Miranda Warnings Roundtable: NYS Court of Appeals & 2022 Election

Show Notes

Miranda Warnings host David Miranda is joined by NYS Court of Appeals expert and law professor Vin Bonventre and political strategist Liz Benjamin. The Roundtable guests discuss recent efforts to influence the commission considering candidates for Governor Hochul to nominate to the NYS Court of Appeals. They also break down the winners and losers in the summer primaries and look forward to the general election in November.  

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David:
Welcome to Miranda Warnings Roundtable. Discussing legal issues and current events. I'm joined on the roundtable by Liz Benjamin and Professor Vin Bonventre. Liz is the managing director at Marathon Strategies, a public relations and communications firm, and former host of Capital Tonight, a political and policy show focusing on New York State politics. And Professor Vin Bonventre, distinguished professor of law at Albany Law School and publisher of the New York Court Watcher devoted to commenting on the US Supreme Court and the New York State Court of Appeals.
David:
This week on Miranda Warnings Roundtable, we're going to talk about the Court of Appeals and New York politics. Let's start with the Court of Appeals. We have now in the Court of Appeals an Acting Chief Judge Cannataro. What do you think?
Vin:
Well, I mean-
Liz:
You go first, Vin.
Vin:
You want to go ahead, Liz?
Liz:
No, I have thoughts, but I'd like to hear yours first because then I can poop on them.
Vin:
Sure. Well, what is accurate is that Judge Anthony Cannataro does have administrative experience, right? He was the administrative judge ahead of the civil courts in New York City. So, of course the company line is going to be that that's why he's the acting chief. He was selected because he has administrative experience.
David:
Right, and of course the acting chief is temporary, he's acting until the new chief-
Vin:
Until there actually is a chief.
David:
...is decided, which will probably happen by the end of the year.
Vin:
That's right.
Liz:
Well, but doesn't it also mean if you are acting, do you take yourself out of the running for consideration? Is that correct?
David:
Not necessarily.
Vin:
No, not at all.
Liz:
Oh, interesting. So should we assume then that the acting chief judge wants the job? Should we just assume everyone wants the job?
David:
I think you should assume nothing, right? I don't think that reveals anything about whether he's going to be seeking to be the chief.
Vin:
No. But when Chief Judge Sol Wachtler left the court, and then Richard Simons became the acting chief, Judge Simons did put in for chief. He wasn't selected. Judith Kaye was selected. So I would imagine Canatarro is going to put... Who doesn't want to be Chief Judge of the Court of Appeals?
Liz:
I don't know. That's a good question.
David:
Janet DiFiore apparently.
Liz:
Me. I don't want to either, just for the record, but I do actually, could you just briefly go through how it works? You actually have to formally put your name in?
Vin:
Oh, to be the chief judge?
Liz:
Mm-hmm.
Vin:
Well, any judge on the court, any position on the court, the Commission on Judicial Nominations announces officially that there is a vacancy, or there's going to be a vacancy, then individuals apply, or other individuals recommend people who ought to be considered. Since Chief Judge Judith Kaye became the chair of the commission, the commission actually has had quite a bit of outreach soliciting applications from people who are deemed to be highly qualified for the position, so that will happen. And then the commission, they get together, they choose some of the applications. They then interview those applicants, then they come out with a list of seven. They give that list to the governor. The governor must select from among that list and that's what's going to happen.
Liz:
And it's entirely merit based, right? It's all about merit. It has nothing to do with politics, or influence, or popularity, or any of that. Just it's all about merit.
Vin:
Yeah, okay. That is one of the biggest darn jokes. I mean, look, the fact of the matter is that, if you just happen to look at what's happened with merits, so-called merit selection over the years at the New York Court of Appeals, there are individuals that show up on these lists, and it's a complete and utter joke. I remember clerking at the Court of Appeals. The lists would come out, and I remember one of the judges, I'm not going to say who it is, walked into the chambers of the judge for whom I was clerking and said, "Do you believe this mm, mm, mm, mm, mm moron made the list?" And that's what happens. So of course it's very, very political. The governor puts four members on the commission, the Chief Judge puts four members, and the legislature puts four members on the commission. So come on, I mean, of course it's going to be political.
