The New York Law Journal by Joel Stashenko - January 28, 2009
ALBANY - State legislators were urged yesterday to proceed cautiously as they consider changes in how candidates are selected for the Court of Appeals, despite the dissatisfaction of some with the all-male list of nominees for the next chief judge. New York City Corporation Counsel Michael A. Cardozo and former state Senator John Dunne, speaking at a hearing on behalf of the Committee for Modern Courts, defended the track record of the Commission on Judicial Nomination and argued against making sweeping statutory changes in a system that has been in place for more than three decades. "In my opinion, the system has served the state well and represents a huge improvement over the previous elective system," Mr. Cardozo told the Senate Judiciary Committee.
Still Mr. Sampson, D-Brooklyn, argued, "Once you've finally arrived, all of a sudden the curve ball is thrown." He said the latest list sent to Governor David A. Paterson by the commission (NYLJ, Dec. 2) represented just such a troubling sign that progress toward diversity on state court benches is not guaranteed. Mr. Cardozo pointed out that barring an unexpected resignation, it will be nearly four years until the next opening will occur with the mandatory retirement of Judge Carmen Beauchamp Ciparick at the end of 2012. He suggested forming a "study committee" to look at what other states have done with appointive judicial systems in recent years to formulate improvements instead of acting precipitously in response to the recent search for a chief judge.
Mr. Paterson and Attorney General Andrew M. Cuomo both complained that the commission's list of candidates contained six white males, including chief judge-nominee Jonathan Lippman, presiding justice of the Appellate Division, First Department (NYLJ, Jan. 14). It also included the name of Court of Appeals Judge Theodore T. Jones Jr., who is black. There were no women or Hispanics on the list even though Judge Ciparick, an Hispanic who is senior associate judge on the Court, applied to and was interviewed by the commission. Two other women were among the 12 candidates interviewed by the commission, New York City Civil Court Administrative Judge Fern A. Fisher and Brooklyn Supreme Court Justice L. Priscilla Hall, but they also did not make the final cut. Mr. Sampson said yesterday he would likely schedule Justice Lippman's confirmation hearing before his committee within the next few weeks, but wanted to improve the nomination process going forward.
"The purpose is not to challenge the nomination of Judge Lippman, but to deal with the process so we won't run into problems like this again," Mr. Sampson said as he closed yesterday's hearing. "The system, as indicated, has worked before. We were improving. But now we have hit a bump in the road. Hopefully we can make some modification, whether it be with a rule change or statutorily." Mr. Dunne and Mr. Cardozo both suggested that more diverse candidates would be advanced by the commission if more diverse commission members were selected by state leaders. Four members of the commission are appointed by the governor, four by the state's chief judge and one each by the four majority or minority leaders of the Legislature. Currently, four of the commission members are white women and two others are black men. There are no Hispanics.
"The answer is not to change the system, but for our elected officials, the governor and legislative leaders, who are empowered to appoint members of the Commission on Judicial Nomination, along with the chief judge, to appoint those who reflect the diversity of our state and also make their expectations clear to their commission appointees that diversity considerations must be a factor in the process," said Mr. Dunne, of Whiteman Osterman & Hanna in Albany. About 73 percent of the state is white, 17 percent black and 16 percent Hispanic. About 51 percent of the population are women. Mr. Cardozo said he is somewhat biased about the commission because, as a counsel to a task force on court reform appointed by then-Governor Hugh L. Carey in the mid-1970s, he helped write the statute under which the commission was created. He suggested that the commission's proceedings be made more transparent, perhaps by releasing the numbers of applications the commission receives and how many candidates it interviews for openings.
'Lack of Applicants'
Commission Chairman John F. O'Mara said in an interview yesterday that the commission has decided to do just that as part of an effort to open up its process. He declined to give the exact numbers yesterday, but said applications have been declining for years for Court of Appeals openings. "The real problem is the lack of applicants," Mr. O'Mara said. Sources familiar with the 2008 screening process for Chief Judge Kaye's seat said the commission received only about 20 applications. Mr. O'Mara was appointed to the commission by then-Governor George E. Pataki. His term expires at the end of March. As he has since the commission announced its list on Dec. 1, Mr. O'Mara yesterday continued to defend the panel's work.
"I think you'll see a lot of defenders, if you see what the process has produced," said Mr. O'Mara, a partner with Davidson & O'Mara in Elmira. "In spite of the complaints this time about the lack of a woman on our list, under our recent lists, the majority of the Court of Appeals judges have been women. I do believe the process works." Mr. O'Mara said he did not receive an invitation to appear before Mr. Sampson's committee until late on Jan. 22 and could not work it into his schedule. But he said he would be happy to appear before the committee at one of the other public hearings Mr. Sampson said he would schedule in New York City and upstate. "It works," Mr. O'Mara said of the commission. "Without question, I think that any rational person that looks at the process and looks at what's happened under the process would come to the same conclusion."
