As noted here, former New York Gov. Mario Cuomo was spotted in the public spectators' section of the Supreme Court on Monday for the arguments in Travelers Indemnity Co. v. Bailey. Cuomo, of counsel at Wilkie Farr & Gallagher, had good reason to be in court that day: He was the mediator in a recent phase of the long-running asbestos litigation that was at issue in the case.
But Cuomo has another strong link to the Supreme Court. He came very, very close to being appointed to replace Byron White when White retired in 1993. According to Jeff Toobin's book The Nine, Cuomo said yes twice to President Bill Clinton's offer of the nomination, only to change his mind, prompting Clinton to name Ruth Bader Ginsburg instead.
So we caught up with Cuomo by phone to ask him how it felt to be watching a Court he could have been on. It turns out that Monday was the first time in more than 40 years that Cuomo, 76, had been in the Court to watch an argument. He wrote three Supreme Court briefs "as a kid" at a New York firm in the early 1960s and attended arguments then. "Coming back and standing there in front of the Court really does something to you," Cuomo says.
Cuomo notes he could have sat in the lawyers' section -- he's been a member of the Supreme Court bar since 1960 -- but decided "I didn't want to sit with the lawyers" because of his role as an impartial mediator in the underlying case. Cuomo says it was particularly interesting to watch the usually inquisitive Antonin Scalia fall largely silent for the hour. "He's another Italian from Queens, like me" Cuomo jokes.
The former governor says his visit to the Court did not trigger any regrets about his road not taken. "I probably could have gotten the job, I guess," he says. "But it was the Ginsburg seat, and she has voted in most cases the way I would have. She's one of my favorite judges." His feelings about being a justice on the high court have not changed, Cuomo says. "You have 100 cases a year at the Court, and five or six of them are really significant, maybe."
When the Clinton offer came, Cuomo says, the deciding factor in saying no was the prospect of "never being able to speak out again" on issues like the death penalty or poverty. "Even now, nobody is talking about poor people," Cuomo laments. After serving as New York governor for three terms, he said that virtual vow of silence seemed impossible.
He's been happy doing other things that help people in recent years, Cuomo says. "One does what one can." He counts his mediation in the asbestos case as one of his endeavors that has benefited those who need help. Through the mediation, a new $500 million fund was created to compensate thousands more victims of asbestos-related disease who could not have received anything from the depleted Johns-Manville fund.
In the conversation with Legal Times, Cuomo confesses only one Court-related regret: "I wish I had a chance to argue."
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