By Noah Rosenblum.
I want to start by thanking Twenty Eagle for organizing this important symposium. State courts do not attract nearly the amount of attention and commentary that they deserve. As I have written about in other venues, state judges wield significant power over nearly all the most important aspects of our lives—from the reach of our parental rights to the security of our housing to the conditions under which the state can coerce us. The selection of the next Chief Judge will have important consequences for every individual and corporation in New York State. And it will likely ramify further still. Today, as for most of American history, what happens in America happens first in New York. For this reason the selection of the next Chief Judge is likely to have national consequences as well.
The necessary backdrop to any discussion of the current selection process is the upsetting decline of the New York Court of Appeals. I say this with sadness as a proud New Yorker and former law clerk at the New York Court of Appeals. Ours was once the greatest high court in the land. It attracted leading jurists, who became national figures of renown, from John Jay to James Kent to Benjamin Cardozo to Judith Kaye. It issued precedent-setting decisions that guided not only other state courts but also the United States Supreme Court. And it helped elaborate a distinctive tradition of New York law that harmonized liberalism with equality and created a flourishing, multi-racial, multi-ethnic society, as the great NYU legal historian Bill Nelson explained twenty years ago.
No longer. Under the last years of ex-Governor Andrew Cuomo and previous Chief Judge Janet DiFiore the Court experienced a remarkable loss of respect. While under investigation for impeachment, Cuomo rammed through two problematic appointments, Madeline Singas and Anthony Cannataro, who proceeded to vote in lock-step with Cuomo’s close ally DiFiore. Her 4-3 majority pushed New York law to the right on labor, criminal procedure, and police impunity, among other matters. It also empowered a lone conservative upstate justice to impose new electoral maps on the state, essentially delivering the House to the GOP this past election cycle. The Court has been terrible on process too. In the last years it has slashed its workload and issued fewer reasoned opinions, leaving New Yorkers in the dark about their law.
The first task of a new Chief Judge is to reverse this decline and undo DiFiore’s damage. Unfortunately, some of the judges most suited to that job were kept off the short list. Like Cuomo, DiFiore resigned from her position while under investigation for a serious ethics violation. But this did not lead her representatives on the Commission on Judicial Nominations to step down. Nor, for that matter, did Cuomo’s resignation-in-lieu-of-impeachment lead his to step down either. As a result, the Commission that put together the short list of nominees for the next Chief Judge remains dominated by allies of two disgraced politicos. According to New York Focus, those commissioners seem to have conspired to keep the judges who bucked DiFiore’s rule from making the shortlist.
This is disgraceful. Before the Commission released its shortlist, Court observers rightly focused on three current sitting judges as possible selections for Chief. Jenny Rivera, for whom I clerked in the 2017 term, is a former CUNY law professor and one-time law clerk to Sonia Sotomayor; she is not only one of the intellectual leaders of the Court’s left flank but also its most senior jurist. Her frequent partner in dissent, Rowan Wilson, a former Cravath partner, is so universally respected and admired that he was on the short list for the Chief Judge position the last time it was vacant, when he had *less* experience than he has now. And Shirley Troutman, the most recent addition to the Court, is the only sitting Court of Appeals judge to have been nominated by Governor Hochul, with whom she has enjoyed a long professional relationship.
The Commission’s decision to exclude these three proven candidates should be a scandal. From the outside, it seems the Commission blackballed the three non-white sitting Court of Appeals judges to apply for the position of Chief, who also happen to be the only three judges who regularly disagreed with DiFiore. To state the obvious: it would not have been in keeping with the Commission’s own regulations, which require Commissioner impartiality, to exclude these qualified candidates just because of DiFiore’s enmity. And it hurts New Yorkers. The Commission’s shortlist leaves off the only judge the current Governor and the Senate have both placed their confidence in, the most experienced judge on the Court, and a judge who was already found to be a strong candidate for the position of Chief before he acquired even more useful and relevant experience. How is this good governance?
Perhaps the Commission decided that the Court needed a change, and wanted to bring someone in from the outside? As a threshold matter, that seems to me a decision that should have been left to the Governor and Senate. But in any case, I think that means we have to treat the inclusion of Cannataro as a courtesy listing, to signal that the Commission did not think he was doing a terrible job as Acting Chief. (For what it’s worth, the bar associations have been less solicitous of AC’s feelings, finding several other candidates more qualified.)
I suspect Cannataro does not have a serious shot at the job anyway. He represents strong continuity with DiFiore, who apparently backed him for Acting Chief, presumably over Senior Associate Rivera. (Traditionally the Senior Associate judge has become Acting Chief as a matter of course.) Cannataro voted with DiFiore to strike down the electoral maps, angering Democrats at all levels of government. And, while he would be the first openly gay Chief Judge, he has so angered LGBTQ advocates that the Jim Owles Club denounced him, warning that “a court under his watch will be anathema to New York’s values and the lives of LGBTQIA+ New Yorkers.”
