With December 31st fast approaching, and Associate Judge Eugene Fahey’s time on the Court of Appeals waning now that he turned 70 years old last month, the Commission on Judicial Nomination released its list of seven candidates to potentially take Judge Fahey’s seat next year. With Judge Fahey being the last Judge on the Court of Appeals who had served on the Appellate Division and whose chambers are anywhere north of East 199th Street, the Commission’s list is full of candidates who would bring those important perspectives back to the Court’s bench. And for the first time since I can remember (and probably longer), the list includes two highly respected public defenders (one a federal appellate defender and the other the head of the NYC Legal Aid’s Criminal Defense Special Litigation Unit).
As a reminder (though likely unneeded for most of you), the Court of Appeals currently has 6 NYC- or Long Island-based judges (DiFiore, Rivera, Garcia, Wilson, Singas, and Cannataro), plus Judge Fahey who is from Buffalo. The Court has three women (DiFiore, Rivera, and Singas), and four men (Fahey, Garcia, Wilson, and Cannataro). Three are judges of color (Rivera, Garcia, and Wilson). There are three former prosecutors (DiFiore, Garcia, and Singas), and none with prior criminal defense experience, for which the Commission has received a great deal of criticism. And only Judge Fahey has ever served on the Appellate Division.
With Judge Fahey facing mandatory retirement from the Court of Appeals at the end of this year, at the start of 2022, the Court will be solely comprised of downstate judges with no prior Appellate Division experience, no criminal defense experience, and no real view on how the issues that the Court decides will impact the lives of most New Yorkers who live outside of New York City. Indeed, it’s shocking to think that only six months ago, the Court had three of its seven judges who had previously sat on the Appellate Division. Now, come January, there will be none. Who Governor Kathy Hochul picks to replace Judge Fahey, therefore, is critical to beginning to balance out the Court.
As I explained back during the firestorm following the New York Attorney General’s report on Governor Cuomo’s harassment and intimidation of subordinates, Governor Hochul’s administration is far likelier to care about ensuring that the Court has an upstate judge with Appellate Division experience on it. Here’s what I would tell the Governor to think about when she’s making her pick:
- 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.
- The legal issues that people and municipalities face upstate are different than those generally faced in NYC. Without someone who can understand life in upstate New York and explain to the other Judges how the issues they are deciding will play differently north of New York City, the Court will be lacking an important perspective.
- The Court lacks anyone with prior criminal defense experience. With the Court’s heavy criminal docket, that too is a valuable perspective that should be represented on the State’s highest court.
- And, finally, of course, the Court should be representative of the diversity of our State. Representation matters at the height of our legal system, for both the lawyers and the litigants who appear in it.
With those things in mind, let’s take a look at the candidates. But first a note: the Commission’s release lauds that they received 34 applications for Judge Fahey’s seat. That seems like a very low number to me. I certainly understand that attracting candidates is difficult and the Commission went to great efforts to encourage new applicants, but in a court system as large as ours, and a bench and bar that is one of the largest in the country, I would have expected that the Commission would have gotten more applications. Judge Stein’s seat had 45 applicants, and Judge Feinman’s had at least a few more than that. I hope for the upcoming vacancies on the Court (not expected to occur until 2025 when Chief Judge DiFiore faces mandatory retirement), the Commission gets more applicants excited about sitting on our state’s highest court.
The 34 candidates are certainly a diverse group. As the Commission’s release explained, “[o]f the 34 applicants, 15 (44%) were women and 10 (29%) of diverse backgrounds. The Commission ultimately interviewed 18 candidates, of whom 11 (61%) were female and 7 (39%) were ethnic minorities or otherwise diverse.” From those, the Commission chose these seven to send to Governor Hochul:
My first reaction is that it’s a fantastic list: heavy on Appellate Division justices (five), 5 women and 2 men, 1 woman of color, 1 openly gay judge, 5 candidates from upstate, and 2 candidates with prior criminal defense experience. The list, for me, ticks all of the boxes for candidates who should be considered for the Court of Appeals. The only thing left to do is to decide who is most likely to be the pick!
