Reprinted with permission from the Times Union
ALBANY—In the judicial district that runs from the mid-Hudson Valley to the Capital Region, there are 18 sitting State Supreme Court justices. Of those, three are women—including the only African-American. The other 15 are white men.
Columbia County attorney Cheryl Roberts had appeared likely to win election in November. Ms. Roberts believes it would be a victory not just for gender diversity, but for geographic equity as well. But in what has been described by some as a breach in a decade-old agreement, recent political machinations by several neighboring county Democratic Party leaders may put another white male from Albany, attorney Justin Corcoran, in the powerful trial court post.
The dispute has split Albany power brokers who are normally allies. Ms. Roberts supporters argue a broader split among Democrats could open the door for Republicans to pick up judgeships.
Mr. Corcoran’s backers say his candidacy is about good government, not a power grab. The Judicial Center in Albany, the state of seat government, sees far more cases per year than Columbia County handles. Albany has in recent years emphasized gender diversity when women were qualified, they argue, but in this case Mr. Corcoran is simply better equipped for the position.
Under the quirky judicial selection system, Democratic primary voters will never get the chance to directly choose between Ms. Roberts and Mr. Corcoran at the polls. Instead, a slate of 73 judicial delegates who ran unopposed for the positions will convene at a judicial convention August 9.
The delegates will elect a slate of three Democratic judges to run in the November general election against Republicans. So the battle for the Democratic nomination over the next two months is solely one for delegates’ hearts and minds.
The judgeships are highly sought-after, carrying a 14-year term and an annual salary that was just bumped to $208,000.
As incumbent state Supreme Court judges up for a new term, John Egan and Michael Lynch are nearly certain to be Democratic nominees. A third position is open because Justice Richard Mott of Columbia County is about to hit age 70, when by law he cannot run for reelection.
As of early this year, Ms. Roberts seemed like the Democrats’ consensus pick to replace Judge Mott because of a 2009 handshake deal.
When the third judicial district was more evenly split between Democratic and Republican voters, the parties would often cross-endorse each others’ candidates — assuring party bosses on either side that some picks would win. As the greater Capital Region and the rest of the district began to trend bluer, however, the arrangement with Republicans no longer made sense for Democrats, who could routinely win without cross-party help.
In 2009, the Democratic leaders of the judicial district’s seven counties struck a deal divvying up the seats among themselves. The idea was to maintain some geographic diversity among the judgeships, given that population-heavy Albany controls about a third of the delegate convention votes by itself.
According to former Rensselaer Democratic chairman Tom Wade—who spearheaded the 2009 agreement—it stipulated that seven of the party’s selections were reserved for Albany County picks, three for Rensselaer, three for Ulster, one for Sullivan, and one to cover both Columbia and Greene counties. (Schoharie County got no judge pick.)
When a Democratic judge from a county would leave the bench, that county’s party leaders got to pick the replacement nominee.
With Columbia County’s Judge Mott leaving the bench, Ms. Roberts became the county’s pick to replace him. She is a former town judge and corporation counsel in Hudson, who now runs a New York City nonprofit that advocates for people with serious mental illness in the criminal justice system.
The obstacle to her nomination is rooted in a five-year-old Democratic defeat.
In 2014, Justin Corcoran was the Albany Democrats’ pick to run for a state Supreme Court seat, which was being vacated by an Albany judge. But Mr. Corcoran lost that year’s general election to a Republican, Lisa Fisher, of Greene County.
Mr. Wade said there was never any provision in the 2009 agreement that rearranged the order of county selections if a Republican happened to win a seat. But Mr. Wade and several others involved in the original deal, which was never formally put in writing, have left party leadership—and its contours are now being contested.
Although Judge Fisher is a Republican, Mr. Corcoran supporters argue that she still counts as being the single judge allocated to Columbia and Greene counties under the Democrats’ 2009 deal. If Columbia County Democrats want a judge pick, they argue, they can wait to defeat Judge Fisher at the ballot box when her term is up—in 2028.
Although Mr. Corcoran was the candidate who lost in 2014, his supporters believe they are owed the seat Albany Democrats lost in 2014. The county’s party leadership is again pushing Mr. Corcoran to take back the Albany Democrats’ seventh Supreme Court post.
Albany County Democratic Leader Jack Flynn acknowledged that he initially told other party leaders that Columbia County would get this year’s pick. But Mr. Flynn and other Democratic Party leaders then came to the conclusion that Albany was actually owed a seat under the agreement, he said.
On January 26, the judicial district’s Democratic Party leaders met at Red’s, a seafood restaurant in Coxsackie. Of the five who attended, four of them — from Albany, Ulster, Rensselaer and Greene counties — decided to back Albany’s claim to the selection. The only holdout was Keith Kanaga, the Democratic chair in Ms. Roberts’ home county.
Mr. Kanaga told the Times Union he was worried that his fellow chairs’ move could split Democrats and help a Republican candidate once again win a judicial seat in November. He’s concerned that the problem could be most pronounced among woman voters. An all-male Democratic judicial ticket could dampen turnout.
“So I’m worried,” Mr. Kanaga said. “I’m in the business of getting Democrats elected.”
In deciding to back Albany County, Ulster County Democratic chairman Frank Cardinale was concerned about his own county’s interests: If Albany didn’t take over the Columbia County pick this year, Albany Democrats might take an Ulster County seat in the future.
“They wanted to keep everything on pace,” said Mr. Flynn, the Albany chairman.
But Mr. Flynn said that Albany Democrats never actually made any threat to take a seat from Ulster. Mr. Cardinale, the Ulster Democratic chairman, did not return a phone call.
Mr. Corcoran–a distant relative of Dan O’Connell, the legendary Albany Democratic boss — had done a significant amount of campaigning in recent months among rank-and-file Democratic activists in Ulster and Rensselaer counties.
