Daniel L. Feldman

Posts Tagged ‘Mel Miller’

Judgeships and the Regular Democratic Organization

In NYC Politics on September 23, 2012 at 5:04 pm

Since Vito Lopez has been in the news in recent weeks, I thought that the following essay, which includes some thoughts on his role as Brooklyn Democratic County Leader, might be somewhat timely.

“New York State has the most archaic and bizarrely convoluted court structure in the country.” Thus begins the 2007 report of the Special Commission on the Future of the New York State Courts , a commission to which I was appointed by Chief Judge Judith Kaye, my former colleague at the Olwine, Connelly law firm (see post #41).

The political party establishment plays a different role depending on what kind of judgeship a lawyer seeks, determining which path the lawyer chooses to take. While the role of politics therefore varies depending on the situation, the story of my quest for a judgeship nonetheless illuminates more generally the role of the political party establishment in staffing the judiciary.

Theodore Jones sat on the bench as a Justice of the Supreme Court of the State of New York in the Second Judicial District, the trial-level court including Brooklyn and Staten Island in its jurisdiction. Early in 2007 the New York State Senate confirmed his appointment to New York’s Court of Appeals, the State’s highest court, to fill the vacancy created by Al Rosenblatt’s mandatory retirement at age 70.

Since Jones’ Supreme Court term did not expire until 2014, his elevation created a vacancy. When such a vacancy occurs, the Governor makes an appointment to fill the vacancy until the end of the year. In November of that year, candidates who have received the nominations of their respective political parties run for election to fill out all of a new full fourteen-year term of office. Generally, and especially when the Governor and the political leader of the relevant county are from the same political party, the political leader will see to it that the Governor’s temporary nominee also gets the nomination for the full term.

In early March of 2007 Governor Spitzer announced his appointment of judicial screening committees to advise him on the merits of judicial candidates. The Second Judicial Department includes the Second Judicial District, so the committee for that Department would interview candidates to succeed Jones there.

Having taught law at Fordham Law School and Brooklyn Law School, co-authored a law book, written quite a few laws, established a good reputation for integrity, and served honorably both as a legislator and as a member of Spitzer’s staff in the Attorney General’s Office, I thought I would be a strong candidate. Spitzer’s screening committee agreed. They announce which candidates they deem qualified, but not their priority. However, I learned through friends on the committee, and got confirmation from friends in the Governor’s office, that the committee deemed me the most highly qualified of all the candidates for the position.

They also regarded Robert Miller as well qualified. Admitted to the bar in 1975, the same year I was, he had been in private practice, taught Continuing Legal Education courses, and served as a volunteer on bar association committees and neighborhood organizations. . What his official biographical listing for the Appellate Division (where he now sits) omits, however, was his role as treasurer of Mel Miller’s legal defense fund in 1991. The Brooklyn political establishment must have had great confidence in Bob Miller to have chosen him for such a sensitive position. He was not related to Mel. More to the point, the law did not require public disclosure of the contributors to that fund. Since Mel Miller still served as Speaker during the period in question, any quid pro quo or favor conferred in return for contributions, subtle or otherwise, would be impossible to ascertain so long as Bob Miller remained discrete about the contributors’ identity. True, Bob’s history included challenges to Noach Dear for City Council in 1991, and opposition to a Simcha Felder, a candidate supported by Dov Hikind to succeed Dear, in 2001 [Howard Graubard reminded me of these aspects of Miller’s biography], but with his more recent services to the Brooklyn Democratic organization, if he was ever a “prodigal son,” his return to the fold was welcome.

Vito Lopez, the Brooklyn Democratic County Leader 2007 and to this day, informed Spitzer that either Miller or I would be acceptable, although he would prefer Miller.

Vito Lopez, the Brooklyn Democratic County Leader 2007 and to this day, informed Spitzer that either Miller or I would be acceptable, although he would prefer Miller. Spitzer chose neither. Rena Uviller, a Court of Claims judge, had been serving as an Acting Justice of the Supreme Court.   New York State judges must retire at age 70, but those serving on the Supreme Court may be “certificated” up to three times for two-year terms after reaching 70. By appointing Uviller, Spitzer not only allowed her up to six more years, but added those six years of service to the capacity of the Supreme Court, because she would continue to serve even after another judge was elected in November to a fourteen-year Supreme Court term.

