185 POMERANCE (POST PROOF EDITS) (DO NOT DELETE) 2/15/2014 8:05 PM WHEN DAD REACHED ACROSS THE AISLE: HOW MARIO CUOMO CREATED A BIPARTISAN COURT OF APPEALS Benjamin Pomerance* Today, New York State stands at one of the most important judicial crossroads in its history. For only the second time ever, a single individual may have within his grasp the power to control the entire membership of the state‘s highest judicial institution. If current Governor Andrew Cuomo wins re-election in 2014 and returns to the Governor‘s Mansion for another four-year term, he will enjoy a virtually unprecedented political opportunity: the chance to appoint all seven of the judges sitting on the New York State Court of Appeals.1 With mandatory retirement2 looming during the next four years for all but two of the judges presently on the Court of Appeals—the exceptions being Judge Jenny Rivera, whom Cuomo appointed to the court in January, and Judge Sheila Abdus-Salaam, whom Cuomo appointed to the court in April3—Andrew Cuomo will truly * Excelsior Service Fellow, New York State. J.D., Albany Law School, 2013; B.A., SUNY Plattsburgh, 2010. The views expressed here are solely the opinion of the author, and do not necessarily represent the views of the Excelsior Fellow program. Many thanks are owed to Professor Vincent M. Bonventre, whose wisdom about judges and state constitutional adjudication inspired this article, and to my parents, Ron and Doris Pomerance, whose support and encouragement is treasured by me. 1 See Vincent M. Bonventre, The Vacancies Are Coming!—The Entire NY Court of Appeals Soon to be [newly/re]Appointed, N.Y. CT. WATCHER (Sept. 18, 2012), http://www.newyorkcourtwatcher.com/2012/09/the-vacancies-are-coming-entire-ny.html; Karen Dewitt, Governor Andrew Cuomo Has Chance to Remake State‟s Highest Court, WRVO PUBLIC MEDIA (Jan. 8, 2013), http://www.wrvo.info/post/governor-andrew-cuomo-has-chance- remake-states-highest-court; Sam Favate, Gov. Cuomo Set to Shape New York‟s Bench, WALL ST. J. (Nov. 9, 2011, 12:30 PM), http://blogs.wsj.com/law/2011/11/09/gov-cuomo-set-to-shape- new-yorks-bench (―There is ‗huge‘ potential [for Cuomo] to ‗remake the Court of Appeals in his image.‘‖). 2 Under the New York State Constitution, judges are required to retire from the Court of Appeals at age seventy, even if they still have years remaining on their fourteen-year term. N.Y. CONST. art. VI, § 2(a); N.Y. CONST. art. VI, § 25(b). 3 Robert Gavin, Cuomo Names Judge Choice, TIMES UNION (Albany, N.Y.), Jan. 16, 2013, at A3; Ken Lovett, Gov. Cuomo Set to Name Judge Shelia Abdus-Salaam to Court of Appeals (UPDATE), N.Y. DAILY NEWS (Apr. 5, 2013, 2:00 PM), http://www.nydailynews.com/blogs/dailypolitics/2013/04/gov-cuomo-set-to-name-judge-sheila- abdus-salaam-to-court-of-appeals. 185 185 POMERANCE (POST PROOF EDITS) (DO NOT DELETE) 2/15/2014 8:05 PM 186 Albany Law Review [Vol. 77.1 hold the future of the state‘s tribunal of last resort within his grasp.4 Through these appointments, he will leave an impact on the state‘s judiciary—and, concurrently, on the entire population of New York—that will resonate for decades to come. The possibilities of what Governor Cuomo could do seem virtually endless—and, for his political opponents, appear to be downright scary. Indeed, his first appointment to the Court of Appeals, bringing the outspoken liberal scholar Rivera to the bench, rankled enough legislators that her confirmation hearings featured the most dissention seen in these proceedings in several years.5 One can only imagine that those legislators who vehemently opposed Rivera are wondering just who else the Governor might have waiting in the wings.6 Interestingly though, a much lighter questioning awaited Abdus- Salaam, an Associate Justice of the First Department since 20097— and one with a liberal voting record on most cases8—when brought before the Senate Judiciary Committee.9 Yet in this act of judicial pottery, Cuomo will have access to a master craftsperson if he wishes to seek advice about how to mold the composition of the Court of Appeals. That political artisan is none other than his father, Mario, Governor of the State of New 4 See supra note 1 and accompanying text. 5 See John Caher, Rivera Confirmed for Court of Appeals Seat, N.Y.L.J., Feb. 13, 2013, at 1, col. 3 (―[S]everal Republican members of the Judiciary Committee questioned Rivera‘s qualifications and opposed her nomination at the committee level.‖); Rick Karlin, Rivera Cleared for Appeals Court, TIMES UNION (Albany, N.Y.), Feb. 12, 2013, at A3 (―[T]he Republican-controlled Senate Judiciary Committee . spent hours grilling the nominee for what several said was her lack of trial or judicial experience.