The New York Court of Appeals: A Triumph of Merit Selection

During this period, three judges tragically passed away and three resigned before their terms expired. Six also departed upon expiration of their terms. None of the judges from the 2012 Court remains on the bench.

As a result of this turn-over, from 2012 to the present, the New York State Commission on Judicial Nomination has produced 12 lists of nominees from which Governors appointed to the Court of Appeals 11 associate judges and two chief judges—an unprecedented level of nomination and appointment in so compressed a time period.

The framers of these provisions sought to eliminate partisan politics from the process and preserve the independence of the judges of the court. To this end, the state constitution establishes the Commission on Judicial Nomination with the duty to recommend to the governor persons who reflect the diversity of New York's citizenry and are among the state's most highly qualified and accomplished judges, practicing lawyers and legal scholars. The constitution requires that the governor choose judges only from the commission's nominees, with the advice and consent of the Senate.

The commission is composed of 12-members appointed on a multi-partisan basis. Appointees are divided evenly among the three branches of government. Four are chosen by the governor and chief judge of the Court of Appeals. The legislative leaders of the Senate and Assembly, both majority and minority, each appoint one member.

Over 44 years, on 36 occasions, the Commission has fulfilled its mandate by nominating to the governor a small number of carefully considered candidates to fill vacancies on the Court. Only once has a gubernatorial appointee been rejected by the Senate, and, in that instance, no question was raised as to the appointee's qualifications.

Turning to the present Court of Appeals, much has been written and said about its ideological orientation—a constitutionally irrelevant factor for the commission. Some commentators are wont to affix political labels to the judges of the court. Often this increasingly common and unfortunate practice lacks nuance and context.

But what is not debatable is that the full complement of seven judges represent, collectively, the most diverse, highly credentialed cadre in Court of Appeals history.

The court now has four women, two African Americans, two Hispanics, an Italian American, a Greek American and an LGBTQ person. It is geographically diverse, too, with judges residing across the state.

The judges' academic credentials are impeccable. The court includes graduates of Columbia University, Fordham University School of Law, Georgetown University Law Center, Harvard Law School, New York University Law School, Princeton University and Albany Law School.

Likewise impressive are the judges' professional backgrounds and life experiences. Five served in elite clerkships early in their careers: Anthony Cannataro for a judge of the Court of Appeals (Hon. Carmen Beauchamp Ciparick); Michael J. Garcia for a judge of the Court of Appeals (Hon. Judith S. Kaye); Caitlin J. Halligan for a judge of the U.S. Court of Appeals for the District of Columbia (Hon. Patricia Wald) and a justice of the U.S. Supreme Court (Hon. Stephen Breyer); Jenny Rivera for a U.S. District Court judge who later became a justice of the U.S. Supreme Court (Hon. Sonia Sotomayor); and Rowan D. Wilson for the chief judge of the U.S. Court of Appeals for the Ninth Circuit (Hon. James R. Browning).

All seven judges distinguished themselves in a variety of settings and practice areas, including the bench, public interest law, private practice, government service and academia.  Specifically:

• Two were previously judges (Cannataro and Troutman).
• One was a public interest lawyer and tenured law professor (Rivera).
• Three were partners at "blue chip" law firms with nationwide practices (Garcia and Halligan and Chief Judge Wilson).
• Three served in high level executive branch positions (Garcia, Halligan and Rivera).
• Four were prosecutors, including a U.S. Attorney for the Southern District of New York (Garcia), District Attorney for Nassau County (Singas), counsel to the Manhattan District Attorney (Halligan), and an assistant district attorney in Erie County (Troutman).
• Three worked in the Office of the New York State Attorney General (Halligan, Rivera and Troutman).
• Two worked in the U.S. Department of Justice (Garcia and Troutman);
• One worked in the New York City Law Department (Cannataro).
• Three previously held elected office (Cannataro, Singas and Troutman).

Of the three newest judges on the court, Halligan was Solicitor General of the State of New York; Troutman served for nearly 30 years at all levels of the state judiciary, including the Appellate Division; and Cannataro was a seasoned trial court judge and court administrator, selected by his colleagues on the Court of Appeals to serve as acting chief judge following the resignation of Chief Judge Janet DiFiore.

Not many high state courts in the nation can boast as diverse and well credentialed a collection of jurists as the New York Court of Appeals. The U.S. Supreme Court cannot match it.

True, the Court of Appeals lacks a judge with substantial experience representing criminal defendants. Other demographic and professional backgrounds are also not currently represented. For example, none of the judges are of Asian-American descent, Jewish or Muslim.

That said, the current court is a triumph of the merit selection process that New Yorkers voted for in 1977. The process has produced seven judges with diverse backgrounds, vast experience, and exceptional credentials.

More, New York's merit selection process is a proven bulwark against mounting threats to judicial independence and the legitimacy of our judicial institutions. We have been spared the spectacle of divisive, expensive and potentially corrupting elections, as we have seen elsewhere. We also have a Court of Appeals that is not perceived as a partisan political actor, like the U.S. Supreme Court is increasingly seen (fairly or not) across the nation.

One can always find new ways to do hard things better. Longstanding processes can and should be reexamined and improved with the benefit of experience and informed opinion. But any proposed reform to the method for selecting judges of the Court of Appeals must not compromise or undermine the purposes for which the Commission on Judicial Nomination was created.

New Yorkers can and should take pride in their Court of Appeals. So, too, the Commission on Judicial Nomination that has nominated highly qualified candidates for more than four decades.