The Court of Appeals List: The Commission's Recommendations for the Abdus-Salaam Vacancy

The New York Commission on Judicial Nomination released its list of recommended candidates for the state's highest court. Seven names were presented to Governor Andrew Cuomo this past Thursday. He must select from that list to fill the vacancy on the Court of Appeals created by the tragic death in April of Judge Sheila Abdus-Salaam.

By state law, the Governor must make his choice no later than 30 days from when he received the list. The state senate must then act on his nominee, hopefully--as the Governor has made clear he would like--before the close of the legislative session at the end of this month.

As for the list itself, it is another fine one. It continues what has become customary for the Commission to produce strong lists This became especially true in recent years when former Chief Judge Judith Kaye assumed the position of Chair and added considerable gravitas, energy and insight to the application process.

With Kaye now deceased, the interim Chair, Leo Milonas--former Chief Administrative Judge of the New York State court system, former Appellate Division Justice, former president of the New York City Bar Association, etc. etc.--has by all accounts taken that legacy quite seriously. Together with a staff that includes the highly regarded Henry Greenberg as Counsel (notably, among many other things, a former law clerk to Kaye), the Commission would seem to be in very good hands indeed. And that is very good news for our high court.

Now what about that list?

Ok, here are the seven individuals:
(Photo from the New York Law Journal, "Commission Names 7 Potential Nominees for Court of Appeals," by Andrew Denney, June 1, 2017.)

(click to enlarge)

In alphabetical order (and in the photo clockwise from upper left):
Eric O. Corngold, Esq., Friedman Kaplan Seiler & Adelman LLP (Manhattan)
Paul G. Feinman, Justice, Appellate Division, 1st Department (Manhattan)
Judith J. Gische, Justice, Appellate Division, 1st Department (Manhattan)
Rosalyn H. Richter, Justice, Appellate Division, 1st Department (Manhattan)
Mary Kay Vyskocil, U.S. Bankruptcy Court Judge (Manhattan)
Troy Karen Webber, Justice, Appellate Division, 1st Department (Manhattan)
Gerald J. Whalen, Presiding Justice, Appellate Division, 4th Department (Rochester & Buffalo)

Here's another way to break down the list:

• Current Judges, 6: all but Corngold
• Current appellate judges, 5 : Feinman, Gische, Richter, Webber, Whalen
• Judicial career (20+ years), 4: Feinman, Gische, Richter, Webber
• Current private practice, 1: Corngold
• Private practice career (20+ years), 3: Corngold, Vyskocil, Whalen
• Manhattan, 6: all but Whalen
• I.e., Upstate, 1: Whalen
• Women, 4: Gische, Richter, Vyskocil, Webber
• African-American, 1: Webber
• Republican, 1: Vyskocil
• Openly Gay/Lesbian, 2: Feinman, Richter
• Physically disabled, 1: Richter
• Law Schools:
• Brooklyn (Richter [Go BLS!])
• Buffalo (Gische & Whalen)
• Minnesota (Feinman)
• NYU (Webber)
• St. John's (Vyskocil)
• Yale (Corngold)

Quite a diverse group. Certainly quite a contrast from what we see at the Supreme Court. And diversity has been a real strength at the Court of Appeals. It is for any high court.

The members of such courts, whether the Court of Appeals or some other state's highest court or the U.S. Supreme Court, simply cannot escape exercising judgement when deciding the close, policy-laden cases that come before them. These are cases where there are strong legal reasons for both--or all--sides. Where the plain words of some legal provision or the judicial precedents do not dictate a particular result. Where the judges judgements must be exercised to pick and choose and thus to decide how to resolve the issues.

In this type of an enterprise, i.e., appellate decision-making on a court of last resort, diversity is a huge plus. Different backgrounds, schools, careers, experiences, perspectives, deeply held beliefs and values all come into play and all contribute mightily to a wiser, more knowledgeable and insightful result. Stated otherwise, they help to avoid more narrow-minded, more ignorant decisions.

Now politically speaking, sure, would a governor like Andrew Cuomo like to please constituents and even make history with his selection? Of course! (Just like a governor in a much more homogeneous state or a president with a "traditional-values" base would want to appeal to their constituents.)

So let's suppose that Governor Cuomo looks at the list given to him by the Commission and does decide to widen the Court of Appeals' diversity. He also decides that he'd like to make history. Now, no matter who he chooses from among the seven names, that individual will have an impressive resume and comes to him well-regarded and recommended by the independent commission. He can hardly go wrong.

