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NY Panel Hastens Search for Top Judge as Advocates Weigh In (Correct)

Oct. 4, 2022, 9:23 AMUpdated: Oct. 4, 2022, 9:30 PM

The commission picking candidates for New York’s next top judge is facing pressure to diversify the court by finding a non-prosecutor, but there’s a tight timeline to do so.

Chief Judge Janet DiFiore’s Aug. 31 resignation has triggered calls by progressive and advocacy groups to consider civil rights attorneys, public defenders, and other non-prosecutors to head the Court of Appeals and lead the state’s court system.

The 12-member independent Commission on Judicial Nomination appointed by the governor, legislative leaders, and the chief judge has until Nov. 25 under an accelerated selection process to send their seven nominees to Gov. Kathy Hochul (D) for her consideration.

Typically the commission would have advance notice and be able to start soliciting applications, state Bar Association President Sherry Levin Wallach said. The unplanned vacancy accelerated the search process by a matter of months.

State Sen. Brad Hoylman (D), who chairs the Senate Committee on Judiciary, agreed, saying his biggest concern is that the commission has a strong list of candidates for Hochul to choose from. “If there were a breadth of professional and personal backgrounds on the court, we’d see decisions that might more accurately reflect the state as a whole.”

DiFiore’s resignation, which she announced in July, is just the latest change for a seven-member court that’s already had three new judges appointed in the last two years.

The state court system is one of the largest in the nation, with an approximately $3 billion budget, more than 1,350 state-paid judges, and approximately 15,000 non-judicial court employees. In addition to the state-paid judges, there also are more than 1,800 judges serving in the state’s locally funded town and village justice courts.

“New York State is a leader in the legal community across the country, and quite honestly, across the world,” Levin Wallach said. There’s a large concentration of attorneys in the state, and many firms in New York City have an international presence, she said.

“When you’re looking for a chief judge, these are the factors that come into play,” she said, adding that administrative abilities will be crucial in finding DiFiore’s replacement.

The court selected Associate Judge Anthony Cannataro to serve as interim Chief Judge until DiFiore’s replacement is found.

Fast Track

Most resignations are planned, with judges stepping down when they hit the mandatory retirement age of 70. But since 2013, the court has had significant turnover with unanticipated resignations and deaths leading to two to three new judges a year.

“The Commission has been extraordinarily busy the past two years,” Commission Chairman E. Leo Milonas said in an email. “During this period, the Commission has been called on to nominate candidates to fill four vacancies on the Court of Appeals. It has been nearly two decades since the Commission last worked on that many vacancies in a similarly compressed time frame.”

In 2021 into early 2022, the commission had to fill three vacancies—only one of which, the retirement of Associate Judge Eugene M. Fahey, was planned.

Associate Judge Paul G. Feinman retired on March 23, 2021, citing health reasons, and died March 31. Associate Judge Leslie Stein retired early on June 4, 2021.

The turnover was largely due to “unfortunate circumstances,” Levin Wallach said.

“As with every vacancy, the Commission is once again entrusted with the immense responsibility of vigorously seeking out, carefully evaluating and then nominating to the Governor well-qualified candidates to fill vacancies on the Court of Appeals,” Milonas said.

The application window for DiFiore’s position ended Aug. 29. The commission must now narrow down the candidates and request additional information from the applicants, including a long-form questionnaire and financial disclosure form. During the 120-day process, background checks are conducted, references contacted, and applicants are brought in for interviews.

The seven nominees are announced publicly, allowing the state Bar Association’s Committee to Review Judicial Nominations to conduct interviews, research the candidates, and rate them based on whether they’re qualified for the position. The ratings are then given to the governor to help with her decision.

The Court of Appeals selection process should be re-examined, Hoylman said, adding that it’s “pretty clunky,” and there’s “not a lot of transparency.”

Progressive Push

DiFiore, a Republican turned Democrat, was nominated by former Gov. Andrew Cuomo (D) and had been a controversial figure and a conservative force on the court. She earned the ire of some Democrats for her role in throwing out the Democrat-favoring congressional and state Senate redistricting maps.

Advocacy groups have asked Hochul not to appoint another former prosecutor since the majority of the Court of Appeals judges were former prosecutors, including Associate Judge Shirley Troutman who Hochul appointed in January.

“There are laws that the Legislature passed that are at stake here,” Hoylman said, including tenant rights, worker protections, and voting rights. “As a Legislature, we certainly have a stake in making sure that our laws are upheld and that the court reflects the values of the state as a whole.”

“For the Court to reflect the values of our state, its jurists should represent that excellence in different areas of the law and a commitment to serving others,” state Senate Deputy Majority Leader Michael Gianaris (D) said in a Sept. 6 news release. “That is especially important of the Chief Judge, who not only sets the tone for the Court but administers the state’s entire court system.”

By law, Hochul has between 15 and 30 days after she receives the commission’s recommendations to make her appointment. It then goes to the state Senate which has 30 days to confirm or reject the appointment.

(Removes Levin Wallach quote provided to Bloomberg Law in error.)

To contact the reporter on this story: Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Fawn Johnson at fjohnson@bloombergindustry.com