In the next couple of years, Governor Andrew Cuomo may have the chance to shape the state’s highest court, the Court of Appeals, as several judges reach the end of their terms or the mandatory retirement age. It’s an opportunity no New York governor has had in a generation.
Between now and 2017, the terms of all of the seven judges on the state’s highest court will expire. Most will have reached the age of 70 by then, the mandatory retirement age for the court. The first to retire is Carmen Beauchamp Ciparik, the first Hispanic appointed to the court back in 1994.
If Cuomo wins re-election in 2014 and stays the entire term, he will be able to completely overhaul the court.
Vince Bonventre is an Albany Law School professor and court expert. He says court watchers will be eagerly awaiting the governor’s first choice for clues.
“Who is he going to appoint? How many checkmarks is he going have on this appointment?” Bonventre asks. “Or won’t he care at all? Will he just look at the list and say ‘well, I think this individual will be an absolutely fabulous juror.’"
It was Andrew Cuomo’s father, Governor Mario Cuomo, who last had the opportunity to completely rebuild the court.
Bonventre says Mario Cuomo drew from both major political parties, including former Chief Judge Sol Wachtler, a Republican. He named Judith Kaye as Chief Judge to succeed Wachtler, the first woman to hold that position. Mario Cuomo also appointed the first Hispanic, Ciparik, and the first African American to the court.
“He really diversified the court,” Bonventre said.
Governor George Pataki, a Republican, chose judges who more closely hewed to his conservative, law and order, ideology. Susan Read was one of the governor’s top counsels, and Vicky Graffeo was the solicitor general under Pataki ally, Attorney General Dennis Vacco. One appointment was his roommate when Pataki served in the Assembly, and another was a major campaign contributor.
“None of this means that those individuals did not turn out to be fine judges,” said Bonventre. “Some of them turned out to be very fine judges.”
Governors Spitzer and Paterson each made one appointment to the court. Paterson chose a close ally of Assembly Speaker Sheldon Silver, Jonathan Lippmann, to replace Kaye as Chief Judge when she reached the mandatory retirement age. But neither governor was able to shift the balance of the court, which remains at four conservative judges and three more liberal judges.
Bonventre says though dissents more than doubled under the dominance of the Pataki appointees, the New York Court of Appeals is much more amiable, overall, than the famously partisan US Supreme Court. And he says Judges Read and Graffeo, the toughest law and order judges on the court, are “nothing like Scalia and Thomas.”
So far, Governor Andrew Cuomo seems to be following in the spirit of his father Mario Cuomo rather than the tradition of George Pataki. The search commission to find a list of candidates to replace Ciparik is chaired by former Chief Judge Kaye, who has encouraged non-politically connected, but qualified, lawyers to apply. Kaye has even extended the application deadline and made presentations to the New York City Bar Association to drum up more candidates.
Governor Andrew Cuomo’s next chance to choose a judge for the court will be in 2014, when Pataki pick Graffeo’s term will be up. Graffeo will not be 70, though, and Cuomo could choose to simply reappoint her to another term.
Bonventre says whether Cuomo decides to replace the more conservative Graffeo with a new choice will be telling, and reveal whether the governor really wants to put his stamp on the court. Ciparik’s replacement is not likely to change the balance of the court. But if Graffeo were replaced with a less conservative judge, then the court would shift from four conservative judges in the majority to four moderate to liberal judges.
And there is precedence for doing that. Former Governor Pataki did not reappoint George Bundy Smith, the only African American on the court, when his term was up, and instead appointed Eugene Pigott, to solidify a conservative edge on the court. That change perhaps allowed Pataki to score a victory in a struggle for power with the legislature over the state budget, when the governor won in case known as Pataki v. Silver.