Liz:
Good, fine. So then, where do we get off getting upset, as some people in some corners have become upset, with the efforts by lawmakers to influence the outcome of the selection process?
David:
Yeah. So let's talk about that, just to give a little bit of background. There was a letter sent by 20 senators to the commission suggesting the type of candidate that they should select.
Liz:
Basically, not Janet DiFiore, somebody who is not Janet, right?
David:
Right.
Liz:
I mean effectively an anti-Janet, not somebody who used to be Republican, not somebody who in their eyes is too conservative, or perhaps in Vin's eyes is too conservative or what have you. They want someone more like them effectively.
David:
Right. It was sent by 20 Democrats that wanted to have someone on the more progressive side of the spectrum. I think the concern was that there's currently three former prosecutors on the court. So they sent the letter to the commission that makes the determination as to who the seven names should be that go to the governor, telling them what their thoughts were on who should be selected.
Vin:
And then also one of the senators gave an interview, and was even more specific and more acerbic about the current, or the immediately former chief judge and the rest of the court.
David:
And I think to get-
Liz:
And that senator's a lawyer, if I remember correctly.
David:
He's a lawyer.
Liz:
Okay.
David:
So, I think to get to your question, the issue, is it political? Yes, there's always a political element to the selection, but this was an overt political advocacy for a particular type of judge, which I think raised the concern of some, right? It was the over...
Liz:
Is it illegal? Is it breaking any rules?
Vin:
No, absolutely not an, to tell you the truth, I don't understand what the problem is. I mean, somebody has a particular view about the court. Somebody has a particular view of the kind of individual who ought to be chosen to be chief judge. Why can't you bring that up?
Liz:
Well, one might actually argue-
Vin:
I don't have any problem with that.
Liz:
One might also argue that the fact that anybody's paying attention that this has generated attention to the court of appeals, for ill or for good, is positive, because people don't pay all that much attention to them. It's a good thing to pay attention to that process.
David:
I think the issue though is, look, if a judge writes a decision, it's fair game if someone wants to criticize that decision. But in particular the article, not so much the letter, but the article was attacking judges for both for their past experience, and kind of painting a picture of who they are in favor of big business, in favor of prosecution, and that's not appropriate. A judge-
Vin:
I don't know why that's that not appropriate.
Liz:
Concept of [inaudible 00:07:48] independence of farce.
David:
To just paint a judge with a broad brush and accuse them of a conviction.
Vin:
That is the direction of the current court. Those are facts.
David:
If you want talk about a case and a record, that's fine, but painting a broad brush of a judge on the court is not appropriate.
Vin:
I don't know. I'll paint-
David:
It puts political pressure on them. It's not appropriate.
Vin:
I'll be glad to paint the broad brush on the-
David:
And quite honestly, the only reason that it was done was because of the redistricting decision.
Vin:
Well, that could be a motivation [inaudible 00:08:17].
David:
The judges that were being attacked were the judges that ruled against the legislature.
Liz:
Fine. But just to be clear, David, then we can call it what it is, which is to say ostensibly or potentially, this is really about retaliation for a process that, again... This really gets my goat. Because the idea is, well, redistricting is supposed to be independent, and well, judicial process is supposed to be independent, and well, we are supposed to have a judiciary and a legal system that's independent of, that's all horse feathers. The idea that you are going to take an inherently political process like redistricting and divorce it from politics is ridiculous.
David:
I think we're going to have to bleep out the horse feathers comment.
Liz:
Horse feathers is, I was being completely careful. I could have said...
David:
Family show.
Vin:
Liz. Liz. Liz. I warned you about her, David.
David:
Family show.
Liz:
I mean I was being careful. I should have said a lot of other things. But the horse feathers seems to be appropriate.
Vin:
Can we back up a minute, David?
David:
Yes [inaudible 00:09:17].
Vin:
Okay. I totally disagree with some of the comments you've made. As somebody who actually-
Liz:
Ha ha, it's Vin and me versus you, David. It never happens.
David:
This will also be bleeped out.
Liz:
I think we call that censorship, David.
Vin:
I love you, David, but I you're absolutely wrong about something. As someone who follows the voting of the judges of the Court of Appeals. It simply is a fact that Chief Judge Janice DiFiore, who I love personally, I just love the woman. No. I've a good relationship with her.
