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44th Street Notes

Hey, You Never Know !

Jun 2003

New Yorkís highest court is one of the premier courts in the country, federal or state. Bolstering its reputation is the process by which its members have been selected. In 1977, the voters decided to replace the discredited method of electing Court of Appeals judges by amending the State Constitution to create the Commission on Judicial Nomination. The Commission is charged with presenting to the Governor a slate of up to seven nominees for each Associate Judge vacancy and a slate of seven nominees for Chief Judge. The Governor must select a nominee from this list, and the nomination is subject to confirmation by the State Senate.

A major part of the Commissionís responsibility is recruiting candidates from which the Commission will select its slate. Indeed, the Commissionís rules state that "each member of the commission, and counsel, shall encourage persons who may be well qualified to become candidates for nomination to the Court of Appeals..." The object is to reach widely within the legal, academic and judicial communities and attract the finest candidates.

The opportunity to serve on the Court of Appeals should be a very exciting prospect, but many qualified candidates are reluctant to put themselves forward for consideration by the Commission. Indeed, for the last two vacancies, the Commission had to extend the filing date for applicants because of the small number who had applied. I know one issue which may dampen interest is that judicial salaries are abysmal when compared with the salary structure of the private sector. In addition, some have speculated that there is little chance of being nominated to the court as the person who will be selected for a particular vacancy is a foregone conclusion. Despite what you may have heard, as a member of the Commission on Judicial Nomination as well as President of this Association, I want to assure you that there is much to recommend your applying for a Court of Appeals vacancy.

First, the Commissionís process and structure give persons who submit their names a fair shot. The Commission is composed of 12 members. Four are appointed by the Governor, four by the Chief Judge, and one each by the majority and minority leaders of the House and Senate. The Commission is designed so that not more than six members are from a particular political party. In addition, having six different officials appointing commission members assures a diversity of perspectives and viewpoints.

The Commissionís voting procedure also serves to avoid having a particular voting bloc determine who is proposed to the Governor. The commissioners vote using a preference voting system, in which the commissioners rank their candidates and the rankings are tallied. In addition, no person may be nominated unless he or she receives the affirmative votes of at least eight commissioners. There are full, open and candid discussions of each applicant who is interviewed, and then votes are conducted using secret ballots. This voting procedure is designed to ensure that candidates of well-demonstrated quality are submitted to the Governor. Only those approved are reported out, and the names of all others are not released.

Second, simply having your name on the list submitted to the Governor not only signifies that you are qualified to serve on the Stateís highest court, but that you are recommended to serve on that court. Your standing at the bench, or in the bar or academia, no matter how high it is at present, would receive a significant boost. Your interest in serving on the Court of Appeals would also demonstrate your interest and commitment to public service. It would certainly justify the wisdom of the clients who retain you. If you would like to be considered as a judge in a court other than the Court of Appeals, should you not be appointed to the top court, history has shown that inclusion on the list sent to the Governor has helped.

Some of you may think that only sitting judges have a chance to be nominated by the Commission or selected by the Governor. However, the Commission regularly includes practitioners on its list, and one such person who was then appointed by the Governor is none other than our present Chief Judge, Judith S. Kaye.

So I encourage you to put yourself forward to the Commission on Judicial Nomination on the occasion of a vacancy in the Court of Appeals. Imagine yourself sitting where Chief Judge Kaye and the other distinguished judges of the Court of Appeals, where Judges Cardozo, Lehman, Breitel and other great jurists have sat. Imagine the sense of satisfaction you would gain from providing public service at such a high and important level. At a minimum, getting on the list of nominees is a great distinction and honor, and is good for you, your professional standing and reputation and your future. The Commission looks forward to hearing from you. " Hey, you never know. "

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