It’s been an unsettling 2022-23 term at the New York Court of Appeals. First, Chief Judge Janet DiFiore abruptly resigned right before the arguments began in September 2022, following an ethics investigation into whether she interfered in the disciplinary proceedings of one of her biggest detractors. Then, after the Commission on Judicial Nomination produced a list of seven well qualified candidates for the vacancy created by DiFiore’s resignation, the NY Senate Judiciary Committee, for the first time, refused to send Governor Hochul’s pick, Presiding Justice Hector LaSalle, to the floor for a full Senate vote on his nomination. Senate leaders argued that LaSalle’s failure in committee was sufficient to end his nomination, while the Governor (and others, primarily former Chief Judge Jonathan Lippman) argued that the New York Constitution mandates that each nomination receive a vote of the full Senate. That created weeks of speculation and posturing concerning whether the Governor would sue to force a floor vote or would simply accept the political defeat and start the nomination process all over again.
While the Governor was hemming and hawing over what to do, the Senate Republicans forced her hand and brought their own suit to force the Senate leadership to bring Presiding Justice LaSalle’s nomination to the floor for a vote. While that litigation was pending, and Senate leaders were staunchly defending that the Senate Judiciary Committee process, they brought LaSalle’s nomination to the floor and rejected him outright. That mooted the litigation (but Supreme Court held nevertheless that the Constitution actually did require that each nomination for a Court of Appeals vacancy be sent to the floor for a vote of the full Senate) and triggered once again the process for filling the Chief Judge vacancy, beginning with applications to the Commission on Judicial Nomination.
That took us up to the middle of February. In the meantime, the Court of Appeals was left with only six judges, and often found itself deadlocked following argument. In fact, the Court has set down for reargument 6 cases (4 criminal and 2 civil) that were argued this term, since the September session, a rate unlike any I can remember in the recent past. And besides the difficulties the Court has had reaching a majority, the acting Chief Judge has effectively been hamstrung administratively, as he can’t undertake new policies when he doesn’t know how long his term will continue.
Recognizing this turmoil that has been caused by the Senate playing politics with the Chief Judge vacancy, the Commission on Judicial Nomination moved with incredible speed to solicit applications for the renewed vacancy, interview any new applicants, and create a brand new list of 7 potential nominees for the Governor’s consideration. Indeed, the Commission accepted applications until March 10th, and then released an almost entirely new list only two weeks later.
What Kind of Candidate is the Governor Looking For in the Next Chief Judge
Let’s take a look at the new candidates for the middle seat on the Court of Appeals. But first, a reminder about who the Governor is looking for in the next Chief Judge. In an op-ed in the Daily News, Governor Hochul laid out two primary criteria for who she would like in a new Chief Judge:
Our Court of Appeals, New York’s court of last resort, has always been a crown jewel of justice. Going back to Chief Judge Benjamin N. Cardozo’s tenure as chief judge in the early 1900s, and even earlier, the court was renowned for its persuasive and thoughtful decisions — on issues ranging from protecting consumers, to advancing civil rights and the right to effective counsel.
Against the backdrop of this proud tradition, I am looking to select a chief judge to lead the court in a time of both great challenges and opportunities.
First, we need a leader who, through intelligence and conviction, can unite the existing court so that it speaks in a strong and respected voice.
The U.S. Supreme Court has spoken — with decisions such as Dobbs vs. Jackson, taking away a woman’s right to choose, and New York State Rifle and Pistol Association vs. Bruen, tossing a century-old law protecting New Yorkers from the proliferation of guns. We are now relying on our state courts more than ever to protect our rights. We need our courts to defend against this Supreme Court’s rapid retreat from precedent and continue our march toward progress.
Second, we need a leader who can effectively manage the diverse and complex courts across the state. We have family courts, criminal courts, commercial courts, civil courts, housing courts, mental health courts, domestic violence courts and other community, trial and appellate courts. Because of the determination that jurors needed to be six feet apart during COVID, criminal cases slowed to a crawl. The pandemic took a major toll on the operations of the courts and our new chief judge must work aggressively to return court activity, especially criminal proceedings, to pre-pandemic levels to protect public safety.
