When dad reached across the aisle: how Mario Cuomo created a bipartisan Court of Appeals.

Author:Pomerance, Benjamin
Position:Introduction through V. The Selections: Mario Cuomo's Judicial Appointments and Their Demographic Analysis D. Replacing Judge Hugh R. Jones, p. 185-230 - New York
 
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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. (22)

Thus, it would seem that the son would do well to heed the words of his father on how to manage the power of remodeling the entire Court of Appeals. Certainly, there is every likelihood that Andrew Cuomo would listen to his father, the man who gave him his entree into state politics (23) and the person with whom Andrew, as a law student, would debate legal questions long into the night. (24) The question, though, is precisely what advice the father would give. We will never know the contents of such a conversation--if one even occurs--between former governor and current governor, father and son. This article, however, attempts to speculate on the focal points of such a talk. It begins by briefly recounting the background of Mario Cuomo himself, highlighting characteristics that may have influenced his process in selecting members of New York's high court. Next, it looks at the New York State Court of Appeals as Mario Cuomo inherited it, studying its composition at the time when Cuomo began his first term in office. We then look at the "perfect storm" of factors which allowed Mario Cuomo to instantly enjoy an unprecedented opportunity to re-make the entire court.

From there, we move to an examination of Mario Cuomo's eleven Court of Appeals appointments, studying each of them through the lens of certain criteria that may have been important to Cuomo in making these appointments, and a short study of the judicial records that these judges left during their years on the Court of Appeals. Lastly, we connect the dots to see how "balanced" the Court of Appeals really was after Mario Cuomo had finished shaping it, and look at which of these factors, if any, seemed to have been particularly important to Cuomo in making these judicial selections.

  1. THE MAN: A BRIEF PORTRAIT OF MARIO CUOMO

    The man who would become the fifty-second governor of New York was born on June 15, 1932, a New York City Depression-era child born into a family of Italian immigrants. (25) His parents owned a neighborhood grocery store in Queens, (26) a step up from the years that his father had spent digging ditches as a laborer in Jersey City. (27) The store was open twenty-four hours a day. (28) Cuomo later stated that watching his parents work in the store--and later helping them with their daily tasks--taught him the importance of a strong work ethic. (29) He also said that by observing his family members closely, he grew to understand both the joys and the struggles of immigrant life in America:

    Though not an immigrant myself, I saw the hardships Italian immigrants had to endure. I saw their struggle to make themselves understood in an alien language, their struggle to rise out of poverty, and their struggle to overcome the prejudices of people who felt superior because they or their ancestors had arrived earlier on this nation's shores. As an Italian American, I grew up believing that America is the greatest country on earth, and thankful that I was born here. But at the same time, I have always been intensely proud that I am the son of Italian immigrants and that my Italian heritage helped make me the man I am. (30) To this day, Cuomo remains fiercely proud of his Italian-American heritage, frequently speaking about the influence of his Italian upbringing and about the challenges that Italian immigrants have faced in the United States. (31) His zeal for this topic extends into his stance on immigration policy in general, a strong left-wing viewpoint characterized by objections to what Cuomo considers the "unfair stereotyping" of immigrants in modern-day America. (32)

    Cuomo earned his bachelor's degree from St. John's University in 1953. (33) He then entered law school at St. John's, graduating first in his class in 1956. (34) From there, he went on to clerk for New York Court of Appeals Judge Adrian P. Burke, (35) a liberal Democrat with multiple close ties to New York City political leaders. (36) It was Burke who joined with Senator Robert F. Wagner and New York City Mayor Fiorello LaGuardia to successfully advocate for a revolutionary change to the New York State Constitution: an amendment stating that "[t]he aid, care and support of the needy are public concerns and shall be provided by the state." (37) Burke may have had a lasting influence on Cuomo with regard to this principle. Throughout his life and political career, Cuomo has emphasized this concept repeatedly, stressing the importance of the state's role in improving conditions for the indigent and the underrepresented. (38)

    In the late 1960s, Cuomo made his first noteworthy impact on New York City's political and legal scene. When the city announced plans to build a new high school in the Queens neighborhood of Corona, Cuomo represented a group of sixty-nine homeowners--later known as the "Corona Fighting 69"--whose properties would have to be destroyed if the school were built. (39) After a bitter six-year battle, Cuomo and the homeowners prevailed against City Hall, avoiding condemnation orders for the vast majority of homes that were targeted for demolition. (40) Fresh off of that fight, Cuomo entered into another housing battle, appointed by New York City Mayor John Lindsay in 1972 to mediate a dispute over plans to build low-income public housing in the affluent neighborhood of Forest Hills. (41) His work in bringing this conflict to resolution caught the attention of New York City political bosses, (42) who were impressed both by Cuomo's diplomacy and by his ability to stand firm in the face of intense criticism. (43) Some commentators labeled Cuomo's work in the Forest Hills housing dispute as the event that launched the future governor's political career. (44)

    In 1974, Cuomo entered his first major race for state office, running for lieutenant governor. (45) He lost soundly in the Democratic primary. (46) When Democrat Hugh Carey...

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