Janet DiFiore (Part 3--Notes from the Hearing)

Janet Marie DiFiore
photo:John D'Annibale/Times Union

Well, we actually had a hearing. A substantive, meaningful, revealing confirmation hearing.

On Wednesday, January the 20th, New York's Senate Judiciary Committee held a hearing on Governor Andrew Cuomo's nomination of Janet DiFiore to be Chief Judge of the state and of its highest court, the Court of Appeals. It was a superb hearing, and the nominee's exceptional performance earned the unanimous vote she received.

(I am trying to be detached and clinical. But the fact is that, as a New Yorker, I left the hearing proud of what I witnessed from both the Committee and the nominee. I have not hesitated to be critical of confirmation hearings, state and federal, or of the oftentimes simplistic, disingenuous, nonsensical queries of the senators and responses of the nominees. But this hearing and the nominee's responses were superb. Let me acknowledge that the confirmation hearing conducted by the Committee a few years ago for now-Judge Jenny Rivera was as tough as I've witnessed in New York--that's a compliment--and she was more than up to the challenge.)

Here are a few notes from the DiFiore  hearing. Let's start with the Judiciary Committee itself and then offer a few comments about the nominee's performance.

The Judiciary Committee

• In his capacity as Chair, Senator John Bonacic, has always shown himself to be extremely well-prepared for these hearings, and this one was no exception--both regarding the nominee, the role of a Judge on the high court, and the role of Chief Judge.
• More than that, it was evident that the other Senators on the committee came prepared to this hearing as well. It seemed as though every member of the committee posed at least one serious question or offered a substantive comment about the nominee, the role of the Court, or that of Chief Judge.
• Bonacic and the other Senators on the committee explored the nominee's background, experience, fitness and other qualifications to be Chief Judge.
• They pressed the nominee about her ability and commitment to be independent of the Governor who nominated her and with whom she has been politically connected.
• They pressed the nominee about her understanding of the judicial role, as opposed to that of the legislative and executive branches.
• The similarly pressed her about her understanding of the legal role of a Judge on the high court and the administrative and policy-making role of the Chief Judge of the state.
• They asked her about the approaches--some different--of her predecessors as Chief Judge, both as the presiding judges of the Court and as the administrators of the judicial branch.
• They asked about judicial role models.
• They asked for her views about many substantive areas of the law and about running the state's mammoth judicial branch.
• Unlike the confirmation hearings at the federal level, there was no partisan bickering, there were no "gotcha" questions, there was no nonsense about simply applying law and not making it, and there was no ranting and raving and pandering to the home crowd.
• There was some serious commentary cum urging offered by several of the Senators about respect for legislative prerogatives, about addressing inequities in the justice system, and about judicial ethics and integrity.
• There were also some lighthearted moments as when at least two of the Senators expressed their disagreement with the nominee's choice of favorite Judge in Court of Appeals history (discussed below), and they each named Judge Eugene Pigott as theirs--he happened to be present in the room, and he has indeed been a truly exceptional jurist on New York's high court.
• There were also a few snickers when one of the Senators remarked--more than a bit inappropriately in such a setting--that the nominee was much better looking than her photographs.  (The nominee was gracious and treated it as a welcomed compliment.)
• One last note: Senator John Defrancisco, a relentless and well-prepared virtual interrogator of  nominees in the past, attended the hearing and posed questions even though he is no longer a member of the committee. In fact, he came so armed with queries and comments, that the Chair eventually had to (good-naturedly) cut him off.
• All in all, a terrific job done by the Chair and his committee.

The Nominee

• Though nominated to be Chief Judge by Governor Andrew Cuomo and though having been appointed by him to other government positions, Janet DiFiore assured the committee on no uncertain terms about her absolute resolve to be scrupulously independent of any political or personal influence.
• The term she used repeatedly to describe what would be her independent approach to the cases: "inviolate."
• In terms of being an "activist." she made clear her intention to continue the work of her immediate predecessors as Chief Judge to address the inequities in the justice system, especially those that impact the young, the poor, minorities, and other vulnerables. Indeed, she unabashedly pledged that she would be an advocate for those and other justice matters.
• She also made clear that her approach to cases would be based on examination of the law, on legal principles and on the consequences of a decision as well.
• Notably, she did not engage in the robotic nonsense often voiced at confirmation hearings, both state and federal, that "Judges-should-not-make-law-or policy-but-should-only-apply-the-law-and-policy-as-given-[and as supposedly already well-settled]-to-the-facts-of-the-case."
• Notably also, she did not embrace any particular interpretive methodology. That too is in sharp contrast to the claims of many nominees and sitting judges, state and federal, who avow an aversion to "judicial activism" and, in supposed opposition, espouse so-called textualism or originalism or strict construction or specific legislative intent, or some other variant of "judicial restraint."
• Instead, she unreservedly proclaimed that her goal in decision-making was to insure equity, justice, and fundamental fairness.
• She appropriately declined to express an opinion on the validity of certain laws, proposals, or other measures--executive as well as legislative--that might well come before her in cases at the Court.
• When asked, she unhesitatingly identified her favorite Judge in Court history as Stanley Fuld. (Although she was not asked for an explanation, there are several reasons which likely informed her choice. First, Fuld was one of the truly great and most influential jurists, state or federal, of the last century. Beyond that, he served as Chief Judge and, as such, is one of her most eminent predecessors. And perhaps most significantly for DiFiore, Fuld's background--like hers--was being a prosecutor and, despite that, was one of the Court's and the nation's foremost advocates for protecting the rights of the accused.)
• In one of the most surprising and amusing highlights of the hearing, we learned that Janet DiFiore is--to borrow a phrase popularized by a certain personality who once ran for Vice-President--a "Mamma Grizzly!" Not only does she believe in gun rights but, when asked, revealed that she herself has a concealed carry permit.
• On a more relevant note, nominee-DiFiore delivered her opening remarks and responded to all of the Senators' inquiries with exceptional confidence and poise and knowledge and dignity. It was a bravura performance on her part.

Of course, one never knows for sure how any particular judge will perform once confirmed and sitting on the bench. But the Judiciary Committee did a fine job examining the nominee and assuring itself that she is as enormously qualified to be Chief Judge as she certainly appears to be.

As for the nominee herself, what ran through my mind as I observed her and heard her through the hearing was this. She seems to possess many of the best qualities of her immediate predecessors. Like Sol Wachtler, she has a strong, commanding, yet exceedingly charming presence. Like Judith Kaye, she displayed that distinctive class, eloquence, and warmth. And Like Jonathan Lippman, she exuded that overriding concern for those in need, for basic human decency, and for doing the right thing.

(Yeah, what can I say, I thought she was wonderful and I'm hopeful she will do wonderful things as Chief.)

As the confirmation hearing came to a close, Senator Bonacic proclaimed what, I believe, everyone was thinking, that DiFiore was an "exceptional" nominee. Then, with the standing room only audience still in the room and the nominee herself still at the table, he called for an immediate vote. It was unanimous, and Bonacic announced it in enthusiastic, forceful fashion.

The full Senate confirmed DiFiore unanimously as well the next day. And this Monday, in that glorious courtroom in that magnificent courthouse on Eagle Street, there will be the ceremonial investiture of the new Chief Judge. I'll be there, Court geek and proud New Yorker.