What 'tough on crime' looks like: how George Pataki transformed the New York State Court of Appeals.

Author:Pomerance, Benjamin
Position:Introduction through V. The Appointments: Reviewing Governor Pataki's Appointments to the New York State Court of Appeals C. Replacing Judge Joseph W. Bellacosa, p. 187-236

    On November 1, 1995, Governor George E. Pataki fired a warning shot at the New York State Court of Appeals. (1) "They are creating their own rules," the state's Chief Executive declared of New York's highest judicial body. (2) "The Court of Appeals has gone too far." (3) Later, he went on to pin his disgust on a specific body of the court's caselaw: rulings that overturned criminal convictions solely because the defendant was denied one or more protections that Pataki considered mere technicalities. (4) "These are just irrational, mindless, procedural safeguards--not for those who are wrongfully charged but for criminals who can get off," the Governor announced. (5) To Pataki, a court comprised of judges chosen solely by his predecessor in the Governor's Mansion, Mario Cuomo, was simply "coddling" criminals, returning dangerous individuals to the streets of New York to prey on more innocent victims. (6)

    Certain recent decisions drew particular ire from Pataki on that day. People v. O'Doherty, (7) a 1987 ruling requiring the prosecution to disclose any confessions or identifications to the defense, was "inflexible." (8) People v. Ranghelle, (9) demanding reversal of criminal convictions when a witness's prior statement was not disclosed, presented a terrible outcome in Pataki's opinion. (10) A set of cases guaranteeing a defendant the right to be present for all criminal proceedings perpetrated a gross misconstruction of the law. (11) Not only were the decisions wrong, Pataki argued, but their radical degree of inaccuracy was unprecedented among the entire nation. (12) "Over the course of the past decade, we have seen a network of law evolve from the Court of Appeals that is very different from the rest of the country," he concluded. (13) "Many of these rules are only rules in New York state. The other 49 states have a common-sense system of justice." (14)

    It would not be the last time that Pataki took aim at the Court of Appeals. On multiple subsequent occasions, he vigorously condemned the judges whom the more liberal Cuomo brought to the bench. (15) Other high-ranking New York officials soon joined in his fight. New York City Mayor Rudolph Giuliani, for instance, echoed Pataki's derision toward the court's decisions in criminal cases. (16) New York State Attorney General Dennis Vacco did the same. (17) New York City Police Commissioner William J. Bratton publically pronounced that the Court of Appeals created "phenomenal burdens for our police" and was full of judges who were "living off in Disneyworld somewhere." (18) New Yorkers would be better off, Bratton argued, if the state's courts marched in lockstep with the United States Supreme Court's holdings in criminal cases "rather than the screwball system that we have in this state with the screwball Court of Appeals that we have in this state." (19)

    During that press conference in 1995, however, Pataki made it clear that he did not plan to influence decision making at the Court of Appeals, despite focusing his remarks on their methods of deciding criminal cases. (20) Instead, he turned his attention to a different branch of the state's government. (21) "[I]t is 'not my intention to criticize the Court of Appeals,"' he said. (22) "It is our intention to solve the problem and the way to solve the problem is to pass [new laws]." (23) Subsequently, Pataki would attempt to do precisely that, even proposing legislation that would prohibit the Court of Appeals from using the New York State Constitution when deciding whether to suppress evidence obtained by police in criminal investigations. (24) Such a measure would have forced the Court of Appeals to follow only federal law, and the United States Supreme Court's interpretations of that law, in deciding these cases. (25) One of Pataki's spokespeople, Michael McKeon, tried promoting the bill as a way to keep the Court of Appeals from "making law" in its criminal decisions. (26) Unquestionably, however, Pataki's bill shocked plenty of observers, as it proposed a complete about-face from New York's deeply rooted traditions of state constitutional independence. (27)

