Academic journal article Albany Law Review

When Dad Reached across the Aisle: How Mario Cuomo Created a Bipartisan Court of Appeals

Academic journal article Albany Law Review

When Dad Reached across the Aisle: How Mario Cuomo Created a Bipartisan Court of Appeals

Article excerpt

Today, New York State stands at one of the most important judicial crossroads in its history. For only the second time ever, a single individual may have within his grasp the power to control the entire membership of the state's highest judicial institution. If current Governor Andrew Cuomo wins re-election in 2014 and returns to the Governor's Mansion for another four-year term, he will enjoy a virtually unprecedented political opportunity: the chance to appoint all seven of the judges sitting on the New York State Court of Appeals. (1)

With mandatory retirement (2) looming during the next four years for all but two of the judges presently on the Court of Appeals--the exceptions being Judge Jenny Rivera, whom Cuomo appointed to the court in January, and Judge Sheila Abdus-Salaam, whom Cuomo appointed to the court in April (3)--Andrew Cuomo will truly hold the future of the state's tribunal of last resort within his grasp. (4) Through these appointments, he will leave an impact on the state's judiciary--and, concurrently, on the entire population of New York--that will resonate for decades to come. The possibilities of what Governor Cuomo could do seem virtually endless--and, for his political opponents, appear to be downright scary. Indeed, his first appointment to the Court of Appeals, bringing the outspoken liberal scholar Rivera to the bench, rankled enough legislators that her confirmation hearings featured the most dissention seen in these proceedings in several years. (5) One can only imagine that those legislators who vehemently opposed Rivera are wondering just who else the Governor might have waiting in the wings. (6) Interestingly though, a much lighter questioning awaited AbdusSalaam, an Associate Justice of the First Department since 2009 (7)--and one with a liberal voting record on most cases (8)--when brought before the Senate Judiciary Committee. (9)

Yet in this act of judicial pottery, Cuomo will have access to a master craftsperson if he wishes to seek advice about how to mold the composition of the Court of Appeals. That political artisan is none other than his father, Mario, Governor of the State of New York from 1983 to 1994. (10) During those years, Mario Cuomo became New York's first--and, to date, only--governor to completely reshape the Court of Appeals during his tenure. (11) By the time he left office, every judge on the court's bench was a Mario Cuomo appointee. (12) And as political observers are doing now with his son, speculation about Mario Cuomo's motivations in choosing Court of Appeals judges raged rampant with every appointment. (13) In retrospect, though, Mario Cuomo's eleven Court of Appeals appointments have been largely celebrated--not only for the legal acumen of the judges whom he picked, but also for the finesse he displayed over the highly politicized process of selecting high court judges. (14) He transformed the Court of Appeals from an all-white, all-male court into an outwardly more diverse body, appointing the court's first female judge, (15) the court's first Hispanic judge, (16) and the court's first African-American judge to serve a full term. (17) He sensed the palpable fear held by many that the judicial appointment process--still extremely new in New York State--would dissolve into petty partisanship, (18) and created a Court of Appeals that was ideologically balanced: four Democrats, four Republicans, and one avowed Independent. (19) Notably, none of Mario Cuomo's successors have chosen a single Court of Appeals judge from the party opposite of their own. (20)

Despite this spirit of bipartisanship and diversity, Mario Cuomo still managed to form a Court of Appeals that often voted the way Cuomo wanted on certain key issues, such as the death penalty and due process rights of criminal defendants. (21) What's more, he established a judicial body that proved largely unafraid to reach conclusions opposite of those reached by the United States Supreme Court on important questions, asserting the state's judicial sovereignty and recognition of its own independent legal values. …

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