RICHARD CARL WESLEY

(b. 1949)
Court of Appeals: 1997-2003
by Brian Feldman
Richard Carl Wesley

Judge Wesley served on the New York Court of Appeals for six years, but has served as a judge - on New York Supreme Court, at the Appellate Division, and, now, on the United States Court of Appeals for the Second Circuit - for much longer. Throughout this time, and throughout his life, the Judge has retained strong ties to New York State, and the influence of his rural hometown of Livonia may be discerned in his approach to judging, which, above all else, is founded on the values of common sense and clarity. His experience is one of constant leadership and achievement; his jurisprudence one of modesty - seen in his deference to legislatures and his respect for other thoughtful jurists - and faith in the rule of law.

BACKGROUND

Judge Wesley is deeply connected to the State of New York. He has played a public role in the State - in either a legislative or judicial capacity - since 1979, was educated by New York institutions, and has an abiding interest in the State's history, economics, and politics. The Judge has lived in the State his entire life, and, through his legislative and judicial experiences, developed a thorough familiarity with many of its towns and cities, his public duties having placed him in Albany, Rochester, and New York City for extended periods. He has been an active leader in the New York communities he has called home: the rural towns of Livingston County, in the Finger Lakes region of western New York. Through his daily interactions and community leadership, he has shaped the character of these towns. Through his public service and jurisprudence, he has shaped the law of the State and the Nation.

CHILDHOOD AND EDUCATION

Richard Carl Wesley was born to Charles and Beatrice Wesley on August 1, 1949, in Canandaigua, New York. He was raised in the tiny hamlet of Hemlock, in the town of Livonia, where his family lived in a small house built by the Judge's father and his uncles. The Judge attended public schools, played sports, and sang in the church choir.
Judge Wesley left Livingston County after graduating from Livonia Central School in 1967, but remained in the State for his education. He matriculated at the State University of New York at Albany, where he joined the school's inaugural football team and participated in various student government organizations. The Judge graduated summa cum laude from Albany in 1971 and commenced his legal education at Cornell Law School. He accepted an invitation to join the Cornell Law Review and graduated from law school in 1974.

After graduation from Cornell Law School, the Judge began his legal career as many lawyers begin their careers - he took a job as an associate in an established law firm, a Rochester partnership then called Harris, Beach & Wilcox (now Harris Beach PLLC). The Judge practiced at Harris, Beach & Wilcox for approximately two years before joining a Livingston County-based firm, Welch, Streb, and Porter. A year after his move, in 1977, the Judge became a partner in that firm, and it was renamed Welch, Streb, Porter, Meyer, and Wesley. In this private practice, the Judge handled a diverse mix of cases, with civil and criminal matters and individual and corporate clients. At Streb, Porter, Meyer, and Wesley (again renamed in 1983), the Judge's practice - what the New York Times later called his "life as a small town lawyer"1 - would continue as he served in legislative capacities and would terminate only upon his assumption of a judicial role in 1987.

LEGISLATIVE EXPERIENCE AND COMMUNITY EXPERIENCE

In 1979, Judge Wesley began his legislative career. He was appointed as assistant counsel to James L. Emery, the Republican Minority Leader of the New York State Assembly and the representative of the 136th Assembly District, which at the time stretched from Livingston and Ontario Counties in the north through the rural towns and villages of Allegany County in the south. As assistant counsel, the Judge managed the Assemblyman's legislative programs, his constituent services, and his district office. The Judge held the position until 1982, when Emery decided not to seek reelection. Judge Wesley ran in his place.

The Judge was elected as Assemblyman for the 136th Assembly District in 1982 and reelected without opposition in 1984.2 The Judge retained his home in Livingston County, but commuted to Albany and shared an apartment with fellow Assemblymen L. William Paxon (later member of the United States House of Representatives) and Michael F. Nozzolio (later State Senator), and, on occasion during his second term, with the freshman Assemblyman from Peekskill, New York, later-Governor George Pataki. Judge Wesley's Republicans were the minority party in the Assembly throughout his tenure; nevertheless, the Judge succeeded in passing a number of legislative measures. He sponsored laws that established procedures for taking blood samples from intoxicated drivers, removed an evidentiary obstacle that often prevented prosecutors from convicting child molesters, and streamlined settlement procedures on behalf of infants. The Judge also served as a member of the Codes and Environmental Conservation Committees. These experiences would shape his perspective on the bench.

Judge Wesley chose not to run for reelection to the Assembly in 1986, in part because he was interested in running for a judicial position, and in part because he hoped to spend less time away from Livingston County and his burgeoning family. While a member of Streb, Porter, Meyer, and Wesley, the Judge married Kathryn Rice of Auburn, New York, and, by the time Judge Wesley was serving as an Assemblyman, he and Kathy had two children, Sarah and Matthew. His family was and remains a constant fixture in his life, a source of great pride and satisfaction, and a priority of the highest order.

The Wesleys made their home in the village of Livonia, just a few miles from Judge Wesley's childhood home in Hemlock. There, Judge Wesley became an integral part of his community, as a leader and as a neighbor. He served on the board of trustees of his church, drove shifts for the volunteer ambulance, coached youth sports, and led a host of community-based organizations, including an organization providing safe housing to battered women and a foundation providing financial assistance to families in need.3 Neighbors in Livonia have grown accustomed to watching the Judge run the hilly terrain in the early mornings, sometimes in training for a marathon, sometimes with a law clerk struggling to keep up. The New York Times has accurately described the Judge's life outside his work as one of "constant community involvement punctuated by athletics."4 Although the public has bestowed upon him the honorifics of Justice and Judge, around town he has remained known simply as Dick Wesley.

