ALBANY - When the state's highest court ruled recently that Gov. David Paterson had the right to name a lieutenant governor, there were immediate cries that partisan politics were at work. Several former top judges, however, say independence and institutional ethics trump those considerations, including the interests of the governor who appointed them.

The state's top court split 4-3 to uphold Paterson's appointment of Richard Ravitch as lieutenant governor, the first time a governor has even attempted such an appointment in New York.

“Notably - and no doubt curiously, even suspiciously to some - the voting was almost entirely according to political party lines,” said Albany Law School professor Vincent Bonventre, a longtime court watcher and former clerk. “All of the court's judges who were appointed by a Democratic governor sided with Paterson.”

The majority decision was written by Chief Judge Jonathan Lippman, nominated by Paterson in January and confirmed by a Democrat-controlled Senate.

Judge Eugene Pigott Jr., appointed by Republican Gov. George Pataki, wrote the dissent, agreeing with Senate Republican leader Dean Skelos that the state constitution didn't allow the appointment.

Two judges chosen by different Democratic governors backed Lippman. Two others selected by Pataki sided with Pigott.

But the swing vote, the Pataki-appointed Judge Susan Read, agreed with Lippman.

“The fact that Judge Read was with the majority I think supports my own feeling that this is not a political decision,” said Brooklyn Law School Professor Will Hellerstein, who has argued several cases at the top court.

Canisius Professor Peter Galie was one of a handful of state constitutional scholars who submitted papers to the court arguing New York's constitution doesn't provide for appointing a lieutenant governor.

“We were stunned,” he said, adding he has no firsthand knowledge that the ruling was influenced by politics. “There would be reasons if you combined the partisan element with the idea that this state needed rescuing, put those two together, combine them so there's not only Paterson being rescued but the state is being rescued. It's interesting you have a confluence of two forces that, I don't know, give cover to the decision.”

Ravitch's appointment was meant to break a monthlong Senate gridlock. The lieutenant governor presides in the Senate and can cast tie-breaking votes on procedural issues. The position was vacant after Paterson was named governor following Eliot Spitzer's resignation.

In reversing two lower courts, Lippman agreed with the governor's lawyers that the generic constitutional provision for “filling vacancies” in public offices and a related statute provided the legal basis for the appointment. Pigott countered that specific provisions concerning the lieutenant governor call for an election, with the temporary Senate president filling in during vacancies.

Several former Court of Appeals judges said they don't believe partisan politics plays a role on the court.

“The answer is it surely didn't have any influence on me,” said retired Judge Howard Levine, a Republican ex-prosecutor and judge named to the top court by Democratic Gov. Mario Cuomo. “In my own case, I never felt that I owed it to the governor when I didn't believe he was right. I don't think the governor felt that way either.”

Another Cuomo appointee, retired Judge George Bundy Smith, said they made decisions that went against the governor, particularly regarding state finances.

“I think there's something called judicial politics, and that plays in getting a judge on a court whether he or she is elected or appointed,” Smith said. “Certainly on a court, a judge takes the bench, he or she knows who appointed him or her. But I think that there is an institutional value and there are institutional ethics which overcome any appointment by any official.”

Retired Judge Richard Simons, another Republican nominated by Cuomo, said judges know when a case involves the governor who put them there but, “It didn't influence me at all, no.”

Columbia Law School professor Richard Briffault said the court's judges frequently vote against the positions of the governor that appointed them, and their terms often outlast the governor's, though there may be some “philosophical sympathy.” Read's history as a lawyer for a governor - Pataki - may have made her more sympathetic to Paterson's position, he said.

Bonventre said a judge's background is one reason why they're chosen in the first place.

“Partisan affiliations suggests a judge's perspective, a judge's sympathies, a judge's notion of what makes sense in government. So it's not surprising when judges tend to vote along the same lines that a politician, say a legislator of their party, would vote,” he said.

Hellerstein pointed to the Bush v. Gore Supreme Court decision along party lines that resulted in George Bush winning the 2000 presidential election as an example of “a purely political decision.”

AP-ES-10-03-09 1046EDT