Patakis Quiet Court-Packing
Long after hes going, the governors GOP judges will still be ruling
By Tom Robbins
August 16th, 2005
Being a lame-duck governor deprives George Pataki of much of his Albany clout, but it does nothing to diminish his substantial powers of office. And before he takes off for the Iowa caucuses on his quixotic presidential quest, the Peekskill patroon is poised to make the most of it by rolling out scores of appointments.
First and foremost on that list are judgeships, an area where the GOP leader's handpicked conservatives will be making decisions for solidly blue New York City for years after he's gone from office. In his own version of affirmative action, Pataki has repeatedly imported Republicans to sit on the two crucial appeals courts that hear cases for the city. These imports, dubbed "the Hessians" by courthouse wags, commute from upstate and bill the taxpayers for their rent and transportation costs while camped out here in the city.
Like their mercenary namesakes, Pataki's Hessians are jarringly out of sync with the population they are supposed to represent. Take the Appellate Division of the prestigious First Department, which covers Manhattan, where the population is 40 percent African American and Hispanic, and the Bronx, with 84 percent minorities. After 10 years of Pataki appointments, there are just one black and one Latino on the 16-person bench.
Instead of turning to local talent when vacancies arose on that panel, the governor repeatedly went outside the district. His imports included John Buckley from Utica, James Catterson from Suffolk County, George Marlow from Poughkeepsie, and John Sweeny Jr. from Putnam Countyall white male Republicans, none of whom are considered exactly in the top of their class in legal scholarship.
The result has been a solidly right-of-center court that has given short shrift to criminal defense appeals, virtually regardless of merit. On issues of key importance to the people the court nominally represents, such as moving the Amadou Diallo shooting trial out of town, and ruling against the Campaign for Fiscal Equity lawsuit on education, it has consistently tilted to the right.
The out-of-towners come with a fiscal cost as well. In addition to salaries of $144,000 apiece, the imports get reimbursement for travel and living expenses. Buckley, the presiding justice, collected $3,400 a month for the cost of an apartment at Peter Cooper Village until Daily News editorials complained that he was violating a state constitutional mandate requiring the presiding justice to live in the district.
But the rest of the First Department imports continue to live as tourists. Figures provided by court administrators show that over the past year Marlow has received $27,000 for the cost of living at an Upper East Side apartment, $7,500 for travel, and $2,800 for "living" expenses. Sweeny has collected almost as much: $20,000 for an apartment near the courthouse, and another $11,000 for travel and meals. Catterson, who lives within easily commutable distance on Long Island, has been reimbursed $4,300, including $1,500 for housing.
The political cost to Pataki for this judicial gerrymandering? Zilch. The electoral majority that carried him through three elections never included the heavily Democratic and minority areas of the city. Even as his majority turned to dust over the past two years, he caught little flak, with only courthouse cognoscenti tracking the governor's judicial maneuvers.
There were a few outspoken critics back in 1996, when Pataki forced longtime presiding justice Francis Murphy off the bench. Pataki pitched his power play as a direct confrontation with an overtly liberal court. But state and city bar associations said he was breaking with long-established precedent that allowed judges like Murphy, who must yield the top presiding justice slot at the age of 70, to continue serving on the panel until the age of 76. The governor shrugged off the criticism like so much dandruff. Other judges, most of whom aspire at some point to become presiding justices themselves, couldn't help but take note.
Over the following decade, as Pataki imported one Republican after another, there was nary a grumble from the legal community. In two separate Voice articles, one concerning Buckley's attempt to deep-six the Guy Velella investigation ("Hear No Evil," May 25, 2004), and another about Catterson's poor judicial credentials ("City Goes Judge Shopping," September 28, 2004), I found it impossible to get informed critics to talk about such matters on the record.
But in June, the New York Law Journal published a remarkably outspoken letter condemning Pataki's judicial appointments. The letter, from a retired veteran appellate judge, William C. Thompson (father of City Comptroller Bill Thompson), blasted the governor. "Under the guise of merit selection," he wrote, "Mr. Pataki has effectively eliminated African-American and Hispanic judges from the appointive judiciary." By Thompson's count, Pataki has appointed just two African Americans and two Hispanics to the state's four appellate courts over his 10 years in office. It wasn't for lack of candidates. Thompson noted that in Manhattan and the Bronx, "more than 40 percent of the judges eligible for appointment to the division are minority."
While the Second Department includes 40 percent of the state's population, including eight surrounding metropolitan counties plus Queens and heavily minority Brooklyn, there are only one Latino and one African American judge on this 22-member panel, Thompson stated. "Mr. Pataki's record shows that minority candidates are not given equal consideration," Thompson wrote.
Pataki's office didn't respond to a Voice request to discuss the governor's appointments. Had Thompson heard back after his letter? "Response? The only thing I heard back was that they thought I was mad because they objected to my fees," said Thompson, who served as a court-appointed special master to evaluate the Campaign for Equality lawsuit.
He had written the letter, he said, "because I just got tired of them ignoring minorities. We are losing ground. It's an outright disgrace in the First Department to have just one African American. When I was there, there were three minorities on the Second Department, now there's just two. This guy has just used it for politics. It's favors, that's all."
By most accounts, Pataki's next move on the First Department will be to name his former counsel James McGuire, who was elected last year to Supreme Court in Queens, to the appellate bench. The smart money says he will quickly be bumped up to presiding justice once Buckley steps down.
Pataki tried in 2003 to place McGuire on the state's highest court, the Court of Appeals, a move widely considered a slam dunk. But McGuire, a former prosecutor, never made it past his qualifying interview with the Commission on Judicial Conduct. As is customary, no explanation was offered, but there's little doubt that McGuire made enemies while serving the governor. Among his tasks was to oversee the administration's defense to Pataki's most threatening scandal, the parole-for-sale cases in Brooklyn federal court that resulted in the conviction of two parole officials and a major Pataki contributor. Billing records submitted by state-paid defense attorneys who represented at least 11 Pataki administration officials before the grand jury show that McGuire kept in constant contact with the attorneys. He attended several joint defense meetings that included the attorney for top Pataki campaign aide Patrick Donohue, who was an unindicted co-conspirator in the case, and whose courtroom testimony was slammed as "lies" by prosecutors.
McGuire's close ties to the administration mean that he would become Pataki's eyes and ears on the appellate bench, say critics. That's nonsense, according to one supporter. "He is a very good lawyer and a good judge," said Alfred Lerner, a Queens Republican who stepped down from the appellate panel last year. "He'll be an asset." Lerner, however, has good reason to be a Pataki fan. When he retired, the governor appointed him to a part-time $109,000-a-year spot on the state's Commission on Investigations. Because he's 76, Lerner is also allowed to collect his $139,000-a-year pension.