ALBANY - With the sudden death of Court of Appeals Judge Theodore Jones Jr., Governor Andrew Cuomo will in rapid succession replace the only two minorities on the high court.
Jones, the only black on the court, will be replaced in no more than five months. Carmen Beauchamp Ciparick, the only Hispanic on the court, faces mandatory retirement on Dec. 31 and will be replaced early next year. Ciparick was first named to the state’s high court by the governor’s father, Mario Cuomo.
Observers expect that Cuomo, who in his Appellate Division appointments has demonstrated sensitivity to diversity, will be reluctant to leave the court without black and Hispanic representation. Democrats and advocates were highly critical of Governor George Pataki in 2006 when he declined to reappoint George Bundy Smith, leaving the court without a black judge for several months.
The Commission on Judicial Nomination is evaluating applicants for the Ciparick seat and will present the governor with a list of between three and seven names on Dec. 1. The governor must select from that list and must make an appointment between Jan. 1 and Jan. 15, subject to Senate confirmation.
With the Jones seat, under Article 3-A of the Judiciary Law, the Commission on Judicial Nomination has up to 120 days after receiving notice from the clerk of the court to provide the governor with a list of candidates for the position. After receiving the list, the governor must wait 15 days before making an appointment and must make the appointment within 30 days of receiving the list.
Although applicants for one Court of Appeals opening are not automatically candidates for another vacant position, judges and attorneys seeking Ciparick’s spot were asked if they wanted to be considered for other openings. Many of them did and will be among those under consideration for the Jones seat, according to former Chief Judge Judith Kaye, who is now counsel to Skadden, Arps, Slate, Meagher & Flom and chair of the Commission on Judicial Nomination.
Smith, who is now at JAMS, an alternative dispute resolution provider, said it is crucial, both from a political and a jurisprudential standpoint, that Cuomo appoint a black to succeed Jones.
“African-Americans give solid support to the Democratic Party and they ought to have a seat at the table,” Smith said.
He also said a black voice on the court adds an important perspective in the courtroom and the conference room.
“I think that African-Americans, whether they grew up in poverty or were lucky enough to go to the best schools and have their parents pay for it, have an experience that is unique and that no other can bring,” Smith said. “For instance, I live in Harlem and I see police officials stop people on the streets, seemingly without reason. I think to be able to explain those things to [the other judges] on the court is extremely vital.”
R. Nadine Fontaine, president of the Metropolitan Black Bar Association, said “it is very important that the governor consider the importance of having a diverse bench.” She said black representation on the court is far more than a “symbolic” gesture.
“It is a different perspective, a different view that is brought to the bench,” Fontaine said. “In dealing with different aspects of the law, having a diverse bench in ethnicity, experiences, gender is an important aspect to ensuring the community receives adequate representation of all viewpoints.”
Seymour James, president of the New York State Bar Association and an attorney with the Legal Aid Society, said it is “critically important” that the black community have a continuing voice on the high court.
“Diversity of perspective really helps the court and enhances the credibility of the system,” James said. “People’s perception of fairness affects their trust in government and in the criminal justice system there is a great deal of suspicion. I think it is important to have an African-American on the highest court so those in the community can see that their perspectives are represented.”
Under the rules governing the Commission on Judicial Nomination (22 NYCRR Part 7100), the panel is committed to consider race, gender, ethnic, religious and sexual diversity.
“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,” according to Rule 7100.8(e).
The death of Jones and departure of Ciparick mean the seven-member court will likely begin the new year short two judges, although for no more than 15 days.
Under the court’s own rules, lower court judges can briefly sit on the Court of Appeals, as necessary to ensure a quorum of five judges or to prevent a deadlock. Although five judges can hear an appeal, a majority of the full court, four, is required for a decision.
Jones’ death also means that Cuomo will appoint three of the seven Court of Appeals judges in his first term. The term of Judge Victoria Graffeo, a Pataki appointee, expires in November 2014.
If Cuomo serves a second term, he will appoint the entire court, something no other governor has done except his father.
The last Court of Appeals judge to die in office was Chief Judge John Loughran of Kingston, who died in 1953 at the age of 64.
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