Gov. Andrew Cuomo is about to make his second appointment to the New York Court of Appeals, New York's highest court. The question being debated in Albany is whether diversity should play a part in his selection.
The chairman of the Senate's Judiciary Committee, Sen. John Bonacic, vocally opposes what he characterized as the "social engineering" of the Court of Appeals expressing the sentiment that diversity should not be a part of the equation.
Indeed, under the criteria spelled out in Article VI of the state constitution, and repeated in Article 3-A of the Judiciary Law, the commission on judicial selection — which submits names to the governor from which he is to make his appointment — is charged with evaluating candidates based on their "character, temperament, professional aptitude and experience." It does not mention race, gender or geography.
Despite this, there is no question that the commission, charged with the responsibility of selecting candidates for appointment to the Court of Appeals, considers diversity in naming its choices. Nor is there any question that Cuomo has considered this as one of the criteria when making his appointments.
However, I don't believe that the commission or the governor consider diversity as the sole criterion. To do so, without recognizing ability and excellence, would make the appointive process applied to judicial selection a failure.
As someone who served on New York's highest court for a generation, I firmly believe that the first concern in appointing a judge should be that person's legal and listening skills with an overriding concern for properly applying the law and doing justice.
However, having served on the Court of Appeals at a time when all its members were white males, and later serving on the court after Gov. Mario Cuomo brought diversity to the Court of Appeals, I also believe there is a need for a diverse court. No matter how qualified the members of an appellate bench are, by way of learning or judicial skills, such a bench without diversity is severely handicapped and unworthy of New York.
Many of us have experienced the pain of discrimination and bigotry, but not all of us fully understand it or its sequella. 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.
That does not mean that white male justices are inherently racist or sexist or incapable of rendering justice to minorities. But on the simplest level, it is substantively important for there to be diversity on the bench with regard to race and gender for the same reason that it would bode ill for our judicial system if we selected all of our judges only from academia — even if those academics had the best legal minds available.
In the past, and in some parts of the country perhaps even now, one could make a legitimate argument that due to bias, there was not an acceptable pool of lawyers to make a judiciary truly diverse. And it would be correct to say that diversity should never be used, by substance or perception, to put unqualified people on the bench. However, the argument that there are not enough qualified diverse judges or attorneys in New York is absurd.
Diversity in our judiciary serves both the perception of equality under the law and a substantive betterment of our courts. It should be considered as a measure of qualification.
Sol Wachtler is the former chief judge of the state of New York and a distinguished juror in residence at Touro Law School.