JOINING THE BENCH

Judge Wesley began his judicial career as a trial court judge. In 1986, he was elected to a 14-year term as a Justice of the Supreme Court in the Seventh Judicial District of New York, which is headquartered in Rochester, New York, and encompasses Livingston County and seven other counties. The Judge has explained that, on the Supreme Court, "[t]he legal issues were not abstract - they involved for the most part, the problems of people."5 On the bench, the Judge gained a reputation for hard work, intellect, common sense, and a sense of humor.

During his tenure on the Supreme Court, Judge Wesley took on additional administrative responsibilities and succeeded in instituting various reforms. In 1988, in response to a growing backlog of cases in Monroe County, the Judge set up the Trial Assistance Part. In 1991, the Chief Administrator of the Courts appointed the Judge to be the Supervising Judge of the Criminal Courts of the Seventh Judicial District. In this capacity, Judge Wesley "instituted a felony screening program in Monroe County that reduced the delays in processing felony cases by over 60 percent. The program proved so successful that it served as a model for judicial districts across the State."6 In 1993, he created the JUST Program, which provides services to court and criminal justice agencies in Monroe County to monitor pre-plea and pre-sentence defendants and to provide alternatives to incarceration.7

Judge Wesley's reputation as a thoughtful and effective jurist, as well as an ambitious and talented administrator, soon earned him a position as an appellate judge. His talents caught the attention of Governor Mario Cuomo who, on March 25, 1994, reached across party lines to appoint Judge Wesley to the Appellate Division of the Supreme Court for the Fourth Department.8

Due to his appointment to the New York Court of Appeals, Judge Wesley served on the Appellate Division for less than three years, but he solidified his judicial reputation during that time, both with the press and within the legal community. According to the Editorial Desk of the New York Times, Judge Wesley developed a reputation "as a thoughtful conservative."9 The Chief Judge of the Court of Appeals, Judith Kaye, explained, "Within the court community, Judge Wesley ha[d] earned high regard as an outstanding jurist, a sound administrator, and a valuable colleague."10 This reputation would propel him to his seat on the Court of Appeals.

THE COURT OF APPEALS

Judge Wesley served on the Court of Appeals from 1997 until 2003, when President George W. Bush asked him to serve on the United States Court of Appeals for the Second Circuit. In 1997, when the Judge arrived at the New York Court of Appeals, he came as an outsider. He was the only Judge on the Court appointed by a Republican Governor, and his fellow Judges had served together since 1993. In his first year on the bench, Judge Wesley penned three dissents, and in two of them he found himself entirely alone.11

Yet Judge Wesley quickly emerged as a consensus builder on the Court, owing in large part to his character and his ability to understand his fellow jurists.12 At the New York Court of Appeals, the judges worked closely and intensely. In this atmosphere, the Judge earned the confidence of his colleagues, came to understand their concerns, and, relying on both his intellect and his powerful and charismatic personality, succeeded in reaching consensus on many issues before the Court. By the time the Judge left the New York Court of Appeals in 1997, he was beloved by his colleagues and appreciated for his instrumental role on the bench.13 As the Senior Senator from New York, Charles Schumer, explained, Judge Wesley became "best known for his thoughtful, scholarly approach that united judges behind unanimous opinions . . . truly a uniter, not a divider."14

APPOINTMENT TO THE COURT

On December 3, 1996, Governor George Pataki nominated Judge Wesley to the New York Court of Appeals to fill the vacancy created by the retirement of Judge Richard Simmons. The Governor had been publicly critical of certain decisions issued by the Court of Appeals, and the departure of Judge Simmons marked the Governor's first chance to select a nominee. The nomination thus presented Governor Pataki with an opportunity to select his model jurist. He chose Judge Wesley, and the choice was deemed the Governor's "most important judicial nomination."15

In nominating Judge Wesley, the Governor stressed the Judge's "impressive legal credentials and extensive experience," his "keen intellect, enormous common sense," and "his experience in the Legislature, as a private practitioner and as a trial and appellate judge."16 The Governor expressed confidence that "Judge Wesley's great common sense will help ensure that the rights of victims will be respected" and also that the Judge would "take a back seat to no one when it comes to ensuring that a defendant receives a fair trial."17 The Judge was honored by the nomination, and at the announcement he declared, with his usual frankness and good humor, "This is the most significant moment in my life, other than the birth of my two children and the poor judgment of my wife to marry me."18

Judge Wesley's Court of Appeals nomination earned bipartisan support. Although some liberal lawyers expressed concern that the Judge was the "ideological soulmate" of the Republican Governor,19 and that his appointment might thus move the Court rightward,20 many Democrats publicly praised the judge, "describing him as a warm, funny, thoughtful man who always carefully considers the positions of his opponents," and expressed delight in the Governor's choice.21 The New York Times immediately endorsed the nomination.22 On January 14, 1997, the State Senate voted unanimously to confirm.

ROLE ON THE COURT

Judge Wesley proved himself to be a formidable jurist at the New York Court of Appeals in two distinct venues: first, on the bench, with his well-crafted opinions, his thorough preparation, and his keen insight, and, second, at conference, where he combined a sterling independence and sharp intellect with a lasting charisma built upon his patience, good humor, and, most importantly, his unerring respect for and understanding of his colleagues.

Judge Wesley arrived at the Court with an appreciation of the institution and a sense of respect for his colleagues that only grew throughout his tenure and which was reflected both in his relations with those he termed his "brothers" and "sisters" on the bench and in his tireless preparation and craftsmanship. The Judge described the awe he felt in his first post-nomination visit to the Court as follows:

"When we entered the courtroom, my family suddenly realized the significance of our good fortune. The H.H. Richardson designed courtroom is a reflection of the majesty of the institution. From the intricately carved wooden wall panels to the portraits of former members of the Court, one immediately has the sense that this courtroom has been the epicenter of many significant legal developments in our national experience.

