Associate Judge Rowan Wilson, a progressive jurist who is already a member of the court, will replace DiFiore as Chief Judge. Caitlin Halligan, a well-known private lawyer who served as New York’s solicitor general in the 2000s, will take Willson’s seat as associate judge.

Liberals hope that these changes push the court to the left. Over the past several years, they’ve watched with frustration as a bloc of four judges, enough for a majority on this seven-person court, consistently sided with corporations, police, and prosecutors, leaving progressives like Wilson to write dissents in cases that tested matters’ like workers’ ability to seek damages or law enforcement’s power to conduct warrantless searches. 

Now Wilson, the state’s first Black chief judge, will enjoy new prerogatives to shape the state’s vast judicial branch to his liking—a chief judge has influence over the rules for other courts and authority to appoint people to key positions like the Commission on Judicial Nominations—and progressives have vocally celebrated his promotion ever since Hochul announced it last month. 

“Rowan Wilson, at least in his opinions, has signaled that he’s really attuned to the needs of the most vulnerable New Yorkers,” said Noah Rosenblum, a law professor at NYU Law. “There are reasons to anticipate that he will use his powers as chief judge to try to make the administrative machinery of New York courts more responsive to those values.”

But when it comes to the raw math on upcoming rulings, it’s Halligan who matters. Hers will be the new vote with the power to flip outcomes when she votes differently than DiFiore would have. And even if she does end the conservative bloc’s predictable control of the court, how consistently she sides with its liberal members is a separate question; besides Halligan, the court presently has three more right-leaning members, two judges who typically lean left (including Wilson), and one who is often a swing vote. 

How exactly Halligan reshapes this intricate balance remains to be seen, in part due to a legal question that surrounds her nomination, and also due to her career being something of an ideological Rorschach test for court observers.

When I told Rosenblum I was setting out to ascertain how her nomination may affect the court’s future cases, he quipped, “I don’t envy you.”

Just three months ago, the landscape in the state Senate looked dramatically different. Progressive groups in December rallied against Hector LaSalle, Hochul’s first choice to replace DiFiore. Within days of Hochul’s announcement, reproductive rights organizations, unions, and criminal justice reform advocates denounced LaSalle’s past rulings on abortion, defendants’ rights, and labor. Half-a-dozen Democratic senators said they opposed him within a day; and in January, most of the Democratic caucus voted against him when the state Senate rejected him.

No such tumult greeted Halligan. Her confirmation process was comparatively very quiet, and her confirmation this week was backed by nearly all Democratic senators. (Many Republicans opposed it.) 

It’s not that progressives rallied behind her enthusiastically. When I asked LaSalle’s critics about Halligan, they often began by offering lengthy praise for Wilson, whom Hochul announced on the same day as something like a two-judge deal. In a statement this week, Senator Jessica Ramos, who had quickly opposed LaSalle from the left in December, said she was “choosing to be hopeful” that Halligan would align with Wilson’s wing of the court. So what drove the left’s widespread attitude of guarded support?

Whereas DiFiore was a former Republican politician (though she was selected for the bench by Democratic Governor Andrew Cuomo), Halligan has long been associated with Democratic or liberal legal circles. A former clerk of U.S. Supreme Court Justice Stephen Breyer, Halligan was nominated by then-President Barack Obama in 2011 to one of the nation’s most prestigious federal courts, the D.C. Circuit. But she faced a yearslong blockade by U.S. Senate Republicans, who filibustered her on nearly-perfect party line votes. 

In the absence of many other signposts, this background has served as a sort of proxy this month for Halligan’s judicial politics. It has fueled an expectation, which I heard from a number of state sources this month, that she’ll pave the way for the court to issue more liberal rulings.

“The Obama administration thought she was liberal enough,” said Vincent Bonventre, a professor at Albany Law School who studies the New York Court of Appeals, adding that Obama’s nominees to the nation’s highest courts did tend to lean left. “So you would think that the vetting has already been done.” 

Still, some of the same groups that successfully fought LaSalle expressed caution toward Halligan. As a longtime private lawyer, Halligan has taken on many cases on behalf of corporate clients, and progressive organizations raised concerns about a number of them in recent weeks. 

While working at a law firm last decade, Halligan represented Chevron when the oil company targeted human rights lawyer Steven Donziger with a racketeering lawsuit, after Donziger helped secure billions in damages due to Chevron’s polluting activities in the Amazon rainforest. 

In 2014, Halligan represented UPS in a high-profile case, heard by the U.S. Supreme Court, in which she argued that the Pregnancy Discrimination Act does not require corporations to make accommodations for pregnancy. (The court mostly ruled in favor of Penny Young, the plaintiff.) Halligan’s work on behalf of UPS drew criticism well before her nomination to New York’s high court. The legal publication The Flaw focused on Halligan’s work in Young vs. UPS in January as part of a broad jeremiad against Big Law, to make the case that attorneys who work on behalf of corporate clients should be accountable for “fueling inequality.”

