Wanted: Judicial Appointments of Those with Courage to Fight Corruption

Appointments Could Be Close to Fill Appellate Vacancies
The New Law Journal by John Caher  -  February 29, 2012

ALBANY, NY - Fourteen months into his administration, Governor Andrew M. Cuomo has yet to appoint a judge to the Appellate Division, as the number of vacancies has increased to 10. Mr. Cuomo could also appoint two justices to presiding justice posts. 

Vacancies exist in all four Appellate Division departments, and two departments—the Second in Brooklyn and Third in Albany—are operating with acting presiding justices. Although some of the vacancies are relatively new, others have existed for well over a year.

Sources close to the administration said nominations are imminent and a batch of appointments will likely be made by mid-March. They said the holdup has been the somewhat unwieldy screening panel process and extensive vetting by both the panels and the governor's counsel office.

Thirteen-member screening committees were established by executive order within a few months of Mr. Cuomo taking office, and the governor promptly made his five appointments to each of the panels.

Remaining appointments by legislative leaders, the chief judge, the attorney general and the New York State Bar Association trickled in. "Setting up the committees took a lot longer than anyone thought," said a person with knowledge of the situation. "The committees were a cumbersome and clunky process the first time through. The process is designed to get quality candidates with a wide variety of input, but it is not a system designed for efficiency and speed. That really is the big problem."  Meanwhile, all four Appellate Division departments are shorthanded. "Obviously, it is more work," said Presiding Justice Henry J. Scudder of the Fourth Department, whose court is short three of the 12 judgeships, or 25 percent.  One of the vacancies was created less than a month ago when Justice Jerome C. Gorski retired. Another position has been vacant since Justice Samuel L. Green retired at the end of 2011. But the third position has been vacant since the December 2010 retirement of Justice Elizabeth W. Pine. "The judges sit more days and they do more work," Justice Scudder said. "We are trying to get our cases out the door in a timely fashion and it is harder. The governor has a lot on his plate and we are not criticizing the governor at all, but it would be much more efficient for the court to have a full amount of judges." In the Second Department, Justice William F. Master has served as acting presiding justice since A. Gail Prudenti became chief administrative judge on Dec. 1. In addition, vacancies created by the 2010 retirement of Justice Fred T. Santucci and September 2011 departure of Justice Joseph Covello remain. Further, the 22nd judgeship on the Second Department bench has never been filled and is available for Mr. Cuomo to make an appointment.

'Judges Have Stepped Up'

Sources said more than a dozen judges have applied for the Second Department presiding judgeship, but interviews have not yet been completed. Aprilanne Agostino, the longtime Second Department clerk, said the vacancies have not affected case flow, but "only because the judges have stepped up." "They are working that much harder," Ms. Agostino said. "We are producing the same amount of work because they are scheduled [to hear appeals] more frequently. We are asking them to do a lot. It is a tough time right now." Ms. Agostino said she has seen lengthy delays before in the appointment of justices and is not surprised that a new governor seems to be taking his time. "It is a very important decision to make and he [Mr. Cuomo] is new to making those type of decisions," Ms. Agostino said. "I have seen delays of this length before." The First Department in Manhattan is down three of its 20 judges. Two of the vacancies—those created by the retirements of Justices John T. Buckley and Eugene Nardelli—date to the end of 2010. The third position opened last spring when Justice James M. McGuire returned to private practice. "The judges find themselves with more of a workload, which they are handling because they are all great sports," said Susan Hernandez Roura, assistant to Presiding Justice Luis Gonzalez. "I know there are some budgetary concerns, but I hope they do fill the positions soon." Susanna Molina Rojas, the First Department clerk, confirmed that the workload has increased considerably. "If you have less staff and the same number of cases, of course it increases the workload," Ms. Rojas said. However, she said that while 2011 case management statistics are not yet available, she does not believe the shortage of judges has delayed decisions. Ms. Rojas said the First Department has been given no indication of when the positions will be filled. "I know that interviews were conducted by the governor because it was posted by the Law Journal, but we have no idea," she said. "We are hoping sooner rather than later." In the Third Department in Albany, Thomas E. Mercure has served as acting presiding justice for the past year, after Presiding Justice Anthony V. Cardona was diagnosed with cancer. Justice Cardona died in early December, creating the only vacancy on that court. When fully staffed, the Third Department has 12 judges. Steven M. Cohen, a former top advisor to the governor who is now a partner in the Manhattan office of Zuckerman Spaeder, said the delay in appointments is indicative of a meticulous screening process. "My experience is that when the emphasis is on quality there is a tendency for the process to take longer," Mr. Cohen said. "At the end of the day, what you want is a high quality judiciary, and that is what you are going to get."  Another person familiar with the process said Mr. Cuomo is viewing the dozen pending Appellate Division appointments "as a chessboard," with a goal of ensuring overall diversity. That is especially true with regard to the presiding judgeships since those judges, along with Chief Judge Jonathan Lippman, form the administrative board of the courts and direct many court operations. "It makes sense to think of it holistically and you don't want someone with the same background in all of the positions, where if you do it piecemeal that could happen," the source said. Appellate Division justices are selected by the governor from the ranks of elected Supreme Court justices; acting Supreme Court justices are not eligible. The governor must choose from among the candidates found qualified by the screening panels. Although Mr. Cuomo has not named any Appellate Division justices, he has reappointed some judges who were appointed by prior governors. For instance, he recently reappointed Justices Edward O. Spain and John A. Lahtinen in the Third Department. John Caher can be contacted at jcaher@alm.com.