Supreme Court Appointments: The Supreme Factor

By Brooke Riscica

Brooke Riscica graduated magna cum laude from Albany Law School in May 2026, receiving a Stone Family Prize in Business and Entrepreneurship.

While at Albany Law, Brooke served as Executive Editor for Submissions for Volume 89 of the Albany Law Review, worked as a Teaching Assistant for Professor Bonventre in Criminal Law, completed two semesters in the Edward P. Swyer Justice Center’s Community Economic Development Clinic, served as a Team Captain in the Admissions Office, and served as Editor-in-Chief of the Center for Judicial Process. She also completed summer internships with the DeAngelus Group, PLLC her 1L summer and Bond, Schoeneck & King, PLLC her 2L summer.

Prior to attending law school, Brooke graduated summa cum laude from Utica University, where she earned a B.S. in Criminal Intelligence Analysis, with minors in Cybersecurity and Philosophy of Law.

Brooke returned to Bond, Schoeneck & King, PLLC in September 2026, where she is a full-time litigation associate trainee. 

Supreme Court scholars and constitutional law enthusiasts have spent decades in a battle of the wits over the who, what, why, and how behind nominations to the Court. Some maintain that candidates are nominated based on merit, while others cite factors like geography, race, religion, gender, and ideological compatibility as the considerations weighed when deciding who to seat on this country’s highest court.

Having access to such a wide range of research, data, and scholarship centered around the nomination process for Supreme Court Justices tells a historical tale of the political and social climate in this country during different periods. Studying the history, evolution, and current state of nominations to the Court reveals that the different factors cited are not necessarily correct or incorrect. Rather, these factors are reflections on where the process started and how it changed, which reveals that one factor reigns supreme: ideological compatibility.

This paper introduces the different factors cited as considerations weighed during a candidate’s nomination and appointment to the Court. After a description of each factor’s—geography, race, religion, and gender—role at different times during Supreme Court appointments, a discussion of ideological compatibility as the determinative factor follows.

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To read the paper, open HERE.

Third Parties in the Judicial Nomination Process: the Federalist Society and the Liberal Response

By Nicholas A. Alfano

Nicholas Alfano is a current 2L at Albany Law School. He graduated from Seton Hall University, where he majored in Political Science and Philosophy and minored in Economics. Nicholas is a founding member of the Catholic Law Students Association where he currently serves as treasurer. He has previously interned with the NYS Division of Consumer Protection’s Utility Intervention Unit.

In recent years, one of the most contentious issues in American politics has been judicial appointments. In the 2016 and 2020 presidential elections candidates, Donald Trump and Joe Biden promised who they would appoint to the judiciary. However, while Biden promised appointments of various professional and demographic backgrounds, Trump declared his judicial appointments, saying he would choose them by an outside group: the Federalist Society. The Federalist Society is an organization of libertarian and conservative lawyers that promote originalist and textualist interpretations of the Constitution and the law.

 

The Federalist Society is one of the most influential groups within the Republican Party, both allied in promoting legal conservatism. All three of Trump’s Supreme Court appointments were Federalists. The Federalist Society facilitates a robust network of conservative lawyers and legal activists for the Republicans to draw from for various positions, be it jobs within the legislature and executive or the judiciary (and many times both, with Brett Kavanaugh as the premier example). The Federalist influence on the court has had some noticeable effects. The tribunal took a rightward turn and became younger and less experienced but more connected with other legal conservatives.

 

Conversely, there exists no direct analog for Democrats and liberal lawyers, though not for lack of trying. Led by the American Constitution Society, liberals have been attempting to recreate the network the Federalists have built. Still, these efforts have not managed to rival the Federalists in reach and prestige so far, and, in the same token, this is due to several factors, including the lack of an attractive legal doctrine alternative to originalism and textualism. As such, liberals have advocated for other means to rebalance the courts, including court-packing and quick appointment of judges.

To read the paper, open HERE.

Court of Appeals Judges Without Prior Judicial Experience: Asset or Liability?

By Joseph Zeitler

Joseph Zeitler is a December 2020 graduate of Albany Law School, where he was also a member of the Albany Law Review. Joseph has worked as both a law clerk at a local Albany law firm and as a legal intern at the New York State Attorney General’s Office.

Prior to attending law school, Joseph spent three years on the West coast working in the aerospace industry. In 2014, he graduated from Clarkson University, where he majored in Supply Chain Management with a minor in Literature.

