Former Presiding Justice Rolando T. Acosta’s recent op-ed in the Daily News addresses a sea-change in vouching-in policy at the New York Court of Appeals, put into place by Chief Judge Rowan D. Wilson (“A better way for N.Y.’s top court,” Oct. 28). The state Constitution authorizes the court (in practice, the chief judge) to designate (“vouch in”) any justice of state Supreme Court to serve as a substitute judge during the temporary absence or inability to act of any of the court’s judges in a particular case (usually, a judge’s recusal).
There are two recusal-related situations where the court must vouch in a substitute judge: four judges are unable to agree on a result, necessitating reargument before a full bench; and three judges have recused in the same case, depriving the court of a quorum. Otherwise, the decision is discretionary, and the court has typically vouched in sparingly.
Now, Chief Judge Wilson has announced a policy to designate a substitute judge in a case as soon as a Court of Appeals judge recuses. Justice Acosta applauds this approach as a “better way,” principally because it forestalls rearguments. While I yield to no one in my admiration for Justice Acosta, I do not share his enthusiasm.
I speak from the perspective of someone privileged to sit on our state’s highest court for 12 and a half years, six under the leadership and tutelage of Chief Judge Judith S. Kaye, and six and a half with Chief Judge Jonathan Lippman at the helm. When I joined the court in January 2003, Chief Judge Kaye had been there for almost 20 years, nearly 10 of them as chief judge.
Her devotion to the court as an institution was profound; her knowledge of the court’s time-tested practices and traditions was encyclopedic. My understanding of vouching-in “best practices” derives from conversation with Chief Judge Kaye when I was a rookie associate judge, and observation of what she and Chief Judge Lippman actually did.
During my six years with Chief Judge Kaye, the court vouched in a single Appellate Division justice in one case where there were two recusals. This was consistent with Chief Judge Kaye’s view that vouching-in was generally appropriate only when there was no choice, because Court of Appeals cases were meant to be decided by Court of Appeals judges. The case was not high-profile. The vouched-in justice was a well-respected senior jurist, which eliminated any appearance that the court was promoting a judge auditioning for a future vacancy.
Chief Judge Kaye explained to me that a vouched-in justice participated fully in oral argument and conference and, of course, voted on the disposition of the appeal, but was ineligible to write the opinion of the court. This was always unnecessary and would inevitably diminish the opinion’s precedential value no matter how masterfully it was written. This thinking appears to have changed, too, since a vouched-in justice recently authored the court’s majority opinion, a first-time-ever occurrence.
During the six and half years that I served with Chief Judge Lippman, I sat with Appellate Division justices four times. Two were rearguments. In the first of these, the case was heard in June and reargued in late August; the court handed down its decision in September. In the second, the case was argued in February and reargued in June; the court handed down its decision on July 1.
In short, the court’s scheduling priorities insured against excessive delay in the resolution of these reargued appeals. While reducing 12 to 18-month delays caused by rearguments has been advanced as a reason for the new vouching-in policy, lengthy delay is not inevitable; it is a scheduling choice.
To put the five occasions when I sat on a mixed bench in context, during my 12 and a half years on the court I participated in more than 300 appeals in which one or more of my colleagues recused. Thus, the new vouching-in policy, if truly followed at every opportunity, guarantees a great many hybrid decisions. Simply to vouch in much more frequently than past norms but not at every opportunity, however, inevitably raises questions about what criteria are being used to select those cases (and justices) that make the cut.
At the most fundamental level, the court’s duty is to produce four votes for a result in each case that it considers. The assumption underlying the new vouching-in policy seems to be that the court is no longer capable of doing this routinely when shorthanded, so a preemptive measure is necessary.
Somewhere, Judith Kaye weeps.
Read is an attorney in private practice. She served as associate judge on the New York Court of Appeals from January 2003 to August 2015.
Susan Read
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