In early 1998, Janet Kassar, a paralegal at the Manhattan firm of Connors and Sullivan, got a phone call from Governor George Pataki.

The governor asked if she would serve on the Commission on Judicial Nomination, the 12-person panel that solicits, interviews, investigates, and ultimately nominates seven candidates for any vacancies on the New York State Court of Appeals.

“This is not a process where I was told exactly what’s going on,” said Ms. Kassar, who is only peripherally involved in partisan politics. “I was on a general state group of, I don’t know what you call them, Conservative Party delegates or something, in Kings County,” she said. “But as for the Commission, I don’t know how I got the appointment. I’d be lying to you if I said I did.”

So why would a governor appoint as a judge picker for New York’s highest court a paralegal whose political sympathies with his own were tenuous at best? His staff declined repeated requests for an explanation.

But Ms. Kassar might well have the answer.

“Now if you want to know, is my husband active in the Conservative Party? Yes. He’s the Kings County Conservative Party leader,” she said.

STAR CHAMBER

Created in 1978, after New York voters passed a Constitutional amendment that ditched statewide elections for Court of Appeals judges, the Commission was supposed to remove politics from an electoral system that had allowed deep-pocketed outsiders like Jacob Fuchsberg — a trial attorney who won a seat on the court in 1974 after getting on the primary ballot by petition — from spending their way onto the court. (Until the late 1960s, when primaries were introduced, petitions had been illegal.)

Under the current structure, the governor and chief judge each pick four committee members. Four other appointments are shared — one each among the Senate and Assembly minority and majority leaders. Members serve staggered, one-to-four-year terms that can be renewed indefinitely, and no more than two of the governor’s and chief judge’s picks are supposed to be from the same political party.

 
Candidates sometimes put their own names forward, and commission members often solicit candidates. Once the commission approves finalists, the governor typically chooses one from the seven — though that protocol was rejected at least once.

Court observers contend, however, that the result has not quite comported with the ideal — that far from removing politics from the process, the Commission actually perpetuates its influence. And that’s to say nothing of a confidentiality policy, ostensibly to protect applicants’ privacy, that at times resembles a Star Chamber.

This trend, observers say, will continue in January upon the retirement of judge Albert Rosenblatt. That’s when Governor-elect Eliot Spitzer will makes his first appointment to the court from a list of candidates that was significantly shaped by his predecessor.

“This is a system that works how it was designed to work. It’s not nefarious,” said Luke Bierman, a fellow in government law and policy at Albany Law School’s Government Law Center. “It’s not supposed to promote merit or encourage the best possible people in New York to apply. It’s supposed to accommodate political influences similar to those that existed in the election system, before politicians lost control when primaries were introduced in the early ’70s.”

Bierman’s review of the first 14 appointments to the court, for example, showed that successful candidates rarely applied more than once or twice to the Commission before getting appointed, a phenomenon that has remained constant since. To many, this suggests that the panel is being circumvented, its members favoring pre-selected winners, rather than vetting an “A-list” of top contenders.

On the other hand, as Bierman puts it: “Just because people get appointed on their first or second nomination doesn’t mean they are bad judges. If it’s not the ‘merit selection’ system as advertised, maybe it works the way it was designed to work.”

Another clue to the process lies in demographics, said Bierman. In years past the Commission rarely named multiple female or African American finalists — except during years when the governor actually ended up selecting one. To some, the unusual attention implies orchestration.

PATAKI’S PICKERS, SPITZER’S CHOICE

This year, two Democratic African American judges are on the Commission’s list — Juanita Bing Newton, the administrative judge of the New York City Criminal Court, and Theodore Jones, Jr., a Supreme Court Justice in Brooklyn. The context: Mr. Pataki’s controversial decision not to reappoint the court’s only African American jurist, George Bundy Smith, last September.

Although Spitzer has said that race is only one of many factors involved in his decision, some court observers surmise that the duo forms his short list.

Rounding out this year’s list of candidates are Brooklyn appellate division judge Steven Fisher, a Democrat who presided over the notorious Wendy’s murder case that landed killer John Taylor on New York’s death row; Democratic Albany attorney George Carpinello, who was a classmate of U.S. Supreme Court Justice Samuel Alito at Princeton; Manhattan Appellate Division judge Richard Andrias, also a Democrat; Thomas Mercure, a Republican Appellate Division judge in Albany; and James Yates, a Democratic Supreme Court judge in Manhattan.

Because the Chief Judge would be presumed to be politically neutral and promote jurisprudential excellence in his or her appointments to the Commission, while the governor and legislative leaders might be more politically inclined, the Commission almost inherently tilts towards the governor’s partisan bias.