"That visit was, for me, both inspiring and terrifying. Although I was excited about becoming a member of one of the premier state appellate courts, I was overwhelmed with a sense of the importance of the task ahead. In the weeks and months that have passed, I have come to view that courtroom as a close and trusted friend. I feel honored to have been chosen to sit as a Judge every time I come out through the heavy oak door behind the bench as the crier announces the beginning of each day's arguments."23

The Judge coupled his love for the Court of Appeals with an understanding that his colleagues too approached their responsibilities with caution and respect. As he put it, "I am intensely aware of the significance of my responsibilities of the Court, but I am not alone. Everyone who works at Court of Appeals Hall - judges, lawyers, and staff - has a strong sense that this is a unique and important place."24

Imbued with this deep respect for the institution and its participants, the Judge dedicated himself both to exhaustive preparation for arguments and to the pursuit of the highest standards in crafting opinions. The Attorney General would explain:

"[H]e is [a] skilled jurist committed to the highest standards of judicial decision-making. Judge Wesley is deeply involved in the issues that come before him; he brings to his cases extensive preparation and engages in oral argument with marked enthusiasm. His opinions are well-reasoned, reflecting both deliberation and an impressive intellect."25

Through his active participation at oral argument and his fine-tuned opinions, the Judge earned a reputation as a "tireless worker"26 who devoted "prodigious hours" to his efforts.27

The Judge's influence on the Court extended, however, beyond that perceived by the public eye and into the conference room and the opinion-drafting process. Although a complete picture of the Judge's behind-the-scenes role in the judicial decision-making process probably awaits the Judge's memoirs, or those of his peers, private accounts suggest that one of the greatest assets the Judge brought to the Court of Appeals - and continues to bring to the Second Circuit - is his ability to build consensus among his colleagues. His power of persuasion derives from an unusual combination of personal characteristics: confidence arising from his intellect and preparation, modesty derived from his great respect for his colleagues' capabilities, sincerity, and good faith, and a charisma truly exceptional among jurists.

DEPARTURE TO THE SECOND CIRCUIT

Judge Wesley left the New York Court of Appeals to continue his judicial service on another court, the United States Court of Appeals for the Second Circuit, which is the federal appellate court responsible for all appeals from federal trial courts in New York, Vermont, and Connecticut, and which may only be overruled by the United States Supreme Court. The Judge remains on the Second Circuit today.

President George W. Bush nominated Judge Wesley for a seat on the Second Circuit on March 5, 2003.28 Judge Wesley accepted the nomination, and the Governor supported his move, stating, "Although it will be very difficult to replace Judge Wesley on New York's highest court, I am honored and proud to support my friend and colleague's nomination to the Second Circuit."29 The Governor then gave the Judge the very highest endorsement: "Judge Wesley has impeccable qualifications and character, and I can unequivocally state that there is no better candidate for such an important position."30

Although commentators described the Judge as, "in many regards, a model of a Pataki-appointed judge, especially on criminal justice matters,"31 his nomination was uncontroversial on the Senate Judiciary Committee and the Senate floor,32 and both of New York's Democratic Senators supported him in his confirmation hearings.33 Indeed, both Senators praised the Judge. Senator Schumer stated:

"I rise in enthusiastic support of Richard Wesley's nomination to the Second Circuit Court of Appeals. ... Judge Wesley has a top-flight legal mind and experience....

"I would like to read what Judge Wesley said about his own judicial philosophy: 'I consider myself a conservative in nature, pragmatic at the same time with a fair appreciation of judicial restraint. I have always restricted myself to what I understand to be the plain language of the statute and not gone beyond that [because] public policy is made by the legislature.' That is an honest and candid assessment of how Judge Wesley judges. It is not just words.

"There is nothing controversial about Judge Wesley. ... He will be a credit to New York, to the Second Circuit, and to the Senate when we confirm him."34

As if to outdo her senior colleague, Senator Hillary Clinton followed Senator Schumer's speech with these words of her own:

"I rise to join my colleague from New York in expressing my very strong support for the nomination of New York State Court of Appeals Judge Richard C. Wesley to the United States Court of Appeals for the Second Circuit. . . . [H]e will make a fine addition to the Second Circuit and will serve that court with distinction. . . . The calls and letters of support I have received about Judge Wesley from a wide variety of distinguished members of the legal profession are a testament to his qualities of high intellect, judicial temperament, caring for the profession and, most importantly, commitment to justice. . . . "This is a very positive nomination. He will not only make his former colleagues proud and he will certainly make lawyers everywhere proud, but he will especially make Western New York proud because once confirmed, Judge Wesley will be the first Western New Yorker - for those who are not from New York, that includes places such as Rochester, Buffalo, and Jamestown, places on the other end of our very diverse, large State - to be confirmed as an associate judge of the Second Circuit since 1974. Although it is very clear that Judge Wesley and I do not agree on every policy or legal issue . . . I have every confidence in his professional preparation, in his temperament and demeanor, in his commitment to justice. He may be a conservative Republican, but he is a judge and an American first. . . . . "I predict he will be confirmed on this floor unanimously. Why? Because although Judge Wesley is not of my party, he may not be of my judicial philosophy, he already in his judicial career decided cases differently than I would have, had I been sitting on that bench, he is a person whom we always know will put the interests of justice first, and will preside in a totally nonideological, nonpartisan manner. That is what every judge should be doing. It is certainly the responsibility of the Senate to advise and consent so that our Federal Judiciary, which consists of lifetime appointments, will be filled by people of the caliber of Judge Wesley."35

Senator Clinton's prediction was right, and the Judge was confirmed without opposition. He was sworn into office on July 21, 2003.

