Chief Judge Wilson bucks history: Adding judges to the New York Court of Appeals breaks

The New York Court of Appeals, the highest bench in the state, is the final word on the meaning of state law and the New York Constitution and has a long distinguished tradition as the finest state court in the nation, with judges like the legendary Benjamin Cardozo.

Since 1870 the court has had seven judges, a chief and six associates. When a seat is vacant or a judge is unable to participate in a case, the court hears the matter with six judges, with four needed to make a ruling.

As the Constitution says: “Five members of the court shall constitute a quorum, and the concurrence of four shall be necessary to a decision; but no more than seven judges shall sit in any case. In case of the temporary absence or inability to act of any judge of the court of appeals, the court may designate any justice of the supreme court to serve as associate judge of the court during such absence or inability to act.”

In recent years, some monumental cases were handled with six judges, due to one judge recusing. In 1989, in a case called Braschi, a six-judge court ruled that a gay man qualified as “family” to his deceased partner under state law for inheriting a rent controlled apartment, a major advance for gay rights. Chief Judge Sol Wachtler sat out the case and did not vouch in a seventh judge.

Seventeen years later, in a setback for gay rights, a six-judge court ruled in 2006 that same-sex marriage was not protected under the state Constitution. Chief Judge Judith Kaye, who wrote the dissent, did not vouch in a seventh judge. Later that same year, the very important Campaign for Fiscal Equity case about school funding was heard and decided with six judges, as Kaye did not add a seventh judge.

Should a bench of six judges be unable to decide, the procedure has long been to only then temporarily add in another judge from a lower court and then have new oral arguments. But the new chief judge, Rowan Wilson, has now changed that, routinely adding lower court jurists from state Supreme Court to keep the top court at seven even before any oral arguments.

It is a sharp — and unexplained — break with longstanding precedent and goes against the Constitution’s intent to have Court of Appeals judges decide these matters. In New York, lower state Supreme Court justices are elected, while higher Court of Appeals judges are appointed through a three-step process.

The state Commission on Judicial Nomination must, after a rigorous screening, publish a potential Court of Appeals judge’s name on a list for the governor. The governor must then select one of the names and the state Senate must confirm that judge. State Supreme Court justices, even those serving on the appellate bench, do not have those qualifications and should only be added to the Court of Appeals if there is no other option.

This subbing in of a lower court jurist happened twice last week and will occur again on Nov. 15, when the court hears a critical case on congressional redistricting. Before then, Wilson should formally explain why he’s rejected a precedent going back more than a century and if his colleagues agree.