While intrigue surrounds the departure of New York Court of Appeals Chief Judge Janet DiFiore, the bigger issue may be the status of the state’s highest court, which has taken a hit during her tenure.
Like other chief judges, DiFiore was appointed to a 14-year term in 2016 by former Gov. Andrew Cuomo. But earlier this summer she announced she would be stepping down after just six years.
Wednesday was DiFiore’s last day on the bench.
There has been speculation that she is leaving the court because of an ethics investigation into her actions regarding a court employee.
According to The New York Post, Dennis Quirk, the head of the court officers’ union, filed a grievance stating that DiFiore intervened in a disciplinary case involving Quirk.
Dr. Vin Bonventre, the Justice Robert H. Jackson distinguished professor of law at Albany Law School and the author of the New York Court Watcher blog doesn’t know why DiFiore is stepping down, but told Capital Tonight that the aforementioned ethics investigation is being discussed among court watchers.
“The speculation is that there is this ethics investigation that’s ongoing, but the little I know about it, you know the letter that she sent to the authority who’s doing the investigation of a judicial official — let me put it this way, she is the chief executive of the judicial branch. It does seem to me, that if there has been some misconduct on the part of an employee of the judicial branch, she should get involved,” Bonventre said. “Maybe she should say this is the kind of misconduct we don’t want in the judicial branch. That’s a possibility.”
According to The New York Post, the Office of Court Administration suspended Dennis Quirk for 30 days last year “amid a dispute over the COVID-19 vaccine edict for court employees. An OCA rep told The Post at the time that Quirk put DiFiore at ‘grave risk of death’ by posting her Westchester and Hamptons area addresses on Facebook.”
DiFiore has not made many friends among the political class. Not only did she lead a court which derailed the Democrats’ plans to draw politically amenable state and congressional lines, she also authored a proposal to consolidate the state’s enormous court system from 11 trial courts to two, which would have stepped on a lot of toes, if implemented.
“New York has the most byzantine judicial branch. Janet DiFiore, like other chief judges, has wanted to consolidate, streamline the system,” Bonventre said. “It’s never been popular with a lot of the judges, and certainly not popular with a lot of the politicians. They like to have all these plums that they can hand out.”
But when asked if DiFiore was a good chief judge in the vein of former Court of Appeals Chief Judges Jonathan Lippman and Judith Kaye, Bonventre said the court has taken a status hit under her watch.
“I will say that during her tenure, the court’s reputation has really plummeted. I don’t think you can find anybody serious and candid who will tell you that the court is particularly well-respected today. It’s not. Its reputation has really been on the downside,” Bonventre said.
Bonventre, who has written extensively about the Court of Appeals, had favorably compared the court to the U.S. Supreme Court prior to DiFiore’s tenure.
“When Jonathan Lippman was chief, I remember chief justices from the, around the country, telling me, ‘Boy this is a great court again’. It was a great court early on in [Judith] Kaye’s tenure, certainly when [Lawrence] Cooke was chief. A lot of [Sol] Wachtler’s tenure, [Charles] Breitel’s, [Stanley] Fuld’s. You can go back and back. It has not been a very good court (lately),” he said.
When asked why, Bonventre blamed former Gov. Cuomo.
“That’s another interesting question. I don’t think it’s necessarily because of Chief Judge DiFiore. For one thing, look, Gov. Andrew Cuomo didn’t really care much about the court,” Bonventre said. “Pataki wanted to make the court in a particular image. Certainly, Mario Cuomo was very serious about the court. I don’t think Andrew Cuomo was very serious about it.”
According to Bonventre, the younger Cuomo would “just bypass” extraordinary candidates that were on the list submitted to him by the Judicial Screening Commission.
“Erin Peradotto, Michael Bosworth, Caitlin Halligan. It would have been an extraordinary strong court. He bypassed them,” Bonventre stated.
The other issue weighing down the court is the dynamics in play among the judges.
“When you have different opinions on the court, different sides, and they’re really nasty towards one another. Or when you get 4-3 decisions, meaning they’re really close, and the majority doesn’t even sign its opinion – it will write some ditty little three or four paragraph unsigned memorandum. And you have 3 colleagues writing long dissents? That kind of shows not much respect for colleagues. It doesn’t show a good dynamism within the court,” Bonventre said.
But Brian Ginsberg, a partner at the firm Harris Beach, had a different perspective.
In an emailed statement to Capital Tonight, he wrote, “In my view, as an observer of the Court of Appeals and as a frequent advocate before the Court during Chief Judge DiFiore’s tenure, the Court under her leadership remained a strong and vital institution. Every time I appeared before the Court during Chief Judge DiFiore’s tenure, I found the judges of the Court to be hard-working, thoughtful, fair-minded, and committed to the rule of law. To be sure, the judges did not always agree on case outcomes or rationales; dissenting opinions were issued with some regularity. But that fact only underscores the Court’s strength in that it shows that during Chief Judge DiFiore’s tenure the judges were independent thinkers who ruled on cases according to their own best legal judgment.”
Regarding the kind of jurist Ginsberg believes the Court of Appeals needs, he wrote, “The state’s court system is among the largest, busiest, and most complex in the country, and it would be a great asset to have a proven manager at the helm.”