New York’s Top Court in the Balance
Much ink has been spilled in recent years about the conservative tilt of the federal judiciary. The partisan lean of the federal courts is undoubtedly important, but the vast majority of lawsuits and criminal prosecutions in the United States take place in state courts, and state court rulings are rarely subjected to federal review. To the extent that political observers pay attention to state courts, the focus has largely been on swing states (which is understandable given the national electoral implications of controlling those bodies). The ideological composition of the judiciaries in non-swing states has been largely overlooked.
It may come as a surprise, but the highest court in New York, the Court of Appeals, has been controlled in recent years by a conservative majority that is particularly regressive on criminal and racial justice issues. Recent developments, however, have left the long-term ideological persuasion of the Court hanging in the balance. Two of the Court’s seven seats currently sit vacant, with a third vacancy expected by the end of the year. With the four holdover judges split evenly between conservatives and progressives, the people appointed to fill these vacancies will dictate the Court’s ideology for years.
Last year, in response to protests that erupted across the nation, elected officials across the country, including Governor Andrew Cuomo, promised to make progress on addressing systemic injustice. The three Court of Appeals judges being replaced this year leaned conservative on racial and criminal justice issues, so Governor Cuomo now has the opportunity to swing the highest court in New York from right to left. Unfortunately, his first two selections, announced last week, were uninspiring to say the least. Neither has meaningful appellate experience, and one is a career prosecutor with a regressive record who opposed recent much-needed legislative reforms to policing and the criminal legal system. The other has less of a track record, but has no apparent record of advocacy on behalf of the marginalized. These nominees are deeply disappointing and must be stopped.
The good news is that Governor Cuomo is not the only elected official with a voice in who sits on the Court of Appeals. His nominees must be approved by the State Senate, who can hold him accountable to his racial justice promise. If you live in New York, please contact your state senator and let them know that you want the state’s highest court to prioritize the protection of the rights of the marginalized. Time is of the essence. The State Senate will begin to consider the nominees as early as today, and the final vote to confirm or reject them is expected to occur next week.
The New York Court of Appeals is the state analog to the United States Supreme Court, and it is incredibly important. Though less high-profile, the ideological persuasion of state high courts is perhaps more important for the day-to-day life of Americans than the partisan bent of the federal judiciary. The vast majority of criminal prosecutions occur in state courts, with minimal opportunity for federal court review. Similarly, most civil actions take place in state court, even when they involve alleged violations of federal rights. Thus, in New York, the Court of Appeals plays an outsized role in constructing the legal landscape in New York.
In recent years, the New York Court of Appeals has been controlled by conservatives. Recent egregious rulings (each coming in a divided decision) include a determination that actual innocence is not a valid reason for disturbing an individual’s guilty plea and that a defendant is not entitled to a remotely competent attorney on appeal. The Court’s criminal justice jurisprudence does more than just affect those who are facing criminal charges though. In embracing legal doctrines that embolden police abuse and restrict the ability of the public to hold police accountable for abusing their authority, the Court of Appeals has played an underappreciated role in developing the legal frameworks that encouraged the sorts of police and prosecutorial misconduct that helped inspire last year’s protest movements. A progressive majority would go a long way to stopping these injustices.
A hypothetical progressive majority on the New York Court of Appeals becomes even more important when viewed in the context of the conservative shift of the federal courts, engineered by Mitch McConnell. Most states, including New York, have state constitutional protections that mirror federal ones. With a progressive majority, the New York Court of Appeals can make clear that if and when the United States Supreme Court weakens or eviscerates longstanding federal constitutional protections, the state analogs will still operate in full force and without diminishment. Absent a progressive majority, New York’s most vulnerable residents will be exposed to the whims of a reactionary federal judiciary.
The ideological composition of New York’s Court of Appeals, which ordinarily has seven members, now hangs in the balance. In recent years, the Court has been hostile to the rights of the accused, with the Court deciding to hear only a miniscule number of criminal cases, and then using the cases it does accept as vehicles to undermine important state and federal constitutional safeguards. As Professor Steven Zeidman observed in a recent piece in Slate, the Court of Appeals sided with the prosecution 82% of the time in 2017. But, the three “swing” votes (these are “swing” votes in the sense that Justices Kavanaugh, Roberts, and Gorsuch are the “swing” votes on the United States Supreme Court — they are undoubtedly conservative, at least on racial and criminal justice issues, but they are the judges most likely to occasionally side with the progressive wing if a defendant’s rights are violated too egregiously) on the Court are all scheduled to be replaced this year.
In New York, the Court of Appeals seats are filled by the governor, though his nominees are subject to approval by the State Senate. This means that Governor Cuomo and the New York State Senate have the opportunity to completely remake the ideological balance of the Court of Appeals this year. This is an opportunity should not be wasted. In the coming years, the Court will play a significant role in interpreting landmark recent legislation, including significant policing and criminal justice reforms, and expanded tenant protections. As we have seen at the federal level, a hostile judiciary can render hard-fought legislative advances merely symbolic. And future legislative victories can only remedy a regressive Court of Appeals so much — if New York passes any additional progressive measures in the next few years, these too will be vulnerable to a reactionary Court.
