When Governor David Paterson chose Jonathan Lippman as the top judge for the State of New York, he expressed regret at the lack of diversity in his options: “I firmly believe that we must revise the process for future judicial nominations to ensure that those under consideration represent all New Yorkers.”
“ Improving Judicial Diversity,” a new report from the Brennan Center for Justice at New York University School of Law, shows Mr. Paterson’s predicament is not unusual. Even in states with similar diversity statistics as New York, where the general population is approximately 50 percent women and 40 percent nonwhite, governors often get a “short list” of judicial applicants who are all white males.
On Tuesday, Jan. 13, Justice Lippman was picked to replace Chief Judge Judith Kaye, who stepped down upon reaching mandatory retirement age. Judge Kaye was the first woman to fill New York’s top judicial post, a trailblazer for female jurists nationally. Despite this history, all of the candidates offered to Mr. Paterson were male. Six of the seven were white males.
New York has filled vacancies on its highest court using merit selection since a 1977 constitutional amendment ended judicial elections. When a seat opens up, the governor appoints a judge from a list of seven candidates submitted by a 12-person commission. The governor’s appointee must then be confirmed by the Senate. Unlike in most merit selection systems, judges in New York do not compete in retention elections to keep their seats.
Some will argue for a return to the days of electing judges as a way of improving diversity since a diverse electorate may choose a diverse bench. But this doesn’t seem to solve anything. Indeed, current studies show that both merit selection systems and judicial elections are equally challenged when it comes to creating diversity. New York’s lower courts, where vacancies are filled through elections, are proportionally less diverse than the Court of Appeals.
Currently, the Court of Appeals has a healthy mix of women and men as well as black and Hispanic members. Previous Governors Cuomo and Pataki made a particular effort to diversify the Court. But this diversity can be lost quickly if the short list presented to future governors resembles the list presented to Mr. Paterson.
The Brennan Center report examines the appointment systems in ten states and recommends a number of best practices to improve judicial diversity. Though the report does not look at New York, the recommendations can be applied to all states’ judicial appointment systems. One of the most important improvements New York could make, for instance, is to mandate consideration of diversity in judicial selection in its Constitution, statutes or rules. An example of what such diversity language could look like comes from other states: “[t]he Commission shall actively seek out and encourage qualified individuals, including women and minorities, to apply for judicial office” and “the Commission shall further take into consideration the desirability of the bench reflecting the racial and gender composition of the community.”
Further, the Brennan Center’s report suggests: (1) creating diverse nominating commissions because such bodies will tend to nominate more diverse “short lists;” (2) appointing a diversity ombudsperson who is responsible for monitoring and improving diversity on the courts (3) assuring that judicial salaries are high enough to attract diverse attorneys from law firms onto the bench, as Judge Kaye has advocated; and (4) accurately recording the racial and gender makeup of the applicant pool so that commissions can track their progress on diversity.
The Brennan Center’s recommendations provide concrete steps which could be applied to revisions of New York’s judicial selection process for the Court of Appeals. But as the Brennan Center argued in the U.S. Supreme Court case of New York State Board of Elections v. López-Torres, New York needs meaningful reforms of how lower court elections are run so that elections for state Supreme Court justices are more transparent and open. Changing the election process for the state court would have ripple effect on higher courts since judges for the Appellate Division are currently chosen from among those who have served as trial-level Supreme Court justices. And as Justice Lippman’s elevation to the Court of Appeals shows, the Appellate Division is a likely source of talent for New York’s top court.
In a state as diverse as New York, the judiciary should not miss out on the contributions of female and minority jurists. A few structural changes would ensure that next time the governor will receive a more diverse short list.
The seven men nominated to replace Judge Kaye are clearly qualified and some of them are truly gifted leaders of the bar. Yet their candidacies would have been strengthened had they been selected from a demonstrably diverse pool. Diversity of all kinds is essential to the health and legitimacy of our courts. Varied viewpoints strengthen decision-making. Moreover, the public will have confidence in judicial decisions only if the bench looks like America. A homogenous list of nominees is an embarrassment for the state, as Mr. Paterson indicated, and in 2009, it is utterly unnecessary.
Ciara Torres-Spelliscy is counsel at the Brennan Center for Justice at New York University School of Law and author of “Improving Judicial Diversity.”