In a very surprising announcement, somewhat buried in the late afternoon on the day before election day 2020, Associate Judge Leslie Stein announced that she would be retiring from the Court of Appeals bench effective June 4, 2021. Judge Stein, who joined the Court on February 9, 2015, wasn’t slated to reach New York’s mandatory retirement age of 70 until 2026. Her retirement 5 years early opens 2 seats on the Court’s bench in 2021, with Associate Judge Eugene Fahey also leaving the bench at the end of the year, forced into mandatory retirement on December 31, 2021.
There will be a lot of time between now and June 4, 2021 to reflect on Judge Stein’s legacy on the Court (and I surely plan to), but for now the fun begins with speculation about who is likely to take Judge Stein’s seat following her retirement. The likely list is long, so let’s take a look at some of the top candidates. Let me be clear, this is pure speculation. I have absolutely no knowledge about who Governor Cuomo is likely to pick or even what characteristics he will look for in a new Court of Appeals judge. But let’s guess anyway just for fun.
First, a refresher on the appointment process. As provided under Judiciary Law s 68 (2), when a vacancy on the Court of Appeals occurs other than because of the expiration of the retiring Judge’s term, the Clerk of the Court must immediately notify the Commission on Judicial Nomination, which then has 120 days to solicit applicants, investigate their qualifications, and recommend a list of up to 7 people for the Governor’s consideration. Once the Governor receives the list, he must appoint someone from the list to Court no sooner than 15 days and no longer 30 days after that, subject of course to New York State Senate confirmation. Once confirmed, the judge can then join the bench as soon as later that afternoon.
The Repeat Nomination Candidates
What’s remarkable about appointments to the Court of Appeals is that judges often have to make the nomination list a number of times before they are actually selected by the Governor. For example, Associate Judge Howard Levine was appointed to the Court in 1993 in his seventh appearance on the nomination list. More recently, it took Judge Rowan Wilson six times on the list before the Governor selected him to replace retiring Associate Judge Eugene Pigott. Judge Michael Garcia, on the other hand, made it on the Court in only his second time on the list.
Looking at the prior nomination lists is a good place to start when trying to predict who might be nominated to replace Judge Stein.
1. Hon. Erin Peradotto, Associate Justice, Appellate Division, Fourth Department
Justice Peradotto has been named on the Commission of Judicial Nomination’s list to be nominated to the Court of Appeals three times in the past, in 2014, 2015, and most recently in 2016 when Judge Wilson was selected to replace Judge Shelia Abdus-Salaam. Justice Peradotto has served on the Appellate Division, Fourth Department since 2006, and is widely recognized for her work and service to the bench and bar. Most recently, Justice Peradotto was selected for the Erie County Bar Association’s Outstanding Jurist Award, and serves on the Chief Judge’s Working Group on the Future of the Bar Exam, among many other committees.
2. Caitlin Halligan, former Solicitor General of the State of New York
Ms. Halligan has also previously appeared on the nomination list three times. She served as New York’s Solicitor General from 2001 to 2007, and then, after a brief return to private practice, as General Counsel for the New York County District Attorney’s Office. She was also once nominated by President Barack Obama to fill a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit, but she never received a confirmation vote in the U.S. Senate and she ultimate requested that her nomination be withdrawn. Ms. Halligan is now back in private practice, leading the appellate group at Selendy and Gay in Manhattan, and she is also currently serving on the Chief Judge’s Working Group on the Future of the Bar Exam.
The Other Possible Contenders
Governor Cuomo has shown that he has often likes to make “first in history” court appointments. In 2017, he nominated Judge Paul Feinman, who is the Court’s first openly gay Judge. Before Judge Feinman, Governor Cuomo nominated Judge Shelia Abdus-Salaam, the Court’s first African American woman to serve on the bench. This opportunity to further increase the Court’s diversity will not be lost on the Governor. Indeed, as one commentator noted on Twitter last night, the Court has not yet had an Asian American Judge:
And there is a very good candidate currently serving on the First Department.
3. Hon. Jeffrey Oing, Associate Justice, Appellate Division, First Department
Justice Oing has served on the First Department since 2017, was the first Asian American judge appointed to New York County’s Commercial Division, and served on the trial bench for 14 years before his elevation to the Appellate Division. Justice Oing also served as Deputy General Counsel for New York City, handing matters involving the City Council, and has been roundly recognized as an excellent jurist.
We will learn a lot about the upcoming nomination in the next few months, but I for one wouldn’t be surprised to see one of these three to be the pick.