If New York Governor Andrew Cuomo Resigns…

What happens to the New York Court of Appeals? With the explosive, though likely not shocking, findings of the New York Attorney General’s report on the allegations that Governor Andrew Cuomo sexually harassed multiple women who worked for him, Governor Cuomo faces two choices: (1) resign from office or (2) stay and fight the looming impeachment proceedings, which would inevitably fast tracked. In either event, there is a distinct likelihood that we will have Lieutenant Governor Kathy Hochul ascend to become New York’s first woman Governor.

Monumental as that is, I’m left thinking about what happens to the Court of Appeals after this December, when Associate Judge Eugene Fahey is forced into mandatory retirement because he turned 70 this year. The deadline to apply for the vacancy caused by Judge Fahey’s retirement is coming up quickly, and who is picked for the nomination list, and ultimately selected to join the Court of Appeals bench could change if Governor Cuomo is no longer the Governor making the choice.

As I have discussed before, geographic and ideological diversity is crucial for the Court of Appeals. Though Governor Cuomo’s selections clearly show he doesn’t think so. When Judge Susan Phillips Read, an upstate and fairly conservative judge, retired in 2015, she was replaced by Judge Michael Garcia, a NYC-er. When Judge Pigott, a Buffalo judge, was forced off the bench in 2016, Governor Cuomo chose NYC-litigator Rowan Wilson for the Court of Appeals bench. Judges Garcia and Wilson have been good judges, but they aren’t upstaters.

And with Governor Cuomo’s two latest picks for the Court of Appeals, Judges Madeline Singas and Anthony Cannataro, both downstaters, Judge Fahey is the sole remaining Judge on the Court from upstate New York. The upstate perspective on the law is critical for a Judge to bring to the Court of Appeals. And if Kathy Hochul, an upstater and Western New Yorker in her own right, is Governor when the time comes to pick Judge Fahey’s replacement, there’s a much better chance, in my opinion, that an upstater, and someone from Western New York in particular, is chosen. For a Court severely lacking in geographic diversity, and experience at the Appellate Division (none of the current Judges on the Court of Appeals besides Judge Fahey have served on the Appellate Division), that would be a good thing.

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