ALBANY – Governor David A. Paterson yesterday questioned whether the list of seven nominees he must choose from to select the state’s next chief judge, a list that includes six white men and no women, was sufficiently diverse.
The seventh candidate on the list given Mr. Paterson yesterday by the Commission on Judicial Nomination is Judge Theodore T. Jones Jr., the only black member of the Court of Appeals.
Not included was the name of Carmen Beauchamp Ciparick, the senior associate judge and the only Hispanic ever to serve on the Court. In a surprise, Judge Ciparick did not make the final cut even though she applied for the chief judgeship that Judith S. Kaye must relinquish on Dec. 31 due to mandatory retirement.
Judge Ciparick has been on the Court since 1993.
A third member of the Court, Judge Eugene F. Pigott Jr., is on the list, as is Presiding Justice Jonathan Lippman of the Appellate Division, First Department, and Justice Steven W. Fisher of the Appellate Division, Second Department.
Three private practitioners with no prior judicial experience – George F. Carpinello, Evan A. Davis and Peter L. Zimroth – round out the commission’s nominees. It has been almost a century since a chief judge was selected who was not already on the Court of Appeals.
See Profiles of the Nominees.
Mr. Paterson, the state’s first black governor, expressed his concerns during a press conference on an unrelated issue when asked about the list of nominees.
Later, his spokesman Errol Cockfield explained that the governor has concerns about maintaining racial, ethnic and gender diversity on the Court of Appeals.
“The list that was presented to the governor does not reflect the kind of diversity he would like to see on the Court,” Mr. Cockfield said.
Mr. Cockfield also said that Judge Ciparick’s omission troubled the governor.
In addition to Judge Ciparick, there are three white women on the Court – Chief Judge Kaye and Judges Victoria A. Graffeo and Susan Phillips Read – one black, Judge Jones; and two white men, Judge Pigott and Robert S. Smith.
There appeared to be little, if anything, Mr. Paterson can do about the makeup of the nominating list at this point.
The state Constitution and the state Judiciary Law require governors to make their nominations for the Court of Appeals from lists submitted by the commission. Several provisions of Judiciary Law §68 specify that “the governor shall make his appointment from among those persons recommended to him by the commission” and neither the law nor the Constitution establishes alternative processes should a governor not favor the nominees.
Former Governor Mario Cuomo complained publicly that a list he got in 1983 contained no women – he had campaigned in 1982 on a promise to appoint the first woman to the Court – but had to accept the list as submitted and ultimately made his choice of former Judge Richard Simons.
In the case of a chief judgeship, the commission must send the governor the names on Dec. 1 if the incumbent is giving up the seat on Dec. 31. The governor must forward a selection between Jan. 1 and Jan. 15 for confirmation by the state Senate, which has never declined to confirm a governor’s selection to the Court since an appointive system replaced the election of judges in 1977.
Stephen P. Younger, counsel to the nomination committee and a partner at Patterson Belknap Webb & Tyler, did not immediately return a call yesterday seeking comment on the recommendations or Mr. Paterson’s comments.
History as Guide
If history is the only guide, Judges Pigott and Jones would be considered the strongest candidates for chief judge since they are the only two sitting Court of Appeals judges still in the running. Since Alton B. Parker was elected in November 1897, no chief judge has ascended to the center seat without already being on the Court of Appeals.
Weighing against Judge Pigott’s selection, however, is the fact that he is a conservative-leaning Republican appointed to the Court by former Republican Governor George E. Pataki.
Justice Lippman, 63, also presents a strong candidate because of his experience between 1996 and 2007 as the longest-tenured chief administrative judge in history. The chief judge of the Court of Appeals is both chief state judge and chief administrator of the courts.
Judges Pigott, 62, and Jones, 63, also have administrative experience: Judge Pigott as presiding justice in the Fourth Department, from 2002-06 and Judge Jones as administrative judge in the Civil Term of Brooklyn Supreme Court in 2006.
