Friday, November 30, 2012

Ahead for the Court of Appeals: Change

    The composition of the New York Court of Appeals is starting to change. We will get our first look at what lies ahead on December 1. 
    There are two vacancies to be filled in the next few months. Carmen Ciparick has reached the mandatory retirement age of 70, and must step down from the Court on December 31.  And the sudden death of Theodore T. Jones has created the second vacancy. A number of the judges are approaching 70 years of age, so even more vacancies lie ahead for the seven-member court in the next few years. 
    While the the Court of Appeals is not as ideologically divided as the United States Supreme Court, Judges Ciparick and Jones were generally seen as two of the more liberal members of the Court along with Chief Judge Lippman. Replacements more conservative then they would, therefore, work an ideological shift in the Court.   
     In accordance with the State Constitution and the Judiciary Law, New York has a 12-person Commission on Judicial Nomination whose members are appointed by the Governor, the Chief Judge of the Court of Appeals, the Speaker of the State Assembly, the president of the State Senate, and the minority leaders of the Assembly and the Senate. Former Chief Judith Kaye is the chair of the Commission.
    To fill a Court of Appeals vacancy, the Commission must first recommend to the Governor at least three, and not more than seven, persons. At least eight of the Commission members must vote for each person recommended.
    To fill the vacancy created by Judge Ciparick's retirement, the Commission must make its recommendations by December 1. The Governor must then select one person no sooner than January 1 and no later than January 15. That person's name is then sent to the State Senate for a vote. On March 7 the Commission will make its recommendations to fill the vacancy created by the death of Judge Jones. 
    In recent years there has been much criticism that the Commission recommendation process has been a closed or predictable affair. To create a wider pool of people for the Commission to consider, Judge Kaye has publicly encouraged applications. We will know on December 1 whether her efforts have been successful. 
    Judge Ciparick's retirement has reopened the debate over New York's mandatory retirement age for judges. While Appellate Division judges who reach 70 years of age can be certified two years at a time to continue serving until they are 76 years old, there is no similar procedure for the Court of Appeals. 
    Those favoring the mandatory retirement at 70 maintain that it allows new blood to flow into the judicial system, while those opposed to it note the loss to New York of experienced judges. While age is plainly no disqualification--look at the United States Supreme Court--it is politically unrealistic to expect that New York will amend its Constitution to entirely eliminate mandatory retirement for judges.
    In light of the political realities, I favor increasing the age to 76. I am concerned that a mandatory retirement age of 70 creates a smaller pool of candidates for the Court of Appeals. Court of Appeals judges sit for 14 years, but if an outstanding prospect for the Court of Appeals is 64 or 65, it is highly unlikely that a Governor would select that person for only 5 or 6 years of service. Because Governors want to shape the Court for the long-term, mandatory retirement at 70 eliminates many highly talented lawyers and sitting judges from consideration for the Court of Appeals. 
    Finally, I think New York should enlarge the period of time for public comment on the Commission's recommendations. The Commission will make its recommendations on December 1, and the Governor can make his selection as soon as January 1. If the Commission recommends as many as seven people, 30 days is simply too short a period of time for serious public comment on so many people.    
    A few days ago I wrote about the interview of Justice Scalia at the appellate law conference in New Orleans. Justice Scalia was confirmed by the United States Senate by a 98-0 vote. When asked about more fractious confirmation battles, to my surprise he said they were a good thing: as unelected judges weigh in more and more on matters with social and political consequences, it is a good thing to have members of the public make their views known to the United States Senators who will vote on the nominee. Thirty days to comment on seven recommendations for a position which can affect New York law for the next 14 years, is, in my view, too short a period of time.            

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