Liz:
Some of his best friends are former chief judges who used to be Republicans.
Vin:
Yeah, no. But if you look at the voting record of Chief Judge DiFiore and Judge Michael Garcia, they are very, very pro prosecution. That's their voting record. That's just a fact.
Liz:
But also, just to be clear, three prosecutors on the court does not a majority make. Why is it so horrible to have a viewpoint on the court representative of what prosecutors think?
Vin:
Well, I don't think there is anything wrong with that. You would want somebody to have that kind of a perspective. You would want that. Even as a liberal, I mean I don't want a bunch of public defenders on the convict court.
Liz:
Okay. So what's the problem? I'm not quite seeing it. We're basically saying you vote like a prosecutor because you used to be a pros. You err towards the side of seeing things through a prosecutorial [inaudible 00:10:40].
Vin:
No. Forget about what they were. Weren't in their former life. I mean, Stanley Fold was a prosecutor. He turned out to be one of the most progressive American judges of the last generation. Right? So it doesn't necessarily mean that a judge having been a prosecutor is going to end up being pro prosecution when he's on the court.
Liz:
[inaudible 00:11:01] we've got some very, very liberal progressive minds on that court right now.
Vin:
We do? Well yeah, we have Judge Jenny Rivera and we have Judge Rowan Wilson.
Liz:
Okay.
Vin:
Yeah, those are two, That's right. And they're not in the mainstream of the court. They're in most of the big cases, they're in the dissent.
Liz:
All I, wait. But all I'm saying is first of all, one might argue you could turn this whole thing on its head if the court did this sort of thing, which it doesn't. Because again, remember this is another little sort of problem. The court is hamstrung. Judges are not supposed to politic, right? They're not supposed to get involved with politics. They get slapped for it. I can think of one in particular from the capitol region who is fair, fairly high, highly placed and well known who getting slapped for that. You can run, but you can't run. It's an elected position.
Vin:
That's right.
Liz:
But you can't, right? So I guess the point is, if the court was able to defend itself, it might turn around and say, you are doing this because you're angry at us of an independently minded decision that we made regarding redistricting. So this is all just a wash.
Vin:
Of course they could argue that. But again.
Liz:
But they can't.
Vin:
But no, no, no, no.
Liz:
We're doing it for them.
Vin:
No, but what I mean is that could be argued, yes. That whoever is complaining about the court is complaining because they just don't happen to like the kinds of decisions being issued by the court. All I'm saying is there are certain accurate things that can be said about the court. And this court has been over the last few years, very, very pro prosecution.
Liz:
But also just-
Vin:
That's just its record. That may be great. That may be bad. That is its record.
Liz:
But also these people have nothing to whine about because at the end of the day, the Democrats, even if they lose seats, which they might as a result of some slightly less gerrymandered district lines that were drawn as a result of a special master and not the legislature's lines that were incredibly gerrymandered to the benefit of the Democrats. Even though the Democrats say that's not the case. They didn't do it because they hated it for so many years, they didn't do it. But whatever, they're going to hold the majority, even if the Republicans take seats. So what do they have to cry about? Nothing.
Vin:
Well, I don't know. They don't happen to like the direction of the court. Why can't they complain about that? I didn't see any problem with that.
Liz:
They can. They can certainly.
Vin:
And there's no question about it. The Republicans are going to complain about, or they're going to say that Governor Hochul, you better not put somebody on the court that's going to coddle the criminals and doesn't care about the victims. That's going to be an issue.
David:
Well, Governor Hochul has said that there's not going to be any litmus test for her selection. That she doesn't care about their past experience.
Vin:
Not a single litmus test.
David:
This is what she said again [inaudible 00:13:46] whole. I feel like she heard the Miranda Warnings podcast from a couple weeks ago and you said what we need is a little more intellectual gravitas on the court. And that's what she said she's looking for, a thoughtful jurist. A jurist who's independent and that would elevate the court's prestige. This is what she said.
Vin:
Yes. That's what she said.
David:
This is what the governor said.
Vin:
She didn't say intellectual gravitas, however.
David:
No, I said that.