So let's say the Governor goes with selecting the first openly gay judge for the high court. Suppose, for example, he chooses Rosalyn Richter. (Among other reasons, I use her as an example because we are fellow alums of Brooklyn Law. I don't know her personally, but by reputation.) If the Governor were to do so, no doubt some would scoff at the selection as being based solely on Richter's being gay or disabled or both. Also no doubt, others would praise the Governor for doing just that. And further no doubt, the Governor would have scored some political points for enhancing the Court's diversity and for making history.

But beyond all that, or perhaps prior to all that, Judge Richter does have a strong reputation as being a very smart, conscientious, and gutsy judge and, by all accounts relayed to me, would be a very fine choice.

The point of this is not to single out Rosalyn Richter (although, again, I did use her as an example because of our Brooklyn Law connection). Rather, it is to endorse the quality and diversity of the Commission's list, the quality and diversity of the current Court of Appeals owing to previous lists and this Governor's selections, and the continued enhancing of both quality and diversity on our high court.

NYCOA: It's Abdus-Salaam

Governor Andrew Cuomo selected Appellate Division Justice Sheila Abdus-Salaam as his nominee for the Court of Appeals.

If confirmed by the State Senate--which seems like an extremely good bet--she will be the 4th African-American to have been appointed to New York's highest court. Fritz Alexander, George Bundy Smith (both Governor Mario Cuomo appointees), and Theodore Jones (appointed by Governor David Patterson) have preceded her. She will fill the vacancy resulting from Jones' sudden death late last year.

To be entirely accurate, Harold Stevens was the 1st African-American to serve on the high court. In 1974, when selection to the Court of Appeals was still by election, Stevens was appointed by Governor Malcolm Wilson for an interim term to fill the vacancy created when Judge Charles Brietel was elected Chief Judge. Stevens served a year. He was then defeated at the polls when he ran for election for a full term.

So, if confirmed, Justice Abdus-Salaam will be the 5th African-American to serve on the Court of Appeals. But she will be the 1st Black woman.

NYCOA: Who's on the List for the Jones' Vacancy? (Part 4: the 4 non-Blacks)

OK, let's just be blunt. There seems little chance that Governor Cuomo will select someone who's White.

Cuomo's pick will fill the vacancy created by the tragic death of  Judge Theodore Jones, the only African-American on the Court of Appeals at the time. It is very unlikely that Cuomo would want to leave New York's high court all White. Stated otherwise, it is very likely that he would want to replace a Black Judge with someone who's Black.
[His father, Governor Mario Cuomo, did exactly that when he replaced Judge Fritz Alexander with George Bundy Smith. See Cuomo Says He'll Name Black Judge To Top Court, NY Times, Aug. 25, 1992.]

Soooo, although there are 4 Whites on the list, court and political watchers don't give any of them much of a chance to be selected. The most likely pick will be one of the 3 Blacks on the list: Sheila Abdus-Salaam, Dianne Renwick, or Rowan Wilson.
[See discussions about them in Part 2: Rowan Wilson, and Part 3: Abdus-Salaam & Renwick.]

Nevertheless, let's look, however briefly, at each of these 4 White individuals on the Court of Appeals list. Who really knows? It is possible that the current Governor Cuomo will fool us all and pick one of them.

NYCOA: Who's on the List for the Jones' Vacancy? (Part 3: Abdus-Salaam & Renwick)

Let's now look at 2 others on the list.

We're considering the 3 African-Americans. We looked at Rowan Wilson in the last post. We'll now go to Sheila Abdus-Salaam and Dianne Renwick. Two Appellate Division Justices who are certainly credible candidates for the appointment.

Sheila Abdus-Salaam

She has been a Justice on New York State's intermediate appellate court for 4 years. (Specifically, the Appellate Division, First Department, which sits in Manhattan.)
Before then, she was a Justice on the state's highest trial court (in New York, entitled "Supreme Court") for 15 years.
Prior to that, she had served as a NYC Civil Court judge, an assistant in the state attorney general's office, and a staff attorney with Brooklyn Legal Services.

So, she has plenty of judicial experience--both at the trial and appellate level.
She also has plenty of experience as a public service attorney.

