What "tough on crime" looks like: how George Pataki transformed the New York State Court of Appeals.
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:
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.
E. 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 of Appeals since Mario Cuomo selected Kaye--was more surprising still. (379)
Other factors made Smith's selection even more surprising. Smith publically declared that he had mixed views on the death penalty. (380) If that did not raise red flags for the pro-capital-punishment Pataki, the fact that Smith had successfully argued before the United States Supreme Court in cases that overturned convicted criminals' death sentences likely raised eyebrows in the Governor's office. (381) Furthermore, Smith came from New York City, a region that Pataki seemed to be avoiding for his Court of Appeals appointments in favor of smaller-town, upstate jurists. (382) Although Smith was a registered Republican, he actually spent much of his life as a Democrat. (383) Only after practicing law at the large Manhattan firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP for two decades did Smith change his party allegiance. (384)
Still, despite these potential warning signals, Pataki expressed full confidence in Smith's ability. (385) Some observers questioned whether Smith's personal donations to Republican political campaigns--$60,000 going to Pataki himself with another $51,000 going to the New York State Republican Committee over a four-year stretch--was a primary motivation behind Pataki's choice. (386) Observers also asked whether the appointment arose partly because Smith was Pataki's primary attorney in a case against a debt repayment plan promoted by New York City Mayor Michael Bloomberg. (387) Yet Pataki asserted that he based his selection on legal merits alone. (388) One day, he told interviewers, New Yorkers would look back at Smith's appointment and say: "Thank God he is on the Court of Appeals." (389)
Smith's appointment gave the Court of Appeals a new judge with the following characteristics:
Political Affiliation: Republican
Predecessor's Political Affiliation: Republican
Age on Date of Appointment: Fifty-nine (390)
Prior Judicial Experience: None
Judicial Record in Criminal Cases: None. Had successfully litigated cases on a pro bono basis for clients facing the death penalty.
Known "Pet Causes": Member of the conservative Federalist Society. (391) Legal practice focused on complex litigation ranging from securities cases to federal constitutional challenges. (392) Previous Appearances on Short List: None
Friendship Factors with Governor Pataki: Along with his wife, Dian, Smith donated $60,000 to Pataki's political war chest between 1999 and 2003 and an additional $51,000 to the New York State Republican Committee during this same time period. Served as Pataki's chief lawyer in a case fighting a legislative plan promoted by New York City Mayor Michael Bloomberg.
Today, it appears that Pataki's ringing endorsement of Smith's judicial talents was prophetic. Practitioners and scholars alike now praise Smith as one of the finest judges on the present-day Court of Appeals, applauding his insightful questions at oral argument and the depth of his written opinions. (393) One recent newspaper editorial even went as far as to suggest that Smith is the standard by which future Court of Appeals judges should be measured. (394) On the whole, it appears that his lack of judicial experience entering the position has not hindered him at all.
For Pataki, however, Smith may have been a disappointment. If Pataki hoped to replace Wesley with another virtually guaranteed vote for the prosecution, he did not receive that from Smith. (395) Instead, Smith quickly evolved into one of the court's "swing voters," particularly in criminal cases. (396) While he votes for the prosecution more than the defendant in criminal matters, his significant number of dissenting opinions favoring defendants demonstrates a lack of uniformity or predictability in his decision making. (397)
The same could not be said for Wesley, whose definitively pro-prosecution record is already discussed above. (398) Thus, by appointing Smith to the court, Pataki actually moved the Court of Appeals in a moderately pro-defendant direction. (399) In Smith, the Governor correctly identified a judge upon whom many judicial commentators would ultimately lavish praise. However, in his search for a Court of Appeals that was tough on crime, the appointment of Smith was a noticeable blow. With Wesley gone, the Court of Appeals lost a key component of its conservative wing. For the remainder of Pataki's term, and beyond, the outcomes of criminal cases in which Wesley almost certainly would have cast a pro-prosecution vote remained very much in doubt with Robert Smith sitting on the bench.
F. Replacing Judge George Bundy Smith
On July 27, 2005, Pataki announced that he would not seek a fourth term in the Governor's Mansion. (400) Perhaps his decision stemmed from the fact that polls showed him trailing the likely Democratic nominee, Eliot Spitzer. (401) Perhaps he had learned from defeating Mario Cuomo that it is difficult to attract the majority of a state's voters for four consecutive elections, or perhaps he wanted to explore a potential run for President of the United States, a notion that he did not rule out. (402) Whatever the reasons, the citizens of New York knew a year and a half before the next election that the incumbent Governor would not return to office. (403)
On the Court of Appeals, though, Pataki had one more opportunity to leave an impact before the curtain fell on his final term. George Bundy Smith would complete his fourteen years on the court in September 2006, giving the Governor the chance to make a last appointment just weeks before leaving office. (404)
Smith's departure offered Pataki a golden opportunity to shift the court in a significantly more prosecution-friendly direction. (405) Although he was a moderate "swing voter" on criminal cases when Pataki arrived in Albany, Smith had evolved into perhaps the most liberal judge on the entire court, taking up the mantle left behind by Titone's retirement. (406) The downstate Democrat's criminal case decisions became increasingly pro-defendant through the years, often lambasting law enforcement officials when they breached federal and state constitutional protections of individuals accused of committing crimes. (407) He also became the court's most outspoken opponent of the death penalty. (408) In 2004, it was Smith's opinion that spoke for the court's majority in striking down New York's death penalty statute based on defects in its sentencing provisions. (409) If Pataki wanted the Court of Appeals to favor the Government over individual defendants in criminal cases, Smith--although deeply respected by his colleagues on both sides of the political aisle--would appear to be a welcome departure for the Governor. (410)
Yet there was a problem. When the short list of candidates to fill Smith's vacancy came out, one of the listed individuals was George Bundy Smith himself. (411) Even though he was sixty-nine years old, and thus could serve on the Court for only one more year before facing mandatory retirement, Smith wanted Pataki to reappoint him to the bench. (412) Plenty of political and judicial leaders loudly supported Smith's candidacy. United States Representative Charles B. Rangel, former New York City Mayor David Dinkins, The Fund for Modern Courts Chairman Victor Kovner, and even a group of retired Court of Appeals judges--including two Republicans--all publically campaigned for Pataki to reappoint Smith. (413) Since Smith was the only African-American judge sitting on the Court of Appeals, several African-American advocacy groups, including the powerful National Association for the Advancement of Colored People and the Union League, also vigorously petitioned Pataki to keep Smith on the court. (414)
This was the first time that Pataki faced significant external pressure to appoint a particular candidate to the Court of Appeals. (415) His choice was an unpleasant one: reappoint Smith, and placate what appeared to be the majority of the people on both sides of the political spectrum, or appoint a new judge, angering the public but hopefully moving the court in a more pro-prosecution direction.
Recent history would not be on his side if he chose the latter option. At the end of 1981, Governor Hugh Carey had faced a similar quandary when the fourteen-year term of Judge Matthew J. Jasen came to an end. (416) Carey was a liberal Democrat from Brooklyn. (417) Jasen, while a Democrat himself, tended to be considerably more conservative than Carey, particularly on criminal justice matters. (418) Carey thus held the power to appoint a more liberal judge to the bench, moving the court closer to his own political leanings. (419) Indeed, it would seem politically sensible to do so, as Jasen's age would force him into mandatory retirement within just a few years if he were reappointed, creating a quick vacancy that a different governor could then fill. (420) However, Carey reappointed him anyway, allowing Jasen to remain on the bench until his seventieth birthday even though their views on certain issues were significantly different. (421)
Complicating Pataki's decision further was the short list he received from the Commission on Judicial Nomination. Top to bottom, this list represented, arguably, the deepest talent pool of Court of Appeals candidates that a New York State governor had ever seen. For the first time in history, every listed individual was a judge at the appellate division level or higher. (422) Beyond Smith, whose reappointment bid took one of the seven slots, returning from prior lists were Fisher, Andrias, and Pigott. (423) New to the list was A. Gail Prudenti, the presiding justice of the Second Department, an influential Republican who had previously served as an assistant district attorney in Suffolk County and who was appointed to her Second Department post by Pataki. (424) Also appearing on the list for the first time were Republicans James M. Catterson of the First Department, a Pataki appointee who had worked previously as a federal prosecutor, (425) and Thomas E. Mercure of the Third Department, a former district attorney in New York's upstate Washington County who had served on the Third Department bench since 1988.426 Certainly, if Pataki wanted to choose someone other than Smith, he had rich options from which to pick.
And in the end, that is what Pataki did. On August 19, the Governor announced that he had bucked the tide of popular opinion by appointing Pigott, not Smith, to fill the vacant seat. (427) As expected, several leaders throughout the state, including Attorney General Eliot Spitzer, heavily criticized Pataki for this decision. (428) The fact that the court's racial composition was now exclusively white particularly angered many New Yorkers. (429) "Under the guise of merit selection," wrote William C. Thompson, an African-American and a retired appellate division justice, "Mr. Pataki has effectively eliminated African-American and Hispanic judges from the appointive judiciary." (430) Dinkins was similarly upset. "To think that in this state, with the enormous minority population that we have, that of those seven jurists there's not one of color--I'm saddened," the former New York City mayor told the press. (431)
Beyond this furor, however, additional curiosities arose over Pataki's pick. The Governor stated that he declined to reappoint Smith primarily because Smith's mandatory retirement age was drawing near, and Pataki wanted his final Court of Appeals appointment to have a "long-term impact." (432) However, in appointing Pigott, Pataki selected a judge who did not appear to fit the uniformly pro-prosecution model of Wesley or Graffeo. (433) To begin with, as a trial lawyer, Pigott's work focused almost exclusively on civil cases, giving him scant experience in litigating criminal matters. (434) Later in his career, on the Fourth Department, his voting record was mixed in both criminal and civil matters, not displaying any noticeable trends favoring either side. (435) Indeed, commentators at the time of Pigott's appointment called him "not always predictable" (436) and "not rigidly law and order." (437)
Furthermore, Pigott even appeared to be changeable in his political viewpoints. (438) Like Robert Smith, Pigott was for many years a Democrat, switching allegiances to the Republican Party only after Richard Nixon's resignation from the White House in 1974, fearing that Nixon's scandals would leave "a one-party system" in the United States. (439) Overall, Pigott did not seem to be bound to any particular ideology or point of view, judicially or politically, making him a potentially risky appointment for a governor who had articulated a definite desire for the Court of Appeals to move in a particular direction.
In the press conference announcing Pigott's appointment, Pataki stated that the court's newest member possessed "the judicial philosophy ... to be a tremendous addition to our Court of Appeals." (440) Yet Pataki never defined precisely what attributes of Pigott's judicial philosophy appealed to him. Thus, it remains unclear why the Governor chose Pigott over other judges on the list who seemed to be more prosecution-friendly, or who at least appeared to have a more established record in deciding criminal cases. (441)
One can speculate endlessly as to the reasons. Perhaps, knowing the outcry that would surely follow from appointing anybody other than George Bundy Smith, Pataki intentionally chose a judge who seemed more moderate than others on the list. Conceivably, fearing an even greater backlash if he picked a rigidly pro-prosecution jurist, he selected a more middle-of-the-road judge, knowing that Pigott would still be more prosecution-friendly than his predecessor. (442) Or, perhaps even Pataki's own views had tempered slightly over time, something that one could hypothesize by comparing the Governor's earlier Court of Appeals choices (such as Wesley, Graffeo, and Read) with his final two picks (Robert Smith and Pigott). (443) As described above, Pataki's views on multiple issues changed during his three terms in office. (444) Even though he never publically reversed course regarding his stance on the Court of Appeals and the need for "tough on crime" judges in general, there is always the possibility that his views did "soften" on this issue. (445)
Beyond those theories, and other possibilities not elaborated here, Pigott did carry several attributes that were common to Pataki appointees, such as membership in the Republican Party and residence outside of New York City. (446) He had amassed a solid reputation on the Fourth Department. (447) And his appointment did give the Court of Appeals a new voice from western New York, something for which attorneys and judges in that region had advocated for quite some time. (448)
Whatever the exact motives may have been, Pigott's appointment gave the Court of Appeals a judge with the following characteristics:
Region: Upstate (and, importantly, from the Western region of the state)
Political Affiliation: Republican
Predecessor's Political Affiliation: Democrat
Age on Date of Appointment: Fifty-nine (449)
Prior Judicial Experience: Served on the Erie County Supreme Court for one year, then spent eight years on the Fourth Department (six as the court's presiding justice). (450)
Judicial Record in Criminal Cases: Mixed. Wrote opinions both for the Government and for the defendant during his years on the appellate division. (451) No clear voting patterns noted. (452)
Known "Pet Causes": None known.
Previous Appearances on Short List: Two (in 2002, for the vacancy left by Levine, for which Pataki ultimately selected Read, and in 2003, for the vacancy left by Wesley, for which Pataki chose Robert Smith). (453)
Friendship Factors with Governor Pataki: No direct links known between the judge and the Governor. However, Pataki appeared to hold Pigott in high regard, appointing him to four judicial positions during his time as governor. (454)
Today, Pigott's record on the Court of Appeals seems similar to his reputation on the appellate division. (455) Along with Robert Smith, Pigott became one of two "centrists" on the state's high court. (456) While not always the deciding vote in major cases, (457) Pigott's voting does not overwhelmingly follow any particular patterns. (458) He also is one of the court's most overtly independent judges, dissenting often (again, similar in this regard to Robert Smith). (459)
On criminal cases, the issue of greatest concern to Pataki, the majority of Pigott's rulings favor the prosecution. (460) However, he also votes relatively frequently in favor of criminal defendants, (461) including authoring a handful of dissents favoring the rights of the accused. (462) Undoubtedly, Pigott represents a pro-prosecution shift when compared with George Bundy Smith's voting patterns, particularly in Smith's final years on the court. (463) On the whole, however, Pigott's voting has never represented the dramatically prosecution-friendly direction for which Pataki called during his first year in office.
VI. THE TRENDS: CONNECTING THE DOTS OF GOVERNOR PATAKI'S COURT OF APPEALS APPOINTMENTS
Now that we have reviewed all of Pataki's Court of Appeals selections, and some of the challenges faced in making those picks, we move to an examination of noticeable trends. In this section we study the demographic data collected above to see whether any noticeable tendencies emerge among these appointments. By doing so, we can consider whether these factors reveal interests that were particularly important to Pataki as he chose new judges for New York's highest court.
All six of Pataki's Court of Appeals appointments were white. In fact, by the time Pataki left office, Ciparick was the lone judge on the court to come from a racial or ethnic minority group. (464) This was a noticeable contrast to Mario Cuomo's choices, which included the first Hispanic judge to sit on the Court of Appeals and the first African-American judge to serve a full term on the court. (465)
In part, Pataki's choices were limited by the short lists that he received. The majority of individuals named on these lists were white, constraining Pataki's opportunity to appoint judges from racial or ethnic minority groups. (466) However, Cuomo also received predominantly white short lists, and still appointed two African-American judges and a Hispanic judge to the court. (467) Reviewing Pataki's choices, we can see that Pataki did bypass a highly regarded African-American judge in Samuel L. Green when he appointed Wesley to replace Simons. (468) He passed over two more judges from racial and ethnic minority groups by selecting Graffeo over Juanita Bing-Newton and Read over L. Priscilla Hall. (469) Most notably of all, he rejected one of most well-known African-American jurists in New York State, if not the entire nation, by choosing Pigott over George Bundy Smith. (470)
The role of race and ethnicity in choosing judicial candidates is a subject worthy of debate. This article does not purport to take either side in this discussion. Rather, it merely points out a marked difference between Pataki and his predecessor in this category. Cuomo went out of his way to diversify the Court of Appeals in terms of race and ethnicity. By the time Pataki made his six picks, however, the state's highest court was almost completely devoid of minority group representation. (471)
Pataki's Court of Appeals selections were considerably more diverse in terms of gender than they were in race and ethnicity. Two of his six appointments were females, Graffeo and Read, leaving the Court of Appeals with more female judges than males. (472) It is impossible to be certain whether gender was a factor that Pataki considered when making these appointments. Certainly, he did not speak about the importance of gender diversity on the Court of Appeals as much as Cuomo did. (473) However, there is no questioning the fact that the court became a more diverse body in terms of gender because of his choices, indicating that gender may have held at least some importance to Pataki as he made these picks.
Virtually all of Pataki's Court of Appeals appointments came from locations outside of New York City. (474) Of his six selections, only Robert Smith came from the Big Apple. (475) This trend is the antithesis of Mario Cuomo's appointments, all but three of whom came from New York City or the surrounding area. (476)
This trend is reflective of Pataki's own "anti-Cuomo" stance in his first gubernatorial campaign. (477) Throughout that race, Pataki emphasized his small-town, upstate New York upbringing, using it as a metaphor to demonstrate that he understood "small town values" and related to the people who formed the state's smaller communities. (478) He then drew contrasts between himself and Cuomo, whose interests he claimed were limited to the boroughs of New York City. (479) By bringing almost exclusively upstate judges to the Court of Appeals, Pataki seemed to appoint judges whose backgrounds were similar to his own. This was particularly true for judges like Wesley, Rosenblatt, Graffeo, and Read, who had lived and worked in smaller upstate New York communities for much of their lives. (480)
The predominant upstate focus in Pataki's appointments may have signaled another trend, too. Conventionally, individuals from smaller upstate communities in New York are regarded as being more conservative voters than individuals from New York City and the surrounding area. (481) Pataki's choices of upstate candidates may have shown a desire to find more conservative judges for the Court of Appeals, particularly in the criminal justice arena, as well as individuals who came from the type of background that Pataki claimed to treasure.
D. Political Affiliation
Pataki picked exclusively Republican judges for the Court of Appeals. (482) This broke from Mario Cuomo's pattern of choosing a virtually equal number of judges for the court from both political parties. (483) All subsequent governors at the time of this writing have followed Pataki's path, selecting Court of Appeals judges only from their own party. (484)
Interestingly, though, Pataki was able to replace a Democrat with a Republican judge only twice. (485) The remainder of the time, his choices filled only Republican-held seats--or in the case of Bellacosa, a vacancy from an independent who voted like a modern-day Republican in virtually all decisions--with other Republicans. Still, because the court was so balanced in terms of party affiliation at the end of Cuomo's tenure, (486) Pataki's appointments tipped the scales significantly in favor of Republican judges, leaving "his" five Republicans (Rosenblatt, Graffeo, Read, Robert Smith, and Pigott) and only two Democrats (Kaye and Ciparick) on the high court's bench. (487)
Pataki repeatedly claimed that he never considered party affiliation as a factor in appointing judges. (488) Given the partisan uniformity of his Court of Appeals selections, however, one might reasonably suspect otherwise.
E. Age on Date of Appointment
The average (mean) age of Pataki's six appointees was fifty-five. Youngest among the Governor's selections was Wesley, age fortyseven, (489) followed closely by Graffeo, age forty-eight. (490) Oldest was Rosenblatt, appointed to the court at the age of sixty-two. (491)
These ages hold particular significance when considering Pataki's hope of having a long-term, transformative impact on the Court of Appeals. The average Pataki appointee would complete his or her full fourteen-year term at the age of sixty-nine, one year before mandatory retirement. On a more individual level, half of Pataki's appointees were appointed at ages allowing them to complete a full term and be eligible for reappointment before mandatory retirement. (492) Only one of his appointees--Rosenblatt--had to retire before serving at least ten years on the court. (493) By appointing so many relatively younger judges to the Court of Appeals, Pataki all but assured that his impact on the court would last at least a decade, strongly indicating that he considered age quite significantly in making these selections.
F. Prior Judicial Experience
One of Pataki's appointments, Robert Smith, had no experience as a judge. (494) A second, Read, had decided solely civil suits for monetary damages against New York State. (495) The remaining four, however, all had previously served as trial court judges and appellate division judges, with their appellate division service ranging in length from two years (Graffeo) to nine years (Rosenblatt). (496)
Considering this record, it appears at first glance that Pataki considered judicial experience a relatively significant factor when making his Court of Appeals picks. However, this becomes less evident when considering the short lists from which Pataki made these choices. Several times, Pataki passed over highly tenured candidates for less experienced appointees. Selecting Wesley over Samuel Green and Joseph P. Sullivan, Graffeo over Steven Fisher, and Pigott over Thomas Mercure (and, of course, George Bundy Smith) all represented occasions when Pataki chose individuals who had noticeably less judicial experience than another member of the short list. Therefore, even though judicial experience may have been a factor that Pataki considered when picking a Court of Appeals judge, it certainly does not appear to be the paramount criterion in his selection process.
G. Judicial Record in Criminal Cases
This is the category that one would expect Pataki to prioritize above all others. Given his adamant public comments about the Court of Appeals "coddling" criminals, an observer would reasonably expect Pataki to seek judges who demonstrated clear pro-prosecution tendencies. One would further assume that the clearest measure of whether a candidate was demonstrably prosecution-friendly would come through studying their appellate court voting record in criminal cases--and, especially, studying the candidate's signed opinions in these disputes.
When reviewing these records it becomes clear that Pataki certainly picked no discernibly pro-defendant judges for the Court of Appeals. (497) Surprisingly, though, Pataki chose several individuals whose inclinations in criminal cases were virtually or entirely unknown. For instance, he appointed two judges--Read and Robert Smith--who never decided a criminal case in their lives. (498) He chose Pigott in spite of the fact that the judge, while overall prosecution-friendly, wrote a number of strongly pro-defendant opinions and dissents during his appellate division years. (499) And he selected Wesley with his first pick, even though Wesley had spent less than three years on the appellate division, giving Pataki little evidence of how Wesley decided criminal cases at the appellate level. (500)
Similarly notable in this regard are the candidates whom Pataki did not appoint. For instance, choosing Read and Robert Smith over Pigott and Steven Fisher, judges with proven records in criminal cases, seems unusual for a governor purportedly seeking strictly pro-prosecution jurists. (501) Likewise, choosing Pigott over other judges whose voting record and inclinations seemed more uniformly pro-prosecution was a surprise. (502)
In fact, Pataki's only appointment with a truly obvious pro-prosecution voting pattern in appellate cases was Graffeo. (503) The others varied widely in their histories, with some being virtual unknowns as to their criminal case tendencies. To a certain extent, this is a product of the short lists Pataki received, which contained few glaringly pro-prosecution candidates. (504) More importantly though, this examination indicates that while Pataki seemed to consider a prosecution-friendly voting pattern an important factor, it was far from the only criterion that the Governor considered when making appointments to the Court of Appeals.
H. "Pet Causes"
Judges who supported the death penalty appeared to find favor from Pataki. For instance, Wesley openly supported capital punishment (505) and Rosenblatt had actually sentenced a defendant in his courtroom to death. (506) Graffeo had worked as solicitor general to defend New York's death penalty law. (507) Conversely, commentators widely believe that George Bundy Smith's opposition to the death penalty ruined, or at least helped ruin, his chances for reappointment in 2006. (508)
Of course, there were outliers here, too. Nobody seemed to know how Read and Pigott felt about the death penalty when Pataki appointed them. (509) Even more surprising was the appointment of Robert Smith, who had defended clients against the death penalty on previous occasions. (510) Perhaps Smith's remark that his personal views about the death penalty were still unresolved was enough to convince Pataki that he was a "safe" appointee. (511) Still, it seems surprising that Pataki would bypass Steven Fisher, a judge who had just sentenced a defendant to death, three times in favor of three jurists whose death penalty views were unknown. Perhaps the fact that Fisher was a Democrat, and Read, Smith, and Pigott were Republicans, was enough to sway Pataki's favor away from Fisher.
