Only two weeks ago, the Commission on Judicial Nomination released the list of candidates to replace Associate Judge Leslie Stein on the Court of Appeals bench when she retires on June 4, 2021. But the Commission’s work wasn’t done. They also have to find a replacement for late Associate Judge Paul Feinman, who retired from the bench surprisingly in late March and passed away only a week later. Judge Feinman’s passing left big shoes to fill at the Court of Appeals. He was the Court’s first openly LGBTQ Judge, and an always thoughtful, moderate voice between the Court’s two wings.
Late last week, the Commission released the list of seven candidates from which Governor Cuomo can select the nominee to fill Judge Feinman’s vacancy.
Although all 45 applicants for Judge Stein’s upcoming vacancy were considered by the Commission for this list to replace Judge Feinman, only two candidates actually made the cut. And they were the two you would expect: Caitlin Halligan and Fourth Department Judge Erin Peradotto. As I explained a few weeks ago, I think they are the clear frontrunners for the Judge Stein vacancy. Where do they fall on this list, though? Let’s take a look.
First, a brief recap of what Governor Cuomo should be looking for in nominees for the Court of Appeals vacancies. As an obvious disclaimer, these are my own personal feelings for what should be considered for a nominee based on the current composition of the Court. Obviously, the Governor will have his own criteria to consider. From my post on the Commission’s list of candidates 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.
For Judge Feinman’s vacancy, the diversity characteristic will obviously be paramount. The Governor will not admit that it is front and center in his mind as he makes the pick, and he has publicly stated that he doesn’t have any “litmus test” for the pick. But replacing the Court of Appeals’ first openly gay judge with a non-diverse nominee is very unlikely. Indeed, a group of LGBTQ+ state lawmakers have expressly called for a nominee who represents the LGBTQ+ community on the bench. On that account, the Commission’s list to replace Judge Feinman delivers.
Michael Bosworth (The Front Runner)
Michael Bosworth is the co-chair of Latham & Watkins’ litigation group, and an all-around superstar litigator. He graduated from Yale Law School, and then clerked for Judge Jed Rakoff in the Southern District of New York, Judge Robert Katzmann at the Second Circuit, and finally Associate Justice Stephen Breyer at the US Supreme Court. He was an Assistant US Attorney in the Southern District of New York in the Complex Frauds and Public Corruption Units, and then was special counsel to the Director of the FBI. If that wasn’t enough to show his legal chops, Bosworth was also Deputy Counsel to President Obama. Oh, and he was named to the National LGBT Bar Association’s Best LGBT Lawyers Under 40 list in 2016. Superstar litigator, young, all the clerkships and credentials, and openly gay. Bosworth has to be the front runner to replace Judge Feinman. And if it’s not him, then it’s…
Caitlin Halligan (The Second Front Runner)
Caitlin Halligan has made the nomination list for the Court of Appeals now four times before. And by the time the Governor picks from this list, she may have already been picked for Judge Stein’s seat (at least that’s what I would guess). She served as New York’s Solicitor General from 2001 to 2007, when Governor Cuomo was then the Attorney General. 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 first on this list if Michael Bosworth didn’t have equally exemplary credentials.
Hon. Erin Peradotto (The Runner Up)
Also now a four 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.
Hon. Anthony Cannataro (The Dark Horse)
Judge Cannataro is the Citywide Administrative Judge of the Civil Court of the City of New York and is Co-Chair of the Richard C. Failla LGBT Commission of the New York State Courts. As an openly gay jurist with a decade of judicial experience, Judge Cannataro is well qualified to sit on the Court of Appeals bench. Plus, he’s very familiar with the Court, having clerked there for Associate Judge Carmen Beauchamp Ciparick. With Judge Cannataro’s experience as a court administrator, he may be a better pick for a Chief Judge vacancy than to fill Associate Judge Feinman’s seat.
Hon. Judith Gische and Hon. Troy Karen Webber (The Repeat Candidates)
Judges Gische and Webber have both before appeared on the Commission’s list of candidates for the Court of Appeals (Judge Gische, three times in 2015, 2016, and 2017; Judge Webber, once in 2017). Both are seasoned Appellate Division judges from the First Department who could bring a valuable perspective to the Court of Appeals. But neither would have much time left on the bench before they would be forced off the Court by mandatory retirement at 70 years old.
Hon. Denise Hartman (The Seasoned Appellate Litigator)
Although Judge Hartman is now a Court of Claims judge, and acting Supreme Court justice (who decided the anti-vaccination case that was recently affirmed by the Third Department), prior to appointment to the Court of Claims bench, she was a longtime appellate advocate in the Solicitor General’s office. She handled hundreds of appeals on behalf of the State in the state and federal courts, and is widely respected for being a thorough and hardworking jurist. She would be a great pick for the Court of Appeals bench, but with mandatory retirement at 70 years old, she is not very likely to be the nominee.
These are all well qualified candidates for the Court of Appeals, and the Commission did a very good job of putting a list of diverse candidates for the Governor to choose from.
Now, what’s next? The Governor can’t make the pick to replace Judge Feinman until May 14th. Although the Governor only has until May 8th to select from the Commission’s list to replace Judge Stein, there aren’t any consequences if he waits longer. It’s not like one of the candidates on the Stein list would sue to compel him to comply with the Judiciary Law’s timeframes, right? And risk getting stricken from the Governor’s list? I think not. So, I’m going to guess that Governor Cuomo will wait on the Stein pick (she’s still on the Court until June 4th), and announce the two selections together. And for those two, I’m going to go with Caitlin Halligan and Michael Bosworth, with Judge Peradotto coming in close behind. Fear not though, I think Judge Peradotto will be the pick to replace Judge Eugene Fahey when he’s forced to retire in December. And the Court of Appeals will be better for it.
This post also appears on Twenty Eagle, a site like mine devoted to covering the New York Court of Appeals. You can find it here.