Viewpoint: Diversity Is Part of Merit in Judicial Selection

There has been a lot of teeth-gnashing lately over the notion that Governor Andrew Cuomo will likely fill the two latest vacancies on the New York Court of Appeals with an Hispanic and an African American. That prospect has brought forth complaints that one of the openings has been treated as a “Hispanic seat” and the other as a “black seat.”

The two vacancies arose from the mandatory retirement of Judge Carmen B. Ciparick at the end of last year and the sudden death of Judge Theodore T. Jones Jr. in November. Ciparick was the first Hispanic judge appointed to the Court of Appeals, and Jones was the only black sitting on the court when he died.

I reported last December that there was a widespread perception among lawyers and judges alike that Ciparick was likely to be succeeded by a Hispanic, and Jones by a black (Click here to read article). The first half of that forecast came to pass when three out of seven names on the list that the New York State Commission on Judicial Nomination forwarded to Cuomo were Hispanics, and Cuomo, in mid-January, selected  a law professor of Puerto Rican ancestry, Jenny Rivera.

Two weeks ago the commission released its list of names from which Cuomo must select Jones’ successor. It contains the names of three African Americans: First Department Justice Sheila Abdus-Salaam, First Department Justice Dianne T. Renwick and Rowland D. Wilson, a litigation partner at Cravath Swaine & Moore.

Again the widespread expectation among the political cognoscenti is that Cuomo will pick a black for Jones’ seat — most likely Abdus-Salaam because she  was the only one of the three that had been on the prior list for the Ciparick vacancy. But, then again, most of the smart money last time was on First Department Justice Rolando T. Acosta, and the governor picked Rivera who was viewed as the underdog.

The Governor’s decision could be known as soon as tomorrow, the first day of the fifteen-day window within which Cuomo must announce his choice to succeed Jones. The nomination is subject to confirmation by the State Senate.

The Controversy over Diversity

The prospect that Cuomo will hew to ethnic/racial lines in filling these two seats has spurred protests from Republican leaders that the governor is casting aside merit selection in favor of political considerations. An article in the New York Law Journal (Click here to read article), laying out both sides of the debate, quoted the head of the Senate Judiciary Committee, John Bonacic, as drawing a sharp line during Rivera’s confirmation process between “social engineering” and merit. The article paraphrased Bonacic as saying—if at any given time the seven best candidates are all Hispanic women, so be it. In a follow up email to the Law Journal, Bonacic stated, “I reject the notion that any seat on the Court of Appeals should be classified by ethnic position.”

The Law Journal article also quoted Republican Assemblyman William Nojay, as stating that ‘the very notion of there being a black seat or a woman’s seat or a Hispanic seat or a white seat is offensive.”

A perspective column, published in the Law Journal on Feb. 28, gives those notions legal underpinnings.  Richard J. Schager Jr., a partner at Stamell & Schager, contends that the criteria set forth in the state Constitution narrowly restrict the commission’s mandate to the consideration of four factors: character, temperament, professional aptitude and experience (Click here to read Schager column).

In his interpretation, those factors leave no room for the statement of a commitment to diversity, which the commission added to its rules in 2010. The commission’s statement affirmed its commitment to considering candidates with outstanding personal and professional qualifications which reflect the “diversity of New York’s citizenry,” including, but not limited to eight specified categories. The categories range from controversial, such as race and ethnicity, to plain vanilla, for example, public service and area of practice.

The commission’s 2010 statement, Schager wrote, put into place “blatantly political criteria for the selection of judges in a direct and substantial departure from the limited and non-political criteria adopted in the 1977 amendments to the state Constitution.”

I have trouble with that legal formulation because there is no bright line between merit and diversity when it comes to assessing the qualifications of potential Court of Appeals judges. Is not diversity reflective of “experience,” one of the four factors listed in the Constitution? Nor did the commission’s 2010 statement foist new criteria on the selection process, but rather more explicitly stated what the commission had been doing all along.

Moreover, the criticism ignores the fact that in issuing its “commitment to diversity” statement, the commission was responding to widespread complaints from many quarters, including Cuomo when he was Attorney General, that the list of nominees in 2008 to succeed Chief Judge Judith S. Kaye was deficient as far as the needs of the Court and diversity were concerned.

The politicians, by raising the specter of “minority seats,” conflate their attack upon the selection process. It is a two-step process. The first step involves the commission’s formulation of a list of up to seven well-qualified candidates each time there is a vacancy on the Court of Appeals.  The governor must then make his selection from the commission’s list. With all the candidates having been determined by the commission to be well qualified, the governor can use whatever criteria he choses, including political ones, in making his choice.

Former Commission Chair: Diversity a “Moral Imperative”

At the outset, it needs to be noted that the commission has never treated diversity as separate and apart from merit. It is a given that any candidate who makes the list must have demonstrated excellence in their careers and the qualities one would want in an accomplished jurist. But how likely is it that, with more than 160,000 lawyers and judges in the state, only seven applied with those requisite qualifications? That is where diversity comes into consideration.