In November, Bob Miller ran as the Brooklyn Democratic County organization’s candidate for the Supreme Court – also as the Republican, as did the other three Democratic candidates that year, but only Miller also had the Conservative Party nomination.

The party candidate for a New York Supreme Court judgeship is not chosen directly by the voters in a primary election, but rather is selected by a “judicial convention,” populated by judicial delegates previously selected in the primary. Since they do not get paid, only serve in the one single convention for which they are chosen, and have no other power, there is little competition for such positions, which almost always go to loyal organization “soldiers” who do what the County leader tells them. [The two previous sentences reflect a correction by Laurie Kinsler Garson, for which I thank her. I think the error she corrected must have resulted from a strange synaptic misfire in my brain, because I certainly knew the facts — I just wrote something else.]  Thus, the party leader controls the nomination. In Brooklyn, where the Democrats dominate overwhelmingly, the Democratic County Leader can offer the Republican leader one out of every half dozen or dozen judgeships in return for joint endorsement. Perhaps the Conservative Party occasionally gets a favor as well.

Why did Spitzer bypass Miller and me? Probably because, as his first judicial appointment, he did not want to appoint a former staff member who no longer even lived in the Second Judicial District, because by that time I lived in Nassau County. Or, because Lopez clearly preferred Miller, Spitzer did not want to insist on me as their heir presumptive to the seat. By choosing the well-respected Uviller and thus add some capacity to the system, he could reduce the potential embarrassment of the choice.

Why did Lopez choose Miller over me? As noted in Post #56, the Democratic organization had far less patronage at its disposal than in earlier years. The reform movement, civil service, ethics laws, and press scrutiny had done that much. It had little more than judgeships with which to reward the faithful. Miller had not only served as Mel Miller’s defense fund treasurer, through years of his quest for a judgeship had bought tickets to all the Democratic district leaders’ annual dinners and, I’m sure, had served the Party in ways of which I remain unaware. Had Lopez designated me, he would have sent a deeply destructive message to his “troops”: a loyal servant like Miller gets bypassed in favor of an independent reform-minded former legislator who may have bought some dinner tickets this year to serve his judicial ambitions, but who had done nothing for the organization and could not even be trusted to appoint Party loyalists as his law secretaries if he did get to the bench.

Vito Lopez has done a number of things as Democratic County Leader for which he has been harshly – and in my view, justifiably – criticized, to say nothing of more recent allegations in a different domain.  I do not condemn him, however, for choosing Miller over me. The screening committee was right: I had better qualifications, on the merits, than Bob did. But Bob sufficiently qualified on the merits. I had confidence that he would be a good judge, and so far as I can tell, he has been. More to the point, though, as County Leader, Vito is responsible for keeping that organization as strong as possible. Had he chosen me, he would have failed in that responsibility.

With such sentiments, am I still a “reformer”? I think so. I understand the need for a real political organization, like the one Vito heads, and therefore I understand that leadership of such an organization entails the responsibility for maintaining it. But I also understood my role, when I was in politics, as combating the excesses and abuses of entities that exercised power in the public arena, be they the regular Democratic party organization, Republicans, government agencies and officials, banks, insurance companies, or what have you. I could not fight them all at once, and sometimes I needed alliances with some to fight others, but the overall instinct remained – and remains.

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Centralization of power

In Criminal Justice Policy, New York State Government, New York State Politics, Policy on September 16, 2012 at 2:18 pm

Two years after I returned to my normal life in the Assembly after the 1989 race for District Attorney, the U.S. Attorney for the Eastern District of New York convicted Mel Miller for cheating clients of his law firm out of profits they made on a transaction.  Two years later the federal Court of Appeals reversed the conviction, holding that the clients had no clear right to the profits in the first place. Under New York State law, Miller had to give up his elective office when he was initially convicted of the felony. The law has no provision for returning his office to him upon the reversal of such a conviction.

