By John Caher, New York Law Journal
ALBANY – Will Gov. Andrew Cuomo seize the chance to return the Court of Appeals to Democratic control, even if it means denying reappointment to a widely respected Republican judge?
That’s the question legal observers are asking as the governor faces a pre-election obligation and opportunity that could define his approach to high court appointments.
Wednesday afternoon, the Commission on Judicial Nomination presented Cuomo with seven candidates for the seat held by Senior Associate Judge Victoria Graffeo for the past 14 years.
The list includes Graffeo, a Republican appointed by GOP Gov. George Pataki in 2000, and six Democrats: Appellate Division justices Leslie Stein and Eugene Fahey of the Third and Fourth departments, respectively; Daniel Alter, general counsel of the state Department of Financial Services; Preeta Bansal, visiting scholar at Harvard Law School and senior legal and policy adviser at the MIT Media Lab; Maria Vullo, a partner at Paul, Weiss, Rifkind, Wharton & Garrison; and Rowan Wilson, a partner at Cravath, Swaine & Moore.
Cuomo must wait 15 days before selecting from that list, and must make a decision within 30 days, which means the governor will announce his choice in the final weeks of his re-election campaign.
Although polls suggest the Democratic governor will easily defeat the Republican nominee, Rob Astorino, and secure a second term, the potential implications of the Graffeo position are not lost on political pundits. It is an open question whether the governor would appease his own party faithful by replacing Graffeo with a Democrat, or come off as a political opportunist if he rejects a judge who is respected by the legal community.
So far, Cuomo has turned to Democrats to fill two other positions on the Court of Appeals, with the appointments last year of judges Jenny Rivera and Sheila Abdul-Salaam. But since Rivera and Abdus-Salaam replaced other Democrats—Carmen Beauchamp Ciparick, who retired, and Theodore Jones, who died—their appointments did not change the political balance of the court; Republicans maintain a 4-3 advantage.
But with the Graffeo seat, Cuomo will have an opportunity to relegate the remaining Republican appointees of Pataki to the minority for the first time in several years.
Some court watchers say Cuomo could essentially have his cake and eat it too by reappointing Graffeo now, garnering whatever political benefit there may be in appearing non-partisan in his judicial selections, and then using his next appointment, which comes at the end of the year, to restore Democratic control. Judge Robert Smith, a Republican appointee of Pataki, has reached the mandatory retirement age of 70 and, unlike Graffeo, cannot seek reappointment. Graffeo is 62.
“I think he has virtually nothing to lose by reappointing Judge Graffeo, and I think he has a lot to lose if he doesn’t reappoint her,” said Albany Law School Professor Vincent Bonventre, a long time court observer and commentator. “First of all, he will lose a really fine judge. I don’t care if you are a court watcher who is a Democrat or Republican or liberal or conservative, everybody knows Judge Graffeo is a phenomenal judge. By all accounts she is extremely hard working, and she is very, very bright.”
State Senator John Bonacic, R-Mount Hope, chairman of the upper chamber’s Judiciary Committee, said that while all the nominees are apparently qualified, Graffeo is the obvious pick. Whomever Cuomo selects will need to go through Bonacic’s committee for a confirmation hearing prior to a vote of the full Senate.
“The judicial nomination commission has again set forth a list of qualified candidates,” Bonacic said in an email. “However, for this vacancy, I think the exemplary choice would be to reappoint” Graffeo “based on her experience on the bench, her temperament, and her reputation as an outstanding jurist.”
So far, Cuomo, like his predecessors David Paterson, Eliot Spitzer and Pataki, appointed only candidates of their own party. But Cuomo’s father, Mario Cuomo, now of counsel to Willkie Farr & Gallagher, earned accolades for reaching beyond political lines.
The elder Cuomo left a court of three Democrats, three Republicans and one independent, and had even elevated a high-profile member of the opposition party, Sol Wachtler, to chief judge. Mario Cuomo’s willingness to appoint Republicans to a court where he had clerked as a young lawyer did not harm him politically, and in fact seemed to garner admiration, Bonventre said.
“I think if the current governor isn’t willing to put a Republican on the court, the contrast between him and his father will be pretty clear,” Bonventre said. “People always point that out about Gov. Mario Cuomo and that some of the very best judges on the Court of Appeals in the last generation were the Republicans he appointed: Howard Levine, Richard Simons, Stewart Hancock and [Wachtler].”
Bernard Malone Jr., a former justice of the Appellate Division, Third Department, said the governor couldn’t go wrong by reappointing Graffeo, despite her party membership.
