Outside Counsel

The Hon. George Bundy Smith's term on New York's Court of Appeals is up. He is 69 years old-- a year away from the mandatory retirement age-- and he has applied for reappointment. The system for appointing judges to the Court of Appeals-- New York's highest court-- is pretty good. A panel reviews the applicants, then presents a list to the governor, who nominates a candidate. The state senate must then approve the governor's nomination. Judge Bundy Smith has been a pretty good judge on a pretty good bench, and I can see why he might want to stay for another year, but there is exactly no chance that George Pataki will re-appoint him. The effect of re-appointment would be to hand a Court of Appeals seat over to whoever is elected governor next year. That's probably going to be Elliot Spitzer, a Democrat.

This leaves Pataki in an awkward spot. Judge Bundy Smith is the only African American on the Court of Appeals. Governor Pataki, in a fit of optimism matched perhaps only by the ant that wanted to move the rubber tree plant, thinks he'd be a good Republican presidential nominee. How he fills this opening could become a big issue. Around here, in Western New York, the assumption has been that the next time a Court of Appeals opening came along the nod would go to the Presiding Judge of the Appellate Division, Fourth Department, the Hon. Eugene Pigott. Actually, a lot of people, myself included, thought the last opening should have been his. At Outside Counsel we are fans of Judge Pigott, and make no secret of it. He is as smart as can be, which is always nice in a judge, but more importantly he is possessed of the two other qualities that I believe make for an outstanding jurist: a first rate temperament and a genuine concern for doing justice. Although I have known him a long time and consider him a friend, I really don't have a very clear picture of where he is ideologically, except that I think he is probably more conservative than people generally assume. Over the years that I have known him we have, as people who love the law do, discussed the law frequently. Even so, I have no idea how he feels about exclusionary rules, for example-- suddenly a very fashionable issue. I suspect that he'd be open to argument, because I believe he approaches things with an open mind. I would bet money that he'd be more conservative than Judge Bundy Smith. Judge Pigott would also restore some regional balance to the Court of Appeals-- but I really doubt that he will get tapped this time, either.

I don't know if there is a conservative African-American out there that Pataki could pick, but none come to my mind. My hunch is that he'll do what Republicans usually do under these circumstances and try to find a Hispanic candidate-- but in the past he's shown that racial considerations don't always weigh that heavily with him. Indeed, he passed over a senior sitting African-American judge when he appointed Judge Piggot P.J..

In the narrative of the Law, the judges are the protagonists-- even though the lawyers think we are. I've heard that when Judge Wesley left the Court of Appeals to go on the Federal Court of Appeals for the Second Circuit there was some good natured banter among the appellate court judges in New York as to whether it was a lateral move or a step down. In terms of autonomy I'd say that federal district court judges are probably as close as it gets to being monarchs-- but being a judge on the highest court of a state has got to run a pretty close second. (The notion that Circuit Court judges have a great deal of power is the flaw in Stephen Carter's otherwise good novel, "The Emperor of Ocean Park".) It would be nice to see Judge Piggot in the room where Learned Hand and Benjaman Cardozo once sat.