OPINIONS AND JURISPRUDENCE

While on the New York Court of Appeals, Judge Wesley authored opinions spanning the spectrum of New York law,36 including the Court's only death penalty case during his tenure and, indeed, for two decades, People v. Harris, 98 N.Y.2d 452 (2002). Harris ranks among the Judge's most newsworthy cases,37 along with Hamilton v. Beretta, 96 N.Y.2d 222 (2001),38 which reversed a landmark jury verdict against gun manufacturers, City of New York v. State, 94 N.Y.2d 577 (2000),39 which struck down New York City's commuter tax, and In re Grand Jury Subpoena Duces Tecum Served on the Museum of Modern Art, 93 N.Y.2d 729 (1999),40 which quashed a subpoena issued as part of a grand jury investigation into a Nazi theft of certain paintings on exhibit at the Museum of Modern Art. As of early 2006, Judge Wesley's most cited opinions included Hamilton and Harris. They also included Small v. Lorillard, 94 N.Y.2d 43 (1999), a decision tackling the decertification of plaintiff classes, the application of the General Business Law, and the tort of fraudulent concealment, and Bast v. Rossoff, 91 N.Y.2d 723 (1998), a case exploring the standards for calculating child support between parents with shared custody over a minor.41

As a whole, Judge Wesley's opinions may be seen as reflections, at least in certain limited ways, of his personal experience. First, the Judge's opinions are notable for their clarity and accessibility, and it seems plausible to associate with his small-town grounding the Judge's exceptional diligence in distilling accessible opinions from out of the usual muddle of legal jargon and argument. The Judge himself has suggested, if unintentionally, a link between the clarity of his thought and writing and his small town roots. The Judge provided this insight in a speech given in the spring of 2005, where he stated:

"In my office in Geneseo, I have a pen and ink drawing and a picture - both serve as guideposts in my life with the law. The pen and ink drawing is of the Livonia Post Office. You see, I was born and raised in Livonia. I live just 3.5 miles from the home my father built 54 years ago for my family - my 84 year old mother still lives in that house. My roots run deep there. Every morning I go to the post office to get my mail and I often run into an old school classmate or friend who has read something in the paper about a case I have written. Occasionally, the classmate/friend will say, 'Dick' - no one calls me judge in Livonia - 'what the hell were you thinking when you wrote that decision?' I smile - occasionally offer a brief explanation, and then I go to work. Every once in a while I think about a decision and wonder - will I hear about this case at the Livonia Post Office? I call it the 'Livonia Post Office Test.' I must confess that I invoked the Livonia Post Office Test several times at the conference table at the New York Court of Appeals. Holmes reminded us that common sense does have its place in the law and despite public misperception at times about what I do, I try to keep myself grounded in the real world of human endeavor. . . ."42

The Judge's invocation of the Livonia Post Office Test provides a useful image of how his home accompanied him into the New York Court of Appeals' conference room. That image helps illustrate how the values of the Judge's home and upbringing - common sense and accessibility - serve to ground his jurisprudence.

The Judge's decisions also demonstrate an appreciation of the unique role of legislatures and a resulting deference to the political process that may be tied to his past service, and a number of opinions are illustrative, including Hamilton v. Beretta, 96 N.Y.2d 222 (2001).43 Hamilton presented the question, certified to the Court from the Second Circuit, of whether gun manufacturers owe the general public - rather than customers or purchasers - a duty to exercise reasonable care in the marketing and distribution of handguns.44 Judge Wesley answered the question in the negative, with the support of the entire Court.45 In rejecting plaintiffs' novel theory of tort liability, Judge Wesley deferred to an ongoing legislative debate:

"Federal law already has implemented a statutory and regulatory scheme to ensure seller 'responsibility' through licensing requirements and buyer 'responsibility' through background checks. While common-law principles can supplement a manufacturer's statutory duties, we should be cautious in imposing novel theories of tort liability where the difficult problem of illegal gun sales in the United States remains the focus of a national policy debate."46

This deference to legislative policy-making comports with Judge Wesley's statements in another context that "eighteen years on the bench have taught me that I should not stray from what I know best - working with the law - judging," and thus he would "leave the policy debate to others."47 As he has elsewhere stated, he believes that "[g]overning is not judging. Public policy is best forged in the furnace of open debate, not the witness stand of a courtroom."48 The Judge knows the difference between legislation and judging, as he has been, at different times, both legislator and judge.

Similarly, the Judge's opinions further reveal respect for the work of trial courts and the limits of appellate review - a respect, it may safely be ventured, arising from the Judge's years as a Justice at the trial level.49 The Judge has commented on the way his trial experience shaped his appellate perspective:

"A large number of cases have a distinctly human character to them - domestic cases and criminal maters come to mind. However, the texture of the trial is often washed out in the record. Prior experience at the trial level is helpful to the appellate judge - the difficulties of a trial are not often apparent from the questions and answers of a transcript. I remember a particularly difficult defendant who called me every name in the book and added a few obscene gestures for good measure - the transcript read: 'defendant gesturing and shouting!' Hardly an accurate picture."50

The Judge's experience as a trial judge undoubtedly gives him a perspective distinct from those jurists unfamiliar with the discrepancies possible between a trial and a trial transcript.