Vin:
That was you. That's our great host and yeah, no, that's brilliant. And I think if she appoints or she nominates, if she nominates somebody like the previous chief judge, Jonathan Lipman. Lipman used to Lipman-ize people on the court. He had conservatives on the court. He was very liberal. And yet on virtually all the big cases, he was able to get a majority. There are chief judges who do that. Sol Wachtler. I was there when Sol Wachtler was chief for a few years. He was amazing. A towering personality on that court. He took that court wherever he wanted to. So a single appointment can change the direction of the court.
Liz:
Well, yes, but look to undo, we also. I mean there were stories written about this, but I don't think not enough. And we certainly have not seen the long term impact of the number of appointments that the previous governor made and the remaking of the court in the image that he envisioned. That's one of his longest lasting legacies. Will far outlast quite a number of policy initiatives of his, I would argue.
Vin:
Governor Andrew Cuomo had a vision for this court?
Liz:
I think he had.
Vin:
I can't figure it out.
Liz:
I think he had a political vision for the court. Yes, I do.
Vin:
I think he had a political vision for himself. That may be true and that's why he made the appointments that he made. But I don't think there is anybody who will seriously say that he really was concerned about the court.
Liz:
Well, he wasn't.
Vin:
Like his dad was. His dad certainly was.
Liz:
His dad actually made a point of appointing Republicans and Democrats because he felt like a mixture of viewpoints on the court was important.
David:
Well, I mean we have a mixture of viewpoints on this court. It's a diverse court in many ways, both in thought and in person.
Vin:
And in talent.
Liz:
Aside from the redistricting decision, which got a lot of ink and a lot of attention, one high profile case that this court decided over the past 12 months, I can think of only one aside from redistricting.
Vin:
Well, high profile you mean that anybody follows except for us court nerds?
Liz:
Happy the elephant.
Liz:
Happy the elephant.
Vin:
Us court nerds. Well, there was a huge Miranda decision at the court. People versus Dawson. People may not pick that up unless you follow the court very closely. It's a five to two decision. The majority of the court didn't even sign their opinion. They wrote some ditty little unsigned memorandum. And you had two judges of the court dissenting saying, wait a minute, you have this defendant and who clearly asked for an attorney and the majority of this unsigned opinions. Well, it wasn't clear enough. You know, get cases like that or you get [inaudible 00:17:01] decision, which happened to be about the labor law, which is a very, very important issue politically and otherwise in this state. And you had somebody who was injured severely while he was working on an elevated, right, in an elevated aspect. And the court said, well, that doesn't count. And again, you had several dissenters saying, what are you, kidding? And again, the court majority in an unsigned little ditty memorandum, That's not the sign of a great court.
David:
Let's move on. We just had a primary here in New York. As a result of the redistricting, the primaries were moved till the end of August. Anything that was, Well
Liz:
Wait a minute, hold on. There was a series of primaries in June. There was a series of primaries at the end of August. It was because of redistricting in both cases. A series of primaries in June was the Statewides and the assembly. Even though then subsequently the court had said, actually the assembly lines stink too, but we're going to have to send them back for redrawing for the next round because it's too close to this round of elections, but they stink. Then subsequently, they said, oh, and those senate lines and the congressional lines, those stink. But we have enough time, so we're going to move those primaries to August.
David:
And I, by stink, I everyone might not understand your Latin. By stink, you mean it violated the New York State Constitution. Right?
Liz:
They stink. Yeah.
David:
It violated the New York State Constitution according to the court.
Liz:
Smelly, stinky gerrymandered lines.
David:
And you're right. We had a dual system of primaries, the June for some, and then.
Liz:
Just super expensive, by the way. Do you know how much that costs?
David:
Super expensive and confusing.
Liz:
Millions of dollars every time we have to do that.
David:
Yes. But now we're done. Now we're done with the primaries and we can move on. And what did we learn? What did we learn from the primary?
Vin:
What did we learn, Liz? Come on.
