There’s an old saying in New York: There’s no justice on the Court of Appeals. It’s a local play on words, as lower court judges are called justices, but at the Court of Appeals, New York’s version of the state supreme court, the robed inhabitants are called Judge. Less than a month ago, Governor Andy Cuomo nominated the next Chief Judge. It was, at minimum, a surprising choice.
Gov. Andrew M. Cuomo on Tuesday nominated Janet DiFiore, an experienced prosecutor and fellow Westchester County resident, to New York’s highest judicial post.
Prosecutors applauded. Others pondered. DiFiore was on the list of seven potential choices offered by the State Commission on Judicial Nominations, but wasn’t thought to have a serious chance. The New York State Bar Association rated her “qualified,” but not “well qualified.” Yet, she got the nod. The question of “why” is shrouded in the usual meaningless political nonsense.
“Chief judge is a very, very important position,” the governor said, “and I think she’s going to do an extraordinary job.”
Well, that explains it. Not. By replacing Chief Judge Jonathan Lippman, who proved himself a staunch defender of constitutional rights, with a prosecutor, it makes things a bit dicey, and makes the governor’s next pick a critical choice. As Judge Susan Read retires next summer, Cuomo has another pick at hand. The Commission has announced its list of the usual suspects.
The Commission’s seven nominees (in alphabetical order) to the Govemor are:
- Michael J. Garcia, Esq., attorney in private practice (Kirkland & Ellis LLP);
- Hon. Judith J. Gische, Associate Justice, Appellate Division, First Department;
- Caitlin J. Halligan, Esq., attorney in private practice (Gibson, Dunn & Crutcher LLP);
- Hon. Erin M. Peradotto, Associate Justice, Appellate Division, Fourth Department;
- Benjamin E. Rosenberg, Esq., General Counsel, New York County District Attorney’ s Office;
- Rowan D. Wilson, Esq., attorney in private practice (Cravath, Swaine & Moore, LLP);
- Stephen P. Younger, Esq., attorney in private practice (Patterson Belknapp Webb & Tyler LLP).
Notice what you don’t see there? And just in case you’re not on top of stuff in New York, Michael Garcia was United States Attorney for the Southern District of New York, capping off a long prosecutorial career before settling into a comfy corner office at the Biglaw firm of Kirkland & Ellis.
Diversity? You bet. Judicial selection these days is about nothing if not diversity, as the Commission’s recommendation makes crystal clear.
The Commission’s Report follows months of outreach efforts that were conducted through public announcements, individual solicitations of applications and an informational meeting held by the Commission in New York City. These efforts resulted in the receipt of 52 applications. The applicant pool was also diverse. Of those 52 applicants, 15 (28%) were women and 10 (I9%) of diverse backgrounds. The Commission ultimately interviewed 20 candidates, of whom 7 (36%) were female and five (26%) were of diverse backgrounds.
Let there be no complaints that the Commission was insensitive when making its selections to race and gender. Much like the pick of Clarence Thomas to fill the Thurgood Marshall seat on the Supreme Court, they know their primary colors. You want diversity? There ya go.
But in law, diversity isn’t built on gender or race, or ethnicity or ancestry. It’s built on legal philosophy, and legal experience. And what you don’t see are two things: lawyers who spent a day of their career working in the trenches on behalf of a criminal defendant, and lawyers who didn’t get a (often sizeable) paycheck from an employer.
The need for Cuomo to fill the Read seat with a woman is reduced by the selection of Janet DiFiore as Chief Judge. Having just put a woman into the big chair, he’s free to ignore gender this time around. That doesn’t mean he will, but he can.
New York had historically held constitutional rights in higher regard than the federal government. It took sufficient pride in the fact that it was more protective of rights that former Chief Judge turned crazy criminal, Sol Wachtler, a moderate Republican, wrote:
”The Supreme Court’s role in construing the Federal Bill of Rights is to establish minimal standards for individual rights applicable throughout the nation,” Judge Wachtler wrote in 1986 in Arcara v. Cloud Books. ”The function of the comparable provisions of the State Constitution, if they are not to be considered purely redundant, is to supplement those rights to meet the needs and expectations of the particular state.”
New York law saw federal constitutional protections as the floor, not the ceiling. But those were the good old days, when Andy Cuomo’s father, Mario, was governor. Mario was concerned with safeguarding constitutional rights. Andy is more concerned with making his numbers, assuring that there be a diversity of appearance rather than substance.
In assembling the Candidate List the Commission amply complied with its mandate to “conduct broad outreach to encourage wide participation in the application process.” 22 N.Y.C.R,R, $ 7100.6. For example, the Commission disseminated Statewide notice of the vacancy and application procedure, and continued its outreach efforts through the date of the application deadline, Notice was sent to the media, bar associations, New York law schools, and members of the judiciary and State government. The Commissioners also engaged in individual solicitation of applications by qualified candidates.
One might blame the dearth of diversity of substance on the fact that people didn’t apply for the job, though that would ignore the fact that some people applied and watched their applications get circularly filed. They realized there was no chance they were getting picked as a potential candidate, so they walked away.
But note that last line, that the “Commissions also engaged in individual solicitation of applications by qualified candidates.” They could have reached out to a candidate with at least some experience in criminal defense. They could have made a call to someone who ran their own shop, whether solo or small. They could have put someone with a diverse view, a diverse background, on the short list. They didn’t.
Meet the new diversity. Will it make you feel better when constitutional rights are dismissed by former prosecutors and Biglaw wonks, as long as they’ve got the right genitalia or hue? Bear in mind that the decisions of the Court of Appeals will haunt us long after we’ve forgotten whether the judges met with the approval of the diversity crowd.