Finally, a distinctive feature of Judge Wesley's jurisprudence is his faith in and commitment to the rule of law, which may be traced in part to the Judge's exposure to the creation of laws in the legislature and to the realities of legal advocacy. He expressed this faith most clearly in a case he heard before the Second Circuit, Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003). That case involved Jose Padilla, an American citizen being held as an "enemy combatant," under suspicion of ties to Al Qaeda and involvement in plans to detonate a "dirty bomb" in the United States.51 Padilla had petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus,52 and Chief Judge Mukasey held that Padilla was entitled to counsel and an opportunity to rebut the Government's evidence that he was an enemy combatant.53 The Government appealed this decision, via the district court's certification, to the Second Circuit.54 Judge Wesley parted ways with the majority, which voted to reverse on the theory that the President lacked authority to detain Padilla.55 In a lengthy and thorough dissent, which would affirm Chief Judge Mukasey's holding, the Judge concluded with these thoughts:

"Mr. Padilla's case reveals the unique dynamics of our constitutional government. Padilla is alleged to be a member of an organization that most Americans view with anger and distrust. Yet his legal claims receive careful and thoughtful attention and are examined not in the light of his cause - whatever it may be - but by the constitutional and statutory validity of the powers invoked against him."56

This passage expresses the Judge's appreciation for the rule of law and the role of the judiciary, sentiments that also underlie a powerful image that the Judge has previously shared. As the Judge tells the story:

"The[re is a] picture in my office [that] was taken just off old U.S. Highway #1 in North Carolina in the Spring of 1968. My three fraternity brothers and I were on our way to Ft. Lauderdale for as much beer and sun as we could encounter in five days. But there, along the road near Jericho, North Carolina was a sign - 'YOU ARE IN THE HEART OF KLAN COUNTRY - WELCOME TO NORTH CAROLINA - JOIN THE UNITED KLANS OF AMERICA, INC. HELP FIGHT INTEGRATION AND COMMUNISM.' That sign stopped us cold in our tracks - it made us realize how different that place was from our homes in New York. I keep that picture in my chambers to remind my clerks how much our nation has changed in just one full generation. I keep that picture in chambers to remind me that judging is a noble calling - judges, throughout our nation's history, have stood as the final protectors of individual constitutional liberties, and will continue to do so long into the future."57

This photograph continues to hang in Judge Wesley's Second Circuit Geneseo chambers. It is a symbol of the Judge's faith in the judicial process, a process in which he has played a leading role for the greater part of his life.

PROGENY

Judge Wesley and his wife Kathy have two children, Sarah and Matthew. Both are graduates of Cornell University. Sarah attended and graduated from The University of Buffalo Law School in May of 2006, where she received the James M Kieffer award for excellence in trial advocacy for her participation on UB's nationally-recognized mock trial team. She is beginning her legal career as an associate of White and Case in New York City, where she will reside with her brother Matthew. Matthew played four years of sprint football (an NCAA-sanctioned intercollegiate football program for players under 165 pounds) at Cornell, and is a mortgage broker with Intercontinental Capital in New York City.

 

SOURCES CONSULTED

Blue Slips, Office of Legal Policy, U.S. Department of Justice, at http://www.usdoj.gov/olp/blueslips.htm.

Vincent M. Bonventre, et al., "Richard C. Wesley: Voting and Opinion Patterns on the New York Court," 66 Alb. L. Rev. 1065, 1084 (2003).

John Caher, "Wesley to Join Second Circuit Bench Today," New York Law Journal, June 18, 2003.

149 Cong. Rec. S7662-64 (daily ed. June 11, 2003).

James Dao, "Pataki Announces First Nomination to Highest Court," N.Y. Times, Dec. 4, 1994, at A1, Metropolitan Desk.

Judith H. Dobrzynski, "Modern Wins Ruling on Art Seizure," N.Y. Times, Sept. 22, 1999, at E1, The Arts/Cultural Desk.

Federalist Society, "Judge Wars," Panel, at 40-41 Sept. 9, 2003 (Remarks of Jeffrey Berman, Chief Counsel to Senator Schumer), available at http://www.fed-soc.org/Publications/Transcripts/judgeswars.pdf.

William Glaberson, "A Justice Rooted in Small-Town Life and Values: Richard Carl Wesley," N.Y. Times, Dec. 4, 1996, at B4, Metropolitan Desk.

William Glaberson, "First Arguments in Death Penalty Appeal Focus on Technicalities," N.Y. Times, May 7, 2002, at B6, Metropolitan Desk.

Michael T. Haugh, Letter to Viet D. Dinh, dated March 23, 2003, available at http://www.usdoj.gov/olp/haughletter.pdf.

Nora Jones, "Judge Richard C. Wesley Honored Locally," Daily Record, July 23, 2003.

Aaron Levine, Former Law Clerk.

Tiffany Lee, Former Law Clerk.

Ryan McAllister, Former Law Clerk.

James C. McKinley, Jr., "First Death Sentence Imposed Under '95 Law Is Overturned," New York Times, July 10, 2002, at B1, Metropolitan Desk.

James Moore, Letter to Sen. Orrin Hatch, dated Mar. 12, 2003, available at www.usdoj.gov/olp/wesleymooreletter.pdf

N.Y. Times Editorial, "Mr. Pataki Picks a Judge," N.Y. Times, Dec. 4, 1994, at A28, Editorial Desk.

Michael Nolan, Former Law Clerk.

"Nomination for Top Court," N.Y. Times, December 4, 1996, at B3, Metropolitan Desk.

Nominations, Office of Legal Policy, U.S. Department of Justice, at http://www.usdoj.gov/olp/judicialnominations108.htm.

Office of Legal Policy, "Richard C. Wesley: Biography," at www.usdoj.gov/olp/wesleybio.htm.

Governor George E. Pataki, Letter to Sen. Orrin Hatch, dated March 27, 2003, available at www.usdoj.gov/olp/patakiletter.pdf.

Richard Péréz-Peña, "Commuter-Tax Repeal Goes Before Top Court," N.Y. Times, February 16, 2000, at B5, Metropolitan Desk.

Richard Péréz-Peña, "Court Upholds Law to Repeal Commuter Tax," N.Y. Times, April 5, 2000, at B1, Metropolitan Desk.