Altogether, a vague stance on the death penalty did not appear to terminate a candidate's attractiveness in Pataki's eyes. A firm commitment to defending the death penalty, however, certainly seemed to help elevate Wesley, Rosenblatt, and Graffeo to the top of their respective lists.
I. Previous Appearances on Short List
Three of Pataki's appointees--Wesley, Graffeo, and Robert Smith--had never previously appeared on a short list from the Commission on Judicial Nomination. (512) Both Rosenblatt and Pigott had appeared on two previous short lists, while Read had appeared on one. (513)
This data indicates that Pataki cared little about whether a nominee had previously appeared on one or more short lists. Additionally, Pataki did not appoint a number of candidates who had appeared on several short lists. For example, Joseph P. Sullivan appeared on his tenth and eleventh short lists during Pataki's time in office, and Pataki bypassed him both times. (514) Guy Miller Struve appeared on four of the six short lists that Pataki received and was rejected each time. (515) Steven Fisher likewise made it onto four short lists but never got the nod from Pataki to join the court. (516)
Considering this information, it seems that Pataki paid no attention to whether a candidate had appeared on previous short lists. If this were a factor at all, Pataki certainly appears to have deemed it inferior to other criteria discussed in this article.
J. Friendship Factors with Governor Pataki
Most of the judges whom Pataki appointed held at least one notably close connection with him. Wesley was Pataki's roommate when they served in the Assembly together, starting a close friendship between the two men. (517) Graffeo worked with Pataki when she was chief counsel to the Assembly Republicans, and then again when she became solicitor general for New York State in 1995.518 Read served as Pataki's deputy counsel. (519) Robert Smith was a major financial donor to Pataki's campaign war chest. (520)
Only Rosenblatt and Pigott did not appear to have any particularly close ties with Pataki at the time when the Governor appointed them. (521) Even Pigott, however, appeared to be on Pataki's radar screen, as the Governor appointed him to three judicial posts before bringing him to the Court of Appeals. (522)
Again, this section is not meant to comment on whether these individuals were "good" or "bad" judges, or whether Pataki made "good" or "bad" selections to the court. It merely demonstrates that, on the whole, individuals who held some sort of previous collegial connection to Pataki appeared to have a much higher chance of being named to the Court of Appeals than those who lacked such ties to the Governor.
K. Overall Impact
Finally, we look briefly at Pataki's actual impact on the court's voting in criminal cases. There appears to be little doubt that Pataki accomplished his overall goal of shifting the court in a more prosecution-friendly, "tough on crime" direction. Led by Wesley, Graffeo, and Read, the six Pataki appointees made the Court of Appeals more conservative on criminal cases overall, leading to more decisions in favor of the Government and law enforcement over individual defendants. (523)
The degree to which Pataki's appointments actually moved the court in a pro-prosecution slant, however, is almost impossible to measure. To begin with, the Court of Appeals was certainly not uniformly pro-defendant when Pataki inherited it, despite the Governor's public protestations. (524) Thus, a more conservative movement in the court's decision making was not as dramatic of a change as Pataki and certain other critics suggested. Secondly, the Court of Appeals abruptly started charting a more pro-prosecution course after 1995, the year that Pataki delivered his most public denunciations of the court's record in criminal cases--or, at least, the Governor's perception of that record. (525) Indeed, Pataki's most dramatic impact on the court's voting in criminal cases arguably came from his "tough on crime" themed press conferences rather than his judicial appointments. Even traditionally pro-defendant judges like Ciparick and Kaye swung toward the prosecution in the immediate aftermath of Pataki's criticisms in 1995. (526)
Finally, Wesley's resignation in 2003 further diluted the overall impact of Pataki's appointees. Replacing the almost exclusively pro-prosecution Wesley with the more moderate Robert Smith actually moved the court in a slightly defendant-friendly direction. (527) Had the trio of Wesley, Graffeo, and Read--all of them predictable votes for the prosecution in the vast majority of criminal cases--remained together longer, the number of decisions favoring prosecutors almost certainly would have been greater. Instead, the substitution of Robert Smith for Wesley, along with Rosenblatt's unexpectedly frequent pro-defendant leanings and the moderate nature of Pigott's voting, prevented the "Pataki Court" from becoming overwhelmingly pro-prosecution in its jurisprudence.528 The fact that most of Pataki's appointments were conservative Republican judges replacing other conservative Republican judges also prevented the court's overall shift from being as dramatic as Pataki may have wanted. (529)
In total, the Court of Appeals was a friendlier court for prosecutors in criminal cases after Pataki completed his six appointments. Yet considering the vehemence of Pataki's disapproval toward the court in 1995, the overall impact of these six appointments appears to have been more moderate than one might have reasonably expected at that time.
VII. FINAL THOUGHTS
The average Pataki Court of Appeals appointee was a fifty-five-year-old white Republican who came from a location outside New York City, previously served on a judicial body for at least a couple of years, and maintained some prior personal or professional affiliation with Pataki himself. A tendency toward supporting the prosecution in criminal cases and a firm stance in favor of the death penalty certainly augmented the likelihood of receiving Pataki's favor. However, a lack of information in either of these categories certainly was not fatal to the individual's chances of appointment, either.
When Pataki ridiculed the Court of Appeals in 1995, he gave the impression that a definite pro-prosecution stance would be his primary criterion in selecting judges for New York's highest court. When it came to actually picking six jurists for these important positions, however, several other factors appeared to enter the equation. Trends noted in this article indicate that Pataki seemed to consider categories such as political party membership, age, home region in New York State, and even past ties and friendships as important, if not more important, than an individual's actual record in criminal cases.
Once again, this article does not purport to answer whether Pataki's selection process was "good" or "bad," or comment on the merits of emphasizing or downplaying any of these factors. Rather, it proves a different point. Today, many political leaders follow Pataki's example in calling for the appointment of more judges who are "tough on crime." Undoubtedly, such pledges influence voters who see "tough on crime" judges as a conduit for maintaining public order and safety. (530)
Individuals who are influenced by this "tough on crime" rhetoric would be well-advised, however, to reflect upon the multiple factors considered in this article--a list which surely does not cover all of the nuances that go into a political leader's judicial appointments--and remember the multiple elements that appeared to underlie each choice. In doing so, these individuals might gain a sense of how difficult it is for any politician to appoint judges solely on the basis of each candidate's apparent friendliness toward prosecutors and law enforcement. Instead, the more nuanced approach described above presents a picture, albeit an imperfect one, of how a leader's vow to deliver "tough on crime" judges can actually look in the light of reality.
(1) See John Caher, Pataki Assails Court of Appeals, TIMES UNION (Albany, N.Y.), Nov. 2, 1995, at A1 [hereinafter Pataki Assails Court of Appeals].
(2) Id. (internal quotation marks omitted).
(3) Id. (internal quotation marks omitted).
(5) Id. (internal quotation marks omitted).
(6) Clifford J. Levy, Pataki Proposes Law to Let Prosecutors Appeal Sentences, N.Y. TIMES, Feb. 23, 1996, at A1.
(7) People v. O'Doherty, 70 N.Y.2d 479, 517 N.E.2d 213, 522 N.Y.S.2d 498 (1987).
(8) Pataki Assails Court of Appeals, supra note 1, at A1 (internal quotation marks omitted).
(9) People v. Ranghelle, 69 N.Y.2d 56, 503 N.E.2d 1011, 511 N.Y.S.2d 580 (1986).
(10) Pataki Assails Court of Appeals, supra note 1, at A1.
(12) See id.
(13) Id. (internal quotation marks omitted).
(14) Id. (internal quotation marks omitted).
(15) See, e.g., John Caher, 7 Are Nominated for Opening on Court of Appeals, TIMES UNION (Albany, N.Y.), Nov. 6, 1996, at B2 [hereinafter 7 Are Nominated] ("Pataki repeatedly has characterized the high court as a panel of criminal-coddling liberals, although studies show the Court of Appeals almost always rules in favor of the prosecution."); James Dao, Pataki Announces First Nomination to Highest Court, N.Y. TIMES, Dec. 4, 1996, at A1 ("The Governor has been a vocal critic of the Court of Appeals, all of whose members were selected by Mr. Cuomo, particularly on criminal justice issues."); Levy, supra note 6, at A1 ("The Governor last month went after the state's highest court, the Court of Appeals, introducing legislation that would make it more difficult for it to throw out evidence in criminal cases."); Richard Perez-Pena, Pataki Gets a Decision He Wanted on the State's Highest Court, N.Y. TIMES, July 7, 2006, at B7 ("From the time he took office, Gov. George E. Pataki vowed to remake the state judiciary, calling it too liberal and too eager to usurp elected officials' powers."); Joel Stashenko, On Law Day, Forces Rally Around Embattled Judiciary, TIMES UNION (Albany, N.Y.), Apr. 29, 1996, at B2 ("Pataki has been the most persistent critic of both the Court of Appeals and of other courts and judges in New York when they've ruled in favor of criminal defendants on what the governor has condemned as hypertechnical grounds."); James Taranto, An Unappealing Court, CITY J. (Spring 1996), http://www.cityj ournal.org/html/6_2_sndgs 10.html.
(16) See Clyde Haberman, State Courts Found Guilty by Jury of Peers, N.Y. TIMES, Mar. 8, 1996, at B1.
(17) Norman A. Olch, Soft on Crime? Not the New York Court of Appeals, N.Y.L.J., May 6, 1996, at 1 ("[T]he State Attorney General, Dennis Vacco, has declared the Court [of Appeals] is intent on coddling dangerous criminals.").
(18) Haberman, supra note 16, at B1 (internal quotation marks omitted); see also John M. Goshko, Accusations of Coddling Criminals Aimed at Two Judges in New York, WASH. POST, Mar. 14, 1996, at A3 (discussing Commissioner Bratton's comments regarding the Court of Appeals).
(19) Haberman, supra note 16, at B1 (internal quotation marks omitted); see Goshko, supra note 18, at A3.
(20) Pataki Assails Court of Appeals, supra note 1, at A1.
(23) Id. (alteration in original) (internal quotation marks omitted).
(24) See Joel Stashenko, 'Eggs and Tomatoes' Won't Sway Judges, TIMES UNION (Albany, N.Y.), Feb. 3, 1996, at B2.
(25) See id.-, see also Editorial, The Governor's Attack on the Judges, N.Y. TIMES, Feb. 3, 1996, at 22 (stating that the legislation would prevent the Court of Appeals from departing from United States Supreme Court jurisprudence in deciding unlawful seizure cases).
(26) Stashenko, supra note 24, at B2.
(27) See, e.g., The Governor's Attack on the Judges, supra note 25, at 22. The term "state constitutional independence" does not in any way claim that New York's judiciary sought to sever ties with the federal government of the United States. Rather, it refers to the long-accepted principle that while states cannot offer less protection to a particular party than what the United States Constitution offers, state constitutions can provide more protection than the current federal threshold in a particular area of law. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. Rev. 489, 491 (1977) (discussing the important, independent roles that state constitutions play in protecting the fundamental liberties of their state's citizens); William J. Brennan, Jr., The Bill of Rights and the States: The Revival of Stale Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. REV. 535, 550 (1986) ("[T]he Fourteenth Amendment fully applied the provisions of the Federal Bill of Rights to the states, thereby creating a federal floor of protection and ... the Constitution and the Fourteenth Amendment allow diversity only above and beyond this federal constitutional floor."). As James Madison explained in Federalist Paper No. 51:
In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controled [sic] by itself.
THE FEDERALIST No. 51, at 270 (James Madison) (George W. Carey & James McClellan, eds., 2001) (emphasis added).
Certainly, some states have, over the years, remained closely tied to federal law and federal court decisions on all or most issues arising in their state courts. See, e.g., Mary Cornelia Porter & G. Alan Tarr, The New Judicial Federalism and the Ohio Supreme Court: Anatomy of a Failure, 45 OHIO St. L.J. 143, 150 (1984) (analyzing the Ohio high court's tendency at that time to remain in "lockstep" with the United States Supreme Court, virtually never recognizing higher levels of protection under Ohio's state constitution); Christopher Slobogin, State Adoption of Federal Law: Exploring Florida's "Forced Linkage" Amendment, 39 U. FLA. L. REV. 653, 654--655 (1987) (discussing an amendment to Florida's state constitution requiring that the state's courts, when deciding search-and-seizure cases, use only the United States Supreme Court's interpretations of the Fourth Amendment to the Federal Constitution, and not rely on any state constitutional provisions or jurisprudence); see also Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, 496 ANNALS Am. Acad. POL. & SOC. SCI. 98, 99, 101 (1988) (discussing various reasons why a state court may adopt lockstep analysis).
However, refraining from independent state constitutionalism is a choice, not a mandate. See, e.g., Ronald K. L. Collins, Reliance on State Constitutions: Some Random Thoughts, in DEVELOPMENTS IN STATE CONSTITUTIONAL LAW 1, 2 (Bradley D. McGraw ed., 1985); Charles G. Douglas III, State Judicial Activism--The New Role For State Bills of Rights, 12 SUFFOLK U. L. Rev. 1123, 1123 (1978); Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY. L.J. 421, 421 (1974). Moreover, it is a choice that New York State, and particularly the New York State Court of Appeals, has historically not made. See, e.g., Vincent Martin Bonventre, State Constitutionalism in New York: A Non-Reactive Tradition, 2 EMERGING ISSUES ST. CONST. L. 31, 31 (1989) ("[T]he record [of independent state constitutionalism in New York State] is a long one and, overall, quite impressive."); Peter J. Galie, State Constitutional Guarantees and Protection of Defendants' Rights: The Case of New York, 1960-1978, 28 BUFF. L. REV. 157, 158-59 (1979); Robert M. Pitler, Independent State Search and Seizure Constitutionalism: The New York State Court of Appeals' Quest for Principled Decisionmaking, 62 BROOK. L. REV. 1,14 (1996).
(28) Notably, Pataki's ardent efforts to "reform" New York's judiciary stretched well beyond the Court of Appeals. While New York's high court is the focus of this article, Pataki also exerted heavy pressure on the appellate division and on the state's trial courts for more pro-prosecution decisions. Through new appointments, formal investigations into the criminal case rulings of certain judges, and battles in the court of public opinion, the Governor left his imprint on these courts as well. See, e.g., In re Duckman, 92 N.Y.2d 141, 145, 159-60, 699 N.E.2d 872, 874, 882, 677 N.Y.S.2d 248, 250, 258 (1998) (Titone, J., dissenting) ("Given the timing of the investigation and the severity of the sanction imposed [on a Bronx County trial court judge who dismissed nineteen prosecutions, leading to a Pataki-ordered investigation into whether this judge had abused his position], the conclusion is inescapable that the Judicial Conduct Commission bowed to the Governor's political threats and allowed itself to be used to advance the agenda of the Judge baiters who were feeding off the media frenzy."); Gary Spencer, Protection Order Abuse Elevated to Felony, N.Y.L.J, Aug. 9, 1996, at 1 (quoting Pataki calling judges the "weak link" in New York's criminal justice system); John Caher, Pataki Altering Face of Justice, TIMES UNION (Albany, N.Y.), Sept. 26, 1999, at El (discussing Pataki's appointments to New York's appellate division courts, the vast majority of whom were Republicans reputed to be "tough on crime"); Levy, supra note 6, at A1 (describing Pataki's own legislative proposal to allow prosecutors to appeal sentences and bail amounts for being "too lenient"); Sam Roberts, Pataki Goes Far Afield to Find Political Allies for the City Appellate Bench, N.Y. TIMES, Dec. 9, 2006, at B1 (discussing Pataki's departure from tradition in "importing" judges from outside New York City to sit on the Appellate Division, First Department, the highest state court in New York City).
(29) See Benjamin Pomerance, When Dad Reached Across the Aisle: How Mario Cuomo Created a Bipartisan Court of Appeals, 77 Alb. L. REV. 185, 187-88 (2013/2014).
(30) Id. at 264 (noting the relatively young age of many Mario Cuomo appointees to the Court of Appeals); see Dao, supra note 15, at A1 (stating that Pataki had only one opportunity to appoint a Court of Appeals judge prior to running for re-election).
(31) VINCENT MARTIN BONVENTRE, "STREAMS OF TENDENCY" on the New York Court: Ideological and Jurisprudential Patterns in the Judges' Voting and Opinions 194 (2003) [hereinafter STREAMS OF TENDENCY]; Dao, supra note 15, at A1.
(32) See Dao, supra note 15, at A1.
(33) Governor George Pataki, THE PATAKI-CAHILL GROUP, http://www.patakicahillgroup.com/ theTeam.aspx (last visited Nov. 22, 2014) ("Prior to starting the Pataki-Cahill Group, [Pataki] served three terms as the 53rd governor of New York State, from 1995 through 2006.").
(34) Those six judges were Richard Wesley, Albert Rosenblatt, Victoria Graffeo, Susan Read, Robert Smith, and Eugene Pigott. For a discussion about each of these judges, see infra Part V.
(35) At the time of this writing, only Mario Cuomo has selected more Court of Appeals judges than Pataki. See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, CANDIDATES NOMINATED for Appointment to the New York State Court of Appeals: 1979 to Present, available at http://nysegov.com/cjn/assets/documents/CJN%20Nominees%20for%20Court%20 1979%20to%20present.pdf. During his brief time in office, Eliot Spitzer selected only one new Court of Appeals judge, Theodore Jones, but also reappointed Chief Judge Kaye and Associate Judge Ciparick. Sewell Chan, Spitzer Selects a Black Jurist for Top Court, N.Y. TIMES, Jan. 15, 2007, at B1; see STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra, at 6. David Paterson, after replacing Spitzer, also selected just one judge, Chief Judge Jonathan Lippman. John Eligon, Paterson Picks Nominee for Top Judge, and Objects that his Choices Included No Women, N.Y. TIMES, Jan. 14, 2009, at A28; see STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra, at 6. At the time of this writing, Andrew Cuomo has selected two judges for the Court of Appeals, Jenny Rivera and Shelia Abdus-Salaam. Ken Lovett, Gov. Cuomo Set to Name Sheila Abdus-Salaam to Court of Appeals, N.Y. DAILY NEWS (Apr. 5, 2013), http://www.nydailynews.com/blogs/dailypolitics/gov-cuomo-set-judge-sheila-abdus-sala am-court-appeals-update-blog-entry-1.1694155. However, if Andrew Cuomo wins re-election in the 2014 gubernatorial race, then he would have the opportunity to trump Pataki's record by appointing seven Court of Appeals judges, leaving an Andrew Cuomo appointee in every seat on the court's bench. See Pomerance, supra note 29, at 185.
(36) Four Pataki appointees remain on the Court of Appeals as of this writing: Graffeo, Read, Smith, and Pigott.
(37) See, e.g., supra notes 1-14 and accompanying text.
(38) BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 12 (1921) (footnote omitted).
(39) See, e.g., STREAMS OF TENDENCY, supra note 31, at 6; Catharine Pierce Wells, Improving One's Situation: Some Pragmatic Reflections on the Art of Judging, 49 WASH. & LEE L. REV. 323, 323 (1992); Robert J. Brenner, Note, Institutional Conservatism and its Impact on Appellate Decision-Making: An Empirical Study of the United States Court of Appeals for the Second Circuit, 75 ALB. L. REV. 1145, 1146 (2011/2012); Christopher J. Stevens, Note, An Empirical Study of Dissent at the Supreme Court, Appellate Division, Third Department, 74 ALB. L. REV. 913, 913-14 (2010/2011).
(40) See, e.g., Anthony Champagne, Television Ads in Judicial Campaigns, 35 IND. L. REV. 669, 677-78 (2002) (describing the prevalence of tough on crime messages in judicial campaign ads); Henry J. Reske, Pointed Resignation: Judge B1asts Politicization of Judiciary, A.B.A. J., July 1996, at 40; Keith Swisher, Pro-Prosecution Judges: "Tough on Crime," Soft on Strategy, Ripe for Disqualification, 52 ARIZ. L. REV. 317, 323-38 (2010) (discussing the effective use of "tough on crime" marketing and messaging in recent judicial campaigns); Joanna Cohn Weiss, Note, Tough on Crime: How Campaigns for State Judiciary Violate Criminal Defendants' Due Process Rights, 81 N.Y.U. L. Rev. 1101, 1103-09 (2006).
(41) See supra note 40; see also N. Lee Cooper, Judges Are Not Fair Game, A.B.A. J., Oct. 1996, at 6 (analyzing the political tactic of "scapejudging," or taking certain cases out of context in an effort to prove that certain judges are "soft on crime" and thus responsible for crime rate increases in their jurisdiction); David N. Dinkins, Judicial System Under Attack, N.Y.L.J., June 10, 1996, at 2; Stephanie Ebbert, Brother Runs As Election Insurance in Governor's Council Race, BOS. GLOBE, Sept. 13, 2010, at B1 (quoting candidate for office as saying that our society should not be so soft on crime); Jerry Hicks, Tough Laws, Judges Vital, Wilson Says, L.A. TIMES, July 31, 1991, at A3 (describing then-California Governor Pete Wilson praising judges who are "tougher" on defendants in criminal cases); Mike McPhee, Most Judges Picked by Owens: Governor Leaves Lasting Legacy Amid High Judge Turnover, Owens Says He's Used His Seven Years in Office to Restore Balance to Courts, DENVER Post, Dec. 12, 2005, at A01 (quoting then-Colorado Governor Bill Owens saying that he wants prosecutor-friendly judges); Phil Williams, Justices Say They're Defending 'Independence' of Courts, News CHANNEL 5 (May 27, 2014), http://www.jrn.com/newschannel5 /news/newschannel-5-investigates/260859921.html (criticizing politicians for attacking judges with claims that certain jurists are "soft on crime"). See generally Anthony M. Platt, The Politics of Law and Order, 21 SOC. JUST. 3, 3 (1994) (discussing the rampant use of "law and order demagoguery" to achieve successful election outcomes).
(42) See 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY 151 (G. Alan Tarr & Robert F. Williams, eds., 2006) ("In fact, in 1994, Cuomo himself became the key issue. Opponents appealed for votes for George Pataki, Cuomo's Republican opponent, simply on the basis that Pataki was not Cuomo."); Lisa Anderson, G.O.P Novice Pataki Knocks Off Cuomo in N.Y., CHI. TRIE., Nov. 9, 1994, at 14 ("Pataki won the governor's mansion in Albany less because the people voted him in than because they voted Cuomo out.").
(43) See GEORGE E. PATAKI & DANIEL PAISNER, PATAKI: AN AUTOBIOGRAPHY 127 (1998) (describing key aspects of his "small town" upbringing in Peekskill, including working on coal cars at a local factory, an assignment that he called "[t]he hardest job [he] ever had"); see also Pataki Offers a Vision for New York, N.Y. TIMES, Oct. 10, 1994, at B5 ("I have experience in local government, which Mario Cuomo didn't have before he went into the Governor's office, and I think that's one of the reasons why we have seen things like the cost shifts and the mandates imposed on local government...").
(44) See generally Eric Pooley, The Un-Cuomo, N.Y. MAG., Sept. 19, 1994, at 41-42 (describing Pataki's mannerisms on the campaign trail and their particular allure to voters in New York's smaller, upstate communities).
(45) Maureen Dowd, Just Who Is Pataki Anyway?: The Politics of Self-Deprecation and Sentimentality, N.Y. TIMES, Oct. 21, 1994, at B1.
(46) See STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY, supra note 42, at 151; Anderson, supra note 42, at 14; Dowd, supra note 45, at B1; Pooley, supra note 44.
