When does “No” mean “N0”?
On Oct. 2, NY1 aired footage of Governor Andrew Cuomo saying, in response to a reporter’s question, “I don’t support” the age amendment. The amendment, which would raise some judges’ required retirement age to 80, will be before voters on Nov. 5.
Yesterday, when NY1 reporter Zack Fink again put the question to the governor at a press conference in Albany, Cuomo said, “I haven’t taken a position on it.” View Cuomo’s press conference.
Sure, Cuomo put a lot of qualifiers around that “no position” position. His full statement was: “It’s not my referendum. I wasn’t involved in it. I understand the issue. I think there are serious questions raised by it, but I haven’t taken a position.” Less than a week earlier, a spokeswoman for Cuomo had told the Daily News that Cuomo’s “reservations” about the amendment “remain.”
But, in the 21 days between the two statements, Cuomo has been telling editorial boards that the amendment covers the “Wrong Courts”, helps the “Wrong Judges” and comes at “the Wrong Time.” Read my Oct. 18 story.
I doubt Cuomo told the editors and reporters who assembled for those sessions, “Oh by the way, tell your readers to vote their conscience.”
This is a classic case of a politician seeking to have it both ways—saying he has “no position,” while working behind the scenes to defeat the amendment. Such circumlocution can’t help but make voters even more leery about what their elected leaders tell them.
Nonetheless, one can’t blame the Governor for opposing the measure. The measure is tainted by its timing. With Chief Judge Lippman’s 70th birthday coming in 2015 and Judge Eugene Pigott’s the next year, the measure has a known impact—if adopted, it would allow both judges to continue to sit on the state’s highest court until well past the end of a second Cuomo term, which seems likely.
Unsuccessful efforts to raise the age limit go back at least 30 years. Instead of making the amendment effective immediately, what would have been the harm in pushing the start date back to 2018 when a successor of unknown political affiliation would likely be Governor.
Nonetheless, I am tempted to say vote for the amendment because Lippman has been such a terrific chief judge. With a gift for gab and formidable persuasive powers, Lippman has been able to cobble together majorities on momentous issues that ordinarily would split the Court down liberal/conservative lines.
Since 2009, when Lippman became chief judge, the Court has had four Republican judges and three Democrats, though some of the faces have changed. With four-judge majorities, Lippman has written opinions requiring the police to obtain a warrant before affixing a GPS device to a suspect’s car; upholding a Democratic governor’s power to appoint a lieutenant governor when the position becomes vacant; and allowing a lawsuit to move forward which challenges the system of providing counsel to indigent criminal defendants in five counties as violating the Fifth Amendment right to counsel.
But voting for the man rather than the issue wouldn’t be very principled, would it? After much back and forth, I have decided to vote against the amendment, because as Victor Kovner argued (click here for earlier story), the amendment would give an extra four years to Supreme Court justices, who almost invariably are permitted to sit until they are 76. The leaves some 760 lower court judges out in the cold, who must retire at age 70 after years of working in the state’s most hard pressed courts, particularly, Family and Criminal courts. Despite Lippman’s commitment to go back to the well a second time to raise the age limit for those judges, the chances of success seem remote.
I hope that is clear. It’s a “position,” not a “reservation.”