Schager’s Response: Diversity Rule Unauthorized

Editor’s Note: At my request, Richard J. Schager Jr. has written a response to my March 20 viewpoint piece, “Diversity is Part of Merit in Judicial Selection.” Mr. Schager, a partner at Stamell & Schager, wrote a perspective piece in the Feb. 28th issue of the New York Law Journal entitled “Politicizing the Judicial Selection Process.” Mr. Schager, as a member of the New York City Bar’s Council on Judicial Administration in 2009, worked on developing the association’s comments on the New York State Commission on Judicial Nomination’s proposed rule stating its commitment to diversity in formulating lists of candidates from which the governor must select his nominees for the New York Court of Appeals.

By Richard J. Schager Jr.

My Perspective column in the Law Journal on Feb. 28 was not an anti-diversity rant; it was a criticism of the politicization of the judicial selection process.  The issue is not whether we should have a diverse bench (which of course I do not oppose), but who defines the diversity criteria and what relationship those criteria will have to the Constitutional criteria.

As Senator Sampson recognized when he sponsored S.6080 in 2009 (described in my comment), the Legislature could develop additional diversity criteria in the statutory charter for the Commission, possibly expanding (as you suggest) on the Constitutional criterion “experience”.  But the Legislature hasn’t done that, and it also has not delegated to the Commission any rule-making authority to do so.  The Commission has the rule-making authority to establish its own rules of procedure, but not to developing substantive selection criteria.  Jud. L. 65(1).

Senator Sampson’s proposal in S.6080 also provided that the supplemental diversity criteria proposed in the bill would have been applied only “to the extent practicable consistent with” the Constitution, i.e., to the extent they had “bearing on the character, temperament, aptitude and experience” of the candidates.  The bill recognized that New York’s “citizenry,” with whom the Commission purports to be concerned, has adopted judicial selection criteria in the Constitution, and that those criteria would govern over any supplemental criteria.  If the qualifications Professor Jenny Rivera and Justice Rolando Acosta (using titles they had at the time) were compared, the nomination of Professor Rivera can only be explained by the Commission’s use of its diversity criteria to trump the Constitutional criteria.

New York State has a remarkable judiciary, in my experience skilled and diligent, and for most of the last decade or more remarkably underpaid.  Echoing the anonymous Judge who cited to the Judiciary Committee Professor Rivera’s “so thin and marginalized” qualifications (N.Y.L.J., Feb. 08, 2013), this politicization of the selection process essentially tells them that their dedication and the expertise they develop after years of diligent work are not as relevant to the work of the state’s high court as the Commission’s political choices.  That is not consistent with what New York’s citizens have set forth in their Constitution.

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