(47) See Dowd, supra note 45, at B1; Richard Perez-Pena, Pataki's Record: 2 Terms, Unexpected Turns, N.Y. TIMES, Oct. 30, 2002, at A1 ("George E. Pataki ran for governor in 1994 promising tax cuts, tougher criminal penalties, welfare reform and not much else.").
(48) Eric Prokosch, Death Penalty Developments, in THE INTERNATIONAL SOURCEBOOK ON CAPITAL PUNISHMENT 66, 71 (William A. Schabas ed., 1997); Elizabeth Kolbert, As Vote on Death Penalty Nears, Cuomo Advocates Life Sentences, N.Y. TIMES, June 19, 1989, at B10; Kevin Sack, Cuomo and Pataki End Bitter, Costly Race, N.Y. TIMES, Nov. 8, 1994, at B1; Kevin Sack, Pataki, Backing Executions, Assails Cuomo at Murder Site, N.Y. TIMES, Nov. 5, 1994, at A1.
(49) See Anderson, supra note 42, at 14; Dowd, supra note 45, at B1.
(50) See Anderson, supra note 42, at 14; John J. Goldman, In New York, Cuomo Loses to Once-Obscure Challenger, L.A. TIMES, Nov. 9, 1994, at A33; Kevin Sack, Pataki Beginning Bid to Transform State Government, N.Y. TIMES, Nov. 10, 1994, at A1.
(51) See Dowd, supra note 45, at B1.
(52) See id. For a discussion of Mario Cuomo's upbringing and its effect on his political positions, see Pomerance, supra note 29, at 189-99.
(53) See PATAKI & PAISNER, supra note 43, at 91, 100, 117 (noting that Pataki even strongly considered farming as his full-time career before entering law, and then politics); Dowd, supra note 45, at B1.
(54) Dowd, supra note 45, at B1.
(55) Goldman, supra note 50, at A33.
(56) Paul Grondahl, From 'Grufus' to the Governor, TIMES UNION (Albany, N.Y.), Dec. 18, 1994, at A1.
(57) Dowd, supra note 45, at B1.
(58) Id. (internal quotation marks omitted).
(59) PATAKI & PAISNER, supra note 43, at 139; George Pataki to Speak at Graduation, FORDHAM U. SCH. LAW (May 9, 2011), http://law.fordham.edu/22080.htm.
(60) PATAKI & PAISNER, supra note 43, at 132 ("Vietnam was all we talked about."). Pataki supported American involvement in Vietnam during his student days. Dowd, supra note 45, at B1.
(61) Dowd, supra note 45, at B1.
(62) George Pataki, CBS NEWS (Oct. 9, 1998), http://www.cbsnews.com/news/ny-gov-pataki/.
(64) Former New York Governor Pataki Joins Chadbourne, Chadbourne (Mar. 7, 2007), http://www.chadbourne.com/newsevents/newsdetail.aspx?news=449; George Pataki, supra note 62.
(65) See Dowd, supra note 45, at B1 (noting that Roosevelt was one of Pataki's favorite political figures).
(66) PATAKI & PAISNER, supra note 43, at 143 ("In the summer before I joined Dewey, Ballantine full-time, I applied for a low-level advance position in Nelson Rockefeller's 1970 gubernatorial campaign."); George Pataki, supra note 62.
(67) Pooley, supra note 44, at 44.
(68) Id. During his time as mayor of Peekskill, Pataki carved out a reputation for hardball tactics, but also for excellent economic results. See id.
(69) Ian Fisher, Pataki Unveils a Television Ad Campaign, N.Y. TIMES, Aug. 2, 1994, at B4.
(70) See infra notes 82-94 and accompanying text.
(71) George Pataki, supra note 62.
(72) Joseph Berger & Matthew Purdy, Pataki and Peekskill: Reviving a City, Then Profiting in a Realty Boom, N.Y. TIMES, Oct. 27, 1994, at B7.
(73) Id.; Pooley, supra note 44, at 44.
(74) Berger & Purdy, supra note 72, at B7.
(75) Id. (internal quotation marks omitted).
(76) See Id.
(77) James Dao, Pataki, Too, Is Pinched Without Pay, N.Y. TIMES, May 2, 1995, at B1 ("Mr. Pataki received a $60,000 loan in 1991 from Paul Guillaro, a developer, to finance engineering plans for the Peekskill farm."); Tom Precious, Pataki: From Peekskill to the Big Time, TIMES Union (Albany, N.Y.), Oct. 30, 1994, at A1 ("One development company, for example, involved in Peekskill real estate projects--including turning part of Pataki's family farm into a subdivision--gave Pataki a $60,000 personal loan a few years ago.").
(78) See Dowd, supra note 45, at B1; George Pataki, supra note 62.
(79) Dowd, supra note 45, at B1.
(80) See Pooley, supra note 44, at 46. Some commentators viewed this victory as a pivotal point in Pataki's political career, priming him for the gubernatorial race in 1994. See id.
(81) Dowd, supra note 45, at B1.
(82) Kevin Sack, State Senator Pataki Formally Declares Challenge to Cuomo, N.Y. Times, Mar. 15, 1994, at B5.
(83) See Francis X. Clines, Just Don't Call Me King, D'Amato Says of Pataki Victory, N.Y. TIMES, Nov. 10, 1994, at B1; Craig Horowitz, Al D'Amato: Senator Pothole, Proudly, N.Y. MAG., Apr. 6, 1998, at 135, 135; Kevin Sack, D'Amato's Push for Pataki Ends a Long Cuomo Truce, N.Y. TIMES, Aug. 22, 1994, at A1.
(84) See Sack, supra note 83, at A1.
(85) See Anderson, supra note 42, at 14; Governor's Race Poses the Big Pataki Question, ORLANDO SENTINEL, July 4, 1994, at A14 (describing D'Amato "shepherding" Pataki's nomination through the daunting State Republican Convention); Steve Kornacki, The Saddest Republican Candidacy of Them All, SALON (Aug. 25, 2011), http://www.salon.com/2011/08/25/george_pataki_2012/ (arguing that Pataki owed his 1994 gubernatorial victory to D'Amato's efforts on his behalf).
(86) See Dowd, supra note 45, at B1.
(87) See Clines, supra note 83, at B1; Dowd, supra note 45, at B1; Sack, supra note 83, at A1.
(88) Clines, supra note 83, at B1; James Dao, G.O.P. Leaders Bury Hatchets, But Shallowly, N.Y. TIMES, Sept. 8, 1994, at B6. In fact, some observers asserted that D'Amato supported Pataki so vigorously only because D'Amato was upset with Mario Cuomo for comments that D'Amato considered offensive. See Sack, supra note 83, at A1.
(89) Kevin Sack, G.O.P. Race for Governor is Narrowed, N.Y. TIMES, May 21, 1994, at 27; see Dao, supra note 88, at B6. Ultimately, the Republican primary came down to Pataki against Rosenbaum. Dao, supra note 88, at B6.
(90) See John J. Goldman, Boost from Giuliani Lifts Cuomo Back Into Tight Contest, L.A. Times, Oct. 28, 1994, at A35.
(91) See, e.g., New Poll Gives Cuomo 13-Point Lead in New York, ORLANDO SENTINEL, Nov. 2, 1994, A6 (noting that even as late as November 2, at least one major poll showed Cuomo leading Pataki by 13 percentage points).
(92) Anderson, supra note 42, at 14; Goldman, supra note 50, at A33.
(93) See supra notes 46-49 and accompanying text.
(94) See supra notes 46-49 and accompanying text.
(95) See Kevin Sack, New York Voters End a Democratic Era, N.Y. TIMES, Nov. 9, 1994, at A1.
(96) Ian Fisher, Clamor Over Death Penalty Dominates Debate on Crime, N.Y. TIMES, Oct. 9, 1994, at 45.
(97) See Editorial, No More Willie Hortons, N.Y. TIMES, Dec. 13, 1991, at A38.
(98) See Dowd, supra note 45, at B1 (describing this advertisement in detail).
(99) See Joel Connelly, The 1994 Republican Landslide and Its Aftermath, CHI. TRIB., June 13, 1996, at 3 (reviewing ELIZABETH DREW, SHOWDOWN: THE STRUGGLE BETWEEN THE Gingrich Congress and the Clinton White House (1996)); Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. TIMES, Nov. 9, 1994, at B11. Interestingly, most of these Republican triumphs in 1994 had at least one common factor: a vow from the victorious candidate to implement "tough on crime" policies. See John J. Dilulio, Jr., Prisons Are a Bargain, By Any Measure, N.Y. TIMES, Jan. 16, 1996, at A17 ("All 30 Republican governors elected or re-elected in 1994 promised to get tough on crime.").
(100) Dowd, supra note 45, at B1.
(101) See, e.g., Michael Cooper, The Shadow of His Predecessor Dominates the Pataki Legacy, N.Y. TIMES, July 29, 2005, at B5; Marc Humbert, Pataki's Legacy Still Being Written, POSTSTAR.COM (Dec. 17, 2006), http://poststar.com/opinion/commentary/ pataki-s-legacy-stillbeing-written/article_de903ef9-82e6-54a2-b949-a77030b8e50a.html; N.Y.'s Pataki Says He Won't Run for Re-Election, NBCNEWS.COM (July 27, 2005), http://www.nbcnews.com/id/87193 63/ns/politics/t/nys-pataki-says-he-wont-run-re-election/; Rita Nissan, Governor George Pataki's Legacy a Mixed Bag, TIME WARNER CABLE NEWS: NY1 (July 27, 2005), http://www.nyl.com/content/news/52396/governor-george-pataki-s-legacy-a-mixed-bag.
(102) James Dao, Death Penalty in New York Reinstated After 18 Years; Pataki Sees Justice Served, N.Y. TIMES, Mar. 8, 1995, at A1; William Glaberson, Division Over Death Penalty, N.Y. TIMES, Nov. 29, 2003, at B1.
(103) Michael Finnegan & Zachary Margulis, Gov, Rivals OK Plan to Ax Taxes by 25%, N.Y. Daily News, May 21,1995, at 2.
(104) See Mary Beth Pfeiffer, Pataki Introduces Drug Law Reforms, POUGHKEEPSIE J. (Jan. 18, 2001), http://archive.poughkeepsiejournal.com/projects/prison/co011801sl.shtml; see also Kenneth Lovett, Pataki Set to Spring Inmates, N.Y. POST, Jan. 31, 2003, at 3 (describing Pataki's willingness in 2003 to allow early release to those incarcerated for drug crimes).
(105) See Kenneth Lovett & Alison Gendar, Pataki for Prez? It's Just Wacky, N.Y. DAILY NEWS, Aug. 22, 2011, at 4 ("[Pataki is] pro-choice, pro-union and pro-gay marriage...."); Darryl McGrath, Many Credit Pataki as Conservationist, BOS. GLOBE, Aug. 1, 2004, at A22; Perez-Pena, supra note 47, at A1.
(106) See, e.g., Marc Humbert, 'Fiscal Conservative' Pataki Becoming Big Spender, PRESSREPUBLICAN (Plattsburgh, N.Y.), Jan. 21, 1998, at A5; Marc Humbert, Pataki Unveils $99.8 Billion Budget Plans, CANARSIE COURIER (Jan. 22, 2004), http://rn.canarsiecourier.eom/news/2 004-01-22/OtherNews/054.html; George J. Marlin, Blue NY Gets a Red Budget, LlBN.COM (Apr. 22, 2011), http://libn.com/2011/04/21/marlin-blue-ny-gets-a-red-budget/ (stating that New York State's budget increased eighty-three percent during his tenure); E.J. McMahon, Final Pataki Budget: Spend Now, Cut Taxes Later, N.Y. TORCH (Mar. 23, 2006), http://www.empirecenter.org/publications/final-pataki-budget-spend-now-cut-taxes-later/.
(107) See Richard Perez-Pena, Golisano Attacks Pataki on Conservative Issues, N.Y. Times, Aug. 17, 2002, at B1; Stephen Slivinski, Pataki: The Fall of a 'Rising Star, 'N.Y. POST, Oct. 25, 2006, at 29; Richard Brookhiser, One Critic's View of the Pataki Era, N.Y. OBSERVER (Oct. 23, 2006), http://observer.com/2006/10/one-critics-view-of-the-pataki-era/; Thomas W. Carroll, Governor Pataki's Failure, ClTYj., (Spring 2000), http://www.city-journal.org/html/10_2_gove rnor_pataki.html.
(108) See, e.g., Editorial, Governor Pataki's Ethics Problem, N.Y. TIMES, Sept. 30, 1999, at A28; Clifford J. Levy, Donor Linked to Pataki Trips, TIMES UNION (Albany, N.Y.), Sept. 28, 1999, at A1; Editorial, Mr. Pataki's Moonlighting, N.Y. TIMES, Feb. 4, 1997, at A22; Pataki Says He Was Unaware of Who Contributed to Trips, DAILY GAZETTE (Schenectady, N.Y.), Oct. 15, 1999, at B6; Perez-Pena, supra note 47, at A1.
(109) See, e.g., Governor Pataki's Ethics Problem, supra note 108, at A28; Levy, supra note 108, at A1; Pataki Says He Was Unaware of Who Contributed to Trips, supra note 108, at B6; Perez-Pena, supra note 47, at A1.
(110) See, e.g., Governor Pataki's Ethics Problem, supra note 108, at A28; Levy, supra note 108, at A1; Perez-Pena, supra note 47, at A1. Interestingly, Pataki also vigorously campaigned for stiffer ethics laws governing the conduct of New York State's legislative branch. See BETH A. ROSENSON, THE SHADOWLANDS OF CONDUCT: ETHICS AND STATE POLITICS 115 (2005) (discussing Pataki's calls for greater oversight of legislative ethics).
(111) See supra notes 1-14 and accompanying text.
(112) See supra notes 1-15 and accompanying text.
(113) For example, Pataki's remark that "[t]he Court of Appeals has gone too far," rather than naming specific judges who had "gone too far," implied uniformity among the court's voting in criminal cases. Pataki Assails Court of Appeals, supra note 1, at A1. However, as this section points out, such an assumption about the court's voting patterns was quite far from the truth.
(114) por an overview of the ideological diversity among Mario Cuomo's Court of Appeals appointees, see Pomerance, supra note 29, at 262-63, 268-69.
(115) John Caher, Levine OK'd for High Court, TIMES UNION (Albany, N.Y.), Sept. 8, 1993, at A1; Michael Oreskes, Cuomo Appoints a G.O.P. Judge to Appeals Seat, N.Y. TIMES, Jan. 4, 1983, at A1.
(116) Timothy B. Lennon, Joseph W. Bellacosa: Cardozo's Knight-Errant?, 59 ALB. L. REV. 1827, 1827 (1996) (describing Bellacosa as "one of the most consistently 'conservative' members" of the Court of Appeals).
(117) James Dao, Cuomo Choice for Top Court Is Woman, 51, N.Y. TIMES, Dec. 2, 1993, at B1; Sarah Lyall, Cuomo Says He'll Name Black Judge to Top Court, N.Y. TIMES, Aug. 25, 1992, at B5; Editorial, The Cuomo Court, N.Y. TIMES, Dec. 2, 1985, at A14; Jeffrey Toobin, The Bench: Special Kaye, NEW YORKER, Dec. 15, 2008, at 34.
(118) See STREAMS OF TENDENCY, supra note 31, at 241; Luke Bierman, The Dynamics of State Constitutional Decision-Making: Judicial Behavior at the New York Court of Appeals, 68 TEMP. L. Rev. 1403, 1408-09 (1995); Daniel Wise, Wachtler Court at 5; Panel Defies Labels, but Individual Trends Emerge, N.Y.L.J., Oct. 15, 1991, at S-3 (1991). In a way, Wachtler was a surprising judge to lead such a shift in the court's voting, given that he had written rather outspokenly about protecting individual rights and the important role state constitutions play in safeguarding these personal liberties. See, e.g., Sol Wachtler, Our Constitutions--Alive and Well, 61 St. JOHN'S L. REV. 381, 397 (1986). However, there is no question that Wachtler's decisions were the barometer of the court's direction during his time as chief judge. Remarkably, he wrote only fifteen dissents during his entire period in the chief judge's chair. John R. Bunker, "You Could Look It Up": The Judicial Opinions of Sol Wachtler on the New York Court of Appeals, 52 SYRACUSE L. REV. 847, 879 (2002). Thus, even as he switched from markedly proindividual to markedly pro-Government in his decision-making, Wachtler's vote continued to represent the majority vote of the court in almost all cases. See id.
(119) Vincent Martin Bonventre, Court of Appeals--State Constitutional Law Review, 1991, 14 PACEL. REV. 353, 442 (1994) [hereinafter 1991 Review],
(120) See Lisa Anderson, Judge's Fall a Painfully Public Tale of Obsession, CHI. TRIB., Nov. 14, 1992, at 1.
(121) Gary Spencer, Dust Settles After Year of Turmoil, N.Y.L.J., Nov. 1, 1993, at S2.
(122) See Marcia B. Smith, Comment, Judith S. Kaye: Progressive Decision making Rooted in the Common Law, 59 Alb. L. Rev. 1763, 1772-77 (1996); see also Vincent Martin Bonventre, New York's Chief Judge Kaye: Her Separate Opinions Bode Well for Renewed State Constitutionalism at the Court of Appeals, 67 TEMP. L. REV. 1163, 1199-1205 (1994) [hereinafter New York's Chief Judge Kaye] (stating that during this time the court began to side with individual claimants much more often).
(123) Holdovers from the "Wachtler Era" of dominantly pro-Government judging were Simons, Kaye, Titone, Bellacosa, and George Bundy Smith. See New York's Chief Judge Kaye, supra note 122, at 1201, 1203. Smith served on the Court of Appeals only a couple of months before Wachtler's arrest; the others had served significantly longer. Id. at 1203.
(124) See, e.g., Vincent Martin Bonventre, Court of Appeals--State Constitutional Law Review, 1990, 12 PACE L. Rev. 1, 47 (1992) [hereinafter 1990 Review] (stating that in 1990, the Court of Appeals was divided on sixty-three percent of cases involving substantive questions of state constitutional law); William Glaberson, Dissenting Often, State's Chief Judge Establishes a Staunchly Liberal Record, N.Y. TIMES, Oct. 10, 2011, at A19.
(125) Divided decisions are often thought to contain the most revealing observations into a particular judge's ideologies and beliefs. See, e.g., New York's Chief Judge Kaye, supra note 122, at 1167-68.
(126) Bierman, supra note 118, at 1441; Richard Perez-Pena, A Liberal on Top Court is Resigning, N.Y. TIMES, Feb. 21, 1998, at B1; Wolfgang Saxon, Vito Titone of Top New York Court Dies at 76, N.Y. TIMES, July 8, 2005, at B8 ("Judge Vito J. Titone [was] a firm liberal voice on the New York State Court of Appeals.").
(127) Paul Schwartzman, Judge Tells Pataki to Can Criticism, N.Y. DAILY NEWS, Feb. 3, 1996, at 5.
(128) 1990 Review, supra note 124, at 50.
(129) See 1991 Review, supra note 119, at 455 tbl. B; see also STREAMS OF TENDENCY, supra note 31, at 1 & n.l (stating that between 1987 and August 1998, Titone voted for the defendant in seventy-seven percent of all divided criminal cases that he heard on the Court of Appeals).
(130) See supra notes 128-29 and accompanying text (pointing out Titone's almost uniformly pro-defendant record during the heart of Wachtler's pro-prosecution shift).
(131) See John M. Bagyi, Comment, Carmen Beauchamp Ciparick: The Court of Appeals' Voice of Compassion, 59 ALB. L. Rev. 1913, 1920-22 (1996).
(132) Pomerance, supra note 29, at 256-57.
(133) See id. at 257. Ciparick was fifty-one-years-old when Mario Cuomo appointed her to the Court of Appeals. Id. Thus, she could serve her entire fourteen-year term on the court and have five years left before reaching the mandatory retirement age of 70.
(134) See, e.g., STREAMS OF TENDENCY, supra note 31, at 14 (calling Bellacosa a "militant" pro-prosecution jurist); John Caher, Cuomo's High Court is Steering Rightward, Study Concludes, TIMES UNION (Albany, N.Y.), June 2, 1991, at B2 (crediting Simons as joining Wachtler in steering the Court of Appeals toward more prosecution-friendly decisions).
(135) Alan Finder, Judge Bellacosa to Leave Court of Appeals Before Term Ends, N.Y. TIMES, Apr. 1, 1999, at B9.
(136) STREAMS OF TENDENCY, supra note 31, at 1-2.
(137) See, e.g., 1991 Review, supra note 119, at 455 tbl. B.
(138) Bellacosa's signed opinions in criminal cases frequently offered effervescent paeans to the United States Supreme Court. See, e.g., People v. Harris, 77 N.Y.2d 434, 442, 570 N.E.2d 1051, 1056, 568 N.Y.S.2d 702, 707 (1991) (Bellacosa, J., dissenting) (blaming the Court of Appeals's majority for ignoring the "analysis, wisdom and experience" of the United States Supreme Court regarding self-incrimination after warrantless arrests by police); People v. Kohl, 72 N.Y.2d 191, 199, 527 N.E.2d 1182, 1186, 532 N.Y.S.2d 45, 49 (1988) (praising the "modern and sound jurisprudence" of the United States Supreme Court and then denouncing his dissenting brethren on the Court of Appeals for departing from the Supreme Court's line of cases). Simons, while not as effervescent as Bellacosa about the United States Supreme Court's logic, still strongly believed that state court departures from the Supreme Court's jurisprudence should be few and far between. See David E. McCraw, "Doubts About Our Processes": Richard D. Simons and the Jurisprudence of Restraint in State Constitutional Analysis, 13 TOUROL. REV. 613, 615 (1997).
(139) See EDWARD V. SCHNEIER ET AL., NEW YORK POLITICS: A TALE OF TWO STATES 260 (2d. ed., 2010) (describing Smith as arguably the most liberal judge on the entire Court of Appeals bench); STREAMS OF TENDENCY, supra note 31, at 16-17 (revealing Smith's proindividual voting trends in both civil and criminal cases); Richard C. Wesley, A Tribute to Hon. George Bundy Smith: A Friend and Colleague, 34 FORDHAM URB. L.J. 1156, 1158 (2007) (noting that Smith was widely considered the "most liberal" judge on the Court of Appeals).
(140) People v. Calabria, 94 N.Y.2d 519, 727 N.E.2d 1245, 706 N.Y.S.2d 691 (2000).
(141) People v. Benevento, 91 N.Y.2d 708, 697 N.E.2d 584, 674 N.Y.S.2d 629 (1998).
(142) Calabria, 94 N.Y.2d at 522-23, 727 N.E.2d at 1247-48, 706 N.Y.S.2d at 693-94 (holding that unfair Government tactics deprived the defendant of a fair trial); Benevento, 91 N.Y.2d at 713, 697 N.E.2d at 588, 674 N.Y.S.2d at 633 (deciding that New York State recognized a higher standard under its state constitution regarding the criminal defendant's right to effective assistance of counsel than the United States Supreme Court allowed under the United States Constitution).
(143) Charles J. Scibetta, Jr., George Bundy Smith: A Reliability Based Criminal Jurisprudence, 59 Alb. L. Rev. 1853, 1854 (1996).
(144) Id. at 1855.