NYCOA: Who's on the List for the Jones' Vacancy? (Part 2: Rowan Wilson)

Now that we've had an overview of the list [see Part 1], we'll take a look at each of the individuals.

The presumption is that Governor Andrew Cuomo will choose an African-American. He'll be filling the vacancy on New York's highest court resulting from the unexpected death of its only African-American, Judge Theodore Jones.
[May I add beloved, admired, independent, Vietnam Vet, warm and wonderful Judge Jones. I hope the Guv remembers that when he makes his choice to fill Judge Jones' seat. Yes, I really liked him. And apparently everyone else did as well.]

There are 3 African-Americans on the list of 7. It's the second list produced by the nominating commission since former Chief Judge Kaye became Chair.
[For discussion of the 1st list, which the commission produced for the vacancy created by Judge Carmen Ciparick's mandatory age retirement, see NY Court of Appeals: The List to Replace Ciparick, Jan. 11, 2013.]

We'll look at those 3. Let's do so in reverse alphabetical order. Candidly, because I'd like to discuss Rowan Wilson first. That's what we'll do in this post.

Rowan D. Wilson

Perhaps the most interesting name on the list. More important than that, it's hard to beat his vita.

Sure, no judicial experience. Not and never a government official. Nor a political party official. Nor advisor to a governor or senator. Nor a legal academic.

No, he's not the typical nominee for the Court of Appeals. Not a judge on a New York State appellate or trial court, as were 6 of the 7 members of the high court when Andrew Cuomo became Governor. No, not Rowan Wilson.
Oh, and he was born in California.

But, again, hard to beat.

NY Court of Appeals: Who's on the List for the Jones' Vacancy? (Part 1)

As we noted in the last post:
3 African-Americans
3 Women
4 Appellate Judges
3 Private Litigators
1 Openly Gay Man
3 Who were on the previous list
3 from Manhattan
1 each from Brooklyn, the Bronx, and Long Island
1 from North of New York City--Buffalo
0 Hispanics [3--including the chosen 1--last time]
0 Asians [1 last time]
0 Academics [1--the chosen 1--last time]
0 Republicans [0 last time].

Here they are:

Top row (l to r): Sheila Abdus-Salaam, Eugene Fahey,
John Leventhal, Dianne Renwick.
Second row: David Schulz, Maria Vullo, Rowan Wilson.

Before going further, let's be clear. This is not only another diverse list, but another strong one as well.

Yes, this is the 2nd list from the Judith Kaye led Commission on Judicial Nominations that is very diverse and very strong. Not surprisingly, and by all accounts, the credit goes largely to the extraordinary efforts of the former Chief Judge.

NY Court of Appeals: Diversity & The List for the Jones Vacancy

[Been sick as a dog. The flu. Even though I had a flu shot.

But this must have been a different strain. The worst I've ever had. Knocked me out of commission for a week.

Well, I'm not yet ready for the urn. Too much going on. And too much good scotch and bourbon for my wife and boys to buy me, and the Court of Appeals coming for our symposium next week, and Nonna's 88th--and just 4 months till Saratoga!]

3 African-Americans
3 Women
4 Appellate Judges
3 Private Litigators
1 Openly Gay Man
3 Who were on the previous list
3 from Manhattan
1 each from Brooklyn, the Bronx, and Long Island
1 from North of New York City--Buffalo
0 Hispanics [3--including the chosen 1--last time]
0 Asians [1 last time]
0 Academics [1--the chosen 1--last time]
0 Republicans [0 last time]

Soooo, once again, the Commission on Judicial nomination has produced a list that is plenty diverse. Well, certainly in some senses if not in all.

But it is also a list that likely raises as many questions as it answers. Questions about the Commission's quest to insure that a wide demographic swath is represented in the 7 names it presents to the Governor.
[We will discuss the individuals on the list in the next post. Meantime, see Joel Stashenko and John Caher, 4 Judges, 3 Private-Practice Lawyers in Line for Jones' Seat, NYLJ, 3/8/2013.]

Now, anyone who thought about it for more than a few minutes would understand that diversity is important. Would anyone seriously think that a court composed of all white males is preferable? Or all males, black or white?

Or all graduates of the same law school? Or all who had the same personal or professional background? Would any of that be preferable to one where the judges' personal, educational, and career backgrounds were different? Would any of that be preferable, in short, to a court in which perspectives were varied?