Presiding Justice Karen Peters of the Third Department, which includes the 3rd, 4th and 6th Judicial Districts and covers 28 counties. (Photo: NYLJ/Rick Kopstein)
ALBANY – In the 118-year history of the Appellate Division, Third Department, more than 90 judges have sat on the court in Albany, some of them famous, some of them obscure.
And all of them white.
The reason for that is simple: the Appellate Division, comprised of elected Supreme Court justices, has never had a black or Hispanic Supreme Court justice in any of the 28 counties that comprise the Third Department.
With Presiding Justice Karen Peters (See Profile) highlighting the fact that her court is the only all-white appellate panel in New York, legal observers are asking how, in a region encompassing a quarter of the state—including a few small but somewhat diverse cities—no minority lawyer has managed to be elected to the state’s premier trial court.
The answer, according to lawyers, judges, political leaders and others, is complex, and rooted more in demographics, tradition and political dynamics than remnants of racism. They say progress has to begin at the local level, by supporting the election of minority attorneys to the Supreme Court, who would then be eligible for promotion to the Appellate Division.
“I think to some extent, the lack of diversity in the Third Department stems in part from the lack of minorities in the legal profession in the Third Department,” Peters said. “But I said ‘in part’ because there are people of color in our department who practice law, and I think to some extent the lack of diversity in our judiciary is a result of the political process and the individuals who make the decisions as to who gets to run for office.”
But Peters can’t do it on her own. Neither can Gov. Andrew Cuomo, unless he reaches outside the Third Department and persuades a black or Hispanic justice from the metropolitan area or Western New York to commute to Albany.
Such a move would not be unprecedented; the Third Department got its first woman judge, Ann Mikoll, when Gov. Hugh Carey imported her from Buffalo in the late 1970s.
Cuomo’s office would not respond to inquiries on whether it’s concerned about the Third Department’s lack of diversity or whether the governor would consider bringing in an outside minority judge to fill either of the court’s two existing vacancies.
But unless the governor taps a judge from another area, the only way for the Third Department to integrate is for a minority lawyer to win a Supreme Court election somewhere in the region and then secure political and gubernatorial support for a promotion to the appellate court.
Observers say the core problem is that there are few minority lawyers in the largely rural district, which spans from the mid-Hudson region to the Canadian border. The few who exist generally are not gaining the requisite experience and exposure by litigating Supreme Court cases or paying their dues by working for the political parties.
Albany-based Northern District U.S. Magistrate Judge Randolph Treece (See Profile), who is black, said it is almost impossible for a person of color to win election, or even run, in the seven counties that make up the Third Judicial District, one of the three districts in the department.
“The only time I am aware of when a person of color ran for Supreme Court in this area was me in 1997 and it only lasted three days,” he said.
Treece, who had the strong backing of then Albany County Democratic Chairman Leonard Weiss, a former presiding justice of the Third Department, said he was forced to abandon his brief 1997 bid because there was no way he could bankroll a campaign in seven counties. Treece said he didn’t have the financial wherewithal to fund a multi-county operation, and doubts there are any black or Hispanic lawyers in the region now who have access to the necessary capital.
“We are coming into the middle class, but we don’t have the financial wherewithal to devote at least $100,000 to a campaign,” he said. “The parties do not give judicial candidates the money. You have to raise it on your own. I don’t know anyone of color in this area who has the resources to run a seven-county campaign.”
In addition to personal finances or a pipeline to donations, Treece said a viable minority candidate needs experience as a trial lawyer and a relationship with the political party.
“You have to pay some dues to the party to be recognized,” Treece said. “The party is not going to jump somebody over a soldier.”
One black attorney, who declined to be identified, said he was interviewed by an upstate Democratic committee about running for a lower court judgeship. The first question he was asked was how much free legal work he had provided to the party. The answer—none—pretty much ended the discussion, he said.
Bernard Bryan Sr., an attorney in Albany for the last 40 years and president of the local branch of the NAACP, said it would be difficult for a minority candidate in the region to win a judicial election, not because of abject bigotry but because people naturally gravitate toward candidates like themselves. And in the Third Department, that means white people.
In Albany, the largest county in the department, nearly 19 percent of the population is black or Hispanic. In the smaller counties, such as Essex and Fulton, the minority population hovers at around 5 percent, according to census figures. It is unclear what portion of the minority population is in the legal profession, although anecdotally members of the bar suggest it is tiny, and possibly even non-existent in some of the small, rural northernmost counties.