(145) Id. Among Smith's pro-prosecution votes during this period were several cases that seem well-suited to Pataki's law enforcement-friendly desires. See, e.g., People v. Wesley, 83 N.Y.2d 417, 425, 633 N.E.2d 451, 455, 611 N.Y.S.2d 97, 101 (1994) (deciding that the trial court properly admitted DNA evidence against criminal defendant); Boyd v. Constantine, 81 N.Y.2d 189, 196, 613 N.E.2d 511, 514, 597 N.Y.S.2d 605, 608 (1993) (declining to extend the exclusionary rule to a New York State Police administrative hearing, holding that excluding certain evidence would adversely affect "the truth-finding process" in the proceeding); People v. Castillo, 80 N.Y.2d 578, 585-87, 607 N.E.2d 1050, 1054-55, 592 N.Y.S.2d 945, 949-50 (1992) (agreeing that denying a defendant's motion to inspect a search warrant and related law enforcement papers did not violate the defendant's federal and state constitutional due process rights).
(146) Vincent Martin Bonventre & Kelly M. Galligan, Court of Appeals Update, 2000 & 2001: Conservative Voting, Narrow Rulings, 65 Alb. L. Rev. 1085, 1108-10 (2002).
(147) Id. at 1110.
(148) Bagyi, supra note 131, at 1931 (stating that Levine's voting record in criminal cases was the "most 'conservative'" of any Court of Appeals judge during this period); see also STREAMS OF Tendency, supra note 31, at 5 ("[Levine's] voting has generally been favorable to the prosecution"); Jason J. Legg, Howard A. Levine: Paladin of the State, 59 Alb. L. Rev. 1879, 1882-83 (1996) ("[Judge Levine's voting record] places a great deal of reliance and discretion into the hands of the police and prosecutors as initial screeners in determining whether a legitimate violation is brought before the court ... routinely granting wide latitude and discretion to police, prosecutors, and the state.").
(149) Gary Spencer, Conservative Look to 1994 Rulings: Prosecutors Have Reason to Be Encouraged, N.Y.L.J., Oct. 3, 1994, at S3 (internal quotation marks omitted).
(150) Streams of Tendency, supra note 31, at 67-68.
(151) See id. at 67; see also Smith, supra note 122, at 1763 (noting that Kaye decides each case independently and one is not always able to predict her vote based on past cases and her label as a liberal judge); John Caher, Kaye Named to Replace Wachtler, TIMES UNION (Albany, N.Y.), Feb. 23, 1993, at A1 ("Kaye, often characterized as a liberal feminist, is squarely in the ideological center of the court, a potential swing vote on a panel known more for consensus than contentiousness."); Carol Demare, Kaye Exits 'Role of a Lifetime,' TIMES UNION (Albany, N.Y.), Dec. 28, 2008, at A1 (stating that Kaye was "idealistic" and able to sway the court in her chosen directions early in her career on the Court of Appeals, but ultimately settled into the role of a moderate liberal on the bench (internal quotation marks omitted)).
(152) People v. Smith, 63 N.Y.2d 41, 78-79, 468 N.E.2d 879, 898, 479 N.Y.S.2d 706, 725 (1984). During her tenure on the Court of Appeals, Kaye would vote twice more to find the death penalty unconstitutional in New York State. People v. Mateo, 2 N.Y.3d 383, 398, 811 N.E.2d 1053, 1060, 779 N.Y.S.2d 399, 406 (2004); Hynes v. Tomei, 92 N.Y.2d 613, 626, 706 N.E.2d 1201, 1207, 684 N.Y.S.2d 177, 183 (1998).
(153) Again, this reflects the court's position when Pataki became governor, not the ultimate stances of these judges. In fact, at the time of Pataki's first election, one could reasonably argue that Kaye qualified as a consistent vote for defendants in criminal cases rather than an unpredictable voter in these matters. STREAMS OF TENDENCY, supra note 31, at 67-68. Under this viewpoint, the court's direction really rested in the hands of George Bundy Smith, with the bench deadlocked between three typically pro-prosecution voters (Simons, Bellacosa, and Levine) and three typically pro-defendant voters (Titone, Ciparick, and Kaye).
(154) See supra notes 126-38, 148-49 and accompanying text.
(155) This fact was not lost on commentators of that time period. See Vincent Martin Bonventre & Judi A. DeMarco, Court Bashing and Reality: A Comparative Examination of Criminal Dispositions at the New York Court of Appeals and Neighboring High Courts, 36 JUDGES J. 9, 12-13 (1997) (finding that the Court of Appeals was actually one of the more prosecution-friendly state high courts in the northeastern United States during the previous six years); John Caher, Rulings Are Anything But Predictable at the Top, TIMES UNION (Albany, N.Y.), Jan. 28, 1996, at A6; Olch, supra note 17, at 1; Robert Reno, If Jails Are Full, How Much Tougher Can Judges Get?, NEWSDAY, Feb. 8, 1996, at A55 (pointing out that the Court of Appeals ruled in favor of prosecutors nearly three-quarters of the time during the previous term, and asking how much "tougher on crime" Pataki wanted the court to become).
(156) See Pomerance, supra note 29, at 199-200, 260-62.
(157) Antonio E. Galvao, Carmen Beauchamp Ciparick, in JUDGES OF THE New YORK COURT OF APPEALS: A BIOGRAPHICAL History 910, 918 (Albert M. Rosenblatt ed., 2007) [hereinafter JUDGES OF THE New York Court of Appeals]; Jennifer Fermino, 'Special' Kaye Made Herstory, N.Y. POST, Mar. 12, 2010, at 7.
(158) Gary Spencer, Ciparick Named to Court of Appeals: Supreme Court Justice is First Hispanic Nominee, N.Y.L.J., Dec. 2, 1993, at 1.
(159) Pomerance, supra note 29, at 246 n.414.
(160) E.R. Shipp, New York's High Court is a Cuomo Production, N.Y. TIMES, Jan. 18, 1987, at 35.
(161) Pomerance, supra note 29, at 263. Judge Stewart F. Hancock also came from an upstate location, but was no longer on the Court of Appeals when Pataki was elected (replaced by Ciparick). See Hope B. Engel, Stewart Freeborn Hancock, Jr., in JUDGES OF THE New York Court of Appeals, supra note 157, at 854,855.
(162) Pomerance, supra note 29, at 263.
(163) See, e.g., Robert B. Ward, New York State Government 36 (2d. ed. 2006) ("[T]he political and economic divide between Upstate and Downstate retains some of that historical flavor.... Upstaters tend to be more socially and fiscally conservative, and Downstaters more liberal."). Of course, this notion does not always hold true. For example, Bellacosa came from New York City but proved to be one of the most prosecution-friendly and conservative judges on the court. See STREAMS OF TENDENCY, supra note 31, at 14; Jeffrey Schmalz, Cuomo Is Said to Pick Judge for Top Court, N.Y. TIMES, Jan. 5, 1987, at B1.
(164) See Pomerance, supra note 29, at 264.
(165) See id. Between 1990 and 1992, a flurry of events allowed Cuomo to make four changes to the Court of Appeals: elevating Kaye to the position of Chief Judge after Wachtler's arrest and resignation, appointing Levine to replace Kaye's vacant Associate Judge's seat, appointing Smith to replace Fritz Alexander II (who resigned to become Deputy Mayor of New York City), and appointing Ciparick to replace the retiring Stewart F. Hancock. See id. at 242-43, 252, 255-57.
(166) See supra notes 22-27 and accompanying text.
(167) See, e.g., Sol Wachtler, Judiciary in Need of Diversity, TIMES UNION (Albany, N.Y.), Mar. 22, 2013, at D2 ("Gov. Mario Cuomo brought diversity to the Court of Appeals...."); Mario Cuomo, Former Governor of New York, F. ON L., CULTURE & SOC'Y AT NYU SCH. L., http://www.forumonlawcultureandsociety.org/bio/mario-cuomo-former-governor-of-new-york/ (last visited Nov. 22, 2014) ("Governor Cuomo also set a new standard for both diversity and judicial achievement on the state's highest court, appointing all seven members of New York's highly regarded Court of Appeals, including the first and second women judges, the first black, the first Hispanic, and the first woman to serve as Chief Judge."); Press Release, P.R. Bar Ass'n, Court of Appeals Vacancy (Nov. 13, 2012), http://prbany.com/prba-press-releasecourt-of-appeals-vacancy/ ("Governor Mario Cuomos [sic] record on diverse appointments will be lauded for generations to come. It is a legacy he can be proud of."); see also Mario Cuomo, We Must Lead the Charge, 36 Ct. REV. 14, 15 (Fall 1999) (discussing the benefits that diversifying the Court of Appeals had for New York State).
(168) See, e.g., Editorial, A New Judge for New York's Top Court, N.Y. Times, Aug. 25, 1992, at A20 ("Mr. Cuomo was wise to choose Justice Smith, a black member of the Appellate Division's downstate region, thereby maintaining previously achieved racial and geographic balance."); Kevin Sack, Alexander's Departure Leaves Cuomo Tricky Task of Picking a New Judge, N.Y. TIMES, Feb. 9, 1992, at 36.
(169) Dao, supra note 117, at B1; see also Edwin Martinez, Jr., Choosing Ciparick Boosts Hispanics, BUFF. NEWS, Jan. 25, 1994, at B-2 ("I know that I, as a Hispanic parent with two young children, feel even more proud today to be Hispanic.").
(170) John F. O'Mara, Pataki's Special Counsel during those early years in Albany, apparently held the concept of a diverse bench in high esteem. JOHN F. O'MARA, TESTIMONY BEFORE THE SENATE STANDING COMMITTEE ON THE JUDICIARY ON THE NOMINATION PROCESS for Judges to the New York State Court of Appeals 10 (Feb. 3, 2009), available at http://nysegov.com/cjn/assets/documents/press/Prepared_Testimony_of_Judge_OMara.pdf ("There is no doubt in my mind that diversity in appointments to the Court of Appeals reinforces public confidence in the Judiciary and substantially enriches the jurisprudence of this diverse State."). It is worth observing whether this frame of mind--assuming that O'Mara's views were similar in the mid-1990s--may have affected Pataki's appointments in any way.
(171) See supra notes 43-45, 51-54 and accompanying text.
(172) See supra notes 43-45, 51-54 and accompanying text.
(173) when an amendment to the New York State Constitution in 1978 changed the process for choosing Court of Appeals judges from a popular election to a merit appointment system, rampant partisanship was one of the primary concerns that New Yorkers feared the new system would produce. See David Margolick, New York's Court of Appeals Faces Vast Changes as a New Era Begins, N.Y. TIMES, Nov. 7, 1982, at A1.
(174) Pomerance, supra note 29, at 262-63. Cuomo appointed "five Democrats (Kaye, Alexander, Titone, Smith, and Ciparick), four Republicans (Simons, Wachtler, Hancock, and Levine), and one registered [conservative] independent (Bellacosa)." Id. at 262.
(175) N.Y. CONST, art. VI, [section] 25(b).
(176) See supra notes 1-6 and accompanying text.
(177) It is true that researchers typically examine only divided decisions when analyzing jurisprudential patterns. Such decisions are believed to provide the greatest insight into a judge's voting tendencies. See supra note 125. However, this article assumes that when deciding whether to select a judge, an executive leader and his or her advisors would examine all of that judge's signed opinions, even if the judge were writing for a unanimous court. It is this author's belief that public perception is quite important in selecting judges for appellate positions. Assuming this to be correct, then any published opinion bearing that judge's name would seem ripe for scrutiny and could be factored into the decision of whether to appoint that candidate.
(178) Simons officially retired on December 31, 1996. See Stewart F. Hancock, Jr., Alan J. Pierce & Patrick M. Connors, Dedication to the Honorable Richard D. Simons, 47 SYRACUSE L. REV. 287, 287 (1997).
(179) See Joel Stashenko, Pataki Expected to Get Republican on Highest Court, TIMES UNION (Albany, N.Y.), Jan. 13, 1997, at B2.
(180) See id.; see also Pataki Assails Court of Appeals, supra note 1, at B3 ("[O]nly one conservative Republican Richard D. Simons--will be up for reappointment during Pataki's first term."); Dao, supra note 15, at A1 ("[I]t is also very likely to be the Republican Governor's only selection to the high court before the next election, and will not substantially shift the ideological position of a seven-member panel that will remain dominated by appointees of former Gov. Mario M. Cuomo, a Democrat.").
(181) 7 Are Nominated, supra note 15, at B2.
(183) Altman was a downstate Democrat with a generally proindividual rights voting record in civil cases and close ties to Mario Cuomo and Judith Kaye. None of these attributes would appear to be particularly appealing attributes to Pataki. See 7 Are Nominated, supra note 15, at B2; Wolfgang Saxon, Myriam J. Altman, 65, New York State Appeals Court Judge, N.Y. TIMES, Feb. 4, 2005, at B7.
(184) See, e.g., Denise M. Champagne, Justice Green Honored with Courtroom Dedication, N.Y. DAILY RECORD Jan. 25, 2012, available at 2012 WLNR 28757642; Denise M. Champagne, Justice Green's Last Day on the Bench a Memorable One, CHALLENGER COMMUNITY NEWS (Jan. 12, 2012), http://challengercn.com/justice-greens-last-day-on-the-bench-a-memorable-one/; Tony Farina, New York Law Journal to Honor Justice Sam Green, NIAGARA FALLS REPORTER (Aug. 27, 2013), http://www.niagarafallsreporter.com/Stories/2013/ Aug27/newyork.html.
(185) Farina, supra note 185. With Simons retiring, the only upstate judge left on the Court of Appeals was Howard Levine, who was born in Troy, N.Y., and lived in Schenectady. Carol DeMare, Cuomo Taps Republican Judge for State's Highest Court, TIMES UNION (Albany, N.Y.), Aug. 13, 1993, at A1.
(186) All cases surveyed here were obtained by using the search query "written by (Green)" in LexisNexis Advance, and then narrowing the search parameters to "New York" and "Criminal Law & Procedure." Cases discussed in this section were all decided prior to the appointment of the relevant Court of Appeals judge in question, thus representing the sample of cases existing for Pataki to review. The same basic procedures and parameters were followed in all of this section's random samplings of judges' appellate division and trial court signed opinions.
(187) Green's pro-prosecution ruling was issued in 1984. See People v. Benjamin R., 103 A.D.2d 663, 670, 481 N.Y.S.2d 827, 832 (App. Div. 4th Dep't 1984). Green had several pro-defendant rulings. See People v. Bradley, 211 A.D.2d 388, 396-400, 626 N.Y.S.2d 921, 926-29 (App. Div. 4th Dep't 1995) (Green, J., dissenting); People v. LePera, 197 A.D.2d 43, 49, 611 N.Y.S.2d 394, 398 (App. Div. 4th Dep't 1994); People v. LaDolce, 196 A.D.2d 49, 51, 607 N.Y.S.2d 523, 524 (App. Div. 4th Dep't 1994); People v. Glenn, 185 A.D.2d 84, 93, 592 N.Y.S.2d 175, 181 (App. Div. 4th Dep't 1992) (Green, J., dissenting); People v. Guins, 165 A.D.2d 549, 554, 569 N.Y.S.2d 541, 544 (App. Div. 4th Dep't 1991); People v. Justice, 173 A.D.2d 144, 149, 579 N.Y.S.2d 502, 505 (App. Div. 4th Dep't 1991); People v. Guzman, 153 A.D.2d 320, 324, 551 N.Y.S.2d 709, 712 (App. Div. 4th Dep't 1990); People v. Morgan, 151 A.D.2d 221, 226, 547 N.Y.S.2d 711, 714 (App. Div. 4th Dep't 1989); People v. Di Fabio, 134 A.D.2d 918, 922, 521 N.Y.S.2d 933, 937 (App. Div. 4th Dep't 1987) (Green, J., dissenting); People v. Burr, 124 A.D.2d 5, 13, 510 N.Y.S.2d 949, 955 (App. Div. 4th Dep't 1987) (Green, J., dissenting); People v. Mingo, 117 A.D.2d 353, 356-57, 502 N.Y.S.2d 558, 561 (App. Div. 4th Dep't 1986); People v. Hicks, 116 A.D.2d 150, 163, 500 N.Y.S.2d 449, 458 (App. Div. 4th Dep't 1986) (Green, J., dissenting); People v. Larkins, 116 A.D.2d 194, 198-200, 500 N.Y.S.2d 441, 444--45 (App. Div. 4th Dep't 1986) (Green, J., dissenting); People v. Minley, 112 A.D.2d 712, 713-14, 492 N.Y.S.2d 199, 201 (App. Div. 4th Dep't 1985) (Green, J., dissenting); People v. Farnsworth, 106 A.D.2d 878, 880-82, 483 N.Y.S.2d 532, 533 (App. Div. 4th Dep't 1984) (Green, J., dissenting); People v. Ridgeway, 101 A.D.2d 555, 565-68, 476 N.Y.S.2d 940, 94749 (App. Div. 4th Dep't 1984) (Green, J., dissenting); People v. Grice, 100 A.D.2d 419, 423, 474 N.Y.S.2d 152, 155 (App. Div. 4th Dep't 1984); People v. McCormick, 100 A.D.2d 723, 723-24, 473 N.Y.S.2d 622, 623-24 (App. Div. 4th Dep't 1984) (Green, J., dissenting); People v. Dillard, 96 A.D.2d 112, 117-18, 468 N.Y.S.2d 259, 263 (App. Div. 4th Dep't 1983).
(188) Bradley, 211 A.D.2d at 396-400, 626 N.Y.S.2d at 926-29; Glenn, 185 A.D.2d at 91-93, 592 N.Y.S.2d at 12-17; DiFabio, 134 A.D.2d at 922-23, 521 N.Y.S.2d at 936-37; Burr, 124 A.D.2d at 11-13, 510 N.Y.S.2d at 953-55; Hicks, 116 A.D.2d at 159-63, 500 N.Y.S.2d at 456-58; Larkins, 116 A.D.2d at 198-200, 500 N.Y.S.2d at 444-45; Minley, 112 A.D.2d at 713-14, 492 N.Y.S.2d at 201; Farnsworth, 106 A.D.2d at 880-82, 483 N.Y.S.2d at 533; Ridgeway, 101 A.D.2d at 565-68, 476 N.Y.S.2d at 947-49; McCormick, 100 A.D.2d at 723-24, 473 N.Y.S.2d at 623-24.
(189) Sullivan had previously appeared on the short lists for the vacancies ultimately filled by Kaye (twice), Wachtler, Alexander, Titone, Hancock, George Bundy Smith, Levine, and Ciparick. See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 2-4.
(190) See Joseph P. Sullivan, APP. DIVISION FIRST JUD. DEP'T SUPREME CT. St. N.Y., http://www.nycourts.gov/courts/adl/centennial/Bios/jpsullivan2.shtml (last visited Nov. 22, 2014) [hereinafter First Department Bio]', Joseph P. Sullivan, Of Counsel, HOLLAND & KNIGHT, http://www.hklaw.com/Joseph-Sullivan/ (last visited Nov. 22, 2014).
(191) First Department Bio, supra note 190.
(192) See supra notes 143-45 and accompanying text.
(193) For Sullivan's pro-prosecution rulings, see People v. Cooper, 219 A.D.2d 426, 434-35, 643 N.Y.S.2d 532, 537 (App. Div. 1st Dep't 1996); People v. Elam, 179 A.D.2d 229, 235-39, 584 N.Y.S.2d 780, 784-86 (App. Div. 1st Dep't 1992) (Sullivan, J., dissenting); People v. Steinberg, 170 A.D.2d 50, 76, 573 N.Y.S.2d 965, 981 (App. Div. 1st Dep't 1991); People v. Enrique, 165 A.D.2d 13, 22, 566 N.Y.S.2d 201, 207 (App. Div. 1st Dep't 1991); People v. Campbell, 160 A.D.2d 363, 365-67, 554 N.Y.S.2d 103, 104-06 (App. Div. 1st Dep't 1990) (Sullivan, J" dissenting); People v. Bell, 138 A.D.2d 298, 299-300, 526 N.Y.S.2d 105, 107 (App. Div. 1st Dep't 1988) (Sullivan, J., dissenting in part); People v. Beavers, 127 A.D.2d 138, 143, 514 N.Y.S.2d 235, 239 (App. Div. 1st Dep't 1987); People v. Eldridge, 103 A.D.2d 470, 474, 480 N.Y.S.2d 481, 484 (App. Div. 1st Dep't 1984); People v. Duprey, 98 A.D.2d 110, 116-18, 469 N.Y.S.2d 702, 706-07 (App. Div. 1st Dep't 1983) (Sullivan, J., concurring); People v. Chestnut, 69 A.D.2d 41, 49, 418 N.Y.S.2d 390, 394 (App. Div. 1st Dep't 1979); People v. Allen, 61 A.D.2d 619, 622, 403 N.Y.S.2d 522, 524 (App. Div. 1st Dep't 1978).
For Sullivan's pro-defendant rulings, see People v. Cruz, 149 A.D.2d 151, 163, 545 N.Y.S.2d 561, 568-69 (App. Div. 1st Dep't 1989); People v. Carrasquillo, 136 A.D.2d 297, 304, 527 N.Y.S.2d 781, 785 (App. Div. 1st Dep't 1988); People v. Bagarozy, 132 A.D.2d 225, 239, 522 N.Y.S.2d 848, 856 (App. Div. 1st Dep't 1987); People v. Cable, 96 A.D.2d 251, 262-63, 468 N.Y.S.2d 470, 477 (App. Div. 1st Dep't 1983); People v. Alba, 81 A.D.2d 345, 354-61, 440 N.Y.S.2d 230, 235-40 (App. Div. 1st Dep't 1981) (Sullivan, J., dissenting); People v. Cuevas, 67 A.D.2d 219, 230, 414 N.Y.S.2d 520, 527 (App. Div. 1st Dep't 1979); People v. Alvarez, 65 A.D.2d 146, 155-56, 410 N.Y.S.2d 840, 846 (App. Div. 1st Dep't 1978) (Sullivan, J., concurring); People v. Candelaria, 63 A.D.2d 85, 91, 406 N.Y.S.2d 783, 787 (App. Div. 1st Dep't 1978); People v. Abdul-Malik, 61 A.D.2d 657, 665, 403 N.Y.S.2d 253, 257-58 (App. Div. 1st Dep't 1978).
(194) Not only was Sullivan from the "wrong" political party, but he also came from a region of the state from which Pataki appeared to distance himself. See supra notes 42-45, 51-54 and accompanying text.
(195) See infra notes 254-55 and accompanying text (discussing Rosenblatt's criminal law jurisprudence at the trial court and appellate division levels).
(196) See infra p. 227.
(197) 7 Are Nominated, supra note 15, at B2.
(198) Dao, supra note 15, at A1; Stashenko, supra note 179, at B2 ("The two are friends and seem clearly in step philosophically, though Pataki has tried to downplay those similarities since he nominated Wesley last month.").
(199) See supra note 198.
(200) Brian Feldman, Richard Carl Wesley, in JUDGES OF THE NEW YORK COURT OF APPEALS, supra note 157, at 926, 929.
(201) 7 Are Nominated, supra note 15, at B2; Stashenko, supra note 179, at B2.
(202) Feldman, supra note 200, at 929.
(203) See William Glaberson, A Justice Rooted in Small-Town Life and Values: Richard Carl Wesley, N.Y. TIMES, Dec. 4, 1996, at B4 (stating that Wesley and Pataki were friends since their days as young members of the Assembly); Editorial, Mr. Pataki Picks A Judge, N.Y. TIMES, Dec. 4, 1996, at A28 ("Judge Wesley [was] a longtime friend and ideological soulmate of Mr. Pataki....").