Responding to criticism over the Kaye-replacement list in February 2009, the commission’s then chairman, John F. O’Mara, told the state Senate Judiciary Committee that consistent with its mandate to solicit applications from well-qualified candidates, “the commission endeavors to ensure that candidates from diverse geographic, professional and ethnic backgrounds as well as from both genders are among those well-qualified candidates considered for nomination.”

O’Mara, a Republican who was special counsel to former Governor George E. Pataki and his appointee as chairman of the Public Service Commission, further testified, “The people of the State of New York—from the Niagara frontier to Montauk—are served by a jurisprudence that is animated by diverse experiences and backgrounds, and the unyielding commitment to equal justice that is born of such diversity. This commitment is a moral imperative.” (Click here to read O’Mara’s testimony)

John Dunne, a former Republican chairman of the Senate Judiciary Committee, testified at the same hearing in a similar vein. “To insure that the integrity and continuity of a system that does work,” he testified, the officials who appoint nomination commission members “should make their expectations clear to their Commission appointees that diversity considerations must be a factor in the process.”

Politicians Appoint Two-thirds of Nomination Commissioners

Politics is woven into the structure of the commission. Politicians appoint eight of the commission’s 12 members (the governor, four, and one each by the majority and minority leaders of the state Senate and Assembly). The chief judge of the Court of Appeals appoints the remaining four. Both the governor and the chief judge may not select more that two members of the same party and two of their four choices must be non-lawyers.

The odds are that the process will yield six Democrats and six Republicans, though minority party members could be named. With the votes of at least eight commissioners required to get onto the final list and, in most instances, seven names to be put forward, there must of necessity be cross-party agreements. How that emerges could be the result of high-minded consensus or the brokering of conflicting agendas. Indeed, the commission’s rules state that the rules were designed to “greatly reduce[] the possibility of bloc voting.”

The list that the commission sent to Governor David A. Paterson to replace Kaye set off a huge uproar from Democrats and minority politicians. Even though Kaye had been the first woman to serve on the Court and its only female chief judge, the list contained no women and only one minority (Jones). The list was also widely viewed as a slap in the face to Ciparick, who was the first and only Hispanic to have served on the Court. While Ciparick was passed over, two of her  male colleagues were included on the list, Judge Eugene F. Pigott Jr. and Jones. Neither of the two remaining women on the Court— Victoria A. Graffeo and Susan Phillips Read—had applied for the position, according to the  New York Law Journal (Dec. 4, 2008).

Ciparick found it highly questionable that she was not included in the list. “All that I wanted was a fair shot,” she said in an interview with this reporter. “On what basis were the two other associate judges put on the list, but I was not?”

“Personally, it was very hurtful. Were people thinking that the commission found me disqualified because it knew something the world did not?” she added.

Paterson and Cuomo called a joint news conference to protest the list’s lack of diversity. Paterson described himself so “outraged” that no women were included on the list to succeed Kaye that he had toyed with the idea of requiring the commission to go back to the drawing board. Cuomo, according to the Law Journal article, said something is “wrong” when the commission says “we’ve searched the state. We couldn’t find a single solitary woman to serve on the bench.”

The commission, in placing a candidate’s name on the list, puts its good seal of approval upon the candidates’ qualification to sit on the Court. It is too facile to say, after the fact, that because the governor appointed a black to succeed a black, the opening was treated as a “black seat” or that the choice of Rivera to succeed Ciparick made it an “Hispanic” or “Puerto Rican” seat.

A White Seat?

During his 12 years in office, Pataki appointed six judges to the Court of Appeals, all of them white, two of whom were women. When Judge George Bundy Smith, a black Democrat from New York City came up for re-appointment in 2006, Pataki decided to pick Pigott, who is from the Buffalo area, Republican and white. No one would have suggested that Pataki’s selection turned Smith’s position into a “white seat.” It would have been equally inappropriate to label it as an “upstate seat.”

Then again, Pataki had announced that he would not seek a fourth term. Then-Democratic Attorney General Eliot Spitzer was riding high in the polls in the 2006 race for governor. The Law Journal at the time had observed that if Pataki re-appointed Smith, he would likely be handing to a newly elected governor a four-judge Democratic majority on the Court (NYLJ, July 31, 2006).

Smith, at age 69, was only a year shy of the state’s mandatory retirement age.  The next governor already had a pick slated for early in 2007. The two new judges would likely have joined two Democrats already on the Court: Kaye and Ciparick.

Perhaps it would have been more apt to call the Smith slot the “political necessity seat.”



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One response to “Viewpoint: Diversity Is Part of Merit in Judicial Selection

  1. Alan Flacks

    This is a superb article by Dan Wise on the realpolitik of judicial selection. The Commission on Judicial Nomination is politicized and exemplifies the saw Let me name the panelists, and I’ll tell you whom they’ll report. Interesting quotations from Republicans Dunne and O’Mara, the latter a disaster on the P.S.C. Paterson’s diverse nominations did not give us the best and the brightest, and Cuomo makes almost all of his appointments (judicial and non-judicial) on a contribution nexus or support of his Presidential aspirations.