As Professor Zeidman concluded in his piece for Slate:
While the past year’s protests shined a spotlight on hyper-aggressive and racist policing, the criminal legal system extends beyond the police. Courts are arbiters that sanction and thereby encourage police and prosecutorial behavior. New York’s highest court has turned a blind eye toward the rights of people charged with crime. It is Cuomo’s court, and if he will not fix it, then the new majority-Democratic Senate must flex its power to deny confirmation to his nominees until he does
Governor Cuomo’s choices to fill the first two of the three vacancies — Madeline Singas and Anthony Cannataro — were deeply disappointing. Neither has significant appellate experience, and Ms. Singas has no experience as a judge at all. Ms. Singas was rated as less well qualified than all but one of the other potential nominees. Her lack of relevant qualifications is perhaps the least alarming aspect of her potential appointment to the Court. She is the District Attorney of Nassau County, and an old-school, tough-on-crime, prosecutor. She spent the formative years of her legal career working as an assistant district attorney in the notorious Queens DA’s office, which for years employed a win-at-all-costs mentality where justice meant meant winning a conviction no matter whether the defendant was guilty. Inevitably, this led to numerous cases of misconduct. One high profile case involved Charles Testagrossa, who failed to turn over exculpatory evidence to three innocent defendants who were wrongfully convicted of murder and exonerated only months ago after spending decades, collectively, in prison In the intervening years, Ms. Singas had hired Mr. Testagrossa to be the director of investigations in Nassau County’s DA office.
As District Attorney of Nassau County, Ms. Singas wields immense power in the criminal legal system. She has not used that power to address systemic injustice, and instead has advocated for tougher sentences for non-violent drug offenders. She was a vocal opponent of recent much-needed criminal justice reforms aimed to end the criminalization of poverty, and after these reforms were passed, had her subordinates trained in subverting the law, then issued veiled legal threats those who exposed her office’s systematic efforts to flout the new law. Of course, a career as a prosecutor does not guarantee that Ms. Singas will align with conservatives as a judge. That being said, given that she is afforded broad discretion in her capacity as District Attorney, and has demonstrated an utter lack of empathy for the marginalized and a willingness to subvert progressive changes in the law, it is probably pretty safe to assume that she will align with the other two former prosecutors on the Court. Naming her to the Court of Appeals, on the exact same day Governor Cuomo issued a press release marking the one-year anniversary of George Floyd’s murder and promising to making progress on racial justice issues, was gratuitous. Public defenders, civil rights advocates, and law professors are sounding the alarm.
As for Governor Cuomo’s other nominee, Judge Cannataro’s record does not have any significant and obvious red flags as far as I can tell. But, his appointment still represents a missed opportunity to shift the ideological balance of the Court. Given his lack of appellate judicial record, the State Senate should not simply rubber stamp his appointment, and instead should scrutinize his nomination to make sure that he will not be more of the same.
All of this leads to an obvious question. Why? Why would Governor Cuomo nominate two judges who lack significant appellate judicial track records when there were other, better qualified candidates available for the choosing? And why nominate someone who appears hostile to the rights of the accused and the marginalized?
One possible explanation is that Governor Cuomo may want to eviscerate or weaken recently enacted progressive measures. After all, Governor Cuomo’s modus operandi for years had been to stifle progressive measures without leaving his fingerprints. From his initial election in 2010 through 2018, Governor Cuomo cleverly maneuvered to facilitate Republican control of the State Senate, which deprived Democrats of the opportunity to enact progressive measures. It was only after organizers rallied to defeat Republican-aligned and Cuomo-allied members of the Independent Democratic Caucus in a number of primary races in 2018 that progressive measures began reaching Governor Cuomo’s desk. Perhaps he signed these measures for political expediency while being substantively opposed to their passage, and is now looking for a way to roll them back without appearing responsible for doing so.
The next explanation is not mutually exclusive, but these appointments cannot be viewed absent the context that under New York state law, if the Assembly impeaches a governor, then the judges on the Court of Appeals serve on the jury (along with the State Senate) when the impeachment is tried. In the past few months, Governor Cuomo has faced immense criticism for deliberately obscuring the scope of the COVID crisis in nursing homes, after he made some ill-advised decisions early in the pandemic. He is facing numerous credible sexual harassment allegations, and faces well-deserved scrutiny for securing a lucrative book deal celebrating his (actually deeply flawed) pandemic leadership. Numerous public officials have called for his impeachment, and an impeachment investigation is ongoing. Viewed in this context, perhaps Governor Cuomo is trying to stack the Court of Appeals with political allies in advance of an anticipated impeachment trial. Ms. Singas, in particular, is widely believed to be within Governor Cuomo’s political orbit — she was appointed by Governor Cuomo in 2018 to investigate former Attorney General Schneiderman, a longtime rival of Governor Cuomo in state politics.
The timing of these nominations raises further questions. In revealing them on May 25, when New York’s legislative session is set to end on June 10, Governor Cuomo has disrupted the State Senate’s ability to subject the nominees to the exacting scrutiny that such important positions deserve. And in jamming the State Senate, Cuomo has made it challenging to orchestrate a successful opposition. The nature of the position at stake makes this especially complicated. Many of the lawyers, activists, and organizations, who would oppose these appointments may be reticent to speak out if they view confirmation as a fait accompli, knowing that they will be trying cases in front of these judges over the course of their fourteen-year terms.
Whatever Governor Cuomo’s rationale behind choosing these specific nominees, they are incredibly discouraging. But, we are not without hope. The State Senate has the power to reject Governor Cuomo’s nominees, or at least subject them to an appropriate level of scrutiny. But, State Senators are much less likely to fulfill their responsibility if they do not think that their constituents are watching.
So, if you live in New York, contact your State Senator and Senate Majority Leader Andrea Stewart-Cousins and let them know that you want to see the vacancies on the Court of Appeals filled with progressive jurists, not conservatives.
Even if you are not a New York voter, you can help. You can reach out to your friends and relatives in New York and tell them about the importance of appointing progressives to fill the Court of Appeals vacancies, and you can direct them to organizing efforts to demand that the State Senate stop, or at least scrutinize, these nominees. This issue has flown somewhat under the radar, and many New Yorkers may not be aware that the ideological composition of the state’s highest court lies in the balance.