Justice Fisher, 62, was administrative judge for the Eleventh Judicial District from 1998 to 2004.
Mr. Carpinello, 58, a partner with Boies, Schiller & Flexner in Albany, has chaired the state Advisory Committee on Civil Practice since 1985.
As with the other nominees contacted yesterday, Mr. Carpinello had little to say about his selection by the commission.
“I am honored to be among such distinguished co-nominees,” said Mr. Carpinello, brother of Justice Anthony J. Carpinello of the Fourth Department. “Very honored.”
Mr. Davis, 64, is a partner at Cleary Gottlieb Steen & Hamilton who was once counsel to Mr. Cuomo. Mr. Davis called his nomination “a real honor.”
Mr. Zimroth, 65, is a partner at Arnold & Porter who served as corporation counsel for New York City from 1987 to 1989. He is married to Estelle Parsons, the Academy Award-winning actress.
All the nominees are within 12 years of reaching the court’s mandatory retirement age of 70 and would be required to step down before completing a full 14-year term if selected.
Albany Law School Professor Vincent Bonventre, a former clerk on the Court of Appeals, called the list “by far the strongest . . . the commission has ever put forward.”
“It’s an excellent list,” Mr. Bonventre said in an interview yesterday. “This is the kind of list we ought to have been having all along. I think the commission finally heard the complaints about how weak the lists were.”
Mr. Bonventre speculated that Judge Ciparick, 65, may have been passed over because of the relatively short five years she would serve as chief judge before mandatory retirement at the end of 2012.
The Commission on Judicial Nomination is chaired by an appointee of Mr. Pataki, John F. O’Mara of Davidson & O’Mara in Elmira. Mr. O’Mara also served Mr. Pataki in various administrative capacities.
Mr. Paterson had no appointees to the commission before designating Long Island lawyer Frederick K. Brewington in September to fill a seat previously held by Mr. Pataki’s one-time counsel, Michael C. Finnegan.
The other 11 members of the commission are appointees of Mr. Pataki, Chief Judge Kaye and the two majority leaders and the two minority leaders of the state Legislature. By statute, four of the commission members must be nonlawyers and no more than two appointees by either the governor or the chief judge can be of the same party.
Also by law, the commission screens the applications it receives, interviews the candidates in private and does not indicate why specifically a nominee was included on its lists or was left off.
In a brief letter to Mr. Paterson yesterday announcing the nominations, Mr. O’Mara wrote that in the “collective judgment” of its members, the seven candidates are “well qualified” by “their character, temperament, professional aptitude, experience, qualifications and fitness for office, to discharge the duties” of chief judge.
At least two current judges, Judge Ciparick and Supreme Court Justice Fern A. Fisher, administrative judge of the New York City Civil Court, acknowledged to the New York Law Journal that they applied for the chief judgeship ( NYLJ, Sept. 15).
Judge Jones was previously on a commission list for an associate judge seat in 2006 while Judge Pigott was previously recommended in 2002, 2003 and 2006. Mr. Carpinello was on lists in 2006 and two in 2007, one of which was for the chief judge seat. Justice Fisher was recommended in 2000, 2002, 2003 and twice in 2006.
Judge Lippman and Messrs. Davis and Zimroth were appearing on a list for the first time.
Judge Ciparick would have no comment on the nominations, a spokesman for the Court of Appeals said yesterday.
During Mr. Pataki’s years as governor, the commission had been criticized by Democrats and political opponents for seeming to give Mr. Pataki lists that contained the candidate he was believed to favor for the openings ( NYLJ, Nov. 13, 2003).
That criticism was only temporarily blunted in October 2003, when a commission list did not contain the name of James M. McGuire, Mr. Pataki’s former counsel. Justice McGuire subsequently won a Supreme Court seat and was appointed to the First Department by Mr. Pataki.
The other three associate judges on the Court of Appeals, Judges Graffeo, Read and Smith, told the Law Journal in September that they had not applied for the chief judge opening. All three were named to the Court by Mr. Pataki.