After DiFiore’s resignation, prominent senators and progressive groups had urged Hochul to choose a public interest attorney or public defender to add professional diversity to the court, which mostly includes former corporate lawyers and prosecutors. (Halligan also worked as general counsel for the Manhattan DA’s office.)

One of these organizations, the Center for Community Alternatives, urged New York lawmakers to question Halligan about the “troubling” cases on which she has worked as a private attorney, while also acknowledging that her “contradictory record” contains cases where she defended more liberal positions. The New York Immigration Coalition on Wednesday called Halligan’s nomination “concerning” due to her “controversial record as a corporate attorney.”

The only Democrat who voted against Halligan on Wednesday was Jabari Brisport, a member of Democratic Socialists of America. Brisport did not reply to a request for comment.

Halligan has replied to these criticisms by distancing herself from the content of the claims she has made on behalf of her clients. These should not be taken as an indication of her own values, she has said, or of the outcomes she would prefer to see.

“In whatever capacity I represented a client, I’ve done my best to bring to the court whatever arguments there are on that client’s behalf,” Halligan said at her confirmation hearing on Tuesday.

She did not respond to a request for an interview for this story.

Halligan made the same point a decade ago, when she faced recriminations from the other direction by U.S. Senate Republicans for defending liberal policies while solicitor general in New York. The GOP zeroed in on legal work she had conducted on behalf of New York’s effort to hold gun manufacturers accountable for gun violence, calling her an “activist.”

Halligan’s allies responded at the time by describing her as a moderate. They played up other work she did in that role that was more likely to appeal to GOP senators, such as a memo she issued in March 2004 advising local officials to not issue marriage licenses to same-sex couples, effectively shutting down a mayor in Ulster County who days earlier had done just that, at a time where a few local officials were sticking their neck out for same-sex marriage. They also insisted that, in cases like her work against gun manufacturers, she was merely doing her job: representing the interests of her client, which in that case was New York State. 

Since much of Halligan’s legal career has involved such work, though, putting all that to the side would leave few tea leaves in which to decipher her judicial philosophy. 

It also raises the question of what would even count as a tea leaf at all. At a time when judges and courts’ ability to set huge swaths of policy is so transparent, what are lawmakers and the public supposed to evaluate as indications of how Halligan will approach her new role?

“We don’t have a ton of information that we can evaluate that reflect her own particular political or jurisprudential belief, and that presents a genuine puzzle,” Rosenblum said, while adding that the information we do have—including her selection by what he called federal Democrats’ “judicial nominating machine”—is consistent with a cautiously liberal jurisprudence.

“It’s very difficult to predict what kind of Judge Halligan will be,” Peter Martin, director of judicial accountability at the Center for Community Alternatives, told me on Wednesday. “She has spent her entire career as an advocate, and she has written close to nothing that wasn’t on behalf of a client, meaning her personal values and understanding of the law are obscured.” 

Sam Bagenstos, a law professor at the University of Michigan, was the lawyer who represented Penny Young in her case against UPS nine years ago. Despite their work on opposite sides of that case, he cheered Halligan’s nomination earlier this month.

“I’ve known Caitlin for more than 25 years and, based on many experiences with her over that time, am convinced she’ll be a progressive judge,” he told me. (Bagenstos, who currently works as the general counsel for the U.S. Department of Health and Human Services, insisted that he was talking in his personal capacity.) “Obviously, nobody can doubt her legal brilliance.”

Asked for what specifically he would point to as a public indication of this disposition, Bagenstos pointed to Halligan’s pro bono work on behalf of New York tenants, defending the constitutionality of rent stabilization against landlord groups. (One of New York’s most left-wing senators pointed to the same case this week to explain why she backed Halligan’s nomination.) 

On its face, this case is similar to the others: Halligan was working on behalf of her clients.

But Halligan said this week that her pro bono cases can offer unique insight into her values. They are all, after all, work she is choosing to do for free. Such cases, Halligan told a legal publication in 2019, “allow the [law] firm to engage in a meaningful way with matters of true public interest.” Other pro bono work from Halligan’s includes writing briefs in defense of the Affordable Care Act or representing employees with labor recriminations against Amazon. 

“Halligan argued in her confirmation hearing that her pro bono work best illustrates the legal outcomes she personally supports,” Martin said. “We’ll find out soon enough if she was telling the truth when she said that.” 

The biggest controversy that has greeted Halligan’s nomination does not concern her record. It’s about whether it was legal of Hochul to appoint her when she did.

In New York, governors choose judges out of it on a short list presented to them by a state nominating commission. Wilson and Halligan both featured on the list prepared by the commission to fill the vacancy created by DiFiore’s resignation; but technically, Hochul selected Halligan to fill a still-hypothetical vacancy, the one that would be left by Wilson once the Senate confirmed him as chief justice. Republicans and some legal scholars argued this is unconstitutional and that Wilson’s confirmation should trigger a new vacancy and a new shortlist before Hochul can fill it. State Democrats replied by passing a law that specified that Hochul was authorized to do this; they did so after Hochul announced her nominations. 

