Albany

Andrew Cuomo and his late father, Mario Cuomo, are about to have something else in common besides both serving as governor: They'll be the only state executives to have selected all sitting seven members of New York's highest court.

The younger Cuomo will cross that threshold early next year — likely in January — when the state Senate is slated to vote on the governor's pick for the state Court of Appeals vacancy created by the departure of Judge Eugene Pigott, who has reached the mandatory retirement age of 70.

Gov. Mario Cuomo came to office just a few years after the state stopped electing its top jurists. His three terms in office (1983 through 1994) afforded him the chance to craft the court — though his son did it in just six years.

The new all-Cuomo court will provide a chance for this governor to leave a legal imprint through decisions affecting New Yorkers for years to come. And it will be doubly important this year, given the likelihood that Republican President-elect Donald Trump will appoint a conservative tie-breaking ninth member to the U.S. Supreme Court soon after taking office, with the potential for a handful of similar picks in the years to come.

If that happens, New Yorkers concerned about federal court action on hot-button issues including abortion rights and labor or environmental affairs will almost surely look to the state court to uphold what legal experts say are the broad protections it offers on a number of fronts.

"New York, by in large, can always provide more protection of rights and liberties than the U.S. Supreme Court does," said Vincent Bonventre, an Albany Law School professor and noted court-watcher.

In Bonventre's view, Cuomo has so far put together a coherent, capable Court of Appeals that includes jurists with both Democratic and Republican backgrounds, as well as those with experience in both law enforcement and defendants' rights. He has also worked to build ethnic and geographic diversity on the court.

On Dec. 1, the state Commission on Judicial Nomination will present the governor with a list of up to seven candidates to fill Pigott's spot — a process that invariably sparks a round of speculation in the state's legal and political circles about who may be named.

Interviews with legal experts turned up some common themes about what the governor might be seeking. One is that the court has no one with commercial litigation experience, which is an important part of the state's legal landscape.

"We hear concern that the current Court of Appeals lacks someone with a background in commercial issues," said Dennis Hawkins, executive director at the Fund for Modern Courts, an organization that works to improve the state court system.

While diverse, some have pointed out that there is no Asian jurist on the current court. Nor is there anyone with ties to the politically important Long Island region. There has never been an openly gay judge.

Court watchers stress that these points are less important than a judge's experience, knowledge and ability — but they could be political considerations.

The speed with which Cuomo has been able to name every member of the court is owed in part to voters statewide, who three years ago roundly rejected a proposed amendment to the state constitution that would have pushed back the mandatory retirement age of 70.

More Information List of gubernatorial appointments to the Court of Appeals since 1979. Hugh Carey: Lawrence Cooke Bernard Meyer Matthew Jasen Mario Cuomo: Richard Simons Judith Kaye Sol Wachtler Fritz Alexander Vito Titone Stewart Hancock Joseph Bellacosa George Bundy Smith Howard Levine Carmen Beauchamp Ciparick George Pataki: Richard Wesley Albert Rosenblatt Victoria Graffeo Susan Read Robert Smith Eugene Pigott Eliot Spitzer: Theodore Jones David Paterson: Jonathan Lippman Andrew Cuomo: Jenny Rivera Sheila Abdus-Salaam Leslie Stein Eugene Fahey Janey DiFiore Michael Garcia Source: Commission on Judicial Nomination. (Some judges have several terms and were reappointed, they are only listed once in this chart) See More Collapse

Former Chief Judge Jonathan Lippman — who was nominated by Gov. David Paterson — pushed for the change, which he argued would bring the court into the modern world by acknowledging longer lifespans and years of productivity.

Cuomo was largely silent on the amendment in the months leading up to the 2013 vote although he did say it could create problems, such as allowing judges who had retired from other positions to double dip or collect pensions while still on the court.

The proposal failed by more than 400,000 votes and did not extend the terms of sitting high court judges, including Lippman and Pigott.

Regardless of who is chosen, existing precedents and the state's body of law are distinct from federal rules.

And compared to the federal constitution, New York's document provides more protections against many forms of government intrusion and more rights.

"We have our own constitution that protects individual rights,'' said Hawkins.

Items such as union and worker protections as well as rights to an education and environmental safeguards are not specifically mentioned in the federal constitution, which is the U.S. Supreme Court's guiding document.

All those issues are covered in the state constitution.

"Suddenly, there's going to be a situation where it will probably reinvigorate states' rights," longtime Albany defense lawyer Terry Kindlon said of what a Trump Court could do.

He was a key player in a central 1992 decision in which he represented a Chenango County man, Guy Scott, who had been arrested after police entered a large piece of property he owned and found marijuana plants.

While the U.S. Constitution protects against search and seizure only in one's home or the immediate area around it, the state constitution takes a broader view, saying the safeguards apply to acreage a person may own.

Kindlon pointed to that difference and reversed the conviction on grounds that Scott fell victim to a wrongful warrantless search.

More recently, the Court of Appeals ruled that police cannot attach a GPS device to a person's car without a warrant. In that instance, the U.S. Supreme Court ended up coming to the same conclusion after the state ruling.

There are other areas where New York law and courts differ from other states as well as from federal statutes.

Non-compete clauses, for example, in which employees agree not to go to work for competitive firms within a certain time period, are very difficult to enforce in New York, especially compared to other states like Florida.

And it's much harder to use a criminal defendant's silence as evidence against him or her — again in contrast with other states.

New York's anti-discrimination laws are broader and stronger than what the federal statutes offer. In one landmark case from 2001, a lesbian couple won the right to student housing at Yeshiva University medical school, which had tried to keep them out of the dorms. New York also has comparatively robust laws designed to protect consumers, attorneys say.

The extent to which similar cases come up in the Court of Appeals could depend on what a Trump Supreme Court chooses to rule on.

Trump acknowledged the differences between federal and state laws a few days after his election in a "60 Minutes" interview. When asked what might happen if the Supreme Court were to someday overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide, he said the issue could then be decided on a state-by-state basis.

That would put New York law in an even more important spot when it comes to such topics.

"New York can lead the nation again by affirming our right to the full range of reproductive health care," Fern Whyland, spokeswoman for Family Planning Advocates of NYS, said in an email when asked about the impact the new Supreme Court could have on the state.

New York stopped electing its top judges toward the end of Gov. Hugh Carey's administration due to concerns that the court was becoming too politicized.

With Pigott's departure, the Court of Appeals will be losing one of its two Republicans — the other is Judge Michael Garcia, who joined the court in February.

Pigott, an Army veteran who was an interpreter in Vietnam before returning to New York, came up through the trial and appellate courts, and was appointed to the Court of Appeals by Gov. George Pataki.

He is considered moderately conservative, a stance that is balanced by more liberal members such as Jenny Rivera, who has a background in the Legal Aid Society and state Division for Human Rights.

"I wouldn't categorize him as a right-winger,'' said Bonventre. ''He's real common-sense."

A few names of possible Pigott replacements are already starting to surface in the legal community but they will likely spark a lot of discussion once the nominees are listed in December.

And no matter who is chosen, the Court of Appeals will likely remain a uniquely New York institution, more liberal than numerous other states such as, say, Alabama, Bonventre said.

"It's definitely a New York court,'' he said.

rkarlin@timesunion.com • 518-454-5758 • @RickKarlinTU