By Alice Fontier and Sasha Kliger
For a long time, New York has not taken the appointment of Court of Appeals Judges seriously enough. Lawyers, advocates, journalists, politicians, and even everyday news-watchers pay attention to judicial appointments on the federal level. Candidates receive significant scrutiny during the appointment and confirmation process. In New York, however, the appointment process has been an overtly political and secretive one and has led to a Court of Appeals that does not serve New Yorkers.
This is in part because of the process by which the Governor appoints judicial nominees, and in part because the Senate does not act as a sufficient check on the Governor’s choice; the New York Senate has never rejected a judicial candidate. The New York State Constitution establishes a Commission on Judicial Nomination, made up of four commissioners appointed by the Governor, four appointed by the Chief Judge of the Court of Appeals, and one appointed by each of the Majority and Minority Leaders of the Senate and Assembly.[1] Former Chief Judge DiFiore, who led a conservative bloc of Judges on the Court of Appeals and faced an ethics investigation prior to resignation,[2] appointed four of the current Commissioners. Former Governor Andrew Cuomo, who resigned amidst allegations of sexual misconduct, appointed another three Commissioners. The Commission operates entirely in secret – from who applied for the nomination, to who was interviewed, to how the short list is selected. All we know is that the Commission chooses candidates for the short list through a concurrence of eight Commissioners, making it entirely possible for DiFiore and Cuomo’s appointees, along with the two Republican Commissioners, to effectively curate a list of conservative candidates without any check on their power.
This flawed nomination system under Cuomo and DiFiore has resulted in the ideologically conservative Court of Appeals we have now, one that is entirely out of step with New York voters. The Court of Appeals is now stacked with Judges who have come from prosecutor’s offices and government service (Judge Garcia, for example, served as Assistant Secretary of Immigration and Customs Enforcement)[3]. When DiFiore was on the court, she, along with three ideologically aligned Judges, brought New Yorkers the decisions in People v. Ibarguen, 35 N.Y.3d 1055 (2020) (holding that guests in other people’s homes are not protected from warrantless searches by the Fourth Amendment), Cutaia v. Bd. of Managers of 160/170 Varick St. Condo., 38 N.Y.3d 1037 (2022) (blocking workers from suing their employer for workplace injuries), and Harkenrider v. Hochul, 167 N.Y.S.3d 659 (2022) (rejecting the New York Legislature’s new district maps and giving the power to draw new maps to a Republican trial court judge).
With DiFiore’s resignation, there is an opportunity to change this pattern and bring the Court of Appeals more in line with the people of New York. The Court New York Deserves, a coalition of progressive organizations, along with other attorneys and advocates, have worked tirelessly over the last year to get one message out: the Court of Appeals must change. Bringing more diversity – in both life and professional experiences – to the bench would be a critical step towards positive change on the Court. Over the past many decades, the Court of Appeals has had a shocking lack of professional diversity,[4] despite the Nomination Commission’s internal rules requiring consideration of diversity in selecting candidates.[5] Nationally, President Biden has emphasized the need for diversity of experience in judicial nominations and acted upon this value: Supreme Court Justice Ketanji Brown Jackson is a former public defender and brings a unique perspective to the country’s highest court. On the state level, professional diversity is critical as well. The next Chief Judge of New York’s highest court should not be a former prosecutor or someone with a largely corporate professional background. Instead, we need someone who has experience representing the most vulnerable New Yorkers and a commitment to protecting New Yorkers’ civil and economic rights.
The Commission on Judicial Nomination’s short list of seven candidates, the list Governor Hochul must choose from in making her final nomination by the end of December, is notable in large part because of a conspicuous absence. Three current Judges on the Court of Appeals, Judge Jenny Rivera, Judge Rowen Wilson, and Judge Shirley Troutman – all of whom are people of color – all did not make it on to the Commission’s list. This leaves Governor Hochul without the option of nominating someone with both experience on the Court of Appeals and a demonstrated commitment to upholding New Yorker’s values. Instead, the only current Court of Appeals Judge on the list is Acting Chief Judge Anthony Cannataro, who voted in lockstep with DiFiore in a myriad of conservative decisions that stripped away New Yorkers’ rights. Rivera, Wilson, and Troutman would likely have been leading contenders for the position, and many familiar with the process speculate that their glaring omission on the list of candidates stems from DiFiore’s influence on the Commission.[6]
Luckily, there are two candidates on the short list who rise above the others and would bring crucial balance to the Court of Appeals: Judge Edwina Richardson-Mendelson and Corey Stoughton. Stoughton is a seasoned civil rights attorney, who spent ten years at the New York Civil Liberties Union and has worked in the Civil Rights Division of the Department of Justice. In 2020, she joined The Legal Aid Society as its Attorney-in-Charge of the Criminal Defense Practice Special Litigation Unit.[7] This professional experience would allow Stoughton to bring an extremely valuable perspective to the Court of Appeals, which currently lacks any Judges with former careers as civil rights attorneys. Having spent her career working to protect New Yorkers’ civil rights, Stoughton is likely to approach the position of Chief Judge with that same goal in mind.
Judge Richardson-Mendelson is another excellent, and historic, choice for Chief Judge. If appointed Chief Judge, Judge Richardson-Mendelson would be the Court’s very first non-white Chief.[8] Judge Richardson-Mendelson has significant judicial experience, serving as the Administrative Judge for New York City Family Court, an Acting Supreme Court Justice, and a Judge of the Court of Claims. Since 2017, she has been the Deputy Chief Administrative Judge for Justice Initiatives, where she has worked to ensure meaningful access to justice for all New Yorkers in civil, criminal, and family courts.[9] She has demonstrated her dedication to bettering the legal system over the course of her career, and she seems poised to continue this critical work in the position of Chief Judge. Judge Richardson-Mendelson’s judicial experience also makes her a candidate who would be especially aware of the importance of the Chief Judge’s administrative powers, and one who would wield them to advance justice through court policy.
With these two names on the list of candidates, Governor Hochul has the exciting opportunity to choose a Chief Judge who would center social and economic justice in their work, and make the Court of Appeals the court New York deserves.
[1] N.Y. Const. §2(d)(1)
[2] https://www.timesunion.com/news/article/DiFiore-faces-ethics-probe-over-court-officer-17299308.php
[3] https://nycourts.gov/ctapps/index.htm
[4] https://www.brennancenter.org/our-work/research-reports/professional-diversity-new-york-court-appeals
[5] 22 N.Y.C.R.R. Part 7100.8(e).
[6] https://www.nysfocus.com/2022/12/01/court-of-appeals-chief-judge-difiore-dissenters/
[7] https://legalaidnyc.org/news/corey-stoughton-criminal-defense-practice-special-litigation-unit/
[8] https://www.nysfocus.com/2022/12/01/court-of-appeals-chief-judge-difiore-dissenters/
[9]https://cjn.ny.gov/system/files/documents/2022/11/press_release_for_chief_judge_vacancy_report_and_bios.pdf