How Andrew Cuomo can recast the state’s highest court

Andrew Cuomo and father. ()
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Dan Rivoli

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Governor Andrew Cuomo was always going to have a chance to make an impact on the Court of Appeals, the state's highest bench.

That's because Judge Carmen Beauchamp Ciparick—a liberal appointed by Mario Cuomo in 1993 who was the first Hispanic judge on the court—is being forced out this year after turning 70, the mandatory retirement age, and Cuomo is to choose a successor from a list of recommended candidates.

But now the governor has two seats to fill on the seven-seat court, following the death of Judge Theodore Jones, an Eliot Spitzer appointee who died of a heart attack in November at age 68.

The candidates for Ciparick's seat will be chosen by the governor from a list of seven finalists chosen by New York’s Commission on Judicial Nomination, which will have until March 7 to give Cuomo another list of contenders for the Jones seat.

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At the moment, the Court of Appeals is divided between four Republican appointees of former Gov. George Pataki and two Democratic judges, with one vacancy due to Jones’ death.

In pure partisan terms, Cuomo won't be able to make the court any more Democratic, since he'll be replacing two Democrats. His choice, essentially, will be between strengthening a Republican majority that tends to be tougher on criminal defendants and civil plaintiffs than the minority Democrats, or recreating a situation in which a liberal minority can prevail in divisive cases by attracting support from one of the Pataki appointees.

For his first appointment to replace Ciparick, Cuomo must choose from a list of finalists—six who hail from New York City and one from Erie County—who have run as Democrats in judicial elections, served in Democratic administrations and donated to Democratic candidates.

While similar in partisan affiliation, the group is diverse in terms of gender (four women), ethnicity (five non-white) and legal talent (two private-practice attorneys, three appellate justices, a CUNY law professor and a nonprofit leader).

The backgrounds of some of these finalists suggest that they have an understanding of the legal issues that low-income, disabled or minority New Yorkers face in the court system.

For instance, the list includes Margarita Rosa, executive director of the Grand Street Settlement who was Mario Cuomo’s human rights commissioner; Justice Rolando Acosta, an appellate judge who authored a ruling that said board members of the famed Dakota co-op could be held liable for racial discrimination; and Kathy Chin, a health care and real estate attorney in private practice who serves on the New York City Commission to Combat Police Corruption.

Mario Cuomo, who reshaped the appeals bench in his time as governor, offered his insight into the selection process at a June meeting of the 12-member judicial nominating panel, which is headed by former chief judge Judith Kaye. As is often the case when he talks about his own experiences, the comments seemed to offer some insight into some of the factors his son (and former top political aide) will be taking into account.

“You leave your politics at home,” the former governor told Kaye, a Republican who was the first woman to serve on the court and to lead it. “The Court of Appeals doesn’t have the same problems as the Supreme Court of the United States. I never heard anyone complain, ‘The fix was in.’”

(Under New York’s odd judicial nomenclature, Supreme Court is a lower trial or appellate court and the presiding jurist is a justice.)

Mario Cuomo made 11 appointments during his three terms—the most of any governor—because he came into office soon after voters ditched elections for Court of Appeals judges for a merit-based selection process, which started in 1979.

Among the more noticeable changes during the elder Cuomo's tenure was the court’s gender and race makeup. The court saw its first Hispanic and, in Kaye and Ciparick, female judges during that time, and the first appointment of an African-American judge to a full term.

“I chose specifically to fill the gap of 200 years [where] there hadn’t been a woman and I asked myself why not … and why were there no blacks,” Mario Cuomo said.

“There’s no good reason for that,” he added. “So in all those cases, since there were no good reasons, there had to be bad reasons.”

Though he was himself a liberal and proudly partisan Democrat, the former governor tried to pull talent equally from both parties, or, in one instance, from no party at all, tapping the independent Judge Joseph Bellacosa. None of the governor’s successors have picked a judge from the opposing party.

Vin Bonventre, a professor at Albany Law School and a close watcher of the state’s judiciary, said both Cuomos understand the Court of Appeals’ power and influence, and the practical implications of the court's working philosophy on criminal-justice and economic matters.

Bonventre also noted that the court influenced the early legal careers of both Cuomos: Mario, fresh out of law school, was a clerk for a Court of Appeals judge; Andrew Cuomo, who cut his teeth in law as a prosecutor in Manhattan, is an Albany Law School graduate, Class of 1982.