The Governor is looking for a thought leader who can bring the Court together, and who has a significant administrative background to bring the New York courts back from the pandemic-era that Chief Judge DiFiore oversaw. That’s not easy criteria to satisfy.
Add to that the history of New York Chief Judge nominations that significantly favors a current sitting judge. Indeed, of the six past nominations for a Chief Judge vacancy, New York governors have chosen five sitting judges and an elected District Attorney when picking a sitting judge simply wasn’t an option because there weren’t any on the Commission’s list. That’s a pretty long historical trend, and would appear, to me at least, to inform who might be next to lead to the Court of Appeals.
What’s more, there is currently a bill sitting on the Governor’s desk to be signed, after passing both the Assembly and Senate, that would substantially change the nomination process for Court of Appeals Associate Judge vacancies if a current sitting Associate Judge is selected and confirmed as the new Chief Judge. Under the current Judiciary Law, such a case would require the process to start all over again, with a new application process and a new Commission on Judicial Nomination list, causing another 4-6 month delay before the Court is back to full strength. The bill, if signed, would amend the Judiciary Law to permit the Governor to pick an Associate Judge nominee immediately from the same list that was used for Chief Judge, if the Senate confirms a sitting Associate Judge as the Chief Judge. Here’s the actual language of the potential new section 68(2-a) of the Judiciary Law:
WHENEVER THE GOVERNOR’S APPOINTMENT, UPON ADVICE AND CONSENT OF THE SENATE, FOR CHIEF JUDGE OF THE COURT OF APPEALS, CAUSES A VACANCY IN THE OFFICE OF ASSOCIATE JUDGE OF THE COURT OF APPEALS, THE GOVERNOR MAY MAKE AN APPOINTMENT FOR THE ASSOCIATE JUDGE VACANCY FROM AMONG THE COMMISSION’S RECOMMENDATIONS FOR THE PRECEDING CHIEF JUDGE VACANCY, PROVIDED THAT THE ASSOCIATE JUDGE VACANCY OCCURS WITHIN SIXTY DAYS FROM THE PROMULGATION OF RECOMMENDATIONS BY THE COMMISSION FOR THE PRECEDING CHIEF JUDGE VACANCY. THE GOVERNOR MAY MAKE SUCH APPOINTMENT IMMEDIATELY UPON THE OCCURRENCE OF THE ASSOCIATE JUDGE VACANCY.
Because the Governor could sign the bill tomorrow, or at any time before she makes her pick for the next Chief Judge, this bill could have a huge impact on the Governor’s selection. Indeed, signing the bill and then choosing one of the three current sitting Court of Appeals judges who made the Commission’s list to be the next Chief Judge would give the Governor a two-for-one pick, where she can start to mold the Court of Appeals as she wishes. That has to be attractive.
Who is the Favorite to be the Next Chief Judge
Given the Commission’s compressed schedule to create a brand new list for Chief Judge, it was particularly impressive that it reviewed 54 applications, and interviewed 25 of the candidates. According to the Commission’s press release, ” The applicant pool was diverse. Of the 54 candidates, 28 (52%) were women and 17 (31%) were of diverse backgrounds. Altogether, the Commission interviewed 25 candidates for the Chief Judge vacancy (which includes interviews of candidates in November 2022 who initially applied for the vacancy). Of those 25 candidates, 15 (60%) were women and 12 (48%) were ethnic minorities or otherwise diverse.”
So, let’s take a look at who the Commission picked:
After the Commission’s first list for Chief Judge DiFiore’s vacancy had only one sitting Court of Appeals judge, the new list has three. And two Appellate Division Presiding Justices not named Hector LaSalle. And two other candidates who have previously made the Commission’s lists for Court of Appeals vacancies multiple times. That’s an impressive group. Given what we now know, here’s who I think is in line to be the nominee.
