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State Senate to miss deadline to approve court pick

New York State Senate

The New York State Senate will likely miss a deadline to approve Gov. Andrew Cuomo’s latest choice for the state’s high court. As a result, there will be six judges instead of seven on the court come December.

The vacancy on the state’s highest court is occurring because the 14-year term of Judge Victoria Graffeo expires at the end of November. Graffeo, a widely respected Republican chosen by former Gov. George Pataki, could have served for eight more years before reaching the mandatory retirement age of 70, had Cuomo, a Democrat, chosen to reappoint her.

Instead, Cuomo chose Judge Leslie Stein, a Democrat and mid-level appeals court judge from Albany. The choice would give the court a Democrat majority for the first time since the 1990s. During the two weeks that Cuomo chose to delay his decision, a number of the governor’s allies issued press releases saying she was too conservative on issues like gay marriage and women’s rights.

Vince Bonventre, Albany Law School professor and Court of Appeals expert, says while Stein is considered a well qualified judge, many in the legal community were disappointed that Graffeo did not get reappointed. He says she was not really a polarizing figure.

“We’re not talking a Justice Scalia or a Justice Thomas," said Bonventre. “She’s a typical upstate moderate Republican.”

Cuomo delayed his choice for two weeks, saying he did want the state Senate to have to come back before the November elections for what could be politically charged confirmation hearings. The appointment was made on October 17, and the Senate had 30 days to hold hearings.

Perhaps taking their cue from the governor, the Senate has decided to also delay the process. Technically, both are breaking state law, but Bonventre says there’s no real penalties. He says it’s the first time he can recall a governor and the Senate breaking the deadlines for court picks.

At the time of the appointment, Senate Republican Leader Dean Skelos had urged Cuomo to keep Graffeo. Stein is likely to face some questions from the Senate GOP, who will be fully in charge of the chamber come January.  

Cuomo has now appointed three Democrats to the court. He will have a chance to replace the other four judges before his second term as governor is up.

Bonventre says Cuomo’s father, former Gov. Mario Cuomo, also had the chance to pick every judge on the high court. Mario Cuomo chose as many Republicans as Democrats.  

“With his first three appointees, two of them were Republicans,” said Bonventre. Andrew Cuomo has so far appointed three Democrats.

Bonventre says Andrew Cuomo still has a chance to continue to tradition of political diversity on the court.

Since Judge Graffeo’s term expires at the end of November, just six judges, instead of seven, will preside over the December court session.

Karen DeWitt is Capitol Bureau Chief for New York State Public Radio, a network of 10 public radio stations in New York State. She has covered state government and politics for the network since 1990.