Judicial Diversity

By Hon. John R. Dunne

Vice Chair, Committee for Modern Courts

“Public Forum: A Lasting Blueprint for Judicial Diversity”

When President John F. Kennedy sent to the Congress legislation which became the Civil Rights Act of 1964, he declared:

“The moral issue is as old as the Scriptures and as clear as the American Constitution.”

His admonition is as relevant today, as you undertake this mission, as it was at the time of his untimely death. Today, moral suasion and strong leadership are essential to sustained action; and we must focus on achievement, not just opportunity.

As you know, Modern Courts urged Governor Pataki in July of this year to be mindful of the importance of diversity on the Court of Appeals, before he made his last appointment to that court. We did that because it is our long held view that a judiciary which reflects the broad diversity of the state enhances public confidence in the administration of justice.

Modern Courts acted on that principle many years ago when we championed the 1977 Constitutional amendment establishing a commission-based appointive system for the selection of judges of the Court of Appeals. The bipartisan support of the amendment and subsequent legislation derived from the belief that this system would eliminate the role of money, reduce the influence of politics, provide for the most highly qualified judges and, of great importance – promote diversity, as well.

You may recall that part of the impetus for this reform was the defeat in the early nineteen-seventies of the late and beloved Judge Harold Stevens, who had been appointed by former Governor Malcolm Wilson, and the first African-American to serve on the New York Court of Appeals, by an extremely well-financed campaign by an attorney with no prior judicial experience.

Modern Courts has long believed that the best opportunity for an appropriately diverse judiciary is through a qualification commission-based appointive system, where the appointing authority was the Governor, who represents all the people of our state. But for the system to work properly, the Governor must make a commitment to the concept of diversity.

In the same way that a diverse legislature serves the people of the State of New York well, so does a diverse judiciary.

Where the judiciary does not reflect the diversity of the community it serves, public confidence in the judiciary is undermined. For example, in a survey sponsored by the Commission to Promote Public Confidence in Judicial Elections (the Feerick Commission) of which I was a member, and conducted by the Marist Institute for Public Opinion, registered voters were asked how fair and impartial New York State judges were. Seventy-one percent (71%) of registered voters throughout the state agreed that New York State judges as a whole are fair and impartial. However, there was a significant racial divide, with only fifty-one percent (51%) of African-American voters agreeing that judges are fair and impartial. This twenty per cent fall off of public confidence is not acceptable in a diverse democracy.

Modern Courts, also, has been concerned about the very limited diversity in appointments by the Governor to the four departments of the Appellate Division. Because appellate justices often become candidates for the Court of Appeals, a lack of diversity in those appointments impacts on candidates recommended by the Commission on Judicial Nomination. Indeed, during the last appointment process to the Court of Appeals – six of the seven excellent candidates for the Court of Appeal vacancy were Appellate Division judges.

The weight accorded to diversity can and must change during the next four years, and we urge Governor-elect Spitzer to select candidates for the Appellate Division from that pool of Supreme Court justices who serve within the departments where vacancies arise. Current law requires only that the Presiding Judge and a majority of the judges of each Appellate Division Department reside in the department in which they serve. Unfortunately, the current administration has too often selected judges for the Appellate Division from departments other than from ones where they serve. Such a policy has denied many qualified Supreme Courts justices the opportunity to serve in the Appellate Division Department, where they sit as Supreme Court justices. Consequently, the Appellate Division Departments, especially the First and Second Departments, do not reflect the rich diversity of those departments. The Legislature may wish to consider enlarging the portion of the Appellate Division that must be drawn from Supreme Court justices within each Department.

Legislative attention must also be directed to the selection of State Supreme Court justices. As a result of the decisions of the federal courts in Lopez Torres v. New York State Board of Elections , which found New York’s judicial convention system of selecting nominees for the Supreme Court unconstitutional and ordered direct primaries for Supreme Court justices, the Legislature is now faced with the task of designing a new system which meets constitutional requirements.

Modern Courts believes that the best system, and the one that would best promote diversity, is an amendment to New York’s Constitution establishing a qualification commission-based appointive system. But adoption of a Constitutional amendment takes a minimum of three years, and does not address the present crisis – direct primaries for Supreme Court justices, which will require 24 sitting justices in 2007 alone, to raise large sums of money, in some instances hundreds of thousands of dollars, in order to avoid primaries.