Richard Péréz-Peña, "State Court Sides With Gun Makers in Liability Case," N.Y. Times, April 27, 2001, at A1, Metropolitan Desk.

Press Release, "Governor Pataki to Nominate Wesley to Court of Appeals," Dec. 3, 1996, available at www.ny.gov/governor/press/olderyears/dec32.html (hereinafter "Nomination Announcement").

Beth Schonmuller, Former Law Clerk.

New York Attorney General Elliott Spitzer, Letter to Sen. Orrin Hatch and Sen. Patrick Leahy, Mary 20, 2003, quoted at www.usdoj.gov/olp/wesleysupport.htm.

"Vote Totals for Races in the New York State Assembly," N.Y. Times, Nov. 4, 1982, at Metropolitan Desk.

 

PUBLICATIONS AND SPEECHES INCLUDE:

"Presidential War Powers in a Post-9/11 World," Speech, Harvard Law School (April 11, 2006).

John E. Burton Lecture (May 12, 2005, Albany, NY), available at http://www.albany.edu/rockefeller/pdfs/Burton%20Lecture2_2005.pdf.

"If Legislators Fail, Who is There to Follow?," 68 Alb. L. Rev. 703 (2005).

"When Law and Medicine Collide," 12 Cornell J.L. & Pub. Pol'y 261 (2003).

"Hugh Jones and the Modern Courts: The Pursuit of Justice Then and Now," Albany Law School (Mar. 11, 2002), 65 Alb. L. Rev. 1123 (2002), original speech available at http://www.moderncourts.org/Events/Jones/2002lecture.html.

"New York Court of Appeals: A Personal Perspective," 48 Syracuse L. Rev. 1461 (1998).

 

