NY Commission Recommends White Males to Replace Chief Judge

By TChris, Section Judiciary
Posted on Sat Dec 06, 2008 at 11:52:35 AM EST
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The chief judge of New York's highest court, Judith Kaye, is retiring at the end of the month. The commission charged with nominating candidates to replace her deserves the criticism it has received from Gov. David Paterson, who makes the final selection from the nominees, and Attorney General Andrew Cuomo.

The seven candidates offered by the Commission on Judicial Nomination include no women and only one minority.

Did the Commission really believe that white males make the best chief judges -- to the exclusion of all females?

"I've really got to wonder how this group would feel comfortable sending a list forward and not one of them represents half of the human race," Paterson said.

[more ...]

Paterson thinks the state constitution clearly obliges him to choose from the list, and he believes restarting the process would be unfair to the seven chosen candidates. It seems unfair to the public to constrain the governor's choice to a list that plainly does not reflect the diversity of the state's judiciary. If Paterson has the power to insist upon a do-over, he should. (Perhaps someone with knowledge of the New York Constitution can weigh in on whether Paterson has that option.)

The best long-term solution might be the rapid addition of diversity to the Commission on Judicial Nomination:

While Paterson harshly criticized the nominating commission, observers said that group has historically done a poor job of finding candidates. "In the past, none of them have done a particularly good job," said Albany Law School Professor Vincent Bonventre.

The legislature might consider doubling the size of the commission. A sudden infusion of new blood might be just what the commission needs.

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NY Commission Recommends White Males to Replace Chief Judge | 17 comments (17 topical)

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what's the makeup of the (5.00 / 2) (#8)
by cpinva on Sat Dec 06, 2008 at 02:28:33 PM EST

commission, it doesn't seem to be stated? if it's comprised of all white males, then their list of candidates should come as no surprise: you tend to pick people just like you.

i would even go so far as to suggest it wasn't even conscious discrimination, those are the people they felt "comfortable" with. it may have even come as something of a shock to some of them, when they realized the list was an exact duplicate of themselves.

: NY Law Journal Article (none / 0) (#17)
by cpa1 on Sun Dec 07, 2008 at 08:25:35 AM EST

That talks about the list and links to bios of the candidates. http://www.law.com/jsp/nylj/PubArticleNY.jsp?hubtype=FeaturedContent&id=1202426401089

[ Parent ]

Nitpickin' here, but . . . . (5.00 / 2) (#13)
by nycstray on Sat Dec 06, 2008 at 04:13:26 PM EST

"The list is flawed," added Cuomo. " The governor should be able to consider men and qualified women. And to circumscribe and limit it to only men (indicates)... something is wrong with either the process, the legislation or the way it was administered."

Andrew, why do only the women need to be qualified?! {grin}

I saw this yesterday when I was looking for info on Hillary's replacement. Quite pleased that he's speaking out about this issue.

No easy fix (5.00 / 1) (#16)
by fuzzyone on Sat Dec 06, 2008 at 06:40:37 PM EST

Unfortunately, the size of the commission is laid out in the constitution, so the legislature can not change it. It is certainly clear that the Governor must choose from the list the commission provides:

The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals

Art IV, sec 2.e.

I don't see anything in the constitution that says he can tell them to start over, but I don't see anything that says he can't either.

This is the kind of result (none / 0) (#1)
by andgarden on Sat Dec 06, 2008 at 12:01:09 PM EST

that reinforces my suspicion about the wisdom of using a commission to do tasks normally handled by elected officials.

Shades of Rose Bird. (none / 0) (#2)
by oculus on Sat Dec 06, 2008 at 12:04:32 PM EST

I liked Rose Bird. (none / 0) (#10)
by Donald from Hawaii on Sat Dec 06, 2008 at 03:36:58 PM EST

In the face of relentless argumentum ad hominem, Ms. Bird stood foursquare upon principle and the law, rather than bow to the transient whims of public opinion and political expediency.

That's what judges are supposed to do - aren't they?

[ Parent ]

: I liked her also, even though, at the (none / 0) (#11)
by oculus on Sat Dec 06, 2008 at 03:53:52 PM EST

time, I was a prosecutor. Not a popular viewpoint. She got really bad press.