(204) For example, the following description about Wesley appeared in an article shortly after his nomination:
Their comfortable country home is a few miles from Hemlock, the hamlet in the Finger Lakes region where [Wesley] grew up. In Livonia, friends and family members say, he lives the life of a small-town lawyer, with constant community involvement punctuated by athletics. It is a life, they say, much like the one he knew as a child.
Glaberson, supra note 203, at B4. Remarkable similarities exist between this description of Wesley's existence and the lifestyle that Pataki publicized during his first gubernatorial campaign. See supra notes 42-45, 51-54 and accompanying text.
(205) 7 Are Nominated, supra note 15, at B2. With Simons retiring, Levine was the only other upstate judge on the Court of Appeals at the time of Wesley's appointment. See Pomerance, supra note 29, at 211-14, 252-53.
(206) Glaberson, supra note 203, at B4 (internal quotation marks omitted).
(207) See supra notes 48, 96-98 and accompanying text. For his part, Pataki claimed that Wesley's views on the death penalty did not particularly sway him toward appointing Wesley to the Court of Appeals. "[Y]ou don't look at a particular issue or a particular vote or a particular decision," the Governor told the media after nominating Wesley. Stashenko, supra note 179, at B2 (internal quotation marks omitted). However, other commentators were skeptical of that claim, stating that Wesley's death penalty views were a key factor in his selection. See Mr. Pataki Picks a Judge, supra note 203, at A28; see also Stashenko, supra note 179, at B2 (stating that Pataki and Wesley saw "eye-to-eye" on the death penalty).
(208) Glaberson, supra note 203, at B4 (internal quotation marks omitted).
(209) Id. Judge Wesley considered himself "a conservative in nature, pragmatic at the same time, with a fair appreciation of judicial restraint." Dao, supra note 15, at A1 (internal quotation marks omitted).
(210) Glaberson, supra note 203, at B4; see also Feldman, supra note 200 ("[T]he influence of his rural hometown of Livonia may be discerned in his approach to judging, which, above all else, is founded on the values of common sense and clarity.").
(211) See Feldman, supra note 200, at 930-31.
(212) While Wesley did not have many published opinions in criminal cases at the time of his appointment, the few that existed seemed to show where his sympathies rested. See, e.g., People v. De Jac, 219 A.D.2d 102, 106-07, 637 N.Y.S.2d 874, 877 (App. Div. 4th Dep't 1996) (upholding criminal conviction even though the trial court restricted defendant's cross-examination of a key witness for the prosecution); People v. Herner, 156 Mise. 2d 735, 744-48, 594 N.Y.S.2d 544, 550-53 (Sup. Ct. Monroe Cnty. 1993) (denying defendants' motions to suppress statements made to police because officers located, arrested, and questioned defendant without a warrant while defendant was illegally residing in another person's garage and trespassers are not protected by Fourth Amendment safeguards because they have no reasonable expectation of privacy); see also Glaberson, supra note 203, at B4 (stating that Wesley is known for his "stern approach to the law" and has been characterized as a "no-nonsense guy").
(213) Glaberson, supra note 203, at B4.
(214) Feldman, supra note 200, at 930-31.
(215) See Glaberson, supra note 203, at B4.
(216) Glaberson, supra note 203, at B4.
(218) Feldman, supra note 200, at 930.
(219) See VINCENT MARTIN BONVENTRE, NEW YORK COURT OF APPEALS CRIMINAL LAW VOTING AND DECISIONAL PATTERNS: Focus on Rosenblatt (Nov. 2005), available at http://www. google. com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CCIQFjAB&url =http%3A%2F%2Fwww.albanylaw.edu%2Fmedia%2Fuser%2Ffaculty%2Fbonventre-vincent %2FCOA-rosen-present.ppt&ei=-9IBVJT_JdfLsASdiYDgCg&usg=AFQjCNF-kAdY4XaskQJc NwvI5qldBpZqgQ&sig2=LIdCtiklZUgmyXQH_uSAXw&bvm=bv.74115972,d.cWc (displaying chart of judges' voting records before Albert Rosenblatt joined the Court of Appeals and noting on this chart that Wesley never voted for a defendant in a divided criminal case during his first year on the court).
(220) See id. (stating that Wesley did vote for the defendant in fifteen percent of divided criminal law cases that he heard during following year).
(221) Vincent Martin Bonventre et at., Richard C. Wesley: Voting and Opinion Patterns on the New York Court, 66 Alb. L. REV. 1065, 1067 n.11 (2003).
(222) Id. at 1067.
(223) See, e.g., People v. Robinson, 97 N.Y.2d 341, 355, 767 N.E.2d 638, 646-47, 741 N.Y.S.2d 147, 155-56 (2001) (allowing police to stop automobiles if they can identify any traffic infraction being committed, even if the stop is really a pretext for police to investigate the driver or passengers for a non-traffic-related offense); People v. Johnson, 94 N.Y.2d 600, 616-23, 730 N.E.2d 932, 941-45, 709 N.Y.S.2d 134, 143-47 (2000) (Bellacosa, J., dissenting) (joining Bellacosa in arguing that the Court of Appeals improperly interfered with a trial court's discretion regarding jury selection); Johnson v. Pataki, 91 N.Y.2d 214, 228, 691 N.E.2d 1002, 1008, 668 N.Y.S.2d 978, 984 (1997) (determining that Pataki had not exceeded his authority in removing a district attorney who opposed the death penalty from prosecuting a murder case); People v. Burdo, 91 N.Y.2d 146, 151-60, 690 N.E.2d 854, 856-62, 667 N.Y.S.2d 970, 972-78 (1997) (Wesley, J., dissenting) (stating that prior interpretations of the right to counsel under the New York State Constitution were overbroad and overprotective of the accused party).
(224) People v. Harris, 98 N.Y.2d 452, 473, 496, 779 N.E.2d 705, 710-11, 728, 749 N.Y.S.2d 766, 771-72, 789 (2002) (holding that the trial court could not award the death penalty because the conviction was a result of a unconstitutional statutory scheme that impermissibly encouraged the defendant to waive his Fifth and Sixth Amendment rights to avoid potentially being sentenced to death); see also Attorney Gen. v. Firetog, 94 N.Y.2d 477, 484-85, 727 N.E.2d 1220, 1224, 706 N.Y.S.2d 666, 670 (2000) (joining Bellacosa's opinion which decided that trial courts could release grand jury minutes to defense attorneys, aiding in the defense's preparations of motions to dismiss); People v. Owusu, 93 N.Y.2d 398, 399, 712 N.E.2d 1228, 1229, 690 N.Y.S.2d 863, 863 (1999) (holding that a defendant's teeth did not qualify as a "dangerous instrument" within the meaning of the relevant state law, based on a lengthy examination of the legislative history of the pertinent statute).
(225) This is particularly surprising in light of Pataki's comments about the Court of Appeals protecting criminals. See supra notes 1-6 and accompanying text. If the court were as pro-defendant as the Governor alleged, it is unusual that the judges would accept a newcomer who was staunchly pro-prosecution so quickly.
(226) See Feldman, supra note 200, at 931.
(227) Bonventre et at., supra note 221, at 1084.
(228) Id. ("Indeed, Judge Wesley's high level of alignment with majority opinions throughout his tenure on the New York Court of Appeals similarly suggests that ideological autonomy has been less compelling for him than other values, such as collegiality." (footnote omitted)); Feldman, supra note 200, at 931 ("Judge Wesley quickly emerged as a consensus builder on the Court, owing in large part to his character and his ability to understand his fellow jurists.").
(229) This does not mean that Wesley was the only pro-prosecution judge on the Court of Appeals. As shown earlier, the court had a number of judges at the time of Pataki's election who displayed pro-prosecution sympathies in a significant number of cases. See supra Part III. However, the fact that Wesley voted with the majority so often could signal that he was a catalyst for more pro-prosecution decisions, persuading a majority of his colleagues on the bench to join him in these prosecution-friendly holdings. Indeed, Wesley was part of the court's majority in every case where the court's ruling favored the prosecution. Bonventre et at., supra note 221, at 1070.
(230) Bonventre et at., supra note 221, at 1084.
(231) See, e.g., STREAMS OF TENDENCY, supra note 31, at 3-4; Vincent Martin Bonventre & Amanda Hiller, Public Law at the New York Court of Appeals: An Update on Developments, 2000, 64 Alb. L. Rev. 1355, 1383 (2001) ("Interestingly, the rightward shift at the court immediately followed the intense 'court bashing' by Governor Pataki and other critics. These critics had focused on the court's criminal case law, suggesting the court was overly-protective of criminals." (footnote omitted)). This shift in many ways echoed the overall conservative, prosecution-friendly attitude of the United States Supreme Court in decisions during the mid-1990s. See, e.g., CHRISTOPHER E. SMITH, THE REHNQUIST COURT AND CRIMINAL PUNISHMENT 27, 29 (1997) (describing the Supreme Court in the mid-1990s as composed of a majority of "consistently conservative" judges and that even judges like Byron White and Sandra Day O'Connor, both of whom could be proindividual voters in certain brands of civil cases, were generally pro-prosecution conservatives in criminal law decisions).
(232) Bonventre & Hiller, supra note 231, at 1383 ("In the 1996-98 period, the court's public law decisional record dropped to 33% pro-individual. The shift in criminal cases was even more dramatic: the pro-individual rate dropped by half, to 27%--essentially the same record as in Wachtler's last years." (footnote omitted)).
(233) See supra note 231.
(234) Bonventre & Hiller, supra note 231, at 1383 ("[T]he court took a rightward turn starting in 1996."). Thus, before Wesley had cast a single vote on the Court of Appeals bench, the court was already favoring prosecutors in criminal cases more frequently than it had since Kaye took over as chief judge.
(235) Feldman, supra note 200, at 934.
(236) See VINCENT M. BONVENTRE, PUBLIC POLICY FORUM: FILLING VACANCIES ON THE NYS COURT OF APPEALS: SELECTION UNDER THE "NONPOLITICAL MERIT" APPOINTMENT SYSTEM 7 (Nov. 29, 2006), available at http://www.rockinst.org/pdf/public_policy_forums/ 2006-ll-29public_policy_forum_filling_vacancies_on_the_nys_court_of_appeals_selection_under_the_non political_merit_appointment_system_presented_by_vincent_m_bonventre.pdf [hereinafter FILLING VACANCIES].
(237) See infra Part V.E.
(238) Adam Nagourney, Schumer Uses DAmato's Tactics to Win Senate Election Handily, N.Y. TIMES, Nov. 4, 1998, at A1 ("Gov. George E. Pataki, a Republican, won the kind of reelection that would have seemed unthinkable when Mr. Pataki, an unknown state senator from Peekskill in northern Westchester County, defeated Mario M. Cuomo four years ago.").
(239) See Perez-Pena, supra note 126, at B1.
(240) See id.
(241) Pomerance, supra note 29, at 234.
(242) However, Titone said that he wanted to retire immediately, giving himself time to pursue other interests while he was still healthy. Porez-Pena, supra note 126, at B1.
(243) Unlike the retirement of Simons, a conservative, Titone's departure gave Pataki the opportunity to replace the liberal leader of the Court of Appeals with a much more pro-prosecution judge. See id.
(244) John Caher, Pataki Likely to Pick Conservative for High Court Nominee, TIMES UNION (Albany, N.Y.), Nov. 13, 1998, at B5 [hereinafter Pataki Likely to Pick Conservative],
(245) STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 4.
(246) Id.; Anita Womack-Weidner, Two Court of Appeals Judges Retire, 2 BENCHMARKS, Fall 2006, at 1, 4.
(247) STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 4; see also 7 Are Nominated, supra note 15, at B2 (noting that Hutter's omission from the previous short list was seen as surprising).
(248) Pataki Likely to Pick Conservative, supra note 244, at B5.
(249) State of N.Y. Comm'n on Judicial Nomination, supra note 35, at 4. Yates, a liberal, was later tapped to become the top counsel to Governor David Paterson. Celeste Katz, Yates Changes His Mind, DAILY NEWS (Apr. 23, 2008), http://www.nydailynews.com/blogs/dailypolit ics/yates-mind-blog-entry-1.1670999. However, he declined the position, choosing to continue his service on the bench. Id. Daniels would go on to attain a federal district court judgeship, appointed by President Bill Clinton. See Biographical Directory of Federal Judges: George B. Daniels, FED. JUD. CENTER., http://www.fjc.gov/servlet/nGetInfo?jid=2854&cid=999&ctype=na &instate=nan (last visited Nov. 22, 2014).
(250) STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 4.
(251) 1 MARK THOMPSON & ELIZABETH SMITH, NEW YORK JUDGE REVIEWS AND COURT DIRECTORY: 2012-2013 Edition 158 (2012); Richard T. Andrias, Courtalert, http://www.courtalert.com/JudgeAndrias.asp (last visited Nov. 22, 2014).
(252) See, e.g., People v. Polanco, 158 Mise. 2d 483, 485, 605 N.Y.S.2d 198, 199 (Sup. Ct. New York Cnty. 1993); People v. Nasbit, 136 Mise. 2d 605, 611, 519 N.Y.S.2d 84, 88 (Crim. Ct. New York Cnty. 1987); People v. Kozak, 128 Mise. 2d 862, 864-65, 490 N.Y.S.2d 993, 995-96 (Crim. Ct. New York Cnty. 1985); People v. Simmons, 125 Mise. 2d 118, 124, 479 N.Y.S.2d 135, 139 (Crim. Ct. Bronx Cnty. 1984); People v. Victor P., 120 Mise. 2d 770, 774-75, 466 N.Y.S.2d 572, 575 (Crim. Ct. New York Cnty. 1983); see also People v. Colon, 238 A.D.2d 18, 23-27, 667 N.Y.S.2d 692, 695-98 (App. Div. 1st Dep't 1997) (Andrias, J., dissenting) (stating that the probative value of expert testimony regarding drug activity outweighed any prejudicial effect to the defendant). Colon marked Andrias's only notable published signed opinion on criminal law issues at the time when Pataki was looking to replace Titone. See Colon, 238 A.D.2d at 23-27, 667 N.Y.S.2d at 695--98 (Andrias, J., dissenting); Perez-Pena, supra note 126, at B1 (stating that Titone was set to retire on May 28, 1999, but instead decided to resign in June 1998).
(253) Adam Nagourney, Governor Nominates a Second Judge to the State's Highest Court, N.Y. Times, Dec. 10, 1998, at BIO.
(254) Id. ("Justice Rosenblatt, 62, began his legal career as a prosecutor in Dutchess County in 1964, where he worked until he was elected a county judge in 1975.").
(255) por Rosenblatt's pro-prosecution rulings, see People v. Marshall, 228 A.D.2d 15, 18, 653 N.Y.S.2d 604, 606 (App. Div. 2d Dep't 1997); People v. Neely, 219 A.D.2d 444, 448, 645 N.Y.S.2d 494, 497 (App. Div. 2d Dep't 1996); People v. Adessa, 218 A.D.2d 415, 420, 640 N.Y.S.2d 895, 898 (App. Div. 2d Dep't 1996); People v. DeFreitas, 213 A.D.2d 96, 97, 630 N.Y.S.2d 755, 757 (App. Div. 2d Dep't 1995); People v. Scott, 206 A.D.2d 392, 395-96, 614 N.Y.S.2d 739, 742 (App. Div. 2d Dep't 1994) (Rosenblatt & Ritter, JJ., dissenting); People v. Dunn, 195 A.D.2d 240, 245, 607 N.Y.S.2d 689, 693 (App. Div. 2d Dep't 1994); People v. Bray, 154 A.D.2d 692, 694-700, 546 N.Y.S.2d 894, 896-901 (App. Div. 2d Dep't 1990) (Rosenblatt, J., dissenting); People v. Dickerson, 153 A.D.2d 897, 900-01, 545 N.Y.S.2d 391, 393-94 (App. Div. 2d Dep't 1989) (Rosenblatt, J., dissenting); People v. Smith, 117 Mise. 2d 737, 761-62, 459 N.Y.S.2d 528, 544-45 (Sup. Ct. Dutchess Cnty. 1983); People ex rel. Harrist v. Dalsheim, 110 Mise. 2d 734, 735-36, 442 N.Y.S.2d 906, 907 (Sup. Ct. Dutchess Cnty. 1981); People v. Smith, 110 Mise. 2d 118, 127, 443 N.Y.S.2d 551, 558 (Cnty. Ct. Dutchess Cnty. 1981); People v. Gabron, 103 Mise. 2d 783, 785, 426 N.Y.S.2d 964, 965 (Cnty. Ct. Dutchess Cnty. 1980); People v. Fentress, 103 Mise. 2d 179, 198, 425 N.Y.S.2d 485, 497 (Cnty. Ct. Dutchess Cnty. 1980); People v. Putland, 102 Mise. 2d 517, 527-28, 423 N.Y.S.2d 999, 1006 (Cnty. Ct. Dutchess Cnty. 1979); People v. Williams, 97 Mise. 2d 24, 36, 410 N.Y.S.2d 978, 986 (Cnty. Ct. Dutchess Cnty. 1978); People v. Davis, 95 Mise. 2d 1010, 1024-25, 408 N.Y.S.2d 748, 755-56 (Cnty. Ct. Dutchess Cnty. 1978); People v. Wise, 94 Mise. 2d 943, 945, 405 N.Y.S.2d 965, 967 (Cnty. Ct. Dutchess Cnty. 1978); People v. Merfert, 87 Mise. 2d 803, 805, 386 N.Y.S.2d 559, 560 (Cnty. Ct. Dutchess Cnty. 1976); People v. La Boy, 87 Mise. 2d 449, 452-53, 385 N.Y.S.2d 491, 492-93 (Cnty. Ct. Dutchess Cnty. 1976).
For Rosenblatt's pro-defendant rulings, see People v. Roundtree, 234 A.D.2d 612, 612-13, 651 N.Y.S.2d 615, 615-16 (App. Div. 2d Dep't 1996) (Rosenblatt & Ritter, JJ., concurring); People v. Peterkin, 190 A.D.2d 825, 826-27, 593 N.Y.S.2d 833, 834-35 (App. Div. 2d Dep't 1993) (Rosenblatt, J., dissenting); In re Tommy C., 182 A.D.2d 312, 316, 588 N.Y.S.2d 916, 919 (App. Div. 2d Dep't 1992); People v. Gonzalez, 171 A.D.2d 127, 134-41, 575 N.Y.S.2d 75, 79-84 (App. Div. 2d Dep't 1991) (Rosenblatt, J., concurring in part and dissenting in part).
(256) See E.R. Shipp, New Overseer of the Courts: Albert Martin Rosenblatt, N.Y. TIMES, Mar. 11, 1987, at B3 (stating that even though Rosenblatt was born in New York City in 1936, he moved to Dutchess County in the early 1960s to practice law in a more rural setting and remained in Poughkeepsie ever since).
(257) Editorial, Governor Pataki's Wise Choice, N.Y. TIMES, Dec. 12, 1998, at A20 ("Justice Rosenblatt's imposition of the death penalty in 1983 under provisions of the state's old capital punishment statute no doubt helped him gain favor with Mr. Pataki, an ardent death penalty supporter."); Nagourney, supra note 253, at BIO.
(258) John Caher, Senate OKs Nominee for High Court, TIMES UNION (Albany, N.Y.), Dec. 18, 1998, at B2 [hereinafter Senate OKs Nominee].
(259) See Peterkin, 190 A.D.2d 825 at 826-27, 593 N.Y.S.2d at 834-35 (Rosenblatt, J., dissenting); Gonzalez, 171 A.D.2d at 132-41, 575 N.Y.S.2d at 78-84 (Rosenblatt, J., dissenting).
(260) Nagourney, supra note 253, at BIO (internal quotation marks omitted).
(261) Senate OKs Nominee, supra note 258, at B2 ("[E]xperts caution that the Court of Appeals is currently a moderate-to-liberal panel and note that the addition of Rosenblatt will result, at most, in a panel that is moderate-to-conservative."); Governor Pataki's Wise Choice, supra note 257, at A20 ("[I]n selecting Justice Rosenblatt as his second appointment to the seven-member bench, Governor Pataki opted for a moderate."); Nagourney, supra note 253, at BIO.
(262) Nagourney, supra note 253, at BIO; Shipp, supra note 256, at B3.
(263) Senate OKs Nominee, supra note 258, at B2; Nagourney, supra note 253, at BIO; Albert M. Rosenblatt, MACCABE & MACK, LLP, http://www.mccm.com/attorneys/counsel/albert-mrosenblatt/ (last visited Nov. 22, 2014).
(264) State of N.Y. Comm'n on Judicial Nomination, supra note 35, at 4.
(265) See, e.g., John Caher, Defense Bar Considers Rosenblatt the 'Swing' Vote on Criminal Justice Issues, N.Y.L.J., Nov. 28, 2005, at 1 [hereinafter Defense Bar Considers Rosenblatt the 'Swing' Vote]; William Glaberson, Death Penalty: Court Roster May be Key to Its Future, N. Y. TIMES, June 26, 2004, at B1 (calling Rosenblatt a swing vote on capital punishment, despite the fact that he had sentenced defendants to death during his years as a trial court judge); Kenneth Lovett, Picking Gay or Nay--One Judge is Key to Nuptials, N.Y. POST, Feb. 8, 2005, at 6; Yancey Roy, A Swing in State's High Court, TIMES UNION (Albany, N.Y.), Jan. 4, 2005, at B3.
(266) See Bonventre & Hiller, supra note 231, at 1393-94 (evaluating Rosenblatt's record during his first year on the Court of Appeals as being "more liberal" and "sympathetic" to defendants' rights in criminal cases); Defense Bar Considers Rosenblatt the 'Swing' Vote, supra note 265, at 16; Vincent Martin Bonventre, New York Court of Appeals: The Jones Factor in Criminal Cases (Part 2), N.Y. COURT WATCHER (Aug. 19, 2008), http://www.newyorkcourtwatcher.com/2008_08_01_archive.html (showing that Rosenblatt voted for the defendant in thirty-seven percent of divided decisions between 2001 and 2006).
(267) See FILLING Vacancies, supra note 236, at 13 ("I call [Rosenblatt] the non-Pataki judge. It seems that the more he hears that Pataki's mad at him, the more liberal he gets.").
(268) Compare supra notes 265-67 and accompanying text (summarizing Rosenblatt's voting record in criminal cases), with supra notes 126-30 and accompanying text (summarizing Titone's voting record in criminal cases).
(269) Perhaps the biggest blow to Pataki came when Rosenblatt became the pivotal vote in overturning New York State's death penalty law. By writing a separate opinion concurring with George Bundy Smith's opinion in People v. LaValle, Rosenblatt provided the tide-turning vote in finding the state's capital punishment statute unconstitutional. See People v. LaValle, 3 N.Y.3d 88, 132-33, 817 N.E.2d 341, 368-69, 783 N.Y.S.2d 485, 512-13 (2004) (Rosenblatt, J., concurring). Rosenblatt was the lone Pataki-appointed judge on the Court of Appeals at that time to join George Bundy Smith's opinion. Clearly, Rosenblatt knew that his opinion would be unpopular. "Just as judges should not shrink from carrying out the legislative will, so too should they not shrink from declaring statutes unconstitutional in proper cases, however distasteful that may be," he wrote. Id. at 132, 817 N.E.2d at 368, 783 N.Y.S.2d at 512. Still, the judge held firm in this decision, ending his brief opinion with a simple but definite conclusion: "For my part, under constitutional analysis, the Court can come to no other result." Id. at 133, 817 N.E.2d at 369, 783 N.Y.S.2d at 513.