Heading into Halligan’s confirmation hearings this week, Republicans threatened to sue to block Halligan from joining the court. But The Times Union reported on Wednesday that the GOP did not file a lawsuit before Wednesday’s vote, and that it was unknown whether they could and would still do it in the future.

Hochul’s dual move sped up the process by months, and its apparent success brings the Court of Appeals back to full capacity for the first time since July. 

Bonventre, for one, expects the combination of Wilson’s promotion and Halligan’s arrival to make a significant political difference. 

“The court in recent years has been much more conservative than in the past,” he said. “I don’t think it will become a left-wing court, but will this court be more sympathetic to the rights of the accused? I think unquestionably. Workers’ rights? Unquestionably. Consumer rights? Unquestionably. The rights of people who’ve been harmed by others? Unquestionably.”

But the highest-profile case that awaits Halligan does not fit into these categories. It’s Hochul and other New York Democrats’ recent plea in state court to have another shot at drawing the state’s political maps. Last year, the Court of Appeals struck down Democrats’ gerrymanders in a 4-3 ruling, with DiFiore in the majority and Wilson in dissent, and ordered a trial court to draw remedial maps; this greatly helped Republicans in the midterms. If Halligan approached the issue differently than DiFiore and authorized a second bite at the redistricting apple, it may swing several U.S. House seats in 2024—and it could also affect control of Congress.

With that case still on the horizon, Democratic state senators this week celebrated Halligan for joining the court. “I’m sure the court can become the best appellate court in the nation with her on the bench,” Brad Hoylman-Sigal, who chairs the Judiciary committee, said on the floor. 

It’s become a core tenet of present-day progressive legal advocacy that state appellate courts could provide an antidote to the breathtaking conservative takeover of the federal bench. That view took off during the Trump presidency but has intensified since the Dobbs ruling in June.

Halligan signaled this week that she agreed with that notion, in what may have been her strongest hint of how she’d approach her new position.

“State courts are where the issues that are most important to the day-to-day lives of New Yorkers get decided,” Halligan told the Judiciary Committee during her confirmation hearing. “And it is where the scope of the New York constitution gets hammered out, a task that is especially important at a moment when federal courts appear to be pulling back on some key constitutional protections.”

The post New York’s Highest Court Takes a Step to the Left, Maybe appeared first on Bolts.

She chose to push it to the right on Thursday by nominating Hector LaSalle, an appellate judge and former prosecutor who has amassed a conservative record, particularly on defendant rights and police oversight, to the New York Court of Appeals.

Hochul’s choice builds on the legacy of Andrew Cuomo, the former Democratic governor who at one point had appointed all seven court members, locking in a right-leaning majority that is now likely to live on. 

“Judge LaSalle has a sterling reputation as a consensus-builder, and I know he can unite the court in service of justice,” Hochul said in a statement. Hochul added that LaSalle, whose nomination is subject to a Senate confirmation, will also be the state’s first Latino chief judge. 

In the lead-up to Hochul’s decision, a coalition of progressive New York organizations released an assessment calling the prospect of LaSalle’s nomination “unacceptable” and zeroing in on his rulings on cases that dealt with abortion, criminal justice, and labor. Last week, a group of 46 law professors released a joint letter raising concerns about LaSalle due to what they described as his “activist conservative jurisprudence” and his “cavalier attitude towards reproductive rights, hostility to organized labor, and a worrying insensitivity to due process.”

“He’s put his judicial philosophy out there, on paper, and it strikes me he is to the right of the majority of New Yorkers,” Steve Zeidman, a professor at CUNY law school who signed onto that letter, told Bolts on Thursday.

“This is someone who is less concerned with individual civil liberties, and more concerned with siding with the government and corporations,” Zeidman added. 

Jocelyn Simonson, a professor at Brooklyn Law School, told Bolts on Thursday that she also signed the letter because she finds LaSalle’s record on issues including reproductive rights and criminal procedure to be “abysmal.” 

If he is confirmed by the state’s Democratic-run Senate, LaSalle would fill a vacancy left by Chief Judge Janet DiFiore, who abruptly resigned this summer. On the court, DiFiore was part of a bloc of four judges—all appointed by Cuomo—who have consistently banded together around rulings that strengthened the hands of law enforcement, management over labor, landlords, and prosecutors in a slew of cases, the publication New York Focus reported in June. 

DiFiore’s departure broke that bloc’s control over the court, but LaSalle’s record suggests he would reconstitute a conservative-leaning majority.

The main case highlighted by the law professors’ letter last week was a ruling, joined by LaSalle in 2017, that partially protected crisis pregnancy centers, which are run by anti-abortion groups, from an investigation into possible fraud by the New York attorney general’s office.

