Judge Victoria A. Graffeo: Committed, Conservative, Collegial

It is too early for all but speculation on how Judge Graffeo's appointment will impact the court. Commentators generally expect her to be moderately conservative and self-restrained. If her voting does turn out to be staunchly conservative--i.e., strongly pro-prosecution and pro-government authority--she would be continuing in the path of her predecessor, [Judge] Bellacosa. That in itself would create no change.... On the other hand, if Graffeo's voting were to be more centrist or, by surprise, somewhat liberal, her presence would then have a moderating and even liberalizing effect on the Court of Appeals.... (1) I. INTRODUCTION After nearly a decade of service on the New York Court of Appeals, Associate Judge Victoria A. Graffeo is far from liberal. Appointed in 2001 by Republican Governor George E. Pataki, Judge Graffeo's judicial philosophy on the high court bench has been unsurprisingly conservative. Her voting record has been consistently pro-prosecution and pro-government authority. But despite cultural and ideological similarities, she has distinguished herself from Judge Joseph W. Bellacosa, whose seat she replaced after his departure from the court. (2) Unlike Judge Bellacosa, Judge Graffeo has taken a gentler role on the state's highest tribunal. (3) By most often joining in the majority's decisions, many observers would not describe her as a mover and shaker. In fact, during her lengthy tenure, she has only authored a small number of dissenting opinions. (4) Her reluctance to authoring dissents was somewhat predictable based upon the fact that she had only written or joined three dissenting opinions in the over 1,800 cases that came before the her on the Third Department. (5) Moreover, in contrast to some of her colleagues, her dissents are neither written with a sharp tongue nor laced with hostility, but rather written in a clear-cut fashion; exacting the legal point and supporting her proposition with only the facts of the case at-hand. (6) Her mild presence should not, however, be mistaken for complacency or insecurity. Judge Graffeo is steadfast in her beliefs and is not afraid to voice discontent. Most importantly, she is consistent when applying her judicial beliefs. To that end, by reviewing her professional background, selected case law, and her decision-making during her tenure, this article explores some of her judicial themes that have emerged to afford the reader a better understanding of who she is as a judge on the state's highest court. II. BACKGROUND On November 3, 2000, at a news conference in the state's Executive Chamber, Governor Pataki nominated then-Appellate Division Justice Victoria Graffeo for the New York Court of the Appeals. (7) She was appointed to fill the vacancy left by Associate Judge Joseph Bellacosa, who left the court to become Dean of St. John's University Law School. (8) Upon nominating Judge Graffeo, Governor Pataki stated that she ha[d] greatly distinguished herself throughout her diverse career in public service. (9) Judge Graffeo's public service to the State of New York began in 1982, when she served as assistant counsel to the New York State Division of Alcoholism and Alcohol Abuse. (10) Two years later, she served in the state legislature as counsel to the Assembly Republican Minority Leader Pro Tempore, Kemp Hannon, and then as chief counsel to Assembly Minority Leader Clarence D. Rappleyea, Jr. from 1989 through 1994. (11) In 1995, newly elected Republican Attorney General Dennis Vacco named Victoria Graffeo as his solicitor general. In her capacity as a solicitor general, Victoria Graffeo worked closely with Attorney General Vacco to defend New York's 1995 revival of its death penalty statute. (12) She also was instrumental in the criminalization of physician-assisted suicide. (13) In September 1996, Governor Pataki appointed Victoria Graffeo to fill a vacancy for the New York State Supreme Court, Third Judicial District, in Albany, N. …