In January, the state’s highest court will have two fewer judges. Only five of the seven slots will be filled, due to a mandatory retirement and delays by Gov. Andrew Cuomo and the state Senate over confirmation hearings.
Judge Robert Smith, a well-respected jurist appointed by former Gov. George Pataki, will leave the Court of Appeals at the end of 2014 because he’s reached the mandatory retirement age of 70.
Gov. Cuomo has until mid-January to announce his choice for a replacement. Smith’s departure means that in the first month of 2015, the seven-member court will have just five judges on the panel. The state Senate has not yet confirmed a replacement for the previous vacancy, which occurred earlier this fall.
Court expert and Albany Law School Professor Vince Bonventre says that could potentially be problematic.
“It’s required that there be four judges in the majority for a decision to be legitimate,” Bonventre said. “If there are cases that are difficult for the court to either reach unanimity or if there are a couple of dissenters, the court really needs to bring in another judge.”
Bonventre says in the past, when the court has temporarily had fewer than seven judges, a mid-level appeals court judge has filled in. But he says it’s not the best practice.
“You’re going to have fundamental law of the state being decided by a court that includes individuals who aren’t even part of the court,” he said.
The court will have two vacancies because there have been delays in choosing a replacement for Judge Victoria Graffeo. Graffeo’s 14-year term ended earlier this year. Cuomo chose not to renominate the Pataki appointed Republican and instead named appellate court judge and Democrat Leslie Stein.
Cuomo delayed announcing his choice for two weeks, saying he did not want the Senate to have to come back for a confirmation hearing before Election Day. But the Senate also missed its deadline of late November to hold the confirmation hearing, and now it is not expected to occur until after New Year's Day.
The Commission on Judicial Nomination did obey it’s deadline, and submitted seven names to the governor to consider as a replacement to Smith. The list includes Stephen Younger, a law school classmate of Cuomo’s and donor to his political campaign. The nomination list also includes two Republicans other than Judge Graffeo, for the first time since Cuomo’s been governor. It also has fewer sitting judges and more practicing attorneys than it has in the past. Bonventre says that’s a good thing.
“You do want a court that’s diverse not only ethnically, racially, gender, geographically,” Bonventre said. “You do want them to have different backgrounds, and it would be good to have some strong litigators on the court.”
He says New York's former Chief Judge Judith Kaye, who is also the head of the Judicial Commission on Nominations, came from private practice and got high marks for her time heading the court.
Cuomo’s previous three choices on the court have been women, including Jenny Rivera, who is Hispanic, and another, Sheila Abdus-Salaam, who is the first African-American woman on the court. After replacing Graffeo and Smith, Cuomo will get yet another chance to appoint a Court of Appeals judge, when Chief Judge Jonathan Lippman reaches the age of 70 late in 2015 and will be required to leave the bench.