ENDNOTES

  1. William Glaberson, "A Justice Rooted in Small-Town Life and Values: Richard Carl Wesley," N.Y. Times, Dec. 4, 1996, at Metropolitan Desk.
  2. According to the New York Times, Judge Wesley won the 1982 election in a landslide, winning 21,437 votes compared to the 13,254 votes of his Democratic opponent, Ronald F. Foley. See "Vote Totals for Races in the New York State Assembly," N.Y. Times, Nov. 4, 1982, at Metropolitan Desk.
  3. See, e.g., 149 Cong. Rec. S7663 (daily ed. June 11, 2003) (Remarks of Sen. Clinton) ("Having a significant public service record is not a requirement for serving on our Federal judiciary. But it is very significant to note that Judge Wesley has spent most of his career serving the public trying to make New York a better place for our children and families."); id. at S7664 (Remarks of Sen. Clinton) ("I am also very impressed that Judge Wesley has been a champion for victims of domestic violence. He has been in the forefront for years in providing shelter for victims of domestic violence, primarily women and their children."); id. (Remarks of Sen. Hatch) ("Not only has he served in his professional capacity, but also believes in community service and has been involved in community service organizations such as the United Church of Livonia, Chances and Changes, a community-based organization in Livingston County that provides safe housing to battered women, and the Myers Foundation, a foundation based in his hometown that helps needy families in the area. Judge Wesley is also active in a number of local youth sports programs and serves as a driver for the Livonia Volunteer Ambulance."); Letter from Michael T. Haugh to Viet D. Dinh, dated March 23, 2003, available at http://www.usdoj.gov/olp/haughletter.pdf.
  4. William Glaberson, "A Justice Rooted in Small-Town Life and Values: Richard Carl Wesley," N.Y. Times, Dec. 4, 1996, at Metropolitan Desk.
  5. Hon. Richard C. Wesley, John E. Burton Lecture 3 (May 12, 2005, Albany, NY).
  6. 149 Cong. Rec. S7663 (daily ed. June 11, 2003) (Remarks of Sen. Clinton). The Judge explained: "In 1993, I was serving as the Supervising Judge of the Criminal Courts in the Seventh Judicial District. Confronted with a growing backlog of criminal cases on our docket, I commissioned a panel of judges, clerks, defense counsel and prosecutors to examine the problem and propose a solution. We discovered that no one had ever looked at the process as a whole from a defendant's arrest on a felony complaint, through arraignment in a local court and ultimately indictment by a Grand Jury. It became apparent that no formal process for seeking a resolution to a large number of 'plea eligible' cases existed. Out of that collaborative effort came Felony Screening. We attempted to make the court user friendly -- all court documents given to defendants were rewritten to simple English, or translated into Spanish. Defense counsel were provided relevant material to assess the strength of the People's case while prosecutors retained the right to remove serious violent offenders from the process. Plea offers were in writing and a full range of services from pretrial assistance to drug counseling were available. The result -- the backlog of cases dropped significantly in a short period of time." The Hon. Richard C. Wesley, "Hugh Jones and the Modern Courts: The Pursuit of Justice Then and Now," Albany Law School (Mar. 11, 2002), available at http://www.moderncourts.org/Events/Jones/2002lecture.html.
  7. 149 Cong. Rec. at S7663-64 (Remarks of Sen. Clinton).
  8. "Upon taking the bench, Judge Wesley earned a well deserved reputation for hard work, a keen intellect and well-reasoned decisions, which resulted in his 1994 designation to the Appellate Division, Fourth Department by then-Governor Cuomo." Governor George E. Pataki, Letter to Sen. Orrin Hatch, dated March 27, 2003, available at http://www.usdoj.gov/olp/patakiletter.pdf.
  9. Editorial, "Mr. Pataki Picks a Judge," N.Y. Times, Dec. 4, 1994, at A28, Editorial Desk.
  10. Press Release, "Governor Pataki to Nominate Wesley to Court of Appeals," Dec. 3, 1996, available at www.ny.gov/governor/press/olderyears/dec32.html (hereinafter "Nomination Announcement").
  11. See People v. Burdo, 91 N.Y.2d 146 (1997) (writing lone dissent); Anello v. Zoning Bd. of Appeals of the Village of Dobbs Ferry, 89 N.Y.2d 535 (1997) (writing lone dissent); see also Presbyterian Hosp. in the City of New York v. Maryland Casualty Co., 90 N.Y.2d 274 (writing dissent in which Judges Titone and Levine concurred).
  12. One commentator calculated in 2003 that the Judge was with the majority in 82% of cases. See Vincent M. Bonventre, et al., "Richard C. Wesley: Voting and Opinion Patterns on the New York Court," 66 Alb. L. Rev. 1065, 1084 (2003). "His 82% agreement with the majority contrasts sharply with the respective 50% and 54% figures for Judges Titone and Smith, Wesley's colleagues with the most liberal records during the period studied. Likewise, his alignment with the majority is noticeably higher than the 69% figure for Judge Bellacosa, who for many years was the most conservative . . . member of the New York court." Id.
  13. See, e.g.. 149 Cong. Rec. at S7664 (Remarks of Sen. Clinton) ("Judith Kaye, the Chief Judge of that court, cannot say enough about Judge Wesley's contributions."); id. at S7664 (Remarks of Sen. Hatch) ("Joseph Bellacosa, dean of the St. John's University Law School and a former colleague on the New York Court of Appeals, writes that Judge Wesley is 'intellectually curious and open to fresh ideas and insights of others, respectful of the great strength derived from collegial shared wisdom of others, yet confident and resolute in his personal conviction on values and fundamental principles. He is also a tireless worker and seeker of equal justice for all. He loves being a Judge and is devoted to the fair administration of justice under the rule of law.'"); James Moore, Letter to Sen. Orrin Hatch, dated Mar. 12, 2003, available at www.usdoj.gov/olp/wesleymooreletter.pdf ("[H]e has emerged as a leader among his colleagues by virtue of his grasp of the facts and law in the case at hand, the prodigious hours which he devotes to research, analysis and writing, and his excellent administrative skills . . . .").
  14. 149 Cong. Rec. at S6773 (Remarks of Sen. Schumer).
  15. Editorial, "Mr. Pataki Picks a Judge," N.Y. Times, Dec. 4, 1994, at A28, Editorial Desk.
  16. Nomination Announcement.
  17. Id.
  18. James Dao, "Pataki Announces First Nomination to Highest Court," N.Y. Times, Dec. 4, 1994, at A1, Metropolitan Desk.
  19. Editorial, "Mr. Pataki Picks a Judge," N.Y. Times, Dec. 4, 1994, at A28, Editorial Desk.
  20. See, e.g.,William Glaberson, "A Justice Rooted in Small-Town Life and Values: Richard Carl Wesley," N.Y. Times, Dec. 4, 1996, at Metropolitan Desk.
  21. James Dao, "Pataki Announces First Nomination to Highest Court," N.Y. Times, Dec. 4, 1994, at A1, Metropolitan Desk ("'He's an intelligent, rational guy,' said Assemblyman Daniel L. Feldman, a Brooklyn Democrat who is chairman of the Assembly Corrections Committee. 'I'm delighted in his nomination.'").