Hon. Erin Peradotto (The Front Runner)
Judge Erin Peradotto of the Appellate Division, Fourth Department is now a five-time candidate for a spot on the Court of Appeals, after being picked also for both the Judge Stein and Judge Feinman vacancies. She has been an appellate judge since 2006, and would bring a very valuable perspective to the Court if she was the choice. Most notably, she’s a Western New York judge, which should appeal to Governor Hochul, who is also from Buffalo. I picked Judge Peradotto as a likely choice back when Judge Stein announced her retirement, and again particularly for this vacancy when the Judge Feinman list was released. I’m sticking with her here. She would be a great addition to the Court of Appeals bench.
Hon. Shirley Troutman (The Runner Up)
Judge Shirley Troutman, who currently sits with Judge Peradotto on the Appellate Division, Fourth Department, made the Judge Stein list, but wasn’t on the Judge Feinman list this year. So, this is her second time as a potential nominee to the Court of Appeals. Governor Cuomo elevated Judge Troutman to the Appellate Division in February 2016, after she served as a trial court judge in City Court, then County Court, and then Supreme Court, which is very similar to the career path that Judge Stein followed to the Court of Appeals. If chosen, Judge Troutman would be only the second black woman on the bench in the Court’s history, following Judge Shelia Abdus-Salaam. I would not be surprised if she was the choice.
Hon. Joanne Winslow (The Dark Horse)
Judge Joanne Winslow is the list’s third justice from the Appellate Division, Fourth Department. She began her career in various roles with the Monroe County District Attorney’s office, and has been an elected Supreme Court judge since 2008. She is a Co-Chair of the Richard C. Failla LGBT Commission of the New York State Courts, with the Court’s newest judge Anthony Cannataro, and would be the Court’s second currently sitting openly gay judge (third overall).
Corey Stoughton and Timothy Murphy (The Public Defenders)
Finally responding to the vociferous criticism that came after Governor Cuomo announced his two picks to replace Judges Stein and Feinman that none of the picks had any background in criminal defense, the Commission added two highly respected criminal defenders on its list of candidates for Judge Fahey’s seat.
Corey Stoughton is NYC Legal Aid’s Attorney-in-Charge of the Criminal Defense Special Litigation Unit, and is well known for her work at the New York Civil Liberties Union and at the U.S. Department of Justice, Civil Rights Division before that. She graduated from Harvard Law and Michigan for undergrad, and would be a fantastic addition to the Court. But she’s a NYC-er, and that may be a dealbreaker for a Buffalonian Governor.
Tim Murphy is a federal appellate defender in the Western District of New York, and has worked in a DA’s office, at Legal Aid, and in private practice throughout his career. Like Governor Hochul, he’s a Buffalonian. And he just finished his term as Co-Chair of NYSBA’s Committee on Courts of Appellate Jurisdiction, which I sit on as well. Tim is a fantastic leader and a fantastic attorney, and would be a great choice.
Hon. Francesca Connolly and Hon. Stan Prtizker (The Newcomers)
Judge Francesca Connolly currently sits in the Appellate Division, Second Department. She spent 25 years as a civil litigator before she was elected to Supreme Court in 2010, and then elevated to the Second Department in 2016. Anyone who has appeared before Judge Connolly, or even just read her decisions, knows she’s super smart and a really good judge. Those kinds of candidates always deserve consideration for our top court, but since this is only her first time on the vacancy list and isn’t an upstate judge, she doesn’t seem, to me, to be a likely choice.
Judge Stan Pritzker is a Justice on the Appellate Division, Third Department, who like Judge Connolly, is a great Judge (see his dissent in the New York daily fantasy sports case) who began his career with almost two decades of civil litigation, after attending law school at night while he was also working as a social worker. He has been a judge since 2005 (first in County Court, then Supreme Court, and ultimately the Appellate Division), and would be a very good choice. But he’s up against some stiff competition on this incredible list of candidates.
Now that the Commission has sent the list of nominees on to Governor Hochul for her consideration and choice, the next step is for the Governor to meet with the candidates and then to nominate one of them to fill the vacancy at the Court of Appeals created by Judge Fahey’s mandatory retirement. Under the Judiciary Law, the Governor can’t make the nomination until November 15th and must do so no later than December 1. Although the Senate has 30 days to confirm the Governor’s nominee, once chosen, no one enforces that timeline, so it’s most likely that the Court will have it’s newest judge once the Senate comes back for the legislative session in January 2022.
This post has also been posted by my good friends at Twenty Eagle, a site like mine covering the New York Court of Appeals. Check it out here.