(270) Womack-Weidner, supra note 246, at 4.
(271) See id.
(272) Finder, supra note 135, at B9.
(274) See id.
(275) See supra notes 134-36 and accompanying text.
(276) Finder, supra note 135, at B9.
(277) Id. (internal quotation marks omitted).
(278) Kim Martineau, Pataki Considers List of Seven for Spot on Court of Appeals, TIMES Union (Albany, N.Y.), Oct. 5, 2000, at B6; see STATE OF N.Y. COMM'N ON JUDICIAL Nomination, supra note 35, at 4.
(279) See State of N.Y. Comm'n on Judicial Nomination, supra note 35, at 5.
(280) Martineau, supra note 278, at B6.
(281) See State of N.Y. Comm'n on Judicial Nomination, supra note 35, at 5.
(283) See James C. McKinley, Jr., Pataki Puts Nonjudge on the Court of Appeals, N.Y. TIMES, Nov. 5, 2003, at B5.
(284) See Pioneer in Radio and Esteemed Justice Honored, BLS LAWNOTES (Summer 2005), at 50.
(286) Id. at 51.
(287) See, e.g., People v. Smelefsky, 182 Mise. 2d 11, 20-21, 695 N.Y.S.2d 689, 695 (Sup. Ct. Queens Cnty. 1999); People v. Glaspie, 170 Mise. 2d 828, 832, 652 N.Y.S.2d 207, 210 (Sup. Ct. Queens Cnty. 1996); People v. Thompson, 158 Mise. 2d 397, 410, 601 N.Y.S.2d 418, 426 (Sup. Ct. Queens Cnty. 1993); People v. Hilton, 147 Mise. 2d 200, 208, 555 N.Y.S.2d 550, 555 (Sup. Ct. Queens Cnty. 1990); People v. Williams, 144 Mise. 2d 688, 695, 545 N.Y.S.2d 457, 462 (Sup. Ct. Kings Cnty. 1989); People v. Carter, 134 Mise. 2d 878, 886, 513 N.Y.S.2d 331, 337 (Sup. Ct. Kings Cnty. 1987); People v. Byrd, 124 Mise. 2d 987, 991, 478 N.Y.S.2d 542, 545--46 (Crim. Ct. Kings Cnty. 1984).
Importantly, though, Fisher was not uniformly pro-prosecution in his published holdings. Certain published opinions did favor criminal case defendants. See, e.g., People v. Martinez, 164 Mise. 2d 314, 319, 624 N.Y.S.2d 783, 786 (Sup. Ct. Queens Cnty. 1995); People v. Nunez, 157 Mise. 2d 793, 800, 598 N.Y.S.2d 917, 922 (Sup. Ct. Queens Cnty. 1993); People v. Manganaro, 148 Mise. 2d 616, 624-25, 561 N.Y.S.2d 379, 385 (Sup. Ct. Queens Cnty. 1990); People v. Oliver, 129 Mise. 2d 432, 437-38, 493 N.Y.S.2d 392, 396 (Crim. Ct. Kings Cnty. 1985).
(288) Laura Mansnerus, A New Judge is Welcomed for Top Court in Albany, N.Y. TIMES, Nov. 30, 2000, at B5.
(289) For Graffeo's pro-prosecution rulings, see People v. Johnson, 268 A.D.2d 891, 894, 703 N.Y.S.2d 545, 548 (App. Div. 3d Dep't 2000); People v. Nichols, 277 A.D.2d 715, 718, 715 N.Y.S.2d 783, 785-86 (App. Div. 3d Dep't 2000); People v. Kinred, 276 A.D.2d 927, 930, 714 N.Y.S.2d 594, 597 (App. Div. 3d Dep't 2000); People v. Lanahan, 276 A.D.2d 906, 907-09, 714 N.Y.S.2d 605, 607-09 (App. Div. 3d Dep't 2000); People v. Denue, 275 A.D.2d 863, 864, 713 N.Y.S.2d 783, 784 (App. Div. 3d Dep't 2000); People v. Ebron, 275 A.D.2d 490, 491-92, 712 N.Y.S.2d 212, 214 (App. Div. 3d Dep't 2000); People v. Conway, 274 A.D.2d 663, 665, 711 N.Y.S.2d 210, 211-12 (App. Div. 3d Dep't 2000); People v. Ray, 273 A.D.2d 611, 613, 710 N.Y.S.2d 138, 140-41 (App. Div. 3d Dep't 2000); People v. Rendon, 273 A.D.2d 616, 619, 709 N.Y.S.2d 698, 701 (App. Div. 3d Dep't 2000); People v. Spencer, 272 A.D.2d 682, 686, 708 N.Y.S.2d 488, 492-93 (App. Div. 3d Dep't 2000); People v. Martinez, 271 A.D.2d 810, 811, 706 N.Y.S.2d 264, 265--66 (App. Div. 3d Dep't 2000); People v. Smith, 271 A.D.2d 752, 753-54, 706 N.Y.S.2d 737, 738 (App. Div. 3d Dep't 2000); People v. Heath, 269 A.D.2d 701, 701-02, 705 N.Y.S.2d 85, 86 (App. Div. 3d Dep't 2000); People v. Chappie, 269 A.D.2d 621, 622, 704 N.Y.S.2d 163, 165 (App. Div. 3d Dep't 2000); People v. Schnackenberg, 269 A.D.2d 618, 619-20, 704 N.Y.S.2d 161, 163 (App. Div. 3d Dep't 2000); People v. Johnson, 277 A.D.2d 702, 707-O8, 717 N.Y.S.2d 668, 674 (App. Div. 3d Dep't 2000); People v. Board, 268 A.D.2d 795, 797, 702 N.Y.S.2d 201, 203-04 (App. Div. 3d Dep't 2000); People v. Amadeo, 268 A.D.2d 672, 673-74, 701 N.Y.S.2d 471, 473-74 (App. Div. 3d Dep't 2000); People v. Canale, 268 A.D.2d 699, 701, 704 N.Y.S.2d 151, 153 (App. Div. 3d Dep't 2000); People v. Govan, 268 A.D.2d 689, 689-91, 701 N.Y.S.2d 474, 475-76 (App. Div. 3d Dep't 2000); People v. Williams, 267 A.D.2d 772, 774, 700 N.Y.S.2d 512, 514 (App. Div. 3d Dep't 1999); People v. Philbert, 267 A.D.2d 607, 608-09, 700 N.Y.S.2d 243, 245-46 (App. Div. 3d Dep't 1999); People v. Stickles, 267 A.D.2d 604, 607, 700 N.Y.S.2d 248, 251 (App. Div. 3d Dep't 1999); People v. Grey, 259 A.D.2d 246, 250, 699 N.Y.S.2d 147, 149-50 (App. Div. 3d Dep't 1999); People v. Hart, 266 A.D.2d 584, 585-86, 698 N.Y.S.2d 72, 73-74 (App. Div. 3d Dep't 1999); People v. Coager, 266 A.D.2d 645, 647, 698 N.Y.S.2d 349, 350-51 (App. Div. 3d Dep't 1999); People v. Hart, 266 A.D.2d 698, 701, 698 N.Y.S.2d 357, 361 (App. Div. 3d Dep't 1999); People v. Chapin, 265 A.D.2d 738, 739-40, 697 N.Y.S.2d 713, 714-15 (App. Div. 3d Dep't 1999); People v. Letendre, 264 A.D.2d 943, 946, 696 N.Y.S.2d 538, 541 (App. Div. 3d Dep't 1999); People v. Anonymous, 262 A.D.2d 717, 718-19, 692 N.Y.S.2d 485, 487 (App. Div. 3d Dep't 1999); People v. Medina, 262 A.D.2d 708, 710, 693 N.Y.S.2d 632, 634 (App. Div. 3d Dep't 1999); People v. Holloway, 261 A.D.2d 658, 659-60, 691 N.Y.S.2d 583, 584-85 (App. Div. 3d Dep't 1999); People v. Marrero, 259 A.D.2d 836, 837, 686 N.Y.S.2d 524, 525 (App. Div. 3d Dep't 1999); People v. Mettler, 259 A.D.2d 834, 835, 687 N.Y.S.2d 205, 206 (App. Div. 3d Dep't 1999); People v. Tyler, 260 A.D.2d 796, 797-98, 690 N.Y.S.2d 136, 138 (App. Div. 3d Dep't 1999); People v. Bolarinwa, 258 A.D.2d 827, 830-32, 687 N.Y.S.2d 442, 446-48 (App. Div. 3d Dep't 1999); People v. Depta, 257 A.D.2d 916, 916-17, 682 N.Y.S.2d 648, 649 (App.
Div. 3d Dep't 1999); People v. Duncan, 256 A.D.2d 1016, 1017, 683 N.Y.S.2d 327, 328-29 (App. Div. 3d Dep't 1998); People v. Tenace, 256 A.D.2d 928, 930-31, 682 N.Y.S.2d 279, 281-82 (App. Div. 3d Dep't 1998); People v. Phillips, 256 A.D.2d 733, 734-35, 682 N.Y.S.2d 685, 687 (App. Div. 3d Dep't 1998); People v. Williams, 256 A.D.2d 661, 662-63, 681 N.Y.S.2d 150, 152 (App. Div. 3d Dep't 1998); People v. Pochily, 255 A.D.2d 695, 696-97, 680 N.Y.S.2d 695, 696--97 (App. Div. 3d Dep't 1998); People v. Geraci, 254 A.D.2d 522, 523--25, 681 N.Y.S.2d 362, 364--65 (App. Div. 3d Dep't 1998); People v. Hamilton, 252 A.D.2d 826, 829, 677 N.Y.S.2d 401, 403-04 (App. Div. 3d Dep't 1998); People v. Leonard, 252 A.D.2d 740, 741-42, 677 N.Y.S.2d 639, 641 (App. Div. 3d Dep't 1998); People v. O'Hanlon, 252 A.D.2d 670, 672-73, 675 N.Y.S.2d 404, 406--07 (App. Div. 3d Dep't 1998); People v. Crone, 251 A.D.2d 889, 890, 674 N.Y.S.2d 836, 836-37 (App. Div. 3d Dep't 1998); People v. German, 251 A.D.2d 900, 901-02, 678 N.Y.S.2d 393, 395-96 (App. Div. 3d Dep't 1998); People v. Jackson, 251 A.D.2d 820, 822-24, 678 N.Y.S.2d 144, 146-47 (App. Div. 3d Dep't 1998).
For Graffeo's pro-defendant rulings, see People v. Cataldo, 260 A.D.2d 662, 664-65, 688 N.Y.S.2d 265, 267 (App. Div. 3d Dep't 1999); People v. Grey, 257 A.D.2d 685, 687-88, 683 N.Y.S.2d 627, 628-29 (App. Div. 3d Dep't 1999); People v. Osgood, 254 A.D.2d 571, 572-73, 681 N.Y.S.2d 365, 366 (App. Div. 3d Dep't 1998); People v. Campney, 252 A.D.2d 734, 735-37, 677 N.Y.S.2d 393, 395-97 (App. Div. 3d Dep't 1998).
(290) See supra note 124 and accompanying text (stating that the number of unanimous decisions from the Court of Appeals increased during the years when Kaye served as Chief Judge).
(291) See Glaberson, supra note 203, at B4; Martineau, supra note 278, at B6; Shipp, supra note 256, at B3.
(292) See Raymond Hernandez, Pataki Selects Judge for Appeals Court He Sees as Lenient, N.Y. TIMES, Nov. 3, 2000, at Bit; Mansnerus, supra note 288, at B5; see also supra notes 43-45, 51-54 and accompanying text (describing Pataki's pride in having a "small-town" upbringing and his emphasis on that point during his first gubernatorial campaign). Like Rosenblatt, Graffeo was born in a downstate location (Long Island) but spent the bulk of her life and legal career in upstate communities. Hernandez, supra note 292, at B11.
(293) Joe Mahoney, Pataki Picks State Judge, N.Y. DAILY NEWS, Nov. 3, 2000, at 26; Mansnerus, supra note 288, at B5.
(294) See Martineau, supra note 278, at B6; Victoria A. Graffeo, Victoria Ann Graffeo, in Judges of the New York Court of Appeals, supra note 157, at 966,968.
(295) Hernandez, supra note 292, at B11.
(296) See id. ("Her selection was not considered altogether surprising, particularly since Justice Graffeo is one of Mr. Pataki's political proteges.").
(297) Lisa Nicole Viers, Top-Court Judge and Guilderland Native Honored with State Bar and Trial Lawyers Award, ALTAMONT ENTERPRISE (Albany, N.Y.), Feb. 6, 2014, at 9. Originally, Graffeo entered college intending to become a social science teacher. Id. However, when professors encouraged her to consider a career in the law, she enrolled in Albany Law School. Id. After four years in private practice, she shifted to public sector work in 1982, and remained with the New York State government ever since. Id.
(298) Id. ("After 10 years [as floor counsel to the Assembly Republican Conference], she was given the job of chief counsel.").
(299) See supra note 71 and accompanying text.
(300) Mansnerus, supra note 288, at B5.
(301) Mahoney, supra note 293, at 26. As solicitor general, Graffeo also worked with Vacco to successfully defend New York State's law criminalizing physician-assisted suicide. Id.
(302) Hernandez, supra note 292, at B11.
(303) See id.
(304) See supra notes 265-69 and accompanying text.
(305) See supra notes 134-38 and accompanying text (describing the voting patterns of two conservative judges, Simons and Bellacosa, in criminal cases).
(306) Jeremy A. Cooney, Note, New York's Court of Appeals: Judge Victoria A. Graffeo: Committed, Conservative, Collegial, 73 Alb. L. Rev. 971, 973-74 (2010).
(307) Bonventre & Galligan, supra note 146, at 1115 (evaluating Graffeo's voting in every divided public law case, both civil and criminal, during her first year on the Court of Appeals, and concluding that she voted against the individual and for the Government every time).
(308) See Cooney, supra note 306, at 985, 987.
(309) However, much like Wesley's Court of Appeals record, Graffeo virtually never will author or join a dissenting opinion in favor of the defendant. See Cooney, supra note 306, at 986. It appears that most of the time, when she authors or joins a pro-defendant opinion, she does so for a unanimous or virtually unanimous court. See, e.g., James C. McKinley Jr., Court Lets Experts Challenge Witnesses' Accuracy in Trials, N.Y. TIMES, May 9, 2001, at A1 (stating that Graffeo wrote the opinion for a unanimous Court of Appeals holding that trial judges could admit expert testimony on the reliability of eyewitnesses, a major victory for the defense bar in New York State); Cathy Woodruff, Court Ruling Limits Bus Station Searches, TIMES Union (Albany, N.Y.), Jun. 29, 2001, at A1 (stating that Graffeo wrote the pro-defendant opinion of a unanimous Court of Appeals holding that the mere fact a bus's route originated in New York City, a location where drugs exist, did not give police the right to board that bus and search its passengers).
(310) Cooney, supra note 306, at 985 ("[H]er impact and vote on the high court bench has consistently been a reliable conservative vote, essentially always voting pro-prosecution.").
(311) Graffeo also does not provide the hard-line, pro-prosecution dissents for which Bellacosa became famous. See Cooney, supra note 306, at 972.
(312) Indeed, at least one commentator observed that the Court of Appeals moved in a pro-prosecution direction in the year immediately after Graffeo joined the bench. See Yancey Roy, State's Highest Court Getting Tougher, TIMES UNION (Albany, N.Y.), Aug. 26, 2001, at E13.
(313) See supra notes 289-90 and accompanying text.
(314) See supra note 124. In an interview around the time that he appointed Graffeo, Pataki himself emphasized his belief that unanimity, or at least strong consensus-building, on the Court of Appeals was very important. See Kim Martineau, Pataki Nominates Graffeo to Top Court, TIMES Union (Albany, N.Y.), Nov. 3, 2000, at A1 ("It's a collaborative body, and collegiality is an important quality.").
(315) See Brandon Vogel, Court of Appeals Judge Victoria Graffeo Receives State Bar's Excellence in Public Service Award, N.Y. STATE BAR ASS'N (Jan. 29, 2014), http://www.nysba.org/CustomTemplates/SecondaryStandard.aspx?id=46475.
(316) John Caher, NY Court of Appeals Judge to Seek Reappointment, N.Y.L.J., Apr. 22, 2014, at 1.
(317) See James M. Odato, Cuomo Could Reshape Court, TIMES UNION (Albany, N.Y.), June 9, 2014, at A3.
(318) Unlike Bellacosa's vacancy, however, a potential Graffeo vacancy would be filled by a Democrat, not a conservative Republican. Conceivably, this could signal a substantial ideological shift on the court.
(319) John Caher, Self-Described 'Centrist' at Court of Appeals Retires, N.Y.L.J., Dec. 2, 2002, at 1 [hereinafter Self-Described 'Centrist' Retires].
(320) See supra notes 146-47 and accompanying text.
(321) STREAMS OF Tendency, supra note 31, at 5 (noting that while Levine cast most of his votes in favor of the Government, votes favoring defendants were not out of the question in his jurisprudence).
(322) See, e.g., Pomerance, supra note 29, at 254 & n.474.
(323) See generally Jean D'Alessandro, Note, Judge Levine: A Survey of His Most Influential Court of Appeals Decisions--1993 to 2002, 19 TOURO L. Rev. 451 (2003) (demonstrating the ideological variance throughout many of Levine's most notable signed opinions); see also Self-Described 'Centrist' Retires, supra note 319, at 1, 7 (explaining that it is difficult to identify Levine's ideology based on his opinions).
(324) Francois v. Dolan, 95 N.Y.2d 33, 731 N.E.2d 614, 709 N.Y.S.2d 898 (2000).
(325) Id. at 37, 731 N.E.2d at 616, 709 N.Y.S.2d at 900.
(326) Replacing Levine with a judge whose jurisprudence in criminal cases was more similar to Graffeo or Wesley would enhance the "tough on crime" reputation that Pataki claimed to seek for the Court of Appeals.
(327) See State of N.Y. Comm'n on Judicial Nomination, supra note 35, at 5.
(328) John Caher, NY Court of Appeals Candidates Are Named; Commission on Judicial Nomination Submits List of Seven to Pataki, Who Must Decide by Jan. 15, N.Y.L.J., Dec. 3, 2002, at 8 [hereinafter Court of Appeals Candidates Named].
(329) Joyce Purnick, A Polite Reply From a Judge to the Mayor, N.Y. Times, Aug. 26, 1996, at B1 (describing the publicized sparring match between Freedman and Giuliani); see Associate Justice Helen E. Freedman, APP. Division FIRST Jud. Dep'T SUPREME Ct. St. N.Y., http://www.nycourts.gov/courts/adl/justicesofthecourt/justices_freedman.shtml (last visited Nov. 22, 2014) (outlining Justice Freedman's experience as a judge and the varying honors she has received); Hon. L. Priscilla Hall, APP. DIVISION SECOND JUD. DEP'T, http://www.nycourts.gov/courts/ad2/justice_hall.shtml (last visited Nov. 22, 2014) (outlining Justice Hall's judicial experience, publications, and most important cases); Press Release, Sheldon Silver, Assembly Speaker Sheldon Silver Names Honorable James A. Yates Counsel to the Speaker (Jan. 6, 2011), http://assembly.state.ny.us/Press/20110106/ (describing Judge Yates' career in law and public service as "distinguished" (internal quotation marks omitted)). That battle began when Giuliani declared to the press that Freedman "has no sense of what it means to be a judge." Purnich, supra, at B1.
(330) McKinley, supra note 283, at B5.
(331) Daniel E. Slotnik, Justice Steven W. Fisher, 64, N.Y. TIMES, Jan. 2, 2011, at 22 ("Justice Fisher was the last New York State judge to impose the death penalty, sentencing one of the killers in the Wendy's case, John B. Taylor, to death in 2003."); see STATE OP N.Y. COMM'N ON Judicial Nomination, supra note 35, at 5.
(332) See supra note 284 and accompany text.
(333) See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 4-5.
(334) Court of Appeals Candidates Named, supra note 328, at 8 ("The presiding justice of the Appellate Division, Fourth Department, is widely considered a frontrunner.").
(335) See id. (discussing Justice Pigott's background).
(336) See infra notes 435-37 (discussing Pigott's background and voting record on criminal cases).
(337) A1 Baker, Pataki to Name Ex-Adviser to State's Highest Court, N.Y. TIMES, Jan. 7, 2003, at B5.
(338) See id. (calling Read a virtual unknown in terms of her philosophical leanings); Court of Appeals Candidates Named, supra note 328, at 8 (stating that Pigott was the frontrunner to receive this appointment).
(339) Senate OKs Judge for Top Court, TIMES UNION (Albany, N.Y.), Jan. 23, 2003, at B2. This issue arose at Read's confirmation hearing. See id. In response to these questions about Read's lack of judicial experience in criminal cases, John DeFrancisco, the Republican Chairperson of the New York State Senate Judiciary Committee, simply responded that judicial candidates "can't be all things to all people and have expertise in all areas." Id.
(340) Baker, supra note 337, at B5.
(342) Dan Janison, In the Running, but in for the Long Haul?, NEWSDAY (Sept. 28, 2009), at A17 ("Read was Pataki's deputy counsel during a tension-filled period when Betsy McCaughey was his famously-rebellious lieutenant governor.").
(343) Baker, supra note 337, at B5.
(344) Id. The Governor also said that he had not questioned Read about her views on sensitive legal issues such as abortion, as doing so would be "inappropriate." Id.
(345) Pomerance, supra note 29, at 188 n.20; Senate OKs Judge for Top Court, supra note 339, at B2. Read was born in Ohio, but at the time of her appointment to the Court of Appeals, she lived in the community of West Sand Lake in New York's upstate Rensselaer County. Susan Phillips Read, Susan Phillips Read, in JUDGES OP THE NEW YORK COURT OF APPEALS, supra note 157, at 982, 983-84.
(346) Senate OKs Judge for Top Court, supra note 339, at B2.
(347) See Baker, supra note 337, at B5 ("Though little is known about her philosophy, most analysts said they did not expect her selection to change the court's ideological composition.").
(348) Id. (internal quotation marks omitted).
(350) See id.
(352) STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 5.
(353) Last year alone demonstrated Read's consistency as a pro-prosecution voter. Her signed opinions decidedly favored the Government over defendants in criminal cases. See, e.g., People v. Collier, 22 N.Y.3d 429, 432-33, 5 N.E.3d 5, 7, 982 N.Y.S.2d 34, 36 (2013); People v. Howard, 22 N.Y.3d 388, 403-04, 4 N.E.3d 320, 329, 981 N.Y.S.2d 310, 319 (2013); People v. Heidgen, 22 N.Y.3d 259, 285-86, 3 N.E.3d 657, 673, 980 N.Y.S.2d 320, 336 (2013) (Read, J., dissenting); People v. Brown, 21 N.Y.3d 739, 749-52, 999 N.E.2d 1168, 1173-76, 977 N.Y.S.2d 723, 728-31 (2013); People v. Alcide, 21 N.Y.3d 687, 691, 998 N.E.2d 1056, 1058-59, 976 N.Y.S.2d 432, 434-35 (2013); People v. Rudolph, 21 N.Y.3d 497, 511-14, 997 N.E.2d 457, 466-68, 974 N.Y.S.2d 885, 894-96 (2013) (Read, J" dissenting); People v. Hampton, 21 N.Y.3d 277, 283-84, 992 N.E.2d 1059, 1063, 970 N.Y.S.2d 716, 720 (2013); People v. Monk, 21 N.Y.3d 27, 33, 989 N.E.2d 1, 4, 966 N.Y.S.2d 739, 742 (2013); People v. Ippolito, 20 N.Y.3d 615, 624-25, 987 N.E.2d 276, 281, 964 N.Y.S.2d 499, 504 (2013).
