Commission Hits Road In Make-Believe Attempt to Pick 'Best' Judge

Commission Is Hitting the Road to Spur High Court Candidates
The New York Law Journal by Joel Stashenko  -  May 10, 2012

ALBANY, NY - A state commission charged with nominating what its chairwoman called the "greatest" and "very best" candidates to Governor Andrew Cuomo for the next opening on the Court of Appeals has begun soliciting applicants.  Judith Kaye, the former state chief judge who is now head of the state Commission on Judicial Nomination, said her panel will hold public information sessions in Albany, Rochester and New York to spread the word about the impending opening on the state's high court and the potential opportunities available to attorneys who may take a shot at applying.  "This is the very first time in the history of the commission that we are taking the show on the road," Kaye said during a May 8 public meeting at the New York State Bar Association headquarters in Albany. "But we have decided to put a personal mark on this vacancy and travel to parts of this state and run programs and encourage people to come and ask questions, to pick up information. We are here to raise awareness, to raise public consciousness about the vacancy."  Kaye said a DVD would be disseminated to legal groups based on the Albany event, which drew about 20 attendees, to encourage applications.  In 2008, only some two dozen applicants put their names forward for the opening being created by the mandatory retirement of Kaye. Critics of the court system argued that reflected a process closed to all but insiders.  The commission ultimately sent Governor David Paterson a list of seven approved nominees, six of them white men. Chief Judge Jonathan Lippman was Paterson's choice.  Judge Carmen Beauchamp Ciparick, who is the only Hispanic on the court, has reached the court's mandatory retirement age of 70 and must step down on Dec. 31, 2012.  Kaye said in an interview that the commission is "seeking the widest possible diversity for applicants. That would include the widest kind of ethnic and gender diversity possible."  By Nov. 1, the commission must send a list of between three and seven candidates to Cuomo, who must formally nominate a new judge between Jan. 1 and Jan. 15, 2013. His choice, which is subject to Senate confirmation, will be Cuomo's first since becoming governor in January 2010.  Applicants' names, which may be suggested at www.nysegov.com/cjn, are due to the nominating commission by Aug. 1.  Kaye, now of counsel to Skadden, Arps, Slate, Meagher & Flom, said on May 8 that the commission has no candidates in mind for the Ciparick opening.  She noted several times that when she was sent the application for the court in 1983 she felt she had no chance and had to be persuaded by her colleagues into throwing her hat in the ring.  She urged others who similarly feel they could not be viable candidates to try. The only legal limitations for applicants is that they have practiced law for at least 10 years in New York.  "You never know, right?" she said. "You just never know. If you don't do it, you won't get it."  Kaye was 44 when she was selected by Governor Mario Cuomo to the high court. A commercial law specialist, she had no prior judicial experience.  Cuomo's counsel, Mylan Denerstein, told the meeting that Kaye was "absolutely right" when she said there was no inside candidate for Ciparick's replacement.  "There is no hidden choice at all," Denerstein said. "It's one of the governor's most important functions—appointing judges generally but, in particular, to the highest court in New York state."  Denerstein said it was also incumbent on government attorneys, bar associations and other legal groups to marshall those they believe could competently serve on the court to put their names in.  While Kaye was nominated on her first try in 1983, Howard Levine of Schenectady did not make it until his eighth attempt at being on a list of potential judges by the commission in 1993.  Levine, now with Whiteman Osterman & Hanna in Albany, said he tried to get over his repeated disappointments at not being elevated to the top court.  Levine, whose mandatory retirement came in 2002, said he came to view the repeated interviews for the high court as a "wonderful opportunity" to discuss the legal issues of the day, even if they did not lead to a nomination.  Once the applications are completed for the prospective judges, they will be whittled down and given interviews this fall by the commission.  The support of eight of the commission's 12 members is needed for a nomination to be sent to the governor. The commission is comprised of four appointees by the governor, four by the chief judge and one each by the majority and minority leaders of the state Legislature.  Joel Stashenko can be contacted at jstashenko@alm.com.