Pataki's Quiet Court-Packing

Long after he's gone, the governor's GOP judges will still be ruling

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.

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  • 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 County—all 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.

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