Another LaSalle ruling that has gained scrutiny came in a 2015 case that authorized the corporation Cablevision to sue union officials for defamation despite state laws that are meant to protect labor leaders. Communication Workers of America released a statement on Wednesday, before LaSalle’s nomination, denouncing his “anti-union stance that directly contradicts the rights of New York’s workers to organize.”

LaSalle has also drawn criticism from criminal justice reform advocates for regularly voting against defendants who brought lawsuits challenging their arrest or conviction. 

Simonson, who teaches criminal law, pointed to a 3-2 ruling in a 2014 case known as People v. Corbin, in which LaSalle sided with the majority in holding that a defendant had waived his right to challenge the constitutionality of a warrantless search when he pled guilty. “Judge LaSalle has demonstrated a troubling lack of concern for the rights of people charged with crimes, especially when it comes to the ability of courts to review unconstitutional police conduct,” she said.

LaSalle would be the fourth former prosecutor on the seven-member court. He is, in fact, the third consecutive appointment to the court who is a former prosecutor, after Cuomo-appointee Madeline Singas and Hochul-appointee Shirley Troutman.

The court currently has no member who has worked as a defense attorney.

“When you look at the federal level, it’s such a contrast with what’s happening in New York,” said Zeidman, the law professor who is himself a former public defender, pointing to President Biden’s nomination of civil rights attorneys and public defenders to the federal bench. That push has largely not been mirrored in state courts, even in blue states like New York.

“The need for that professional diversity, it’s evident in how the [New York] Court of Appeals has operated for the last several years,” Zeidman said. “When you look at criminal cases, much has been written about the fact that the court of appeals is hearing fewer and fewer criminal cases, and when they are, the majority seems to have a knee-jerk reaction of siding with the prosecutors no matter how egregious the issues raised by the defense.”

Eliza Orlins, a public defender and activist in New York City, said she is concerned about the broad powers the chief justice exercises over the court system.

“We’ve made marginal progress in New York in terms of criminal justice issues, when prior we were one of the worst states in the country on discovery, on prosecuting children as adults, on so many things,” she told Bolts on Thursday. “That can all be put in jeopardy.”

Hochul’s choice was constrained to a list of seven names selected by the state’s Commission on Judicial Nomination, a body made up in large part of appointees of Cuomo and DiFiore that created controversy for excluding some prominent liberal jurists and candidates of color. 

Still, the list presented a clear ideological choice for Hochul. Three of the jurists on the list, including LaSalle, had a record closer to that of the court’s current conservative bloc. Three others were endorsed by the progressive coalition, The Court NY Deserves, as the likeliest to counterbalance the right-leaning bloc.

LaSalle was one of three judges on that list to receive the highest qualification ratings from both the New York State Bar Association and New York State Trial Lawyers Association; the other two who did were among the jurists who were championed by progressives. LaSalle has also received strong support from Hispanic and Latino lawyers’ bar associations in New York.

After Hochul’s decision, several progressive groups in that coalition, such as the Working Families Party, quickly called on the state Senate to reject LaSalle. 

“The folks we were hoping ultimately would be considered and appointed were people whose backgrounds and histories showed they were committed to uplifting the lives of marginalized folks,” said Tolu Lawal, the co-lead organizer of Unlock The Bar. “Hochul is on notice and the Senate is also on notice that people are paying attention, and we will be watching the votes and making decisions afterward.” 

Several left-leaning New York senators announced they would oppose LaSalle on Thursday. 

“It’s indefensible to ask for Black votes and then work to incarcerate us,” Jabari Brisport, who represents Brooklyn tweeted on Thursday. “No on LaSalle.” 

Samra Brouk, who represents the Rochester area, denounced LaSalle’s judicial record as “anti-woman, anti-worker, and anti-family.” Others who voiced opposition include Michelle Hinchey, Kristen Gonzalez, Robert Jackson, and Julia Salazar. 

Other Democratic senators with a progressive reputation had more vague reactions to LaSalle’s nomination on Thursday. Brad Hoylman, the chair of the chamber’s Judiciary Committee, told New York Focus that he is undecided on LaSalle. Zellnor Myrie, who released a statement last month calling on the governor “to prioritize civil rights and defense experience when selecting our next top jurist,” also tweeted that he was undecided on Thursday.  

Nominations to state court typically don’t draw much attention or controversy. “Traditionally, the senate has been a rubber-stamp,” Zeidman said.

In 2021 progressives tried to organize against Cuomo’s choice to send Singas, who at the time was the district attorney of Nassau County, to the high court. But despite some recorded opposition in the senate, Singas was easily confirmed.