This past summer, Joseph worked at the law firm of Whiteman, Osterman, & Hanna, LLP in Albany, and he is looking forward to joining the firm in 2021.

This presentation was prepared for Prof. Bonventre’s Court of Appeals Intensive seminar.

New York State Court of Appeals judges have come from a wide range of backgrounds. Some had little to no prior experience on the bench when appointed to the court. This lack of judicial experience may pose a concern about the capacity to perform judicial work of high quality.

When analyzing a Court of Appeals Judge and how a lack of judicial experience might have impacted the quality of their judicial work, it must at least be determined how practicing law beyond the bench might have contributed or detracted from that quality.

This paper discusses the careers and experiences of several Court of Appeals Judges.  Analyzing both their legal work prior to sitting on the bench and their work while on the Court can shed light on whether the lack of judicial experience was a liability, or even an asset.

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To read the paper, open HERE.

Election or Appointment: Selecting New York State Court of Appeals Judges

By Emily Gray

Emily Gray, a 2020 graduate of Albany Law School, was an Executive Editor of Notes and Comments on Albany Law Review. Emily received a B.A. in History with a minor in Criminal Justice from Hartwick College in 2017.

During law school, Emily was a research assistant to Professor Evelyn Tenenbaum. Additionally, throughout law school, Emily worked for the New York State Department of Health in the Bureau of Professional Medical Conduct. She is currently an associate at Hancock Estabrook in Syracuse.

Judges in the United States come to sit on the bench in several ways: by appointment, partisan election, and nonpartisan election. Each form of reaching the bench provides its own benefits and drawbacks. These range from the general population receiving a direct say in whom sits on the bench, judges being influenced by money and politics that are inherent in elections, and a feeling of loyalty to those who appoint the judges.

Judges that sit on the New York State Court of Appeals, the state's highest tribunal, currently reach the court through a merit appointment system. However, this was not always the case. In the beginning of the 20th century, the Judges were elected by the people.

This paper will evaluate the negatives and positives of partisan election, nonpartisan election, and appointment of judges across the country. It will the focus on the history of selection for the New York Court of Appeals. The paper will evaluate how the court went from an election system to a merit appointment system and evaluate Judges who reach the bench in each way. 

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To read the paper, open HERE.

1 IN 8: A Look at Failed Nominations to the Supreme Court

By: Robert F. McQueen

Robert F. McQueen graduated from Albany Law School in 2019.  He received his bachelor’s degree in The Study of History from Iona College, during which time he spent a semester abroad at the Marino Institute of Education in Dublin, Ireland.  The experiences of his semester abroad ignited a deep love for international travel; he has since visited a total of forty nations spanning five continents.
Prior to attending law school, he worked for eight years in the billing department of an environmental engineer firm.  During his time at Albany Law School, Robert was an active member in many of the school’s student organizations. He served as a 2L and then 3L Class Senator on the Student Bar Association, where he used his voice and vote to advocate for the greater funding of law school events; he played on the school’s rugby team for all three years, which elected him, twice, to serve as their Director of Marketing; he co-founded the Albany Law School Gaelic Law Society, for which he was elected the club’s first Vice-President and second President; and he was even granted an honorary seat to serve as the Social Director of the International Law Society.



The United States Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.”  This provision of the Constitution has had a straightforward, plain-reading interpretation: it is the duty of the President to choose and nominate candidates for the Supreme Court; and a majority vote in the Senate provides its consent of the nominations (presumably, but not necessarily, having tendered advice along the way).  Alternatively, the Senate can deny consent either with a vote rejecting a nomination, or by refusing to take any action on a nomination.

A great amount of debate occurred at the Constitutional Convention regarding the methodology and criteria for court appointments, which ultimately led to the adoption of the language used in Article II, Section 2.  The convention delegates seem to have assumed: judicial candidates would be selected and confirmed, based on their individual merit rather than favoritism.  John Adams—absent at the Constitutional Convention—was the only Founding Father to rightfully foresee the future rise of political parties; and, that partisan dynamics rather than merit alone would become a controlling consideration as to whether or not the Senate confirms a particular nomination.

To read the paper, open HERE.

