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Chief Judge Shortlist Excluded Court’s Sitting Liberals, DiFiore Opponents

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This story originally appeared in <a href="https://nysfocus.com/2022/12/01/court-of-appeals-chief-judge-difiore-dissenters">New York Focus</a>, a nonprofit news publication investigating power in New York. <a href="https://nysfocus.com/newsletter?utm_source=partner&utm_medium=website" target="_blank">Sign up for their newsletter here</a>.<hr>CRIMINAL JUSTICE · December 1, 2022
<h1>Chief Judge Shortlist Excluded Court’s Sitting Liberals, DiFiore Opponents</h1>
<h2>Three current Court of Appeals judges applied for the lead position. They are all people of color — and the only judges who regularly dissented from former chief Janet DiFiore's conservative rulings.</h2>
<h3>By <a class="yellow-underline" href="https://nysfocus.com/author/sam-mellins">Sam Mellins</a> , New York Focus</h3><figure><img src="https://imgproxy.gridwork.co/TC0FcVERuz5By4fp-YfZuxntK2JCU5n_rS_8LtakJl8/w:820/h:426/rt:fill/g:fp:0.5:0.5/q:90/el:1/aHR0cHM6Ly9zMy51cy1lYXN0LTIuYW1hem9uYXdzLmNvbS9ueXNmb2N1cy9jb3VydHBpYy5wbmc.png" alt="" /><figcaption>The only current Court of Appeals judge to make the cut was Anthony Cannataro, the acting chief of the court and an ally of DiFiore. / Governors Press Office</figcaption></figure><div>THE THREE MOST liberal judges on the Court of Appeals all applied for the currently vacant position of chief judge, multiple sources told New York Focus, but were excluded from the <a href="https://cjn.ny.gov/system/files/documents/2022/11/press_release_for_chief_judge_vacancy_report_and_bios.pdf">shortlist</a> by the state panel that reviews applications.  
The panel is controlled by a majority of members appointed by Janet DiFiore, the conservative departing chief judge, and her <a href="https://www.law.com/newyorklawjournal/2021/08/17/with-cuomos-downfall-nys-top-judge-loses-key-political-ally/">close ally</a> former Governor Andrew Cuomo. The two most liberal judges — Jenny Rivera and Rowan Wilson  — repeatedly dissented from DiFiore’s rulings while she led the state’s highest court. Judge Shirley Troutman, who is more moderate, also dissented from DiFiore on several notable occasions.  
Three individuals in contact with Wilson told New York Focus that he told them he applied for the chief judge position; one added that he was interviewed by the panel. One individual said Rivera told them the same, and several said that Troutman also applied. 
The position of chief judge was left open when DiFiore, a Cuomo appointee, resigned this summer while facing an <a href="https://www.timesunion.com/news/article/DiFiore-faces-ethics-probe-over-court-officer-17299308.php">ethics investigation</a> for alleged judicial misconduct. Forty-one people applied to fill her seat, and the panel charged with reviewing applications released a seven-candidate shortlist last Wednesday. Hochul has until December 23 to select one of the seven candidates, and the state Senate will vote on whether to confirm her choice when it reconvenes in January.  
Several court observers expressed dismay at the exclusion of Rivera, Troutman, and Wilson. 
“I think it’s a disgrace that none of them were placed on the list,” said Vincent Bonventre, an expert on the Court of Appeals and professor at Albany Law School. “If the commissioners were looking at pure merit, somebody like Wilson is just absolutely brilliant.” In 2015, the last time the chief judge position opened up, Wilson was on the shortlist. 
But the idea that merit is the only factor is “laughable,” Bonventre said. “Of course there are politics involved.” 
Rivera’s and Wilson’s liberalism and frequent dissents from DiFiore likely hurt their chances at making the shortlist, Bonventre said. Of the 12 panelists who picked the shortlist, DiFiore and her ally Cuomo appointed seven, and Republican legislative leaders appointed another two. In order to advance to the shortlist, applicants need at least eight votes.  
“If you’re a commissioner who was appointed by Chief Judge DiFiore, or you are a commissioner who was appointed by the Republicans, you might feel pretty unfavorably towards especially Wilson and Rivera,” due to their liberal dissents, Bonventre said.  
