What Went Wrong
Can It Be Fixed?
By Henry J. Stern
March 1, 2010
Three days ago we wrote on the Paterson issue under the headline: TABLOIDS PURSUE GOVERNOR, SAY HE SHOULD RESIGN BUT PATERSON LIKES THE JOB. That's about the way it is today, with the governor insisting that he can function while everybody else believes, to a greater or lesser degree, that he can't.
The 25th Amendment to the United States Constitution deals with Presidential disability, as well as procedure for the selection of a vice president to fill a vacancy. It was adopted in 1967, and first used in 1973, when President Richard Nixon appointed Gerald Ford as vice president to succeed Spiro Agnew, who had resigned because he was caught taking bribes six years earlier, when he was Governor of Maryland. As part of a plea bargain, he resigned. The 25th Amendment was relied on a year later when Ford, who had become President on the resignation of President Nixon in August 1974, nominated Nelson Rockefeller, four time governor of New York State, as vice president. Rockefeller served the balance of Ford's term, but was dropped from the GOP ticket in 1976 because of conservative opposition. The Republicans nominated Senator Robert Dole as Ford's running mate. They lost to Carter-Mondale, who in turn lost four years later to Reagan and Bush the elder.
New York State has no such provision in its lengthy Constitution, and it was believed, and practiced, for 200 years that a vacancy in the office of Lieutenant Governor would remain to the end of the gubernatorial term. There are provisions for the offices of Comptroller and Attorney General to be filled by the legislature, which were employed most recently when Tom Di Napoli was selected after Alan Hevesi pled guilty to a felony and was forced to resign. Before that, Carl McCall had been chosen Comptroller, succeeding Ned Regan, who resigned, and Oliver Koeppel was selected as Attorney General after Robert Abrams' resignation. Regan went on to become president of Baruch College, while Abrams joined a prominent Wall Street law firm and served as chairman of Citizens Union Foundation.
Governor Paterson's appointment of Richard Ravitch as Lieutenant Governor on July 6, 2009 was unprecedented. State Attorney General Andrew Cuomo thought it was illegal, and said so. The governor's action was upheld, however, by a 4-3 vote of the Court of Appeals, the deciding vote being cast by the new chief judge, Jonathan Lippman, who picked up one Republican vote to join him and two fellow Democrats. Lippman had been selected Chief Justice by Paterson at the urging of Speaker Sheldon Silver, a friend of Lippman since their childhood on the Lower East Side. Silver had previously arranged for Lippman's bipartisan election to the Supreme Court from Westchester County, and later, along with Chief Judge Judith Kaye, recommended him for presiding justice of the Appellate Division's first department, a position Lippman held before being nominated for Chief Judge by Governor Paterson on January 13, 2009, and confirmed by the State Senate on February 12. As chief judge, Lippman succeeded Kaye, an appointee of Governor Mario Cuomo and the first woman to head the state's judicial branch.
PAST JUSTICES: The chief judge of the Court of Appeals from 1927 to 1932 was Benjamin Nathan Cardozo, who was then appointed to the Supreme Court of the United States, where he served until his death in 1938. Cardozo had been elected to the Court of Appeals in 1917 to fill the seat of Samuel Seabury, who had resigned. Seabury, a civic leader, was instrumental in the selection of Fiorello LaGuardia in 1933 as the fusion candidate for mayor. Justice Cardozo was succeeded on the high court by President Franklin D. Roosevelts appointee, Felix Frankfurter, a City College graduate who was a professor at Harvard Law School. New York State Governor Charles Evans Hughes (1907-1910) served as an Associate Justice of the Supreme Court from 1910 to 1916, and Chief Justice of the United States from 1930 to 1941.
Why, one may ask, are the judges and justices of the last century so much more highly regarded than those in office today? A half century ago, when I was starting out as a law clerk, public officials in New York State were widely respected, except for the relatively rare miscreant. We had governors like Averell Harriman and Nelson Rockefeller. Before that came Alfred E, Smith, Franklin D. Roosevelt, Herbert H. Lehman and Thomas E. Dewey. These men were giants compared to what we have today. They also did not spend themselves into eight billion dollar deficits, with the aid of pliant legislators submissive to unions and other lobbies.
One problem is that the current government and the man who selected him were not capable of transacting even the ordinary business of government, one because he was too brash, self centered and arrogant to deal with people or problems, the other because he simply is so far out of it that it would appear malicious even to tell the truth. It makes little difference whether he stays in office because his influence would be minimal, although if he acted wisely and forcefully he could be a good influence because he is now immune to threats of political retaliation or the need to raise funds.
It was absolute folly for a high-ranking public official to telephone the complainant in a domestic violence case against his close adviser the day before she was supposed to appear in court. To deny that he was the caller because she called in response to his aide's request is disingenuous at best. It is a crime to tamper with a witness, although it is possible that he was unaware of that fact, and that what remains of his staff was unwilling or unable to enlighten him, possibly because one of them had a personal interest in the matter.
It feels faintly ridiculous even to write about these matters. They are events which have assumed importance because they affect state government. There is a kind of similarity to the problems Governor Spitzer faced when his ordinary desires and extraordinary means of attending to them became subjects of public mastication.
The modern example of mixing pleasure with politics is President Clinton. Without excusing Clinton, Presidents Franklin D. Roosevelt and John F. Kennedy engaged in similar practices for longer periods of time, and they are regarded as saints. Second, there was no victim to complain about Clinton's conduct, and the publicized allegations were elicited only by threatening the prosecution of a young woman who had committed no crime. Third, President Clinton had accomplished considerable good in seven years in office, and was and is highly regarded for his public service. That is not the record of the two New York governors, and if Attorney General Spitzer's record were more closely scrutinized, it is possible that people would think differently about his selective prosecutions and use of the media to intimidate corporations. The loss of thousands of jobs at Marsh McLennan is attributable to his allegations.
Why, we ask, cant these people get to governing? Why cant they deal with the deficit, due in part to economic conditions and in part to their own overspending?
Our guess is that they will wait until the last minute, and act only when insolvency is imminent. They will use every device to conceal shortfalls. They may resort to burdensome taxation which will further reduce the states already diminished competitive effectiveness.
It is easier to complain than to make suggestions. In an effort to be helpful, we offer twelve suggestions to deal with the financial crisis. Some are old and some are new.
They should all be addressed by the state legislature and by the governor in the time remaining to them. Other recommendations, on a constitutional convention, ballot access, gerrymandering and election reform, are not listed here because the primary concern today is the huge budget deficit the state faces.
First, a freeze on wages and pensions during the period of emergency.
Second, the imposition of the sugar in soda tax, to fight obesity.
Third, collection of taxes on cigarettes sold for use outside Indian reservations.
Fourth, repeal of the Wicks Law which raises the costs of construction
Fifth, tort reform, particularly with regard to suits for malpractice.
Sixth, cases against the city should be tried in the Court of Claims, which is where claims against the state are heard.
Seventh, stricter limits on overtime, especially in an employee's final year
Eighth, simplification of procurement procedures
Ninth, harsher penalties for those who violate the public trust
Tenth, combine units of government at the local level
Eleventh, close unnecessary and underutilized state facilities
Twelfth, consider privatization wherever it is wise and economical.
If alcoholics and drug, gambling and sex addicts can undertake a twelve step program to cure their habits, perhaps the state legislature can do the same to deal with its acute spending disorder.
StarQuest #651 03.01.2010 1479wds