Gov. Kathy Hochul’s decision to nominate two possible Court of Appeals judges from a single short-list of names from the state’s Commission on Judicial Nominations has been criticized by good government groups and Republican lawmakers. 

Hochul sent two names to the New York state Senate on Monday: that of Associate Court of Appeals Judge Rowan Wilson, and that of former New York state Solicitor General Caitlin Halligan. If Wilson were to be confirmed as chief judge, Halligan would then be voted on by the Senate to replace Wilson as an associate on the court.

And there was more judiciary news to come out of the state Capitol on Tuesday.

During a press conference updating reporters on the late state spending plan, Senate Majority Leader Andrea Stewart-Cousins said the Senate was considering doing away with the Judicial Nomination Commission altogether.  

According to Dr. Vin Bonventre, the Justice Robert H. Jackson distinguished professor of law at Albany Law School, the language of the state’s Constitution is clear that the nominating commission’s process to produce a list is triggered each time there is a vacancy on the Court of Appeals. 

“So, there’s a vacancy in the chief judge position, that’s one list. When Rowan Wilson is confirmed by the Senate, and I’m sure he will be, then there will be another vacancy, and then the commission needs to produce another list,” Bonventre told Capital Tonight. “This is, at the least illicit, what the governor is doing.”

That position was echoed by state Assembly Minority Leader Will Barclay.  

“There are problems and constitutional questions with the new law allowing two judges off of a single list. It isn’t a reflection on the merits of the two nominees, but on the timing and the necessity of the changes,” he said. 

In a quirk of physics peculiar to Albany politics, the governor signed a bill allowing for the double nominations only after sending the names of her two nominees to the state Senate. 

“Okay, so now it’s a law, but as you know, some laws can be invalid,” Bonventre said. 

When asked about the Senate majority leader’s comments on eliminating the Judicial Nominating Commission, Bonventre said what matters is how important the institution of the court is to the executive and legislative branches. 

“Does the governor, do the senators, care about having a great Court of Appeals?  If they care about having a great Court of Appeals, then it probably doesn’t make too much difference whether we have the commission or we don’t have the commission,” Bonventre said.

The Judicial Nomination Commission was created by a constitutional amendment in 1977 to ensure that judges who sit on the state’s highest court are chosen from candidates who “reflect the diversity of the state’s citizens, and are among the state’s most highly qualified judges and lawyers." 

Bonventre recalled that prior to the commission’s creation, there had been some “extremely weak” political cronies being floated for the court.

“There were a few elections for positions on the Court of Appeals that got to be pretty unseemly,” he said.

If the Senate introduces a constitutional amendment to eliminate the Judicial Nomination Commission, it would need to be passed by two consecutively elected legislatures, and then voted on by referendum. The earliest such an amendment could be voted on by the public is 2025.

Reinvent Albany’s John Kaehny told Capital Tonight that his group opposed the proposed change to the judicial nominating committee and suggested any constitutional amendment should include a broad overhaul of New York’s judiciary.

“As long as (Stewart-Cousins) is motivated to walk the long path of an amendment, it would be great if the Senate leader championed a total revamp of New York's notoriously inefficient and irrational court system,” Kaehny said.

CORRECTION: This story has been corrected to reflect that Reinvent Albany does not support this constitutional amendment.