However, Read did occasionally issue signed opinions in favor of defendants in 2013. See People v. Kevin W" 22 N.Y.3d 287, 297, 3 N.E.3d 1121, 1127, 980 N.Y.S.2d 873, 879 (2013); People v. Warren, 20 N.Y.3d 393, 397, 984 N.E.2d 914, 915-16, 960 N.Y.S.2d 716, 717-18 (2013).
This pro-prosecution trend has remained consistent for Read's entire career on the Court of Appeals. Jeremy Cooney outlines a broader view of Read's criminal law jurisprudence. See Cooney, supra note 306, at 986; see also FILLING VACANCIES, supra note 236, at 11 (showing Read voting for the prosecution in eighty-five percent of divided criminal cases between 2003 and 2006).
(354) See Cooney, supra note 306, at 986 ("It should be noted that Judge Graffeo and Judge Read often vote together, dependably casting their pro-prosecution votes with or against the Court's majority."); see also Sanjeev Devabhakthuni, Note, How to Win the Read Vote: A Profile of the Statutory Interpretation Method of Associate Judge Susan P. Read From a Practical Viewpoint, 73 Alb. L. REV. 993, 994-95 (2010) (noting the frequency with which Read issues dissenting opinions).
(355) See Cooney, supra note 306, at 986 ("The same trend followed for another Pataki appointment, Judge Susan Read, who in every one of her criminal dissenting opinions, was pro-prosecution."); Vincent Martin Bonventre, NY Court of Appeals: Dissents Up With CJ Lippman [and Graphs to Show!], N.Y. Ct. WATCHER (Aug. 17, 2009), http://www.newyorkcourtwatcher.com/2009/08/blog-post.html (demonstrating that Judge Read authored more dissenting opinions and joined more dissenting opinions than Judge Graffeo did in a given year while also noting that Judge Read dissented significantly less during this timeframe than she had in other years).
(356) See Filling Vacancies, supra note 236, at 12 ("In fact, these three, Wesley, Graffeo, and Read, in their entire careers on the New York Court of Appeals have never disagreed with a pro-prosecution decision, not one.").
(357) See supra note 149 and accompanying text.
(358) The trio formed the "conservative wing" of the court from 1987, the year that Bellacosa was appointed, until January 1997, when Simons retired. STATE OF N.Y. COMM'N ON JUDICIAL Nomination, supra note 35, at 3-4; see supra notes 149, 154 and accompanying text.
(359) Feldman, supra note 200, at 934.
(360) See supra notes 219-23 and accompanying text.
(361) See supra notes 199-203 and accompanying text.
(362) See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 5.
(365) See id.
(366) Id. at 4-5; McKinley, supra note 283, at B5.
(367) See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 5; McKinley, supra note 283, at B5 (discussing Pataki's choice to nominate Robert S. Smith, who was not a judge, to fill the vacant seat on the New York Court of Appeals); Tom Precious, Pigott Is Called a Top Choice for State High Court, BUFF. NEWS, Oct. 16, 2003, at B1 (discussing the list of candidates nominated to fill the vacancy on the New York Court of Appeals, with primary focus on Eugene F. Pigott). Braveman now serves as president of Nazareth College. Biography of Daan Braveman, NAZARETH C., https://www2.naz.edu/about/presidentsoffice/biography-daan-braveman/ (last visited on Nov. 22, 2014). Friedman would eventually enter the academic realm as well, becoming dean of the Pace School of Law in 2004. History of Pace Law School, PACE L., http://www.law.pace.edu/history-pace-law-school (last visited on Nov. 22, 2014).
(368) See McKinley, supra note 283, at B5.
(370) Precious, supra note 367, at B1.
(371) Id. (internal quotation marks omitted).
(372) See McKinley, supra note 283, at B5. McGuire went on to serve as a justice for the Appellate Division, First Department before leaving the judiciary to engage in complex commercial litigation for Dechert LLP. James M. McGuire, DECHERT LLP, http://www.deche rt.com/james_mcguire/ (last visited Nov. 22, 2014).
(373) See Precious, supra note 367, at B1.
(375) For a more detailed discussion of Pigott's background and judicial record, see infra Part V.F.
(376) See, e.g., McKinley, supra note 283, at B5 ("Smith really was the stealth candidate through this whole thing.").
(378) Read was the first such choice. See supra note 339 and accompanying text.
(379) See A1 Baker, Lawyer, Not Ideologue: Robert Sherlock Smith, N.Y. TIMES, Nov. 5, 2003, at B5 ("Mr. Smith has never been a judge, so there is no record of his ruling in cases."); McKinley, supra note 283, at B5. Pataki publically claimed that he had no concerns about Smith's lack of experience as a judge adversely affecting his performance on the Court of Appeals. Eric Durr, Pataki Taps NYC Lawyer for State's Top Court, BUFF. BUS. FIRST (Nov. 4, 2003), http://www.bizjournals.com/buffalo/stories/2003/11/03/daily16.html.
(380) See Baker, supra note 379, at B5.
(381) Id.; Durr, supra note 379.
(382) All of Pataki's four prior Court of Appeals appointees--Wesley, Rosenblatt, Graffeo, and Read--came to the court from upstate New York locations. See supra pp. 220, 227, 234, 240.
(383) Baker, supra note 379, at B5.
(385) McKinley, supra note 283, at B5; see Durr supra note 379.
(386) McKinley, supra note 283, at B5; James M. Odato, Lawmakers Sign off on Pataki's Pick, TIMES UNION (Albany, N.Y.), Jan. 13, 2004, at B3 (noting that Smith's law firm also held a "special counsel" relationship with Pataki, resulting in the state retaining the firm to complete at least $236,000 worth of legal work for the government).
(387) See Durr, supra note 379.
(388) Pataki claimed that he was completely uninfluenced by Smith's campaign contributions and legal work. In fact, the Governor even claimed that he did not know Smith's political party until after he nominated him for the Court of Appeals. See id.; see also McKinley, supra note 283, at B5 ("Neither party affiliation, nor position on the death penalty, nor other political leanings influenced [Pataki's] choice [of Smith, Pataki] said.").
(389) McKinley, supra note 283, at B5 (internal quotation marks omitted).
(392) Baker, supra note 379, at B5; McKinley, supra note 283, at B5; Durr, supra note 379.
(393) See, e.g., Peter A. Mancuso, Note, The Independent Jurist: An Analysis of Judge Robert S. Smith's Dissenting Opinions, 73 ALB. L. Rev. 1019, 1021--22 (2010) ("[H]e has emerged as the court's most vigorous questioner from the bench as well as the most independent."); Nathaniel Marmur, Judge Robert Smith's Fresh Look at Hearsay, N.Y.L.J., Sept. 2, 2014, at 6 ("When Associate Judge Robert S. Smith of the New York Court of Appeals retires at the end of 2014, the court will lose a truly independent voice."); Yancey Roy, Top Court's Judge Smith Works Outside the Box, DEMOCRAT & CHRON. (Rochester, N.Y.), Dec. 27, 2005, at B1.
(394) See Seth Lipsky, How to Fill Judge Smith's Big Shoes, N.Y. POST, June 26, 2014, at 29.
(395) See, e.g., Mancuso, supra note 393, at 1054 ("[Smith's dissenting] opinions--especially finding in favor of a criminal defendant based on a statutory 'technicality'--are uncharacteristic of a typically conservative Republican judge, and are quite telling about Judge Smith's reverence to the law.").
(396) Consider, for example, this substantial sampling of Smith's signed opinions in criminal cases between 2006 and 2010:
For Smith's pro-prosecution rulings during this time period, see People v. Hecker, 15 N.Y.3d 625, 667-68, 942 N.E.2d 248, 275-76, 917 N.Y.S.2d 39, 66-67 (2010) (Smith, J, dissenting); People v. Reome, 15 N.Y.3d 188, 190, 933 N.E.2d 186, 187, 906 N.Y.S.2d 788, 789 (2010); People v. Dreyden, 15 N.Y.3d 100, 104-05, 931 N.E.2d 526, 528-29, 905 N.Y.S.2d 542, 544-45 (2010) (Smith, J., dissenting); People v. McLean, 15 N.Y.3d 117, 122, 931 N.E.2d 520, 523, 905 N.Y.S.2d 536, 539 (2010); People v. Contreras, 12 N.Y.3d 268, 270, 907 N.E.2d 282, 283, 879 N.Y.S.2d 369, 370 (2009); People v. Caban, 14 N.Y.3d 369, 372, 927 N.E.2d 1050, 1051, 901 N.Y.S.2d 566, 567 (2010); People v. Sanchez, 13 N.Y.3d 554, 567-68, 921 N.E.2d 570, 578, 893 N.Y.S.2d 803, 811 (2009) (Smith, J., concurring); People v. Simms, 13 N.Y.3d 867, 871-72, 921 N.E.2d 582, 584-85, 893 N.Y.S.2d 815, 817-18 (2009) (Smith, J., concurring); People v. Samandarov, 13 N.Y.3d 433, 436, 920 N.E.2d 930, 931, 892 N.Y.S.2d 823, 824 (2009); People v. Arafet, 13 N.Y.3d 460, 468, 920 N.E.2d 919, 924, 892 N.Y.S.2d 812, 817 (2009); People v. Weaver, 12 N.Y.3d 433, 451, 909 N.E.2d 1195, 1206, 882 N.Y.S.2d 357, 368 (2009) (Smith, J., dissenting); People v. Boyd, 12 N.Y.3d 390, 395, 908 N.E.2d 898, 901, 880 N.Y.S.2d 908, 911 (2009) (Smith, J., dissenting); People v. Knox, 12 N.Y.3d 60, 65, 903 N.E.2d 1149, 1151, 875 N.Y.S.2d 828, 830 (2009); People v. Johnson, 11 N.Y.3d 416, 422, 900 N.E.2d 930, 934, 872 N.Y.S.2d 379, 383 (2008); People v. Hall, 10 N.Y.3d 303, 322, 886 N.E.2d 162, 176, 856 N.Y.S.2d 540, 554 (2008) (Smith, J., dissenting); Polito v. Walsh, 8 N.Y.3d 683, 685, 871 N.E.2d 537, 538, 840 N.Y.S.2d 1, 2 (2007); People v. Cuadrado, 9 N.Y.3d 362, 365-66, 880 N.E.2d 861, 862-63, 850 N.Y.S.2d 375, 376-77 (2007); People v. Greene, 9 N.Y.3d 277, 280, 879 N.E.2d 1280, 1281, 849 N.Y.S.2d 461, 462 (2007); People v. Jackson, 8 N.Y.3d 869, 871, 864 N.E.2d 607, 609, 832 N.Y.S.2d 477, 479 (2007) (Smith, J., concurring); People v. Tzitzikalakis, 8 N.Y.3d 217, 225, 864 N.E.2d 44, 49, 832 N.Y.S.2d 120, 125 (2007) (Smith, J., dissenting); People v. Gillian, 8 N.Y.3d 85, 89, 861 N.E.2d 92, 94, 828 N.Y.S.2d 277, 279 (2006) (Smith, J., concurring); People v. Leon, 7 N.Y.3d 109, 111, 850 N.E.2d 666, 667, 817 N.Y.S.2d 619, 620 (2006); People v. Young, 7 N.Y.3d 40, 42, 46, 850 N.E.2d 623, 624, 627, 817 N.Y.S.2d 576, 577, 580 (2006); People v. Wardlaw, 6 N.Y.3d 556, 558, 849 N.E.2d 258, 258, 816 N.Y.S.2d 399, 399 (2006); People v. Boyer, 6 N.Y.3d 427, 434, 846 N.E.2d 461, 465, 813 N.Y.S.2d 31, 35 (2006) (Smith, J., dissenting); People v. Moore, 6 N.Y.3d 496, 501, 847 N.E.2d 1141, 1144, 814 N.Y.S.2d 567, 570-71 (2006) (Smith, J., dissenting).
For Smith's pro-defense rulings during this time period, see People v. McKinnon, 15 N.Y.3d 311, 313, 937 N.E.2d 524, 524, 910 N.Y.S.2d 767, 767 (2010); People v. Konstantinides, 14 N.Y.3d 1, 15-16, 923 N.E.2d 567, 576, 896 N.Y.S.2d 284, 293 (2009) (Smith, J., dissenting); People v. Hunter, 11 N.Y.3d 1, 1, 892 N.E.2d 365, 366, 862 N.Y.S.2d 301, 302 (2008); People v. Taylor, 9 N.Y.3d 129, 156, 878 N.E.2d 969, 984, 848 N.Y.S.2d 554, 569 (2007) (Smith, J., concurring); In re Victor M., 9 N.Y.3d 84, 86, 876 N.E.2d 1187, 1188, 845 N.Y.S.2d 771, 772 (2007); People v. Kozlow, 8 N.Y.3d 554, 561, 870 N.E.2d 118, 122, 838 N.Y.S.2d 800, 804 (2007) (Smith, J., dissenting); People v. Rowland, 8 N.Y.3d 342, 345, 865 N.E.2d 1224, 1226-27, 834 N.Y.S.2d 58, 61 (2007); People v. Grant, 7 N.Y.3d 421, 426, 857 N.E.2d 52, 55-56, 823 N.Y.S.2d 757, 760-61 (2006) (Smith, J., dissenting); People v. Diaz, 7 N.Y.3d 831, 832, 857 N.E.2d 47, 48, 823 N.Y.S.2d 752, 753 (2006) (Smith, J., dissenting); People v. Conway, 6 N.Y.3d 869, 873, 849 N.E.2d 954, 957, 816 N.Y.S.2d 731, 734 (2006) (Smith, J, dissenting).
Certainly, such a record would not make anyone mistake Smith for Titone or Ciparick. Smith votes for the prosecution in the majority of cases that he hears. On the other hand, the number of pro-defendant opinions--including some extremely strong dissents favoring the rights of the accused--separates Smith from the likes of Wesley and Graffeo. Of the judges examined in this article, Smith's prosecution-defense balance seems most similar to less-predictable jurists, such as Rosenblatt, see supra notes 265-69 and accompanying text, and Pigott, see infra notes 456-62 and accompanying text.
(397) See Mancuso, supra note 393, at 1077-78 (explaining Smith's plain meaning interpretation of criminal statutes as logical and wise, but uncommon); Lipsky, supra note 494, at 29 (discussing Smith's unprecedented approach to gay marriage); Vincent Martin Bonventre, Court of Appeals: Centrists Smith & Pigott--Independent & Contrarian, with Each Other & the Majority, N.Y. Ct. WATCHER (Mar. 27, 2009), http://www.newyorkcourtwatc her.com/2009/03/court-of-appeals-centrists-smith-pigott.html [hereinafter Centrists Smith & Pigott] (describing Smith as an independent centrist whose vote cannot be predicted by previous voting records, ideology, or affiliation with other judges).
(398) See supra notes 219-23 and accompanying text.
(399) Again, Smith is hardly a defendant-friendly liberal. Compared with his predecessor, however, his voting in criminal cases is considerably less predictable. Compare supra notes 219-23 and accompanying text (establishing Wesley as pro-prosecution), with supra note 396 and accompanying text (establishing Smith as moderately pro-defendant).
(400) Michael Powell, Pataki Says He Won't Seek Fourth Term as N.Y. Governor, WASH. POST, July, 28, 2005, at A2; see Gov. Pataki Won't Seek Fourth Term, USA TODAY, July 28, 2005, at 3A.
(401) Powell, supra note 400, at A2.
(402) Michael Cooper & Patrick D. Healy, Pataki Won't Run for a 4th Term, Confidants Say, N.Y. TIMES, July 27, 2005, at A1; Marc Humbert, Pataki in his Final Term?, TIMES UNION (Albany, N.Y.), July 27, 2005, at A1; Powell, supra note 400, at A2.
(403) See Powell, supra note 400, at A2.
(404) See Celeste Katz, Judgment Day Approaches for George Bundy Smith, DAILY NEWS (Aug. 18, 2006), http://www.nydailynews.com/blogs/dailypolitics/ judgement-day-approachesgeorge-bundy-smith-blog-entry-1.1668978.
(405) Perez-Pena, supra note 15, at B7 ("Mr. Pataki will have a chance to put his stamp more firmly on the court in September, with the expiration of Judge George Bundy Smith's 14-year term.").
(406) See supra note 139 and accompanying text.
(407) See supra notes 139-42 and accompanying text.
(408) See FILLING Vacancies, supra note 236, at 6 ("[Smith] was the most liberal member of the court in criminal cases and, certainly, regarding the death penalty, he always voted against it.").
(409) People v. LaValle, 3 N.Y.3d 88, 130-32, 817 N.E.2d 341, 367-68, 783 N.Y.S.2d. 485, 511-512 (2004).
(410) See Michael Cooper, A Place on the Bench Puts Pataki on the Spot, N.Y. TIMES, June 21, 2006, at B1.
(411) STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 5.
(412) See Cooper, supra note 410, at B1; Perez-Pena, supra note 15, at B7 ("Judge Smith, a Cuomo appointee and the court's only black judge, is hoping to be reappointed.").
(413) See, e.g., Pomerance, supra note 29, at 236, 252-53 (2014); John Caher, As Pataki Ponders Smith Reappointment, Foes Attempt to Paint Portrait of 'Liberal', N.Y.L.J., July 14, 2006, at 1; Cooper, supra note 410, at B1; Katz, supra note 404; Editorial, Take Politics Out of Courts, NEWSDAY, Aug. 2, 2006, at A32; Elizabeth Benjamin, Judicial Trivia, CAPITOL CONFIDENTIAL (July 24, 2006), http://blog.timesunion.com/capitol/archives/1713/judicial trivia/.
(414) See Cooper, supra note 410, at B1; Fredric U. Dicker, 'Race' Furor on Gov's Court Pick, N.Y. POST, Aug. 19, 2006, at 2; Katz, supra note 404; Yancey Roy, More Pressure for Smith Re-Appointment, POLITICS ON THE HUDSON (July 24, 2006), http://polhudson.lohudblogs.eom/2 006/07/24/more-pressure-for-smith-re-appointment/.
(415) While commentators expressed surprise about some of Pataki's prior selections, such as Read and Robert Smith, none of Pataki's previous picks engendered such a widespread and emotional response from the public.
(416) See Take Politics Out of Courts, supra note 413, at A32.
(417) Richard Perez-Pena, Hugh L. Carey, 1919-2011: Governor Who Staved Off Bankruptcy, N.Y. Times, Aug. 8, 2011, at At.
(418) See 152 CONG. REC. 1769 (2006) (statement of Rep. Higgins) (identifying Jasen as a conservative Democrat and free thinker); see Take Politics Out of Courts, supra note 413, at A32; see also Lawrence H. Cooke, Sketches of the Judges on State's Court of Appeals, N.Y. TIMES, Nov. 7, 1982, at 54 (describing Jasen as a member of the court's conservative wing on criminal justice issues).
(419) See Take Politics Out of Courts, supra note 413, at A32.
(420) Second Term Recommended, NASHUA TELEGRAPH (Hudson, N.H.), Oct. 22, 1981, at 41 (pointing out that Jasen, if reappointed, could fill only five years out of the fourteen-year term).
(421) Take Politics Out of Courts, supra note 413, at A32.
(422) See State of N.Y. Comm'n on Judicial Nomination, supra note 35, at 1-5; Benjamin L. Loefke, Note, The Pert Perpender: Associate Judge Eugene F. Pigott, Jr.'s Journey from Buffalo to Rochester and Albany, 73 ALB. L. Rev. 1081, 1087 (2010).
(423) See State of N.Y. Comm'n on Judicial Nomination, supra note 35, at 5.
(424) See id. at 1-5; John Caher, Prudenti Named Chief Administrative Judge, N.Y.L.J., Oct. 21, 2011, at 1; Chief Administrative Judge A. Gail Prudenti, NYC0URTS.GOV, http://www.nycourts.gov/admin/directory/prudenti_gail.shtml (last updated Nov. 18, 2013). Prudenti would go on to become the Chief Administrative Judge of the Court of New York State. Caher, supra, at 1.
(425) See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 1-5; Sam Roberts, Pataki Goes Far Afield to Find Political Allies for the City Appellate Bench, N.Y. Times, Dec. 9, 2006, at B1; Daniel Wise, Pataki Picks Three for Appellate Courts: Two Appointees Chosen for the First Department and One Assigned to the Second, N.Y.L.J., May 3, 2004, at 1; James M. Catterson, KAYE SCHOLER, http://www.kayescholer.com/professional s/cattersonJames (last visited Nov. 22, 2014). Catterson now serves as Special Counsel to the Complex Commercial Litigation Department at Kaye Scholer LLP. James M. Catterson, supra.
(426) See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 1-5; Mercure Seeks Re-Election to Court, SARATOGIAN, Sept. 6, 2009, at 2A (stating that at that point in his career, Mercure had cast a vote in more than 20,000 appeals); Press Release, N.Y. State Unified Court Sys., New Administrative Judges Named in New York City, Nassau County and the Third District (Jan. 18, 2013), http://www.nycourts.gov/press/PR13_01.pdf.
(427) Elizabeth Benjamin, Pataki Opts for a New Judge, TIMES UNION (Albany, N.Y.), Aug. 19, 2006, at A1; Michael Cooper, With New Pick, Pataki Puts Mark on Highest Court, N.Y. Times, Aug. 19, 2006, at A1.
(428) See Benjamin, supra note 427, at A1; Cooper, supra note 427, at A1.
(429) See Benjamin, supra note 427, at Al; Cooper, supra note 427, at A1.
(430) Cooper, supra note 427, at A1 (quoting William C. Thompson, Poor Record on Naming Minorities to the Bench, N.Y.L.J., June 17, 2005, at 17) (internal quotation marks omitted).
(431) Cooper, supra note 427, at A1 (internal quotation marks omitted).
(432) Id. (internal quotation marks omitted).
(433) Compare infra notes 434-37 and accompanying text (explaining that Pigott had little experience with criminal matters and had a voting pattern that was unpredictable and did not appear to favor or disfavor prosecution), with supra notes 219-23 and accompanying text (noting that Wesley's voting pattern was overwhelmingly pro-prosecution), and supra note 289 and accompanying text (noting that Graffeo nearly always favored the prosecution in her decisions while on the Third Department).
(434) Loefke, supra note 422, at 1084 ("Aside from a handful of juvenile delinquency matters and one habeas corpus proceeding as county attorney (at least from those that made the official New York Reports), Eugene Pigott's career focused almost exclusively on civil matters.").
(435) See id. at 1085 ("[Pigott] was fairly balanced in civil and criminal cases, showing no real favor to plaintiffs or defendants; and in criminal matters, no clear bias toward either the prosecution or accused."). Interestingly, Pigott wrote only a handful of signed opinions in criminal cases during his years on the Fourth Department bench, the bulk of which favored the prosecution. See, e.g., People v. Kopp, 33 A.D.3d 153, 160, 817 N.Y.S.2d 806, 810-11 (App. Div. 4th Dep't 2006); People v. Kennedy, 20 A.D.3d 137, 140, 797 N.Y.S.2d 219, 220-21 (App. Div. 4th Dep't 2005); People v. Swiatowy, 280 A.D.2d 71, 73, 721 N.Y.S.2d 185, 186 (App. Div. 4th Dep't 2001); People v. Finkle, 262 A.D.2d 971, 973, 692 N.Y.S.2d 265, 267 (App. Div. 4th Dep't 1999) (Pigott, J., dissenting). However, Pigott had also authored at least one very vigorous pro-defendant dissent in a criminal case regarding ineffective assistance of counsel. See People v. Dinkle, 302 A.D.2d 1014, 1017, 755 N.Y.S.2d 189, 192 (App. Div. 4th Dep't 2003) (Pigott, J., dissenting).
