Looming court pick a 'pivotal moment' for Hochul to reshape New York judiciary

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ALBANY, N.Y. — The surprise resignation Monday of New York's top judge led to a groundswell of calls from Democratic state and federal lawmakers to reshape the court and move it in a more progressive direction in response to the conservative shift on the U.S. Supreme Court.

Chief Judge Janet DiFiore said she would resign next month, giving Democratic Gov. Kathy Hochul and the Democratic-led state Senate the opportunity to pick a new judge outside of the moderate picks made by former Gov. Andrew Cuomo, who remade New York's top court during his 11 years in office.

Democrats in New York said the pick for the Court of Appeals in the coming months needs to counteract the Supreme Court's recent decisions to overturn Roe v. Wade and toss a restrictive concealed carry gun law that the state had on the books for a century.

“It’s a real changing of the guard,” state Senate Judiciary Committee Chair Brad Hoylman (D-Manhattan), whose committee will need to sign off on any nomination, said in an interview with POLITICO. “It’s a pivotal moment for Governor Hochul to build her own legacy with a court that hopefully is both independent but respectful of the Legislature’s prerogative.”

The replacement will also be a chance for Hochul to address concerns that the court had close ties to Cuomo, particularly DiFiore who maintained a friendship with Cuomo during their years living in Westchester County. He picked her as chief judge in 2016.

"In light of recent U.S. Supreme Court decisions and now news of the New York Chief Judge stepping down, it is more important than ever that Governor Hochul nominates and the Senate confirms a progressive chief judge," Assembly Speaker Carl Heastie (D-Bronx) wrote on Twitter.

Holyman pointed to DiFiore’s election as Westchester district attorney while an enrolled member of the GOP in 2005: “Let’s not forget that the chief judge was a Republican and a prosecutor. I don’t think that necessarily reflects the background that the Senate would want to see in a new chief judge.”

That background has been at the center of numerous complaints from the left about the court’s tilt in recent years.

As Cuomo departed office last year, the court consisted entirely of members he appointed. And it was dominated by former prosecutors like DiFiore.

There was plenty of evidence that the judges' resumes shaped the court’s decision making. Albany Law School Professor Vin Bonventre recently calculated that the DiFiore court heard an average of only 49 criminal appeals year compared to 101 per year under predecessor Jonathan Lippman. The chief judge was part of a four-member bloc in the seven-member court that often issued conservative rulings on subjects like police misconduct.

Progressives have campaigned for a more diverse collection of experience on the bench in advance of each of the three appointments made over the past three years. It was clear within hours of DiFiore’s departure that the campaign will ramp up ahead of Hochul's move to make a new pick.

“The absence of a public defender and civil legal services attorney on the court creates a tremendous gap of knowledge and experience,” the Legal Aid Society said in a statement. “It is more important than ever that Governor Hochul nominates and the Senate confirms a progressive chief judge,” Assembly Speaker Carl Heastie wrote on Twitter.

Rep. Hakeem Jeffries, (D-Brooklyn) who feuded with the court after DiFiore wrote the majority opinion in April that struck down the new Democratic-drawn district lines, was terser in his statement.

“Good riddance,” he said.

DiFiore turns 67 in August and was still a few years away from the mandatory retirement age of 70. A governor nominates a candidate for the state Court of Appeals and needs to be confirmed by the state Senate.

Beyond the ideological bent of the court, the pick will also go a long way toward reshaping the popular perception that the top court functioned as a Cuomo ally.

Hochul, who is seeking full, four-year term in November, will have nominated only two of the seven members after picking a DiFiore replacement. None of the other five appointed by Cuomo will have their terms expire before 2027.

But none of the judges has been as closely connected to Cuomo as DiFiore.

Before picking her for the court, Cuomo chose DiFiore to chair the Joint Commission on Public Ethics. That entity spent most of its 11-year existence widely maligned as a toothless ethics watchdog controlled by the governor that is now being replaced by Hochul.

Cuomo also faced widespread calls to give Attorney General Tish James the power to investigate allegations of sexual misconduct levied against him as his administration began to implode in February 2021. His administration tried to fend off the scandal by pitching an investigation led jointly by James and the chief judge.

That raised a lot of eyebrows in Albany, not the least due to the fact that DiFiore’s role meant she would likely proceed over any potential impeachment trial. She quickly supported Cuomo’s pitch, though James refused to go along and ultimately was given the power to direct the probe that led to the governor’s resignation five months later.

“I hope the next chief judge wants to protect litigants by creating more judges and funding the court system, which is suffering enormous backlogs from Covid and the need to move its filing system into the 21st century,” he said. “That’s going to take resources.”

Hoylman also pointed to DiFiore’s regular willingness to impose the same 2 percent annual budget increase on the courts that Cuomo said executive branch agencies should be subjected to.

He said that “the Legislature has been willing” to push for more help money for the courts in the annual budget, “but through collaboration with the previous governor,” the judicial branch didn’t ask for them.

“It was alarming to those of us in the Senate that would regard themselves in effect as an executive agency by agreeing to the governor’s spending cuts,” Hoylman said.

The Commission on Judicial Nomination will screen candidates for the court opening in the coming months and create a short list of potential appointees. Hochul will then pick a name from that list, which would be sent to the Senate for confirmation.

The 12-member commission that has the first step in the process still has three Cuomo appointees on it, including former gubernatorial counsel Mylan Denerstein and former Assembly member Dede Scozzafava.

Hochul said in a statement on Monday that she looks "forward to reviewing the recommendations of the Commission on Judicial Nomination as we work to appoint new leadership to the Court."