The Frontrunner – Hon. Shirley Troutman
Court of Appeals Associate Judge Shirley Troutman, a western New Yorker, was picked by Governor Hochul to replace the retiring Judge Eugene Fahey and has sat on the Court since January 2022, where her voting record has leaned left of the middle. She’s no Judge Rivera by any means, but no one could honestly construe her judicial record as conservative (he says naively once again). Judge Troutman made the Commission’s lists twice before being picked to be an Associate Judge, and would be the first black woman to serve as Chief Judge in New York history. Those are appealing credentials, especially to a Governor who needs to play to her base following the disaster that was Presiding Justice LaSalle’s failed nomination. And the cherry on top would be that by picking Judge Troutman to be the next Chief Judge, Governor Hochul would buy herself another pick from the same list (assuming she signs the nomination bill that is now on her desk). And with that second pick, the Governor could, and should, choose…
Who I Would Have Picked Years Ago – Caitlin Halligan
Caitlin Halligan has made the nomination list for the Court of Appeals now five times before, and been passed over each time. Who in their right mind would do that?? She served as New York’s Solicitor General from 2001 to 2007. 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 would bring to the Court of Appeals the exact type of intellectual honesty and leadership that the Governor is looking for.
The Administrator in Chief – Hon. Elizabeth Garry
I said back last summer when Chief Judge DiFiore announced her resignation that Presiding Justice Garry should be on the short list to be the next Chief Judge. And finally, someone listened to me (or so I would like to think). Here’s what I said then, and it still holds true today:
Judge Garry could very well be the perfect selection for the next Chief Judge if she puts her name in for the opportunity. She has served as the Presiding Justice of the Third Department for the past four years, with all the administrative responsibilities that come with being the PJ, and has served on the Appellate Division since 2009. She’s the first openly gay Presiding Justice of the Third Department, and a committed upstater. She’s a fairly progressive judge, and would be available to serve most of a 14-year term as the Chief Judge. She would be a fantastic pick, in my opinion.
The One Who Would Satisfy the Progressives in the New York Senate – Hon. Rowan Wilson
The left wing of the New York Democratic Party in the Senate made it very clear during the confirmation proceedings for Presiding Justice LaSalle that they wanted a committed liberal who would rule in cases the way that they believed support progressive causes. Judge Wilson, who along with Judge Rivera makes up the current left wing of the Court of Appeals and dissents almost as frequently, is that person. He’s not afraid to write about how the law should be changed, or interpreted in a way that he believes is right, even if that means departing at times from longstanding precedents. If chosen, Judge Wilson would provide a liberal voice to steer the Court, but how would he handle all of the administrative tasks that go along with being Chief Judge? Because he doesn’t have overt prior administrative experience, we can only guess.
The One Who Could Never Be Confirmed – Hon. Anthony Cannataro
When I first looked at the last list, Acting Chief Judge Cannataro stood out as the clear pick to be the next Chief Judge. He’s currently the acting Chief, had sat on the Court for a year, and has extensive administrative experience from before he was appointed to the Court. He would be New York’s first openly gay Chief Judge, which would be a significant political accomplishment for the Governor.
But here’s the issue: Judge Cannataro is not the intellectual leader who could unite the Court and bring together its divided factions. In the past year, Judge Cannataro hasn’t been able to sway the normally dissenting judges from their positions to allow the Court to speak with one voice, certainly not in the redistricting case. And because many Senators view Judge Cannataro as on the right side of the Court of Appeals aisle, his potential nomination would likely fail just as spectacularly as did Presiding Justice LaSalle’s. That’s not a risk the Governor can take.
The First Public Defender – Corey L. Stoughton
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 just doesn’t have the administrative experience necessary to run the entire New York court system.
The Presiding Justice of the Fourth Department – Hon. Gerald Whalen
Presiding Justice Whalen has extensive administrative experience and would unquestionably be able to handle the administrative side of the Chief Judge role. But, he’s in his middle-60s and is a white male. On such a diverse list of candidates, and with the Governor looking to rebuilt her progressive bona fides, Presiding Justice Whalen doesn’t stand out.
Who do you think it will be? We will know soon, as today is the first day that the Governor can make her choice and she must decide before April 23rd. Whoever it is, fireworks will certainly ensue and maybe sometime soon the Court of Appeals will be back to a full bench.
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