Surprise! Paterson Wins One, 4-3

Surprise! Paterson Wins in Court
After Abandonment by Obama



By Henry J. Stern
September 22, 2009

The New York State Court of Appeals decided this morning, by a 4-3 vote, to legitimize Governor Paterson’s July 8 appointment of Richard Ravitch as Lieutenant Governor. The decision came as a surprise since two lower courts had ruled the appointment invalid under the State Constitution.

With one exception, the vote followed party lines. Three Democratic appointees voted to uphold the appointment, joined by one Republican. Three Republican appointees voted to invalidate the action. The swing vote was Judge Susan P. Read, who was appointed to the Court of Appeals by Governor Pataki in January 2003, the first month of his third term.

When a case arises which is highly political, judges tend to vote in an outcome-based manner. The classic example is Bush v. Gore (2000) where the Supreme Court decided, 5-4, not to continue to dispute election results in Florida, which favored George Bush by an extremely narrow margin. In 1930’s cases, the Supreme Court gradually switched from invalidating President Roosevelt’s New Deal legislation to upholding similar laws. As the newspaper humorist Finley Peter Dunne once wrote: “The Supreme Court follows the election returns.”

We had opined that existing law does not permit the Governor to make such an appointment unilaterally. At the same time, we said that in political cases such as this, it is impossible to predict what a high court unbound by precedent as lower courts are, will decide.

We first heard the news on the New York Times blog at 9.08 a.m., as reported by Jeremy W. Peters and Sewell Chan. The Times lead, updated at 10:36 a.m., called the Court of Appeals decision “a stunning reversal”.

It was believed, until today, that even if the Court of Appeals decided the case on a political basis, the four Republicans would probably support the lawsuit, which was brought by Senator Dean G. Skelos, the Republican Senate leader. But one the four voted with the Democrats, and that decided the issue.

We are not saying that either side in this case is right or wrong. Judge Read is highly regarded, and her vote deserves to be considered as principled. It is surely no less principled than the decision made by her six colleagues.

A person arriving from Mars would reasonably conclude that it makes more sense to have a Lieutenant Governor than a vacant office for three years. The current Constitution has no provision for filling the vacancy, although it does give the legislature authority to elect a new State Comptroller and Attorney General in the event that some misfortune befalls the person elected to those offices, or they decide there are greener pastures elsewhere.
No Governor has appointed a replacement Lieutenant Governor in the 221 years since New York State ratified the Constitution of the United States. Always cautious, New York was the 11th of the 13 original colonies to ratify the document. (North Carolina was the 12th and little Rhode Island the 13th and last.) It is true that no appointment was ever made, because no one believed the Governor had that authority, but that is not to say it is specifically prohibited, and there is language giving the governor a general power of appointment for vacant public offices.

Governor Pataki’s first Lieutenant Governor was Betsy McCaughey Ross, now a fighter against infectious disease in hospitals. After one stormy term, he replaced her on the Republican ticket with Judge Mary O. Donohue, from whom little was heard in the ensuing eight years. In December 2006, at the end of their term, Pataki appointed Donohue to the State Court of Claims.

The Court of Appeals decision came as a substantial and unexpected boost for the beleaguered Governor Paterson, who had just been humiliated by President Obama in a series of painful and public scenes as the President visited upstate New York. An ancient but unattributed proverb tells us that “it is always darkest just before the dawn.” Paterson, the decided underdog even before President Obama’s laying of hands on Attorney General Andrew Cuomo, had been left almost friendless in the harsh world of politics. As of today, he has a highly qualified Lieutenant Governor at his side. Can two men turn the tide? And who will be Cuomo’s choice for LG? John Sampson?

The next order of state business is dealing with the $2.1 billion deficit for this fiscal year, not next year. Paterson and Ravitch have a chance to stand tall, whether or not they are over-ruled by Assembly Speaker Silver (called the real governor anyway) or the volatile and unstable Senate which appears to be under the sway of Pedro Espada. Paterson’s highest approval ratings came in his early months when he spoke out against state spending. When he caved to the Legislature, his ratings began their so far uninterrupted decline. If he is to have any chance next year, he will have to stand for something. It is likely, though, that he will take the best carrot he is offered, rather than undertaking a campaign that would be derided as quixotic. But, in politics as in sports, you never know for sure who will come out on top. The latest evidence in support of the principle of uncertainty is this morning’s decision of the Court of Appeals.





StarQuest #598 09.22.2009 875wds