Diverse Coalition Urges Gov. Hochul to Balance Lack of Professional Diversity on New York Court of Appeals with Her Upcoming Nomination

Press Release / November 16, 2021

FOR IMMEDIATE RELEASE

November 16, 2021

CONTACT: [email protected]

DIVERSE COALITION URGES GOV. HOCHUL TO BALANCE LACK OF PROFESSIONAL DIVERSITY ON NEW YORK COURT OF APPEALS WITH HER UPCOMING NOMINATION

WASHINGTON, DC—On Tuesday, more than three dozen progressive political, criminal justice reform, legal, and economic justice organizations sent a letter to New York Governor Kathy Hochul urging her to fill a vacancy on the New York Court of Appeals, the highest court in New York state, with a professionally diverse lawyer. The letter emphasizes the lack of diversity on the court, where none of the judges has experience in public defense and most were prosecutors or priva lawyers.

The letter reads, in part, “As currently composed, the New York Court of Appeals suffers from a conspicuous lack of professional diversity. … Diversity on the bench is critical to the strength and legitimacy of the judiciary, and diversity of experience is essential to creating a system that fairly addresses each litigant’s circumstances.” It says, “The Commission on Judicial Nominations has included two candidates with significant public defense or civil rights experience in its recommendations to you, and we encourage you to nominate one of those candidates.”

The letter is signed by: 

  • Alliance for Justice
  • American Constitution Society, New York Lawyer Chapter
  • American Constitution Society, Western New York Lawyer Chapter
  • Baber African Methodist Episcopal Church
  • Brooklyn Defender Services
  • Center for Community Alternatives
  • Citizen Action of New York
  • Demand Justice
  • Empire State Indivisible
  • Enough is Enough
  • Fordham Parity Project
  • Generational Engagement Matters Inc
  • Housing Works
  • Institute to End Mass Incarceration
  • Law Students for Economic Justice
  • Legal Aid Bureau of Buffalo
  • Legal Aid Society
  • Make the Road New York
  • Monroe County Conflict Defender’s Office
  • Monroe County Public Defender’s Office
  • National Association for Public Defense
  • National Juvenile Defender Center
  • National Legal Aid & Defender Association
  • Neighborhood Defender Service of Harlem
  • New York State Association of Criminal Defense Lawyers
  • New York Working Families Party
  • Office of the Appellate Defender
  • People’s Parity Project
  • Progressive Doctors
  • Reentry Association of WNY
  • Release Aging People in Prison Campaign (RAPP)
  • Robert F. Kennedy Human Rights
  • RocACTS
  • Rochester Black Bar Association
  • Strong Economy For All Coalition
  • United Christian Leadership Ministry 
  • Village Independent Democrats
  • VOCAL-NY
  • Wayne County Public Defender Office
  • The Western New York Law Center, Inc.
  • Zimroth Center, NYU Law School

A copy of the letter can be found below.

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We write to urge you to nominate a professionally diverse lawyer to the vacancy on the New York Court of Appeals. New York’s highest court has historically lacked a diversity of perspectives, with its members coming almost exclusively from lower court judgeships, private practice, and local governments. The Commission on Judicial Nominations has included two candidates with significant public defense or civil rights experience in its recommendations to you, and we encourage you to nominate one of those candidates to fill the seat that is being vacated by Judge Eugene Fahey.

As currently composed, the New York Court of Appeals suffers from a conspicuous lack of professional diversity. Of the seven judges currently serving, three are former prosecutors and three come from private practice. None has experience in public defense. Only one has experience in civil legal services and only one has experience at a non-profit organization––and neither of them spent the majority of their practice doing this work. This lack of diversity is not new. In fact, throughout the past fifty years, only two judges had experience as public defenders and only four had experience in civil legal aid. 

This imbalance is not unique to the New York Court of Appeals. A recent study showed that in our federal courts, former prosecutors outnumber former public defenders and criminal defense lawyers four to one. President Biden has recognized this and is prioritizing greater balance. Of his fifty-three federal judicial nominees so far, one third were public defenders and one quarter were civil rights lawyers. He has already matched the record for the most public defenders confirmed to the U.S. Courts of Appeals during a presidency, and he is only in his first year of service. Senator Chuck Schumer similarly recognizes the importance of professional diversity, and for the Second Circuit Court of Appeals, which includes New York, he recommended a career public defender, Eunice Lee, and a leading voting rights lawyer, Myrna Pérez. Like the New York Court of Appeals, the Second Circuit had not had a judge with public defense experience in many years. It does now.

We urge you to follow the model set by President Biden and Senator Schumer and nominate a candidate to the New York Court of Appeals who will represent a historically underrepresented perspective on the bench. Lawyers from underrepresented legal backgrounds have spent their careers developing an in-depth understanding of the legal needs of everyday people and therefore are particularly equipped to understand the experiences of each litigant before them, to recognize the disparate burdens that laws often place on people who are living with low incomes or are otherwise marginalized, and to render informed decisions, including on civil and human rights and economic justice. Moreover, evidence shows that a similar lack of professional diversity on the federal bench has made a tangible impact on how justice is served in this country. In fact, research shows that federal judges who previously worked as corporate lawyers and prosecutors are more likely to rule against workers in employment cases, even when compared only to judges appointed by the same president. The lack of professional diversity on the New York Court of Appeals could likely have the same impact on how justice is served in the state.

Diversity on the bench is critical to the strength and legitimacy of the judiciary, and diversity of experience is essential to creating a system that fairly addresses each litigant’s circumstances. In calling attention to the U.S. Supreme Court’s own lack of professional diversity, Justice Sonia Sotomayor recently observed that “there are so many areas of law that the Court touches, and whose decisions impact in such tremendous ways, that I do worry that the authorities who are selecting judges are not paying enough attention to that kind of diversity as well.” This principle is no less important in our state courts, and particularly in the highest state courts. 

We implore you to nominate a professionally diverse candidate to fill the upcoming vacancy on the New York Court of Appeals. Thank you for your consideration.

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