This post first appeared as a guest post on Twenty Eagle, a blog like mine devoted to covering the New York Court of Appeals. Check it out here!
For watchers of the New York Court of Appeals, this is the Super Bowl. This year is the first in almost 30 years that the Court of Appeals will have three vacancies on the bench. And the Judges who are chosen to fill those openings will most certainly change the Court’s dynamics for years to come.
Understanding the importance of the moment, the Commission on Judicial Nomination began the process of filling the first of the three vacancies yesterday when it sent to the Governor a list of 7 candidates for nomination to the Court of Appeals who are all women. That’s a first in New York’s legal history. Before this, the Commission has only picked at most 4 women for the list (3 times, only recently: 2012, 2014, and 2017). But now, by choosing women candidates for all 7 slots, the Commission has guaranteed that Governor Cuomo’s next nominee to the Court will be the next woman Judge on the state’s top court.
The list to fill the vacancy when Associate Judge Leslie Stein retires on June 4, 2021 is not only all women, it is also fairly diverse. According to the Commission’s press release, more than half of the applicants were women and 31% had diverse backgrounds:
So, who are the candidates that the Commission has chosen for the Governor’s consideration? Let’s take a look.
That’s an impressive group. There are three current Appellate Division Justices (two from upstate in the Fourth Department) when the Court of Appeals will be losing its last Judge with prior Appellate Division experience when Judge Eugene Fahey is forced to retire in December. There’s a Court of Claims judge who has extensive experience in the kinds of criminal cases that make up a large portion of the Court of Appeals’ docket, and the Nassau County District Attorney. And two distinguished attorneys in private practice, both of whom have made this list before.
Thinking of the Court’s current composition, here are a few things I think Governor Cuomo should be looking for in a nominee to replace Judge Stein:
- Appellate Division experience, or extensive appellate litigation experience: With Judge Feinman’s unexpected retirement from the bench and passing, the Court of Appeals has only two Judges left who were previously appellate judges before they came to the Court, and both Judges Stein and Fahey are retiring this year. That will leave a gaping experiential void in the Court if Governor Cuomo does not replace them with nominees who have similar experiences. Appellate judging is different than most of the practice of law, and having that experience on the Appellate Division, especially handling high volume caseloads where almost every order is appealable as of right, is valuable insight for a Judge to understand exactly how the Court of Appeals’ holdings will impact the lower courts.
- Diversity: Having Judges on the State’s top court who reflect the composition of the State as a whole is critically important. That means not only ethnic and gender diversity, which would bring new perspectives to the Court at a time when it lost its first LGBTQ Judge, but also geographic diversity. The Court of Appeals is very New York City-centric right now. Before Judge Feinman’s death, 5 of the 7 Judges had their home chambers in the City, and the remaining two are retiring this year. Without adding one or two more Judges from north of Westchester County, the Court will lose important upstate perspectives in its deliberations.
- Someone who can heal the Court’s divisions: Ok, that’s not a typical quality of an appellate judge, but it was of New York’s greatest Chief Judge Judith Kaye, and it’s sorely lacking in this Court. For example, in 2000, in the middle of Chief Judge Kaye’s tenure as the Chief, the Court of Appeals issued only 13 dissents out of 170 appeals decided. Chief Judge Kaye brought the other Judges together and found ways for the Court to speak with one voice, especially in the most important cases. In 2019, however, that number ballooned to 59 dissents out of 108 appeals. The Court needs a Judge who can start to bring its strong personalities together. These women candidates will be walking in Chief Judge Kaye’s footsteps, and the Governor should consider who is best suited to emulate her example.
Obviously, those are not the only things that Governor Cuomo will consider when he’s choosing a nominee. He’ll also want the choice to have exemplary credentials. Political connections will make a difference too, of course, especially with the New York Senate, the body that confirms the Governor’s choice for the Court, now under the Democrats’ super-majority control. And the candidate will have a better chance to be the nominee if they have made the Commission’s list before for previous openings on the Court.
