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

March 11, 2013

Sampson introduced the measure after concerns were raised that the list for the position filled by Chief Judge Jonathan Lippman lacked diversity. But Sampson's bill was never voted on by his committee, let alone enacted.

Nevertheless, the commission adopted a new rule declaring its commitment to diversity and has made a concerted effort to broaden the pool of applicants. Sampson applauds that effort.

"To me, you are looking for an experienced bench and also candidates who are reflective of what New York state looks like," Sampson said in an interview. "You need the best qualified people on the bench and diversity is something you need to take into consideration, just like you take into consideration litigation background and educational background. Diversity is just another component that should be taken into consideration."

The list released March 7 includes three blacks and three women, all registered Democrats, and includes candidates from different parts of the state.

In contrast to the list for the Ciparick position, there do not appear to be any Hispanic candidates on the list for the Jones vacancy.

First Department Justice Rolando Acosta (See Profile), one of three Hispanics on the prior list and the only candidate in the last round who received the highest rating from all of the bar groups that evaluated nominees, withdrew from consideration for the Jones position, partially on the assumption that he is racially disqualified, according to sources familiar with his sentiments.

A press release issued by the commission revealed that 71 individuals applied for Jones' seat and 37 were interviewed. Thirty-eight percent of the applicants, and 41 percent of the interviewees, were women; 31 percent of the applicants, and 41 percent of the interviewees, were ethnic minorities. The commission is chaired by former Chief Judge Judith Kaye, now of counsel to Skadden, Arps, Slate, Meagher & Flom.

In a recent Law Journal opinion article (NYLJ, Feb. 28), Richard Schager Jr., a partner at Stamell & Schager, maintained that new rules adopted by the Commission on Judicial Nomination "have led to the now commonly expressed view that ethnic and social groups are entitled to representation in the judiciary."

Schager argues in the essay that "there is no basis in the Constitution, the Judiciary Law, or the mandate to the commission for designating a Hispanic seat on the Court of Appeals, any more than there is a basis for designating an African-American, Irish, Jewish or Catholic seat."

Nojay agrees.

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