She went on to solidify what became the court’s conservative bloc. At least one powerful New York senator, Michael Gianaris, told Bolts and New York Focus in July that he regretted his support for Singas. On Thursday, his office pointed Bolts toward a statement he issued in September that called for “diverse legal experience.” Another New York senator who supported Singas’s nomination, Andrew Gounardes, said in July that he did not regret his vote because “no one could foresee just how important state government would be;” on Thursday, he released a statement on Thursday saying that he was “deeply concerned” by LaSalle’s record and that New York courts should be a “bulwark” against the conservative federal judiciary. 

Critics of LaSalle are intent on at least making the case this year that state institutions deserve a bright spotlight. 

“In light of the current composition of the Supreme Court and other federal courts, our state courts are more important than ever as interpreters of our laws and our rights,” Simonson said. Zeidman concurs. “I’m optimistic that there’s going to be an awful lot of attention to the confirmation process this go-around.”

Alex Burness contributed reporting.

The article was updated on Friday morning to reflect additional statements from New York senators.

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On Monday, Janet DiFiore, the chief judge of the Court of Appeals, New York State’s highest court, announced that she will be resigning this August. The news stunned much of New York’s political establishment and offered Governor Kathy Hochul, who will nominate DiFiore’s replacement, the chance to reshape the Court of Appeals for years to come.

The court has taken a sharp turn to the right over the last year, New York Focus reported last week. DiFiore leads a group of four conservative judges who have voted as a bloc in 96 of the 98 cases in the seven-member court’s most recent term, giving it control over essentially all the court’s decisions.

In that time, this bloc has issued a slew of rulings favoring law enforcement, large corporations, and landlords over defendants, employees, consumers, and tenants. DiFiore and her three allies—Anthony Cannataro, Michael Garcia, and Madeline Singas—have also been responsible for a sharp drop in the court’s overall caseload, and particularly in the number of criminal appeals that the court hears, experts say. 

This conservative majority was expected to remain in control of the court until at least 2025, the year DiFiore would have had to leave the court due to turning 70, New York’s mandatory retirement age for judges. DiFiore offered no reason for her sudden resignation on Monday. But Law360 reported that she is currently the subject of an ethics investigation for interfering in the disciplinary process for a court officer who threatened to post flyers critical of her on court buildings.

If Hochul were to appoint a judge who is more progressive than DiFiore, it could flip the court’s ideological balance on key issues. 

“We’re clearly trying to avoid having our own version of the U.S. Supreme Court here in New York,” Deputy Majority Leader Michael Gianaris, the second-highest ranking Democrat in the state Senate, told Bolts and New York Focus. “Under DiFiore’s leadership, that’s where this Court was headed. So I’m glad she’s resigning.”

Hochul’s pick for DiFiore’s replacement will need to be confirmed by the Senate to join the bench. Democrats hold a supermajority in the chamber, and many cheered the news of DiFiore’s resignation. Prominent senators urged Hochul to nominate a liberal or progressive replacement, as did the State Assembly’s influential Speaker.

But Democrats are also largely responsible for the court’s current makeup. All four judges in its majority bloc are appointees of former Governor Andrew Cuomo. The then-GOP-run Senate acted unanimously in 2016 to approve DiFiore, who at the time was a Democratic district attorney. 

And just a year ago, Senate Democrats voted overwhelmingly to confirm Singas, another tough-on-crime prosecutor, despite a progressive effort to block her confirmation. Singas has since voted with DiFiore in every single case the two judges have ruled on. 

One prominent senator said on Monday that he regretted that vote.

“It was a mistake to support Madeline Singas’ confirmation,” said Gianaris, who last year rallied his colleagues to support her. “She has become part of a majority bloc on the Court of Appeals that is issuing decisions that move us in the wrong direction.”

Asked about DiFiore’s retirement, Lucian Chalfen, a spokesperson for the court system, sent Bolts and New York Focus a statement: “While many people in government hold on the end [sic], that is not the case here. Now it is simply time for the Chief Judge’s next challenge in her professional and personal life. It is illustrative in one’s being aware that it’s not knowing when the right time is to get on the merry go round, but knowing when the right time is to get off [sic].”

“Time for a new direction”

On Monday, numerous Democratic senators publicly called for Hochul to nominate a more liberal replacement for DiFiore, reflecting growing concern within the chamber over the court’s conservative direction as well as frustration with the court’s majority bloc for ruling that Democrat-drawn legislative maps were an unconstitutional partisan gerrymander.

“I think it’s time for a new direction on the court,” said Senator Brad Hoylman, the chair of the Senate Judiciary Committee. Hoylman called on Hochul to nominate a replacement “focused on equitable outcomes for New Yorkers.” Gianaris also said he hopes to see a nominee “more interested in and more appreciative of the struggles of everyday New Yorkers” than DiFiore.

Senator Alessandra Biaggi, a member of the Judiciary Committee, said in a statement that she “strongly urge[s]” Hochul to nominate a public defender. 

Four of the court’s current members are former prosecutors, while none have significant experience as defense lawyers. This reflects a common imbalance in state supreme courts around the country, Bolts reported in March, despite a major push in recent years to get governors to appoint more public defenders to the bench.

