Opposition grows over bill to fast-track top court nominations
/
Governor Kathy Hochul and the legislature are quickly pushing through a bill to change the Court of Appeals’ nomination process. Some judges associations and attorneys are saying the bill is unconstitutional and will limit diversity on the bench. Photo by Mike Groll/Office of Governor Kathy Hochul
By Jacob Kaye
Opposition has begun to grow over a new bill recently brokered between the governor and legislature that would fast-track Court of Appeals judicial nominations if passed into law.
Several judicial organizations and attorneys say that the new bill, which would, under certain – and likely impending – circumstances, change the way Court of Appeals judges are nominated, could harm diversity in the state’s top court, generally limit opportunities for judges and attorneys to advance to the court and could potentially violate the state’s constitution.
The bill, which was passed by both the State Senate and Assembly at the end of the week, would allow the governor to forgo the normal process for nominating a judge to the Court of Appeals if the vacancy she is attempting to fill is a result her nominating a sitting Court of Appeals judge to chief judge.
The bill is what is known as a “program bill,” or a piece of legislation that is typically agreed upon by the governor and the legislature before it’s introduced. Though the governor and legislature have been slow to pass the state’s budget, the program bill has made its way through the legislature in less than a week.
The governor and the bill’s sponsors have said the bill is necessary to help prevent having prolonged periods where the court operates with only six of its seven judges seated. Currently, the court has been without a chief judge for eight months. That’s the longest the court has been without a top judge since the implementation of the current appointment process nearly five decades ago.
The very situation the bill addresses has a high likelihood of playing out in the coming weeks.
The Commission on Judicial Nomination last week submitted its list of seven recommended chief judge candidates to Governor Kathy Hochul. That list included three sitting Court of Appeals judges, including Shirley Troutman, Rowan Wilson and Anthony Cannataro, who has served as acting chief judge since former Chief Judge Janet DiFiore abruptly stepped down last August.
Should Hochul select either Troutman, Wilson or Cannataro as her nominee for chief judge, she could simultaneously select another candidate from that same list of recommendations to serve in the vacancy her nomination created, under the bill.
On Thursday, Mary Farley, the president of the Association of Justices of the Supreme Court of the State of New York, urged Assembly Speaker Carl Heastie to “pause” the calendering of the bill. Farley’s letter to Heastie was sent shortly after the Senate passed the bill on Thursday.
The request was not honored. On Friday, the Assembly passed the bill. As of print time, the bill has yet to be sent to the governor’s desk for her signature.
Farley noted in her letter that the pause would not affect the timing of the current chief judge nomination process – Hochul is unable to make a nomination until April 8.
The leader of the judicial group said that time should be taken to conduct “a thoughtful analysis of not only immediate, but intermediate and long-term impacts on New York’s highest court.”
“The amendment is substantive and represents a departure from the historical process upon which prospective applicants for chief judge and, separately, applicants for associate judge rely in making career decisions,” Farley said.
Currently, should a governor’s chief judge nomination create a vacancy on the court, the Court of Appeals would declare a new vacancy, the Commission on Judicial Nomination would collect resumes, conduct interviews and recommend a list of seven candidates to fill that vacancy to the governor. The governor would then select one of the candidates, nominate them and send their nomination to the Senate for confirmation or rejection.
Under the bill, the court would not be required to declare a vacancy and the commission wouldn’t be required to create a new list of recommended candidates.
The state’s constitution details the vacancy process, stating that “whenever a vacancy…occurs, [the commission] shall prepare a written report and recommend to the governor persons who are well qualified for those judicial offices.”
Ali Najmi, an election and criminal defense attorney, said the program bill runs afoul of the state’s ruling legal document.
“You can't change a constitutional process without a constitutional amendment,” he said.
Should the bill pass into law, Najmi said the governor and legislature could be opening themselves up to a lawsuit that will likely have a strong argument to make.
“I think that presumably any judge in the state of New York or any lawyer that would want to potentially put their name in to be a potential candidate for the Court of Appeals would have standing,” he said.
Speaking to reporters on Friday, Hochul defended the legality of the bill.
“I read the constitution as well, it's constitutional,” she said. “We would only put it forward if we believed it was constitutional – it is.”
The governor also noted that the bill wouldn’t require her to pick from the same list should she choose a sitting judge to serve as chief, it would only give her the option to do so.
“It gives us maximum options to move more quickly if we choose to,” Hochul said. “Because otherwise, we're going to end up with almost a year of having a split court, three to three on many decisions, and that is not serving the people in the state of New York.”
“I just want to see if we could explore our options if we make a decision that would allow for that,” she added.
A number of judges’ associations and bar associations that advocate for underrepresented racial or ethnic groups within the state’s legal and judicial community said that the change would limit opportunities for judges and lawyers to rise to the state’s top court.
Additionally, they say it would limit diversity on the Court of Appeals bench. The current list of recommended candidates does not include a Latino or Asian American candidate, two racial and ethnic groups that are among the least represented within the state’s judiciary.
“Our state’s highest court is a Court for the people, inclusive of every race, ethnicity, gender, religion and more,” the executive board of the Asian American Judges Association of New York said in a statement. “Likewise, the process of selecting the six Associate Judges and Chief Judge that make up this Court must be thorough and all-inclusive. We wish to emphasize the importance of a fair and thoughtful selection process for any future Associate Judge appointment and express concern over the newly proposed Program Bill.”
The association, whose executive board includes President Hon. Shahabuddeen A. Ally and Queens Justices Ushir Pandit-Durant and Karen Gopee, noted the lack of Asian American judges on the Court of Appeals – there has never been one – and the lack of Asian American judges in the Appellate Division – there have been five.
“Were the Governor to select a sitting Associate Judge from the Court of Appeals as the next Chief Judge, and then select from this same list of nominees to fill that vacancy, there will be no opportunity for the Governor to consider an Asian American for the Associate Judge position,” the organization said. “In fact, there will be no opportunity for the Governor to consider any candidate of color. Diversity of candidates is paramount in the selection process of an Associate Judge to our highest court, and so we call for that process to be complete, fair, and inclusive of all.”
The current chief judge vacancy comes after a bitter battle between Senate Democrats and the governor over her nomination of Hector LaSalle, the presiding justice of the Appellate Division, Second Department.
But many of the same senators who fought LaSalle’s confirmation voted in favor of the bill on Thursday, including Senate Deputy Majority Leader Michael Gianaris, Senators Kristen Gonzalez and Brad Hoylman-Sigal, who introduced the bill on behalf of the governor.
Queens State Senator John Liu, who voted against confirming LaSalle, voted against the bill on Thursday. He was one of only two Democrats to oppose the bill’s passage.