  22. See Editorial, "Mr. Pataki Picks a Judge," N.Y. Times, Dec. 4, 1994, at A28, Editorial Desk ("While we do not share Judge Wesley's views on the death penalty . . . the Governor has made a respectable choice.").
  23. The Hon. Richard C. Wesley, "New York's Court of Appeals: A Personal Perspective," 48 Syracuse L. Rev. 1461, 1461 (1998).
  24. Id. at 1462.
  25. New York Attorney General Elliott Spitzer, Letter to Sen. Orrin Hatch and Sen. Patrick Leahy, Mary 20, 2003, quoted at www.usdoj.gov/olp/wesleysupport.htm.
  26. 149 Cong. Rec. S7664 (Remarks of Sen. Hatch), June 11, 2003.
  27. James Moore, Letter to Sen. Orrin Hatch, Mar. 12, 2003, available at www.usdoj.gov/olp/wesleymooreletter.pdf.
  28. See Nominations, Office of Legal Policy, U.S. Department of Justice, at http://www.usdoj.gov/olp/judicialnominations108.htm.
  29. Governor George E. Pataki, Letter to Sen. Orrin Hatch, dated March 27, 2003, available at www.usdoj.gov/olp/patakiletter.pdf.
  30. Id.
  31. John Caher, "Wesley to Join Second Circuit Bench Today," New York Law Journal, June 18, 2003.
  32. Senator Leahy of the Judiciary Committee stated: "This is a nominee to one of the most important courts in the country. It is actually my circuit. It is a Republican nominee, nominated by a Republican President. I predict that the nominee is going to go through easily because, contrary to the normal procedure on some of these nominees, the White House has sent up somebody who can unite us, not divide us. Usually they send nominees who divide us and not united us. This is an example of what happens when a nominee to a powerful court is sent up who will unite us and not divide us." 149 Cong. Rec. at S7662 (Remarks of Sen. Leahy).
  33. See, e.g., Blue Slips, Office of Legal Policy, U.S. Department of Justice, at http://www.usdoj.gov/olp/blueslips.htm (showing that both Senators submitted blue slips in support of the Judge).
  34. 149 Cong. Rec. at S7662-63 (Remarks of Sen. Schumer); see also id. at S7663 (Remarks of Sen. Schumer) ("He is a judge, not an activist.") ("What is abundantly clear from his record on the bench is that he can check his personal beliefs at the door and judge fairly and honestly."). The Senator's Chief Counsel explained that the Senator Schumer decided to support Judge Wesley because of his judicial independence and objectivity:
    "Judge Wesley has a lengthy record as a judge in the State of New York, and he has proven himself on the bench not to be an activist. He's someone who does his best to look at an issue neutrally and objectively and does not bring an agenda to the decisions that he issues. . . . That was a significant factor in my boss's decision, not just to vote for Judge Wesley, but to actively champion his nomination and to shepherd his confirmation through the United States Senate. "[Senator Schumer] and Judge Wesley clearly do not see eye to eye on a number of core hot-button issues, but he was persuaded, Judge Wesley carried the burden, to show that he would be a fair and balanced judge - not in the Fox News sense of 'fair and balanced,' but in the neutral sense of fair and balanced." Federalist Society, "Judge Wars," Panel, at 40-41 Sept. 9, 2003 (Remarks of Jeffrey Berman, Chief Counsel to Senator Schumer), available at http://www.fed-soc.org/Publications/Transcripts/judgeswars.pdf.
  35. 149 Cong. Rec. at S7663-64 (Remarks of Sen. Clinton).
  36. The Judge authored important decisions, for instance, in the areas of statutory interpretation, see, e.g., Orens v. Novello, 99 N.Y.2d 180 (2002), contract, see, e.g., R/S Assoc. v. N.Y. Job Dev. Auth., 98 N.Y.2d 29 (2002); Jarecki v. Shung Moo Louie, 95 N.Y.2d 665 (2001); Agoda Realty Corp. v. United Int'l Ins. Co., 95 N.Y.2d 141 (2000), tort, see, e.g., Peralta v. Henriquez, 100 N.Y.2d 139 (2003); Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (1999), family law, see, e.g., Dutchess County Dep't of Social Servs. v. Day, 96 N.Y.2d 149 (2001); Bast v. Rossoff, 91 N.Y.2d 723 (1998), environmental law, see, e.g., Spitzer v. Farrell, 100 N.Y.2d 186 (2003), criminal law, see, e.g., People v. Prescott, 95 N.Y.2d 655 (2001); People v. Johnson, 95 N.Y.2d 368 (2000); People v. Owusu, 93 N.Y.2d 398 (1999), criminal procedure, see, e.g., People v. Mundo, 99 N.Y.2d 55 (2002); People v. Jackson, 98 N.Y.2d 555 (2002); People v. Arroyo, 98 N.Y.2d 101 (2002); People v. Jones, 96 N.Y.2d 213 (2001); People v. Vasquez, 89 N.Y.2d 521 (1997), and state and federal constitutional law, see, e.g., Tenn. Gas Pipeline Co. v. Urbach, 96 N.Y.2d 124 (2001); People v. Foley, 94 N.Y.2d 668 (2000); City of New York v. State, 94 N.Y.2d 577 (2000); Tamagni v. Tax Appeals Tribunal, 91 N.Y.2d 530 (1998).
  37. See, e.g., James C. McKinley, Jr., "First Death Sentence Imposed Under '95 Law Is Overturned," N.Y. Times, July 10, 2002, at B1, Metropolitan Desk; William Glaberson, "First Arguments in Death Penalty Appeal Focus on Technicalities," N.Y. Times, May 7, 2002, at B6, Metropolitan Desk.
  38. See, e.g., Richard Péréz-Peña, "State Court Sides With Gun Makers in Liability Case," N.Y. Times, April 27, 2001, at A1, Metropolitan Desk.
  39. See, e.g., Richard Péréz-Peña, "Court Upholds Law to Repeal Commuter Tax," New York Times, April 5, 2000, at B1, Metropolitan Desk; Richard Péréz-Peña, "Commuter-Tax Repeal Goes Before Top Court," N.Y. Times, February 16, 2000, at B5, Metropolitan Desk.
  40. See, e.g., Judith H. Dobrzynski, "Modern Wins Ruling on Art Seizure," N.Y. Times, Sept. 22, 1999, at E1, The Arts/Cultural Desk.
  41. According to a Westlaw search conducted by the author on April 25, 2006, Small was cited by courts in 113 different cases, while Hamilton was cited in 82 cases, Harris in 44 cases, and Bast in 42 cases.
  42. Hon. Richard C. Wesley, John E. Burton Lecture 11-12 (May 12, 2005, Albany, NY).
  43. See also Billing v. Credit Suisse First Boston, 426 F.3d 130, 172 (2d Cir. 2005) ("[W]e do not have the responsibility for making national policy.").
  44. See Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36, 46 (2d Cir. 2000).
  45. See Hamilton, 96 N.Y.2d at 231.
  46. See id. at 239-40.
  47. Hon. Richard C. Wesley, John E. Burton Lecture 2 (May 12, 2005, Albany, NY).
  48. Hon. Richard C. Wesley, "If Legislators Fail, Who is There to Follow?," 68 Alb. L. Rev. 703, 711 (2005).
  49. See, e.g., United States v. Quattrone, 441 F.3d 153, 187 (2d Cir. 2006); People v. Harris, 98 N.Y.2d 452, 488-90 (2002); People v. Jones, 96 N.Y.2d 213 (2001); Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (1999); People v. Hues, 92 N.Y.2d 413 (1998); People v. Buie, 201 A.D.2d 156 (4th Dep't 1994).
  50. Hon. Richard C. Wesley, John E. Burton Lecture 4 (May 12, 2005, Albany, NY).
  51. See Padilla v. Rumsfeld, 352 F.3d 695, 698-701 (2d Cir. 2003).
  52. Id. at 701.
  53. Id.
  54. See id. at 702.
  55. Id. at 698-99, 710-24.
  56. Id. at 733.
  57. Hon. Richard C. Wesley, John E. Burton Lecture 11-12 (May 12, 2005, Albany, NY).