Liz:
It's interesting. There were competing storylines that came out of these two sets of primaries. And also there was a very important special election that occurred in the 19th Congressional District that nationally was the first one that occurred, first congressional election that occurred before the midterms nationally that was widely viewed as a bellwether regarding the outcome of the Dobbs case. And the Democrat won, Pat Ryan over Mark Mullinar, the Republican. And the Democrats made that whole race mostly 98% about Roe. And it was successful. I am in the minority and disagree as to whether or not that actually is a harbinger of what's going to happen around the nation. Although things are looking pretty good for the Democrats right now. But October surprise, who knows what's going to happen because two months ago things looked crummy for the Democrats.
David:
If you look at voter registration figures nationwide, and if you look month by month, the number of women that have registered to vote went up substantially right after the Dobbs decisions, so we have greater...
Liz:
And also there was influx of campaign finance contributions to democratic candidates around the nation in the wake of Dobbs. But I think more important was the Kansas vote, to be honest, that rejected an abortion ban in Kansas. But again, I think the people of Kansas, the Kansans, not the Kansas, the Kansans, I think are a pretty libertarian bent bunch who don't like government telling them what to do. It's a conservative ish state. It's certainly not New York. But I think that they reject the concept of government being like, you can and can't do whatever with your body. I don't know necessarily that was a political indicator.
Liz:
In terms of the assembly and the gubernatorial, so statewide June primaries, the progressives, liberals, socialist Democrats, et cetera, didn't do so hot. They did not do so great in the June primaries. And then people started writing, they were a flash in the pan. It was really disappointing for them. There was one upset of significance that occurred in the Hudson Valley. Kevin Cahill was defeated in a primary, long time incumbent. But in the Senate, actually, progressives who were challenged by more pragmatic Democrats who were backed by Eric Adams, many of them, particularly in New York City, those Senate candidates were not successful. So the liberal incumbents were returned. To me, that's more of a statement about the power of incumbency and less so much the power of progressive politics.
Vin:
But of course, And you're talking about primaries then in New York City, right?
Liz:
Well, more or less. I mean there were were primaries all over the place, but predominantly the more interesting stuff that was happening in upstate was occurring in the House.
Vin:
Right. But I mean, you would expect that New York City would be supporting the more progressive candidates, which isn't necessarily telling us much about the rest.
Liz:
Yeah, but you would. But there were challenges in June brought by progressives against less progressives, I mean more centrists. And they were unsuccessful.
David:
Yeah. It seemed like the incumbents.
Vin:
I see.
David:
Held on, right? There was no great wave.
Liz:
Well, again, because the low turnout situation, it's really hard to take any necessary predictor and say, well, this was a mandate on one in one form or another because the turnout was so low, because the vote is so diluted, because you had two sets of primaries. And August is like everybody's on vacation.
Vin:
That's right. But what we could expect in the general election, when you have the gubernatorial race, we could expect a huge turnout. Wouldn't you expect a huge turnout?
Liz:
I don't think huge. It'll be huge as a presidential year. It's an off year. Statewide, it'll be higher than the primary, certainly. And you do have a really interesting dynamic that is sort of creating, and there's a law and order argument that's being made particularly by the Republicans. And it brings in the judiciary on the issue of bail reform, which I think that the governor made some statements regarding the judiciary needing to learn their lessons about bail reform. And that kind of made people a little pissy. But there's a lot of public safety arguments being made by the Republican candidate. But on the flip side, he is subsequently aligning himself with a president who I mean, encouraged, fanned the flames of, liked, whatever you...
David:
Former president.
Liz:
A former president, sorry.
Vin:
The former guy.
Liz:
Would be next. A would be returning president, supported the largest anti-democratic insurrection in modern history. So I don't see how you can make a law and order argument there.
Vin:
So is this is going to be Governor Hochul, we hate Trump? And then Mullan Arrow, we like Trump?
Liz:
That's what she's trying to do. Well, Mullan Arrow, no. Mullan Arrow's running, but he's running in a different district. The gubernatorial candidate is [inaudible 00:24:11].
Vin:
Not Mullan Arrow. I'm sorry, I'm sorry.
Liz:
Republican from Long Island. [inaudible 00:24:16] Congressman.
David:
Yeah, so what's you're...
Liz:
He's not, just to be clear, he's accepting Trump's assistance in raising money, but he is being fairly careful. He's not, in certain circles, reportedly privately, he is saying good things about Trump, but he's not making a public argument about that. She is. She's saying he's dangerous. She's using photos from the January 6th insurrection in ads. She's saying he's extreme and he's anti New York values, et cetera. All the sorts of that.