The Virginia Judiciary

History, Structure, Selection, and Composition
By James Mims

James Mims is a class of 2015 Albany Law School graduate. He previously attained his bachelor’s degree from Old Dominion University in 2011, majoring in Political Science and minoring in Public Service. James concentrated his studies on the field of governmental administration and regulation while at Albany Law. 
James supplemented his law study with significant internship experiences in the governmental sector. During the summer of 2013, James interned with the U.S. Department of Veterans Affairs Office of Regional Counsel in St. Petersburg, Florida, where he assisted with litigation of tort and employment discrimination claims. During his second year, he completed a field placement with New York Department of State Office of General Counsel where he worked with local government counsel to provide technical assistance to local officials and the public in relation to land use matters. In the summer of 2014, he served as an executive intern in The Norfolk Emerging Leaders Program in Virginia. There he coordinated with community business leaders to research and formulate entrepreneurial growth initiatives.
James plans to pursue a legal career in the public sector through which he can make a positive impact in underserved communities. His paper, which analyzes the Virginia judicial system’s correlation with norms of American judicial process, was prepared for Prof. Bonventre’s Judicial Process Seminar.


This paper analyzes Virginia’s judicial system in four main parts. It begins by tracking the historical formation of the commonwealth’s court system from its beginnings in the Colonial Era. It considers the correlation between Virginia’s Colonial Era courts and prominent judicial philosophies in American jurisprudence.

Next, it explores the current structure and operation of Virginia’s judiciary. This section explores the Virginia judiciary’s current organization in relation to judicial process norms concerning access to justice. Following the discussion of structure, the paper analyzes the judicial selection process employed by Virginia law. It addresses the role that politics and merit play in the selection process.

Lastly, the paper examines a few of the recent prominent judges that have risen to the pentacle of the Virginia judicial system, the Virginia Supreme Court. This section focuses on the judges’ paths to their distinguished seats, their individual significance, and their judicial philosophies as demonstrated by majority or dissenting opinions in major cases during their tenure. In doing so, the paper determines whether the judges’ philosophies match any of the main types of judicial philosophies traditionally propounded in the American judicial system.
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To read the paper, open HERE.

The Appointment of Justice Stein

Defying History and Changing the Court of Appeals

By Joseph O'Rourke
Joseph O’Rourke is a third year law student at Albany Law School. He graduated magna cum laude from Siena College in 2012, majoring in Political Science and minoring in Philosophy. Joseph currently serves as Editor-in-Chief of the Albany Law Review, and has previously interned with Young/Sommer LLC and the Honorable Thomas J. McAvoy of the Northern District of New York.
This paper, comparing New York Court of Appeals nominee Justice Leslie Stein with former associate judge Victoria Graffeo, was prepared for the Judicial Process Seminar, Fall 2014.

[Following graduation, Mr. O'Rourke will serve as a law clerk on the Court of Appeals’ Central Legal Research Staff. Of course, the views expressed in his paper are his alone and in no way reflect those of the Court.  vmb]   


On October 17, 2014, New York Governor Andrew Cuomo made his third nomination to New York's highest court, the Court of Appeals. The decision came just weeks before the election that determined whether Governor Cuomo would continue as governor for a second term, and it is proving to be the most controversial of Governor Cuomo’s first three selections for the Court. Controversial not because of whom the Governor selected, but rather who was passed over.

Governor Cuomo choose Appellate Division, Third Department Justice Leslie E. Stein, over Judge Victoria A. Graffeo, a sitting member of the Court of Appeals whose fourteen year term expired on November 29, 2014. The addition of Justice Stein, a Democrat, would shift control of the Court to Democrats for the first time in many years. Most notably, Stein's nomination by Cuomo marks only the second time in the thirty-five year history of the appointment system for the Court of Appeals where a governor failed to choose an eligible incumbent for reappointment.

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To read the paper, open HERE.

Judicial Selection: Accepting the Inherent Nature of Transactional Politics

By Patrick Kennedy
Patrick Kennedy, a third year law student at Albany Law School, graduated from the College of Saint Rose in 2011 with a Bachelor's Degree in History and Political Science and a minor in Philosophy. Patrick is interested in New York State politics and government, having interned with the New York State Executive Chamber while in law school. Previously, Patrick interned with the NYS Division of Criminal Justice Services, in the Offices of Assemblyman Phil Boyle and Congressman Paul Tonko, and with the New York City Office of State Legislative Affairs.
Mr. Kennedy has been published by the Center previously. (See Breyer on Religious Freedoms, Feb. 2, 2014.)
This paper and presentation were prepared for Prof. Bonventre's Judicial Process seminar, Fall 2013.

If you were to stop and ask someone on the street whether judges should be qualified, independent, and impartial, virtually everyone would answer in the affirmative.  It seems like common sense; such factors are touted as the cornerstones of a functioning judiciary.

