Under the New York Constitution (and an implementing statute), when a vacancy occurs on the NY Court of Appeals (the state's highest court), the Governor must nominate someone from a list prepared by a Commission on Judicial Nomination. NY Governor David Paterson is now miffed that the list of seven names submitted to him for possible replacements for retiring Chief Judge Judith Kaye contains no women. As I told a reporter for the NY Observer (here), there are quite a few ambiguities in the law. Although it is clear that the Governor cannot pick someone not on the list, there is no provision expressly permitting him to, or forbidding him from, asking the Commission for a new list. To the extent that the Commission's existence is meant to de-politicize the selection process, however, doing so would seem at least a bit problematic.
Meanwhile, here's a Machiavellian reading of Paterson's complaint. Despite not having been elected to the Governorship himself, Paterson now finds himself with the power to select two of the state's six most powerful political office-holders. In no particular order, the 6 are: Governor; Chief Judge; 2 U.S. Senators; Speaker of the Assembly; and Senate Majority Leader. Of the current 6, 2 are women, and it is those 2 that Paterson now must replace. (Kaye plus Sen. Clinton, assuming the U.S. Senate confirms her as Secretary of State.) Paterson will find himself under considerable pressure to name women both to the Chief Judgeship and to the vacated U.S. Senate seat, but if he is stuck with the Commission's list for the former, he will be under enormous pressure to name a woman to the Senate seat.
That, in turn, would make it politically infeasible for Paterson to name Andrew Cuomo to the Senate seat, a move very much in Paterson's own interest, as it would prevent Cuomo from mounting a primary challenge for the Governorship. It's also rumored that Cuomo is interested in Clinton's Senate seat, however, so he would be amenable to cooperating with Paterson here.
And here's where it gets interesting. As I told the Observer reporter, it seems very unlikely that the issues over the Governor's powers re the list will find their way into court. Suppose the Governor asks for a new list and gets one. Can one of the men displaced from the first list sue to be put back on it? Wouldn't that act itself demonstrate his lack of judicial temperament? Would the Commission members really turn down the Governor? I suppose it's possible, but what if the Governor were armed with an opinion from the State Attorney General saying that while the Governor must choose a name from the list, he can request a new list? And who is the NY Attorney General? Andrew Cuomo, who has been asked by the Governor to look into the legal options open here. Checkmate!
Posted by Mike Dorf