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

• Author: Pomerance, Benjamin
• Position: V. The Selections: Mario Cuomo's Judicial Appointments and Their Demographic Analysis E. Replacing Associate Judge Wachtler through VI. The Trends, with footnotes, p. 230-270 - New York

5. Replacing Associate Judge Wachtler

   After appointing Wachtler to become Chief Judge, Cuomo now needed to fill the vacant associate judgeship left behind by Wachtler's promotion. The short list presented to him by the Commission this time was back to the standard seven names. (300) Again, it was entirely white and entirely male. (301) It was also comprised entirely of repeat players, familiar names on this list of finalists: Professor Hogan from New York University, Howard Levine from the Third Department, Leon D. Lazer and Richard A. Brown from the Second Department, Joseph P. Sullivan from the First Department, and Neal P. McCurn from the Northern District. (302) All but one of them had appeared on the previous short list. (303)

   Yet Cuomo's nominee was that one outlier, a judge who had not been on the short list since 1983: Vito J. Titone from the Second Department. (304) This was an appointment that many court watchers expected Cuomo to make the first time that Titone's name appeared on the list, leading to some surprise when Cuomo chose the conservative Richard Simons instead. (305) Titone was both personally and philosophically close to Cuomo. (306) The two men had been classmates at St. John's together, frequently going out on "double dates" with the women who would eventually become their wives. (307) Like Cuomo, (308) Titone was an Italian-American who was born and bred in New York City, the son of immigrant parents. (309) He was also a Roman Catholic, just like Cuomo. (310) And ideologically, he appeared to be virtually a carbon copy of Cuomo: pro-defendant, opposed to the death penalty, sensitive to the struggles of marginalized populations, and the like. (311) Furthermore, he had by this point garnered a reputation as one of the most respected and empathetic judges on New York's Appellate Division. (312) His age also worked in his favor, for at age fifty-five, (313) Titone would be on the court for a guaranteed fourteen-year term, barring any unforeseen events.

   Thus, Cuomo's decision to nominate Titone was not a surprising one, although it did annoy some commentators who may have felt that Wachtler's vacancy should have been filled by a Republican. (314) By appointing Titone, the court gained a judge with the following demographic characteristics:

   Race: White

   Gender: Male

   Religion: Roman Catholic

   Heritage: Italian

   Political Affiliation: Democrat

   Predecessor's Political Affiliation: Republican

   Region: Downstate (New York City)

   Age: Fifty-five

   Prior Judicial Experience: Yes, both as a trial judge (1969 to 1975) and on the Second Department (1975 to 1985) (315)

   Previously On Short List: Yes, once

   Friendship Factors: Absolutely: Cuomo and Titone were such close friends that when Cuomo called to offer Titone the nomination, he spoke first to Titone's wife, jokingly asking her if she would like "to get rid of [her husband] by sending him to Albany." (316)

   Judicial Record/"Pet Causes": Over the course of more than 150 Appellate Division opinions, Titone became known as a defender of the rights of the accused in criminal cases (317) and as a defender of minority rights in Equal Protection cases. (318) He also was known to be adamantly against lengthy terms of incarceration for non-violent crimes, a stance that originated in his trial court work. (319)

   Within a couple of years, Titone had clearly become the leader of the liberal wing on the Court of Appeals. (320) His decisions were not exclusively liberal, as evinced by his opinion in a case where he refused to extend free speech protections to a privately owned shopping mall, holding that members of the New York Civil Liberties Union could not pass out political pamphlets there. (321) Yet his votes on criminal cases were dominantly pro-defendant, holding firm while the court moved to the right under Wachtler. (322) This was especially true in cases where Titone believed that the government had unduly invaded the privacy that, in his view, New York citizens had reasonably come to expect. (323) Protection of children also proved to be another area of the law in which Titone held particularly strong views. (324) He also consistently displayed a willingness to depart from U.S. Supreme Court precedent in cases where he felt the New York State Constitution granted a higher level of protection than what was afforded under federal law. (325)

   Titone served for all but one year of his fourteen-year term, retiring from the court in 1998. (326) By this time, George Pataki was governor, engaging in a public war of words with Titone over the proper function of courts, accusing the Court of Appeals of using technicalities for the purpose of "protecting the guilty and not the innocent." (327) Yet Titone emphatically told the press that the battles with Pataki had no bearing on his decision to retire a year before his term ended. (328) "I'm leaving now because I'm healthy now," he told The New York Times, "and [thirty] years is a long time to be a judge." (329)

