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Friday, December 5, 2008

Cuomo and Paterson Understand NY State Court System is a Scam Machine

NY Governor "Outraged" by All-Male Court Nominees But Appears Bound by Committee's Picks
The New York Law Journal by Joel Stashenko - December 4, 2008

Governor David A. Paterson said yesterday he was "outraged" he has not been given the option of considering a woman to succeed Chief Judge Judith S. Kaye. Appearing at a New York City news conference with Attorney General Andrew M. Cuomo, the governor said he had asked Mr. Cuomo if he has legal options other than selecting a chief judge from the all-male list of seven candidates sent to him Monday by the Commission on Judicial Nomination. However, Mr. Paterson conceded that he is probably bound by the state Constitution and statute to pick one of the seven. "Theoretically, I suppose I could just decline to make a selection," he said. "But the Constitution is pretty instructive. It says the governor 'shall appoint' [from the commission's list]. And so I don't want to follow up an injustice with further injustice caused by me."

Mr. Paterson's counsel, Peter Kiernan, suggested that improvements in the selection process would have to wait for future vacancies. He said he expected the governor to adhere to the "mandatory" language in the Constitution and select one of the seven men from the commission's list. "That's the language of the Constitution," Mr. Kiernan said. "He wanted to call attention to the flawed process and I think they did that emphatically." The commission was created under a 1977 constitutional amendment. Supporters said it introduced a merit-based selection process for members of the Court of Appeals in place of an elective process that had become increasingly expensive in the 1970s. Article 6, §2 of the state Constitution states that "the governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission." Section 68 of Judiciary Law contains six references that the governor "shall make his appointment from among those persons recommended to him by the commission."

Mr. Paterson said the commission appears to be bound by statute to give him seven nominees for chief judgeship openings and could not be made to expand the list, though he said he asked Mr. Cuomo to look into that question. Compelling the commission to redo a nomination process that began over the summer is not an option, Mr. Paterson said. "It is not my real desire to ask the commission to go back and start this process over, because then the seven individuals who have rightly been brought forward would suffer and I don't want those individuals who worked hard to suffer in this process," Mr. Paterson said. The governor said it is "most possible" that changing the commission's nominating procedures "would have to wait until the future" and not affect his selection of Chief Judge Kaye's successor. The commission's list included Court of Appeals' Judges Eugene F. Pigott Jr. and Theodore T. Jones Jr., First Department Presiding Justice Jonathan Lippman, Second Department Justice Steven W. Fisher, and three private practitioners, George F. Carpinello, Evan A. Davis and Peter L. Zimroth. All are white except for Judge Jones, the only black member of the Court of Appeals. The list did not include Carmen Beauchamp Ciparick, the senior associate judge on the Court and its only Hispanic. Judge Ciparick acknowledged in September to the New York Law Journal that she applied for the chief judgeship. The other two women on the Court of Appeals, Judges Victoria A. Graffeo and Susan Phillips Read, said they did not apply. At least one other female judge, Supreme Court Justice Fern A. Fisher, chief administrator for New York City Civil courts, also said she had applied.

'Glass Ceiling'

Mr. Paterson stressed yesterday that he considers all seven candidates on the commission's list "highly qualified" to be chief judge. But he said he wondered how the commission "could feel comfortable sending forth a selection team of seven people and not one of them represents half of the human race." "I am not happy about the message it sends to young women who are in college or who are thinking about applying to law school, young lawyers who are women who know the glass ceiling well, who wonder if they had the qualifications, would they have made the list?" Mr. Paterson said. "And the fact that that sentiment is out there is why I am standing here today."

