Too liberal for Pataki, Thomas Mercure might prove
too conservative for Spitzer.
By Mark Thompson

Thomas Mercure was a nominee for the Court of Appeals when Governor George Pataki filled the last vacancy in August. Eugene Pigott got the nod, but Mercure is rumored to have been runner up.

“The problem was, he’s not a rabid conservative,” said one attorney, who asked to remain anonymous. The majority opinion that Mercure wrote in January 2006 for a divided panel of the Appellate Division, Third Department, where he has sat for 19 years, “almost certainly doomed his chances with Pataki,” the attorney added.

In that ruling, Catholic Charities of the Diocese of Albany v. Serio, Mercure upheld a state law requiring faith-based organizations that provide their employees with group insurance coverage for prescription drugs to include coverage for prescription contraceptives. That certainly imposes a burden on the beliefs of religious groups that oppose contraception, Mercure acknowledged. But the law, which has a worthy goal of increasing women's access to health care “does not target religious practices” so it is not unconstitutional, he declared.

Less than four months after getting passed over by Pataki, Mercure found himself on the list of nominees for a vacancy on the court yet again. By most accounts, including his own reported in his hometown newspaper, Mercure will most likely be left by the wayside yet again. This time the problem is he’s a Republican, the token member of his party on the list of nominees from which the incoming Democratic governor, Eliot Spitzer, will pick.

Whether he ever makes it to the Court of Appeals or not, Mercure is, by all accounts, a superb judge. Even liberals say he would have been an excellent choice (for Pataki anyway).

Mercure graduated from St. Michael’s College, a Catholic liberal arts school in Vermont, in 1965, and picked up his law degree from Georgetown University Law Center three years later. He maintained a private practice in his home town of Hudson Falls, in rural Washington County on the Vermont border, from 1969 until he was elected to a seat on the county court in 1981. He also took a part-time job in the county district attorney’s office in 1973 and was the county’s chief prosecutor for his last four year’s in practice.

He is remembered to this day for being the first district attorney to tackle assault and contraband cases emanating from the two major state prisons in the county, said Kevin Kortright, the county’s current DA.

“He has the ultimate judicial demeanor,” Kortright added. Off the bench, he is “always friendly.” On the bench, “he asks the right questions and gets to the facts of the case. And you can see from his record, he’s not afraid to make a decision.”

Ray Kelly, an Albany criminal defense lawyer and president of the New York State Association of Criminal Defense Lawyers, seconded Kortright’s assessment. “He’s got a very good manner. He’s always well versed on the questions that are pertinent to the outcome of the appeal. He has a history of never having been reversed when he’s in the dissent and the case goes to the Court of Appeals,” Kelly said. “He’s right on the money as far as the law is concerned, and he calls it as he sees it. Whatever the law says, that’s how he’s going to vote.”

Appellate panels on which he sat rendered fewer than a dozen split opinions in the past year. Mercure’s vote in those cases supports the suggestion that if he has any ideological bias at all, it is not in a conservative direction. He ruled against Catholic Charities in a 3-2 vote. He joined colleagues on the side that favored reversing two criminal convictions because of trial errors, and he voted to grant review of a parole denial in another criminal case. Mercure sided with the state against a landowner in an environmental case.

In one of the most closely watched cases that came before his court in the last year, Samuels v. New York State Department of Health, Mercure joined a unanimous panel in rejecting the plaintiffs’ claim that the state Constitution requires the state to permit same-sex couples to marry. But one of the lawyers for the plaintiffs, Roberta Kaplan, of Paul, Weiss, Rifkind, Wharton & Garrison, praises Mercure anyway. “I certainly don’t agree with the decision. But I think he’s a wonderful judge and great guy. I have the utmost respect for him,” she said.

The Appellate Division, which was upheld in the case by the Court of Appeals, gave the plaintiffs a fair hearing, she said. “The questions were all excellent. The judges clearly were well prepared. And the tone of the opinion was so much more respectful than the opinion from the Court of Appeals, which was shocking, quite frankly.”

She agreed that Spitzer almost certainly will pick a Democrat who is more liberal than Mercure. “It’s a shame Mercure wasn’t chosen last time,” Kaplan added.