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New year begins with judge shortage on high court


As of December 31,  New York state has no chief judge of the Court of Appeals. It’s the second time in recent years that either Gov. Andrew Cuomo or the state Senate have missed a deadline to fill the slot.

Current Chief Judge Jonathan Lippman is forced to retire at the end of 2015. Lippman  has reached the age of 70, and under New York state law, he must step down from the bench. In an exit interview with the statewide  public television show New York Now, Lippman criticized that age limit set in law, calling it the “constitutional age of senility.”

“It’s ridiculous in the year 2015,” said Lippman, who said the rule was made in 1846, when the average life expectancy was 40.

State lawmakers attempted to change the state’s constitution to let judges stay on the bench longer, but it was voted down in 2013.

Cuomo has already chosen his nominee for the new chief judge, Westchester District Attorney Janet DiFiore. She is widely respected as DA. DiFiore also served as the first chair of the troubled Joint Commission on Public Ethics created by Cuomo and the state legislature.   

Cuomo, when announcing his choice, said DiFiore will make a great chief judge.

“I think she’s going to do an extraordinary job,” Cuomo predicted.  

DiFiore, if confirmed by the Senate, would be only the second woman to head the high court.

Under the state’s constitution, the state Senate was to have reconvened within 30 days after Cuomo made his choice known to vote on the nominee. But the Senate failed to return to the Capitol in December. In November, at a private meeting with Senate Republicans, Senate Leader John Flanagan said he had no plans to come back in 2015 to deal with the matter.   

“I don’t see any reason why we would do that,” Flanagan said then.

The state’s highest court  will actually be not one, but two judges short when it reconvenes January 4. Judge Susan Read, who was originally appointed by former Gov. George Pataki, retired early. A judicial panel has recommended a list of names to Cuomo, he has until the middle of January to pick his nominee to replace Read.

A spokesman for the Court of Appeals says the court will hear new cases beginning next week, even though there will be only five judges on the bench instead of seven. Five is the bare minimum quorum to hear cases.

In 2014, the court was also short one judge. That’s because Cuomo delayed announcing a new nominee, saying he did not want to interfere with the fall elections.

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.