Multiple senators also said that the recent conservative rulings from the U.S. Supreme Court have amplified their concern over the Court of Appeals.

State Senator Andrew Gounardes, a member of the Judiciary Committee, said he hopes for a nominee who will “make New York a bulwark against the deterioration of rights” caused by recent Supreme Court rulings. Among other matters, the New York court could be called to clarify whether the state’s constitution enshrines abortion rights. 

Like Gianaris, Gounardes voted in favor of confirming Singas. Gounardes said that he has felt “disappointment with some of the decisions” issued by the majority bloc. But he said that he does not regret supporting Singas based on the information that was available at the time.

“No one foresaw what would be happening at the national level,” he said, referring to recent decisions from the Supreme Court. “No one could foresee just how important state government would be.”

At the time of her nomination last year, Singas was already known as a leading critic of the landmark 2019 criminal justice reforms that reshaped the state’s bail system and evidence rules. Reform advocates warned loudly then that her nomination could shrink the rights of criminal defendants. While their efforts were unsuccessful, they did focus public attention on the court’s increasing conservatism.

Lingering DiFiore influence?

When Hochul nominates a replacement for DiFiore, she will do so by picking a nominee from a shortlist of seven candidates prepared by the Commission on Judicial Nominations, a committee tasked with soliciting and reviewing applications for vacancies on the Court of Appeals.

DiFiore selected four of the commission’s 12 current members, and Cuomo, a close ally of DiFiore, selected another three. The term of one of the Cuomo appointees, Abraham Lackman, expired in March, but he still serves as a commissioner, according to the Commission’s website. A spokesperson for Hochul did not respond by press time to a question on whether she plans to replace Lackman before the Commission selects the shortlist for DiFiore’s replacement.

Eight votes are required to place a potential nominee on the shortlist—just one more than the number currently controlled by DiFiore’s and Cuomo’s appointees. 

“Even from beyond office, Cuomo and DiFiore will have a hand in shaping the composition of the Court of Appeals,” said Noah Rosenblum, professor at New York University Law School and a former clerk at the Court of Appeals. 

Once Hochul makes her pick from the shortlist, the nominee will go before the Senate for confirmation. The Senate has never rejected a nomination to the court, and confirmations have generally not been highly contentious—at least not until Singas’s last year.

Absent a nominee as polarizing as Singas, it’s not clear that the Senate is likely to mount significant opposition to whomever Hochul picks.

When Hochul was preparing to select her first nominee to the Court last fall, 10 Senators penned a letter calling on her to nominate a public defender to the open seat. When Hochul instead picked Shirley Troutman, then a lower court judge and previously a prosecutor, nine of those Senators still voted to confirm. (Troutman has since become the closest thing to a swing vote the court has, sometimes ruling in the majority along with the conservative bloc, and sometimes dissenting along with Jenny Rivera and Rowan Wilson, the court’s two consistent liberals.)

Gianaris declined to say whether the Senate might reject Hochul’s nominee if she nominates someone in the mold of DiFiore. “I’m more hopeful that Governor Hochul will herself appreciate the gravity of the moment and that won’t become necessary,” he said.

Steering the court

The court’s conservatism under DiFiore is out of step with its historic norm, according to Vincent Bonventre, professor at Albany Law School and an expert in the Court of Appeals. Under the three chief judges who preceded DiFiore, “the court was way out in front of most courts in the country in protecting rights and liberties,” he said.

Before Singas and Cannataro joined the court last year, DiFiore didn’t have a consistent ally other than Garcia, who is the court’s lone Republican (though he, too, was appointed by Cuomo). Singas and Cannataro replaced two judges who were known to be swing votes, and who sometimes sided with the court’s two liberal judges.

As the court has tacked to the right, it has also become less interested in explaining the reasoning behind its decisions. The court did not issue a formal opinion in the majority of last year’s cases, but instead published short “memorandums” that offer only brief explanations of the majority’s thinking.

“They are so incredibly superficial,” Bonventre said of the memorandums. “I think it doesn’t show much respect for the judges that are in dissent.”

A new chief judge will have enormous influence on the trajectory of the Court of Appeals and also on the broader practices of New York courts, since they will serve as the chief administrator of the entire system, and will have the ability to appoint administrators and set policy for hundreds of lower courts. 

“The chief judge, by and large, has been able to steer the court in the ideological direction that the chief judge prefers,” Bonventre said. 

The post New York’s Chief Judge Resigns, Breaking Up High Court’s Right-Leaning Majority appeared first on Bolts.

When Governor Andrew Cuomo nominated prosecutor Madeline Singas, the district attorney for Nassau County on Long Island, to serve on New York’s highest court, he framed her record as progressive, as though she were among the national wave of reform-minded prosecutors who’ve recently won elections in cities from Philadelphia to Los Angeles. He emphasized that she created “an Immigrant Affairs Office to focus on crimes against immigrants,” and “dedicated unprecedented resources to restorative justice work.” As a prosecutor, his statement read, “Singas has championed access to justice for all.”