Mr. Sampson acknowledged that Mr. O'Mara has indicated his willingness to appear before his committee. Still, Mr. Sampson said yesterday he was "disappointed" that neither Mr. O'Mara nor members of the commission appeared at the Albany hearing. "They should have been here so my colleagues could question them," Mr. Sampson said. "But hopefully, within the not-too-distant future, we will have that opportunity." Attorney Ravi Batra, a former member of the Brooklyn Democratic Judicial Screening Committee, told Mr. Sampson's committee that nominating commissions such as Mr. O'Mara's panel can be rife with petty personal or political divisions that can prevent excellent candidates from being recommended for appointment.
The fact that neither Judge Ciparick, now acting chief judge of the Court of Appeals, nor Justice Fisher were on the final list shows how "tainted" the nomination process was, Mr. Batra contended. "Two women, two superstars," agreed Judicial Committee member Ruben Diaz Sr., D-Bronx. "They were called not qualified? The system is broken." Brooklyn Bar Association President John Lonuzzi said that "some eyebrows were raised" within the legal and judicial communities when the commission's list omitted the names of Judge Ciparick and Justice Fisher. "Was this an aberration . . . or was this something that is broken, has failed and now needs to be fixed?" Mr. Sampson asked him. "It's certainly something that's broken," Mr. Lonuzzi replied. "It's certainly something that's failed and it's certainly something that needs to be fixed." Joel.Stashenko@incisivemedia.com
Lawmakers fault top court selection process
The Albany Times Union by MICHAEL VIRTANEN, Associated Press - January 27, 2009
ALBANY -- Several New York senators and attorneys Tuesday urged reform in choosing judges for the state's top court. They criticized the recent closed-door selection of seven potential nominees for chief judge, saying the process lacked diversity, openness and outreach.
Senate Judiciary Committee Chairman John Sampson said only 12 candidates applied to the Commission on Judicial Nomination to replace Chief Judge Judith Kaye, and three were women, all qualified. However, the seven names submitted to Gov. David Paterson were all men, only one a minority. Paterson raised the same concern before nominating Justice Jonathan Lippman, a midlevel appeals court judge and the former chief administrative judge of the sprawling court system. "The purpose is not to challenge the nomination of Justice Lippman," Sampson said at the close of Tuesday's hearing, which he said would be followed by others in New York City and upstate. "It's to deal with the process so we don't run into this problem again."
Sampson, a Brooklyn Democrat, said he and other lawmakers will meet with Lippman before the committee holds confirmation hearings he hopes will follow within 30 days. Sampson noted that 18 percent of New Yorkers are African-American, but only 9 percent of its judges are; 16 percent of its people are Hispanic, but only 4 percent of the judges are. He said 18 percent of the state's law students are Asian, but only 1 percent of its judges are. There is a problem of public perception that politics came into play in the judge selection process, he said. Lippman's nomination requires Senate approval. "I'm not talking about any issue of quota," Sampson said. Sen. George Winner, an Elmira Republican, said lawmakers should make sure "the highest qualified individuals" are put on what he called the most important state court in the nation.
Sen. Ruben Diaz, a Bronx Democrat, said that while New York now has a black governor who could have appointed a well-qualified and well-prepared woman or minority as the state's top judge, the commission "tied his hands." "Let's untie the governor's hands and give the governor the power to say to the committee what you did was wrong," Diaz said. One applicant was Court of Appeals Acting Chief Judge Carmen Beauchamp Ciparick, a longtime associate judge on the Court of Appeals, and a Hispanic woman Diaz said was obviously qualified, but her name wasn't on the list. The other women considered by the commission were Judges Fern Fisher and Priscilla Hall in New York City, both experienced and well qualified, Sampson said.
John Dunne, a former lawmaker who helped author the law that substituted the appointment process for the Court of Appeals instead of elections, urged the senators not to change the system. He said it has worked for 30 years and made the process less political. Dunne said the governor, chief judge and four lawmakers who choose members to the 12-member nomination commission, in staggered terms, can emphasize to those appointees that diversity is important and needs to be considered. Dunne said the court, which until Kaye's retirement had four women, one of them Hispanic, and an African-American judge, became far more diverse with this process. Judge Theodore Jones was on the commission's short list. But Dunne acknowledged the commission's "failure to meet expectations of a great many of its citizens" with a list that included no women.
Attorney Ravi Batra said the system is "badly broken," that the commission approves nominees with a two-thirds majority, allowing a bloc of five to hijack the process. He suggested changing the rules so only a majority vote is enough, expanding the list of nominees to 12, making public the names of applicants, having 15 commissioners, and letting lawmakers choos eight. Brooklyn Bar Association president-elect John Lonuzzi said the commission should include bar association representatives and the number of potential nominees should b expanded. Sampson said he will talk to Commission Chairman John O'Mara to discuss lawmakers' concerns.