Other Options for Paterson on Judicial Nominating?

ALBANY—Why not just vote the nominee down?

David Paterson said he is disappointed with the results of the Commission on Judicial Nomination, which released the names of seven men (none of whom are Hispanic) to fill the seat of retiring Chief Judge Judith Kaye of the Court of Appeals, because there were no women included on the list.

Several Democratic state senators – who will theoretically control the Senate in January when Paterson is constitutionally obligated to make his announcement – have said they are also disappointed with the commission’s work. Per the State Constitution, the Senate has the power to approve the governor’s nomination, either up or down.

“The constitutional provision is clear: that Governor Paterson must choose someone from the list,” said Michael Dorf, a professor at Cornell Law School. “I am not aware of any provision either in the New York constitution or in the implementing statute that governs what happens in the event that the governor either requests a new list or the legislature continually rejects the governor’s nominees from the list.”

Also unclear is whether it might take one rejection, or seven, to get a new list.

Paterson said in a press conference that he and Attorney General Andrew Cuomo were exploring options; when asked what that might entail, Paterson replied “well that’s why we’re considering them.”

Vincent Bonventre, a professor at Albany Law School and author of the NY Court Watcher blog, writes that Paterson’s hands are tied, and that he should find a good candidate from the list. But it’s unclear what would happen if a nominee were voted down.

UPDATE: Bonventre phoned to say that his read on the situation is that if all seven nominees were voted down in the senate, “out of necessity, the commission would have to go back to work.”

Selvena Brooks, a spokesman for the senate Democratic leader Malcolm Smith, said, “We will not speculate on what we will do until the governor has chosen his nominee.”

UPDATE 2: Senate GOP spokesman Scott Reif said “we share the Governor’s frustration with the judicial screening commission’s list, particularly the absence of an Hispanic, and believe that in the future we should revisit this process. At this time, the Senate’s only role is to review and consider whichever qualified nominee the Governor submits.”

Dorf was confident that if Paterson didn’t content himself to the current list, some political (as opposed to legal) solution could still be found.

“This ambiguity will almost certainly be resolved by the political process rather than in court,” he said. “It’s not clear who sues whom for what.”

Or in what court. It’s enough to make your head spin.

And here, FYI, is a list of the members of the nominating commission, who appointed them and when they were appointed and when their term expires. (No word from the commission since yesterday).

Chairman: John O’Mara Governor Pataki 6/12/06 3/31/09
Janet Mayo Kassar Governor Pataki 6/12/06 3/31/10
Elena H. Kiam Governor Spitzer 12/18/07 3/31/11
Frederick K. Brewington Governor Paterson 9/18/08 3/31/12

E. Leo Milonas Chief Judge Kaye 3/31/06 3/31/09
Ruth Friendly Chief Judge Kaye 6/17/08 3/31/12
Richard P. Nathan Chief Judge Kaye 6/15/07 3/31/11
Margaret S. Morton Chief Judge Kaye 4/7/06 3/31/10

Edward Cox Minority Leader (Assembly) 6/9/05 3/31/09
Gerald Lefcourt Speaker of the Assembly 4/16/02 3/31/06
David M. Schwartz Majority Leader (Senate) 3/17/08 3/31/11
Alan E. Mansfield Minority Leader (Senate) 4/10/08 3/31/12

Other Options for Paterson on Judicial Nominating?