo] looks bipartisan, gets credit for promoting the best person and then gets to make another appointment in two years when he is running for re-election."  A member of another screening panel also said Mr. Cuomo would earn political credit, as well as bolster his credibility with the legal profession, by appointing Justice Mercure. The governor's father, former Governor Mario M. Cuomo, often appointed Republican judges.  "Mercure is the obvious choice and it would be an interesting choice by the governor," the committee member said. "His dad appointed a bunch of Republicans and it would show that judicial appointments are made on merit rather than pure politics. Mercure is a good, good judge and a good, good person and I just get the sense that everyone is very happy with what he has done."  But the attorney also speculated that the governor may feel pressure to appoint a woman for either the Second or Third Department presiding judgeship.  "With Gail Prudenti stepping down, I don't think the governor can afford to have five men on the administrative board," the screening committee member said.  Another screening committee member said Second Department Justice Cheryl E. Chambers is a "real strong candidate for" presiding justice in Brooklyn.  The attorney said the retirement of Justice Cardona alone will impact the operation of the administrative board, even though he was only one of five.  "The PJs [presiding justices] are really the big story because the PJ can make a big impact not only on their department, but on statewide policy," a screening committee member said. "Tony [Cardona] was a force on that administrative board. When he took positions, none of the other judges would buck him. Tony was very powerful, but fairly conservative in not wanting to make change, particularly changes that affected lawyers."

Court of Appeals Bench

Observers said they will be closely monitoring Mr. Cuomo's appellate division selections, in part because they may provide some insight into what he will be looking for when he appoints Court of Appeals judges.  Mr. Cuomo will have the opportunity to appoint two Court of Appeals judges his first term, and if he serves a second term he could become only the second governor to appoint all seven judges of the high court: The first was his father.  Judge Carmen Beauchamp Ciparick, the first Hispanic judge on the Court and the last remaining appointee of former Governor Cuomo, faces mandatory retirement at the end of 2012.  The Ciparick seat will be the first subject to new operating rules adopted by the Commission on Judicial Nomination, which screens candidates for the Court.  Under the revised rules, the commission has an "explicit commitment to diversity" and must provide the governor with much more detail than in the past.  "What he does with Ciparick's seat will really be a signal," according to one observer involved in the process. "That will say a lot about what he is looking for in a judge. He will also be under a lot of pressure to appoint a Hispanic, and there are already Latino judges that are lining up."  In November 2014, as Mr. Cuomo's first term comes to an end, Judge Victoria A. Graffeo's term expires. Judge Graffeo, who could seek re-appointment, was elevated to the bench by Republican Governor George E. Pataki.

On the first day of what would be Mr. Cuomo's second term, two more Court of Appeals seats, those held by Robert S. Smith and Theodore T. Jones, will open. Both Judge Smith, a Republican appointee of Mr. Pataki, and Judge Jones, a Democratic appointee of Governor Eliot Spitzer, will be subject to mandatory retirement and cannot seek re-appointment. Judge Jones is the only black judge on the Court.  Also in a second term, Mr. Cuomo would appoint a new chief judge at the end of 2015 when Judge Lippman turns 70, the mandatory retirement age. He will also have an opportunity to replace two Pataki appointees: Eugene F. Pigott Jr., who turns 70 in 2016 and must step down at the end of that year; and Susan Phillips Read, whose 14-year-term expires at the end of 2017.  Different governors have gone about naming Court of Appeals judges in different ways.  Until 1977, Court of Appeals judges were elected, so the first governor with the power to appoint high court judges was the late Hugh L. Carey.  Mr. Carey appointed three Democrats, but two of them had previously been elected to the Court. He elevated Lawrence Cooke to chief judge, appointed Bernard Meyer to the Court and appointed Matthew Jasen to a second term.  Mario Cuomo, who had clerked at the Court early in his career and has always professed great respect for the institution, left a perfectly balanced Court with three Democrats, three Republicans and an independent.  Mario Cuomo's successors appointed only members of their own political party.  Andrew Cuomo has yet to develop a track record on judicial appointments, and with the several Court of Appeals openings coming up in the next few years observers are eagerly awaiting his first batch of appointments to the Appellate Division and looking for a hint of what he will look for in judicial candidates and the factors, judicial as well as political, that will come into play.  "His dad had an open philosophy," according to an attorney with ties to the current Cuomo administration. "Andrew is much more politically focused. He hasn't spent the time his dad did practicing law so his focus is more from a political perspective than a legal one. He obviously understands the importance of the Court to his agenda."  Mr. Alcott, the former state bar president, said the potential for Mr. Cuomo to "remake the Court of Appeals in his image" is obviously "huge."  "Mario Cuomo had a great deal of reverence for the Court," Mr. Alcott said. "He clerked at the Court and was a practicing lawyer, and the Court of Appeals was very important to him. With Andrew, it is really not known. The lower court appointments might begin to give us a hint of what he is looking for."  "The Governor will recruit and screen the best and the brightest to serve New Yorkers as part of the judiciary," said spokesman Joshua Vlasto.  John Caher can be contacted at jcaher@alm.com.