Recusal of top judge casts cloud
N.Y. Appeals court to replace Halligan in redistricting suit as step back raises concerns
ALBANY — When she was interviewed for the post of associate judge on the state Court of Appeals, Caitlin J. Halligan was peppered with questions about her decades of legal work on a range of special interests.
State senators were concerned that the vast network of connections Halligan had made during her career as a high-powered privatepractice attorney, the state’s solicitor general, and, more recently, advising Gov. Kathy Hochul on a legal matter concerning the court itself could hinder her ability to decide cases — especially as a potential swing vote on the seven-judge panel.
“Do you think, if confirmed, there’s going to be a problem involving conflicts of interest?,” state Sen. Toby Ann Stavisky, D-Queens, said in the April hearing of the chamber’s Judiciary Committee.
“No, I don’t, senator,” Halligan said. “If any specific case that I have worked on happened to come before the Court of Appeals — which I suppose is possible but I don’t think likely — I would certainly recuse myself from that. But beyond that, I don’t expect that any of the work that I have done would require me to step aside from cases.”
Six months later, Halligan recused herself from what could be the most consequential case the court will consider this year: a Democratic lawsuit challenging the current political maps guiding congressional races that is set to be heard on Wednesday in Buffalo. Considering the narrow Republican majority in the House of Representatives and the outsized role that GOP victories in New York’s swing districts played in 2022, both parties are following every twist in the case.
Halligan’s decision to step back has offered a reminder to court-watchers about the opacity of its inner workings, and opened up
the recently reconstituted panel to sharp criticism.
A state law enacted in 2021 requires a judge to “provide the reason for ... recusal in writing or on the record” as long the reason does not create an embarrassment or is of a personal nature. The manner or extent to which a judge has to explain their recusal decision are not specified.
Last month, Halligan checked off a box on a standardized court form indicating she has or had a “close professional or personal relationship with a party or lawyer involved in this matter.” No other details were provided on the form to the court, according to Court of Appeals spokesman Gary Spencer.
The recusal was made not when Halligan first sat in the case, but on Oct. 12, after amicus briefs were filed by the League of Women Voters and the Lawyers Democracy Fund.
“The judges should be much more transparent in giving fuller explanations on why they are recusing themselves,” said Vincent M. Bonventre, an Albany Law School professor who clerked for two Court of Appeals judges. “They shouldn’t just say, ‘Well, trust us.’”
Vouching in
The next step followed a new, verbal policy set by Chief Judge Rowan D. Wilson, who was confirmed to the position in April — a day before Halligan’s confirmation.
Bucking tradition, Wilson said that when a Court of Appeals judge steps aside from a case, the court would call up a judge to fill their position — even if the panel already has enough other judges to meet its five-member quorum.
In prior instances, a judge typically would be “vouched in” only if the court couldn’t field five judges or, after arguments, was unable to reach a consensus of four of its members, leading to the need to rehear the case.
The details of the process to determine who is chosen to fill in on the high court remain hazy — including the key question of whether Wilson can make that selection on his own, a practice that would bring a notable expansion of the chief judge’s influence.
“We’re in the dark,” Bonventre said.
The policy change has led to debate among judges.
“Under its new leadership, the Court of Appeals, acting well within its constitutional authority, is departing from an inefficient procedure that slows down the dispensation of justice,” retired Judge Rolando T. Acosta said in a New York Daily News op-ed.
Acosta, who at one point was rumored to be on Gov. Kathy Hochul’s short list for chief judge, was responding to an editorial by the same paper that admonished Wilson for the new policy.
Acosta’s piece, in turn, prompted a rebuttal from former Court of Appeals Associate Judge Susan R. Read, who explained that in her dozen years on the Court of Appeals, there were at least 300 instances of a recusal of a judge — but only five instances in which someone was called up to fill in a void or because of a split decision.
Under Chief Judge Judith S. Kaye, Read explained, the court limited the use of an appellate justice as a substitute. If someone was vouched in, she said, it often was someone who was nearing the end of their career and not “auditioning” for a job on the bench.
“Somewhere, Judith Kaye weeps,” Read concluded in the oped. (Kaye died in 2016.)
Under Wilson’s policy, Halligan was replaced by First Department Appellate Division Presiding Justice Dianne Renwick, who recently took part in a decision on a redistricting case involving the state Assembly’s district maps. A fivejudge panel ruled in favor of redrawing the political boundaries.
Bonventre noted the calling up of a judge before a case is heard can be just as political as doing so after arguments if the court splits in its decision.
Redistricting debate
Renwick temporarily joins a bench that was split on a different redistricting case last year.
In April 2022, then-Chief Judge Janet DiFiore issued the decisive vote, ruling the Democraticdrawn initial maps were unconstitutional. DiFiore’s court ordered a trial court to appoint an outside expert to draw new boundaries, and to do so quickly before the upcoming election.
The question now before the court is whether that remedy was meant to create maps for the rest of the decade, or just for the 2022 election cycle.
A variety of technical legal arguments have been offered, including a close reading of whether the word “modify” in the state constitution could mean “redraw.” A lower court ruled in favor of the Republican arguments and an appellate court sided with the Democrats’ side in a 3-2 decision.
At the point in which Halligan was nominated to the Court of Appeals in April, it was already publicly known a new redistricting case was likely to reach the state’s highest court. Earlier in the month, Hochul filed a brief in support of the Democrats’ attempt to redraw congressional lines.
The state Senate Judiciary Committee hearing was the final hurdle in a set of tense moments that followed the Democratic-controlled body issuing its first-ever rejection of a governor’s pick to the state’s highest court. Hochul had initially nominated Hector D. LaSalle, presiding justice of the Appellate Division’s Second Judicial Department, as the next chief judge.
State Senate Democrats turned down the nomination, which mostly centered around concern he was too moderate in philosophy and approach at a time when the U.S. Supreme Court continues to move to the political right. Senate Democratic leadership wanted a progressive bulwark standing against Washington.
Instead, Rowan D. Wilson, widely viewed as a progressive associate judge on the Court of Appeals, was nominated as chief judge. In tandem, Hochul also announced Halligan as her pick to join the court. The unprecedented dual selections from a single list of vetted nominees — tweaking a job-application process set in law for four decades — prompted legal concerns from outside observers and Republicans, who argued the mechanism the governor used was unconstitutional.
Senate Republicans chose to avoid litigation on the appointment process. They acquiesced to Halligan, who they quietly believed would likely be the most moderate jurist they would get under Democratic control.
But recent events have rekindled frustrations from Republicans.
“Unfortunately, this is something that doesn’t pass the smell test,” state Sen. Anthony Palumbo, the ranking Republican on the Judiciary Committee, said in an interview Thursday. “It appears as if politics have really taken control of the Court of Appeals.”
The Long Island lawmaker described the vouching in of Renwick using phrases such as “the die has been cast” and “the fix is in.”
Former U.S. Rep. Lee Zeldin, who challenged Hochul for governor last year, expressed similar concerns about the case.
“The mystery behind why the judge is recusing herself is one that merits answers,” Zeldin told reporters in the state Capitol earlier this month.
State Senate Judiciary Committee Chairman Brad Hoylman-Sigal, D-Manhattan, rebuffed the Republican characterizations when contacted by a reporter on Friday.
“I would prefer judges recuse themselves rather than not,” Holyman-Sigal said. “It helps build confidence in the court.”