In addition to Kassar, the current Commission features Pataki appointees John F. O’Mara, a Republican former Court of Claims judge and counsel to Pataki; Republican Michael C. Finnegan, who is Pataki’s former chief counsel; and Joseph Jiampietro, a registered Democrat who is the CEO of a Utica-based metal recycling company and a political contributor whose largesse has benefited national Republicans such as former U.S. House Speaker Newt Gingrich and former Senator Phil Gramm.

Chief Judge Judith Kaye also gets four appointments to the Commission. They include: retired Republican attorney Edward Weinstein, formerly a senior partner at Deloitte and Touche; former appellate division judge E. Leo Milonas; Richard Nathan, chair of the Rockefeller Institute, an Albany think tank; and Margaret Morton, General Counsel of the New York City Department of Cultural Affairs.

The current legislative appointments are all lawyers: attorney Alan Mansfield, of Greenberg Traurig, appointed by then-Senate Minority Leader Martin Connor; David M. Schwartz, of the Schwartz Law Firm, appointed by current Senate majority leader Joseph Bruno; liberal activist attorney Gerald Lefcourt, appointed in 1996 by current Assembly speaker Sheldon Silver; and Patterson Belknap partner Edward F. Cox, the son-in-law of the late President Richard Nixon, who was appointed by then-Assembly minority leader John Faso.

While Pataki has made his picks to overhaul a court he once described as “consistently coming down on the side of a perfect trial as opposed to a just trial,” Judge Kaye has looked for people who, in her words, “knew something about the world of the judiciary.”

“I think every one of us has a selfish interest in the Commission, but I think mine is the greatest, because who they pick will be my colleagues,” said Judge Kaye. “I think I have four outstanding people, because I put a lot of thought into it. And I think the fact that I don’t really know their political parties should count as a plus, not a minus.”

But Bierman doesn’t fault political picks. “I don’t think it’s surprising that a person who has appointments to a group like this will include people who are sympathetic to their views. That’s the nature of a political process.”

“Governors win because they represent particular views,” he continued. “Judges come at this from a different perspective. I don’t think that just because a governor makes appointments like this, you can assume that they’ll do the wrong thing.”

THE CURRENT CROP

Interestingly, none of this year’s candidates can be considered a Pataki conservative.

“What’s interesting is this is a commission with Pataki’s input, yet there aren’t any hardcore conservatives on it,” said Vincent Bonventre, a court watcher and Albany Law School professor, as he examined this year’s list of finalists. “On the lists that Pataki has had, there’s usually a couple.”

Indeed, both Governor Mario Cuomo and Pataki, who stacked the Commission with political allies, fulfilled wildly different mandates with the court. Cuomo opened its doors to women and minorities, while splitting his picks between political parties. And Pataki appointed five conservative judges cut from the ‘law and order’ mold.

In more than 25 years of Court of Appeals appointments, only once — in 1994 with judge Carmen Beauchamp Ciparick, who had recently ruled that abortion was protected under the New York State Constitution — has the governor’s pick received significant opposition by the Legislature during the typically rote confirmation hearings. (She was still confirmed.)

To Bonventre, this is the ultimate proof that the appointment process has devolved into a rubber stamp.  “Who the governor wants, the governor gets,” he said.

“Within the last few vacancies, virtually nobody applied,” he said. “The president of the New York City Bar Association wrote a public letter urging lawyers to apply. Can you imagine? This is the highest court in New York! And lawyers had to be urged, pleaded with, because nobody was applying, because they knew it was fixed. There was probably somebody that the governor had in mind, and voila, their name would appear on the list, and voila, the governor would pick that person.”

Does this mean there’s a secret frontrunner this year? Or that an overwhelmingly Republican Commission is trying to foist a Democrat to its liking onto the bench — possibly Theodore Jones, Jr., who notoriously sent Transit Workers Union chief Roger Toussaint to prison after last year’s  strike, a move endorsed by Governor-elect Spitzer?

Of the oddity of this year’s list, William Hellerstein, a Brooklyn Law School professor, former attorney-in-charge of the Legal Aid Society's Criminal Appeals Bureau, and five-time applicant to the Court of Appeals, said, “Despite the fact that the Commission is overwhelmingly Republican, it sees its function as getting into closer tune with what governor coming in wants. And that’s to their credit. If you look at it cynically, you could stuff the governor. You know Spitzer’s gonna have a little more liberal bent. So you could force him to choose from six conservatives.”

But could they really?

In 1982 the Commission tried such a move with Mario Cuomo, who had just taken office, having made clear his desire to nominate women and minorities to the court. Disappointed by the four white, male candidates, Cuomo sent the names back and asked for a new batch. The Commission balked, and ultimately Cuomo appointed Richard Simons, a Republican. But beforehand, he waged a drawn out fight in the media, and pushed a bill through the legislature that increased the number of names the panel recommends to seven.

Given Spitzer’s overwhelming victory at the polls, it’s easy to imagine a similar donnybrook if he were to receive the kinds of finalists that Pataki’s panel has typically put forth during the past 12 years. Star chambers know their limits.