A credible alternative to nominations through party primaries is reform of the judicial convention system in conjunction with the establishment of independent judicial qualification commissions in each judicial district to evaluate candidates and report to the judicial delegates. Independent judicial qualification commissions which evaluate the qualifications of candidates for election to the Supreme Court can provide for both a well qualified and diverse judiciary, if the members of these commissions are appointed by governmental officials from all three branches of government, and are selected by independent and diverse organizations or appointing authorities, representing the broad diversity of the area. Only candidates who have been found “well qualified” by such a panel should be nominated for judicial office, and no more than three candidates should be approved for each judicial vacancy. Where the seat to be filled is held by a well-qualified incumbent eligible for election, the commission should have the option to approve only the incumbent.

Modern Courts has provided general support for the New York State Assembly’s Judicial Qualification Act (A00007), which was passed by the Assembly in 2005. This bill included several mechanisms to evaluate candidates for state judicial positions and contained provisions designed to promote diversity in the pool of selected candidates before they advance to an election or nomination by the Governor. You may want to review this legislation and determine what elements of this bill establish a system that promotes diversity in the judiciary.

This bill also contained provisions designed to promote diversity in the qualification panels by requiring that a number of bar associations, including both minority and women’s bar associations, within the judicial district designate members of the panel and that the members of a panel “represent the diversity of the judicial district. In addition, the legislation required the qualification panels to actively recruit candidates, provide adequate public notice of judicial vacancies, and publish a list of the candidates that they find to be well qualified. Finally, the legislation provided for the creation of a “Commission on Judicial Diversity,” which would analyze the judicial selection process to evaluate any possible “impediments” to diversity in the judicial selection process, compile and distribute information about diversity in an annual report, report on the actions promoted and taken to achieve greater representation of minorities and women in the judiciary, and recommendations for further action by the legislature.

In order to ensure that diversity is a factor in any system devised, the Legislature should consider the experience of other states that have wrestled with this issue. For example, Professor Leo Romero, a former Dean of the New Mexico School of Law, who also served as Chair of all Judicial Nominating Commissions in New Mexico from 1991-1997, identified what he believes are the two most important tactics that contribute to diversity in an appointive judicial process. First, that the commissions that evaluate judicial candidates maintain records on diversity, and second that this information be widely published and otherwise available to the public. According to Professor Romero, when such data is maintained and reported, commissioners and the public are better able to pass judgment on a commission’s success in achieving a diverse pool of applicants, recommendations and nominees, and makes commissioners accountable for achieving diversity.

It may be useful for the Legislature to investigate New Mexico’s experience and review that state’s system of judicial selection and its Judicial Nominating Commissions. Professor Romero has concluded that the New Mexico system of judicial selection produced slightly more women and minority judges under the Judicial Nominating Commission System than under the prior system .

In order to achieve the judicial diversity that we all desire, much needs to be done. By holding this forum, the Senate has taken an important first step in the process. Modern Courts offers its assistance to you to design an appropriate system, and believes that the good faith effort of the Legislature and the Executive will enable us to achieve the goal of a more diverse bench in New York State.

Let me close – just as I opened – on a personal note. When I was at the Justice Department and had sole responsibility for approving the redistricting of congressional districts, as well as those of state legislatures and city councils in certain states in order to protect the voting rights of minority citizens, I attempted to maximize the number of so-called majority-minority districts to give minority voters the opportunity to elect candidates of their choice. But, in Shaw versus Reno, the Supreme Court said that my ruling on the congressional redistricting of North Carolina had gone too far – beyond what the Constitution would allow. Well, it was a disappointment, but the Court had spoken and that was it. Back at the Civil Rights Division I remarked to my colleagues that I would prefer to be faulted for having tried too hard than for not having tried hard enough. I hope that you share that philosophy.

The time has not yet come when rigid legal notions of colorblindness can be applied to social policy. When President Lyndon Johnson appointed to the Supreme Court, Thurgood Marshall, acknowledged as one of the greatest lawyers of the 20 th Century, he said “I believe it is the right thing to do, the right time to do it”.

Now is the right time to do the right thing; so that, one day, justice will not only flow down like waters, but will look like the broad community it serves.

May you be blessed in bringing true meaning to justice for all under the law.

Thank you.

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