The only current Court of Appeals judge to make the cut was Anthony Cannataro, the acting chief of the court and an ally of DiFiore. The pair made up half of a four-judge conservative bloc that voted together in 96 out of 98 cases during DiFiore’s last year, issuing <a href="https://nysfocus.com/2022/07/07/court-of-appeals-conservative-bloc/">rulings</a> that expanded police power, limited the ability of workers to seek compensation for workplace injuries, and curbed the rights of consumers to sue companies that made faulty products, among others. When DiFiore stepped down, she may have <a href="https://nysfocus.com/2022/08/29/janet-defiore-anthony-cannataro-chief-judge-court-of-appeals/">broken the law</a> by participating in the vote to select her interim successor, potentially casting the deciding vote for Cannataro. 
<a href="https://nysfocus.com/2022/07/07/court-of-appeals-conservative-bloc/">READ MORE: A New Conservative Majority on New York’s Top Court Is Upending State Law</a> 
In a <a href="https://www.npr.org/2022/04/27/1095100208/new-york-redistricting-rejected">landmark case</a> in April, Cannataro also voted with DiFiore to toss out the state legislature’s congressional maps and allow an expert appointed by a Republican judge to draw new ones — a decision that may have handed the majority in the US House of Representatives to the Republican Party. Rivera, Troutman, and Wilson all dissented from the decision. 
Rivera and Wilson have served on the court since 2013 and 2017, respectively. Cannataro and Troutman both joined the court last year. 
The three excluded judges often voted with DiFiore, making many of the court’s decisions unanimous. But none showed the allegiance of the conservative bloc, which also included Judges Michael Garcia and Madeline Singas, both Cuomo appointees.  
Wilson and Rivera’s dissents argued for approaches to New York law that would provide more extensive protections for New Yorkers against things like <a href="https://www.nycourts.gov/ctapps/Decisions/2021/Oct21/56mem21-Decision.pdf">police searches</a>, <a href="https://law.justia.com/cases/new-york/court-of-appeals/2022/16.html">workplace</a> <a href="https://law.justia.com/cases/new-york/court-of-appeals/2022/25.html">mistreatment</a>, or <a href="https://law.justia.com/cases/new-york/court-of-appeals/2018/40.html">financial fraud</a>. Troutman, a Hochul appointee who joined the court in January, voted with DiFiore more often but still dissented from multiple decisions. 
Troutman, as the only Hochul nominee on the court and the only member of the court from outside the New York City area, would likely have been a leading contender for the chief judge spot.  
“To keep her off the list, if she applied, seems to be a strategic way of making sure that the governor didn’t have the chance to put her as chief judge,” Bonventre said. 
In addition to enjoying the governor’s favor, she would have been the first Black chief judge. 
While the list did include a Black and Latino candidate — Judge Edwina Richardson-Mendelson and Judge Hector Lasalle, respectively — all three of the excluded judges are people of color: Rivera is Latina, and Troutman and Wilson are Black. The court has never had a non-white chief. 
Nor has it ever had a gay chief judge, and Cannataro is currently the only openly gay person on the court. The Jim Owles Liberal Democratic Club, a New York City-based group which supports progressive and LGBTQ causes, has <a href="https://jimowles.org/news/press-releasejim-owles-liberal-democratic-club-urges-yuh-line-niou-to-run-on-wfp-line-ha826">urged</a> Hochul not to appoint him as chief, citing his “reliable conservative vote on the court.” 
Chief judge of the Court of Appeals is one of the most important positions in state government. In addition to chairing the state’s highest court, the chief judge is also the head administrator of the court system, which has a budget of $3 billion and 16,000 employees. Since the current system for selecting judges was implemented in the 1970s, multiple sitting Court of Appeals judges have been included on three of the five chief judge shortlists. 
The panel has deliberately foiled governors’ preferences in the past: In 1982, Mario Cuomo campaigned on a promise to appoint the first woman to the Court of Appeals. But when a vacancy opened up the following year, the commission sent him an all-male list. 
Correction: Janet DiFiore and Andrew Cuomo collectively appointed seven, not eight, of the 12 panelists who picked the chief judge nominee shortlist.</div>	 
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