However, if you were to dig a little deeper and ask what actually makes courts independent and impartial or what “qualified” actually means, you would get a plethora of different answers. If you narrowed the inquiry even further by asking specifically whether appointing judges or electing judges is more beneficial to judicial independence and impartiality, you would find advocates on both sides.

Should the judiciary be the “least democratic” of the three branches of government in not only the decisions judges issue from the bench, but when the judge assumes office from the get-go?

(click to enlarge)

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To read the paper, open HERE.

To view the complete slide presentation, open HERE.

(Then, for the best view, click File + Download, and Open the download.)

New York’s Judicial Selection Process: What Would Plato Think?

By Molly C. Casey

Molly Casey, a third year student at Albany Law School, is a Senior Editor for the Center. She works in the New York State Legislature as a Legislative Aide to Senator Lee M. Zeldin.

She wrote this paper for the Judicial Process Seminar, Fall 2011.

This is Ms. Casey's third contribution to the Center. (See her Jerome Frank’s “Other” Form of Judicial Activism, Feb. 17, 2012; and A Reasonable Path to a Just Result: Cardozo's and Holmes' Counter to Judicial Restraint, Nov. 7, 2011.)

In discussing the selection of judges, Plato articulates a “scrutiny” that men should undergo in order to act as a magistrate in a high court of law. The process that Plato describes is designed to ensure that the best men in the community are the ones who act as the arbiters of justice since a determination made by a magistrate is final.

What Plato seems to be advocating is a hybrid of merit and electoral selection systems, where the “officers of state” designate one judge from every magistracy to “decide the causes of his fellow-citizens during the ensuing year in the best and holiest manner.” This is similar to the merit-selection process that New York uses to select judges to the Court of Appeals. The choice in New York is given to the “officers of state,” and as discussed below, under the system of merit selection, the Governor chooses one judge to sit on the Court of Appeals, from a list compiled by a committee whose members are appointed by leaders of all three branches of government.

Additionally, the Senate must confirm the individual that the Governor selects. This is truly a method that involves many “officers of state.”

Plato then suggests that the candidate selected by the officers of state be scrutinized by “the electors themselves,” which is virtually the same language used in the New York State Constitution with respect to Supreme Court judges. Thus, a hybrid system of judicial selection emerges – one that involves not only the officers of state, but the electors as well.

This was Plato’s prescription for selecting the most capable and just arbiters of justice. But the question remains whether it would work in practice. It seems that we have tried these methods, albeit separately for the separate levels of the judiciary in New York State, and neither has been wholly devoid of problems and widespread criticism.

Plato qualifies his position in The Republic when he says, “ Since [the Judge] governs mind by mind; he ought not [] to have been trained among vicious minds, and to have associated with them from youth upwards.” Translated into the modern day, this means that the judge should be kept away from the political machine in order to be pure and to avoid the corruption that could undermine the role of the judge as virtuous and honest. If the politics could be taken out of the equation, could the best, most just, and most capable judges be selected, or is Plato’s vision an impossible ideal?*

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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Selection and Appointment of Supreme Court Justices

The Criteria--What They Are and How They Are Used

By Eric Ross

Eric Ross, a third year student at Albany Law School, is President of the Albany Law Civil Liberties Union and a Senior Editor of the Center. He works at the U.S. Attorney's Office, Northern District of New York, as a Law Intern. This paper and slide presentation were prepared for the Judicial Process Seminar, fall 2010.

Elena Kagan’s nomination and confirmation to the Supreme Court, in the summer of 2010, brought to the forefront the process by which Justices are selected by the President and confirmed by the Senate. What is not publicized is the selection process itself. What exactly is needed to become a Supreme Court Justice?

The process and criteria described below may surprise the uninitiated. However, delving into the process and the history of selections, it becomes clear that, similar to many of the processes of today’s government, the selection process is largely political.

One looking to the Constitution for selection criteria will be surprised to learn that it does not provide any guidelines for selecting Justices to the Supreme Court. The Constitution does provide a clue, however, as to how a judge is appointed. It says, “[The President] shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate . . . Judges of the [S]upreme Court.” The extent of instructions on how to nominate a judge is limited to the language that, “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."*

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* Citations to references in this introduction are available in the paper.

Read the entire paper HERE.
View the complete slide presentation HERE.

Selection and Appointment of Supreme Court Justices [Slide Presentation]

The Criteria--What They Are and How They Are Used

By Eric Ross

[This slide presentation outlines the above-titled study.]

(click any slide to enlarge)