Prior to the confirmation of Jenny Rivera, a professor of law at the City University of New York Law School, as an associate judge of the New York Court of Appeals, the Law Journal reported one member of the Senate as saying she was less qualified than 11 Hispanic judges who should have been considered for the nomination. The suggestion that there should be a "Hispanic seat" on the Court of Appeals was accepted without comment. This concept that a nominee should be a "representative" of an ethnic or social group, however antithetical to the New York Constitution and the Judiciary Law, is the direct result of the politicization of the judicial selection process by the rules of the Commission on Judicial Nomination.

In 1977, the Court of Appeals became an appointed rather than elected court. This change was the result of an amendment to the state Constitution that year, a landmark change made to de-politicize the process of selecting Court of Appeals judges. Under Article VI, §2(c), a Commission on Judicial Nomination was established to recommend candidates for the state’s high court, with the governor to nominate and submit one of the recommended candidates for submission to the Senate for its advice and consent.

Diversity in the commission’s recommendations is ensured by diversity in the makeup of the commission. The Constitution requires that four of its 12 members be appointed by the governor, four by the chief judge of the Court of Appeals, and one each by the majority and minority leaders of the Senate and the Assembly. Of the four commission members appointed by each of the governor and the chief judge, no more than two may be members of the same political party. N.Y. Const., Art. VI, §2(c) and (d).

In 2009, upon the retirement of Chief Judge Judith Kaye, the commission provided recommendations to the governor. Jonathan Lippman was nominated and, with the consent of the Senate, became chief judge. Critics argued at the time that there was a lack of diversity among the candidates recommended by the commission. A proposal was made in the Senate to amend the commission’s statutory charter, found in §§61-68 of Article 3-A of the Judiciary Law. At the same time, the commission proposed amendments to its own rules.

The Judiciary Law was never amended, but the commission’s rules were. These amendments 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 Constitution. They go beyond the authority granted to the commission by the Constitution and the Judiciary Law and have led to the now commonly expressed view that ethnic and social groups are entitled to representation in the judiciary. The commission has added its own diversity criteria to its rules, which are completely independent of the Constitution or the Judiciary Law.

The starting point is Section 2(c) of Article VI of the constitution, which specifies the four criteria that the commission is to consider for its recommendations of candidates for the Court of Appeals: The constitutional directive to the commission is:

to evaluate the qualifications of candidates for appointment to the court of appeals and…to recommend to the governor those persons who by their character, temperament, professional aptitude and experience are well qualified to hold such a judicial office.

N.Y. Const. Art. VI, §2(c) (emphasis added).

These criteria are restated in Article 3-A of the Judiciary Law, which states that the commission:

shall consider and evaluate the qualifications of candidates for appointment to the offices of chief judge and associate judge of the court of appeals and…shall recommend to the governor persons who by their character, temperament, professional aptitude and experience are well qualified to hold such office.

Jud.L.Art. 3-A, §63(1) (emphasis added).

Because of a perceived lack of diversity in the candidates the commission recommended to the governor in 2009, a bill was introduced in the Senate that proposed an expansion of the criteria set forth in the commission’s statutory charter. Senate Bill 6080 (2009) recommended the following amendment to §63(1) of the Judiciary Law:

In selecting among such well qualified persons, to the extent practicable consistent with [Art. VI, §2(c)] of the constitution, the commission may consider appropriate institutional factors of race, gender, ethnic, geographic, experiential and other diversity bearing on the character, temperament, aptitude and experience of such candidates, including experience in litigation and adjudication in and among the various tribunal of this state.

S. 6080 §4 (2009) (emphasis added).

S.6080 was never passed, and the Senate never expanded the selection criteria. The Commission on Judicial Nomination, however, amended its selection criteria in a way that went much farther than the Senate bill. The achievement of the 1977 constitutional amendments was to limit the selection criteria to character, temperament, professional aptitude and experience. The legislators who proposed S.6080 in 2009 recognized these constitutional limitations, and specified that any additional selection criteria had to be applied only "to the extent practicable consistent with" the Constitution (Art. VI. §2(c)). The commission recognizes no such limit. The sole justification offered for expanding the criteria is "the Commission’s own commitment to diversity." 22 NYCRR §7100.3. The commission’s judicial selection criteria reads thus:

The Commission is committed to considering nominees for the Court of Appeals with outstanding personal and professional qualifications who reflect the diversity of New York’s citizenry including, but not limited to diversity in race, ethnicity, gender, religion, sexual orientation, community service, nature of legal practice or professional background and geography.

22 NYCRR §7100.8(e).

The commission offered as a policy justification its conclusion that a "diverse Judiciary ensures that a broad array of perspectives and experiences are brought to the bench; reinforces public trust and confidence in the fairness of the justice system and the administration of justice; and ultimately enhances the delivery of justice and the Judiciary’s credibility and moral authority." This is an honorable statement, of course, and carries no small rhetorical appeal. But the commission provides no studies or other support for this conclusion; nor does it point to any constitutional or statutory grant of authority to adopt and act on it.

An earlier draft of the statement, modified after adverse comment from the bar, points to the commission’s political agenda. The commission described its basic objective as "to identify qualified candidates from a wide range of New York’s diverse communities," and promised that its nominees would "reflect the diversity of New York’s communities…." Comm’n on Jud. Nom., Release of Proposed Revisions to Operating Rules, July 20, 2009 (proposed amendments to 22 NYCRR §§7100.6 & 7100.8(e) (emphasis added)).

During the comment period for the proposed regulations, the Council on Judicial Administration of the New York City Bar objected to use of the term "communities" and suggested an approach similar to that taken in the proposed S.6080.1 A separate comment by this author suggested that the New York Constitution provided no basis for using membership in a "community" as a criteria for judicial nomination.2 In its final rules, the commission modified its approach to state that its nominees would "reflect the diversity of New York’s citizenry …." 22 NYCRR 7100-8(e) (emphasis added).

What the commission has accomplished, by adding its own criteria for judicial selection, is a de facto amendment to Article VI, §2(c) of the New York Constitution. However honorable its diversity criteria might be, they are political criteria and should be adopted by a political process. Any legislative action adopting such diversity criteria without recognizing the constitutional limitations would be suspect—the legislators who proposed S.6080 in 2009 recognized this and tethered the diversity criteria to being applied only to the extent practicable consistent with the Constitution.

Regardless of its good intentions, the commission is paving the road back to the abandoned political selection process for judges. There is no basis in the Constitution, the Judiciary Law, or the mandate to the commission for designating a Hispanic seat on the Court of Appeals, any more than there is a basis for designating an African-American, Irish, Jewish or Catholic seat. The commission’s charge is to select qualified candidates in accordance with constitutional criteria. It was not given the authority to develop its own criteria.

Richard J. Schager Jr. is a partner at Stamell & Schager.

Endnotes:

1. Council on Jud. Admin., Letter to Comm’n on Jud. Nom. Regarding the Proposed Revisions to the Rules of the Comm’n, Sept. 21, 2009.

2. Author’s Letter to the Comm’n on Jud. Nom. Regarding the Proposed Revisions to the Rules of the Comm’n, Nov. 30, 2009.