"I think it is unconstitutional and contrary to both the letter and spirit of the laws," he said. "More important, it is contrary to what we have been trying to do in American society for decades. We need diversity of perspective and background, but that is not to be confused with racial discrimination in the name of racial diversity."
Under the criteria spelled out in Article VI of the state Constitution, and repeated in Article 3-A of the Judiciary Law, the commission is charged with evaluating candidates based on their "character, temperament, professional aptitude and experience." It says nothing about race, gender or geography, critics point out.
Stephen Younger, counsel to the commission, declined to comment. In the past, however, the commission has contended that its authority to review candidates includes consideration of diversity.
Former Chief Judge Sol Wachtler, who was elected to the court in 1972 and later became a leader in establishing the appointive system, said in an email last week that the "first concern in appointing a judge should be that judge's legal and listening skills and overriding concern for doing justice." But he also said diversity is an important and valid consideration.
"No matter how qualified the members of an appellate bench are, by way of learning or judicial skills, an appellate bench without diversity is severely handicapped and unworthy of New York state," Wachtler said.
He said the experiences unique to minorities cannot always be fully understood or appreciated by a judge who has not had those experiences, no matter how well-meaning.
"Many of us have experienced the pain of discrimination and bigotry, but not all of us fully understand it or its sequella," Wachtler said. "We have all read about the inner city, but not all of us understand the sense and societal norms of those neighborhoods. We all cherish our civil liberties, but not all of us appreciate how subtle and not so subtle forces can diminish those liberties without warning or understanding. We all believe in law enforcement, but not all of us understand how members of certain communities can feel themselves singled out for unlawful police activity."
William Pollard III of Kornstein Veisz Wexler & Pollard said diversity on the high court remains important. Roughly 35 of the state population is black or Hispanic, according to the 2012 census.
"It is good for our public institutions to reflect the diversity of our state and that is a legitimate consideration when choosing nominees to serve on the Court of Appeals," Pollard said. "Merit and experience always come first but Judge Kaye and her colleagues are entitled to consider a broad array of qualifications and needs for the court in determining which of the candidates should be recommended to the governor."
New York stopped electing judges to the Court of Appeals after a 1977 amendment to the state Constitution implemented an appointive system designed to depoliticize the selection process.