[ Parent ]

Paterson (none / 0) (#3)
by squeaky on Sat Dec 06, 2008 at 12:18:29 PM EST

Has made announcements already saying that he intends to increase the diversity in NYS government. Too bad he has to deal with a list that is so limited.

I do not like the fact that there is a mandatory retirement age, anyway 70 seems too young to me.

I agree, it's one thing to set in place rules (5.00 / 1) (#5)
by tigercourse on Sat Dec 06, 2008 at 12:42:50 PM EST

that keep some 90 + judge from showing up and napping in court, it's another to force judges to retire when they've still got alot of good years in them.

[ Parent ]

: So, some sort.... (5.00 / 1) (#7)
by MileHi Hawkeye on Sat Dec 06, 2008 at 01:18:23 PM EST

...of mental compentency testing would be more fair than a mandatory retirement age?
There are a few things that people can physically do (drive, be parents, be judges) that they aren't necessarily mentally equipped to be doing.

[ Parent ]

Is retirement mandatory at age 70 (none / 0) (#4)
by oculus on Sat Dec 06, 2008 at 12:34:54 PM EST

for all state employees in NY? Has this been challenged?

[ Parent ]

: Judges (none / 0) (#14)
by squeaky on Sat Dec 06, 2008 at 04:19:56 PM EST

A special task force of the New York State Bar Association recently issued a report calling for increasing the mandatory retirement age for state judges to 76.
Today, judges of the state's Court of Appeals and most trial courts must retire at age 70. The only exception is for justices of the state supreme court, who may remain on the bench until age 76 if approved in a certification process every two years starting at age 70. The NYSBA's task force has urged reform of the current policy, expressing preference for one finite retirement age (76) for all state judges at the trial and appellate levels.
A lot of action last year on this but the law is still set at 70.

[ Parent ]

getting to like (none / 0) (#6)
by NYShooter on Sat Dec 06, 2008 at 01:12:23 PM EST

Paterson, more & more

I agree with Gov. Paterson. (none / 0) (#9)
by Donald from Hawaii on Sat Dec 06, 2008 at 03:29:44 PM EST

Still, it would be nice to neither worry nor hear about the specific race, ethnicity and / or gender diversity of a panel of judicial finalists or cabinet nominees, and concern ourselves only with their respective qualifications and dispositions.

I hope to see the day when such representative cross-sections of society are de riguer, and selected by those in authority as a natural matter of course in the first instance, rather than by a concerted after-the-fact effort when justified complaints are voiced publicly after the initial round.

: Using "de facto" (4.00 / 1) (#12)
by NYShooter on Sat Dec 06, 2008 at 04:12:44 PM EST

as the criterion, what if no white males were chosen?
I doubt "respective qualifications" would be acceptable.
I don't think the panel was consciously racist and/or sexist; it's just that mental inertia is almost impossible to change. My dad, a psychiatrist, said that human behavior, while optimists keep peddling the "you can change" meme, is one of the most difficult, and perplexing, traits to alter; not impossible, just very, very rare.
The recidivism rate in released convicts illustrates that theory; so does the fact that Charles Manson could be the Republican/Democratic candidate for office, and 40% of the population would vote for him.

[ Parent ]

Perhaps Worth Noting (none / 0) (#15)
by The Maven on Sat Dec 06, 2008 at 05:53:57 PM EST

Without in any way defending the commission here, it may be worth noting that in addition to soon-to-retire Chief Judge Kaye, the other six members of the Court of Appeals consist of three other women, as well as a black male.

It's also worth noting that two of the selected candidates are associate judges on the Court, and if one of them were to be selected by Gov. Paterson, another vacancy would open up, permitting the commission an opportunity to consider a more diverse pool on a second go-around.

And we haven't even begun to discuss the effect of New York State's comparatively meagre salaries for judges, making recruitment and retention increasingly difficult, especially among groups who are likely to be in demand (minorities, women) by the private sector. This isn't to say that there aren't good judges to draw from, just that the pool is somewhat smaller than one might think. So while it is entirely proper to criticize the commission here, the situation is actually a bit more complex than at first glance.