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New York Court Of Appeals Back On Track, After Lengthy Vacancies

Albany, NY

For the first time in months, the state’s highest court has all seven judges on the bench, now that the State Senate has confirmed Governor Andrew Cuomo’s two newest choices on the court.

The confirmation of Judges Eugene Fahey and Leslie Stein sailed through the State Senate, after Governor Cuomo put off announcing his choices, and the Senate delayed scheduling hearings, despite state laws requiring that vacancies on the court be filled promptly.

Albany Law School professor and court expert Vince Bonventre says Cuomo has now chosen the majority of the judges on the court, replacing some of the more conservative and moderate judges appointed by former Governor George Pataki. He says the ideology of the court is shifting.

“You have a very strong tilt toward the liberal democratic side,” Bonventre said.

Bonventre analyzed the decisions by Judges Stein and Fahey when they were on mid level appeals courts, and found they often lean toward defendants rights, but are hard on those who abuse women and children. Judge Fahey is also strict with public officials who commit crimes. Judge Stein tends to side more with state and other government agencies in many cases.

“We’re not talking about Ruth Bader Ginsberg, we’re not talking about Elena Kagan,” said Bonventre, who says based on previous opinions, he’d characterize the new judges as “moderately liberal.”

But Bonventre says the long delay in naming the judges and then confirming them had negative consequences. Two cases in January will be reheard, because four of the five judges on the court could not agree on a decision. Two other  cases were rescheduled because judges had to recuse themselves, due to potential conflicts of interest, and there was not a quorum of judges to hear the cases. He says that is inexcusable.

“It sets a terrible precedent,” he said. “In the future, the Governor or the Senate, for tactical reasons, for strategic reasons, they might as well just disregard the law if it’s going to give them some leverage.”

Governor Cuomo said last fall he wanted to delay announcing his choice for one of the posts because it was close to Election Day and he did not want to make it a political decision. The governor eventually passed over a Republican who was up for reappointment in favor of a Democrat. The Senate did not give a reason for delaying the confirmation hearings.

Judge Fahey and Judge Stein join two other judges that Cuomo has previously appointed, and two others still on the bench, who were originally appointed by former Governor Pataki.

Before the end of the year, Cuomo gets his biggest chance yet to shape the future of the court. Chief Judge Jonathan Lippman, appointed by former Governor David Paterson, reaches the mandatory age of 70, and will retire. 

Karen DeWitt is Capitol Bureau chief for New York State Public Radio, a network of public radio stations in New York state. She has covered state government and politics for the network since 1990.
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