Shake-ups are coming to the Commission on Judicial Nomination. How will that impact NY’s chief judge process?

Three commission members’ terms expire at the end of the month as they try to come up with a new shortlist for the governor.

Gov. Kathy Hochul

Gov. Kathy Hochul Steve Pfost/Newsday RM via Getty Images

Close observers of the chief judge nomination process expect the Commission on Judicial Nomination to release a “shortlist” of seven potential nominees before the end of the month.

Under state law, the commission technically has until mid-June to release a list of candidates. But they are unlikely to wait that long, particularly since three of the commission’s 12 members will see their terms expire on March 31 – right around the time the state budget is due. Once the commission releases the shortlist, Gov. Hochul will have 30 days to select one of the seven candidates to nominate.

The 12 members of the commission serve staggered four-year terms, with three commissioners’ terms expiring each year. Four commissioners are chosen by the governor, four by the chief judge and one each by the Democratic and Republican leaders in the state Senate and Assembly. More than half of the current commissioners were originally appointed by either former chief judge Janet DiFiore (who appointed four of the current commissioners) or former Gov. Andrew Cuomo (who appointed two).

But that could change at the end of the month, when terms are set to expire for three current commission members: Dierdre Scozzafava, a former Assembly member appointed to the commission by Cuomo; Robin Bikkal, an immigration attorney appointed by Senate Majority Leader Andrea Stewart-Cousins; and Russell Hernandez, a real estate developer appointed by DiFiore.

Acting Chief Judge Anthony Cannataro, who temporarily assumed DiFiore’s duties after she stepped down last year, will be able to replace Hernandez. Hochul and Stewart-Cousins will have the opportunity to replace Scozzafava and Bikkal, respectively. 

There’s no requirement that any of the three commissioners be replaced. Last year, Hochul had the opportunity to appoint a replacement for Abraham Lackman, who had originally been appointed by Cuomo in 2018, but she opted to reappoint him to another four-year term. It’s entirely possible that Cannataro will reappoint Hernandez, Hochul will reappoint Scozzafava and Stewart-Cousins will reappoint Bikkal. But there’s no guarantee, and any replacement of a commissioner could tip the balance of power on the commission.

A candidate for the chief judge position must have the support of at least eight of the 12 commissioners to make it onto the shortlist. Currently, the four DiFiore appointees and two Cuomo appointees have the power to block any applicant, but that won’t necessarily be the case after March 31. The commission’s deliberations are not made public.

Last year, three current Court of Appeals judges who had often dissented from DiFiore’s majority opinions – Rowan Wilson, Jenny Rivera and Shirley Troutman – applied for the chief position but were left off the shortlist. Wilson had previously been included on the shortlist for an earlier chief judge vacancy (back in 2015), while Troutman was widely seen as Hochul’s favored pick for chief judge. Their omissions from the shortlist raised eyebrows and suggested that the commission was still politically aligned with DiFiore. 

“We relied on the expertise of the Commission on Judicial Nominations,” state Senate Judiciary Chair Brad Hoylman-Sigal told City & State. “Now we understand that it’s populated by and virtually controlled by appointees of former Gov. Cuomo and ex-Chief Judge DiFiore.”

Noah Rosenblum – an NYU law professor who previously clerked for a Court of Appeals judge and was involved in the activist campaign against LaSalle’s nomination – expects that the Commission on Judicial Nomination will try to finalize a list of candidates before Scozzafava, Hernandez and Bikkal’s terms expire.

Tight deadline

The state constitution requires the Commission on Judicial Nomination to release a shortlist within 120 days of being notified of a vacancy on the Court of Appeals.

Last year, the commission accepted applications for the chief judge vacancy between July 29 and Aug. 29. It released a shortlist of seven candidates on Nov. 23 and Hochul announced the nomination of LaSalle on Dec. 22. After LaSalle’s nomination was rejected by the state Senate, the commission announced on Feb. 17 that all 41 applicants to the position who originally applied last year would automatically be considered for the position again this year. It originally set a deadline of March 7 for new applicants, which was later extended to March 10.

At first glance, it may seem impossible for the commission to finalize a shortlist of candidates by March 31, just three weeks after the application deadline. Last year, the same process took nearly three months.

But there’s good reason to believe that the process won’t take nearly as long this time. Because most applicants for the chief judge position originally applied last year, the commission has already evaluated them. It will only need to consider the relative handful of new applicants before coming up with a shortlist. It’s very possible that the new shortlist will look very similar to the old shortlist, given that the commission considered those applicants the most well-qualified for the position as recently as last year. 

Once the Commission on Judicial Nomination releases the shortlist, the governor will have between 15 and 30 days to decide which of the seven candidates to nominate as chief judge. She will not have to make the decision alone. Given the intense interest in the Court of Appeals following the LaSalle nomination debacle, outside groups are likely to make their support and opposition to specific candidates known in the weeks after the shortlist is released. If the commission releases the shortlist before March 31, then April could be a very busy month of lobbying.