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Quest for Diversity Triggers Debate Over Role of Race, Gender in Judicial Selection Process

By John Caher Contact All Articles 

New York Law Journal

March 11, 2013

ALBANY - The diverse list of contenders for the Court of Appeals released last week, and the general assumption that the open position is a "black seat," has caused some members of the bar to question whether race is a legitimate, or even constitutional, consideration in reviewing candidates for the state's court of last resort.

Governor Andrew Cuomo on March 7 received a list from the Commission on Judicial Nomination that included three black candidates—Appellate Division, First Department, Justices Sheila Abdus-Salaam and Dianne Renwick, and Rowan Wilson, a litigation partner at Cravath, Swaine & Moore. It is widely assumed the governor will pick a black candidate to replace Judge Theodore Jones Jr., who was the only black judge on the court when he died in November.

But the perception that there is or should be a "black seat" on the court has caused concern among some, especially coming on the heels of last month's appointment of Jenny Rivera to fill what many viewed as the "Hispanic seat." Rivera, of Puerto Rican descent, replaced the first Hispanic to serve on the court, Carmen Beauchamp Ciparick, who retired on Dec. 31.

Assemblyman William Nojay, a freshman Republican lawmaker from suburban Rochester, who is of counsel with Hiscock & Barclay, said he is deeply concerned that racial politics has infected judicial selection.

"The very notion of there being a black seat or a woman's seat or a Hispanic seat or a white seat is offensive," Nojay said. "There is no way to justify judging someone by the color of their skin, no matter which side of the bench you are on. Our justice system should be color blind, both as to the merits of the party to litigation and the merits of the judge sitting on the bench."

Nojay's comments largely echo those last month of two senior members of the state Senate who openly challenged the assumption that ethnicity, gender or any quality other than merit should factor into the equation.

Senator John DeFrancisco, a Syracuse Republican and former Judiciary Committee chairman, acknowledged the political necessity of diversity, but suggested skin color and gender should not trump merit.

The current chairman, John Bonacic, R-Mount Hope, vocally opposes what he characterized as the "social engineering" of the high court and argues that diversity should not be a consideration. Bonacic said that if at any given time the seven best candidates are all Hispanic women, so be it.

"I reject the notion that any seat on the Court of Appeals should be classified by ethnic position," he said in an email last week.

Bonacic noted that legislation sponsored in 2009 by then Judiciary Committee Chairman John Sampson, D-Brooklyn, would have empowered the commission to "consider appropriate institutional factors of racial, gender, ethnic, geographic, experiential and other diversity."

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