Weighing all of those factors together, here are my guesses for which of the seven women have the best shot to be the pick:
Caitlin Halligan (The Favorite)
As I noted when Judge Stein announced her retirement, Caitlin Halligan has made the nomination list for the Court of Appeals three times before, twice in 2015 for the Chief Judge’s and Judge Susan Phillips Read’s seats and in 2016 for Judge Eugene Pigott’s seat. She served as New York’s Solicitor General from 2001 to 2007, when Governor Cuomo was then the Attorney General. And she was 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. She graduated from Princeton and then Georgetown Law, and clerked for Judge Patricia Wald on the DC Circuit and then for Justice Stephen Breyer on the U.S. Supreme Court. She has the experience, the exemplary credentials, and the connections to be the pick, and she would be a great one.
Hon. Erin Peradotto (The Runner Up)
Also a three time candidate for a spot on the Court of Appeals, Judge Erin Peradotto of the Appellate Division, Fourth Department has been an appellate judge since 2006, and would bring a very valuable perspective to the Court if she was the choice. She’s a Western New York judge, who works hard to breach divides with her colleagues and has written only 26 solo dissents over her 15 years on the appellate bench. I picked Judge Peradotto as a likely choice back in November, and I’m sticking with her here. She would be a great addition to the Court of Appeals bench.
Kathy Chin (The Repeat Candidate)
Kathy Chin is a well-respected health care attorney and real estate litigator at Crowell & Mooring in New York City, and she has made this list twice before, in 2012 and 2014. She is a Princeton and Columbia Law graduate, and has been appointed to the Commercial Division Advisory Council and to the First Department Judicial Screening Committee. If nominated and confirmed to the Court, Ms. Chin would be the first Asian American Judge to ever sit on the Court of Appeals bench. And if she was picked, she would join her husband, Hon. Denny Chin of the U.S. Court of Appeals for the Second Circuit, on the appellate bench.
Hon. Valerie Braithwaite Nelson and Hon. Shirley Troutman (The Newcomers)
Judges Braithwaite Nelson and Troutman are very similar. They are both sitting Appellate Division Justices, Braithwaite Nelson in the Second Department and Troutman in the Fourth Department. Governor Cuomo elevated them both to the Appellate Division in February 2016, after they both served as trial court judges (Judge Braithwaite Nelson in Civil Court of the City of New York and then Supreme Court, and Judge Troutman in City Court, then County Court, and then Supreme Court), which is very similar to the career path that Judge Feinman followed to the Court of Appeals. Neither Judge has made the Commission’s nomination list before, but as black women judges of distinction on the Appellate Division, I would expect them to be fixtures on the list for each upcoming vacancy in the Court.
Hon. Ellen Biben (The Dark Horse)
Court of Claims Judge Ellen Biben is also a newcomer to the Commission’s nomination list, but certainly has the administrative credentials and political connections to be the choice. Judge Biben is currently the Administrative Judge of New York County, Criminal Term, overseeing the court’s vast criminal docket, which may be attractive given the Court of Appeals’ current criminal appeal-heavy caseload. And what makes her selection interesting is that she previously worked for Governor Cuomo when he was the Attorney General as a special deputy AG in the Public Integrity Bureau. When Cuomo then became Governor, he appointed Judge Biben to be the Inspector General for New York and, after that, to be the executive director of the newly formed New York State Joint Commission on Public Ethics. She certainly has earned the Governor’s trust.
Hon. Madeline Singas (The Career Prosecutor)
Hon. Madeline Singas is the Nassau County District Attorney and has been a prosecutor for her entire 27-year legal career. After graduating from Columbia University and Fordham Law, she started out as an ADA in Queens, and then joined the Nassau County DA as the chief of the newly created Special Victims Unit in 2006. After serving in various other roles in the DA’s office, she was elected as the DA in 2015 and was re-elected in 2019. In 2018, Governor Cuomo appointed Singas as the special prosecutor to investigate the allegations that then-Attorney General Eric Schneiderman had assaulted four women with whom he was romantically involved because of her reputation for pursuing crimes against women.
Under the Judiciary Law, Governor Cuomo can’t make his pick until April 23rd, but must do so by May 8th. I’m going to guess it will be Caitlin Halligan, but of these exemplary women, there really isn’t a wrong way to go.