Court Appointments Aplenty

Before August ends, Lame Duck George Pataki could give one more loud quack before waddling out of the Albany pond.

The governor must either reappoint Judge George Bundy Smith to the state Court of Appeals or replace him. This is New York State’s highest court. Smith is an appointee of long-ago Democratic governor Mario Cuomo. So Republican Pataki could leave a little more of a conservative legacy with the court appointment if he wants.

But folks… that’s nothing compared to what Pataki’s successor could do in realigning the state’s top court. And if you want to see some kind of major state government reform… a redefinition of state economic regulations… changes to the state’s school aid formula – there may be no bigger issue in this gubernatorial campaign than how candidates might choose judges for the high court.

The terms of no less than three members of the seven-person court will expire in the first 18 months of the next governor’s tenure. That includes that of the chief judge, Judith Kaye. Gannett Albany reporter Yancey Roy pointed out that these departures represent the more liberal wing of the court (Kaye and Judge Carmen Ciparick) and a moderate judge considered a swing vote (Albert Rosenblatt).

Imagine a U.S. President with such a guarantee to impact the roster of the U.S. Supreme Court – and you get a sense of how important this might be for a Governor Spitzer, Governor Faso or Governor Suozzi.

Let’s face it, the policy-making power of government is partly in the creation of laws (what the legislature does) and partly in their interpretation – the province of the courts. Often that interpretation is everything. As my Center for Governmental Research colleague, Kent Gardner, wrote in the Rochester Business Journal last month, the Court of Appeals spent much of the last century adding meaning to New York’s Scaffold Law. This is the law that gives employers in the construction trades some responsibility for those injured in falls on work sites. Rulings by the highest court created an absolute liability standard for employers. In a series of opinions beginning in 1997, they have acknowledged that previous rulings went well beyond what the legislature had actually enacted.

Witness some of the other places where Court of Appeals rulings have had far-reaching policy effects:

• The Campaign for Fiscal Equity case, where some advocacy groups committed to getting more state aid funneled to New York City schools sued the state. The claim was that the level of school aid by the state to New York City failed to meet the state constitutional standard requiring a sound basic education for all children. The Court of Appeals agreed with the ruling and is now compelling the state to come up with billions of additional dollars. A court decision that, basically, alters the state’s policy on funding education.
• Redistricting. Back in the early 1990’s, the Court of Appeals overturned a lower court ruling that said the redistricting plan for the state Senate violated the State Constitution’s requirement that voting districts be contiguous and compact. Check out a few of the current districts (here and here) to see what that has wrought.
• A slew of social issues. Last month the court rejected the notion that the State Constitution requires recognition of same-sex marriage. It also ruled that the state’s death penalty statute was unconstitutional.

That should convince you about the importance of these judges and, more to the point, the power that can come with selecting the members of the high court.

It’s interesting to note that the governor has only appointed the Court of Appeals judges since 1977, when the voters approved a constitutional change from the practice of electing those judges. Thus relatively few governors in New York’s history have had an opportunity like this to influence the state’s highest court.

Of course, rationale behind the 1977 change was to remove politics from the Court of Appeals. And with their selections, some governors embraced this notion of “depoliticization,” as Newsday recently put it.

And so there is some question whether Pataki will also follow suit and simply reappoint the more liberal Judge Smith. Many in the GOP want Pataki to disregard this notion in order to further a more conservative Court of Appeals.

If Pataki were to reappoint Smith then the mandatory retirement age of 70 removes him in 2007 anyway. And so you could add a fourth possible vacancy that the next governor would have to fill on the court.

Anyway you slice it, this is quite an opportunity for the next governor.

It’s yet something else that voters ought to consider when pulling the lever on Election Day.