ALBANY – Governor Andrew Cuomo will select the next associate judge of the state Court of Appeals from among seven candidates, including four appellate judges and three attorneys in private practice.
The Commission on Judicial Nomination forwarded its list of candidates to the governor yesterday to fill an opening created by the death of Theodore Jones Jr. in November.
The candidates endorsed by the commission are:
• Justice Sheila Abdus-Salaam, Appellate Division, First Department (See Profile)
• Justice Eugene Fahey, Appellate Division, Fourth Department (See Profile)
• Justice John Leventhal, Appellate Division, Second Department (See Profile)
• Justice Dianne Renwick, Appellate Division, First Department (See Profile)
• David Schulz, partner, Levine Sullivan Koch & Schulz
• Maria Vullo, partner, Paul, Weiss, Rifkind, Wharton & Garrison
• Rowan Wilson, partner, Cravath, Swaine & Moore.
The candidates are all well qualified because of their "character, temperament, professional aptitude, experience, qualifications and fitness for office," the commission said.
Former Chief Judge Judith Kaye, the chairwoman of the commission, said the panel was impressed by the pool of applicants.
"That so many highly qualified candidates were interested in the current vacancy amply demonstrates the remarkable strength and depth of New York’s legal community," Kaye said in a statement.
According to the commission, there were 71 applicants for the seat. Twenty-seven (38 percent) were women; 22 (31 percent) were minorities. The commission said it interviewed 37 candidates, including 15 women and 15 minority group members. Three of the candidates are black: Abdus-Salaam, Renwick and Wilson.
Kaye has made an expansion of the diversity of the Court of Appeals candidate pool a priority since she was selected as chair of the committee in 2010 by then-Governor David Paterson.
The commission said its pool of candidates for the Jones opening was similar to that which applied last year to succeed Carmen Beauchamp Ciparick, who retired on Dec. 31. For that opening, 75 people applied, of whom 34 (47 percent) were women and 24 (32 percent) were minorities. Of the 36 candidates interviewed for Ciparick’s seat, 17 were women and 18 were minorities.
Jones was the only black on the high court of a state in which blacks make up nearly 18 percent of the population. That has led to widespread speculation that Cuomo will be under intense political pressure to nominate a black candidate (NYLJ, March 4).
Cuomo faced similar pressure when he weighed his first nomination to the court to replace Ciparick, the only Hispanic judge to serve on the court to that point. The governor chose Jenny Rivera, a former City University of New York School of Law professor who is also Hispanic (NYLJ, Feb. 13).
Justice Rolando Acosta of the First Department (See Profile), who was recommended by the commission for the Ciparick vacancy, withdrew from consideration for the Jones opening on the assumption that the position will go to a black candidate, according to sources familiar with the judge’s thinking.
Senate Judiciary Committee Chairman John Bonacic, R-Mount Hope, said yesterday his staff had already begun to vet the candidates forwarded by the commission.
But Bonacic said in a statement that he was disappointed that Acosta’s name was missing from the latest list.
"I want to note my dismay that Judge Rolando Acosta withdrew his name from consideration," Bonacic said. "He would have been a highly credible addition to the court."
The candidates will apparently also undergo more scrutiny from bar groups than prior lists.
In recent years, the New York State Bar Association has been joined mainly by major New York City-based bar groups in evaluating the candidates, leading to some grumbling that upstate bar leaders were too detached from the process.
But for this round, the New York State Academy of Trial Lawyers and the Albany and Broome County Bar associations will interview and rate the candidates, according to Michelle Stern, executive director of the academy.
Stern said that while the three groups will independently evaluate and interview the candidates, they have agreed to conduct the interviews at the same place and on the same date—March 18 at the University at Albany. She said all of the nominees have agreed to participate.
"It is important for there to be a broad geographical diversity of input," Stern said. "We think it is about time that some of the upstate bar leaders got a chance to talk to the candidates and provide input to the governor before he makes his choice. I think the upstate bars are excited to be a part of the process."
Cuomo will have between March 22 and April 6 to make his nomination, and the Senate will then have up to 30 days to confirm or reject the selection.
The Senate has never declined to confirm a nomination to the Court of Appeals since the appointment system was adopted beginning in 1979.
Cuomo’s office did not respond to a request for comment.
Of the candidates on the list released yesterday, Abdus-Salaam, Fahey and Schulz were also finalists for the Ciparick opening.
Schulz also previously made the list in 2007, when Kaye was reappointed to the Court of Appeals for the final 18 months of her term before her mandatory retirement. If selected and confirmed, he would be the first openly gay member of the Court of Appeals.
While making his choice, Cuomo for the second time will be scrutinizing the qualifications of a former subordinate.
Rivera took a hiatus from the faculty of CUNY Law to work as a special deputy attorney general for civil rights when Cuomo was A.G. Similarly, Vullo left Paul Weiss in 2010 to act as executive deputy attorney general for economic justice. Cuomo became governor in 2011.
Court of Appeals judges are appointed to 14-year terms or until the end of the calendar year in which they turn 70. A proposed constitutional amendment to raise the retirement age to 80 is before the state Legislature (NYLJ, Jan. 9).
Associate justices make $177,000 a year, though that is scheduled to go to $184,800 on April 1, 2013, under a pay increase approved two years ago.
The next scheduled vacancy on the Court of Appeals will occur in November 2014, when Judge Victoria Graffeo’s 14-year term expires.