But progressives do not see her that way. They are organizing to defeat Singas’s nomination, warning that Singas is more “tough on crime” than reformer, and would double down on the court’s punitive politics.

Singas is “part and parcel of the system that created the levels of incarceration that we have,” Alice Fontier, the President of the New York State Association of Criminal Defense Attorneys, who is also the Managing Director of Neighborhood Defender Service in Harlem, told The Appeal: Political Report. She describes Singas as a “law and order prosecutor.”

Other reform advocates and academics have echoed these concerns. Alec Karakatsanis, the executive director of Civil Rights Corps, called Singas’s nomination “alarming” and “dangerous.” In an open letter to senate leadership, more than 40 law professors expressed their concerns with Singas’s record and urged the lawmakers to not “rubber stamp” the nomination. 

Such disconnect isn’t new. Cuomo has long frustrated criminal justice reform advocates, his rhetoric outpacing actual policy positions, which have ebbed and flowed based on shifting political winds and news cycles. 

In the poetry of speeches and press statements, Cuomo has claimed the mantle of “progressive,” a leader who “stand[s] in solidarity” with those “demanding police reform, criminal justice reform, and racial equality,” while promising “sweeping” change. But the prose of policy details has been murkier. He vetoed improved funding for public defenders. He supported bail reform in 2019, but backed a partial rollback in 2020, during a pandemic, when jailing people posed a heightened risk of deadly disease. Cuomo signed a bill restricting solitary confinement this year but only after long opposing it, and he has been stingy with clemency. And efforts to earn his support for police transparency and accountability measures went nowhere until police officers killed George Floyd and Breonna Taylor, further raising the political salience of police brutality. 

Cuomo’s judicial appointments have also set up a State Court of Appeals—New York’s highest appellate court with the power to shape legal rules governing large swaths of the criminal legal system, including policing—that has a decidedly pro-prosecution bent.

Cuomo has appointed each of the court’s members, “establishing a conservative majority that has obliterated the rights of criminal defendants,” Steven Zeidman, director of the criminal defense clinic at the City University of New York School of Law, wrote in Slate.

An opportunity to change the court’s balance of power emerged this year. There are currently two vacancies on the seven-member court, and there will be a third in December. What’s more, these vacancies consist of the court’s political center, leaving in place the two most conservative judges—former prosecutors Janet DiFiore and Michael J. Garcia—and the two most progressive—Jenny Rivera and Rowan D. Wilson. Cuomo’s appointments are going to decide the court’s majority for years to come.  

Besides looking for progressive judges, Cuomo could have looked beyond the traditional pool of prosecutors and corporate lawyers and  added judges with public defense experience to a court that has none. He could have, as Zeidman wrote, “assembled a new majority dominated by people who have demonstrated commitments to protecting people’s rights to be free from overbearing, arbitrary, and racist policing, and to rectifying a criminal legal system that regularly turns a blind eye to injustice.” 

In betraying these opportunities, Cuomo’s two nominations so far have elicited a swift and incisive response. Alongside the prosecutor Singas, Cuomo named Anthony Cannataro, an administrative law judge with no experience representing people who face criminal charges. 

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Progressive advocates have focused their organizing on Singas, urging the state Senate, with its new Democratic supermajority, to oppose her nomination. The Senate has never rejected a Court of Appeals nominee in the nearly 45 years it has been tasked with approving the governor’s appointments, but the tide may be changing.  

Jabari Brisport, a Democratic state Senator elected in 2020 with the support of the local chapter of Democratic Socialists of America, announced on Thursday that he would not support Singas’s confirmation because it would be a “step backwards for criminal legal reform.” 

Fontier agrees, saying that Singas “is entrenched in the law enforcement status quo of the criminal legal system, and the idea that she’s going to be able to shut that off [as a judge] seems pretty far-fetched to me.”

Fontier pointed to Singas’s decision to not prosecute the Freeport police officers who beat a Black man during an arrest in December 2019. A neighbor’s cellphone video shows officers, all white men, pull 45-year-old Akbar Rogers over a chain link fence, throw him to the ground, and then pile onto his back while tasing him and punching him in the head, face, back, and legs. At one point, four officers are on top of Rogers while he screams for help. When he says, “I can’t breathe!” an officer responds, “fuck you!”

Singas said that she was disturbed by the video, but that the assault on Rogers was “consistent with the officers’ training and departmental policies, making criminal charges against the officers unsustainable.”

Singas also resisted the milestone pretrial reform New York adopted in 2019, which was meant to lower pretrial detention and expand the requirement that prosecutors share discovery materials with defense counsel, warning that the measures as drafted by the legislature endangered public safety and put too big a burden on prosecutors. Singas is now first vice-president of the District Attorney Association of New York, the group that lobbies on behalf of state DAs and has a record of opposing criminal justice reforms.

