Party Picks: Could Gov. Cuomo Name a Republican to the State's Highest Court?

A few weeks before Election Day, Gov. Andrew Cuomo burnished his liberal credentials by nominating Leslie Stein to the New York State Court of Appeals, swinging the balance of the court from a Republican to a Democratic majority.

Cuomo’s decision to pick Stein disappointed Republicans, who wanted Judge Victoria Graffeo, a Pataki appointee whose term is expiring, to be reappointed to the state’s highest court. Stein is the third state Court of Appeals appointment Cuomo has made.

At least four seats will open on the state Court of Appeals during Cuomo’s second term, one of which is already waiting to be filled. New York State Court of Appeals Judge Robert Smith, a Pataki-appointee who didn't serve as a judge before joining the court, reached the mandatory retirement age of 70 in August, and Cuomo is required by law to name a replacement by the end of the year. Cuomo has missed recent deadlines, ignoring a 30-day deadline in October to nominate a candidate to fill Graffeo’s seat after being presented with the list of potential appointees; the state Senate then failed to meet its 30-day limit to vote on confirming his choice.

Moving forward, the governor will have to decide whether to continue to nominate Democrats or for the first time to pick a Republican. While it is standard practice for American presidents to nominate members of their own party to the U.S. Supreme Court, Cuomo might still select at least one Republican to join the court as additional seats open up during his second term in office.

Cuomo walked a tightrope in his first term, maintaining a productive relationship with state Senate Republicans while also passing liberal legislation and defending his progressive priorities. He has sought to portray his nominations as nonpartisan decisions.

“It has nothing to do with the politics of Democrats or Republicans,” Cuomo said on the Capital Pressroom radio show in November when asked about his appointment of Stein. “That’s just not a factor when it comes to making these selections.”

Some observers disagree, arguing that governors always consider political motivations when nominating judges to the state court. New York State Court of Appeals cases sometimes involve legal situations that have no precedent, and other times they require judges to sort through laws that contradict one another.

“If you have individuals on the court who philosophically tend to be more liberal, their decisions are going to be informed by their philosophies— there’s just no other way for them to be deciding these cases,” Albany Law Professor Vincent Bonventre said. “We always hear at these hearings, ‘Well, I will just apply the law,’ but that’s nonsense. People think that sounds right, that that’s what judges do, but believe me, there’s nobody that studies high courts that believes such nonsense.”

The upcoming open seat being vacated by Smith, Bonventre noted, could be a politically opportune time for Cuomo to nominate a Republican judge, because he has already established a Democratic majority. In 2015 the next open seat will be that of the court’s chief judge, currently held by Jonathan Lippman, and observers believe Cuomo would be less likely to nominate a Republican in that instance. The chief judge of the state Court of Appeals oversees and supervises the other six associate judges on the court, and administers New York’s entire court system.

The governor’s father, former Gov. Mario Cuomo, was known for choosing both Republican and Democratic nominees for the Court of Appeals during his tenure.

Of Mario Cuomo’s first three nominees, two were Republicans. The elder Cuomo also nominated a historically diverse Court of Appeals, naming the first female, black and Latino judges to the court. He also nominated a Republican chief judge, Sol Wachtler, in 1985.

“There may be some pressure—maybe even some internal pressure— that will influence Andrew Cuomo to appoint a Republican,” Bonventre said. “I’m sure the Senate Republicans will be complaining if he doesn’t appoint one Republican.”

Candidates go through a rigorous screening process before the governor makes his choice. Applications first go to the 12-member judicial nominating commission, which is currently chaired by former state Court of Appeals Chief Judge Judith Kaye. The governor, the current chief judge of the Court of Appeals and the state Legislature each nominate four members of the commission.

Commissioners then interview a select number of applicants and present the governor with a list of three to seven candidates, from which he selects his nominee.

In recent years Kaye has tried to raise awareness of the openings and expand the field of candidates.

“I think not enough people know about the court, and how important the court is, and how important it is that we get the best people. I would like to see public awareness raised so we get the very best people,” Kaye said. “The Court of Appeals sets the law in so many areas—whether it’s housing issues, family issues, criminal law issues or constitutional issues, the decisions of the court in so many ways impact our lives.”

Of the candidates on the list presented to Cuomo from which he eventually chose Stein, six were Democrats; Graffeo was the only Republican option.

“That doesn’t necessarily mean Judge Kaye and the commission members were avoiding Republicans. It just could be Republicans just weren’t applying … because they might have figured [that] with Gov. Andrew Cuomo they didn’t have much of a shot,” Bonventre said. “But some of us have been complaining about that. I’m a Democrat, for Christ’s sake, but I thought it was unseemly that there weren’t any Republicans on the list. So maybe the commission heard some of those complaints and encouraged Republicans to apply. There are two very strong Republicans on this list [to replace Smith].”

Those two Republicans are Erin Peradotto, an associate justice of the Appellate Division, Fourth Department, and Mary Kay Vyskocil, a senior litigation partner with the firm Simpson Thatcher & Bartlett. Of the other five judges from whom the governor can select his nominee, two also appeared on the list of possibilities from which he ultimately selected Stein: Eugene Fahey, also an associate justice of the Appellate Division, Fourth Department, and Rowan Wilson, a partner in the litigation department of the firm Cravath, Swaine & Moore. Cuomo’s other choices are Kathy Chin, a partner at Cadwalader, Wickersham & Taft; Hector Gonzalez, a partner at Dechert LLP; and Stephen Younger, a partner at Patterson Belknap Webb & Tyler and a past president of the New York State Bar Association.

Even though the nominating process can be political, the state Court of Appeals has been less polarized in its decisions, observers say. For example, in 2009 a Republican judge joined three Democratic judges to strike down a youth curfew in Rochester, and in 2010 a different Republican judge joined three Democrat judges to rule that the state Constitution barred the police from placing GPS tracking devices on cars without a warrant.

Of course, a Democratic-majority Court of Appeals will likely inure to Cuomo’s benefit particularly if he pushes the more liberal agenda he promised during his gubernatorial campaign, such as the passage of the Women’s Equality Act and, more recently, criminal justice reform.

“With the majority of the court being Democrat, the direction and its jurisprudence of the law is going to change,” Bonventre said.