Lawmakers call for ‘diverse’ pool of chief judge candidates
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A group of 20 State Senators are urging the Commision on Judicial Nomination to break from its normal practices and recommend a more professionally diverse number of candidates to Governor Kathy Hochul, who will soon fill the vacancy left by former Chief Judge Janet DiFiore. Photo via NY Courts
By Jacob Kaye
The deadline to apply to become the next chief judge of the state of New York has passed. Now, a group of nearly two dozen lawmakers are calling on the group tasked with whittling down the candidate pool to recommend a diverse slate of potential picks to the governor in the coming months.
A group of 20 State Senators recently wrote to the Commission on Judicial Nomination asking that among the seven names of candidates they send to Governor Kathy Hochul to replace former Chief Judge Janet DiFiore, there be some that “represent the professional and cultural diversity of our state and have demonstrated commitment to providing justice to the most vulnerable.”
Though the call to recommend candidates with a background in public defense, or who are ethnically, racially or otherwise diverse, is not new, it has intensified.
The letter from the 20 senators – which includes two from Queens – builds upon a letter previously sent to the commission by over 100 nonprofit organizations and legal groups throughout the state making a similar request. It also builds on a request from Senate Deputy Majority Leader Michael Gianaris, the lead signatory of the letter, who wrote to the commission last year as Hochul prepared to fill the vacancy created by now-retired Justice Eugene Fahey.
The lawmakers, who will soon consider Hochul’s soon-to-be-made pick for chief judge, allege that the commission has “fallen far short” of its “commitment to considering nominees for the Court of Appeals with outstanding personal and professional qualifications who reflect the diversity of New York’s citizenry including, but not limited to, diversity in race, ethnicity, gender, religion, sexual orientation, community service, nature of legal practice or professional background and geography.”
A bulk of the recommended candidates made the commission in recent years pulled from a group of past prosecutors, judges and private attorneys.
“The last Chief Judge list, for example, consisted of three long-time prosecutors, three partners at large commercial law firms, and one former administrative judge—but not one civil rights attorney, public defender, or tenant advocate,” the senators wrote. “Indeed, career advocates for vulnerable New Yorkers have been conspicuously absent from eight of the last ten lists the Commission has generated.”
In the letter, the lawmakers urge the commission to follow four principles: recommending nominees with a “commitment to delivering justice for the most vulnerable,” candidates with a background in civil rights or public defense, candidates that tout “New York’s tradition of independent state constitutional interpretation,” and candidates who are free from political influence.
The chief judge of the Court of Appeals not only serves as the top judge on the state’s top court, but also serves as the face of the state’s court system. With that in mind, the senators said they want candidates to display a commitment to ensuring that the courts “serve the most vulnerable [who] have been repeatedly starved of resources and are now in a state of crisis following the disruptions of the COVID-19 pandemic.”
While the Senate’s confirmation of Court of Appeals picks has a history of being pro forma, the letter’s signatories said that they intend to “closely scrutinize candidates’ understandings of how New York’s court system functions in practice, and their commitment to ensuring that it upholds the values of equal justice under the law.”
“New York deserves a Chief Judge who can deliver a court system that works for everyone, not just the wealthy,” they wrote.
Last fall, Gianaris told the Eagle that among his reasons for asking that the commission nominate, and the governor to later appoint, candidates with a background in public defense was his regret in supporting now-Court of Appeals Justice Madeline Singas.
Despite pushback from progressive groups, Gianaris issued his support for Singas, the former Nassau County district attorney. Last year, Singas voted in line with a conservative bloc of four justices – which included DiFiore – on nearly every case that came before the Court of Appeals.
“This is exactly why I wrote to the commission directly – we had the Senate presented with one option, at the end of the day,” Gianaris said in October. “I made the decision I thought was best at that instance, given the option that was presented to us.”
In a statement released Tuesday, Gianaris said: “Court of Appeals judges must be defined by a lifetime of legal excellence, but that cannot be limited to people in just a few, select fields.”
“For the Court to reflect the values of our state, its jurists should represent that excellence in different areas of the law and a commitment to serving others,” he added. “That is especially important of the Chief Judge, who not only sets the tone for the Court but administers the state’s entire court system.”
Of the over 240 candidates the commission, which was created in 1977, has recommended to New York’s governors, less than 10 have been career civil rights attorneys or public defenders.
When filling the vacancy left by Fahey last year, the commission recommended five appeals judges and two candidates with a public defense background. However, that was a break from the nominations made the year prior, when all 14 recommendations to fill one of two vacancies were current judges or private attorneys.
“New York has the finest public interest bar in the nation, many members of which have made significant contributions to the law as judges on the federal District Courts and the Second Circuit Court of Appeals,” the lawmakers wrote. “We urge the Commission to include on its list multiple lawyers who have spent their careers defending New York’s most vulnerable, whether through criminal defense, housing advocacy, or impact litigation.”
The senators also noted the court’s alleged conservative bent – which ruled against the lawmakers’ recent attempt to redistrict the state.
“In the face of a federal judiciary increasingly hostile to New Yorkers’ constitutional rights, it is more important than ever that the Court of Appeals understand and use its power to make decisions based on New York’s own Constitution and laws, particularly where they offer protections above and beyond federal law,” the senators wrote.
“In the last several years the Court of Appeals has regressed, increasingly narrowing its reading of New York’s Constitution to simply mirror the U.S. Supreme Court’s interpretation of the U.S. Constitution,” they added. “We intend to carefully evaluate candidates’ understandings of New York’s rich constitutional history, and we urge you to do likewise, so our state can be guaranteed a Chief Judge who understands the unique role that our state’s Constitution plays in protecting the rights of all New Yorkers.”
State Senator Jessica Ramos, the only other Queens member beyond Gianaris to sign onto the letter, said in a statement that the court needs a course correction.
“The opportunity to appoint a new Chief Judge and reset so much of our former governor’s terrible impact on our courts can’t be squandered,” Ramos said. “This vacancy has already been mired by impropriety and scandal, and we need to correct course. This letter demonstrates a growing consensus among my colleagues that we can only vote to confirm a nominee who will move the Court of Appeals forward.”
Lastly, the senators urged the commission to recommend candidates not “beholden to any of the state’s political power brokers but instead be wholly committed to advancing impartial justice for all.”
DiFiore, who officially stepped down from the post last week, was often seen as being an ally of former Governor Andrew Cuomo, who nominated her in 2016.
“New Yorkers deserve a judiciary that can be trusted to be an honest broker of impeccable integrity, and we encourage the Commission to select candidates accordingly,” the senators said.
With the application window now closed, the commission will consider candidates and submit its seven recommendations to Hochul in November. Hochul will then choose one of the seven as her nominee for chief judge.
That nominee will likely not take the bench until the start of 2023, following the State Legislatures return to session in January.
Hochul has held her opinion on what kind of candidate she prefers close to her chest, saying earlier this summer that she is hoping to nominate “best jurist I can find in the state of New York.”
“Regardless of any predispositions, a judge is expected to look at every case that comes in for them with a balanced eye,” she added. “We saw what happened in the Supreme Court when there was an intentionality behind selecting people who had a certain predisposition and look where we are today.”
Anthony Cannataro, who was nominated alongside Singas in 2021 and who, as a Court of Appeals justice, has voted alongside DiFiore, Singas and Michael Garcia on a bulk of cases, was named the acting chief judge last month. He began his temporary term last week. No acting justice since 1974 has gone on to be named chief judge.