Hector LaSalle and Jeffrey Oing are likely to be no better, and should receive as little consideration. LaSalle would be DiFiore redux. He is, like DiFiore, a conservative—indeed, he was elected to Supreme Court while listed on the Republican Party line, and is perhaps the most conservative jurist in the Appellate Division. He is, like DiFiore, a former prosecutor, and has routinely ruled against defendants and in favor of the police. And, like DiFiore, if he were to become Chief, it would put a former Republican in charge of the Court during a contentious redistricting fight—in this case, in 2030. Given how badly DiFiore worked out for Democrats, I cannot imagine that they would want to risk a repeat.
Nor do I think they should. As I have already argued in print, the Court is indefensibly stacked with former prosecutors. LaSalle is the only former prosecutor on the shortlist list. Even without him, the Court will continue to be dominated by former prosecutors. The next Chief should not be a former prosecutor. The Court needs balance, not further imbalance, as half the Senate Democratic caucus has already demanded.
Oing would not provide balance either. Although he has not worked as a prosecutor, I don’t think, his past opinions show him to be nearly as carceral as LaSalle. I confess that before his nomination I was not familiar with his jurisprudence. But, since I started reading up on him, I have not been able to stop thinking about his bewildering opinion in People v. Watt from 2020. The only question in the case was whether the First Department should use its interest of justice jurisdiction to slightly reduce a very long sentence for a defendant with selective mutism, an IQ of 48, and a long and documented history of mental illness, who had committed an (admittedly gruesome) crime at the age 19. The majority decided to do so, pushing back against harsh, counter-productive imprisonment. Oing dissented. He conceded that the Court had the power to change the sentence. But he did not want to exercise the discretion to do so, since, he believed, “extraordinary circumstances that would warrant a reduction have not been demonstrated.” I appreciate Oing’s forthrightness. But these are not the values New Yorkers need.
Of all the candidates, the one who would most clearly bring balance to our system and has the deepest demonstrated record of using the law to support the most vulnerable New Yorkers is Corey Stoughton. The Attorney-in-Charge of Special Litigation at the Legal Aid Society, Stoughton has already led a distinguished career advocating for those who most need the law for protection. She is deeply familiar with the state court system. She has been at the forefront of addressing some of the most troubling miscarriages of justice in New York, including the ongoing humanitarian disaster at Riker’s Island. And she has significant administrative experience, having worked within and supervised large legal organizations in New York and abroad. From holding police accountable for abuse to protecting New Yorkers from illegal discrimination, Stoughton embodies the promise of the progressive lawyer, who uses the law to advance justice.
Stoughton would also help restore the Court to national prominence. She is a graduate of Harvard Law School and a well-known criminal law reform advocate. Other major states, including Michigan and California, have recently named comparable figures as chiefs on their high courts. And the Biden Administration has prioritized appointing candidates with Stoughton’s profile to the federal bunch. In nominating Stoughton, New York would immediately vault its Court to the front of an emerging progressive judicial development.
Of course, if the Governor’s goal is to raise the Court’s profile, my old law school teacher Abbe Gluck is likely the top choice. Her appearance on the short list came as a bit of a surprise to most of the court watchers I know, as she is somewhat of an outsider to the New York court system. Gluck is part of the national legal elite: she is one of the leading legal scholars of her generation and has extensive public service experience in Democratic administrations, including in New York and in the Biden White House. She is not a left candidate though. Before clerking for Ruth Bader Ginsburg, she clerked for Ralph K. Winter Jr., a Reagan appointee and an important figure in the conservative legal movement. And she has worked across the aisle on many occasions during her time in government. She is an expert on federalism, statutory interpretation, and state law; has significant administrative experience from her public service and work as director of several academic initiatives; and gave me my worst grade in law school.
About the last two candidates, Edwina Richardson-Mendelson and Alicia Ouellette, I have very little to say, because I can only pass on what others have told me. Richardson-Mendelson seems to be universally respected for her integrity, good judgment, and administrative experience; several people have remarked to me on her mix of accessibility, institutional leadership, and devotion to the court system. The Governor herself noted the importance of administrative experience to her conception of the role; perhaps this suggests she’s eyeing Richardson-Mendelson as a knowledgeable and steady hand? Administrative experience also seems to be Ouellette’s main qualification—my colleagues in the legal academy all speak highly of her leadership of Albany Law.
Where does this leave things? I want to return to where I started: the number one priority needs to be putting the Court back on a path to what it could be, one of the country’s great high courts. This means breaking with DiFiore and returning the Court to its role as national leader and defender of the most vulnerable, particularly in this era of federal judicial retrenchment. Three candidates for the position would make things worse or keep them as bad. Cannataro, LaSalle, and Oing are different versions of continuity with the discredited approach of the previous Chief Judge. Stoughton is a progressive who would take the Court in a transformative new direction. Gluck would fulfill many of the Governor’s stated goals, including especially raising the Court’s profile. And Richardson-Mendelson would bring irreplaceable experience.
Whoever the Governor picks, I hope New Yorkers do not forget the scandalous, problematic process that led us here. This Commission should never have operated as it did. The Governor should have had the chance to consider some candidates whose names were excluded. To fix this will require comprehensive reform—perhaps a constitutional amendment, certainly many years’ worth of concerted activism. We need to start organizing for that change now. May the next Court—and the process for selecting our subsequent Chief Judge—not be marred by the injustices that have plagued this one.