Tuesday, March 12, 2013

NY Court of Appeals: Diversity & The List for the Jones Vacancy

[Been sick as a dog. The flu. Even though I had a flu shot.
But this must have been a different strain. The worst I've ever had. Knocked me out of commission for a week.

Well, I'm not yet ready for the urn. Too much going on. And too much good scotch and bourbon for my wife and boys to buy me, and the Court of Appeals coming for our symposium next week, and Nonna's 88th--and just 4 months till Saratoga!]

3 African-Americans
3 Women
4 Appellate Judges
3 Private Litigators
1 Openly Gay Man
3 Who were on the previous list
3 from Manhattan
1 each from Brooklyn, the Bronx, and Long Island
1 from North of New York City--Buffalo
0 Hispanics [3--including the chosen 1--last time]
0 Asians [1 last time]
0 Academics [1--the chosen 1--last time]
0 Republicans [0 last time]

Soooo, once again, the Commission on Judicial nomination has produced a list that is plenty diverse. Well, certainly in some senses if not in all.

But it is also a list that likely raises as many questions as it answers. Questions about the Commission's quest to insure that a wide demographic swath is represented in the 7 names it presents to the Governor.
[We will discuss the individuals on the list in the next post. Meantime, see Joel Stashenko and John Caher, 4 Judges, 3 Private-Practice Lawyers in Line for Jones' Seat, NYLJ, 3/8/2013.]

Now, anyone who thought about it for more than a few minutes would understand that diversity is important. Would anyone seriously think that a court composed of all white males is preferable? Or all males, black or white?

Or all graduates of the same law school? Or all who had the same personal or professional background? Would any of that be preferable to one where the judges' personal, educational, and career backgrounds were different? Would any of that be preferable, in short, to a court in which perspectives were varied?

If judicial merit means anything, it certainly must include the diversity of perspectives that judicial nominees would bring to a court. The ability of a court to assess fundamental legal questions from different vantages.

Differences of race, ethnicity, gender, religion, upbringing, education, personal and professional experience, etc., would likely add to the wealth of perspectives on a court. Would likely make for a less narrow-minded court. A better court.

In a word, merit.

No. Neither race nor ethnicity nor gender nor religion nor any other aspect of diversity is a substitute for other elemental qualities of individual merit. No, not a substitute for intelligence, knowledge, wisdom, integrity, fairness, conscientiousness, etc.

But, of course, no one should even be considered for a position on a high court without those qualities. Those are prerequisites. Or should be. (No, they are not always satisfied. Come on, let's not be delusional!)

Once those prerequisite qualities are satisfied, however, then we enter the space within which diversity should and, indeed, must be considered in determining the "best" nominee. In insuring the "best" possible court. The court with a wealth of perspectives. The nominee who will add to that wealth.

[To be sure, some do disagree with the value of diversity. Indeed, a debate has emerged--it's always there, if sometimes seething beneath the surface--about the propriety of considering diversity to fill vacancies on the NY Court of Appeals. And by extension, on any high court. And, presumably, on any court or in any organization. See e.g., John Caher, Quest for Diversity Triggers Debate Over Role of Race, Gender in Judicial Selection Process, NYLJ, 3/11/2013.]

As for the current list, yes, it is diverse. Yes, those on the list do cover a wide demographic swath.

But in assessing the list's diversity, and diversity alone, certainly it does not reflect the entire "mosaic" of New York--as the current Governor's Dad would say when he was Governor. Of course, a perfectly complete diversity would not be possible. Surely not for a mere list of 7.

But some particular holes in the list's diversity are notable. This is especially true for a list which undoubtedly was produced with diversity as a priority.

Consider, for example:
No Republicans? [Again!]
And suddenly no Hispanics when there were 3 last time?
No Asians?
Only 1 Upstater--meaning, in New York City terms, someone from anywhere north of the City.

Of course, these holes might well have been the result of the particular pool of applicants from which the nominating commission could draw. It could be, for instance, that Republicans just didn't bother applying. Maybe they just figured that Democratic Governor Andrew Cuomo would certainly nominate a Democrat. So why bother?

BUT, his Dad, Governor Mario Cuomo, did appoint as many Republicans as Democrats. As many conservatives as liberals. His picks for the high court reflected ideological and party--as well as gender, racial, and ethnic--diversity.

So son Andrew just might be inclined to do that as well. Perhaps he should at least be given the opportunity to appoint a Republican. Even a conservative one. But not this time. Not the last time either.

Now one might reasonably protest: Come on, let's be real! We all know what the Governor will be looking to pick this time.

Judge Theodore Jones--who died unexpectedly last November and whose vacancy this pick will fill--was the sole African-American on the Court. It is very likely, as in almost extremely so, that the Governor will want to fill his vacancy with another African-American.

That being the case, it was only realistic for the Commission to produce a list that included a few African-Americans.

Now the concerns about the emphasis on diversity are typically elevated in debates about such specific race-for-race selections. About the notion that an African-American judge must be replaced by another African-American. About the notion that there's an African-American seat on a high court--New York's or the nation's.

Again the protest: The position should be filled solely on the basis of pure merit.

Let's even assume that there is agreement on what would constitute pure "merit." Of course there are some criteria. We've already identified a few about which little disagreement would be expected: intelligence, knowledge, wisdom, integrity, fairness, and conscientiousness.

Let's be plain. A smart person would be preferable to an idiot. A knowledgeable one to an ignoramus. A diligent one to a sloth. An honest one to a fraud. A fair one to a bigot.

Beyond that, what about the Court itself? Yes, merit for the Court as a whole. Not just one individual versus another in a vacuum. But what an individual brings to the Court. What would be best for the Court?

We discussed this generally above. But now, with regard to replacing the sole African-American on the New York Court of Appeals, let's consider it more specifically and directly.

An all white Court!
An all white Court in New York in 2013?

The state's highest court, the one that decides the most fundamental legal questions of right and responsibility, of freedom and authority, of crime control and due process, of equal and fair treatment for all the people who live and work and travel in New York--all white?
The state's highest court, the one that settles the most fundamental legal policies that profoundly affect life and liberty in New York--all white?

Or better to be a racially mixed one? Much much better?

To some of us, that's not even a close one. Indeed, it's a critical consideration. A consideration that is an essential aspect of merit. Both for the individual who will be nominated by the Governor to fill Judge Jones' vacancy, and for the Court as a whole.