Last week, New York’s top court may have violated state law by allowing Chief Judge Janet DiFiore to vote for her interim successor.
In July, DiFiore stunned the New York political world by announcing that she would retire from the court, effective August 31. The resignation touched off an ongoing struggle over her replacement, with progressive legal advocates hoping for an appointment that will reverse the court’s recent sharp rightward turn.
Last week, the court’s seven judges met to select one of their number to serve as acting chief judge until the governor and lawmakers appoint a permanent replacement, likely early next year. The court broke with decades of precedent by selecting one of its most junior members — Judge Anthony Cannataro, a close ally of DiFiore who has never voted differently from her — for the top role.
The law detailing the process for designating an acting chief judge when there’s a vacancy requires that the selection occur “during the period of such vacancy.” Since DiFiore is still Chief Judge until her resignation takes effect later this week, the court may have improperly jumped the gun.
That might seem like nitpicking. Vincent Bonventre, professor at Albany Law School, said that only on a “very strict textualist reading” did the court break the law. And it’s not the first time the court has selected a replacement in advance of a vacancy. But the stakes were higher this time: In Cannataro’s case, the timing of the selection may have determined its outcome.
Control of the court hangs on a single vote, with DiFiore leading a four-judge conservative bloc that voted together in almost every case in the most recent term, effectively determining all the court’s rulings. Those rulings have consistently favored police, employers, and large corporations over criminal defendants, workers, and tenants.
The court had previously been locked in a stalemate over whom to name as acting chief. DiFiore had initially pushed for Judge Michael Garcia — the court’s only registered Republican, often seen as its most conservative judge — but couldn’t corral the necessary support during two days of deliberations in July, Law360 reported.
DiFiore then switched to backing Cannataro, another member of the conservative bloc, who has voted in lockstep with her in every one of the 98 cases the court has heard since he joined in June 2021.
“It’s an outrage that the chief would try to pick her own successor on the way out, if indeed that did occur,” state Senate Judiciary Committee Chair Brad Hoylman told New York Focus. “I think this Court is out of touch with New Yorkers. And if this was an attempt by an outgoing chief judge to perpetuate that trend line, it’s a sad day for New York’s highest court.”
The court doesn’t make public the vote count or how individual judges voted, and Court of Appeals spokesperson Gary Spencer declined to answer questions about the vote. But given the previous stalemate and the court’s nearly-even ideological divide, some observers speculated that DiFiore may have cast a tie-breaking vote in favor of Cannataro — a scenario the law may have been written to avoid.
“It’s at least arguable that, in a case like this, you’re supposed to follow the letter of the law and wait for the vacancy to occur precisely because otherwise you’d be giving the chief — who is leaving under a cloud — an improper say in selecting her successor,” said Noah Rosenblum, a professor at New York University School of Law who clerked at the Court of Appeals.
DiFiore is currently under a judicial misconduct investigation for interfering in the disciplinary process for the president of the court officers’ union. Spokespersons for the court have said that her resignation is unrelated to this investigation.
The two most recent acting chief judges were also selected before the previous chief judge left the court. But those selections were uncontroversial, and simply followed the precedent of selecting the most senior judge.
Cannataro has served on the court for less time than Judges Jenny Rivera, Michael Garcia, and Rowan Wilson. Rivera and Wilson are generally seen as the court’s two most liberal judges.
Rivera is the most senior judge, but until recently had refused to get vaccinated against Covid-19 and was thus not permitted to enter court buildings, which some observers thought was an obstacle to her being named acting chief.
DiFiore’s permanent replacement will be nominated later this year by Governor Hochul from a shortlist prepared by New York’s Commission on Judicial Nomination, then voted on by the state Senate when it reconvenes in early 2023. Until then, acting Chief Judge Cannataro will be responsible both for presiding over the Court of Appeals and setting policy for New York’s court system, which has an annual budget over $3 billion and 16,000 employees.