This story was co-published with The American Prospect.
As impeachment looms as an increasingly likely prospect for Governor Andrew Cuomo, some politicos are pointing to a pair of recent appointments as a possible effort by Cuomo to tilt the scales of an impeachment trial in his favor.
According to the New York State Constitution, the jury in a trial of impeachment consists of all 63 state senators except the leader of the majority party (who would become Lieutenant Governor in the event of impeachment and therefore represents a conflict of interest), plus the seven judges of the Court of Appeals, the highest court in New York State.
Some observers have raised the possibility that one factor in Cuomo’s most recent appointments to the Court of Appeals—he nominated two of its members in May, and they were confirmed by the state Senate in June—was to provide likely votes for acquittal, should a trial occur. While the appeals court judges couldn’t by themselves acquit Cuomo, they could provide up to 7 of the 24 votes he would need to escape impeachment.
“If I were in Cuomo’s place and saw a potential [impeachment] trial coming down the line, and I could pick one of my friends to be on the jury, I would do that,” said Alice Fontier, president of the New York State Association of Criminal Defense Lawyers.
Cuomo has appointed all seven judges currently sitting on the Court of Appeals. Appointments to the Court have not historically been contentious—the Senate can theoretically reject the Governor’s nominees by majority vote, but has never done so since it gained that power in the 1970s.
But when two spots opened up in spring 2021 due to the sudden death and unexpected retirement of two judges, the confirmation of their replacements became a pitched battle that saw the most intense effort to block confirmation of a Court of Appeals judge in decades.
Cuomo nominated then-Nassau County District Attorney Madeline Singas and then-New York City administrative judge Anthony Cannataro to fill the vacancies. Much of the opposition centered around Singas’ record as an opponent of recent criminal justice reforms passed by the legislature scaling back the use of cash bail and increasing the speed at which evidence is made available to defense attorneys in criminal trials.
But another factor in some Senators’ decision to vote no was the potential for Singas, a known Cuomo ally, to serve as a juror in a potential impeachment trial.
Sen. Robert Jackson (D-Queens) said that while his primary concern regarding Singas’ nomination was her criminal justice record, her potential role as a juror in an impeachment trial also influenced his vote against her confirmation.
“That’s another angle that was discussed as far as Cuomo trying to stack [the Court] with people that could lean towards him,” he said of his discussions surrounding his decision to vote no on Singas’ confirmation.
Singas and Cannataro were nominated on May 25, less than three weeks before New York’s legislative session was scheduled to end for the year. The late nomination, which came after Cuomo ignored a statutory deadline requiring him to choose nominees by May 8, left little time for consideration of the candidates’ stances, some legislators said.
“The process was very rushed,” said Sen. Jabari Brisport (D-Brooklyn), who voted against confirming Singas, citing concerns over her opposition to criminal justice reform. “Definitely we didn’t dive deep enough into how she might potentially act in the case of an impeachment trial.”
During her confirmation hearings, Singas was asked by Sen. Phil Boyle, a Republican from Suffolk County, whether she would be able to be impartial in the case of an impeachment hearing. “I have always been able to look at the facts and apply the law of the case with public scrutiny but without succumbing to political pressure. And I assure you that that will be the case if I’m called upon to deal with any situation regarding the Governor,” she responded.
Sen. Gustavo Rivera (D-Bronx), who voted against confirming Singas to the Court, said that Cuomo attempting to use Court of Appeals appointments as a safeguard in an impeachment trial “certainly is the type of thing that he would do.” But the strategy is unlikely to succeed, Rivera said, due to the overwhelming support for removing Cuomo from office among both Senate Democrats and Republicans.
“Even if every single one of the folks from the Court of Appeals eventually votes to not convict him, there’s plenty of us who feel very strongly that for us to actually move forward in this state, we need to have him out of there,” he said.
Despite opposition surrounding her record on criminal justice and worries regarding impeachment, Singas was confirmed on June 8, as was Cannataro. She received the support of thirty-three of the forty-three Democrats in the State Senate, including some who have been vocal critics of Governor Cuomo.
One factor that likely aided Singas’ confirmation was the full-throated support of the Deputy Majority Leader of the Senate’s Democratic Caucus, Michael Gianaris (D-Queens). Gianaris, who has called for Cuomo to be impeached and removed from office, encouraged his Democratic colleagues to vote for Singas, citing her Greek heritage, the New York Law Journal reported. Gianaris, who is himself Greek-American, declined to comment for this article.
One organizer, who requested anonymity to discuss internal legislative processes, told New York Focus shortly after Singas’ and Cannataro’s confirmation that the vote was conducted at such speed that several senators were not even aware that it was happening, due to pandemic safety regulations limiting the number of legislators allowed to be in the chamber at once.
Several senators who had intended to vote ‘no,’ but were not on the floor at the time of the vote, were counted as voting ‘yes’ in absentia, the organizer said.
“This is too important to speed through. We can’t vote that way again,” Senator Alessandra Biaggi (D-Westchester) told New York Focus the week after Singas’ confirmation. “Anybody who missed the vote, or didn’t know we were voting—that is a frightening thought.”
Singas and Cannataro would not be the only Cuomo appointees ruling on his political fate in the case of an impeachment trial—all seven members of the Court of Appeals have been appointed by Cuomo since his tenure as Governor began in 2011.
But a professor involved with the effort to prevent Singas’ confirmation told The American Prospect and New York Focus that the recent nominations were different.
“Cuomo didn’t make the other nominees when he was explicitly under investigation for possible misconduct that everyone knew could lead to impeachment,” NYU law professor Noah Rosenblum said. “There is at least a worry, and the possible appearance of impropriety,” regarding the two most recent nominees, he added.
Cuomo possesses other friends on the Court of Appeals. The Chief Judge of the Court, Janet DiFiore, is commonly known to be a longtime ally of Cuomo. In February, in the wake of the initial bout of accusations of harassment against him, Cuomo initially suggested that the investigation into the accusations be led by a joint effort of DiFiore and Attorney General Letitia James, a move that critics charged was intended to blunt the force of the probe.
The legal community generally did not view Singas and Cannataro as the most highly qualified options from the shortlists prepared for each vacancy. While nine of the twelve candidates on the shortlist received a “well qualified” rating from the New York State Bar Association, Singas and Cannataro were among the three candidates to merely receive a “qualified” rating.
“It was a great day for mediocrity,” one “experienced New York litigator” told the New York Law Journal regarding the nominations. “These are not cutting-edge people that he nominated.”
Richard Azzopardi, director of communications and senior advisor to Governor Cuomo, said that the Governor’s appointments were not influenced by political considerations. “The court — the most important division of an entire branch of government — couldn’t function without the appointments. Knock it off,” he told the Prospect and New York Focus.