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

• Author: Pomerance, Benjamin
• Position: V. The Appointments: Reviewing Governor Pataki's Appointments to the New York State Court of Appeals D. Replacing Judge Howard A. Levine through Conclusion, with footnotes, p. 236-268

4. Replacing Judge Howard A. Levine

   In 2002, Judge Levine became another casualty of New York's mandatory retirement age. (319) With this vacancy, Pataki faced an unusual situation: the loss of a Republican judge, but one who was somewhat more defendant-friendly than Simons or Bellacosa. (320) Despite ultimately voting for the prosecution in most of the cases that he heard on the Court of Appeals, (321) Levine did vote several times for defendants in influential decisions, particularly search-and-seizure cases. (322) He was perhaps the most unpredictable voter among Mario Cuomo's appointees. (323) And while Levine was considered an intellectual leader on the Court of Appeals, Pataki probably did not like at least one of the judge's most important cases, Francois v. Dolan, (324) in which Levine wrote the court's majority opinion against New York's capital punishment law. (325)

   With this appointment, therefore, Pataki again had the chance to move the court rightward. (326) This task immediately became tougher, however, when the Commission on Judicial Nomination presented Pataki with an unexpectedly Democrat-heavy short list. (327) Trial court judges Helen E. Freedman, L. Priscilla Hall, and James A. Yates were all Democrats. (328) Although all three had amassed respected judicial records on their respective benches, all three seemed too liberal for Pataki's liking--particularly Freedman, who fought publically with New York City Mayor Rudolph Giuliani about the proper role of a judge. (329) Justice Steven Fisher, a returning face from the previous list, was also a Democrat. (330) Since his appearance on that prior short list, however, Fisher had presided over the trial of John Taylor, who murdered five Wendy's restaurant employees and was sentenced to death. (331) One would imagine that this caught Pataki's attention, given the level of importance that Pataki attached to restoring the death penalty in New York State.

   Still, even if Pataki noticed, it was not enough for him to select Fisher, a former district attorney, (332) for the open judgeship. Nor did Pataki choose attorney Guy Miller Struve, appearing for the third time on short lists delivered to Pataki. (333) From the outside, Fourth Department Presiding Justice Eugene F. Pigott appeared to be the odds-on favorite for the appointment. (334) Like many Pataki appointees, he was a white Republican who came from outside of New York City and had gained respect for his judicial work in the Fourth Department. (335) His record in deciding criminal cases, however, was mixed, (336) certainly not presenting the same tough on crime profile that Graffeo's appellate division record revealed.

   Perhaps because of this mixed record, Pataki did not tap Pigott to replace the departing Levine. Instead, he chose Susan P. Read, the presiding justice of the Court of Claims, to fill this vacancy. (337) This pick was largely unanticipated by court watchers in the media. (338) Ironically, the Governor who strove to change the court's criminal justice jurisprudence now had selected a judge who had never sat on a criminal case in her life. (339)

   Still, she was a jurist whom Pataki knew very well. In 1995, Read left a diverse career in private practice--including an in-house counsel position with General Electric where she worked on litigation regarding toxic waste cleanup in New York State (340)--to become Pataki's deputy counsel. (341) For two years, they worked closely together during a rather contentious period in the Governor's tenure. (342) Then, in 1999, Pataki designated Read as the presiding judge of the Court of Claims. (343) Evidently, he followed her work on that court closely, telling reporters after her Court of Appeals nomination that he had "read and admired many decisions she had written for the Court of Claims." (344) Like all of Pataki's prior selections to the Court of Appeals, Read was a Republican from upstate New York. (345) Her appointment also gave the court a majority of female judges for the first time in its history. (346)

   Nobody, though, knew how Read would lean in criminal law decisions. (347) Read was not forthcoming with clues either, stating only that her guiding principle in deciding cases was "the observation that technique without morals is a menace and morals without technique is a mess." (348) Yet one thing was certain: with the appointment of Read, the Pataki appointees now constituted a majority of the Court of Appeals. (349) The man who had so vehemently criticized the court's direction on criminal cases now was the leader responsible for appointing four of the seven judges sitting on its bench. (350)

   Read's appointment gave the Court of Appeals a judge with the following characteristics:

   Race: White

   Gender: Female

   Region: Upstate

   Political Affiliation: Republican

   Predecessor's Political Affiliation: Republican (but not uniformly conservative in criminal cases).

