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The Bush administration has settled upon New York Court of Appeals Judge Richard C. Wesley as its choice, subject to the completion of a Federal Bureau of Investigation background check, to fill a vacancy on the 2nd U.S. Circuit Court of Appeals, sources report. Wesley, who was appointed by Gov. George E. Pataki to New York’s top court in 1996, said he would have “no comment” on the matter. Also, court watchers report that two other candidates have emerged as serious contenders for existing vacancies in the Eastern and Southern Districts of New York. A leading candidate for the Eastern District vacancy, they say, is Dora L. Irizarry, a former New York Court of Claims judge who resigned last spring to accept the Republican nomination for attorney general to challenge Democratic incumbent Eliot L. Spitzer. Irizarry, who was the first Hispanic woman to run for statewide office, was soundly defeated by Spitzer, who took 66 percent of the vote. Pataki had assiduously courted the Hispanic vote in last year’s election. In the months leading up to the election, he appointed two Hispanics to the Appellate Division: Justice Reinaldo E. Rivera, the first Hispanic ever appointed in the 2nd Department, and Justice Luis A. Gonzalez, the first Hispanic to serve in the 1st Department since Justice John Carro retired in 1994. A name in circulation as a top contender for the Southern District vacancy is P. Kevin Castel, a partner at Cahill Gordon & Reindel and the immediate past president of the Federal Bar Council. Castel declined to comment. Irizarry said on Jan. 8 that she had applied to Pataki’s screening committee to be considered for an appointment in either the Southern or Eastern District. Philip Singer, a spokesman for U.S. Sen. Charles E. Schumer, D-N.Y., on Friday was quoted in The New York Post as confirming that the “White House has asked us to look at [Irizarry] and we are doing so.” There are presently two vacancies each in the Eastern and Southern Districts. Another vacancy will open up in each district when a currently active judge takes senior status. Southern District Judge John S. Martin Jr. has notified President Bush that he will seek senior status in May, and Eastern District Judge Sterling Johnson Jr. has similarly advised that he will take senior status on June 1. If Irizarry, who was born in Puerto Rico, is appointed to the Eastern District, she would become the first Hispanic judge on that court. After Judge Johnson assumes senior status, there will be no black judges among the court’s 12 remaining active judges. Johnson was only the second black judge appointed to the Eastern District when he was named in 1991. The first, Judge Henry Bramwell, was appointed in 1974 and retired in 1987. There is also one vacancy on the 2nd Circuit, which currently has 12 active judges and 11 senior judges. At age 65, federal judges are eligible to take senior status if they have been on the bench for 15 years. Judges older than that must have a combined age and years on the bench totaling at least 80 to qualify for senior status. Judges with senior status can decide how heavy a caseload they wish to carry. There are currently 12 senior judges sitting in the Southern District and five in the Eastern District. NAMES RESUBMITTED President Bush on Jan. 7 resubmitted the nominations of two candidates for the federal district courts in New York. The nominations had lapsed at the end of 2002. He renominated Justice Sandra J. Feuerstein, who has sat on the Appellate Division, 2nd Department, since 1999, for one of the Eastern District vacancies. He also renominated Richard J. Holwell, a securities, antitrust and bankruptcy litigator and partner at White & Case, to a vacancy in the Southern District. Before being elected to the supreme court in 1987, Judge Wesley, 53, served two terms in the State Assembly from a Rochester-area district. While in the Assembly he became close with Pataki, then himself a young assemblyman. Wesley served three years on the Appellate Division, 4th Department, before his appointment to the New York Court of Appeals. STAUNCH CONSERVATIVE Wesley has been a staunch conservative on criminal issues, but less so, though still on the conservative side, in cases where individuals are asserting claims against the government, said Albany Law School Professor Vincent Bonventre, who recently completed a doctoral dissertation on the Court of Appeals. An analysis of Wesley’s voting record during his first five years on the Court of Appeals shows him in criminal cases to be “very conservative on a conservative court,” Bonventre said. The judge sided with the defense in 13 percent of the criminal cases the court decided between 1997 and 2001, while the court as a whole ruled for the defense 26 percent of the time. In civil cases involving a clash between the individual and the government, Wesley sided with the individual in 38 percent of the cases, while the court’s record was 26 percent, according to Bonventre’s study. The appointment of Wesley to the 2nd Circuit would also give Pataki an opportunity to make a fifth appointment to the New York Court of Appeal. Castel, 52, handles complex commercial litigations at Cahill Gordon, including securities and antitrust matters. He was on the Disciplinary Committee for the Appellate Division, 1st Department, for 12 years until the end of last year. He has also served on the board of directors of the Legal Aid Society since 2000. Castel has served as national counsel to W.R. Grace for its defense of property claims related to the presence of its asbestos products in buildings. He has also defended Forbes magazine in suits brought by its employees and is counsel for Corel, the Canadian maker of the word processing program WordPerfect, in a securities class action pending in Philadelphia. Irizarry, 48, held a series of prosecutorial posts, first specializing on appeals in the Bronx and then on drug cases in Manhattan, following her graduation from Columbia University Law School in 1979. Former Mayor Rudolph W. Giuliani appointed her to the Criminal Court in 1995, and Pataki appointed her to the Court of Claims in 1997. In November, Irizarry joined the firm of Hoguet, Newman & Regal as an associate. Hoguet Newman has represented Pataki as outside counsel in several cases, and one of its associates is Chief Judge Judith S. Kaye’s daughter, Luisa Kaye Hagemeier. On Friday, Pataki’s director of communications, Michael McKeon, told The Associated Press that Irizarry’s “talent and abilities speak for themselves. Anybody would jump at the chance to have someone like that as part of their team.” McKeon did not respond to a request from the New York Law Journal for comment. Several lawyers, however, said that Irizarry had a harsh manner when she was on the bench. Several courthouse sources also questioned Irizarry’s qualifications for the federal bench.

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