Angst is brewing over the confirmation battle for the Justice Anthony Kennedy seat on the Supreme Court of the United States. An example from the early '90s offers some perspective on the subject. The name of then-Governor Mario M. Cuomo was floated, and after a short tease, disappeared into an historical footnote. What happened? It was reliably reported that President Bill Clinton considered (some said, even offered) Cuomo the nomination to SCOTUS. Speculation ensued that Cuomo, if appointed, would become the jurisprudential equalizer to fellow Queens New York native, Justice Nino Scalia. Alas, the rousing intellectual debates around the super-secret Court conference table never came to be. A recent book about the late Governor (“ American Cicero” by Professor Saladin Ambar) confers the classical mantle of Cicero on him - in recognition of the oratorical skills that he projected nationally in heralded speeches in the 1980s at the Democratic National Convention in San Francisco and at Notre Dame University. To understand this Cuomo fellow in this SCOTUS context, Socrates and his pithy principle of “Know Thyself” is useful. To set the stage, it is well to recall Cuomo's earlier dalliance of a run for the presidency in 1988. A national campaign would have necessitated his entrusting his message and ultimate success to many strangers. That was alien to his comfort zone, as he liked working close to his own nest and vest. He spoke often as a man who saw himself as the proud product of the neighborhood Mom & Pop shop. Make no mistake, he was also an ambitious man, confident about his God-given talents and strengths. Yet, his tightly tethered ambition was displayed when he ended another of his less-renowned speeches - his first Inaugural as Governor - by publicly promising his deceased and revered father that he would not be distracted by the cérémonie ( the trappings of high office) . The unavoidable modus operandi to run for president was, thus, incompatible with the figure he saw reflected through his Socratic mirror. That realization probably would have convinced him to stay put on his New York home court turf, while the hilarious image of the plane idled away on the Albany Airport tarmac. |

A Possible Nomination

That set the stage for the next dalliance – a possible nomination to the Supreme Court. This supreme capstone to Cuomo's public and lawyerly career seemed a perfect fit. Cuomo's mother's dream for him, as he often told the story, that he might become a judge, would also be fulfilled. Despite his tongue-in-cheek wisecrack about not wanting to top off his career hidden under a black robe, he held the judicial process in the highest regard. Privately, Cuomo also fantasized the debates he might have with the highly respected intelligence of his diametrically opposite number – Justice Antonin Scalia – two American-Italian immigrant success stories, wearing respective St. John's - Harvard “tee” shirts under their robes. Socrates and the Know Thyself principle, however, popped up anew. An astute student of history, Cuomo would have weighed the temporal dynamic of confirmation. If he accepted the nomination, he would have been the first post-Robert Bork Senate piñata. Political party retribution hung heavily in the poisoned confirmation atmosphere – as it has ever since - skewing the process in a regrettable way. Cuomo enjoyed a feisty litigator reputation and intellectual debate about ideas, big and small. So, the trial combatant, the former law professor at St. John's highly skilled in the Socratic Teaching Method, faced a new crossroad. Should he enter the transmogrified confirmation ring, or once again stay put? This time he would be in control of his own destiny – no long-arm delegations to unknown others. Occasionally caricatured as “Hamlet on the Hudson,” Cuomo thus faced his “to be or not to be” moment. Picture it this way: The nominee, then and now, sits alone at the Senate confirmation hearing table, primed (and biting one's tongue, as it were), to reply respectfully and diplomatically by saying absolutely nothing of consequence. Every utterance on every issue to many Senate interlocutors (neither a Cicero nor a Socrates among them) would be counter intuitively interdicted – a Trappist-like silence. Governor Mario Cuomo (full disclosure: a friend who appointed me to the New York State Court of Appeals in 1987) well knew his impatience for this kind of inane kabuki. Cuomo knew his natural disposition as a person of combative rigor and intellectual integrity would not survive sitting there without blunt and serious ripostes. He probably grimaced at the Socratic and Hamletian reflections and decided to pass on the offered hemlock. Joseph W. Bellacosa retired from his position as associate judge on the state Court of Appeals in 2000. He also served as dean of St. John's Law School.