Vin:
Well, he refused to certify Joe Biden.
Liz:
He voted against it, that's correct.
Vin:
Having won the election, I know.
Liz:
That's correct.
Vin:
I mean, come on. What's that?
David:
So you're suggesting that the issue in the fall and the gubernatorial election is going to be crime and law enforcement.
Liz:
Well, the Republicans would like it to be. Right? They're probably going to get...
David:
Yes. But it's going to be a hard one to paint on Governor Hochul. Right? Because she's fairly middle of the road on those issues. She's not to the extreme on those issues.
Vin:
Well, they'll paint her with the Democratic brush.
David:
No, no, it's going to be difficult.
Liz:
They'll paint her. But the problem is she has more money. She's coming out. She's going to make this about ideology and Trumpism or MAGA-ism, if you will, and abortion rights and anti New York values and that kind of thing. And she's also going to say, I inherited a state. I steered the ship well, et cetera and so forth, even though the budget picture is crumbling before our eyes. But some of that has nothing to do with her. It's a global economic problem that we've got. Because you could ask [inaudible 00:25:49] Powell about that. But Zeldin will try to make it more of a referendum on Hochul and her performance and certainly law and order and the economy and inflation, et cetera. It's the economy, stupid, isn't really playing the way it used to.
Vin:
Yeah. Well hey, let me ask you this, because I don't know. Where is Zeldin on the right to choose? Where is he on that?
Liz:
He is.
Vin:
How hard right is he? Or is he just wishy-washy about it?
Liz:
I don't want to misspeak, but he is not in favor of abortion rights.
Vin:
Yeah, I mean, is he come out and he said that he wants abortion restrictions or?
Liz:
He has. So he explained his position after the Dobbs leak, and he said that the reality, quote, the reality is the law right now in New York is the law in New York. So the day before the Supreme Court issues its decision, the morning that we all wake up and they deliver their decision, and the morning that they, after they deliver the decision, if the draft statement becomes the decision, the law doesn't change at all. That's what he said. But he then went on to castigate the Democrats for legalizing late term, partial birth abortions and non-doctors performing abortions, which is sort of an old saw. But he also says pretty clearly, I'm pro-life. That's his position.
David:
Yeah. So that issue is going to be a loser for him to talk about in the gubernatorial, right? Because he can't win over votes in New York on that.
Vin:
So the winner for him has got to be law and order and say you can't trust the Democrats.
Liz:
Right.
Vin:
Juvenile justice, bail reform, and I don't know what else, but yeah, that's traditional Republican, right? Law and order. I mean that's what Republican-
Liz:
Yeah, but it's traditional Republican, but it's also an approach that had been embraced with some success by Eric Adams in the Democratic primary, a former NYPD officer. I don't want to get his rank, his former rank wrong there, but he ran on law and order and he casts himself as a new kind of Democrat. And he's taken, gotten into a public verbal straggling match or wrestling match with Ocasio Cortez. So it's not necessarily just a line that Republicans are using.
Vin:
Yeah, no. So do we think that the Court of Appeals will be an issue in this race?
Liz:
I don't think he's made it an issue thus far, but he could. I mean, again, we get back to the question of do most New Yorkers care?
David:
Well, yeah. And I think that's the is, I don't going to be an issue because for the reason that Liz just stated, and also the reason that you started out with. The criticism is that, well, half the court is conservative and half the court is liberal. Right? So how can you really cast a stone from one side or the other necessarily? It's a relatively balanced court at this point. So it wouldn't seem that a candidate for governor is going to be able to make score many points in that regard.
Liz:
I don't think so. I mean, it's not like the Supreme Court where that is just some that, well, it was. I mean now it doesn't matter who gets into the White House because whoever they are is not going to be able to affect the balance of the court at the federal level in any significant way for many years.
Vin:
But George Pataki did make an issue of the Court of Appeals. He did make an issue.
Liz:
He did. Well, he also made an issue of the death penalty back in the day, and he made an issue of a lot of things. Well, he...
Vin:
And he did well with those issues.
