List of Candidates for State’s Top Court Goes to Spitzer for an Early Decision
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Choosing among the list of candidates released yesterday for an opening on the state’s highest court will require Governor-elect Spitzer to navigate political considerations that range from his relations with labor unions to the future of the death penalty in New York.
One of Mr. Spitzer’s first acts as governor will be to nominate a judicial candidate to the Court of Appeals in Albany to replace Judge Albert Rosenblatt. Nominated to the court by Governor Pataki, Judge Rosenblatt must step down at the end of the year because at age 70 he will have reached the age of mandatory retirement.
Judge Rosenblatt’s replacement will come from a list of seven candidates — a partner at a major law firm and six current judges — who have been approved by the state’s Commission on Judicial Nomination.
The list, which the commission sent to Mr. Spitzer yesterday, includes a pair of judges who have presided over two of the city’s most watched cases of recent years.
One of those judges, Theodore Jones Jr., emerged from relative obscurity last year to become the public face of the state’s Taylor Law by ordering the city’s transit union to end its strike last year. A decision by Mr. Spitzer to nominate Judge Jones could alienate members of the city’s 33,000-strong transit union. Judge Jones sentenced the president of the city’s Transport Workers Union, Roger Toussaint, to 10 days in jail and fined the union $2.5 million for violating the Taylor Law, which forbids public employees from striking.
A transit union vice president, Randy Nevels, said Judge Jones was a “menacing” figure to the union and that he would expect the union to lobby Mr. Spitzer not to nominate him.
“I think Mr. Jones would be a bad choice for the working man,” Mr. Nevels said. Referring to Mr. Spitzer, Mr. Nevels said: “I would imagine the union would petition him not to support this man or appoint him.”
Other union officials said they would not oppose Judge Jones’s candidacy on the grounds of this decision.
“A judge is a judge and if we broke the rule, then he had to go by the law and he made a decision,” another union vice president, William Pelletier, said.
Another of the judges on the list of candidates to replace Judge Rosenblatt, Steven Fisher, presided over the capital case of murderer John Taylor, who is now the lone condemned man on New York’s death row.
Taylor’s appeal is among the most highly anticipated cases expected to come before the Court of Appeals next year. Judge Fisher would be expected to recuse himself from hearing the case were he to become a judge on the Court of Appeals.
Legal observers say there is a possibility the court could use Taylor’s appeal to revisit its landmark 2004 decision that in effect imposed a moratorium on the death penalty in New York State. By deciding to nominate Judge Fisher, Mr. Spitzer would deprive himself of the opportunity to shape the membership of the court that will hear the death penalty appeal. Mr. Spitzer has said he is an advocate of the death penalty in certain instances.
A professor at Benjamin Cardozo School of Law who closely follows the Court of Appeals, Stewart Sterk, said he would be “very surprised” were Mr. Spitzer to decide not to nominate a judge “based on the judge’s unavailability in a single case.”
The other five candidates chosen by the commission are George Carpinello, an Albany attorney who is a partner at the firm of Boies, Schiller & Flexner LLP; Richard Andrias, currently a judge on the state’s midlevel appellate court located in Manhattan; Thomas Mercure, a judge on the state’s midlevel appellate court in Albany; Juanita Bing Newton, the administrative judge of the city’s Criminal Court, and James Yates, a state judge in Manhattan.
Mr. Spitzer is required to choose among these candidates within his first two weeks in office. The state Senate then must confirm the nominee.
Some legal observers have said Mr. Spitzer will face pressure to nominate a black candidate to the court, which for months has been without a black judge, the first time that’s been true since 1985. The 14-year term of the lone black on the court, Judge George Bundy Smith, expired earlier this year and Governor Pataki declined to reappoint him. Judge Smith, who is now 69, did not put his candidacy forward this time when the nominating commission began accepting applications for Judge Rosenblatt’s spot, Judge Smith told The New York Sun. Judges Jones and Bing-Newton are black.
Four of the six remaining judges on the Court of Appeals were nominated by Mr. Pataki. The other two were nominated by Governor Cuomo.