How different will the new NY chief judge shortlist be from the last one?

In the saga of choosing a leader of the state’s court system, the Commission on Judicial Nomination will have to again send finalists to the governor. The question is whether they will shake things up.

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The Commission on Judicial Nomination – the body that provides the governor with a shortlist of Court of Appeals candidates – has found itself in a tricky situation. After the state Senate rejected Gov. Kathy Hochul’s first chief judge nominee Hector LaSalle in January, the Commission had to reopen the application process for candidates so it could put out a new shortlist. The big question now is how the new list will differ from the old one, and why the changes – or lack thereof – might happen. 

In theory, the Commission needs only replace one name on the list of seven, finding a replacement for LaSalle after his rejection. Little should have changed between the first list coming out and the new one that would preclude original candidates from consideration by the governor again. But that’s not a given, particularly after the unprecedented rejection of LaSalle and the politics surrounding both his nomination and the backlash to it. “Yes, there’s the qualification factor, but there’s a second factor in that you don’t want to put the governor in a pickle again,” Democratic consultant Eli Valentin told City & State. “That’s why I think these political considerations come to the fore even more.”

The Commission on Judicial Nomination recently extended the deadline to apply to March 10. After that deadline, the commission has four months to submit a shortlist to the governor, but they are expected to do so sooner. There has been a vacancy since former Chief Judge Janet DiFiore stepped down at the end of August. 

The previous shortlist only included one sitting Court of Appeals judge, the acting Chief Judge Anthony Cannataro. New York Focus reported that three others applied – Shirley Troutman, Jenny Rivera and Rowan Wilson – but did not make it onto the shortlist to the surprise or disappointment of some political observers. Chief Judge Janet DiFiore – a Cannataro ally – previously appointed four out of the 12 members of the Commission. Wilson and Rivera represented the leftwing bloc of the court that often dissented from DiFiore, and Troutman often served as a swing vote that did not always agree with DiFiore. “As I understand it, these other candidates are falling by one or two votes,” said one source with knowledge of the selection process who requested anonymity to discuss private conversations. “The point is, the best candidates didn’t get out.”

The new application process provides members a fresh opportunity to reconsider prior applicants like the other Court of Appeals judges as well as new people seeking appointment to lead the state’s highest court. At the very least, the list will have one new person, and from a political standpoint, choosing that person from among the sitting Court of Appeals judges would be most expedient. For Hochul, appointing someone already on the bench opens up another seat and expands her influence on the Court of Appeals with another nomination. But which of the three judges other than Cannataro remains a question. 

Valentin suggested that adding Rivera to the shortlist would make the most sense given her ideological alignment with the Democratic Legislature and the fact she could appease Latino politicos who wanted to see someone from their community elevated the chief judge. “Number one, the Commission needs to consider that,” Valentin said. “And number two, I think Gov. Hochul should look at someone like Jenny Rivera because of those two reasons.”

The source with knowledge of the selection process suggested that Troutman would be a good person for the Commission to include and that she had been Hochul’s first choice given Troutman’s Buffalo roots and their long standing relationship. “I think she has the best chance of bringing this court together,” the person said of Troutman’s fairly moderate political ideology and status as swing voter on what is otherwise a fairly divided court. But Troutman, like LaSalle, is a former prosecutor. She received some criticism for that at the time of her appointment in 2021 that some in the Legislature may take issue with.