is called a top choice for state high court
By TOM PRECIOUS
News Albany Bureau
Eugene F. Pigott Jr., presiding justice of the Appellate Division of State Supreme Court in Western New York, was on the list of seven from which Pataki must fill a vacancy on the Court of Appeals. It was the second time in a year that Pigott has made such a list.
Legal experts quickly moved Pigott to the position of odds-on favorite after the state Commission on Judicial Nomination failed to select James McGuire, who served Pataki for eight years, including five years as his top counsel.
The Pigott-McGuire competition, which quietly raged behind the scenes for nearly two months, so dominated the judicial selection process that many top jurists, thinking they had no chance, declined to apply for the opening.
"I'm honored to be on the list," said Pigott, 57, a University at Buffalo Law School graduate and former Erie County attorney.
He declined to discuss the process in which several judges said he was the state's only appellate court judge - out of 63 jurists - to apply for the vacancy resulting from the appointment of Judge Richard Wesley of Livingston County to the federal appeals court.
Geographic politics was quickly taking over. Pigott backers called on Pataki to appoint the Erie County Republican, who lives on Grand Island, in part because no judge from the Buffalo area has sat on the Court of Appeals since 1985. None of the high court's current members lives west of Albany.
Justice Samuel L. Green, of the State Supreme Court's appellate division in Buffalo, said, "It would be a travesty if Western New York was overlooked again." Green said lawyers often need to appear quickly before judges on the Court of Appeals for motions or requests for stays. Now, that means a trip to Albany or New York City to appear before a judge with no knowledge of the region.
"It's not fair to the legal community to be misrepresented," Green said.
The judge added that thinking of someone from another part of the state is also needed when judges go behind closed doors to consider cases that often have as much or more direct bearing on the lives of New Yorkers than those going before the U.S. Supreme Court.
"They're making monumental decisions at that level. They're changing laws. Everyone should be represented," he said.
Asked if geographical considerations would enter into his decision in filling the vacancy, Pataki said, "I think the most important thing is the quality of the person."
Pataki appeared upset that McGuire, his longtime adviser, was passed over. Calling his former aide - now a counsel in an influential Manhattan law firm - an "outstanding lawyer" and a "brilliant individual," Pataki said, "It is disappointing" McGuire wasn't selected. He said he believes McGuire did not ask to be taken out of the running.
The nominating panel is headed by John O'Mara, an Elmira lawyer and close confidant of the governor; he is Pataki's top adviser and negotiator on Indian casino matters. O'Mara did not return calls seeking comment.
Though O'Mara and other close Pataki allies are on the panel, the governor does not run the Commission on Judicial Nomination. Of the 12 members, only four are Pataki appointees. Four of the others are selected by Chief Judge Judith Kaye, a Democrat. Majority leaders and minority leaders of the State Senate and Assembly select one each.
In addition to Pigott, the judicial panel's other nominees, including several repeat candidates, are Daan Braveman, a Syracuse University law professor, the only other upstater on the list, though he is considered too liberal for Pataki's tastes; Steven Fisher, a Supreme Court judge in Queens who twice has been recommended by the commission for a post on the top court; Helen Freedman, a Supreme Court judge in Manhattan with 19 years on the bench; Stephen Friedman, a partner in a Manhattan law firm and a former member of the Securities and Exchange Commission; Robert Smith, a Manhattan lawyer and former instructor at Columbia Law School; and Guy Miller Struve, a Manhattan attorney and former lawyer with Lawrence Walsh, the independent counsel in the Iran-contra case.
The governor has 30 days to make a selection from the list handed him Wednesday. Once confirmed by the State Senate, the appointee will serve a 14-year term on the seven-member court at a salary of $151,200 a year. The appointee also will have the opportunity to sit on one of the nation's busiest and most closely watched state high courts.
Criticism over the nominating process mounted when word spread quickly spread of a two-man race between McGuire and Pigott. Judges were upset that no one except Pigott had applied from the state's appellate courts, which some believe should be a farm system for the high court.
"People believe it's already predetermined," said one state judge, describing the time-consuming application and interview process. "A lot just didn't feel it was worth going through it. Many feel it would have legitimized the process."
"They're calling it merit selection," the judge added, referring to the system in which a panel of experts recommends potential appointees to the governor rather than filling the positions through direct elections. "How is it merit selection when qualified people aren't applying because they don't feel they'll get a fair chance?"
Vincent Bonventre, a professor at Albany Law School and a close observer of the high court, said the governor's push for McGuire's selection might have backfired. He said a growing chorus of complaints arose that "a merit selection process was nothing more than a vehicle for Pataki to appoint one of his cronies."
The panel may have heard the criticism.