Justice Can’t Wait

By Barry A. Bohrer, Chair, Fund for Modern Courts

It is deeply disturbing to those who care about New York’s justice system to read that when asked recently if the Senate would return before January to hold confirmation hearings for the next Chief Judge of the State of New York, Republican Majority Leader John Flanagan said, “I don’t see any reason why we would do that.” It is astonishing that the Majority Leader of the state Senate says he sees no reason why the Senate should obey the law, and does not understand that the Judiciary, the third branch of government, needs a Chief Judge to be able to fulfill its vital responsibilities to enforce the rule of law on behalf of all New Yorkers.

The Fund for Modern Courts, an organization whose goal is to make the courts better for all New Yorkers, believes that there are at least three reasons for the Senate to act:

  • It’s the law – the Senate “shall confirm or reject” the appointment of the Governor “no later than thirty days after receipt of the nomination from the governor.”
  • The Chief Judge provides leadership to the judiciary, administers the entire court system, and appoints the Chief Administrator of the Courts, who is critical for the daily operations of the court system: and
  • The Chief Judge sits on the Court of Appeals, our highest court, which will have only five of its seven members in January 2016, if a new Chief Judge is not confirmed before then.

The New York State constitution gives the Governor the power to appoint members of the Court of Appeals when there is a vacancy, as there will be at the end of this year when Chief Judge Jonathan Lippman retires, and provides that the state Senate will confirm or reject those appointments. The Judiciary Law requires that the Governor appoint one of the seven candidates nominated by the Commission on Judicial Nomination to the position of Chief Judge no sooner than November 15th nor later than December 1st, and that the Senate must confirm or reject that appointment no later than thirty days after receipt of the nomination from the Governor. Assuming that the Governor appoints a new Chief Judge by December 1st, as required by law, the Senate must act before the end of the year or violate the law that it adopted many years ago to ensure an ordered and timely process. There can be no debate about this.

New Yorkers need a Chief Judge to lead and to administer the judiciary on day one of the new year. Many important actions, such as negotiating the judiciary budget with the legislature, and decisions, such as how to allocate judicial resources and what policies should be instituted to make the courts just and efficient, will require the Chief Judge’s attention in January. All New Yorkers – including the families and children who rely on our Family Court to resolve complex problems of child support and custody; businesses that utilize the commercial parts of our Supreme Court to untangle significant disputes; those, including victims, who seek justice in criminal courts; and those who have grievances with no alternatives to address them — deserve to have a judicial system that functions with the leadership of a new Chief Judge on January 1, 2016.

Senator Flanagan also said that he was “… also aware that the court doesn’t really have a calendar for January, so that may have some bearing on the timing and what happens.” This ignores the fact that the Court has scheduled argument days during the first two week of January commencing on January 4. If a Chief Judge is not confirmed by the end of the year, the Court will only have five members, a situation that can cause quorum problems and an insufficient number of votes for the Court to reach a decision. This would mean that cases would have to be reargued, resulting in a needless waste of resources

In order for the third branch of our state government to meet its constitutional obligations, and provide justice for the people of the State of New York, the Governor and the Senate must act in a timely fashion as required by law.

A Version of this Commentary was Published in the Times Union on November 17, 2015  http://www.timesunion.com/tuplus-opinion/article/Senate-must-act-on-chief-judge-vacancy-in-timely-6638860.php

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