“I don’t think you will find many people who will sincerely say they couldn’t pull the lever for this guy or that gal or they couldn’t support this one or that one because they are black,” Bryan said. “You are not going to find that attitude here. But what you are going to find is qualified candidates from the majority culture, and people will naturally find it easier to vote for someone who looks like them and talks like them and shares a common background. Judgeships are coveted. If you have a qualified minority candidate competing with a qualified majority candidate, the easier sell to the party faithful is to go with the majority culture.”
Getting in the Pipeline
Weiss, who fervently attempted to diversify the bench when he was party chairman and played a key role in getting the federal judgeship for Treece after his aborted Supreme Court campaign, said there are few minority attorneys in the area and fewer still who have gained the experience and developed the qualifications for judicial office.
“The number of African Americans who practice law, especially in the counties other than Albany, is so miniscule,” said Weiss, who is now of counsel to McNamee, Lochner, Titus & Williams. “I’m not sure there are more than 10 [minority litigators] in Albany County, while the population is so significant and so deserving of having one of their own honored by being a Supreme Court justice.”
Weiss said he believes political leaders would be receptive to running a qualified black or Hispanic candidate. But he said minority lawyers need to get themselves into the pipeline by reaching out to party officials and making their aspirations known while working their way up the organization.
Matthew Clyne, an attorney in Albany and current chairman of the county Democratic Committee, said the party has successfully advanced minority candidates for City Court judge; two of the five Albany City Court judges—William Carter and Helena Heath-Roland—are black. Nearly 40 percent of the Albany city population is black or Hispanic, and the city seems to be the epicenter of minority presence in the legal profession.
But Clyne was hard pressed to identify a minority lawyer on track for Supreme Court. He said there are talented minority lawyers in Albany, but many of them are working in state government or doing other work that does not result in essential Supreme Court trial experience.
“There are not that many black or Hispanic trial attorneys who actively engage in litigation, and that is the pool or reservoir from which you draw candidates,” he said. “Historically, the people who were nominated had trial experience and they had political affiliation.”
Clyne said that in his mind “diversity doesn’t trump qualifications.” He said a young black or Hispanic attorney in Albany who aspires to Supreme Court should get in with an established litigation firm, practice for a good 15 years and become politically active.
But that may be easier said than done: Several years ago, Treece and other lawyers made a concerted effort to encourage diversity in the established firms, but had little success, partially because the pool was so small and top minority graduates from Albany Law School tended to leave the area after graduating.
James Long, an attorney in Albany who has been involved in the judicial nomination process for 35 years, said he has not seen a minority lawyer with the interest and experience to serve on Supreme Court.
“There hasn’t been anyone qualified and deserving at the same time,” Long said. “I know that will change in the next 10 years, hopefully.”
Setting a Priority
Penelope Andrews, the multi-racial dean and president of Albany Law School, said the route to integrating the Third Department is both political and strategic.
“The people who decide to back the candidate must make that political decision,” she said. “The parties have to be engaged. I think the bar associations need to take this on as a priority. But nothing changes until someone says it will happen. I think there is a will. They just have to find the way.”
Robert Maldonado, a partner at Cooper & Dunham and regional president of the Hispanic National Bar Association, said the minority and majority bars need to work together to identify and develop potential candidates.
“We can work with the other bars to identify individuals who are interested and support them and help them get to know the right people to make it happen,” he said.
P. David Soares, who proved minorities are electable in Albany County by winning three elections for district attorney, said he is finding more young minority attorneys whom he has recruited settle into the community, possibly to make their career in the Capital Region and set down roots.
“We need to ask ourselves why we haven’t done more to foster more minority involvement,” said Soares, a native of the Creole island country of Cape Verde who stayed in Albany after graduating from Albany Law School. “I think we as a society could be doing a much better job of conveying to the community at large that the legal profession is a profession for you. If we do that, you know what? In five years, 10 years, you will see more diversity in those [judicial] positions.”
Bryan said there does not seem to be any hue and cry from the minority community about the lack of diversity on the Third Department.
“I don’t think there are many rank and file citizens who are obsessing about the demographic makeup of Supreme Court in the Third Department,” Bryan said. “If you put up a group photo of the judges of the Appellate Division, someone would kind of notice that it looks awfully pale. But I don’t see people going to the barricades over it. I don’t really get excited or exorcised over it. It’s just the way it is.”
Peters, however, is concerned about perceptions.
“The lack of diversity fuels distrust in the minority community,” Peters said. “It is truly regrettable.”