“I would be surprised if any of the other six have as broad and varied legal background,” said Malone, now a senior counsel at Whiteman Osterman & Hanna. “She was with an excellent Albany law firm, she as an assistant attorney general, she was counsel to the state Assembly, she was solicitor general, she was a trial justice, an appellate justice and has been on the Court of Appeals for 14 years. There are no other candidates who have nearly as many published opinions and decisions as she does,” Malone said, adding that “she is a wonderful human being.”
Malone, a registered Republican, said the political affiliation of a judge is irrelevant and should not factor into the equation.
“I have never heard of any of the current or past judges of the Court of Appeals being political or issuing a decision based on their party affiliation,” Malone said.
Roy Reardon, a partner at Simpson Thacher & Bartlett, and Law Journal columnist who has written about the court for many years, said Graffeo is a “gifted judge who deserves reappointment.” Reardon is a lifelong Democrat.
“She is not politically motivated, not philosophically dominated by any theme and is just a perfect judge,” Reardon said. “She is always ready, gentle in dealing with counsel, has a great manner and writes well. You can’t duplicate that, and I think she is deserving of reappointment.”
Control of the Court
In legal circles, the Graffeo decision is being monitored closely as a possible harbinger of this governor’s perspective on judicial appointments. If re-elected, Cuomo will have an opportunity no governor except his father ever had, the chance to appoint all seven judges of the highest court in the state.
John Dunne, senior counsel to Whiteman Osterman & Hanna in Albany and a former state lawmaker, said Cuomo and the court would benefit from Graffeo’s reappointment.
“All of the other six are highly qualified, but I would hope the governor would favor the incumbent,” said Dunne, who served in the Legislature as a Republican senator from Long Island for 23 years. “She is really terrific and has really grown in the job.”
Dunne said Cuomo’s father, who was governor during many of the years Dunne was in the Senate, exhibited “great statesmanship” in reaching across the aisle to place Republicans on the high court, and said he hopes to see similar magnanimity from the son.
But Mathew Tully, founding partner of Tully Rinckey, said he views Graffeo as a long shot. He said the incumbent does not fit the progressive mold of Cuomo’s two other appointees, Rivera and Abdul-Salaam. Tully suspects the governor will be under pressure from the left wing of his party to go with a more liberal judge rather than Graffeo, whose voting record is decidedly mainstream conservative.
“I would be very surprised if he reappoints a Republican judge,” Tully said. “I think she is a very good judge, and she will have a spot in my law office if she isn’t reappointed. She is a fabulous attorney. Unfortunately, I think this is an opportunity for Cuomo to put his stamp on the court, and I think he will do that.”
A Manhattan litigator who frequently appears before the Court of Appeals agrees with Tully’s assessment.
“She is just too good to pass up,” the lawyer said. “But I think there is no way [Cuomo] will reappoint her. I just don’t think he will give up the chance to promote a judge of his own making. He is a governor who wants to exercise power, and controlling the Court of Appeals, or thinking you can control the Court of Appeals, is way of doing that.”
The list from which he must choose is generally diverse, with two sitting judges, two partners wo are with major Manhattan law firms, a government attorney and an academic.
It includes candidates from upstate and downstate, as well as representatives from the minority communities. One candidate is black, another is of Indian descent and one is openly gay. The list also includes an Italian American woman, Maria Vullo, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, who worked for Cuomo when he was attorney general.
Some observers speculate that Cuomo, whose ancestors were Italian, could be inclined to replace the only Italian American on the bench with Vullo.
The court has continuously had at least one Italian-American judge since 1985 and, except for three years since 1972. That brief lapse between judges Dominic Gabrielli and Vito Titone was a sore spot in the Italian community, and with Mario Cuomo, who appointed Titone. Since Titone joined the court in 1985, there has always been at least one judge with Italian roots.
According to a press release distributed by the commission, which is chaired by former Chief Judge Judith Kaye, 32 potential nominees applied for Graffeo position. Twenty one had applied for prior openings, and 16 were granted interviews. Of those selected for interviews, seven, or 43 percent, were women, and three, or 18 percent, were ethnic minorities.
“I am gratified at the extraordinary quality and diverse backgrounds of our applicants,” Kaye said in a statement. “That so many exceptional candidates were motivated to apply demonstrates the remarkable strength and depth of the legal profession in the state of New York.”
A spokesman for Cuomo said the administration is reviewing the list. The governor is legally required to announce his selection, subject to Senate confirmation between Sept. 18 and Oct. 3.