    Beyond promoting such radical changes in the law, however, Pataki seemed to have little hope of influencing the Court of Appeals in 1995 and 1996. (28) During his tenure as governor, Mario Cuomo had completely reshaped New York's court of last resort, making an unprecedented eleven appointments to the court's bench. (29) He left office with most of his appointees near the beginning of their fourteen-year terms and relatively far away from the court's mandatory retirement age of seventy. (30) Consequently, Pataki appeared to be stuck with virtually all of Cuomo's choices. Only one vacancy was slated to occur during his first term: Richard D. Simons, a conservative Republican who was one of the court's most prosecution-friendly judges in criminal cases. (31) Thus, even this one opportunity to wield the power of appointment would produce little momentum toward Pataki's goal of a more "tough on crime" court. (32)

    The ultimate outcome, however, was something far different than Pataki ever could have dreamed in 1995. Winning two more gubernatorial elections, he wound up serving twelve years in Albany, remaining in the Governor's Mansion until 2007. (33) During this time, he appointed six judges to the Court of Appeals. (34) His overall influence over the membership of the state's highest court was second only to Mario Cuomo himself. (35) And today, with Pataki appointees forming the majority of the court's current membership, there is no question that the legacy of New York's fifty-third governor continues to leave a weighty impact on the daily lives of New York State citizens. (36)

    The lingering question, though, is how Pataki utilized that tremendous power to reshape the Court of Appeals. Certainly, his public remarks demonstrated a desire for judges who would be less "lenient" on defendants in criminal cases. (37) Even so, however, evaluating whether a particular jurist is "tough on crime" is hardly a uniform process. Various value judgments could factor into the equation of whether an individual was likely to vote the way that Pataki favored in criminal cases. Additionally, if faced with the candidacy of two or more historically pro-prosecution candidates, Pataki would need to utilize other factors to break the tie and make a selection. Lastly, there is the possibility that pro-prosecution inclinations in criminal cases may not have been the dominant factor--or even a factor at all--in every Pataki appointment to the Court of Appeals. If this were the case, then new queries arise about what factors rose to the top in the selection process, and new speculations could emerge as to why.

    "There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action," wrote Judge Benjamin Cardozo in 1921. (38) Commentators frequently cite this perceptive passage when discussing trends in the voting records of appellate court judges, noting that a judge's tendency to vote a certain way in certain types of cases likely reflects a key aspect of that jurist's closely held values and beliefs. (39) The same principle, however, holds true for the executive branch officials who appoint these judges to the bench. By studying common factors among the judicial selections of a particular leader, one can reasonably gain a window into the leading principles, objectives, and ideals of that individual. Of course, the process is not foolproof, and one must always be wary of butterfly effects when examining the trends contained within any set of appointments data. On the whole, however, the process tends to be rather revealing, pulling back the curtain on what the leader in question considered most important (or was counseled by his or her advisors to consider most important).

    Finally, there is an additional motivation to studying this particular governor's Court of Appeals appointments. Today, "tough on crime" rhetoric appears to be more common than ever when it comes to both electing and appointing judges. (40) A thirst for pro-prosecution jurists appears to be a calling card for a substantial number of elected officials. (41) However, merely professing to appoint judges who will not show leniency toward criminals avoids the deeper questions of what, precisely, a "tough on crime" judge looks like and how a "tough on crime" judge acts. Through the lens of Pataki's Court of Appeals picks, we can glean an understanding of how, at least for this one individual, a pledge to appoint "tough on crime" judges factored into his judicial selection process. By doing so, we can gain a sense of how objective or subjective this phrase really is and how other factors may lead to unexpected decisions by an executive vowing to ensure that criminals receive their just deserts.

    Part II of this article briefly looks at Pataki himself, focusing on major events that appear to be key features in shaping his life and political career. Part III studies the Court of Appeals as Pataki inherited it, looking at its composition at the time when the new governor began his first term in office. Part IV describes the factors used here to study possible rationales behind each of Pataki's Court of Appeals selections. Part V examines Pataki's six appointments to the Court of Appeals, studying each by highlighting and evaluating certain factors that may have been important to Pataki at the time of making each selection. Lastly, Part VI connects the dots among these six picks, determining whether any common attributes or characteristics existed among Pataki's six Court of Appeals appointments, and, in so doing, possibly gaining a sense of what Pataki's vision of "tough on crime" looked like.


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