For his part, Mr. Cuomo said that it is "clear that the governor should not be put in this position" of having no female candidate when choosing Chief Judge Kaye's successor. Judge Kaye, the first woman judge on the Court of Appeals and its first female chief judge, is stepping down on Dec. 31 due to the state's mandatory retirement rules. "To circumscribe, to limit, the governor to only men, for the commission to say, 'We've searched this state. We couldn't find a single solitary qualified woman to serve on the bench' - something is wrong with either the process or the legislation or the way we administer it," said Mr. Cuomo, whose father, former Governor Mario Cuomo, appointed Judge Kaye to the Court and to its chief judgeship. "We will be exploring the available legal options." Mr. Paterson acknowledged that he and Mr. Cuomo are uncertain whether they can do anything to change the nomination process before Jan. 15, when he must submit the name of Chief Judge Kaye's successor to the state Senate for confirmation proceedings. The earliest he can nominate a candidate is Jan. 1. The Commission on Judicial Nomination is made up of 12 members, four appointed by the governor, four by the chief judge and one each by the four majority and minority leaders of the Legislature. It is chaired by John F. O'Mara, a partner with Davidson & O'Mara in Elmira, who was appointed by former Governor George E. Pataki.

In a statement yesterday issued through the commission, Mr. O'Mara defended the commission's record of nominating women to the Court of Appeals, where women now outnumber men 4-3. He said the commissioners and staff performed "extensive outreach" in identifying strong candidates "from as wide a pool of candidates as possible" to formulate the list now before Mr. Paterson. "Of course, no process for selecting judges is perfect, and that includes the Commission's process," Mr. O'Mara said. "We welcome the opportunity to work with the Governor to analyze the process by which the Commission selects candidates." Mr. O'Mara cautioned that it is "imperative that the Commission maintain its independence." To date, Mr. Paterson has made one selection as governor to the commission, Long Island lawyer Frederick K. Brewington. The commission, citing confidentiality laws, does not divulge how many applications it gets for Court of Appeals openings, what it does to solicit applicants, how many candidates it interviews or why nominees do or do not make its lists. There are four women on the commission, Ruth Friendly, Janet M. Kassar, Elena H. Kiam and Margaret S. Morton. Members of the commission are not paid.

'Artificial Curb'

Mr. Kiernan, Mr. Paterson's counsel, said yesterday that the commission is supposed to report to the governor on the qualifications of each candidate it nominates and why they were recommended. But the commission typically releases only short biographical sketches of nominees with a general statement that all candidates have been found to be "well-qualified" for the Court "by their character, temperament, professional aptitude, experience, qualifications and fitness for office." Requiring more disclosure by the commission of its deliberations and more justification for why it picked its nominees could be among recommendations the governor will make, Mr. Kiernan said. He also questioned whether the statutory limit on seven nominees for a chief judgeship opening is an "artificial curb" that could inhibit the commission's discharging of its constitutional duty to identify the "best qualified" candidates.

'Diverse' Appointments

New York City Corporation Counsel Michael A. Cardozo, an advocate for merit selection of judges, said in a statement that the "merit-based appointment system" had worked well and expressed satisfaction that the governor had not recommended "drastic changes" to the process. "The present Court of Appeals selection system has produced an outstanding and diverse Court," Mr. Cardozo said. He acknowledged that "perhaps more steps can be taken to ensure that a larger, and more diverse, group of people apply to the nominating commission." But Mr. Cardozo said the current system had produced "outstanding" judges, including four women, one Hispanic and three blacks. "Even with Chief Judge Judith Kaye's retirement, there will continue to be three women, an Hispanic and an African American - an ongoing reflection of the importance of a diverse court," he said.


Anonymous said...

So, if Cuomo and Paterson 'get it' WHY THE HELL DON'T THEY DO SOMETHING!!!!!!!!!!!!!!!!!

Anonymous said...

Cuomo doesn't get it, or more likely gave lip service to his "getting it." His office has been contacted by enough people to know there is a problem, but of course, there is nothing they can do.
Patterson only understands this narrow issue, not the systemic problem with the courts. If he did, he would appoint a special prosecutor to bring the whole corrupt system down.

Anonymous said...

i was told Paterson WAS Appointing a special prosecutor on court corrutpion and the nys court system. what happened to that? that was over a month ago?