(436) Benjamin, supra note 427, at A1 (internal quotation marks omitted).
(437) Cooper, supra note 427, at A1 (internal quotation marks omitted).
(438) See Benjamin, supra note 427, at A1.
(440) Cooper, supra note 427, at A1 (internal quotation marks omitted).
(441) For instance, Fisher had actually sentenced a defendant to death, and had amassed several staunchly prosecution-friendly rulings during his years on the bench. See supra notes 287, 331 and accompanying text. While he was certainly not a locked-in vote for the prosecution, he still appeared to have a clearer pro-prosecution inclination--and certainly more experience in criminal law matters overall--than Pigott. See supra notes 283-87, 331 and accompanying text. Catterson, who had worked for six years as a federal prosecutor before becoming a judge and was inspired by his father, a hard-nosed Suffolk County district attorney, certainly seemed to arise from the pro-Government, tough on crime pedigree that Pataki said he admired. See James M. Catterson, APP. DIVISION FIRST JUD. DEP'T SUPREME CT. ST. N.Y., http://www.nycourts.gov/courts/adl/centennial/Bios/jcatterson2.shtml (last visited Nov. 22, 2014). And when looking for a longtime Republican with vast judicial experience, the venerable Mercure--who had served on the Third Department since 1988 and had worked as a district attorney in Washington County before joining the judiciary--certainly appeared to have an edge on Pigott. See supra note 426 and accompanying text.
(442) See supra notes 406-09 and accompanying text.
(443) While Wesley and Graffeo were outspoken pro-prosecution judges, and Read quickly established herself as a leader of the court's prosecution-friendly conservative wing, Robert Smith and Pigott appeared to be--and, indeed, turned out to be--less-predictable voters on criminal justice issues. Whether this reflected any change in Pataki's own philosophies about appointing judges, or whether it was merely an accident, is a question that is naturally subject to speculation and will never be fully resolved.
(444) See supra notes 104-05 and accompanying text.
(445) After all, Pataki did make a couple of surprising moves in the criminal justice arena during his three terms in office, particularly his call for a weakening of New York's Rockefeller drug laws. See MICHAEL TONRY, THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN AMERICAN Penal Culture 134 (2004); Raymond Hernandez, 7 Prisoners Get Clemency from Pataki, N.Y. TIMES, Dec. 24, 1996, at B1.
(446) See Benjamin, supra note 427, at A1; Cooper, supra note 427, at A1.
(447) See Loefke, supra note 422, at 1087-88; see Benjamin, supra note 427, at A1; Cooper, supra note 427, at A1.
(448) See Precious, supra note 367, at B1.
(449) Benjamin, supra note 427, at A1.
(450) Loefke, supra note 422, at 1085.
(451) See id.
(452) See id.
(453) STATE of N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 5.
(454) Loefke, supra note 422, at 1087.
(455) That is, Pigott is recognized today as a judge who is a "moderate," a jurist whose vote is not a lock for the Government or for the individual in any case. See Tom Precious, Pigott May Provide Swing Vote on 2 Major Cases, BUFF. NEWS, Sept. 16, 2006, at B1. Commentators expressed virtually identical sentiments about his time on the Fourth Department's bench. See, e.g., Cooper, supra note 427, at A1 ("[Pigott is] not rigidly law and order." (internal quotation marks omitted)); Loefke, supra note 422, at 1085 ("Judge Pigott's career at the Fourth Department was marked by his centrist temperament.").
(456) See Centrists Smith & Pigott, supra note 397; see also Precious, supra note 467, at B1 (noting that Pigott's ideology does not lean consistently to the left or right).
(457) See Centrists Smith & Pigott, supra note 397.
(458) See Loefke, supra note 422, at 1093 (reviewing Pigott's voting record during his time on the Court of Appeals and concluding that he is one of the hardest judges on the court to predict).
(459) Id. at 1092 ("Examining his entire career as an appellate court judge, a notable trend that continues to this day is that Judge Pigott dissents much more frequently than almost all of his peers."); see also Julia Steciuk, Patterns in Pigott's Dissents, CENTER FOR JUDICIAL PROCESS (Feb. 24, 2013), http://www.judicialprocessblog.com/2013/02/judge-pigotts dissents_24.html (stating that between 2009 and December 2012 Pigott had dissented in forty-five cases). However, while both Pigott and Robert Smith frequently author dissents, the two centrist judges do not necessarily vote with one another in these divided decisions. See Centrists Smith & Pigott, supra note 397 (discussing the frequency with which Pigott and Robert Smith cast their votes on opposing sides).
(460) See Loefke, supra note 422, at 1094 tbl. 3 (finding that from the time of his appointment until 2009, Pigott voted in favor of the prosecution sixty-six percent of the time in divided criminal cases). For a snapshot of Pigott's published opinions in criminal cases between 2010 and 2013, see infra note 461.
(461) See Loefke, supra note 422, at 1094 tbl. 3 (finding that from the time of his appointment until 2009, Pigott voted in favor of the defendant thirty-four percent of the time in divided criminal cases). The frequency of Pigott's votes favoring defendants in criminal cases is unheard of for judges like Graffeo, see supra notes 307-10 and accompanying text, Read, see supra notes 354-55 and accompanying text, and Wesley, see supra notes 219-23 and accompanying text.
Since the time of Loefke's evaluation of Pigott's voting record, the judge continues to remain a centrist on criminal cases. Generally, Pigott votes with the prosecution but he does hold for the defendant in a significant minority of decisions. For Pigott's signed pro-prosecution opinions from the years after Loefke's note to the time of this writing, see People v. Maldonado, 24 N.Y.3d 48, 58, 18 N.E.3d 391, 399, 993 N.Y.S.2d 680, 688 (2014) (Pigott, J., dissenting); In re Antwaine T., 23 N.Y.3d 512, 514, 15 N.E.3d 1175, 1176, 992 N.Y.S.2d 166, 167 (2014); People v. Lewis, 23 N.Y.3d 179, 189-90, 12 N.E.3d 1091, 1096-97, 989 N.Y.S.2d 661, 667 (2014); In re Gabriela A., 23 N.Y.3d 155, 165-66, 12 N.E.3d 1054, 1061, 989 N.Y.S.2d 624, 631 (2014) (Pigott, J., dissenting); People v. Sage, 23 N.Y.3d 16, 29-30, 11 N.E.3d 177, 187, 988 N.Y.S.2d 104, 114 (2014) (Pigott, J., dissenting); People v. Aveni, 22 N.Y.3d 1114, 1118, 6 N.E.3d 1124, 1126-27, 983 N.Y.S.2d 768, 770-71 (2014) (Pigott, J., dissenting); People v. Reed, 22 N.Y.3d 530, 534, 536, 6 N.E.3d 1108, 1110, 1112, 983 N.Y.S.2d 752, 754, 756 (2014); People v. O'Toole, 22 N.Y.3d 335, 340-41, 3 N.E.3d 687, 691, 980 N.Y.S.2d 350, 354 (2013) (Pigott, J., dissenting); State v. Nelson D" 22 N.Y.3d 233, 243-44, 3 N.E.3d 674, 681, 980 N.Y.S.2d 337, 344 (2013) (Pigott, J., dissenting); People v. Wells, 21 N.Y.3d 716, 720, 999 N.E.2d 1157, 1160, 977 N.Y.S.2d 712, 715 (2013) (Pigott, J., dissenting); People v. Glynn, 21 N.Y.3d 614, 616, 999 N.E.2d 1137, 1138, 977 N.Y.S.2d 692, 693 (2013); People v. Jones, 21 N.Y.3d 449, 452, 994 N.E.2d 831, 833, 971 N.Y.S.2d 740, 742 (2013); People v. Barboni, 21 N.Y.3d 393, 397, 994 N.E.2d 820, 821-22, 971 N.Y.S.2d 729, 730-31 (2013); People v. Mejias, 21 N.Y.3d 73, 76, 989 N.E.2d 26, 27, 966 N.Y.S.2d 764, 765 (2013); People v. Padilla, 21 N.Y.3d 268, 270, 992 N.E.2d 414, 415, 970 N.Y.S.2d 486, 487 (2013); People v. Lee, 21 N.Y.3d 176, 178, 991 N.E.2d 692, 693, 969 N.Y.S.2d 834, 835 (2013); People v. Pagan, 19 N.Y.3d 91, 96-98, 968 N.E.2d 960, 963-964, 945 N.Y.S.2d 606, 609-610 (2012); People v. Williams, 20 N.Y.3d 579, 582, 987 N.E.2d 260, 261, 964 N.Y.S.2d 483, 484 (2013); State v. Myron P., 20 N.Y.3d 206, 209, 981 N.E.2d 772, 773, 958 N.Y.S.2d 71, 72 (2012); People v. W. Express Int'l, 19 N.Y.3d 652, 660-61, 978 N.E.2d 1231, 1236, 954 N.Y.S.2d 763, 768 (2012) (Pigott, J., dissenting); People v. Gause, 19 N.Y.3d 390, 396, 971 N.E.2d 341, 345, 948 N.Y.S.2d 211, 215 (2012) (Pigott, J., dissenting); People v. Reid, 19 N.Y.3d 382, 384, 971 N.E.2d 353, 354, 948 N.Y.S.2d 223, 224 (2012); People v. Matos, 19 N.Y.3d 470, 479, 973 N.E.2d 152, 157, 950 N.Y.S.2d 57, 62 (2012) (Pigott, J., dissenting); People v. Rodriguez, 18 N.Y.3d 667, 671-72, 967 N.E.2d 661, 663-64, 944 N.Y.S.2d 438, 440-41 (2012); People v. Smith, 18 N.Y.3d 588, 595, 965 N.E.2d 232, 236, 942 N.Y.S.2d 5, 9 (2012) (Pigott, J., concurring); People v. Sosa, 18 N.Y.3d 436, 443, 963 N.E.2d 1235, 1239, 940 N.Y.S.2d 534, 538 (2012) (Pigott, J., dissenting); People v. Steward, 18 N.Y.3d 493, 496, 964 N.E.2d 388, 389-90, 941 N.Y.S.2d 17, 18-19 (2012); People v. Clyde, 18 N.Y.3d 145, 148-49, 961 N.E.2d 634, 635-36, 938 N.Y.S.2d 243, 244-45 (2011); People v. Credle, 17 N.Y.3d 556, 562, 958 N.E.2d 111, 115, 934 N.Y.S.2d 77, 81 (2011) (Pigott, J., dissenting); People v. Davis, 17 N.Y.3d 633, 636, 959 N.E.2d 498, 499, 935 N.Y.S.2d 561, 562 (2011); People v. Acevedo, 17 N.Y.3d 297, 303, 952 N.E.2d 1047, 1051, 929 N.Y.S.2d 55, 59 (2011) (Pigott, J., concurring); People v. Evans, 16 N.Y.3d 571, 573, 949 N.E.2d 457, 457, 925 N.Y.S.2d 366, 366 (2011); People v. Rabb, 16 N.Y.3d 145, 148, 945 N.E.2d 447, 448, 920 N.Y.S.2d 254, 255 (2011); People v. Ortega, 15 N.Y.3d 610, 622, 942 N.E.2d 210, 218, 917 N.Y.S.2d 1, 9 (2010) (Pigott, J., concurring); In re Jimmy D., 15 N.Y.3d 417, 421, 938 N.E.2d 970, 972, 912 N.Y.S.2d 537, 539 (2010); People v. McKinnon, 15 N.Y.3d 311, 317, 937 N.E.2d 524, 527, 910 N.Y.S.2d 767, 770 (2010) (Pigott, J. dissenting); People v. Devone, 15 N.Y.3d 106, 110, 931 N.E.2d 70, 71, 905 N.Y.S.2d 101, 102 (2010); Cayuga Indian Nation v. Gould, 14 N.Y.3d 614, 654, 930 N.E.2d 233, 257, 904 N.Y.S.2d 312, 336 (2010) (Pigott, J" dissenting); Hurrell-Harring v. State, 15 N.Y.3d 8, 27, 33, 930 N.E.2d 217, 228, 232, 904 N.Y.S.2d 296, 307, 311 (2010); People v. Zona, 14 N.Y.3d 488, 495, 928 N.E.2d 1041, 1046, 902 N.Y.S.2d 844, 849 (2010) (Pigott, J., dissenting); People v. Kadarko, 14 N.Y.3d 426, 428-29, 928 N.E.2d 1025, 1026, 902 N.Y.S.2d 828, 829 (2010); People v. Williams, 14 N.Y.3d 198, 225, 925 N.E.2d 878, 895, 899 N.Y.S.2d 76, 93 (2010) (Pigott, J., dissenting in part and concurring in part); People v. Ochoa, 14 N.Y.3d 180, 185, 925 N.E.2d 868, 871, 899 N.Y.S.2d 66, 69 (2010).
For Pigott's pro-defense rulings following the Loefke article, see People v. Galindo, 23 N.Y.3d 719, 726, 17 N.E.3d 1121, 1126, 993 N.Y.S.2d 525, 530 (2014) (Pigott, J" dissenting); People v. Dumay, 23 N.Y.3d 518, 527, 16 N.E.3d 1150, 1156, 992 N.Y.S.2d 672, 678 (2014) (Pigott, J., dissenting); In re George, 22 N.Y.3d 323, 334, 3 N.E.3d 1139, 1146-47, 980 N.Y.S.2d 891, 898-99 (2013) (Pigott, J., dissenting); People v. Abraham, 22 N.Y.3d 140, 148, 1 N.E.3d 797, 802, 978 N.Y.S.2d 723, 728 (2013) (Pigott, J., dissenting); People v. Hernandez, 22 N.Y.3d 972, 978, 1 N.E.3d 785, 790, 978 N.Y.S.2d 711, 716 (2013) (Pigott, J., dissenting); People v. Oathout, 21 N.Y.3d 127, 128-29, 989 N.E.2d 936, 937, 967 N.Y.S.2d 654, 655 (2013); People v. Adams, 20 N.Y.3d 608, 612, 987 N.E.2d 272, 274, 964 N.Y.S.2d 495, 497 (2013); People v. McFadden, 20 N.Y.3d 260, 265-66, 982 N.E.2d 1241, 1244, 959 N.Y.S.2d 108, 111 (2012) (Pigott, J., dissenting); People v. Halter, 19 N.Y.3d 1046, 1054, 979 N.E.2d 1135, 1141, 955 N.Y.S.2d 809, 815 (2012) (Pigott, J., dissenting); People v. Harris, 19 N.Y.3d 679, 687, 978 N.E.2d 1246, 1251, 954 N.Y.S.2d 777, 781-82 (2012); People v. Santiago, 17 N.Y.3d 661, 664, 958 N.E.2d 874, 877, 934 N.Y.S.2d 746, 749 (2011); People v. Porto, 16 N.Y.3d 93, 102, 942 N.E.2d 283, 289, 917 N.Y.S.2d 74, 80 (2010) (Pigott, J., dissenting); People v. Dreyden, 15 N.Y.3d 100, 102, 931 N.E.2d 526, 527, 905 N.Y.S.2d 542, 543 (2010); People v. McBride, 14 N.Y.3d 440, 448, 928 N.E.2d 1027, 1033, 902 N.Y.S.2d 830, 836 (2010) (Pigott, J., dissenting); People v. Carncross, 14 N.Y.3d 319, 332, 927 N.E.2d 532, 540, 901 N.Y.S.2d 112, 120 (2010) (Pigott, J., dissenting).
(462) Steciuk, supra note 459 (discussing Pigott's dissents in favor of criminal defendants' rights from 2009 to 2012); see supra note 461.
(463) Compare supra notes 460-62 and accompanying text (discussing Pigott's record in criminal cases), with supra notes 406-09 and accompanying text (discussing George Bundy Smith's record in criminal cases).
(464) Ciparick is Hispanic. Spencer, supra note 158. After Pataki declined to reappoint George Bundy Smith, all of the other judges on the Court of Appeals--Rosenblatt, Graffeo (who, notably, was Italian-American, an ethnic category that Mario Cuomo had emphasized), Read, Robert Smith, and Pigott--were white. Virtually all of Pataki's appellate division selections were white jurists, too. See Cooper, supra note 427, at A1 ("In addition to leaving the Court of Appeals without a black judge, the governor has left the lower Appellate Division overwhelmingly white.").
(465) Pomerance, supra note 29, at 260.
(466) See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35, at 4-5.
(467) Pomerance, supra note 29, at 260 & n.514 (pointing out that the only African-Americans on the short lists Cuomo received were Fritz Alexander II, George Bundy Smith, Lewis L. Douglass, and Samuel L. Green).
(468) See supra notes 184-85 and accompanying text.
(469) See supra notes 280-81, 328-29 and accompanying text.
(470) See supra notes 411-14, 427 and accompanying text.
(471) This fact received a substantial dose of media criticism, particularly in the immediate aftermath of Pigott's appointment. See, e.g., Cooper, supra note 427, at A1; Lauren Jones, Next Governor's Job: Unpacking the Court, POST-STANDAKD (Syracuse, N.Y.), Sept. 3, 2006, at El.
(472) Graffeo and Read joined Kaye and Ciparick, giving the Court of Appeals four female judges and three male judges. See supra note 346 and accompanying text.
(473) See, e.g., Pomerance, supra note 29, at 205 (describing Cuomo's vow to appoint the first female judge to the Court of Appeals).
(474) See supra pp. 220, 227, 234, 240, 245, 254.
(475) See supra p. 245.
(476) See Pomerance, supra note 29, at 263.
(477) See supra notes 46-50, 98-100 and accompanying text.
(478) See supra notes 42-45, 51-54 and accompanying text.
(479) See supra notes 42-45, 51-54 and accompanying text.
(480) See supra Part V.A-D.
(481) See supra note 163 and accompanying text.
(482) See supra pp. 220, 227, 234, 240, 245, 254.
(483) See Cooper, supra note 427, as A1 ("[Pataki] has broken with the tradition of naming appointees from both parties to the higher court, choosing only Republicans.").
(484) See supra note 35.
(485) Furthermore, both of those selections--Rosenblatt replacing Titone and Pigott replacing George Bundy Smith--involved the appointment of a Republican whose voting record proved to be far more moderate than Pataki may have predicted. See supra Part V.B, V.F.
(486) Pomerance, supra note 29, at 262-63.
(487) Chan, supra note 35, at B1.
(488) See, e.g., Cooper, supra note 427, at A1 ('"Reflecting back on it, I think I did know that Judge Pigott was a Republican, but it's not something that even entered my mind,' [Pataki] said."); McKinley, supra note 283, at B5 ("Mr. Pataki maintained on Tuesday that he did not know Mr. Smith's political affiliation when he made the decision to nominate him, a decision he said he made the night before."); Stashenko, supra note 179, at B2 ("'[Y]ou don't look at a particular issue or a particular vote or a particular decision' ... Pataki said.").
(489) See supra p. 220.
(490) See supra p. 234.
(491) See supra p. 227.
(492) Wesley, see supra p. 220, Graffeo, see supra p. 234, and Read, see supra p. 240, all were appointed at ages young enough to afford them this opportunity. Graffeo's reappointment bid is pending at the time of this writing.
(493) See Womack-Weidner, supra note 246, at 4.
(494) See supra p. 245.
(495) See supra p. 240.
(496) See supra pp. 220, 227-28, 234, 254.
(497) See supra Part V (discussing the preappointment criminal case voting records, if any, of the judges whom Pataki appointed to the Court of Appeals).
(498) See supra pp. 240, 245.
(499) See supra note 435 and accompanying text. To a much lesser extent, Rosenblatt had also authored some strongly pro-defendant dissents while on the appellate division, potentially a taste of his future swing vote tendencies on the Court of Appeals. See supra note 259 and accompanying text.
(500) See supra p. 220.
(501) See supra Part V.D-E.
(502) See supra Part V.F.
(503) See supra note 289 and accompanying text (describing Graffeo's appellate division signed opinions on criminal justice cases). While none of the judges whom Pataki chose demonstrated a pro-defendant voting record prior to joining the Court of Appeals, and some (particularly Wesley) were reputed to strongly favor the Government in criminal matters, Graffeo's record provided the clearest pro-prosecution history of any Pataki appointee.
(504) See supra Part V (showing that throughout Pataki's time in office, the short lists he received included many candidates whose stance on criminal justice issues was either discernibly pro-defendant (like Samuel Green and Myriam Altman), relatively balanced between pro-prosecution and pro-defense decisions (such as Pigott and Joseph Sullivan), or largely unknown (such as Read, Robert Smith, Stephen Friedman, and Guy Miller Struve)).
(505) See supra note 206.
(506) See supra note 257 and accompanying text.
(507) See supra note 301 and accompanying text.
(508) See supra notes 408-10 and accompanying text.
(509) See supra Part V.D, V.F.
(510) See Durr, supra note 379; supra note 381 and accompanying text.
(511) See Baker, supra note 379, at B5.
(512) See STATE OF N.Y. COMM'N ON JUDICIAL NOMINATION, supra note 35.
(513) Id. at 4-5.
(514) See id. at 2-4.
(515) See id. at 4-5.
(516) See id. at 5.
(517) See supra p. 221.
(518) See supra p. 235.
(519) See supra p. 240.
(520) See supra p. 245.
(521) See supra Part V.B, V.F.
(522) See supra p. 255.
(523) See supra Part V (providing an overview of the criminal case voting records of each Pataki Court of Appeals appointee).
(524) See supra Part III (discussing in detail the Court of Appeals as Pataki inherited it, and demonstrating that the court was not as "soft on crime" as the Governor implied).
(525) See supra notes 231-34 and accompanying text.
(526) See supra notes 231-34 and accompanying text.
(527) See supra notes 395-99 and accompanying text.
(528) For instance, one study noted that the Court of Appeals between 2006 and 2009--the first three years following Pataki's final appointment--the court ruled for the defense in forty-eight percent of divided criminal cases. Loefke, supra note 422, at 1094 tbl. 3. In other words, the court favored the prosecution just barely over half the time in these contentious criminal justice matters. See id. This does not seem to be the type of overall record that Pataki sought when he called for a judicial makeover of the Court of Appeals.
(529) See supra note 485 and accompanying text.
(530) See supra notes 40-41 and accompanying text.
Benjamin Pomerance, J.D., Albany Law School, B.A., State University of New York at Plattsburgh, serves in Counsel's Office for the New York State Division of Veterans' Affairs. Mr. Pomerance previously served as Executive Editor for Symposium for the Albany Law Review. He also founded and directed the Albany Law School Veteran's Pro Bono Project, and has taught a class on the First Amendment at Union College. The author wishes to thank Prof. Vincent Bonventre for his intellectual nourishment about all levels of the judicial process, the staff of the Albany Law Review for their ever-meticulous work, and Ron and Doris Pomerance for a lifetime of support and encouragement. All views expressed here are the author's own based on independent research and opinions, and do not necessarily represent the views of the Division of Veterans' Affairs or any other New York State entity.
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|Title Annotation:||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|
|Publication:||Albany Law Review|
|Date:||Sep 22, 2014|
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