6. Replacing Judge Matthew Jasen

   With Judge Matthew Jasen forced into mandatory retirement after celebrating his seventieth birthday in 1985, Cuomo was able to make his fourth Court of Appeals nomination in the span of just one year. (330) Once again, the Commission presented him with a short list filled with familiar faces: Bronx County Surrogate Bertram Gelfand, First Department Justice Joseph Sullivan, Third Department Justice Howard Levine, New York University Professor William Hogan, and Fourth Department Justice Stewart Hancock. (331) The lineup also included a new female candidate, New York City attorney Carolyn Gentile, and a new academic candidate, Albany Law School Dean Richard J. Bartlett. (332)

   Conspicuously absent, however, was Michael F. Dillon, a Democrat who was serving as the Presiding Justice of the Fourth Department. (333) Many observers believed that Dillon would be a logical choice to replace Jasen on the Court of Appeals. (334) Without Dillon on the list, however, Cuomo went ahead and nominated another member of the Fourth Department: Stewart F. Hancock, Jr. (335)

   Hancock was a somewhat surprising choice, primarily because he was a Republican appointed by a Democratic governor to replace a judge who was a Democrat. (336) By this point, however, Cuomo had demonstrated that he was not adverse to such moves. (337) Conceivably, after the appointment of his liberal friend Vito Titone, Cuomo may have believed that selecting a more conservative judge was necessary to balance the court. (338) Hancock also was Cuomo's first selection of an upstate judge since the appointment of Simons in 1983, another factor which Cuomo potentially may have taken into account. Additionally, Hancock had developed a solid reputation throughout New York State as both an attorney and a judge. (339) Known as a level-headed and pragmatic jurist, he may have seemed to be a "safe" pick for Cuomo to make. (340)

   Hancock brought with him the following demographic characteristics:

   Race: White

   Gender: Male

   Religion: Presbyterian (341)

   Heritage: British

   Political Affiliation: Republican

   Predecessor's Political Affiliation: Democrat

   Region: Upstate (Syracuse)

   Age: Sixty-three

   Prior Judicial Experience: Yes, both as a trial judge (1971 to 1977) and an Associate Judge on the Fourth Department (1977 to 1986) (342)

   Previously On Short List: Yes, twice

   Friendship Factors: No obvious link to Cuomo

   Judicial Record/"Pet Causes": Viewed as a moderate conservative, willing to vote with liberals on certain issues, particularly on matters involving personal privacy (343)

   On the Court of Appeals, Cuomo may have been pleasantly surprised to find Hancock a more liberal voice than many anticipated. (344) Court observers noted that Hancock tended to vote with liberals Titone and Kaye more often than he voted with the court's conservatives. (345) This was particularly true for cases regarding the due process rights of criminal defendants. (346) He also became known as a defender of free speech and free expression rights for New Yorkers. (347) And he grew to be quite outspoken about the independent role of state constitutions in state court adjudication. (348) When he reached mandatory retirement age just eight years into his term, he was forced to leave the bench at a time when many believed he was just beginning to reach the zenith of his judicial life. (349)

7. Replacing Judge Bernard S. Meyer

   By 1986, Judge Meyer was the last remaining member of the court not to be appointed by Cuomo. (350) A replacement became necessary for him by the end of that year, however, as Meyer had reached mandatory retirement age. (351) And once again, the Commission sent Cuomo a list lined with familiar names: Second Department Justice Richard Brown, Third Department Justice Howard Levine, Southern District Judge Joseph McLaughlin, New York University Professor William Hogan, and private practitioner Carolyn Gentile. (352) Two new finalists also joined this list: New York Law School Dean Norman Redlich--marking the first time that two academics had been on one short list--and New York State's Chief Administrative Judge, Joseph Bellacosa. (353)

   Cuomo told the media that he agonized over the decision of who should replace Meyer. (354) Yet his ultimate choice of Joseph Bellacosa did not come as any shock to observers. (355) Like Titone, Bellacosa was a close friend of Cuomo, again dating back to connections at St. John's Law School. (356) A New York City-born Catholic Italian-American, Bellacosa's background was virtually identical to Cuomo's upbringing. (357) The paths of the two men had intersected in state government, too, with Cuomo becoming Secretary of State at the same time Bellacosa became Chief Clerk of the Court of Appeals. (358) In terms of background, Bellacosa seemed in many ways like a younger version of Titone. (359)

   However, there was at least one key distinction between the two men: Bellacosa's lack of judicial experience. While Titone had...