Stanley Fink and Mel Miller, as Speakers of the Assembly, wielded enormous power over members’ staff allocations, member items, and even which of their bills would become law. However, they led their Democratic majority as small “d” as well as large “D” democrats: they were good at judging what policy direction the majority of our caucus wanted to pursue, but checked to make sure they were right – and no member of the Democratic caucus hesitated to disagree, even forcefully, with those Speakers behind the closed door of our conferences. Some members, like me, even had open and public disagreements with the Assembly leadership, and were promoted, not punished. In my effort to change New York’s transactional immunity law to the much more typical state and federal “use immunity” law, I fought against Mel Miller when he chaired the Codes Committee. New York prosecutors had explained to me how it allowed some criminal defendants to get away with crimes – with murder, in the case of Delissa Carter – because it immunized them from prosecution related to any event about which they testified before a grand jury. I failed to change the law, but the New York Post praised me for my effort and lambasted Mel. Nevertheless, he gave me the first committee chairmanship at his disposal when he became Speaker.

Stanley had told committee chairs, “I decide the budget. You decide everything else.” This was mostly but not entirely true. First, the committee chairs always included two or three nitwits, and no Speaker allowed them to exercise any significant power. But those were exceptions. More generally, no legislature could have a dozens of legislators each deciding how much money to allocate to individual parts of the budget: to education, prisons, health, and so forth. Naturally the committee chair for each such area would tend to “break the bank” on behalf of the constituencies he or she most deals with, and to try to solve the problems for which he or she had most responsibility. Someone has to be able to weigh the great variety of needs against each other, and settle on allocations that would not, in the aggregate, bankrupt the state.  However, Stanley and Mel carefully consulted committee chairs for the more detailed information and therefore superior grasp of budgetary nuance each chair was likely to command, and took that information and nuance into serious consideration in shaping their decisions. On the other hand, while committee chairs made policy in their respective substantive areas, they were only permitted to do so within the general parameters of what the Democratic majority caucus would allow, and the Speaker enforced those limits.

But in my very first year as chair of corrections, I negotiated significant changes to the kinds of sentences low-level drug offenders would serve. Larry Kurlander, Governor Cuomo’s Criminal Justice Coordinator, Chris Mega, the Republican chair of the Senate Committee on Crime and Correction, who became my good friend thereafter, and I agreed to establish shock incarceration and earned eligibility, two programs that significantly reduced time actually incarcerated for many inmates. We each understood the range of choices we were each respectively allowed, but that range was broad enough so that prior to our negotiations most of our colleagues probably never even heard of the programs we decided to approve.

After Mel had to relinquish his office, things changed. My preferred candidate for Speaker, Jim Tallon, from Binghamton, would doubtless have continued in the mold of Stanley and Mel. But Jim’s gentlemanly qualities deterred him from the aggressive campaigning that might have won the job. Although Saul Weprin was also an extremely nice man, his key backers, Michael Bragman and Sheldon Silver, provided enough aggressive politicking on his behalf for Saul to win overwhelmingly.

Weprin died less than two years later, and may well have been more seriously ill than we recognized even from the start of his speakership. His counsel, Ben Chevat, moved to consolidate power – whether truly on Saul’s account, or in the interests of Bragman and Silver, remains unknown.

Although they were paid out of the Assembly’s central staff allocation, not out of my committee budget, I had been accustomed to selecting my committee staff and expecting them to follow my direction, unless of course they offered ideas I liked, which they often did. A few months after Saul’s accession to the Speakership, my program associate, Dick McDonald, shocked me by informing me that he could not work on a policy project I had asked him to pursue (I no longer remember the subject). He explained that Carol Gerstl, his “team leader,” had decided against it, and that Chevat had been informed that they were now to take direction from their staff chain of command, not from their committee chairs.

I collected my colleagues who chaired Codes, Judiciary, and Government Employees, all of whose staffs reported to Gerstl, and demanded a meeting with Weprin. Chevat tried to meet us, but we bypassed him, and explained to Weprin that he would have four immediate committee chair resignations if our power to direct our committee staff was not restored. Weprin immediately agreed.

When Silver succeeded Weprin, however, sometimes subtly and sometimes more overtly, central staff gradually usurped much of the power of committee chairs anyway. This did not improve my relationship with Silver, or endear us to each other.