‖); Celeste Katz, Jenny Rivera On Way To NY Court of Appeals, N.Y. DAILY NEWS (Feb. 11, 2013, 6:28 PM), http://www.nydailynews.com/blogs/dailypolitics/2013/02/jenny-rivera-on-way-to-ny-court-of- appeals (―Rivera‘s nomination was approved by a voice vote after Republicans continued to complain that Rivera, who has never served as a judge, lacked the qualifications to serve on the state‘s highest court.‖). 6 Indeed, one can imagine that Republicans were not pleased by the second short list that Cuomo was handed, which contained only registered Democrats. See Vincent M. Bonventre, NY Court of Appeals: Who‟s on the List for the Jones‟ Vacancy? (Part 1), N.Y. CT. WATCHER (Mar. 18, 2013), http://www.newyorkcourtwatcher.com/2013/03/ny-court-of-appeals-whos-on- list-for.html. 7 Kenneth Lovett, Breakthrough In State Courts, N.Y. DAILY NEWS, Apr. 5, 2013, at 22; Marc Santora, Cuomo Picks Judge In City To Fill Spot At Top Court, N.Y. TIMES, Apr. 5, 2013, at A14. 8 See also Vincent M. Bonventre, NYCOA: Who‟s on the List for the Jones‟ Vacancy? (Part 3: Abdus-Salaam & Renwick), N.Y. CT. WATCHER (Apr. 3, 2013), http://www.newyorkcourtwatcher.com/2013/04/nycoa-whos-on-list-for-jones-vacancy.html (―[Abdus-Salaam‘s] record in close cases . indicates that she is at least moderately liberal. Both in criminal and civil matters.‖). 9 See Casey Seiler, Appellate Court Nominee Approved, TIMES UNION (Albany, N.Y.), Apr. 30, 2013, at A3. 185 POMERANCE (POST PROOF EDITS) (DO NOT DELETE) 2/15/2014 8:05 PM 2013/2014] Mario Cuomo‘s Bipartisan Court 187 York from 1983 to 1994.10 During those years, Mario Cuomo became New York‘s first—and, to date, only—governor to completely reshape the Court of Appeals during his tenure.11 By the time he left office, every judge on the court‘s bench was a Mario Cuomo appointee.12 And as political observers are doing now with his son, speculation about Mario Cuomo‘s motivations in choosing Court of Appeals judges raged rampant with every appointment.13 In retrospect, though, Mario Cuomo‘s eleven Court of Appeals appointments have been largely celebrated—not only for the legal acumen of the judges whom he picked, but also for the finesse he displayed over the highly politicized process of selecting high court judges.14 He transformed the Court of Appeals from an all-white, all-male court into an outwardly more diverse body, appointing the court‘s first female judge,15 the court‘s first Hispanic judge,16 and the court‘s first African-American judge to serve a full term.17 He sensed the palpable fear held by many that the judicial appointment process—still extremely new in New York State—would dissolve into petty partisanship,18 and created a Court of Appeals that was 10 For a concise but very informative look at Mario Cuomo‘s tenure as governor, as well as his political philosophies, see ERIN GOLEMBIEWSKI, MARIO CUOMO‘S PRIVATE AFFAIRS AND PUBLIC RESPONSIBILITY (2008). 11 See Dewitt, supra note 1. 12 See infra Part V. 13 See infra Part V for a discussion of some—although certainly not all—of the controversies and debates that surrounded Mario Cuomo‘s picks. 14 See, e.g., Erik Kriss, Andy Can Court All New Judges, N.Y. POST, Jan. 1, 2013, at 3 (―[Mario Cuomo] appointed as many Republicans as Democrats and as many conservatives as liberals.‖); Press Release, Puerto Rican Bar Ass‘n, PRBA Press Release: Court of Appeals Vacancy (Nov. 13, 2012), http://www.prba.net/main.cfm?actionId=globalShowStaticContent&screenKey=cmpMedia&ht mlID=19100&s=prba (―Governor Mario Cuomo[‘]s record on diverse appointments will be lauded for generations to come. It is a legacy he can be proud of.‖); Dewitt, supra note 1 (―Mario Cuomo drew from both major political parties, including former Chief Judge Sol Wachtler, a Republican.‖). 15 See Judith Friedman Rosen, Judith S. Kaye, JEWISH WOMEN‘S ARCHIVE (March 1, 2009), http://jwa.org/encyclopedia/article/kaye-judith (noting that Mario Cuomo appointed Kaye to the Court of Appeals in part because he was ―looking to diversify the court system‖ in New York). 16 See James Dao, Cuomo Choice For Top Court Is Woman, 51, N.Y. TIMES, Dec. 2, 1993, at B1. Notably, when the time came for Judge Ciparick to retire, Andrew Cuomo replaced her with another Hispanic jurist in Judge Jenny Rivera. 17 See Senate Confirms Judge Alexander, N.Y. TIMES, Jan. 30, 1985, at B2 (discussing the appointment of Fritz Alexander II to the Court of Appeals). By appointing Abdus-Salaam— the first African-American female to serve on the Court of Appeals—Andrew Cuomo seemed to follow in his father‘s diverse footsteps.