Anonymous said...

This blog refers often to alleged corruption as 'systematic' and refers mostly to the OCA. I am interested in some comments as to if and how it effects the fair or unfair administration of justice. NO I AM NOT PATHETICALLY NAIVE. I am only hoping, possibility against hope, that our honorable state judiciary is not as it seems...the greatest consumer fraud in the world.

Anonymous said...

To all young female lawyers in pursuit of the future CHIEF JUDGE not take your cue from the alleged female, soon to be ex-chief judge Kaye, as she thoroughly destroyed the NY court system to the extent, that she brought tremendous fear to the nomination committee, that they could not even force themselves to present a women's name to the Governor!
This is meant to be instructive and coming from a woman, in the hopes that females in law stop the sabotage of our ability and reputations to be professional, independent and ethical. Judy Kaye has damaged us for many years to come,so we need someone up and coming to.... rectify.

Anonymous said...

does this mean that Paterson and Cuomo put a dent in the garbage that is going on?
I guess thier will be more people retiring quikly.
If the scam is over and the gravey train ends

The courts need diversity it does not deserve pollitical hacks that
have bought thier way in,
Kaye and Lippman are a major part of the problem.

Anonymous said...

Please read my letter of November 20 to the JNC- sent two weeks before Governor Paterson's outrage.


The Governor is angry because he feels that the commission is nominating candidates on heir merit without casting a big enough net.

The way I see it, the JNC didn't pick a woman, Latino or a representative portion because they couldn't find any qualified enough, but because they couldn't find nominees who were corrupt enough.

Lippman was nominated by Gerald Lefcourt because he was giving favors to his partners and their clients, not because he's a brilliant jurist.

Even the office of Chief Judge is PAY TO PLAY!

Governor Paterson should be a whole lot more pissed off at the JNC than he is now. If he would investigate Lefcourt he would find that the JNC is a brothel, and he would shut them down. The Governor is not required to abide by the decision of criminals.

As for Cuomo. In my experience, he is in bed with the bad judges.

Anonymous said...

CORRECTION: my second ¶ should read:

The way I see it, the JNC didn't pick a woman, Latino or a representative portion NOT because they couldn't find any qualified enough, but because they couldn't find nominees who were corrupt enough.

Anonymous said...

In upstate NY we just assume that anyone named Cuomo, Pataki etc and any family who obtains a political position with their names automatically in bed with the enemy.
I have been confused by the St. Andrew title that is mentioned here regularly...people did not believe an ex-governor's son was a salvation for NY... did they?
NY state is so corrupt throughout, that anyone who actually is "allowed" to be elected to a high level bought and paid for and will protect those that purchased him or her.
NY must be swept clean.... with the courts first and foremost... and then Albany, NYC and BUFFALO.

Anonymous said...

The United States Attorney's Office in Manhattan is located at One St. Andrew's Plaza.

Anonymous said...

To the above writer, regarding where One Saint Andrew's Place is located....I've had several FBI appointments and was personally called in by AUSA Chief Boyd Johnson..So, now that US Atty. Michael Garcia is gone, these serious matters will finally get addressed...Stay Tuned

Anonymous said...

both posts by William Galison have it dead on! Where there is smoke there if fire! And in the case of the NY Court System it is a three alarm fire!

St. Andrew has not blessed the citizens. I don't beleive them and I don't trust them! But maybe they will surprise us! Still think they are part of the problem, not part of the solution! And it's NOT JUST NYC, the cancer has spread all over NYS!

Anonymous said...

Saint Andrew: may you quickly GO to Hell and reign over your corrupt stable of judges and lawyers. You have no decency, no honor, no concern for the people. The Japanese have Hari Kari, to restore honor; you could just resign, because you're a coward unable to face your responsibilities. The Patron Saint of crooked lawyers and judges will not be canonized by the Pope; only the devil will respect your efforts. Please expedite your union with your master.

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