Instead, Singas has promoted changes that would drive up prosecutions and prison sentences as  solutions to the opioid overdose crisis. In 2015, she drafted and advocated so-called “drug-induced homicide” legislation that would have allowed prosecutors to charge heroin dealers with homicide in fatal overdose cases. Research shows that such laws, rather than targeting drug kingpins and large-scale traffickers, are often used to prosecute the friends and family members of users, sending surviving loved ones to prison. Many of these people are users themselves, selling drugs to support an addiction. Despite this heavy toll, there is no evidence that “drug-induced homicide cases prevent dealers from dealing or users from using,” Zachary A. Seigel and Leo Beletsky wrote in The Appeal. 

“It’s that sort of gut reaction to more criminalization, more incarceration, that we find particularly troubling,” Fontier said. 

Singas would bring this perspective to a court that, while sharply divided on criminal justice issues due to the presence of some dissenters, has issued consistently punitive rulings. 

In recent years, DiFiore, the chief judge, and Garcia have led a conservative majority that favored the interests of police and prosecutors. According to Zeidman’s analysis, “in 2017, the court sided with the prosecution in 82 percent of the cases it heard,” with Garcia in particular ruling “in favor of the prosecution in 100 percent of the court’s non-unanimous cases.” 

In just the last three years, a divided majority has decided that people convicted of certain sex offenses may be incarcerated indefinitely, even after completing their prison terms; affirmed broad police powers by allowing police to stop a motorist for a broken center brake light (with three judges saying that even if New York law doesn’t require a working center light, it was reasonable for officers to think that it does); and ruled that the state was not liable for a prison guard’s vicious and unprovoked beating of an incarcerated person, because the attack was “outside the scope of employment.” The conservative majority also prevailed in divided cases involving the right to effective assistance of counsel on appeal, and the right to speak at one’s own sentencing hearing. 

In that sentencing case, Judge Rowan D. Wilson wrote in dissent that, in upholding the prison sentence of a man who had been silenced at his hearing, the majority was treating him like “an object,” denying him “the possibility of presenting a narrative of [his] life that goes beyond [his] worst acts.” 

Wilson and Judge Jenny Rivera have been the most likely to dissent across these cases, arguing to protect the rights of people charged with and convicted of crimes. On occasion, they’ve been joined by Judges Eugene Fahey and Leslie Stein to create a slim liberal majority. In People v. Gordon, decided in February, the court ruled 4-3 that a warrant to search an entire residential “premises” does not entitle police officers to search cars on the property. Crucially, the majority explicitly invoked the New York state constitution: “We exercise our independent authority to follow our existing state constitutional jurisprudence, even if federal constitutional jurisprudence has changed,” the majority wrote, because “we are persuaded that the proper safeguarding of fundamental constitutional rights requires that we do so.” 

Stein is the retiring justice whom Singas would replace. If she rules differently, Singas could further narrow the room for liberal majorities on the court. (Fahey will retire in December.)

This would have major consequences given the national context. A willingness by state courts to find broader protections in state constitutional provisions has heightened importance after former President Donald Trump reshaped the federal courts, including the Supreme Court. It can provide a path to protect or even expand civil rights beyond what conservative federal judges will recognize. 

And if Singas is confirmed, she may accomplish as a judge what she failed to push through the legislature. The Court of Appeals is expected to soon decide whether current law allows prosecutors to charge heroin dealers with manslaughter when an overdose causes death. The case involves Richard Gaworecki, a 31-year-old man from Broome County who bought and sold small quantities of heroin for him and his friends to use. In one instance, he sold the heroin that killed one of his friends. Whether Gaworecki—and others in his position—can be prosecuted for his friends’ death has divided lower court judges. 

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The debate around Singas’s nomination comes amid a broader reckoning over the lack of professional diversity on the nation’s courts and how this shapes jurisprudence, favoring the status quo of privilege and power while hindering reform. President Biden has pledged to nominate more people with a background in public defense and civil rights law, and his early nominations bear the trace of that commitment.

With some exceptions, governors like California’s Gavin Newsom and Cuomo have not embraced this goal, however. And state advocates and lawmakers were already taking notice.

Last month, before Singas’s nomination, progressive state Senator Alessandra Biaggi wrote an op-ed pleading for more diversity of professional experience among New York’s judges. “For years, the Court of Appeals, like courts across the country, has not had representation from public defenders and civil rights lawyers, and has been dominated by former prosecutors at the state and federal level,” she wrote, leading to “a blinkered view of the law and who it is supposed to protect and serve.”

With several vacancies at stake, Biaggi urged Cuomo to abandon the traditional approach to judicial nominations and expand diversity. 

“If he does not,” she said, “it is our duty to vote the judicial nominations down until the highest court in our state reflects the state itself, and I intend to do so.”

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