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Court Needs Racial Diversity

Published: September 3, 2006

The Syracuse Post-Standard
September 3, 2006

Court Needs Racial Diversity
By Lauren Jones

A little-known issue in this year’s gubernatorial race could have an impact long after the next governor’s term expires. In his first year in office, the next governor will appoint three judges to the seven-member Court of Appeals, New York’s highest court, giving him the ability to shape the judicial branch for years.

Gov. George Pataki left his own mark on the judiciary Aug. 18, when he appointed Eugene Pigott to replace Judge George Bundy Smith, the only black judge now on the high court. When Judge Smith steps down from the bench at the end of September, the Court of Appeals will have no black judges for the first time in more than 20 years.

Unlike in the federal system, which guarantees judges lifetime appointments, in New York the governor appoints judges for 14-year terms. At the end of that term, the governor may reappoint a judge, who can remain on the bench until age 70. Judge Bundy reapplied for his seat on the Court of Appeals and would have been eligible to serve until the end of 2007, when he reached the mandatory retirement age.

Letters from U.S. Rep. Charles Rangel, former New York City Mayor David Dinkins, the Urban League, leaders from the NAACP, and the Fund for Modern Courts, a judicial watchdog group, all urged20Gov. Pataki to be mindful of diversity when nominating a judge. The governor not only declined to reappoint Judge Smith, but also created a court with no blacks.

“To think that in this state, with the enormous minority population that we have, that of those seven jurists (on the Court of Appeals) there’s not one of color I’m saddened,” former Mayor Dinkins said in an interview with The New York Times.

A survey conducted by the Commission to Promote Public Confidence in Judicial Elections found that 71 percent of registered voters in New York believe that the state’s judges are fair and impartial, but only 51 percent of black voters surveyed believed that they are. Having more minorities on the bench would go a long way toward making all New Yorkers feel that they can receive a fair day in court. More diversity among judges would also mean that decisions would reflect a broader range of perspectives.

Governors in other states already understand the importance of having a judiciary that is representative of the state’s diversity. Even in Kentucky, hardly known for a historically warm embrace of diversity, Judge William McAnulty last week became the first black judge in history on Kentucky’s Supreme Court. Last month, Tennessee Gov. Phil Bredesen returned a list of names to the judicial selection commission, which presents the governor with three qualified candidates from which to choose a nominee, saying that he would not accept a list that did not include minority candidates.

Gov. Pataki says that he did not reappoint Judge Smith because he wanted a judge who was eligible to serve a longer term. But the governor’s failure to reappoint Judge Smith follows a long pattern of disregard for the importance of diversity. During his 12 years in office, all five of Pataki’s nominees to the Court of Appeals were white Republicans. In fact, he appointed only two black judges to any appellate courts, both of whom have since left. When Judge Smith retires next month, there will be only two black judges of the 64 appellate judges in the state.

Governors typically elevate judges to the Court of Appeals from the appellate courts one level below, but both black judges who currently sit on appellate courts are over the age of 70 and, thus, ineligible to sit on the Court of Appeals. In order to appoint a black judge, the next governor will have to select a jurist from the trial courts or find a nominee outside of the state judiciary.

Governor Pataki’s appalling track record has left the future governor with reduced options to diversify the Court of Appeals, but it is imperative that he do so. On Election Day this November, voters from many cultures, ethnicities, and races, who represent the best of America’s melting pot, will cast their votes for a new governor. The winner must be mindful of that diversity when selecting three new judges for the Court of Appeals in the ensuing year.

Lauren Jones is a research associate in the Democracy Program at the Brennan Center for Justice at New York University School of Law.