Liz:
He defeated Mario, but not Cuomo, but not solely on the death penalty. It was also about taxes. It was all, the state was in a different place at the time. But he did run on a fairly law and order campaign platform. He did. It's true.
Vin:
And I think that's a pretty successful issue for a Republican to be running on in the state right now. People are really concerned about crime in the state.
Liz:
I agree.
Vin:
Whether they ought to be or not. I mean, really that's really a big issue.
Liz:
But if you polled the average New Yorker, I don't think the average New Yorker would say to you, if you say, if give them an open ended, it's one thing to be like, do you care about the state's high court? They would say yes, because people don't want to look stupid. But if you, or uninformed, let's say. But if you give them an open-ended poll and say, what are the top five issues that you care about? My kids, my taxes, my job security, my school system, my healthcare.
David:
Safety.
Liz:
My safety. Right. I mean.
David:
The court's not going to be in the top 10.
Liz:
No way. Not even the top 20 probably.
Vin:
No. But law and order will be in safety. So gun, actually, it's interesting because you have law and order on the one hand. On the other hand, you have gun restrictions, right?
Liz:
Right.
Vin:
So the Republicans can say all they want about law and order, but then they don't want to support gun restrictions.
Liz:
Yeah.
Vin:
Oh boy. There's always stuff. Right?
Liz:
I would be very surprised to hear Lee Zeldin weigh in on the process of selecting a new chief judge at the state of the Court of Appeals. I just would. And one thing we didn't discuss, and it's now been, we sort of glossed over it. I mean, we now have an interim or acting chief judge, but for a while they were deadlocked, which I thought was really interesting and spoke pretty significantly to the internal state of the body.
Vin:
Well, look at who the senior associate judges are. You have Judge Jenny Rivera, very, very liberal. She's out of the mainstream of the court. She's usually in dissent in most big cases. Then you have Michael Garcia, who's probably the most conservative, right? Politically conservative on the court. And I don't know how much support he had within the court. And then you had Rowan Wilson, who again is not in the mainstream of the court. He's usually in descent on all the big issues. Those three were passed over. Unless of course, and we don't know whether each of those three said, oh, I don't want the job. I mean, who knows? But tradition was broken and the senior associate judge was not chosen as the acting. Nor was the second senior associate judge. Nor was the third senior associate judge. It's hard to imagine that none of those senior associates would've wanted to be acting chief. Heck, I would've been acting chief if they asked me.
Liz:
They didn't ask you though, just to be clear, nobody's asking you.
Vin:
And I'm too old anyway right now.
Liz:
I do think there are a couple things that I'll be watching and for future discussion. I think the relationship between the legislature, and the legislature and the judiciary has always been a really fascinating push pull kind of a situation. And I remember covering Pataki v. Silver, which was the first case I saw argued before the Court of Appeals, because I'm old, but not as old as Vin. Just to be clear. And I can still add. Lost that faculty yet. But I remember them being very reluctant, although there were some very interesting lines of argument, because the question was how much language or policy language the governor had the right to put in the budget. And one of the judges asked the attorney, well, if the governor wanted to waive the laws regarding usage of cocaine on construction sites, he could do that. And the answer was yes. He could. He could modify that.
Vin:
Right. Paul Shenkman, a great, great lawyer. A great lawyer, yeah. He was asked that and he just came right out. Yes.
Liz:
Yes. He could do it.
Vin:
He could put substantive stuff in the budget. Yeah.
Liz:
Correct. No question. So I think there is this session and this letter bringing us back to the beginning of this conversation that we're speaking of regarding the 20 senators and their very public pronouncement regarding their preference for the selection of the next chief judge really belies, I think, a simmering or maybe growing tension or a resurgent tension between the judicial and legislative branches.
Vin:
Very interesting.
David:
Well, Liz, I'm thank you for bringing us back to the beginning. We're going to let you have [inaudible 00:34:16]
Liz:
That's my job.
David:
Thank you. Thank you. Liz. I ask a question at the beginning and Liz eventually gets around to answering it. So that's the dramatic conclusion of this week's Miranda Warnings Roundtable. Thank you.
Vin:
Well, thank you for inviting me.
Liz:
Thank you.
David:
This has been Miranda Warnings, a New York State Bar Association podcast. You have the right to subscribe, rate, and review.