“Decisions on the New York Court of Appeals fill our casebooks," Bonventre said. "It sets precedents much of the rest of the country follows. I think Andrew understands this just like his father did.”

Cuomo’s eventual nominees, who must receive confirmation from the State Senate, will have a hand in rulings that can drastically alter the litigation climate for businesses in New York.

In the coming years, the Court of Appeals may opt to address major legal questions arising from the mortgage crisis and economic meltdown. And last year, the Court of Appeals issued a landmark ruling settling a standoff between Wall Street giants and investors over the scope of the Martin Act, the state’s powerful financial fraud law, a decision that opened the door for investors—like unions’ hefty pension funds—to file common-law negligence suits against banks over the alleged peddling of shoddy mortgage-backed securities.

Obscure opinions on insurance law can take on huge significance after disasters like Superstorm Sandy. Take, for instance, a ruling from 2008 that said policyholders could sue their insurance provider for the “consequential damages” of denying a claim in bad faith.

“Those [decisions] are watched very, very carefully by the business community, the insurance industry,” said Vince Doyle, a former New York State Bar Association president. “There’s a reason certain businesses do business in New York and some do not.”

So far, Cuomo has made eight picks for the appellate division, which is effectively a farm team for New York’s high court.

The appointments—all Democrats—included Justice Karen Peters, who became the first woman to preside over an influential appeals court department that covers the Capital Region, and Justice Randall Eng, a Queens judge who is the first Asian-American presiding justice in the state.

Cuomo’s six other appellate appointees were elected judges pulled from the trial court, as state law dictates. Professionally, they have had experience as prosecutors, criminal defenders and government lawyers, as well as attorneys who worked at the Legal Aid Society and DC37, New York City’s largest public-employee union.

Mario Cuomo, in discussing the Ciparick vacancy over the summer, said he was pleased at his son's nonpartisan approach.

“He’s not doing Democrat/Republican, liberal/conservative,” Mario Cuomo said of his son. “He’s doing right and wrong; he’s leaving those labels out.”

Cuomo’s official representative at the June meeting, Appointments Secretary Leslie Leach, stressed that applicants should reject the idea that the commission is seeking “only those candidates who happen to have the same characteristics of the outgoing associate judge.”

Nonetheless, there is going to be pressure on Cuomo to appoint a person of color now that the bench lost Ciparick and Jones. Without them, the court would be all white and would have just two women.

Governors are often confronted with the diversity issue when there is a Court of Appeals vacancy.

In 2008, Gov. David Paterson blasted the selection process for handing him a list of candidates for chief judge that was all male and mostly white—the sole non-white candidate was Jones. (Paterson ultimately chose Jonathan Lippman, then the chief administrative judge and a childhood friend of Assembly Speaker Sheldon Silver.)

Black leaders in 2006 criticized Pataki for declining to reappoint Judge George Bundy Smith, the only African American on the high court at the time, to another 14-year term.

Bundy Smith said a high court vacancy is an opportunity for Cuomo to counter the image that his inner circle and administration lacks voices from people of color.

“He has to overcome that perception…. He’s got a good opportunity to change that” with this appointment, Bundy Smith said. “This process will help very much in that way.”

Legal observers I spoke to agreed that changes made to the search process this year are attracting fresh faces to the talent pool. The search process is more public, the daunting application has been whittled down to a brief four-page questionnaire and a 500-word essay, and there is a greater push to gin up interest among lawyers in academia, private practice and in-house corporate counsel.

This year, there were 75 applications for the Court of Appeals vacancy—shattering the previous record of 47 applicants in 2006, according to a record of nominations dating back to 1997. Since that year, the nomination process for Ciparick’s open seat saw the most candidates advance to the interview stage and the level of diversity reached its highest point. 
“Before, the view was always, this was all an inside game,” said Doyle, the former New York State Bar Association president. “This year, I’ve heard people in all different parts of the state say, 'I might apply.' These are people who never would have thought about it before.”

CORRECTION: This article has been changed from the original to reflect the fact that although Mario Cuomo gets the distinction of appointing the first black judge to serve a full term on the Court of Appeals, there was an black judge elevated to the court for an interim term in 1974, only to lose an election to the bench that year.