“Justin Corcoran has been desperate to get elected, and was able to convince people in Ulster and Rensselaer counties that Albany was upset with not having this seat – when nobody actually was,” said Tom Keefe, a retired former city court judge in Albany who supports Ms. Roberts.
Rensselaer County Democratic chairman Mike Monescalchi has become a major supporter of Mr. Corcoran’s bid. While Mr. Monescalchi sometimes works as a paid consultant for candidates, Mr. Corcoran said the party chair was not working for him in a paid capacity.
Mr. Corcoran supporters say the caseload in Albany County necessitates another judge based there. Although Mr. Mott can’t run for reelection, the Columbia County judge could legally to continue serve on the bench until 76. Mr. Corcoran supporters say if Ms. Roberts ended up winning the seat, her presence alongside Ms. Fisher would represent geographical excess.
Mr. Corcoran supporters also say he is clearly better qualified: He was a trial lawyer for 22 years and has unlike Ms. Roberts often argued cases in state Supreme Court. He is now a law clerk for Supreme Court Justice Michael Mackey.
Mr. Flynn, the Albany Democratic chairman, provided the Times Union with a statement co-signed by the Democratic Party chairs from six of the seven counties in the judicial district — every one except Columbia.
“Albany is approximately 10 times busier than Columbia in terms of filings; Albany also handles more complex cases due to litigation against state agencies (which must be filed in Albany) and more complicated commercial cases,” said the six chairs in the statement. “Electing another judge to be seated in Columbia County makes little sense to most Democratic chairs because that judge would undoubtedly be assigned to other counties with busier dockets.”
The chairs noted Mr. Corcoran had “20 years of litigation and trial experience in private practice in Supreme Court in all seven counties” and was rated “highly qualified” for state Supreme Court in 2018 by the Independent Judicial Elections Qualification Commission
Ms. Roberts, meanwhile, “admitted to the law committee that she has never once personally appeared in Supreme Court and she lacked experience and familiarity with the basics of civil practice, the main focus of this court,” the chairs said. (Ms. Roberts says she never made any such statement about a lack civil practice experience.)
The six “chairs recognize diversity on the bench is a pressing issue”—as shown by several recent nominations of women, they argued—but those judges “also demonstrated experience working in the courts where they now sit on the bench.”
Critics of Mr. Corcoran’s effort say that the deals made by largely white, male county leaders have led to the selection of largely white, male judges.
Ms. Roberts supporters also argue that Albany County is already so loaded with Supreme Court judges that one, Peter Lynch, is assigned full-time to non-Supreme Court cases.
Ms. Roberts said in a statement that the chairs expressed concern about Albany’s caseload being greater that Columbia County’s “evidences a disturbing lack of understanding about court administration.”
“Judges in the Third Judicial District can and regularly do serve in any of the seven counties,” Ms. Roberts said in a statement. “Staff of the New York State Office of Court Administration, not party chairmen, manage court dockets and move judges as needed. I am prepared and would in fact welcome the opportunity to travel to Albany to help manage cases if asked by OCA.”
The law committee of the Albany Democratic Party – made up of four men and four women – unanimously backed Mr. Corcoran. But such committees are often made up of party loyalists who would be inclined to support Mr. Flynn’s pick.
“Had the legal committee checked any of my references, that included eight esteemed judges, they may have better understood why I have received so much support,” Ms. Roberts said. “Contrary to the statement that I ‘lacked experience and familiarity with the basics of civil practice,’ I have 10 years of litigation experience, litigating Article 78 proceedings, a particular kind of civil proceeding heard in Supreme Court, which does not require personal appearances, and as a judge managed a civil docket. I certainly understand civil procedure, and never said otherwise.”
The full Albany County executive committee has yet to make an endorsement – and there could well be a floor fight over that vote, which will be held sometime after the June 25 primary.
Some Democratic Party delegates who initially supported Ms. Roberts are now feeling pressure to fall in line with party leaders.
At the same time, Albany County’s two leading Democratic elected officials, Albany Mayor Kathy Sheehan and Albany County Executive Dan McCoy, are breaking with Mr. Flynn and backing Ms. Roberts. Mr. McCoy called her a “highly qualified candidate who will bring both public sector and non-profit leadership experience to the bench.”
Mr. Flynn said while a few Albany delegates might break away, he expected most would end up supporting Mr. Corcoran.
If there’s a lasting split among Democrats following the judicial convention, it could also open the door for Republicans this year despite the unpopularity of President Donald J. Trump in New York, Ms. Roberts supporters say.
If Mr. Corcoran is the Democratic nominee, the Democratic judicial slate in the district will feature three white men of Irish descent. Meanwhile, Republicans are already running one potentially strong female candidate, Linda Blom Johnson of Rensselaer County, and could run more. Ms. Roberts supporters point back to a similar scenario in 1996, when Republicans ran three female candidates and won two of the seats.
There is also intrigue on key third party ballot lines. Mr. Corcoran is set to have the backing of the Independence Party, but the Working Families Party is another matter.
When Mr. Corcoran beat out another female candidate in 2014 for the Democratic Supreme Court nomination, the progressive WFP left their ballot line blank—and a Republican ended up winning.
The WFP could well leave its ballot line blank again if Mr. Corocran is selected over Ms. Roberts, who is the WFP’s pick.
Karen Scharff, a WFP official, noted that in 2015 and 2017, the WFP ballot line provided the margin of victory for the Democratic state Supreme Court candidates. She criticized the Democratic chairs’ selection of Mr. Corcoran.
“Supreme Court seats shouldn’t just be given to the person who’s the best at insider politics,” Ms. Scharff said.