Cuomo faced similar pressure when he weighed his first nomination to the court to replace Ciparick, the only Hispanic judge to serve on the court to that point. The governor chose Jenny Rivera, a former City University of New York School of Law professor who is also Hispanic (NYLJ, Feb. 13).
Justice Rolando Acosta of the First Department (See Profile), who was recommended by the commission for the Ciparick vacancy, withdrew from consideration for the Jones opening on the assumption that the position will go to a black candidate, according to sources familiar with the judge's thinking.
Senate Judiciary Committee Chairman John Bonacic, R-Mount Hope, said yesterday his staff had already begun to vet the candidates forwarded by the commission.
But Bonacic said in a statement that he was disappointed that Acosta's name was missing from the latest list.
"I want to note my dismay that Judge Rolando Acosta withdrew his name from consideration," Bonacic said. "He would have been a highly credible addition to the court."
The candidates will apparently also undergo more scrutiny from bar groups than prior lists.
In recent years, the New York State Bar Association has been joined mainly by major New York City-based bar groups in evaluating the candidates, leading to some grumbling that upstate bar leaders were too detached from the process.
But for this round, the New York State Academy of Trial Lawyers and the Albany and Broome County Bar associations will interview and rate the candidates, according to Michelle Stern, executive director of the academy.
Stern said that while the three groups will independently evaluate and interview the candidates, they have agreed to conduct the interviews at the same place and on the same dateMarch 18 at the University at Albany. She said all of the nominees have agreed to participate.
"It is important for there to be a broad geographical diversity of input," Stern said. "We think it is about time that some of the upstate bar leaders got a chance to talk to the candidates and provide input to the governor before he makes his choice. I think the upstate bars are excited to be a part of the process."
Cuomo will have between March 22 and April 6 to make his nomination, and the Senate will then have up to 30 days to confirm or reject the selection.
The Senate has never declined to confirm a nomination to the Court of Appeals since the appointment system was adopted beginning in 1979.
Cuomo's office did not respond to a request for comment.
Of the candidates on the list released yesterday, Abdus-Salaam, Fahey and Schulz were also finalists for the Ciparick opening.
Schulz also previously made the list in 2007, when Kaye was reappointed to the Court of Appeals for the final 18 months of her term before her mandatory retirement. If selected and confirmed, he would be the first openly gay member of the Court of Appeals.
While making his choice, Cuomo for the second time will be scrutinizing the qualifications of a former subordinate.
Rivera took a hiatus from the faculty of CUNY Law to work as a special deputy attorney general for civil rights when Cuomo was A.G. Similarly, Vullo left Paul Weiss in 2010 to act as executive deputy attorney general for economic justice. Cuomo became governor in 2011.
Court of Appeals judges are appointed to 14-year terms or until the end of the calendar year in which they turn 70. A proposed constitutional amendment to raise the retirement age to 80 is before the state Legislature (NYLJ, Jan. 9).
Associate justices make $177,000 a year, though that is scheduled to go to $184,800 on April 1, 2013, under a pay increase approved two years ago.
The next scheduled vacancy on the Court of Appeals will occur in November 2014, when Judge Victoria Graffeo's 14-year term expires.