   Age on Date of Appointment: Fifty-five

   Prior Judicial Experience: Slightly under four years as presiding justice of the court of claims. Never decided a criminal case.

   Judicial Record in Criminal Cases: None. No experience litigating cases as a criminal lawyer, either.

   Known "Pet Causes": None known. Most of her work in private practice dealt with commercial torts and environmental regulation. (351)

   Previous Appearances on Short List: One (in 2000, for the vacancy that was filled by Graffeo). (352)

   Friendship Factors with Governor Pataki: Served as Pataki's deputy counsel for two years. Appointed by Pataki as presiding judge of the court of claims.

   On the court, Read has proven to be another staunchly pro-prosecution voter, again affirming Pataki's tough on crime goals. (353) In divided criminal cases, she sides with the Government's position as frequently as the prosecution-friendly Graffeo. (354) Unlike Graffeo, however, Read dissents often in divided criminal cases, using her dissents to write in favor of law enforcement interests over the interests of the individual. (355)

   With Read joining Wesley and Graffeo on the court, Pataki must have felt a measure of satisfaction. He had taken a court that he considered to be far too liberal and delivered to it three extremely-prosecution-friendly conservatives. (356) In a sense, though, it was not that different than the court that he inherited, with the trio of Bellacosa, Simons, and Levine thrilling prosecutors who came before the court. (357) However, there was a key difference in this new pro-prosecution trifecta. Bellacosa, Simons, and Levine remained together for several years. (358) Given the young ages at which Pataki appointed them, it appeared that Wesley, Graffeo, and Read would do the same. Yet Pataki and the entire State of New York would soon find out that this would never become reality.

5. Replacing Judge Richard Wesley

   Just one year after Read's appointment, Wesley announced that he was resigning from the Court of Appeals to accept a federal appointment on the Second Circuit. (359) With Wesley's sudden departure, Pataki lost a man who was arguably the Court of Appeals' steadiest pro-prosecution vote. (360) In addition, he lost the presence of a close friend and longtime colleague on the court, an individual towards whom Pataki demonstrated tremendous respect. (361) Filling the vacancy created by such an individual would be no easy feat.

   Once again, the Commission on Judicial Nomination presented Pataki with a rather unconventional short list. This time, only three of the listed candidates were judges. (362) All three were repeats from previous lists. (363) Steven W. Fisher appeared on his third consecutive list, while Freedman and Pigott both made their second list in a row. (364) Four aspirants with no judicial experience whatsoever joined them. (365) Republican lawyer Guy Miller Struve appeared for the fourth time in five short lists. (366) Listed for the first time were Syracuse University College of Law professor, Daan Braveman, a Democrat; Manhattan private practitioner and former Securities and Exchange Commission member Stephen J. Friedman, a Democrat; and Manhattan attorney Robert S. Smith, a Republican. (367)

   Much of the buzz surrounding this list did not focus on who was there but rather on who was missing. From the immediate aftermath of Wesley's announcement until the moment that the short list emerged, pundits hypothesized that the Governor's counsel, James M. McGuire, would be the front-runner for the nomination. (368) When the short list came out, however, McGuire was not among the listed seven. (369) Pataki did not hide his annoyance over what he considered an oversight by the Commission. (370) "It is disappointing," he stated, going on to laud McGuire as an "outstanding lawyer" and a "brilliant individual." (371) Had McGuire appeared on the list, there seems to be little doubt that Pataki would have chosen him. (372)

   With McGuire out of the picture, however, the vacancy seemed to be up for grabs. Some commentators suggested that the smart money was on Pigott, due to both his political affiliation and his geographic location. (373) The lack of judges from western New York on the Court of Appeals had provoked recent complaints from attorneys and judges in that region, including former Court of Appeals finalist Justice Samuel L. Green. (374) Since Pigott lived in the Buffalo area, belonged to the Republican Party, and often voted for the prosecution in criminal cases, he appeared to be a logical fit. (375)

   Ultimately, Pataki surprised everybody. (376) To replace Wesley on the bench, the Governor called on Manhattan trial lawyer Robert S. Smith, astonishing even Court of Appeals insiders with his selection. (377) For the second consecutive pick, the Governor who wanted the court to change its voting habits in criminal cases had appointed someone who never judged a single criminal case at trial or on appeal. (378) Read was an unexpected choice, but Smith--the first non-judge appointed to the Court...